representation in civil cases the right of access to court and of having

Representation in civil cases the right of access to

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representation in civil cases, the right of access to court and of having justiciable disputes settled by courts wouldbe rendered entirely nugatory if, in respect of civil proceedings, it were to be held that there is no constitutionalright to legal representation. As submitted by Mr Trengrove, even the best educated lay people need the assistanceof professional legal representation to exercise their right of access to court in a meaningful way. This applies withmore force in respect of the vast numbers of uneducated and illiterate people of this country. Though there be nospecific mention of the right to legal representation in respect of civil matters, in my view the conclusion I havereached is not too long to jump. It accords with an interpretation that views the Constitution for what it is ­ a livingdocument.Page 32 of [1998] JOL 2048 (Tk)In my view the provisions of sections 229, 96, 103 and 241(1) of the Constitution cannot assist the respondents ­the respondents cannot validly contend that section 7(1) of the Regional Authority Courts Act is immune frominvalidation on constitutional grounds and that it can only be outlawed by "a competent authority". Section 229 ofthe Constitution subjects the continued application of pre­constitution laws to the Constitution. Therefore, the pre­constitution laws "have to meet all the standards prescribed by Chapter 3" of the Constitution (see the case ofS vMakwanyane and another(supra) at 685A). In the instant case as, for the reasons stated above section 7(1) of theRegional Authority Courts Act violates sections 22 and 25(3) of Chapter 3 of the Constitution and as no justifiablelimitation in terms of section 33(1) has been proffered, the prohibition against legal representation must be struckdown both in respect of civil and criminal proceedings in regional authority courts.Unequal justice (section 8 of the Constitution)The heads upon which the applicants rely in advancing their argument under this heading touch on some of thoserelied upon under the previous heading.Firstly, the applicants contend that persons subject to regional authority courts are unfairly discriminated against inviolation of section 8 of the Constitution. Of the examples given is the absence of legal representation in suchcourts, the discrimination to be found in the fact that South African citizens who are not subject to the jurisdiction ofregional authority courts enjoy the right to legal representation which is denied to those persons subject to suchcourts. In myPage 33 of [1998] JOL 2048 (Tk)view such disparity would not be of the kind countenanced inS v Makwanyane and another(supra) at 684E­685C.Without elaborating, it seems that the prohibition against legal representation falls to be struck down on the basisof section 8 of the Constitution as well. I do not see it necessary to consider the further disparity referred to by theapplicants which stems from the fact that even within the area of jurisdiction of the regional authority courts there
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