Rights
ranging from access to land to access to justice are entrenched in
our Constitution. These rights are presumed to be available and
readily accessible to everyone. The Constitution tells us that we all
have equal rights but the reality shows us otherwise. In a free
market economy, nothing is really free. From access to housing,
healthcare, education and justice. It all has a price. If you cannot
afford it, you cannot access it. What do you
mean justice is inaccessible and market driven, you hear neo-liberals
cry. There are human-rights NGOs, legal aid, university law clinics
and pro bono attorneys. It remains unsure, though, how many people
are able access these mainly urban-centred, rights-based
organisations and what capacity these organisations have.
Statistics
show us that at least 50% of the population lives in rural areas. So
what about the millions unable to access legal services. Two horrors
facing the poverty-stricken of our country are job losses and
eviction. It is true that a farm worker dismissed in a rural area can
refer an unfair dismissal to the CCMA without incurring legal costs
but when he is fired, he doesn’t have the money for daily
necessities, let alone money to travel to the arbitration process. It
is arguable then that he cannot pursue his constitutional rights as a
worker.
Legally, a
person unable to pay rent cannot be evicted unless given alternative
accommodation. The Prevention of Illegal Eviction Act makes it
unlawful for a hard-nosed landlord to dump a tenant out on the
streets. But how many people know about this right and how many can
actually access a lawyer to challenge the eviction in court? Few, if
any. So as the old adage goes, a few trees do not make a forest.
Rights-based organisations are like a few trees that shine in the
dark. They provide free legal services to the poor who cannot afford
it. They play an important role in defending the rights of poor but
because of limited resources and capacity not enough people are
fairly represented. Neo-liberals would have us believe that the few
trees make up the forest. They don’t. All of these rights exist
within a free-market context. They are commodities. They have a
market value. A price. This is the way it is. If you can’t cough up
the bucks, then you are out of luck. The propertied and moneyed class
can afford the best legal services. The poor cannot. What is on the
surface, presented as a level field of justice, is in reality far
from it.
A referral of
an unfair dismissal can be issued by a worker without the help of an
attorney. Workers are mostly under-represented in arbitration. On the
other side, employers are always represented legally. According to
the Tokiso 2012 Dispute Resolution Digest “employers win
approximately 67% of CCMA arbitrations”. This clearly refutes
popular perceptions that the Labour Relations Act and CCMA is
pro-worker and anti-employer. These statistics are indicative of the
uneven power relations between employer and employee. This prejudices
the employee from the outset.
Even in the
instances where the employer loses, he will delay the legal process
and frustrate administrative justice. As a result, even in the rare
23% of cases where an employee swings arbitration in his favour, the
employer will take the case on review, knowing the employee does not
have the means to challenge it in the Labour Court. Instead of paying
the worker what is due, the employer will spend ten times the amount
in legal fees because he can. To ensure the worker doesn’t think
about pursuing the matter, the employer threatens him with a costs
order. In this way, a large percentage of awards which are issued in
favour of workers are not enforced. This amounts to paper and
procedural justice.
For the
working class who are evicted and dismissed on a daily basis, justice
in the real sense remains elusive unless we conceptualise justice in
the neo-liberal tradition of procedural justice. The truth is that
access to justice in a capitalist context is only accessible to the
elite. In our country, 50% of the population earns 8% of the national
income while the other 50% earns 92% of the national income. This is
class apartheid. Most people cannot access legal services. Like the
doors to the Palace of the Lost City Hotel are closed to the poor so,
too, are the doors of justice.
