Costs of Three Cups of Tea: Will a Human Rights Court Make Justice Affordable?

Abstract South Africa’s Constitution is restitution-oriented, yet the South African Human Rights Commission (SAHRC) established by the Constitution must use expensive, slow High Court processes to enforce outcomes. The author argued in the Constitutional Court of South Africa with minimal costs as the proceedings were virtual. This led the author to wonder how justice could be affordable for all. More recently, the author was a litigant in the Electoral Court of South Africa, where applicants were unrepresented—and his side won, albeit with higher costs. Questions arising out of why these cases were relatively affordable led the author to propose a Rights Court of South Africa to make litigation for basic rights accessible. The proposed model draws on the strong points of the Electoral Court: nimble processes and a link to a rights-related institution. This Rights Court would replace the Equality Court with a specialist standalone court with concurrent jurisdiction with the High Court but with simpler, more nimble processes aimed at quick results on rights violations. The SAHRC would use this court for litigating violations of the Bill of Rights and the streamlined processes of this court would make for rapid restitution, while not overwhelming the SAHRC with costs. Access to the court would be through the SAHRC, with allowance for direct access if the SAHRC denies a request, to avoid inundating the court. Other countries with a justiciable Bill of Rights could adopt a similar concept.