De Vos article summary
The Constitution recognises procedural guarantees for civil litigants
SA CPL originated from English model and followed it until the IC
Fundamental rights of civil litigants did not have constitutional protection
These rights could only be abstracted from statutory provisions and court decisions
IC = constitutional supremacy
Constitution incl. a chapter on fundamental rights
Interim BOR made provision for protection of procedural guarantees in context of criminal
proceedings; little attention paid to rights of civil litigants
Still a big change – for the first time, some recognition given to certain civil procedural
guarantees
o Right of access to court
o Right to equality before the law
o Principles of independence and impartiality of the courts
Positive development, but did not give enough recognition to procedural rights of civil litigants
o Notion of procedural justice requires full recognition
o Interim BOR should have at least guaranteed the right to a fair and public hearing
o Fair trial – courts could have inferred and given recognition to more specific guarantees
o Would have been in line with international trends
Final constitution: gives more comprehensive protection to rights of civil litigants
Access to a court, s 34
“The right to have any dispute that can be resolved by the application of the law decided in a fair
public hearing”
This provision gives recognition to following guarantees:
a. Access to justice: right to approach a court to settle a justiciable dispute
Right only has meaning if coupled with right to legal representation
State must be able to provide legal aid
State funds are limited, therefore the extent to which this right can be enforced is limited
This guarantee is significant in other ways:
o Parliament cannot enact legislation excluding the jurisdiction of the courts
o Apartheid govt. did this to restrict access to courts in politically sensitive matters
o Current govt. is instead eradicating all unjustified restrictions of jurisdiction of the courts
Another limitation on right of access to courts: restrictive effect of time limitation statutes
o Actions against organs of state – periods of prescription are shorter than normal
o Failure to comply = cannot institute action
o E.g. s 113(1) of the Defence Act: infringed the right of access to a court = invalid
o Socio-economic conditions in SA (poverty, illiteracy, ignorance)
o Many claimants are not afforded an adequate and fair opportunity to seek judicial help
o Court is empowered to condone non-compliance with these periods if it is in the
interests of justice to do so
b. Public hearing
The Constitution recognises procedural guarantees for civil litigants
SA CPL originated from English model and followed it until the IC
Fundamental rights of civil litigants did not have constitutional protection
These rights could only be abstracted from statutory provisions and court decisions
IC = constitutional supremacy
Constitution incl. a chapter on fundamental rights
Interim BOR made provision for protection of procedural guarantees in context of criminal
proceedings; little attention paid to rights of civil litigants
Still a big change – for the first time, some recognition given to certain civil procedural
guarantees
o Right of access to court
o Right to equality before the law
o Principles of independence and impartiality of the courts
Positive development, but did not give enough recognition to procedural rights of civil litigants
o Notion of procedural justice requires full recognition
o Interim BOR should have at least guaranteed the right to a fair and public hearing
o Fair trial – courts could have inferred and given recognition to more specific guarantees
o Would have been in line with international trends
Final constitution: gives more comprehensive protection to rights of civil litigants
Access to a court, s 34
“The right to have any dispute that can be resolved by the application of the law decided in a fair
public hearing”
This provision gives recognition to following guarantees:
a. Access to justice: right to approach a court to settle a justiciable dispute
Right only has meaning if coupled with right to legal representation
State must be able to provide legal aid
State funds are limited, therefore the extent to which this right can be enforced is limited
This guarantee is significant in other ways:
o Parliament cannot enact legislation excluding the jurisdiction of the courts
o Apartheid govt. did this to restrict access to courts in politically sensitive matters
o Current govt. is instead eradicating all unjustified restrictions of jurisdiction of the courts
Another limitation on right of access to courts: restrictive effect of time limitation statutes
o Actions against organs of state – periods of prescription are shorter than normal
o Failure to comply = cannot institute action
o E.g. s 113(1) of the Defence Act: infringed the right of access to a court = invalid
o Socio-economic conditions in SA (poverty, illiteracy, ignorance)
o Many claimants are not afforded an adequate and fair opportunity to seek judicial help
o Court is empowered to condone non-compliance with these periods if it is in the
interests of justice to do so
b. Public hearing
