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[3]
The application is premised on the fact that the right to secure tenure or alternative redress is
guaranteed in the Bill of Rights to the Constitution of the Republic of South Africa Act,3 (“the
Constitution”). Section 25(6) of the Constitution reads:
“A person or community whose tenure of land is legally insecure as a result of past racially discriminatory
laws or practices is entitled, to the extent provided by an Act of Parliament, either to tenure which is legally
secure or to comparable redress.”
[4]
With a view to giving effect to section 25(6) of the Constitution, the Parliament enacted the
Labour Tenants Act and ESTA. These acts define the extent to which a large number of rural and periurban people whose tenure of land is legally insecure, are entitled to legally secure tenure. However,
a very large number of the people for whose benefit the Labour Tenants Act and ESTA were enacted,
do not enjoy that entitlement when their rights are infringed or threatened with infringement. This is so
because they are overwhelmingly poor and vulnerable people with little or no formal education. When
their tenure security is threatened or infringed, they do not understand the documents initiating action
or the processes to follow in order to defend their rights. On the other hand they cannot afford the fees
for a lawyer to represent them because of their poverty. As a result they are quite often unable to
defend or enforce their rights and their entitlement under the Constitution, the Labour Tenants Act and
ESTA.
[5]
The Legal Aid Board is the institution through which the Government provides legal aid to the
indigent. However, most of these people or a large number of them are not able to obtain legal services
through the Legal Aid Board. Several reasons can be identified for this situation:
(a)
The number of lawyers practising in the rural areas is small. Most attorneys prefer to
practise in the cities and towns where there is a pool of reasonably well to do
(comparatively speaking) clientele.
3
Act 108 of 1996.