Constitutional Court still keeps the poor at bay

The shooting of Andries Tatane by the police during a protest suggests it is critical for constitutional llitigation to be an avenue for contesting inequality. (Photo: Leon Sadick/Gallo Images/City Press)

The shooting of Andries Tatane by the police during a protest suggests it is critical for constitutional llitigation to be an avenue for contesting inequality. (Photo: Leon Sadick/Gallo Images/City Press)

Legal interventions can help in the fight against poverty and inequality, but in South Africa the poor do not have sufficient access to the courts. 

While there is some debate on the extent to which the law can improve the implementation of economic and social rights, this much is clear: if the law is going to help at all, the poor must have access to the courts. 

Across the developing world, and particularly in Latin America, one of the mechanisms adopted to facilitate this access is by enabling people to directly petition the highest court to defend their rights (rather than only arriving there, perhaps, after many appeals through lower courts). 

Recognising how powerful this can be for disadvantaged populations, the South African Constitution allows direct access to the Constitutional Court when it is in the interests of justice.

But in stark contrast to the highest courts in countries such as Colombia, Costa Rica and India, which regularly and generously grant direct access, the South African Constitutional Court only granted direct access in 18 cases in its first 20 years of operation (1994-2014). In comparison, the Constitutional Court of Costa Rica hears approximately 17 000 direct-access applications every year and the Colombian Constitutional Court hears about 450 direct access applications each year.

The South African Constitutional Court has failed to use the direct access mechanism to select deserving direct-access cases from socioeconomically disadvantaged groups. 

As the highest courts in other countries have realised, direct access is the mechanism over which judges have the most direct power to widen the doors of access to justice, particularly for disempowered applicants.

This failure has meant that, outside criminal cases in which there is legal representation at state expense, the court’s roll is dominated by cases brought by empowered groups — those with the funds to litigate through the various stages required to reach the Constitutional Court. 

South Africa’s narrow approach has undermined the Constitutional Court’s ability to act as an institutional voice for the poor. 

Indeed, this dominance of empowered over disempowered litigants, especially in a court that hears a relatively low number of cases each year, has two worrying implications for the transformative potential of the Constitutional Court. 

First, regardless of how “pro-poor” any Constitutional Court justice may be, if she or he hears only or mainly cases involving empowered litigants, they are likely to lose touch with the disadvantaged. As a result, the court is likely to become increasingly elite.

Second, this resulting detachment from the lives of most South Africans limits the ability of the court to -foster the development of constitutionalism. Without a transformative direct-access function, the court’s ability to engender public faith in the supremacy of the Constitution across the socioeconomic divides will remain stunted.

Examining the details of the 18 direct-access cases that reached the Constitutional Court reveals interesting insights into the court’s restrictive approach. 

First, half of these applications were not authentic direct-access cases in the sense that the issues had already been aired in another court, as opposed to being an original application.

Second, it is striking that all but two of the remaining nine “authentic” direct-access cases relate to classic civil and political rights rather than socioeconomic rights. This is noteworthy because in South Africa socioeconomic rights cases are invariably brought by impoverished applicants who, arguably, have a stronger claim to direct access based on the interests of justice — because, without direct access to the highest court, they might not otherwise have access to justice. 

In most of the 18 cases, the litigant was the government. In only one case, Elsie Gundwana v Steko Development CC & Others, was a poor person granted direct access to the court, without which she would probably not have been able to litigate her case through the usual court hierarchy.

Third, almost all of the 18 cases were brought by government agencies and revolve around maintaining the institutional coherence of government, whether in terms of the court system, including the administration of the justice department and courts, the criminal justice system including correctional services, the electoral system, intergovernmental relations, or a combination of these factors. 

This suggests that the court’s main aim in advancing direct access is to resolve political rather than socioeconomic questions. 

Events such as the fatal shooting of Andries Tatane by the police in 2011 during a service-delivery protest suggest that it is more critical than ever for constitutional litigation to be a serious avenue for contesting the lived reality of poverty and extreme inequality through the resolution of socioeconomic, as well as political, questions. 

This is all the more important given current perceptions, including by many in the government, that the Constitution is an elite document and that the Constitutional Court serves mainly elite interests. 

If the Constitutional Court embraced a more substantive pro-poor role, including by advancing direct access, this could contribute greatly not only to material change and social justice in South Africa, but also to the consolidation of democracy.