South African Journal on Human Rights (09/03/2013)

Public interest litigation in South Africa : special issue introduction

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Author: Klaaren, J. Dugard, J. Handmaker, J.
Vol 27 Issue 1
Publication: 2011
Page: 1-7
Abstract: The Constitution of the Republic of South Africa, 1996 has been aptly termed a transformative one, a framework for the large-scale transformation of the South African society through law. Reflecting in 2011 on nearly two decades of legal reform in South Africa, much preceded by public interest litigation, we can conclude that many changes have indeed occurred to much (but not all) of the doctrine of the law. And yet, the desired societal transformation has not occurred. Levels of inequality are increasing and the effect, positive or negative, of governance remains debated. This SAJHR Special Issue aims to recover the impetus of a transformative constitutional project through attention, not to changes in the doctrine of the law, but rather to the organisational modes of human rights advocacy and litigation, focusing on one of these modes - public interest litigation.

Winning isn't everything : courts, context, and the barriers to effecting change through public interest litigation

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Author: Amit, Roni
Vol 27 Issue 1
Publication: 2011
Page: 8-38
Abstract: South Africa's progressive refugee legislation, together with its rights-regarding Constitution and a strong focus on administrative law, provide a powerful legal framework for the protection of refugee and asylum-seeker rights. Yet, despite numerous successful court challenges advancing these rights, many rights-violating practices have persisted. Asylum seekers face problems accessing the proper status determination procedures and are illegally detained and deported. The effects of court judgments upholding asylum-seeker and refugee rights have been blocked because courts lack a supportive socio-political support structure to implement their decisions. Government actors do not feel strictly bound by the law, have few incentives for compliance, and are largely unaccountable for legal violations. By better understanding the barriers to effective legal decisions, public interest lawyers and courts can develop broader strategies aimed at overcoming these barriers and increasing the effectiveness of legal decisions.

Art or science? Synthesizing lessons from public interest litigation and the dangers of legal determinism

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Author: Dugard, Jackie Langford, Malcolm
Vol 27 Issue 1
Publication: 2011
Page: 39-64
Abstract: In 2008, one of the largest funders of human rights organisations in South Africa, the Atlantic Philanthropies, published a report that identified several factors for optimal public interest litigation. Despite the relative density of organisations that conduct public interest litigation in South Africa, there has been little critical engagement with its findings. Yet this exercise is pertinent given the growing reliance by South African civil society organisations on litigation to resolve systemic failures by the state, together with the ever more pressing requirement from donors to prove the strategic value of the turn (or return) to the courts. This article aims to contribute to the discussion about the uptake and value of public interest litigation by problematising the premises and recommendations of the Atlantic Philanthropies Report (APR). The report's analysis is tested, partly through the lens of two recent cases concerning the disconnection of municipal services - Mazibuko (water) and Joseph (electricity) - revealing another type of disconnection: that the public impact litigation process is generally too unpredictable and diffuse for it to be adequately assessed through a formulaic or scientific approach. At the same time, it has more potential for social change than covered in the APR. The article therefore advances a more expansive, contextualised and responsive framework for conceptualising the role of public impact litigation and assessing its impact. The proposed framework takes into account structural conditions of power, agency in the form of social mobilisation and the role of public interest litigation in constituting 'politics by other means'.

Public interest litigation for refugees in South Africa and the potential for structural change

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Author: Handmaker, Jeff
Vol 27 Issue 1
Publication: 2011
Page: 65-81
Abstract: A decades-long social justice struggle that eventually displaced white minority rule in South Africa culminated in democratic elections in 1994. Following this historic transition from authoritarian rule to democracy, new issues came to the fore, including the rights of refugees and migrants. Civic actors in South Africa again became mobilised around this human rights and social justice issue through public interest litigation in the framework of South Africa's bold, new Constitution. At different moments, civic actors confronted the government to fulfil its national and international obligations towards refugees. This article will briefly explain the emergence of new civic actors and issues in post-1994 democratic South Africa, and then elaborate three theoretical propositions on civic-state interactions to try and hold governments accountable to their human rights obligations. Next, these propositions will be applied to concrete examples where administrative law is tested in the domain of refugee law and policies. The article will conclude by briefly considering the extent to which public interest litigation in the area of refugee law and policies can inform the future prospects of public interest litigation in general.

Slapp suits : an emerging obstacle to public interest environmental litigation in South Africa

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Author: Murombo, Tumai Valentine, Heinrich
Vol 27 Issue 1
Publication: 2011
Page: 82-106
Abstract: The constitutional project of South Africa depends on public interest litigation to ensure that rights in the Constitution are protected and fulfilled. The dialectic of promoting socioeconomic rights while concomitantly promoting other constitutional interests remains a big challenge. A case in point is the protection of environmental rights, which poses a greater challenge given the tension between development and environmental protection. Among other strategies, the environment can most effectively be protected through public interest environmental litigation supported by democratic participation in environmental decision-making. However, emerging threats to such litigation include strategic litigation against public participation (SLAPP suits). SLAPPs were first identified in the United States. In the US, particularly in California, targeted legislation has been used to deal with SLAPP suits and South Africa may have to consider taking this route to forestall this threat to public interest litigation. In the absence of such targeted legislation, however, courts should use existing procedural and substantive legal tools to protect litigants faced with SLAPP suits.

Proceduralisation's triumph and engagement's promise in socio-economic rights litigation

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Author: Ray, Brian
Vol 27 Issue 1
Publication: 2011
Page: 107-126
Abstract: Three of the Constitutional Court's socio-economic rights decisions of the 2009 term are the culmination of a strong trend towards the proceduralisation of socio-economic rights that many commentators have argued fails to fulfil their original promise. This triumph of proceduralisation undeniably restricts the direct transformative potential of these rights. But there is another aspect to this trend - an aspect reflected in the Court's emphasis on participatory democracy and the ability of procedural remedies to democratise the rights-enforcement process. This article considers what the triumph of proceduralisation means for future social and economic rights litigation and argues that properly developed the engagement remedy can give poor people and their advocates an important and powerful enforcement tool. At the same time, engagement can help strengthen and promote consistent attention to the constitutional values these rights protect. Tapping this potential requires the Constitutional Court and lower courts to apply the remedy more consistently, to develop its requirements more fully and to apply those requirements robustly where government fails to engage meaningfully on social welfare policy. The courts are only the starting point, however. For engagement to truly succeed, government must develop comprehensive engagement policies and institutionalise those policies at all levels. Finally, civil society must expand its role beyond pressing for engagement in individual cases into advocating for such institutionalisation.

Litigating housing rights in Johannesburg's Inner City : 2004 - 2008

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Author: Wilson, Stuart
Vol 27 Issue 1
Publication: 2011
Page: 127-151
Abstract: This article argues for a theoretically informed, socially contextualised way of appraising the impact of strategic litigation on the needs and interests of the poor and vulnerable. After sketching the theoretical terrain against which human rights litigation falls to be assessed, the article examines the relative success of recent strategic litigation aimed at stemming the flow of forced evictions in Johannesburg's inner city. Success or failure of rights and the strategies that give effect to them, the author argues, is always contingent on a broad range of factors, many of which are beyond the control of public interest law practitioners. The best that can be done is to practise law with an acute awareness of the nature and likely impact of those factors. This will guard against both an over-reductive approach, which posits that litigation can never 'ultimately' make a difference, and the over confidence of the intellectually able, but socially dislocated, elite practitioner who equates social change with 'good jurisprudence'.

Two's company, three's a crowd : public interestintervention in investor-state arbitration (Piero foresti v South Africa) : current developments / case notes

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Author: Brickhill, Jason Du Plessis, Max
Vol 27 Issue 1
Publication: 2011
Page: 152-166
Abstract: The legal culture of public interest litigation generally, and amicus curiae interventions specifically, is now fairly well developed in South African domestic litigation. The rules of court have been amended to cater for amicus participation and a body of jurisprudence has developed regarding questions of the admissibility and role of amici. It is not unheard of for an amicus to seek to be admitted even in criminal or commercial matters, and not merely matters in which constitutional issues are the central questions. Our courts are increasingly recognising that certain matters cannot be resolved simply as disputes between the parties, but must necessarily involve the perspectives and voices of organisations or entities that may not have a direct legal interest in the matter in the traditional sense, often asserting (their conceptions of) the public interest. Indeed, the Supreme Court of Appeal (SCA) recently expressed its displeasure with an unmeritorious and churlish objection to the admission of an amicus by visiting an adverse costs order upon the objecting party.

Challenges to public interest litigation in South Africa : external and internal challenges to determining the public interest : current developments / case notes

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Author: Cote, David Van Garderen, Jacob
Vol 27 Issue 1
Publication: 2011
Page: 167-182
Abstract: It is difficult to speak of public interest litigation in South Africa without referring to the country's remarkable political and legal transformation of the past 16 years. The courts have played an important role in ensuring that the political rights achieved at that time are maintained and developed. Although the new political dispensation has become a way of life, social change and transformation have been much slower. For most South Africans, the promise of democracy has not brought about the expected social benefits, leading to disillusionment and dissatisfaction with the current government's inability to eradicate the huge social and economic gap. Increasingly, these communities are becoming active in expressing their dissent. Public interest litigation has become a useful tool to complement political mobilisation.

Prison conditions in South Africa and the role of public interest litigation since 1994 : current developments / case notes

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Author: Jansen, Rudolph Achiume, Emily Tendayi
Vol 27 Issue 1
Publication: 2011
Page: 183-191
Abstract: A nation's prisons often reflect its socio-economic and socio-political context. This was certainly true of the colonial and the apartheid periods in South Africa. Prior to 1994, prison policy mirrored and reinforced broader apartheid policy. Prisons were segregated along racial lines and the use of prison labour was common. The system was brutal, and the courts did precious little to change anything. Over time, the South African government militarised the system, as the society progressively became a police state and was besieged by internal security strife.

Demolishing development at Gabon informal settlement : public interest litigation beyond Modderklip? : current developments / case notes

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Author: Tissington, Kate
Vol 27 Issue 1
Publication: 2011
Page: 192-205
Abstract: This article examines recent developments at the Gabon informal settlement (Gabon), situated in Daveyton township, Benoni in the Ekurhuleni Metropolitan Municipality, where in May 2010 over 300 families had their shacks illegally demolished by the municipality and Metro police. Gabon is the site of the Modderklip case, which began with eviction proceedings by a private owner for residents unlawfully occupying his land, and ended with the Constitutional Court making a declaratory order entitling the owner to compensation in respect of the occupied land, and allowing the residents to occupy the land until an alternative was provided by the state.

Litigating Socio-Economic Rights in South Africa : A Choice between Corrective and Distributive Justice, Christopher Mbazira Constitutional Deference, Courts and Socio-Economic Rights in South Africa, Kirsty McLean : book review

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Author: Dugard, Jackie
Vol 27 Issue 1
Publication: 2011
Page: 206-208
Abstract: Christopher Mbazira and Kirsty McLean's books, both adapted from doctoral theses and published by Pretoria University Law Press, are welcome additions to the growing scholarship on socio-economic rights litigation in South Africa. Both books are very readable, while being well-researched and academically rigorous, and are likely to appeal to law students and practitioners alike.

Stones of Hope : How African Activists Reclaim Human Rights to Challenge Global Poverty, Lucie White and Jeremy Perelman (Eds.) : book review

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Author: Klaaren, Jonathan
Vol 27 Issue 1
Publication: 2011
Page: 209-211
Abstract: It is the aim of many authors (at least in the nonfiction realm) to create theoretically informed and empirically rich books on their topics. Lucie White and Jeremy Perelman have succeeded in doing so with their edited collection on the topic of human rights activism in favour of socio-economic rights in Africa.

Domestic Violence and International Law, Bonita Meyersfeld : book review

2013-03-08T14:28:30Z

Author: Meerkotter, Anneke
Vol 27 Issue 1
Publication: 2011
Page: 212-218
Abstract: The ineffectiveness of the criminal justice system in addressing family violence intensifies the subordination and helplessness of victims. This also sends an unmistakable message to the whole of society that the daily trauma of vast numbers of women counts for little.