- Justice Madlanga believes access to justice must be practical, affordable, and effective for every South African.
- He warns that women can be denied justice inside the courtroom through humiliation, insensitivity, and sexist attitudes from judges.
- The former deputy chief justice says rights do not enforce themselves, and that government remains central to making constitutional guarantees a lived reality.
Retired Acting Deputy Chief Justice Mbuyiseli Madlanga has warned that South Africa’s constitutional promise of access to justice remains mostly out of reach for millions of poor people. He argues that legal rights mean little if people cannot realistically enforce them.
Speaking at the annual Benjamin Rabinowitz Lecture at the University of Cape Town, titled ’30 Years of the Bill of Rights: The Constitutional Promise Versus Lived Reality ‘, Justice Madlanga devoted much of his address to questioning whether courts, judges, and the state are truly delivering equal justice as promised by the Constitution.
“Can judges really avoid addressing substantial questions of social justice?” he asked. “Can they simply follow the legal text when they know their actions will perpetuate inequality and injustice? Can they limit their inquiry into law and life to the narrowest definition of the rule of law?”
Justice is more than the right to enter a courtroom
Justice Madlanga said Section 34 of the Constitution guarantees much more than just formal access to courts. He said constitutional rights must be interpreted generously and with purpose, because the right to challenge unlawful conduct is fundamental to the rule of law.
He argued that access to justice must also mean people have the real ability to enforce all of their constitutional rights. “What good is my right to housing if, when my home is unlawfully destroyed, I cannot enforce that right?” he asked.
For that reason, he said meaningful access to justice must be affordable, timely, and effective, no matter a person’s social or economic background.
Five barriers keep justice out of reach
Justice Madlanga identified spatial, time-related, language, social, and symbolic barriers as obstacles that still prevent many South Africans from accessing justice. He said poor, rural communities often travel long distances at great cost just to reach High Courts where constitutional disputes are heard, making geography itself a barrier to justice.
Legal costs are also a major obstacle. “The truth is that legal services are astronomically expensive,” he said, adding that poverty makes it unrealistic to expect poor South Africans to consistently enforce their rights.
He noted that more than half of South Africans who went to court in 2025 represented themselves, even though they often lacked the legal knowledge and understanding of court procedures needed to defend their rights.
Equality before the law is not equality of arms
Justice Madlanga said that even when poorer litigants do get legal representation, justice can still be unequal. He described an “inequality of arms” where one side can afford highly skilled lawyers while the other cannot, creating imbalances that affect how cases are argued and decided.
“The sad reality is that cases are sometimes won or lost simply because of how they are argued and presented,” he said. While South Africa guarantees legal representation at state expense in criminal trials where there would otherwise be injustice, Justice Madlanga pointed out there is no similar guarantee for civil cases.
He praised Legal Aid South Africa, university law clinics, public interest law centres, and pro bono legal practices for keeping the spirit of access to justice alive. But he said their collective efforts remain “a drop in the ocean”.
Women are too often denied justice inside the courtroom
Justice Madlanga said one of the most troubling failures of the justice system is how it treats women who seek justice after suffering abuse and gender-based violence. Quoting abuse survivor Mary Walsh, he remembered her warning to other women entering the legal system. “For your own peace of mind, be prepared to throw any illusions about justice out of the window.”
He said women often arrive in court after suffering physical and psychological torment, only to face humiliation, insensitivity, and degrading treatment in the very place meant to protect them. “How judges handle and decide cases can be the difference between helping someone heal or making their wounds even worse,” he said.
Justice Madlanga argued that judges must make sure court processes do not add to trauma, even if they cannot always be therapeutic. He warned that convictions might look like justice on the surface, but can still be “empty justice” if survivors are demeaned during the process.
“The outcome may be empty justice, justice that only exists on paper,” he said. He added that sexist and misogynistic attitudes from judges can lead to acquittals or unfairly light sentences, calling these a complete denial of real justice.
Justice is a right, not charity
Justice Madlanga questioned what we really mean by justice, saying it cannot just be about legal procedure. Referring to philosophical views on justice, he said justice is something people deserve and can demand, not charity for which they must beg. He said this principle lies at the heart of the Constitution’s project to transform society.
Rights do not self-execute
As he closed his lecture, Justice Madlanga rejected the idea that the Bill of Rights has failed. He said the biggest challenge is making it work in practice. “The main point is the sobering truth that rights do not enforce themselves,” he said.
He argued that South Africa’s constitutional system depends on a government that is responsive and accountable, an effective and independent judiciary, and a public that keeps demanding the fulfilment of constitutional promises.
Ultimately, though, he put the greatest responsibility on the state. “Most importantly, government needs to play its role,” Justice Madlanga said, before asking whether government is financially able to meet its constitutional obligations. “Your guess is as good as mine.”
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