While there is some debate on the extent to which the law can improve implementation of economic and social rights, this much is clear: if the law is going to help at all, the poor must have access to courts. Across the developing world, and particularly in Latin America, one of the mechanisms adopted to facilitate this access is enabling people to directly petition the highest court to defend their rights (rather than only arriving there, perhaps, after many appeals through lower courts). Recognising how powerful this can be for disadvantaged populations, the South African Constitution allows direct access to the Constitutional Court when it is in the interests of justice.
Yet, in stark contrast to the highest courts in countries such as Colombia, Costa Rica and India, which regularly and generously grant direct access, the South African Constitutional Court only granted direct access in 18 cases in its first twenty years of operation (1994-2014). In comparison, the Constitutional Court of Costa Rica hears approximately 17,000 direct access applications each year (called amparos) and the Colombian Constitutional Court hears about 450 direct access applications each year (called tutelas).
The South African Constitutional Court has failed to utilise the direct access mechanism to proactively select deserving direct access cases from socio-economically disadvantaged groups. As the highest courts in other countries have realised, direct access is the mechanism over which judges have the most direct power to widen the doors of access to justice, particularly to disempowered applicants. But the South African Constitutional Court has failed to utilise the direct access mechanism to proactively select—not to mention to proactively seek out—deserving direct access cases from socio-economically disadvantaged groups. This failure has meant that, outside criminal cases in which there is legal representation at state expense, the Court’s roll is dominated by cases brought by empowered groups—groups with the funds to litigate through the various required stages to reach the Constitutional Court.
