Justice is priceless

It is a matter of pure logic that access to justice is a basic principle of the rule of law.

This is especially true in Namibia, which shamefully continues to be one of the most unequal societies in the world.

Critically, in the absence of access to justice, people are unable to have their voice heard, exercise their rights, challenge discrimination, or hold decision-makers accountable. This creates a situation where we are not equal before the law. At the opening of each new legal year, as it happened like clockwork last week, justice system bigwigs speak at length about implementing legal reforms aimed at streamlining the justice process and ironing out some of the challenges undermining the right of Namibians to effectively approach the courts. As has been repeated ad nauseam, one of the major obstacles in accessing justice is the cost of legal advice and representation. And although legal aid programmes, globally, are a central component of strategies to enhance such access, in Namibia the availability of legal aid for civil matters is limited. According to a Legal Assistance Centre (LAC) report, the relatively low means threshold also excludes some potential litigants who will not be able to finance their own litigation. In effect, the costs regime and the sheer expense of bringing a legal action work together to block public interest cases, which by definition have potentially far-reaching outcomes. In South Africa, as in Namibia, two principles generally govern costs: the decision, “unless expressly otherwise enacted, is in the discretion of the presiding judicial officer”, and costs should generally be awarded in favour of the successful party. In practice, however, South African courts decline to order unsuccessful public interest plaintiffs to pay the state's costs, when they raise “genuine constitutional questions”. As the LAC has rightfully pointed out, a low-income litigant will probably not be able to afford legal representation and may be discouraged from litigating, even with a valid claim, due to the risk of paying the opposing party's costs. Although small-claims courts may bring relief in petty matters, the Holy Grail remains that varying degrees to which people can access money should never determine their access to justice.