Introduction

Access to courts is a constitutional right to have disputes decided in a fair public hearing before a court or an independent tribunal. It is the cornerstone of fairness and justice. Yet, the FW de Klerk Foundation’s latest Human Rights Report Card warns that while the legal system looks robust on paper, the degree to which South Africans enjoy this right in their daily lives is unmistakably declining. The right remains moderately enjoyed, but declining.

Progress We Must Recognise

There have been meaningful legal developments in relation to this right. The apex court confirmed that access means more than simply entering a courtroom. It includes the right to a fair hearing, where judges properly consider evidence and arguments before them. This strengthens the substantive content of the right.

The Labour Court has gone digital nationwide to reduce lost files and improve efficiency. The government also expanded access to the Small Claims Court by allowing people to approach this court for claims up to R30 000.00. This makes it easier and cheaper for ordinary people to resolve disputes.

Parliament is also in the process of passing reforms to improve access. The Immigration Amendment Bill requires that persons detained under immigration laws be brought before a court within 48 hours. This bolsters judicial oversight and fairness. The Draft Traditional Courts Regulations and a Draft Code of Conduct for the Traditional Courts Act, 2022, also aim to expand access in rural areas and ensure that customary dispute resolution aligns with constitutional standards. These are important steps, but deeper structural failures inhibit real access.

Systemic Challenges

The justice system’s operational weaknesses are increasingly severe. The Auditor-General of South Africa (“AGSA”) briefed Parliament about financial management and adherence to legal requirements within the court administration system. For example, the Office of the Chief Justice recorded unauthorised expenditure of R239 million in 2024/25, along with irregular expenditure of R112 million. This raises concern about control and compliance failures.

Security threats have also intensified. Courts in the Western Cape have been the target of violent attacks. Shootings at Athlone, Wynberg and Mitchells Plain Magistrates’ Courts shook public confidence and highlighted the risks faced by people and judicial officials. A justice system cannot operate effectively when its institutions are vulnerable to violence.

Essential services have also become unreliable: Load shedding, water outages, ICT breakdowns and ageing infrastructure have repeatedly forced courts to close or delay proceedings. Although government has introduced mitigation measures, such as backup power and infrastructure upgrades, the disruptions highlighted how fragile the system is. Courts should not be paralysed by basic service disruptions.

Strained Capacity

Staff shortages and limited resources continue to slow the system down. Many courts rely on acting judges, particularly in Labour Courts and some High Courts. This reliance undermines the effective functioning of the courts and contributes to delays.

Case backlogs remain a defining feature of the system, especially in the Gauteng Labour Court, Pretoria High Court and Mahikeng High Court. Mandatory mediation has helped divert some matters, but it cannot replace the need for judicial determination where disputes genuinely require adjudication.

Magistrates have also raised concerns about workload and inadequate remuneration, signalling strain at the lower court level, even resulting in peaceful lunchtime pickets, such as those that took place outside Durban Magistrate’s Court by magistrates.

A Crisis that Demands Action

Reforms and innovations offer hope, but they cannot fix the systemic weaknesses that undermine access to justice. Government must urgently stabilise court operations. That requires repairing and upgrading infrastructure, improving security, filling critical vacancies and ensuring reliable basic services. South Africans deserve a justice system that works, not in theory, but in practice.