Socio-Economic Rights and Expanding Access to Justice in South Africa: What Can Be Done?

A key dimension of transformative constitutionalism has been the inclusion of justiciable socio-economic rights in Constitutions of the Global South. Yet, to ensure these rights are enforceable, it is necessary to consider whether individuals in these societies can gain access to justice. This chapter first offers a theoretical conception of access to justice as a capability which has two dimensions: An internal dimension relating to the empowerment of individuals to make such claims, and an external dimension relating to the design and availability of institutional mechanisms that are set up to hear these claims and adjudicate upon them. This theoretical perspective is then applied to one particular context to attain the required depth—namely, that of South Africa. The main institutional architecture of the South African democratic constitutional order relating to access to justice is outlined and the shortcomings thereof highlighted. The chapter attempts to provide concrete solutions to these problems as well as possible policy recommendations to enhance access to justice—some of these are drawn from the comparative experience of other Global South countries such as Colombia and India. Ultimately, the chapter links theory and practice: it utilizes a theoretical perspective to generate practical recommendations for enhancing access to justice for all in South Africa.