The price of justice

The Constitutional Court. (Madelene Cronje, M&G)

The Constitutional Court. (Madelene Cronje, M&G)


The Constitutional Court recently set aside the interim order that prevented government from rolling out the e-tolling system as it had originally intended. What was then a small victory for Opposition to Urban Tolling Alliance (Outa) and Gauteng motorists, now seems to have been nothing more than a mirage. A high court review is expected in November where the actual case, including the substance and merits thereof, will be heard and then that we will know whether the e-tolling system is legally endorsed or stopped on the ground of being unlawful by the court. 

While most of us are understandably perturbed by the looming possibility that e-tolling will become a reality, another important court case, Camps Bay Ratepayers and Residents Association and Another v Harrison and Another, was decided upon by the Constitutional Court that very same day of the setting aside of the interim order regarding e-tolling.  Perhaps one should be clear at this point. By important, I mean that the decision had and has some serious worth of its own in the greater scheme of things.

While it didn’t deal with something as publicly contentious as being forced to pay extra for the use of the roads in Gauteng the ratepayers decision did deal with something that is certainly contentious within legal circles and academia; the exorbitant fees that counsel, both senior and junior, demand for their services. It may be argued that it is a seemingly unavoidable reality that where two parties (plaintiffs or defendants) are concerned in a court case, regardless of who is the loser or winner, the lawyers will still get paid and paid very well too. It doesn’t help matters that the rich list report that was compiled and released by the Sunday Times about two weeks ago had lawyers as the best paid professionals in the country.

To give greater context, one of the court's obiter dicta went a little something like this; at paragraph 10 of the judgment, "We feel obliged to express our disquiet at how counsel's fees have burgeoned in recent years. To say that they have skyrocketed is no loose metaphor. No matter the complexity of the issues, we can find no justification, in a country where disparities are gross and poverty is rife, to countenance appellate advocates charging hundreds of thousands of rands to argue an appeal."

Now there is no need to go into too much detail regarding the merits of the case save for the simple truth that is alluded to in the above statement. The right to access justice is one of the cornerstones of our Constitutional dispensation given the history that we come from but the small print that deals with the fees that are associated with this access has somewhat managed to keep a stealthy disposition. This is not to say that the legal fraternity does not have rules and regulations in place of course but it is rather an attempt at painting a picture of how having the right to access justice is something that is far easier said than done. 

On that note, I have often wondered to what extent the law is looked upon with a scrutinising eye particularly outside of the field of law practice and academia. An exhibition that took place in Jo'burg just last week answered this question somewhat. Titled Appeal 2012, a collaborative art exhibition that sought to address ideas around art, law and media, the exhibition can be best described as having taken the form of a personified court case going through a second life (appeal) in very much the same way that government’s new found potential opportunity of forcing motorists into a tight corner regarding e-tolls has come about.

Conceptualised by artist Elgin Rust, Appeal 2012 raised some interesting questions on the idea of law and the spaces in which it operates - out of its own accord and within a language and culture that is purely its own. Personally, I feel that art has not interrogated the law as much as it could. Very often it deals much more specifically with the overall manifestation of law under the rubric of political and socio-economic dynamics.

How then would art ask questions around the law’s relevance, its effectiveness, use and impact on the lives of ordinary people for example? Like the decision regarding crazy legal fees or the expected high court review which will eventually put our minds at ease or break our hearts on the issue of e-tolls, the only avenue for discussing these matters of citizenship cannot be limited to the spaces of political pontiffs or jurisprudential mavericks. Art, in all of its expressions could be an exciting tool of analysis to wield. Here’s hoping more artist take an interest.

Mpho Moshe Matheolane

Mpho Moshe Matheolane

Mpho Moshe Matheolane is a Motswana from the little town of Mahikeng. He is a budding academic, researcher and writer with interests in art, history, semiotics and law. He sits on the Constitutional Court Artworks Committee – a clear case of serendipity – and is a firm believer in the power of an informed and active citizenry. Read more from Mpho Moshe Matheolane

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