The Way Ahead? Access to Justice, Public Interest Lawyering and the Right to Legal Aid in South Africa: the Nkuzi case

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On July 6, 2001, the Land Claims Court of the Republic of South Africa issued this important declaratory order, affirming a constitutional right to legal representation in land tenure security matters. The Nkuzi Development Association ("Nkuzi"), a South African nongovernmental organization ("NGO") specializing in land reform issues, successfully requested the order. Nkuzi vs. The Government of South Africa and The Legal Aid Board ("Nkuzi") was filed by Geoff Budlender, then head of the Constitutional Litigation Unit of the Legal Resources Centre ("LRC"). Budlender and the LRC, a prominent South African public interest law firm, have been key actors in several successful socio-economic-rights lawsuits brought before the South African Constitutional Court, including Grootboom and Treatment Action Campaign.In contrast to these well-known cases, the Nkuzi decision appears relatively minor. However, it may prove to be a landmark decision for the development of consistent jurisprudence, both in South Africa and internationally, on a disputed legal concept with major socio-economic consequences: the right to legal counsel in civil matters. International and regional human rights instruments, as well as most democratic states, recognize this right in criminal cases. It is a central element of the fundamental civil and political right to a fair trial, and a consequence of the democratic concept of equality under the law. However, the notion of a right to legal counsel in civil matters is still disputed.Nkuzi is also important because it presents an opportunity to analyze public interest ...