Channelling endogenous knowledge through civil litigation in South Africa

Abstract

The main aim of this thesis is to expose and address some of the current problems of the civil litigation system with specific reference to the issue of access to justice. I will argue that there is a tension between the ideals strived for by and within the Constitution and how they are realised within the context of access to justice considerations.1 With access to justice I refer to a broader notion of justice. It does not merely entail being able to enter the Courts for purposes of litigation. It also involve an alternative conceptualization of the nature of rights and the attainment and enhancement of such rights by and on behalf of members of the general public. Moving away from a strict contractarian approach where there is a focus on ?just institutions? to what Amartya Sen refers to as the behaviours, freedoms, choices and interactions of people involved in ordering their lives.2 Sen posits this idea of justice as a framework for developing a civil justice system not based only on ?ideal institutions? but also on the facilitated behaviours and interactions of parties in the pursuit of what they deem to be justice. I am of the opinion that it is this difference of perception with regards to the notion of justice (and by implication access to justice) that is the catalyst behind the tension between the ideals strived for by and within the Constitution on the one hand and how they are realised within the context of access to justice considerations. In my study I investigate how the utilization of endogenous knowledge could be of value to the civil litigation system in an attempt to alleviate the tension as mentioned above.