Thu Apr 24 23:20:24 SAST 2014
Thu Apr 24 23:20:24 SAST 2014

Justice is not for all

Mar 29, 2012 | Sowetan Editorial |   22 comments

THE case of the 10-year-old KwaZulu-Natal rape victim is an indication of the challenges the poor and vulnerable face when seeking justice through the country's court system.

Yesterday Sowetan related how the 10-year-old was raped by a 64-year-old neighbour for nine months. The alleged assailant was arrested and released after his case was struck off the roll because the prosecutor was not satisfied "with certain aspects of the case".

In doing so the prosecutor was most probably following legal procedure in terms of which the rights of the perpetrator must also be protected.

This case is a typical example of how justice remains far removed from the poor and vulnerable.

A study conducted by Professor Roberto Gargarella of the Universidad Torcuato DiTella in Buenos Aires, Argentina, on access to justice by the poor in developing societies found that despite constitutional reform, justice remains "too far removed from people".

He found that the problems facing the poor seeking redress through the courts included: a lack of information; high legal costs; corruption; excessive formalism; fear and mistrust and inordinate delays.

Given our level of development the majority of our citizens - who are invariably uneducated and poor - lack the basic information about their legal rights. This leads to a situation in which they are unable to challenge cases where their rights are trampled on.

Our courts are also awash with cases in which corruption has led to their being withdrawn against perpetrators after dockets had gone missing.

By its nature the administration of justice is excessively formalistic and bureaucratic.

This, unfortunately, has turned justice into something exclusive that only "experts" can understand.

Like many others the family of the rape child finds itself caught up in this quagmire of legalese and procedures - where cases are sometimes decided not necessarily on their merits but on procedures.

Highlighting this phenomenon Gargarella also argued that the problem of access to the court could not be reduced to the issue of language - which our courts have highlighted as a problem.

He, correctly so, argues that the formalities in the administration of justice contribute to establishing barriers against people - thereby reinforcing the perception that justice is not for all.

If there is anything to be reviewed - it is how the formalism in our justice system makes it inaccessible to the poor and vulnerable.

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