Access to justice in South Africa

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346 DOI: 10.4324/9781003176619-36
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Access to justice in South Africa
Not yet Uhuru but not quite Sisulu: an
examination of the decolonizing journey
from colonial-apartheid rule
Jackie Dugard and Nompumelelo Seme
Introduction1
On 7 January 2022, African National Congress (ANC) stalwart and Minister for Tourism,
Lindiwe Sisulu, penned an opinion piece in which, after lamenting South Africa’s persisting
poverty and inequality, she criticized black South African politicians for being “black assets
for colonised capital” and black South African judges for being “mentally colonised Africans,
who have settled with the worldview and mindset of those who have been dispossessed by their
ancestors” (Sisulu, 2022). As a serving minister from the increasingly embattled and factional-
ized ANC, Minister Sisulu’s rebuke was almost certainly aimed at politicking for the Radical
Economic Transformation (RET) wing of the party ahead of the ANC’s elective congress in
December 2022. Nonetheless, her comments about the continuation in the ‘new’ South Africa
of racialized socio-economic injustice deserve nuanced reflection. Indeed, almost 30 years after
the formal end of apartheid and against the backdrop of the remarkable transformation of legal
and judicial frameworks during the transition it is timely to critically assess the gains and failures
of the post-1994 record using a decoloniality prism.
To do so, this chapter examines the post-apartheid access to justice record, focusing both
on direct access – because it is the arena in which Constitutional Court (CC) judges have the
most direct power to advance access to justice – and customary law because it impacts the
majority of African South Africans and has critical implications for the most marginalized South
Africans, i.e., African rural women. Our analysis is inspired by Nelson Maldonado-Torres’s
(2006) description of decoloniality as “the dismantling of relations of power and conceptions
of knowledge that foment the reproduction of racial, gender and geo-political hierarchies that
come into being or found new and more powerful forms of expression in the modern/colonial
world” (p. 117).
Regarding author positionality, Jackie is white and grew up as a privileged beneficiary of the
apartheid system, but in a human rights-oriented family. Jackie’s father, John Dugard, authored
the seminal critique of the apartheid legal order, Human Rights and the South African Legal Order,
which he wrote in the “interests of a better society” (Dugard, 1978, p. xvi). Nompumelelo
is black and grew up as a disadvantaged South African, within a renowned political family.
This chapter has been made available under a CC-BY-NC-ND license.

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347
Nompumelelo’s great-grandfather, Pixley ka Isaka Seme, is a founder of the African National
Congress (ANC) and its President from 1930 to 1936 (preceded and succeeded by Jackie’s
partner’s great-uncle, Zacharias Richard Mahabane). He is famous for his inspiring decolonial
speech at Columbia University in 1906, in which he asserted his African origins with pride
against the backdrop of colonization, stating: “I have chosen to speak to you on this occasion
upon ‘The Regeneration of Africa’ – I am an African, and I set my pride in my race over against
a hostile public opinion” (Seme, 1906, p. 1).
Having both grown up under apartheid, we write this chapter to celebrate that we now live
in a profoundly better society but one that still has far to go on its decolonial journey, and is cer-
tainly ‘not yet Uhuru’ (not yet liberation) (Odinga Odinga, 1968). The chapter first outlines the
apartheid (in)access to justice legacy against which momentous constitutional changes occurred
between 1992 and 1996, culminating in the Constitution of the Republic of South Africa, 1996
(hereafter referred to as the Constitution). It then examines the post-apartheid access to justice
records concerning direct access to the CC and customary law.
The colonial-apartheid (in)access-to-justice legacy
Colonial apartheid,2 which persisted from 1948 to 1994, was an overarching system of white
supremacist, political, economic, and socio-legal ordering that concretized inclusion and priv-
ilege for whites and exclusion and disadvantage for blacks. Political power was exercised by the
white minority in its own interests and buttressed by a legal order of parliamentary sovereignty
in which parliament had almost limitless powers of legal promulgation and the courts had very
limited authority to question the validity of acts of parliament (Dugard, 1978, p. 6). On the
political front, blacks were not able to vote and authoritarian security legislation – including
the Internal Security Act 1950 (and 1982), Suppression of Communism Act 1950, Riotous
Assemblies Act 1956, Unlawful Organizations Act 1960, Sabotage Act 1962 and Terrorism
Act 1967 – outlawed black and left-wing political organizations and authorized the banning
and brutalization of dissent, detention without trial, inhumane imprisonment, and the death
penalty.
There was also a raft of racialized exclusionary laws including the Population Registration
Act 1950, which required all South Africans to be classified and registered according to assigned
racial groupings in a hierarchy with whites at the top and Africans at the bottom; and the Group
Areas Act 1950, which established the legal basis for urban residential segregation. The basis for
rural segregation and exclusion of the African population from the majority of South Africa’s
landmass had been laid under British colonial rule through the Natives Land Act 1913 and the
Native Trust and Land Act 1936, which facilitated the mass dispossession of land and forced
removal of Africans to inferior land in a system of ‘Bantustans’ or ‘Homelands’ for each African
language group.
Within the Bantustan system, the African majority population was not only relegated to the
overcrowded rural periphery but African customary law was subjected to a ‘repugnancy clause’,
meaning that customary rules and practices were of less value and accepted as law only when
not oensive to colonial-apartheid values and norms (Dlamini, 1991). Related to this was a
gradual erasure of pre-colonial African notions of justice as a fluid and flexible system – ‘living
customary law’ – grounded in the interests of the community (over the individual) and orien-
tated towards reconciliation and restorative justice (Delius, 2008; Rautenbach, 2015).
At the same time, the practice of customary law was twisted to serve colonial-apartheid
interests through establishing an indirect system of administration and control for the Bantustan
Homelands in which compliant (male) traditional leaders were appointed as overseers of grand

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348
apartheid, and critical traditional leaders were disposed of (Delius, 2008). Propped up by the
apartheid regime, traditional leaders acquired immense power over their communities, and
in most instances ultimately became dictators over and oppressors of their own communities
(Mnwana, 2014). Alongside wide-ranging authority over land under their jurisdiction, they
also presided over traditional courts, which evolved into an increasingly elite and patriarchal
system. Representing the patriarchal values of the pre-colonial society bolstered by the insti-
tutional patriarchal structure of colonial apartheid, traditional courts functioned to place poor
rural women on the margins of society (Claassens, 2005). Regarding post-colonial influences,
Mahmood Mamdani (1996) has highlighted how South African customary law was profoundly
swayed by the Roman-Dutch common law principle of the paterfamilias (father of the family)
which mediated access to justice for women through males because women were in the same
position as infants, lacking locus standi. The ascendancy of such thinking resulted in the for-
mal exclusion of women from traditional courts and justice, perpetuating their marginalization
from socio-economic life. Thus, by the 1990s, customary law had been stripped of much of its
pre-colonial logic and had come to reflect an intensely exclusionary and patriarchal expression
of hierarchical power and (in)justice.
Tritely, in apartheid’s exclusionary legal order there was very little access to justice (or justice)
for the black majority. Although there were some brave judges, the majority of judges were
“as ‘establishment-minded’ as the executive” and, even when the law and the facts pointed to
questioning the legislation or government action, they adopted an interpretation that facilitated
the executive’s task rather than defending “the liberty of the subject and upholding the Rule of
Law” (Dugard, 1978, p. 280, citing International Commission of Jurists, 1968, p. iv).
Against this wicked legal legacy, the negotiated settlement and constitutional drafting process,
which was pursued in the early 1990s and resulted in the formal transition from apartheid in
1994, replaced supremacist parliamentary sovereignty with democratic, inclusive constitution-
alism. Concretized in the ‘final’ Constitution of 1996, a new legal order was established based
on human rights and judicial review of all exercises of power. As set out in the preamble, one
of the fundamental purposes of the Constitution was to “lay the foundations for a democratic
and open society, in which government is based on the will of the people and every citizen is
equally protected by the law”. The first founding provision – contained in section 1(a) – is that
South Africa is one democratic state founded on the values of “human dignity, the achievement
of equality and the advancement of human rights and freedoms”.
If colonial apartheid was characterized by both authoritarianism and exclusion, it is hard to
argue that South Africa’s constitutional revolution did not remove the authoritarian legacy, at
least formally. Yet, as alluded to by Minister Sisulu, profound socio-economic injustice per-
sists, with South Africa being the most unequal country on earth (Stoddard, 2022). In trying
to understand this tragic paradox 25 years after the adoption of the 1996 Constitution, it is
opportune to critically assess the extent to which South Africa has moved away from its colo-
nial-apartheid past and realized its constitutional mandates. In what follows, we undertake this
appraisal focusing on two pertinent terrains of access to justice – first, direct access to the CC
and, second, customary law – analyzing the extent to which these contexts of law and practice
have been decolonized in the sense of becoming inclusive arenas of transformative praxis.
Access to justice in the democratic era: direct access to the
Constitutional Court
Access to justice, from the legal perspective, encompasses a range of factors including the
prices charged by the legal profession, the availability of legal aid, and the rules of standing.

Access to justice in South Africa
349
To advance access to justice, one of the Constitution’s transformative features is the right to
equality before the law and the right “to equal protection and benefit of the law” (section 9(1)
of the Constitution). Moreover, section 34 of the Constitution guarantees everyone’s right to
have relevant legal disputes resolved through a fair public hearing. On access to the courts, there
are generous rules of standing that allow individuals or groups to litigate not only in their own
interest but also in the public interest.
These are important changes in the legal framework governing access to courts and they have
certainly advanced access to justice. However, although there is a right to legal representation
at state expense in criminal cases in which the accused person risks a prison sentence (section
35 of the Constitution), there is no comprehensive legal aid for non-criminal cases (Dugard,
2013) and the cost of private lawyers is much too expensive for poor South Africans (Klaaren,
2019). There are also insucient free legal services to cover all the potentially meritorious and
transformative cases that could, and arguably should, “be brought in order to give eect to legal
and social change in South Africa” (Dugard, 2015, p. 113). Consequently, there remains a large
void of unaordable civil matters revolving around key issues for transformation, including
those relating to gender, property, and socio-economic rights.
It is in this context of the (unquantified) unmet demand for adjudication – especially over
transformative issues by poor people who otherwise might not be able to access the courts – that
the question of the degree of access to the Constitutional Court is so relevant. Indeed, in light
of the historical travesty of ‘in-access’ to justice, it follows that it should be a fundamental preoc-
cupation of the post-apartheid judiciary to secure access to justice, especially for poor litigants.
Yet, as an institution, “the judiciary has done little to address the problem of the unrepresented
poor from a systemic perspective” (Dugard, 2008, p. 217). It is unfair to place the full burden
of blame for this on the judiciary. However, there is at least one cogent way for the judiciary to
have meaningfully advanced access to justice for the poor – by using the direct-access mecha-
nism “to allow constitutional matters to be brought directly to it by poor people who have been
unable to secure legal representation” (Dugard, 2008, p. 232).
Recognizing that one of the ways to rectify colonial apartheid’s in-access-to-justice legacy
was to widen access, the Constitution provides for direct access to the court when it is in the
interests of justice. Thus, section 167(6)(a) of the 1996 Constitution (as well as its predecessor,
see section 100(2) of the Interim Constitution of 1993) provides that rules of the CC should
make provision for direct access when it is “in the interests of justice” to do so. The CC has
enacted rules to give eect to this provision. The first rule, Rule 17(1) (which applied from
1995 to 2003), prescribed the granting of direct access in “exceptional circumstances only”.
These restrictive terms for the application of direct access were relaxed when the current set
of rules was enacted in 2003. Rule 18, which replaced Rule 17(1), brought the CC Rules in
line with section 167(6)(a) of the 1996 Constitution, which contemplates direct access broadly
when “it is in the interests of justice”.
In the seven years between the coming into force of the 1996 Constitution and the adop-
tion of the new rules in 2003, it was never clarified whether – under the old rules of the
1996 Constitution – there were any circumstances beyond those contemplated by Rule 17 that
would justify granting direct access under section 167(6) of the Constitution “in the interests
of justice”. Thus, instead of taking its cue from the broadening of terms implied by the word-
ing of section 167(6), it appears that the CC’s formative years were heavily influenced by the
restrictive wording of Rule 17 rather than the inclusive ideal expressed in section 167(6) of the
Constitution.
So, notwithstanding the encouraging start of its first ever written judgement – S v Zuma
(1995 (2) SA 642 (CC)), in which the CC granted direct access to rectify a “serious prejudice

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350
to the general administration of justice” arising from an apartheid-order reverse onus criminal
law provision relating to confessions – the CC’s subsequent jurisprudence on direct access (espe-
cially until 2013) has not been as receptive. Indeed, until recently, most of the energy on the
issue of direct access appears to have been focused on developing (and then maintaining) a set
of four broad principles that have had the eect of limiting direct-access applications, thereby
undermining the access-to-justice premise. The four main principles the CC has developed to
regulate direct-access applications are: exceptional circumstances; undesirability to sit as a court
of first and last instance, especially where there are disputes of fact; urgency/desirability of an
immediate decision; and reasonable prospects of success based on the substantive merits of the
case. Between 1995 and 2013, these principles have been used by the CC – often in combina-
tion – to refuse the majority of direct-access applications.
There is no space here to engage in a case-by-case examination of the CC’s restrictive
direct-access practice (see Dugard, 2015 for a comprehensive analysis). However, it is relevant,
from a decoloniality critique perspective, to highlight the overarching contours of the direct-ac-
cess record. First, between 1995 and 2013, the CC granted direct access in only 18 instances.3
When compared with the highest courts elsewhere in the world that allow direct access (e.g.,
the Indian Supreme Court and the Constitutional Courts of Costa Rica and Colombia), having
only 18 direct-access cases over 19 years constitutes an extremely low number. Read with the
exclusionary reasoning used to deny direct-access applications, this low number suggests a court
that is reticent to advance direct access. Second, 11 of the 18 applications tagged as successful
direct-access applications are not authentic direct-access cases. In these 11 cases, the issues had
been previously aired in a lower court or had been combined with an application that falls
within the CC’s exclusive jurisdiction (Dugard, 2015, p. 128). Third, of the seven authentic
direct-access cases, all but two relate to classic civil and political rights rather than socio-eco-
nomic rights (Dugard, 2015, p. 128). Fourth, almost all the cases revolve around maintaining
political coherence rather than delivering socio-economic justice (Dugard, 2015, pp. 128–129).
And finally, it is striking that very few – with the most likely exception being Gundwana v Steko
Development CC (2011 (3) SA 608 (CC)) – are cases of a poor person who otherwise would risk
not having their matter taken up by the courts.
Preliminary research undertaken for this chapter to update the inquiry,4 focusing on the five
years between 2017 and 2021, indicates that the CC’s exclusionary direct-access practice has
persisted, albeit with a few notable changes, including that the CC no longer seems to provide
written judgements for the direct-access applications it rejects. This suggests, in defiance of
decolonial logic, that the CC is comfortable with the restrictive and exclusionary approach to
direct access that was consolidated in the first 20 years.
Access to justice in the democratic era: customary law
Today, about 32.6 percent of the 22 million South African population live in rural areas (World
Bank, 2022). The vast majority of rural South Africans practice customary law and have their
disputes adjudicated by traditional courts. However, the system of customary law and justice
practised today is vastly dierent to that experienced in pre-colonial times, such that what
remains as customary law mostly reflects the power dynamics of colonial apartheid, rather than
any intrinsic customary law values (Dlamini, 1992; Mamdani, 1996).
Mainstream academic debates before the adoption of the Constitution centred on the com-
patibility of customary law with the values and rights embodied in the Bill of Rights, in
particular the right to gender equality and the position of women as second-class citizens
under customary law (Albertyn, 2009; Kaganas & Murray, 1994). However, Thandabantu

Access to justice in South Africa
351
Nhlapho (1994) and Charles Dlamini (1991) have questioned the framing of the debate by
Cathi Albertyn and others as a clash between the universally accepted right to gender equality
and the rights of women under customary law. Nhlapho (1994) and Dlamini (1991) argue that
most, if not all, systems of law are institutionally patriarchal and that customary law, as part of
the common law, is no dierent. The Constitution, according to Dlamini (1991), should not
become a substitute for the repugnancy clause that operated under colonial apartheid. Yet,
the dilemma with customary law is that no sooner was customary law and the right to culture
recognized and protected under the Constitution (by section 30 on language and culture and
section 31 on cultural, religious and linguistic communities) than it was rejected as conflicting
with this very source of its recognition and protection (Holomisa, 2011).
Paradoxically, notwithstanding any aim to move away from the supremacist past, there has
been little attempt by the post-apartheid government to decolonize customary law by restor-
ing communal sovereignty over governance and justice or to feminize its institutions. On the
contrary, in what many consider an abdication of its constitutional obligations, the post-1994
state has consolidated rather than denuded the power of traditional authorities who, now more
than ever, owe their ocial legitimacy and recognition to the state (Claassens & Ngubane,
2008; Mnisi-Weeks, 2011). This has occurred through the delegation in the post-apartheid
era of extensive powers to chiefs to allocate and administer communal land; issue confirmation
of proof of residence; make laws; preside over disputes; and provide judgement and sentences
in terms of the Black Administration Act 1927 (Mnisi-Weeks, 2011). Thus, in contrast to the
notions of justice under lived customary law and the constitutionally entrenched doctrine of the
separation of powers, today’s traditional leaders are law-makers, prosecutors, adjudicators, and
administrators of traditional communities (Rautenbach, 2015).
The unchecked power of traditional leaders has placed traditional leaders outside both the
norms of community control inherent in pre-colonial customary law and the democratic pro-
tections under the post-apartheid Constitution. It has also impacted the institutions over which
they preside – including traditional courts (Mnwana, 2014) – thereby aecting access to justice
for rural communities. By coercing rural communities into having their disputes resolved by
traditional courts purely based on their geographic location rather than choice and by not
allowing them to opt out of the traditional court system, the state has further undermined tradi-
tional justice (Pikoli, 2021). The implication is that, for 32.6 percent of the South African pop-
ulation, the full right of access to justice remains elusive. Moreover, traditional courts manifestly
exclude and marginalize poor rural women. Rural women rarely form the membership of the
adjudicating forum, they are not legally represented, nor can they represent others (Claassens &
Ngubane, 2008; Mogale, 2021; Mnisi-Weeks, 2011).
The erosion of customary law and justice has been exacerbated over the past decade by
South Africa’s prevailing macro-politics. As the urban support base of the ruling ANC has
dwindled (in line with other post-colonial African countries such as Zimbabwe), the ANC
has actively supported ocial customary law stances and the power of traditional leadership at
the expense of rural women and vulnerable rural citizens in exchange for traditional author-
ities garnering support for the ruling party during elections. Under this alliance, the ANC
has supported the Congress of South African Traditional Leadership’s (CONTRALESA) push
for the Traditional Courts Bill – a bill widely criticized for its exclusion of women as well as
its top-down approach to the resolution of disputes in which traditional leaders are singularly
aorded extensive authority contrary to the participatory, restorative, and inclusive nature of
justice under living customary law (Claassens, 2019; Mnisi-Weeks, 2011; Skosana, 2019). A key
feature of the Traditional Courts Bill is the exclusion of the right to opt out of the traditional
court system. A choice to opt out would permit rural communities to decide whether they

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352
want to subject themselves to the relevant traditional court (Mogale, 2021; Pikoli, 2021). This
is critical to avoid the common abuse of power by traditional leaders to punish residents who
have fallen out of favour or are critical of them (Ubink & Mnisi-Weeks, 2015). Traditional
leaders have viewed calls for an opt-out clause as an attempt at undermining traditional values
and customs. In this battle for the soul of customary law, rural women have borne the brunt of
the tension between the Bill of Rights and misguided decolonial approaches to customary law.
Consequently, feminists and activists from rural areas have been consistent in their rejection of
the exclusionary versions of the Traditional Courts Bill that have been tabled to date.
The failure to grant rural communities the right to opt out is unconstitutional because it
violates the rights of access to courts and legal representation. Its eect is that rural commu-
nities are excluded from the rights available to the rest of the citizens in urban areas, thereby
replicating colonial apartheid’s logic, in which customary law communities persist as subjects
rather than citizens (Mamdani, 1996). Whereas under colonial apartheid all black people were
excluded from the mainstream legal system (and its socio-economic and political benefits), in
the post-apartheid reality, urban black people are formally included in the legal system but rural
black people – and particularly rural black women – remain trapped under non-democratic rule.
In their call for an opt-out clause for the Traditional Courts Bill, rural women’s movements
have advocated for a single system of law and challenged traditional leaders to prove themselves
worthy of being the adjudicating fora of choice for rural communities through merit rather
than coercion. They have also mobilized for a Traditional Courts Bill that democratizes and
feminizes traditional councils and courts by enabling the election of representatives by the com-
munity instead of the appointment by chiefs or kings or the state, and by introducing a quota for
the number of women representatives to these structures (Claassens & Ngubane, 2008; Mogale,
2021). Such calls have emphasized the urgent need for traditional courts that are grounded in
the values of living customary law, which would advance access to justice devoid of excessive
legal costs and delays, as well as the challenges of language and cultural context inherent in state
courts (Mnisi-Weeks, 2011). Yet, the post-apartheid state has colluded with traditional leaders
to resist these calls (Claassens, 2019; Skosana, 2019). Thus, although the various iterations of the
Traditional Courts Bill have been repeatedly rejected by both rural communities and the major-
ity of the representatives in the National Council of Provinces, the bill has continually resur-
faced, packaged in a dierent form and still geared toward entrenching the powers of traditional
leaders (Mogale, 2021; Pikoli 2021). Arguably, the ANC’s persistent support of this bill places
it on the same footing as the apartheid state in relation to propagating an elite and exclusionary
model of traditional leaders and courts and customary law more generally (Skosana, 2019).
Despite the gloomy reality of undemocratic custodianship and colonial continuity of cus-
tomary law in the post-apartheid era, there is much to celebrate in terms of the significant
resistance by aected communities to their continued exclusion from South Africa’s project of
democratization. In the case of Tongoane and Others v National Minister for Agriculture and Land
Aairs and Others 2010 (6) SA 214 (CC), rural communities supported by non-governmen-
tal organizations were able to successfully challenge the Communal Land Rights Act 2004,
which would have further diluted their land rights in favour of traditional authorities. Similarly,
by winning the case of Land Access Movement of South Africa and Others v Chairperson of the
National Council of Provinces and Others 2016 (5) SA 635 (CC), rural communities prevented an
amendment to the Restitution of Land Rights Act 1994 that would have opened the way for
traditional authorities to lodge preferential land claims to the detriment of the communities.
And in 2020, the case of Council for the Advancement of the South African Constitution and Others v
Ingonyama Trust and Others 2022 (1) SA 251 (KZP) won a significant victory over the Ingonyama
Trust (a trust established in 1994 to administer communal land in the Kwazulu-Natal province),

Access to justice in South Africa
353
which had unlawfully been charging rural communities under its jurisdiction rental since 2007
(Cousins, 2021). Relying on constitutional protections, rural communities have also won sig-
nificant victories to secure their customary land rights against traditional leaders colluding with
the state to grant mineral rights to mining companies (Dugard, 2021).
The above legal activism has sought, broadly, to protect customary communities from further
erosion of their rights. In terms of activism to challenge rural women’s marginalization and
exclusion from customary law spaces, feminists have formed grassroots rural women’s move-
ments that have used the formal courts to vindicate and entrench the constitutional rights to
gender equality. The Constitutional Court decisions in Bhe v Magistrate, Khayelitsha Shibi v
Sithole South African Human Rights Commission v President of the Republic of South Africa 2005 1 SA
580 CC (which successfully challenged the practice of primogeniture inheritance); Shilubana
and Others v Nwamita Shilubana 2007 (9) BCLR 919 (CC) (which established that women
could succeed to traditional leadership positions) and Gumede (born Shange) v The President of
the Republic of South Africa and Others 2009 (3) BCLR 243 (CC) (which aorded greater pro-
tection to women in customary marriages) are evidence of attempts to vindicate women’s right
to equality against the entrenched patriarchy of the colonial, apartheid, and current form of
customary law.
In such cases, the Constitution has been used by the applicants and their supporting organ-
izations as a tool to decolonize and deconstruct customary law and advance access to jus-
tice within the traditional court system. One of the main supporting organizations, the Rural
Women’s Movement (RWM) (a non-governmental organization focused on addressing the
challenges faced by rural women) has consistently articulated that it is not against tradition and
traditional leaders, but that it opposes the misuse of tradition as a smokescreen to perpetuate
patriarchal, oppressive, and discriminatory practices under ocial customary laws that are not
informed by the values of living customary law (Claassens & Ngubane, 2008). The RWM
has used South Africa’s constitutional apparatus to challenge customary legislation such as the
Traditional Courts Bill, the Communal Land Rights Act, and the discriminatory practices of
the Ingonyama Trust, thereby resisting the oppression of rural women under South Africa’s
democratic government. The RWM and rural women more generally have emphasized that in
any decolonial reinvigoration of living customary law, women must be placed at the centre of
dispute resolution institutions and practices (Claassens & Mnisi-Weeks, 2009). Before she passed
away in December 2020, the founder of the RWM, Mama Sizani Ngubane, highlighted – in
multiple conversations with Nompumelelo Seme – that in the course of her struggle for rural
women she drew constant strength from the Constitution’s promise of equality, while being ever
mindful of the law’s limitations.
Conclusion
By outlining the colonial-apartheid legacy and the post-apartheid journey, this chapter has
sought to examine the extent to which South Africa has decolonized access to justice. There
have unquestionably been momentous positive changes to the law and legal systems aecting
access to justice, especially those that apply in urban areas. But, as we have shown, there is
significant residue from colonial apartheid’s exclusionary logic in both the direct access and cus-
tomary law arenas, thereby – to a certain extent – justifying the underlying premise of Minister
Sisulu’s strident critique.
Regarding direct access, the Constitutional Court’s conservative record on granting direct
access, and particularly the low number of instances where the court has used the direct-access
mechanism to grant access to a poor person struggling to access justice, raises questions related

Jackie Dugard and Nompumelelo Seme
354
to the transformative/decolonial potential of the court’s approach. Certainly, direct access on its
own is unlikely to resolve the issue of access to justice in South Africa. However, it remains the
mechanism to advance access over which the judges have the most direct power, particularly for
socio-economically disadvantaged applicants. In other parts of the world, allowing greater direct
access to the highest court has been an eective mechanism for advancing access to the courts
generally by poor people, allowing their voices to be heard and to act as “alarm bells”, alerting
the public to “rights violations and other constitutional breaches” (Fowkes, 2011, p. 444). Yet,
in South Africa, this has not been the case.
Unquestionably, the Constitution and rules of the court provide a conducive framework
for Constitutional Court judges to proactively select, and possibly even seek out, deserv-
ing direct-access cases. That they have not done this indicates a cautious court that has
attempted to limit direct access in the interests of maintaining a cohesive legal and judicial
system, that is, a court that prioritizes continuity over transformation. In the short term, this
exacerbates a reality in which – outside criminal cases in which there is legal representation
at state expense – the court’s roll is dominated by cases brought by empowered groups with
the funds to litigate through the various required stages to reach the Constitutional Court.
In the longer term, if poor people are unable to secure direct access to the Constitutional
Court and this is their only chance to access justice, their confidence in using law as a means
to resolve conflicts is likely to be weakened, undermining the popularity of the judiciary and
the Constitution, and possibly increasing the use of extra-legal means of dispute resolution.
Moreover, no matter how pro-poor a judge may be, if she only hears cases from advantaged
groups, she is likely to lose touch with the plight of less advantaged litigants. This chapter is,
therefore, a call for more attention to be paid to the direct-access mechanism as a means to
advance access to justice and decolonize legal practice.
Regarding customary law, the picture is on the one hand extremely depressing in its reflec-
tion of the continuation of colonial apartheid through the patriarchal and exclusionary collu-
sion between traditional authorities and the ruling political party. Undoubtedly, the resistance
of traditional leaders and the state to genuinely decolonial change is a fundamental obstacle to
the potential of traditional courts and customary law as the vehicle for greater access to justice
in South Africa (Mogale, 2021; Pikoli, 2021). However, at the same time, the picture is ren-
dered hopeful through the activism of rural communities and feminist organizations such as
the RWM. Rooted in constitutional rights and inclusivity, this activism has been profoundly
decolonial as it has sought to vindicate the rights of rural communities and women so that
when rural people appear before the traditional courts, the dictum of emancipatory jurispru-
dence is echoed in the chambers of traditional courts held under the gum trees and the blue
African skies of rural villages to the ears of patriarchal trappings and distorted decolonial views
of customary law.
Notes
1 With authorization from the publisher (Taylor & Francis), this chapter draws from an earlier work by
Jackie Dugard (Dugard 2015).
2 While apartheid can be viewed as a form of colonialism in its focus on domination and extraction, it
had specific characteristics not necessarily shared with other colonial contexts. The form of domina-
tion was specifically authoritarian and neo-fascist (linked to the project of Afrikaner nationalism) and,
at its heart, was an explicit programme of racial segregation (exclusion). Thus, as a sub-species of settler
colonialism, apartheid is sometimes referred to as colonialism of a special type. In this chapter, we
refer to colonial apartheid to reflect the ongoing practice of white supremacy exercised under British
colonialism and Afrikaner apartheid.

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355
3 This figure is based on the extensive research and analysis undertaken for Dugard (2015).
4 This snapshot research was undertaken by legal researcher, Nicola Soekoe, at the end of 2021.
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