legal aid to participants at Commissions of Inquiry. As a result, LASA is reluctant to provide such aid to these participants. And even though itsCEO is vested with discretionary power to do so, LASA remains reluctant to assist, as demonstrated byMarikana2 where legal aid was providedon a discriminatory basis.In addition to the above, the article found that the judiciary also fails the poor by using a literal interpretation of the law that ignores thecontext and the object of the law, which was adopted to bridge the gap between the rich and the poor in terms of access to justice.Nevertheless, theMarikana1 andMarikana2 cases have demonstrated a positive development as the judiciary successfully interpreted s 34 ofthe Constitution to ensure the allocation of legal aid to the destitute participating in a Commission of Inquiry. Although the findings of this casewill not stand as a precedent as a result of its specific nature and context, it addresses the question of legal assistance for access to2015 SAJHR 630justice in general and will always be useful when dealing with such a question. Moreover, the reluctance of the judiciary to use informa pauperisproceedings has also been identified as a serious constraint for the right to legal aid for the weak. Finally, the article found that although in133134135136137138139140141142143144145146147148149150 © 2018 Juta and Company (Pty) Ltd. Downloaded : Wed Mar 11 2020 00:54:39 GMT+0200 (South Africa Standard Time)
principle law firms agree to assist the poor through pro bono work, in reality, they do very little free of charge and as a result, the poor remainoutside of the court room.Overall, in spite of the adoption of the so called 'transformative' Constitution, besides the recent developments in Marikana 1 and Marikana 2,the needy still do not have access to legal aid in civil matters and as result would not agree that the Constitution is transformative becausethey remain unequal to the rich who have the means to access the court in civil proceedings. Even though the deconstruction of 'legal aid' inthis article applies to the South African context, it is hoped that it will generate reflections on how legal assistance can be used for the benefitof the helpless in civil matters across Africa. * Associate Professor, Thabo Mbeki African Leadership Institute, University of South Africa. I am greatly indebted to Prof Chuks Okpaluba for his comments on an earlier draft and for sharing his forthcoming papers on the Marikana case with me. 1 Section 39(1) (a) . 2 K Klare 'Legal Culture and Transformative Constitutionalism' (1998) 14 SAJHR 146. 3 Legal Aid Act 22 of 1969 s 3; see also D McQuoidMason 'Access to Justice in South Africa: Are there Enough Lawyers?' (2013) 3 Oñati SocioLegal Series 561, 561. 4 2013 (11) BCLR 1251 (CC) ( Marikana 1). 5 Legal Aid Act s 3; see also McQuoidMason (note 3 above). 6 UN General Assembly res 2200A (XXI), UN doc A/6316 (1966), adopted 16 December 1966, entered into force 23 March 1976, art 14(3) (d) .
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