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Home , Albie Sachs, Arthur Chaskalson, Bess Nkabinde, Christian Msimang, Chris Jafta, Dennis Davis

Public interest litigation and social change in South : Strategies, tactics and lessons

By Steven Budlender, Gilbert Marcus SC and Nick Ferreira This book is dedicated to the memory of Gerald Kraak 1956 – 2014

Front page photographs: Ambrose Peters, , Esa Alexander, National Alliance for the Development of Community Advice Offices, Richard Shorey & War on Want Public interest litigation and social change in : Strategies, tactics and lessons

By Steven Budlender, Gilbert Marcus SC and Nick Ferreira

Published by The Atlantic Philanthropies October 2014

Disclaimer The views and opinions expressed in this publication are those of the authors and are not necessarily shared by The Atlantic Philanthropies.

Photographs Many individuals and organisations provided generous assistance to us on the visual side of this publication. We are very grateful to all of them for sharing their remarkable photographs with us. Copyrights lie with the credited photographers and organisations. Every effort has been made to establish origins and credit photographs used in this publication appropriately. Should any errors have occurred, please contact The Atlantic Philanthropies so that these can be rectified in the event of a reprint. Abbreviations

Agri SA Agri South Africa MPRDA Mineral and Petroleum Resources Development Act 28 of 2002 AIDS Ac quired Immune Deficiency Syndrome MTCT Mother-to-child transmission ALP AIDS Project NAACP N ational Association for the Advancement of Colored People ANC African National Congress NADCAO N ational Alliance for the APF Anti-Privatisation Forum Development of Community Advice ARV(s) Antiretroviral (drugs) Offices Atlantic The tlanticA Philanthropies NCGLE N ational Coalition for and BEFA Basic Education for All Equality CALS Centre for Applied Legal Studies NCOP National Council of Provinces CCL Centre for Child Law NGO Non-governmental organisation CER Centre for Environmental Rights NNP New National Party CLC Community Law Centre PAIA Promotion of Access to Information Act 2 of 2000 COSATU C ongress of South African Trade Unions PAJA P romotion of Administrative Justice Act 3 of 2000 EE Equal Education PMTCT Prevention of mother-to-child HIV Human Immunodeficiency Virus transmission IDASA Institute for Democracy in Africa PPM(s) Prepayment meter(s) JASA Justice Alliance of South Africa SAHA South African History Archive JSC Judicial Service Commission SAHRC S outh African LASA Legal Aid South Africa Commission LDF Legal Defense Fund SAINT S outh African Intrapartum Nevirapine Trial LGBT(s) L esbian, gay, bisexual and (people) SAPS South African Police Service LGEP Lesbian and Gay Equality Project TAC Treatment Action Campaign LHR Lawyers for Human Rights TAU-SA Agricultural LRC US United States MCC Medicines Control Council VIP Ventilated improved pit MEC Member of the Executive Council Wits University of the Witwatersrand Table of contents

PROLOGUE: The Atlantic Philanthropies and public interest litigation in South Africa I

INTRODUCTION 1

CHAPTER 1: Changing trends in the South African public interest litigation environment 5 The period prior to 1994 6 The period between 1994 and 2000 7 The period between 2000 and 2010 8 The period from 2010 onwards – the beginning of a backlash? 13

CHAPTER 2: Case studies of South African public interest litigation 25 The ationalN Coalition for Gay and Lesbian Equality case on the criminalisation of sodomy and subsequent litigation concerning gay and lesbian rights 27 The Grootboom case on the right to housing 34 The reatmentT Action Campaign case on the prevention of mother-to-child transmission of HIV 48 The azibukoM case on access to water 58 The osephJ case on access to electricity 67 The okotyanaN case on sanitation 73 Litigation on the right to basic education 77

CHAPTER 3: Four key strategies for using rights to achieve social change 95 Strategy 1 – public information 97 Strategy 2 – advice and assistance 99 Strategy 3 – social mobilisation and advocacy 101 Strategy 4 – litigation 107 Table of contents (continued)

CHAPTER 4: Seven factors to maximise the prospect of ensuring that public interest litigation succeeds and achieves social change 109 Factor 1 – proper organisation of clients 111 Factor 2 – overall long-term strategy 116 Factor 3 – co-ordination and information-sharing 118 Factor 4 – timing 119 Factor 5 – research 120 Factor 6 – characterisation 121 Factor 7 – follow-up 122

CHAPTER 5: Procedural mechanisms which promote effective public interest litigation 127 Broad rules of standing 128 A protective costs regime 134 Significant opportunities for interventions byamici curiae 136

CHAPTER 6: Summary of findings 143

BIBLIOGRAPHY 149

APPENDIX A: Constitution of the Republic of South Africa 108 of 1996, Chapter 2 (Bill of Rights, Sections 7-39) 154

APPENDIX B: Organisations & individuals participating via personal interview or questionnaire 165

Virtually all of the South African judgments referred to in this publication can be obtained at www.saflii.org. The neutral citation of judgments has been included in footnotes to assist in this regard, for example: [2000] ZACC 19. The full text of the South African Constitution is available at www.saflii.org/za/ legis/consol_act/cotrosa1996423. For easy reference, however, Chapter 2 of the Constitution (the Bill of Rights) has been included as Appendix A. Prologue: The Atlantic Philanthropies and public interest litigation in South Africa

Public interest litigation and social change in South Africa: Strategies, tactics and lessons I The Atlantic Philanthropies and public interest litigation in South Africa

In 2013, The Atlantic Philanthropies (Atlantic) – an international other international donors working in foundation committed to investing its assets over a fixed period of time the field of social justice. It has been rather than in perpetuity – ended its grantmaking programme in South included in the curricula of many law Africa. Over the course of its involvement in South Africa (since 1994) degrees, and has served as a reference Atlantic invested over US$355 million. Much of this spend was focused in several seminars, conferences and on advancing social justice, with support to strategic public interest exchanges among South African and litigation as a consistent element. foreign legal practitioners across the world. Although formal grantmaking in South tlantic commissioned the report Africa has now ended, Atlantic remains A strategic evaluation of public keen to explore the impact of its Ainterest litigation in South Africa grantmaking, and in particular how best i in 2008 (written by Gilbert Marcus SC to secure enduring social change. and Steven Budlender) after seven years of support to human rights grantees, In this context, Atlantic is proud to many of which had strategically and present a revised and expanded version effectively used litigation to achieve of the 2008 report entitled Public lasting socio-economic change. The interest litigation and social change in evaluation – which was not restricted South Africa: Strategies, tactics and to the work of Atlantic grantees, but lessons. This work (written by Steven surveyed the entire field of public Budlender, Gilbert Marcus SC and Nick interest litigation – was commissioned Ferreira) was commissioned to update to distil which strategies, when and develop the initial report and combined with strategic litigation, thus provides new insights and covers had led to social change and might be post-2008 developments in the field of emulated in the future. public interest litigation in South Africa. The study was well received locally and internationally by public interest lawyers, the human rights sector more broadly, by academics and by

i www.atlanticphilanthropies.org/sites/default/files/ uploads/public_interest_litigation_sa.pdf.

II Public interest litigation and social change in South Africa: Strategies, tactics and lessons Prologue

‘Justice under a tree’ – the logo of the Constitutional Court of South Africa. The tree protects the people, and they look after the tree. Also, traditionally in South Africa, justice has taken place under a tree.

■ social change by backing key human of 2004,iv which prevented women rights organisations in the country. in communal areas from owning or inheriting land. These and other Atlantic went on to support a national Atlantic’s rulings have been groundbreaking and network of community-based, legal transformative, improving the lives of advice offices and public interest Reconciliation millions of people. non-governmental organisations that and Human identified issues which lent themselves Key components of Atlantic’s strategy to precedent-setting litigation and class to realise human and socio-economic Rights actions, thus impacting large numbers rights in South Africa came to include: Programme of people. This network is an important • applied research to inform policy component of South African civil and legislation and to provide Atlantic’s decision to launch its society. In supporting these groups, baseline data against which progress Reconciliation and Human Rights Atlantic drew on the experience and can be measured; Programme in South Africa in 2002 success of the Treatment Action • community organisation and grass- was motivated by the country’s Campaign and other social movements roots mobilisation; successful and peaceful transition from in promoting and achieving tangible • lobbying and advocacy; to democracy in 1994, against social change. • litigation where advocacy and seemingly intractable odds – a powerful The imprint of Atlantic’s support is mobilisation fail; and demonstration of the proposition that a evident in the many positive, socio- • networking and alliance-building. peaceful, negotiated path from conflict economic Constitutional Court rulings This complex of strategies was in and injustice to co-operation and since 1996 – from the Richtersveld part informed by the findings and reconciliation is possible. ii ruling where a community was recommendations of the 2008 public A key element in the trajectory to South awarded ownership of the mineral interest litigation evaluation report. Africa’s historic transition was the rights on land from which they had adoption of one of the most progressive been forcibly removed under apartheid, Constitutions in the world. It provided to the instruction to government to a platform, for the first time, to extend roll out antiretroviral drugs to people a raft of human and socio-economic with HIV,iii and the striking down of rights to vulnerable and disadvantaged the Communal Land Rights Act 11 South Africans – a compelling ii Alexkor Ltd & Another v Richtersveld Community & iv Tongoane & Others v National Minister for opportunity for Atlantic to stimulate Others [2003] ZACC 18; 2004 (5) SA 460 (CC). Agriculture and Land Affairs & Others [2010] iii Covered extensively in Chapter 2. ZACC 10; 2010 (6) SA 214 (CC).

Public interest litigation and social change in South Africa: Strategies, tactics and lessons III Prologue

As one of the most progressive in the world, the South African Constitution provided a platform to extend a raft of human and socio-economic rights to vulnerable and disadvantaged South Africans – a compelling opportunity for Atlantic to stimulate social change by backing key human rights organisations in the country.

The impact of •  on the basis of the following: Atlantic’s in the workplace • improved uptake of social grants; has been outlawed. • improved education on farms; programme • Under the country’s refugee • a ccess to water, housing, electricity legislation, faced with and other services; Important advances have been made persecution in their own countries • prevention of illegal evictions from by grantees and partners in Atlantic’s because of their sexuality are farms and litigation for security of programme across its four focus areas: afforded asylum in South Africa. tenure; • lesbian, gay, bisexual and • Funding has been provided for • opposition to the Communal Land transgender people; emerging transgender and intersex Rights Act (mentioned above) and • r ural poverty; support groups. other retrogressive legislation which • refugees and migrants; and • Go vernment has passed legislation discriminates against women in the • organisations and initiatives that allowing individuals to register for former tribal trust lands; and counter threats to democracy and identity documents in their chosen • challenges to government’s granting advance constitutionalism. gender. of concessions to mining houses to In terms of the rights of lesbian, gay, • Ge nder reassignment surgery is exploit resources without adequate bisexual and transgender people available through the public health community consultation or (LGBTs), the following – representing service at economic benefit. in . some of the most progressive advances Grantees have accomplished or been in the world – has been achieved: Atlantic’s rural poverty grantees have instrumental in accomplishing the • The ountry’sc LGBT community used the law to alleviate the worst following: impacts of rural poverty through a has gained full citizenship, including • 11 community-based advice office network of advice offices and public the recognition of same-sex networks that provide legal advice interest law firms which provide marriages, the decriminalisation of and support to more than 60 000 free advice to the rural poor. Atlantic sodomy, the right of LGBT couples clients each year; supported structures in six of South to adopt children, access by LGBT • s uccessful litigation compelling Africa’s nine provinces and is leaving partners to each other’s pension, provincial government to remedy behind a national network of best- health insurance and other benefits delays in the payment of social practice institutions and entities to on the same basis as heterosexuals, grants – a routine problem across carry on this work. and the right of long-term partners the country until the establishment to inherit the assets of the other In protecting the rights of the rural of the South African Social Security upon death. poor, the advice offices have facilitated Agency (which centralised this role);

IV Public interest litigation and social change in South Africa: Strategies, tactics and lessons Prologue

• a sophisticated campaign, • communities across the country These grantees have been prominent spearheaded by the , to gaining access to clean and safe in securing a number of precedent- incrementally increase eligibility drinking water. setting Constitutional Court rulings for the Child Support Grant from that prevent municipalities from In the field of refugee and migrant those under the age of seven in 1998 evicting homeless people without rights, the work of Atlantic’s grantees to all children under the age of 18 providing alternative accommodation. has had the following impact: by 2011. This has brought more In addition, the has than 10 million children into the • the provision of legal advice and been compelled to provide adequate social safety net. A similar campaign support as well as key social services sanitation to residents of informal increased the number of children to over 12 000 refugees seeking legal settlements. Also: status to remain in the country; eligible for a Foster Care Grant • The ocialS Justice Coalition has • litigation resulting in the provision from 40 000 in 1998 to just under partnered with the Mayor of Cape of education for child refugees, half a million in 2011 – a response Town to develop a city-wide and in access to health services in part to the rising number of sanitation policy for informal and emergency shelters for asylum orphans, due to the HIV and AIDS settlements. seekers; and pandemic; • A national campaign against • litigation forcing the closure of • a reduction in the level of rural corruption was launched by the detention centres that failed to poverty, improved health and Council for the Advancement of the comply with human rights and nutrition, increased levels of South African Constitution. minimum health standards. enrolment in schools, and reduced • Corruption Watch, an initiative levels of illegal child labour; Lastly, Atlantic also supported of Section27 and the Congress of • approximately 15 million rural a number of new civil society South African Trade Unions, has women benefiting from the decision initiatives that have materialised to been launched. of the Constitutional Court to strike counter threats to democracy and • Several issue-based movements have down the Community Land Rights advance constitutionalism. They are emerged around service delivery Act, which limited their right to characterised by extensive citizen and education, all characterised by access, own and inherit land; engagement – in particular the popular participation, in particular • four communities regaining emergence of a new and growing by young people. ownership of mineral-rich land cadre of informed youth leadership taken from them during apartheid; – innovative advocacy strategies and • 15 communities benefiting from effective strategic litigation. rulings against the negative impacts of mining; and

Public interest litigation and social change in South Africa: Strategies, tactics and lessons V Prologue

Action by civil society, including litigation, has ensured that essential services have been provided to many communities – here, potable water. Photograph: Legal Resources Centre ©

■ for social change, of which strategic litigation is but one. In closing We hope and trust that this publication will contribute to an increasingly rich While Atlantic has supported some key and informed debate on how to use instances of strategic public interest litigation to achieve lasting social change. litigation in South Africa since 2002, this publication (as the 2008 report) Martin O’Brien also includes other critical initiatives Senior Vice President, The Atlantic and developments, thus presenting a Philanthropies comprehensive contemporary survey of public interest litigation in the country. Gerald Kraak Programme Executive: Reconciliation and It points to a rapidly developing field, Human Rights Programme (2002-2013), and to complex and innovative strategies The Atlantic Philanthropies (South Africa)

VI Public interest litigation and social change in South Africa: Strategies, tactics and lessons Introduction

Public interest litigation and social change in South Africa: Strategies, tactics and lessons 1 Introduction

In 2007, at the request of The Atlantic Philanthropies (Atlantic), two • a series of decisions by the of the authors of this publication – Gilbert Marcus SC and Steven Constitutional Court on socio- Budlender – conducted an evaluation of public interest litigation in economic rights; South Africa to determine, primarily, which combination of strategies • a striking and remarkable increase has been most effective in advancing social change, as well as the in the prominence of issues relationship of public interest litigation to various aspects of social concerning the right to basic mobilisation. education, both in the public arena and in courts; and • a move by more conservative organisations to embrace and he evaluation report was make use of the tactics and published by Atlantic in strategies developed by progressive T2008 (A strategic evaluation public interest organisations. of public interest litigation in South The period has also seen significant ,1 henceforth referred to as the Africa changes in the composition of 2008 report). As mentioned in the South Africa’s Constitutional Court, Prologue, it was widely recognised including the departure of the last four by public interest lawyers and Justices appointed in 1994 and the organisations from South Africa and appointment of new Chief Justices. beyond as being helpful to their work.2 In light of these developments, and In the years that have passed since at the request of Atlantic, the 2008 the publication of the 2008 report, report has now been substantially there have been significant further updated and revised. This 2014 developments in the South African publication also contains a great deal legal environment. These have of new material, dealing in particular included: with the developments set out above. It is thus intended to replace the 2008 1 www.atlanticphilanthropies.org/sites/default/ files/uploads/public_interest_litigation_sa.pdf. report, rather than supplement it. 2 For a contrasting and critical view of the 2008 report, see Jackie Dugard & Malcolm Langford, As was the case with the 2008 report, Art or science? Synthesising lessons from public interest litigation and the dangers of legal we have written this publication by determinism, in South African Journal on Human considering a range of information Rights, Vol. 27, Part 1: 2011, pages 39-64.

2 Public interest litigation and social change in South Africa: Strategies, tactics and lessons Introduction

Photograph: Legal Resources Centre ©

sources. These included engagements, • the National Coalition for Gay and composition of the Court, meaning that both formal and informal, with a Lesbian Equality (NCGLE) case on a study of their comparative approaches range of role-players in the public the criminalisation of sodomy and is all the more valuable. interest litigation arena – comprising subsequent litigation concerning Chapter 2 ends with a seventh, judges, practitioners and key activists. gay and lesbian rights; collective case study, where we examine In order to ensure that the views of • the Grootboom case on the right to a number of recent cases on different the organisations and individuals housing; and aspects of the right to basic education. concerned could be robustly expressed, • the Treatment Action Campaign Again, this was a relatively untested we undertook that comments made to (TAC) case on the prevention of area until a few years ago. Since then, us would not be attributed to particular mother-to-child transmission of however, there has been a significant respondents. HIV. increase in the prominence of litigation We have structured this publication into Secondly, we present and discuss three regarding this right. five main chapters: additional, more recent case studies: Chapter 3: Four key strategies

Chapter 1: Changing trends in • the Mazibuko case on access to for using rights to achieve social the South African public interest water; change • the Joseph case on access to litigation environment This chapter deals with key strategies electricity; and This chapter examines the changing that should be used in conjunction with • the Nokotyana case on sanitation. trends in the South African public a public interest litigation strategy in interest litigation environment, These three cases were selected as order for the latter to achieve maximum especially current challenges. each of them represented an attempt success in advancing social change. We to develop the socio-economic rights identify three such strategies: Chapter 2: Case studies of South jurisprudence of the courts in, as yet, • c onducting public information African public interest litigation untested areas – water, electricity and campaigns to raise rights awareness; This chapter involves a discussion of sanitation, respectively. Moreover, while • pr oviding advice and assistance a number of particularly important these cases had very different histories outside of litigation to assist people case studies of recent public interest and outcomes, the Constitutional in claiming their rights; and litigation that provide support for many Court delivered judgments in all three • making use of social mobilisation of the conclusions we reach later. of them within a short period – October and advocacy to ensure that Firstly, we have included the three case to November 2009. The different communities are actively involved studies presented and discussed in the outcomes of the cases can therefore in asserting rights inside and outside 2008 report. They are: not be attributed to changes in the the legal environment.

Public interest litigation and social change in South Africa: Strategies, tactics and lessons 3 Introduction

Chapter 4: Seven factors to mechanisms in place in South Africa Secondly, in a number of the cases maximise the prospect of which promote effective public interest discussed in this publication, one or ensuring that public interest litigation. This is important for two two of the authors were involved as litigation succeeds and achieves reasons. counsel. In those cases, we have taken particular care to rely primarily on the social change Firstly, for foreign readers, it provides an views and perceptions of those authors This chapter focuses on the factors insight into possible procedural reforms not involved as counsel, as well as the that should generally be present in to be suggested in order to promote respondents who commented on the order to maximise the prospects of effective public interest litigation in cases in question. public interest litigation succeeding their jurisdictions. and achieving social change. We have Lastly, we would like to express our Secondly, for South African as well as identified seven such factors: thanks to Emma Webber for her foreign readers, it highlights the need • proper organisation of clients; invaluable assistance in finalising this for litigators to take full advantage of • overall long-term strategy; work, particularly the case study dealing these mechanisms when designing and • co-ordination and information- with the right to basic education. We engaging in public interest litigation. sharing; would also like to express our thanks • timing; We draw attention to three main to Martin O’Brien and Gerald Kraak • research; procedural mechanisms: of The Atlantic Philanthropies for their • characterisation; and • broad rules of standing; continual support and eternal patience • follow-up. • a protective costs regime; and as the publication was being prepared • significant opportunities for and finalised. Finally, we would like Chapter 5: Procedural interventions by amici curiae. to thank Helle Christiansen for her mechanisms which promote excellent assistance in the copy-editing Three final preliminary points should be effective public interest litigation and proofreading of the publication, made in this introduction. When we presented the 2008 report and for putting up with our endless to public interest litigators in other Firstly, we generally sought to use 31 changes. jurisdictions, we were struck by the December 2013 as a cut-off date for the fact that the South African public matters discussed in this publication. interest litigation environment is, However, on occasion we have included from a procedural point of view, a very brief references to events occurring after generous one. that date where this was necessary to Consequently, this new chapter give a full context for the issues being considers some of the procedural examined.

4 Public interest litigation and social change in South Africa: Strategies, tactics and lessons Chapter 1: Changing trends in the South African public interest litigation environment

Public interest litigation and social change in South Africa: Strategies, tactics and lessons 5 Changing trends in the South African public interest litigation environment

There has undoubtedly been a significant evolution of the South repressive political climate, government African public interest litigation environment, especially over the last displayed a paradoxical attitude to the few decades. In this regard, we consider it helpful to deal with four role of law and the judiciary. Despite main periods: its flagrant violation of human rights, government purported to hold the • the period prior to 1994; judiciary in the highest esteem and • the period between 1994 and 2000; professed respect for the rule of • the period between 2000 and 2010; and law. This attitude, combined with • the period from 2010 onwards. government’s attempts to use the law to entrench apartheid, ironically created opportunities for public interest lawyers ■ to exploit gaps in the system. As Justice explains: The period These legal ploys were possible because, in its essence, apartheid prior to 1994 was a project that used the law In respect of the period prior to 1994,3 as its instrument. For most of its our respondents emphasised that (at history, most of those enforcing it least in theory) the mechanisms for saw themselves as subject to the law public interest litigation were very and its constraints. This changed limited. There was no Bill of Rights, radically in the 1980s, when ‘dirty almost complete parliamentary tricks’ campaigns were sprung, sovereignty, very strict prescription and murderous ‘third forces’ were that favoured the state, and a judiciary unleashed. which often followed the letter of the Until then, security policemen, law even though it may have taken the bureaucrats, politicians and lawyers, view that the laws were unjust. including apartheid-minded judges, thought of themselves as operating Nevertheless, and notwithstanding this within the values of an ethically sound 3 The use of public interest litigation in this period and respected legal system. They is addressed in detail in Richard L Abel’s excellent work Politics by Other Means: Law in the Struggle knew apartheid was criticised around Against Apartheid, 1980-1994, Routledge, New the world, and that most black South York: 1995.

6 Public interest litigation and social change in South Africa: Strategies, tactics and lessons Changing trends in the South African public interest litigation environment Chapter 1

Current Justices of South Africa’s Constitutional Court (from the top, left to right): Chief Justice , Deputy Chief Justice , Justice , Justice , Justice Edwin Cameron, Justice , Justice Johann van der Westhuizen, Justice , Justice and Justice .

Africans rejected it vehemently, but legal firms – engaged in a great deal Constitution in 1993, followed by the they told themselves that there was a of successful public interest litigation, final Constitution in 1997,5 provided logic and justice to it. focusing primarily on civil and political a wide array of mechanisms and Because of this, the legal system rights cases. It was as a result of this machinery for effective public interest offered space to thwart apartheid’s that public interest litigation became litigation. These included extensive plans and grand designs. And hence a critical tool to attack apartheid fundamental rights – including socio- the legal system often did operate legislation. economic rights – as well as generous standing provisions and wide remedial as a brake. On occasion, the courts Public interest litigation thus had a powers. were a real constraint on what the substantial advantage in that it had apartheid apparatus was able to a clear target and focus. Its general In theory, therefore, the period between achieve. Apartheid bureaucrats found purpose was to challenge the edifice of 1994 and 2000 ought to have been the that implementation of their orders apartheid in its various manifestations. high point for public interest litigation, was sometimes slowed down. They This allowed for carefully focused and particularly public interest litigation found the courts served as a check on motivated public interest litigation. leading to social change. government and police action. However, notwithstanding this – and And it was the very legal trappings without wishing to discount the of apartheid, despite the evil they ■ importance of a number of crucial engendered, that laid the foundations constitutional victories during this for the constitutional system that The period period (for example, decisions followed.4 striking down the death penalty and Moreover, given the importance between 1994 the criminalisation of sodomy) – of the issue and the interest of the and 2000 our respondents stressed that the international community and foreign reality faced by many public interest donors, considerable funding was Not surprisingly, a major shift took organisations during this period was available to engage in public interest place in 1994 with the enactment of one of uncertainty and flux. litigation. Consequently, groups like a supreme Constitution and Bill of This was partly because there were the Legal Resources Centre (LRC), Rights, as well as the creation of a liberal relatively few lawyers who were well the Centre for Applied Legal Studies Constitutional Court. Our respondents versed in the new Constitution and (CALS) and Lawyers for Human emphasised the following issues in

Rights (LHR) – as well as various relation to the 1994-2000 period. 5 Constitution of the Republic of South Africa 108 of 1996. The Constitution was signed into law 4 Edwin Cameron, Justice – A Personal Account, NB The coming into force of the interim in December 1996 and came into effect on 4 Publishers, Cape Town: 2014, page 57. February 1997.

Public interest litigation and social change in South Africa: Strategies, tactics and lessons 7 Chapter 1 Changing trends in the South African public interest litigation environment

In theory, the period between 1994 and 2000 ought to have been the high point for public interest litigation, particularly public interest litigation leading to social change. The reality faced by many public interest organisations, however, was one of uncertainty and flux. issues arising from it, particularly given of this early period focused on the ■ that law schools had only just begun effects of the Constitution on criminal to teach it to their students. Moreover, law, rather than on socio-economic because both the Constitutional Court rights and social change. This was The period and socio-economic rights protection perhaps reinforced by the caution of were entirely new, jurisprudence on the Constitutional Court during these between 2000 these issues was virtually non-existent. early years – particularly, for example, and 2010 There was therefore a great deal of the caution shown in the first case on uncertainty surrounding the kinds of socio-economic rights, Soobramoney The period from 2000 to 2010 saw cases that should be brought before the v Minister of Health.6 There, the a major shift in the nature of public Constitutional Court, the mechanisms Constitutional Court held that despite interest litigation with a far greater focus that should be used to do so and the life-and-death circumstances facing a on socio-economic rights, and public likely responses of the Court. man unable to obtain dialysis treatment, interest litigation during this period it could not come to the assistance of was, in many ways, groundbreaking. Combined with this was the fact that the applicant as government’s policy did many of the individuals who had been A question raised by Atlantic in this not violate the right to health care. active and developed substantial skills regard was whether socio-economic in the public interest litigation sphere Indeed, where public interest litigation rights received sufficient attention in the left the sector during this period, often went beyond issues of criminal law, South African public interest litigation to work for government in order to it often focused on defending human environment. assist it in the early days of democracy. rights gains – for example, defending All our respondents agreed that While this was not surprising, and attacks on abortion laws – rather than this period was characterised by an indeed plainly necessary, the exodus attacking government policies or increase (some termed it a “significant” of public interest litigators and social legislation. increase) in socio-economic rights activists necessitated the development litigation. Nevertheless, virtually all of a new generation to replace them. respondents also emphasised that this In conjunction with the belief held by was still insufficient and that there was some at least that the new government not enough focus on socio-economic would ‘do the right thing’ and needed to rights litigation, given how critical these be given the space to do so rather than rights are to addressing the persistent being antagonised by public interest concerns of poor and marginalised litigation, this all meant that much South Africans. 6 Soobramoney v Minister of Health, KwaZulu-Natal of the constitutional jurisprudence [1997] ZACC 17; 1998 (1) SA 765 (CC).

8 Public interest litigation and social change in South Africa: Strategies, tactics and lessons Changing trends in the South African public interest litigation environment Chapter 1

Shanty town in , 2005. Photograph: Matt-80/ www.wikimedia.org ©

The inadequacies identified by the rights sphere was critical. As one for children’s socio-economic rights, to respondents in the socio-economic respondent commented: which any organisation could apply for rights litigation that had taken place A lot more needs to be done to funds. The respondent commented that included: strengthen the capacity of the existing in practice this did not work very well: • a focus on certain socio-economic public interest litigation organisations, It proved difficult to spend the rights – for example, housing, health both to survive and to improve on money, organisations tried to care and land – to the exclusion their work. These organisations are the ‘engineer’ cases, but this was not all of others which had not yet been main avenue for poor people to have that successful. I would not advise addressed; access to social justice. Their collapse that donors should allocate funds • inadequate attention being given to or possible weakening will deprive poor specifically for socio-economic rights considering new issues that could people of access to courts and possible as a strategy to make more litigation have been the subject of public entitlements that would come with happen in this field. A better solution interest litigation; and going to courts. is to promote networking between • insufficient monitoring, awareness- [NGOs] that work on the ground with However, respondents also cautioned raising and related lobbying and people experiencing socio-economic against too strongly seeking to separate advocacy initiatives. rights deprivations, and litigation one area of public interest litigation organisations. Respondents stressed that the limited from another. Thus, while it was attention given to socio-economic possible to have organisations focusing We endorse the view that it is necessary rights was often due to the inability on children’s rights, health rights, or gay to have a mix of high-quality public of communities that were the victims and lesbian rights, many respondents interest litigation organisations, of violations of these rights to access took the view that it was essential some specialist in nature and some courts and lawyers who could assist that general public interest litigation operating across different areas. As them in fighting for their rights. These organisations were also funded and we demonstrate in Chapter 2, the comments make it clear that there were supported in order to enable them to examples of the Grootboom and TAC insufficient community-based or non- operate across a wide range of issues. cases make it clear that it is a mistake governmental organisations (NGOs) to think that different areas of public This view was expressed even by actively involved in dealing with socio- interest litigation are entirely separate respondents engaged in specialised economic rights. from each other. While Grootboom litigation organisations. One such was notionally only about the right Respondents therefore all agreed that respondent pointed to the fact that the to housing, success in the subsequent the role of public interest litigation International Commission of Jurists had TAC case would have been far more organisations in the socio-economic tried to have a special dedicated fund difficult had Grootboom not already

Public interest litigation and social change in South Africa: Strategies, tactics and lessons 9 Chapter 1 Changing trends in the South African public interest litigation environment

The period from 2000 to 2010 saw a major shift in the nature of public interest litigation with a far greater focus on socio-economic rights, and public interest litigation during this period was, in many ways, groundbreaking.

been decided. Similarly, the successful funders assumed that South Africa’s expressed – at least in respect of the cases now being litigated on the right human rights problems had been resources available to the state – need to to basic education build substantially solved and drastically reduced their be carefully qualified in our view. While on the principles enunciated in the funding of public interest litigation it is true that, as a whole, the public Grootboom and TAC cases. and other civil society groups. As a interest litigation area might be under- result, many public interest litigation resourced and under-skilled relative Our respondents emphasised three organisations have been forced to to the state, there are a number of core major challenges facing the South close down some of their regional public interest litigation organisations African public interest litigation sector offices or allow their staff attorneys to that perform extraordinarily well in general at the beginning of the new take on private and corporate cases and indeed seem to outdo the state millennium. These were: rather than focus exclusively on the consistently. • lack of funding; public interest. • lack of experienced, skilled staff; ProBono.Org (established in 2006) and Another respondent took a similar view is an example of a newer organisation • the attitude of government. but emphasised the massive resources which has managed to unlock resources available to the state: for public interest law by enlisting the Although these challenges remain The major challenge facing public support of the private legal profession. relevant today, they came to the fore interest litigation groups in South Moreover, the number of attorneys during the 2000-2010 period and we Africa today is a lack of resources, providing pro bono support to public therefore address each of them in turn especially when compared to those of interest litigation organisations has below. the state. The state is better organised increased significantly over the past and retains a battery of lawyers, years. Funding whereas many public interest litigation In general terms though, there is no Virtually all respondents emphasised organisations are underfunded and doubt that a lack of funding remains a that the advances in the last few years thus understaffed. […] International major issue in respect of public interest are presently threatened and may be funders have become increasingly litigation in South Africa. This is undermined by the fact that there has disinterested in public interest litigation notwithstanding the sterling work done been a substantial decrease in funding in South Africa, and the wealthy in by Atlantic – mentioned by surveyed for public interest work. As one South Africa have yet to become a grantees and non-grantees alike. As a respondent commented: major source of charitable giving. result of this lack of funding, there are With the passage of the new Similar sentiments arose in a number relatively few public interest litigation Constitution, many international of other responses. However, the views organisations in South Africa at present. These organisations are generally

10 Public interest litigation and social change in South Africa: Strategies, tactics and lessons Changing trends in the South African public interest litigation environment Chapter 1

Advocate Stuart Wilson (top left) consulting with tenants facing eviction from tenements in the inner city in the mid-2000s. Photograph: Jürgen Schadeberg ©

stretched to capacity and would be able growth and development of this sector. rights in four jurisdictions: the United to achieve a lot more with additional States (US), Britain, India and Canada. Consequently, the views expressed funding. He concludes that the most significant were that Atlantic’s exit will create determinant of the development of a A related issue that Atlantic asked us a substantial gap. A number of ‘rights revolution’ is the existence of to evaluate was whether other funders respondents emphasised the critical adequately resourced support structures would step in as Atlantic phased out role that Atlantic has played in for legal mobilisation – namely rights its support to the South African public providing upfront money for litigation. advocacy organisations and rights interest litigation sector in 2013 as part They stressed that there was often not advocacy lawyers. As Epp explains: of its planned spend-down. In respect of enough time to fundraise at the time the organisations surveyed that received of intervening in a particular case. The basic lesson of this study is that funding from Atlantic, it appears that Therefore, without a predetermined, rights are not gifts: they are won virtually none of them relied solely on allocated budget, it would often be through concerted collective action Atlantic for funding support – a variety impossible for successful interventions arising from both a vibrant civil society of other funders are on board. to take place. and public subsidy. Rights revolutions originate in pressure from below Despite this, all our respondents The continued funding difficulties in civil society, not leadership from made it clear that there will almost facing public interest organisations above.8 certainly not be other funders that can are, in our view, a cause for significant step into Atlantic’s shoes, at least not concern. Without sufficient funding and Even more importantly, Epp goes so far satisfactorily. support, public interest organisations as to conclude that the existence of such will find it increasingly difficult to support structures for legal mobilisation Respondents pointed particularly to the enforce rights and, still more, to do so in is more critical to achieving a rights fact that other funders – for example, a manner which produces lasting social revolution than virtually any other the Foundation for Human Rights change. factor, including the text of the and the Legal Aid Board (now Legal Constitution and the attitude of judges: Aid South Africa – LASA) tended to This point emerges powerfully from Neither a written Constitution, only fund matters on a case-by-case Charles R Epp’s work, The Rights a rights-supportive culture, nor basis. Moreover, LASA primarily funds Revolution: Lawyers, Activists and sympathetic judges is sufficient for criminal matters and provides only very Supreme Courts in Comparative sustained judicial attention to and limited funding for civil litigation. It Perspective.7 is essential that other funding models Epp studied in detail the growth of civil 8 Charles R Epp, The Rights Revolution: Lawyers, support the public interest litigation Activists and Supreme Courts in Comparative sector in general and encourage the Perspective, University of Chicago Press: 1998, 7 University of Chicago Press: 1998. page 197.

Public interest litigation and social change in South Africa: Strategies, tactics and lessons 11 Chapter 1 Changing trends in the South African public interest litigation environment

There is no doubt that a lack of funding remains a major issue in respect of public interest litigation in South Africa. There are relatively few public interest litigation organisations in the country at present, and they are generally stretched to capacity.

support for rights. Protection of civil Epp’s study constitutes a powerful substantially, although not exclusively, liberties and civil rights depends, in argument for the continued viewed as a problem of resources, with addition, on a support structure in civil funding and support of civil society public interest litigation organisations society. Without a support structure, organisations engaged in rights finding it difficult to attract or retain even the clearest constitutional advocacy and litigation. Most critically, sufficient staff members in light of rights guarantees are likely to if his approach is correct, it suggests competition from private law firms, become meaningless in the courts; that although South Africa now has an government and the corporate sector. but a vibrant support structure can extremely generous Constitution and As one of our respondents commented: extend and expand the feeblest of generally progressive judges, this will There is definitely a sense that the rights. Participants in constitutional be insufficient to achieve the fulfilment international funding environment is democracy would do well to focus their of rights, unless there is proper funding drying up, so public interest litigation efforts not only on framing or revising and assistance for support structures. organisations are operating with less constitutional provisions, and not only The only issue that Epp does not human and financial resources which on selecting the judges who interpret adequately interrogate in our view is impact on our ability to effectively run them, but also on shaping the support precisely which strategies such rights cases. structure that defends and develops advocacy organisations and rights those rights in practice.9 Another respondent expressed similar advocacy lawyers should use in order to views: Thus, Epp concludes that even though achieve lasting social change. We deal Skills shortage also plays a major India in many ways had an ideal with this issue in Chapters 3 and 4. role within these organisations. There environment for a rights revolution – is a high staff turnover because including a generous Constitution and, Lack of experienced, the best brains have either joined at various stages, an activist judiciary government or continue to be poached – the absence of sufficient support skilled staff by government and its Chapter 9 structures for legal mobilisation meant Linked to the problem of funding Institutions.10 So, sustainability within that India has not witnessed a rights and financial resources was a second this sector is a major threat to growth revolution to the extent of Canada, the difficulty emphasised by a number of in this field. US and Britain. In the case of the latter, our respondents – that of recruiting for example, a rights revolution came and retaining quality staff, particularly 10 Refer Chapter 9 of the Constitution (State Institutions Supporting Constitutional Democracy): about in spite of Britain appearing to staff who understood that public The Auditor-General, the Commission for Gender have an inhospitable environment for Equality, the Commission for the Promotion and interest litigation was not like ordinary Protection of the Rights of Cultural, Religious and such a revolution to occur. lawyering, and who therefore had Linguistic Communities, the Independent Electoral Commission, the and the South 9 Epp op.cit., page 205. more than simply legal skills. This was African Human Rights Commission.

12 Public interest litigation and social change in South Africa: Strategies, tactics and lessons Changing trends in the South African public interest litigation environment Chapter 1

Community advice offices and paralegals play a crucial role in assisting poor and marginalised communities to access rights and services. Photograph: National Alliance for the Development of Community Advice Offices ©

In the bulk of public interest cases, departments to settle matters at the ■ the organisations concerned choose last moment, thereby avoiding legal to brief outside counsel from the Bar precedents being set that would inform to argue the case and, most often, also future public interest litigation and The period from to draft or settle the court papers. This allow proper jurisprudence to be built. is unsurprising given that in the vast This was of particular concern to some 2010 onwards – majority of High Court cases in South respondents who felt that it could Africa all types of litigants use outside the beginning not be taken for granted that South counsel from the Bar to represent them. Africa would necessarily have judges Moreover, this can often be an effective of a backlash? sympathetic to public interest litigation way of ensuring that additional skills As mentioned, many of the challenges positions beyond the next few years. As and experience are available to public highlighted above in relation to the one respondent explained: interest organisations for purposes of 2000-2010 period continue to apply There is a risk that the courts might, specific cases. However, we emphasise at present. However, notwithstanding in the future, become less open to that this is not an adequate substitute the continuity of these challenges, we creative remedies, and might cut for having experienced, skilled staff consider that public interest litigation back on judgments that take strong located within the organisations in South Africa has entered a fourth constitutional rights positions that fly concerned. This remains critically period, beginning more or less at the in the face of public opinion. I therefore important if public interest litigation is end of the last decade. see the next decade as a crucial one in to achieve its full effect. laying down precedents that will leave One feature of this period has been a public interest ‘footprint’ in South the rapid rise of litigation around the Attitude of African jurisprudence. right to basic education. This is plainly government a welcome development and is covered separately in Chapter 2. Some of our respondents also raised another obstacle to effective public Yet, our respondents also pointed to interest litigation – the attitude of several other emerging factors that government. have started to make things more difficult for progressive public interest In addition to difficulties in getting litigators, and which indicate that the government to comply with court public interest litigation successes orders, respondents highlighted the since 1994 have begun to produce a apparent strategy of certain government counter-mobilisation by opponents of

Public interest litigation and social change in South Africa: Strategies, tactics and lessons 13 Chapter 1 Changing trends in the South African public interest litigation environment

One feature of the period from 2010 onwards has been the rapid rise of litigation around the right to basic education. However, several emerging factors have also started to make things more difficult for progressive public interest litigators.

progressive social change. the National Association for the In the mid-1970s, a host of conservative Advancement of Colored People public interest litigation firms were This is not unique to South Africa. (NAACP) and its Legal Defense Fund formed, many of them funded directly Other constitutional democracies that (LDF). In the 1930s, the NAACP or indirectly by corporations and have experienced thriving phases of started planning to use litigation to attack seeking to advance the agendas of progressive public interest litigation have segregation – a plan that culminated in various powerful actors.15 found that a backlash or conservative the landmark decision striking down resistance often follows an initial period In the 1980s and 1990s, conservative racial segregation in Brown v Board of of successful public interest litigation. litigants took to the courts to oppose Education11 some 20 years later.12 affirmative action, promote school In particular, other countries have In the US, from the middle of the 1960s, choice, the sanctity of private experienced: numerous organisations were formed property, fight government regulation, • the adoption and deployment of the to bring litigation on behalf of left-wing oppose gay marriage and legalised techniques used in progressive public or liberal causes. Cases were brought on abortion, include creationism in school interest litigation by interest groups issues including prison reform, foster curricula, and promote and defend the seeking to prevent or undo social care, special education programmes, erection of religious symbols on public change; and access for the disabled, public housing, property. As Tamanaha points out: • a backlash or resistance on the part air, water and noise pollution, and Conservative cause lawyers of government to the social change 13 more. unabashedly borrowed litigation sought through progressive public strategies pioneered by the LDF, interest litigation. The tactics used by these litigants for social change did not go unnoticed by taking care to find appealing clients, Before we turn to recent developments those on the other side of the political and searching around the country for on this score in the South African spectrum: opportunities to bring test cases that context, it is helpful to contextualise are likely to prevail.16 Inevitably, the successes of cause these issues by considering the manner litigation by the left prompted the The rise of conservative public interest in which they have played out in other emergence of conservative interest litigation was given impetus by an jurisdictions. In this regard, perhaps the group litigation.14 increasingly right-wing judiciary clearest example (and thus our focus) is the US in the period after the ‘golden age’ 15 For example, the Washington Legal Foundation 11 of progressive public interest litigation, Oliver Brown, et al. v Board of Education of uses litigation to pursue causes such as reducing Topeka, et al. 347 U.S. 483 (1954). government regulation and opposition to price namely the civil rights era. 12 See Epp op.cit., page 39, and Brian Z Tamanaha, controls. It is substantially funded by as a Means to an End: Threat to the Rule of interests, including foundations set up by the The birth of public interest litigation Law, Cambridge University Press: 2006, page 158. major pharmaceutical firms. See Tamanaha, in the US is widely attributed to 13 Tamanaha op.cit., page 160. op.cit., page 171. 14 Tamanaha op.cit., page 161. 16 Tamanaha op.cit., page 162.

14 Public interest litigation and social change in South Africa: Strategies, tactics and lessons Changing trends in the South African public interest litigation environment Chapter 1

Artwork from ‘Art for Activism’ workshops organised by Gay and Lesbian Memory in Action in 2011 and 2012. Photograph: Gay and Lesbian Memory in Action ©

resulting from the appointments made marriage in 35 states,18 and the passing or against you, with equal facility. by former Presidents Ronald Reagan, of federal legislation exempting states The tide has turned against liberals so George HW Bush and George W Bush from the requirements of the full faith much that a once-favored tool – cause (no doubt at least partly in response to and credit clause insofar as it pertained litigation – has come to look like a successful progressive public interest to recognising same-sex marriages fearsome weapon for the other side.22 litigation) which meant that courts concluded in other states. The decisions Several of our respondents indicated became friendlier to conservative served as a rallying call for conservative that South Africa has begun to groups litigating in the public interest. activists against gay marriage. experience a similar phenomenon. In several areas, legislation undoing A similar counter-mobilisation followed We address the recent emergence of previous advances was also passed. the 2003 Goodridge decision in conservative public interest litigation The issue of same-sex marriage Massachusetts.19 However, this counter- and of government resistance to illustrates the above. After several mobilisation appears ultimately to have progressive public interest litigation in failed attempts in the 1970s, courts been unsuccessful, as demonstrated turn. in Hawaii, Vermont and Alaska ruled by the 2013 decision of the US in the 1990s that same-sex couples Supreme Court in US v Windsor20 and The use of public had a constitutional interest in being subsequent state cases that have used able to marry. These were important this decision to strike down bans on interest litigation courtroom victories, but they prompted same-sex marriage.21 by organisations an immediate counter-mobilisation In summary, the golden age of by opponents of same-sex marriage opposed to social progressive public interest litigation in those states but also in other states in the US was swiftly followed by a change in the US, concerned that they might counter-mobilisation on the part of An increasing number of South have to recognise same-sex marriages conservative forces: African organisations have begun to concluded in other states.17 The Liberals have painfully learned that use the tools and methods of public reaction comprised amendments to instruments can be used in your favor, interest litigation in order to advance state Constitutions to prohibit same- a conservative agenda. We will briefly sex marriage, the passage of ‘defence 18 Andersen op.cit., page 218. discuss four examples. of marriage’ acts prohibiting same-sex 19 Andersen op.cit., page 235. 20 United States, Petitioner v Edith Schlain Windsor, in Her Capacity as Executor of the Estate of Thea 17 Ellen Ann Andersen, Out of the Closets and Into Clara Spyer, et al. 570 U.S. 12 (2013). the Courts: Legal Opportunity Structure and Gay 21 David S Cohen & Dahlia Lithwick, It’s Over: Rights Litigation, University of Michigan Press: Gay Marriage Can’t Lose in the Courts, Slate 2005, page 180. Magazine: 14 February 2014. 22 Tamanaha op.cit., page 163.

Public interest litigation and social change in South Africa: Strategies, tactics and lessons 15 Chapter 1 Changing trends in the South African public interest litigation environment

Other constitutional democracies that have experienced thriving phases of progressive public interest litigation have found that a backlash or conservative resistance often follows an initial period of successful public interest litigation.

The affirmative action of the South African Police Service because the SAPS had not given due cases (SAPS). On a second occasion, Barnard consideration to her personal work The trade union Solidarity boasts a again received the highest score, and history and circumstances. The Court membership of more than 150 000 this time the Divisional Commissioner ordered the SAPS to promote Barnard (mostly white) workers. It has a legal recommended her appointment. The with retrospective effect. National Commissioner, however, department with more than 30 staff The matter was then appealed by the refused to appoint her and withdrew members, including attorneys and SAPS to the Labour Appeal Court. the post. , and provides a range of legal On 2 November 2012, the Labour services to its members.23 Solidarity has Solidarity challenged the decision on Appeal Court overturned the findings fought a number of affirmative action behalf of Barnard in the Labour Court. of the Labour Court. It held that the cases in court as part of a deliberate The Labour Court found that it was appointment of Barnard would have and concerted campaign to limit the inappropriate to apply the numerical aggravated the over-representivity of implementation of affirmative action goals in the SAPS’ employment equity white employees on level nine, and that legislation by public sector employers. plan rigidly, and that: it would have been a step backwards and Perhaps the most high-profile of […] the need for representivity must a direct violation of a clear constitutional these cases is that of Renate Barnard, be weighed up against the affected objective. a police officer who was denied individual’s rights to equality and a fair Barnard was granted leave to appeal 24 promotion on two occasions solely decision made. and the Supreme Court of Appeal because she is white. She applied The Labour Court went on to find that overturned the decision of the Labour 25 and was interviewed for the post of recognition had to be given to the rights Appeal Court. The Supreme Court superintendent, obtaining a score of the affected person to and of Appeal found that the SAPS had of 86.67% from the interviewing equality in making affirmative action not discharged the onus of showing committee and a recommendation that decisions. The Court found that Barnard that its discrimination on the basis she be appointed. On receiving the had been discriminated against and that of race was fair. The Court held that panel’s advice, however, the Divisional the SAPS bore an onus to demonstrate the SAPS’ employment equity plan Commissioner recommended that the that the discrimination was fair. The should not be mechanically and rigidly post remain unfilled because appointing failure to appoint Barnard was found applied and that it should not constitute a white candidate would aggravate to be an irrational implementation of an absolute bar to the appointment the problem of a lack of demographic the SAPS’ employment equity plan of white candidates. The matter was representivity in the relevant section then appealed and has been heard 24 Solidarity obo Barnard & Another v South African Police Services [2010] ZALC 10; 2010 (10) BCLR 25 Solidarity obo Barnard v South African Police 23 www.solidaritysa.co.za. 1094 (LC), paragraph 25.1. Service [2013] ZASCA 177; 2014 (2) SA 1 (SCA).

16 Public interest litigation and social change in South Africa: Strategies, tactics and lessons Changing trends in the South African public interest litigation environment Chapter 1

Renate Barnard at Labour Court proceedings. Photograph: Solidarity Media ©

by the Constitutional Court. At the a question of] whether the ideology AfriForum approached the Equality time of writing, the judgment of the of absolute representivity should be Court and complained that Julius Constitutional Court had not yet been implemented at the expense of service Malema, the then leader of the African handed down. delivery.28 National Congress (ANC) Youth League, had sung or chanted certain Solidarity has at least another nine cases It has said that affirmative action in 29 words at various public functions, pending against organs of state in similar South Africa is “sick to the core” and translated as meaning ‘shoot the Boer/ circumstances. The Barnard case is part called for a national summit to discuss farmer’ or ‘shoot the Boers/farmers, of a concerted effort by the union to get the issue, failing which a constitutional they are rapists/robbers’. AfriForum the state to implement the Employment challenge would be considered. sought an order that these utterances Equity Act 55 of 1998 in a particular constituted hate speech and an interdict way.26 Solidarity’s General Secretary The AfriForum v Julius preventing Malema from inciting Dirk Hermann says: Malema hate speech case hostility towards any ethnic group. It If they appeal, it opens up a path for AfriForum is a civil society initiative of alleged that the words could reasonably us to a constitutional judgement as Solidarity. It is a non-profit advocacy be construed as demonstrating a clear well . We have a battle to bring the body, and its stated purpose is to [...] intention to be hurtful or harmful to public service back to the parameters of counter the withdrawal of minority particular ethnic groups, as inciting and the Employment Equity Act. We believe racial groups from South African as promoting and propagating hatred. that transformation must be within the society. It aims to give minorities a voice parameters of the Constitution … [i]t’s a […] in a society where minorities are The Transvaal Agricultural Union step to the future … it’s a protection of increasingly being ignored.30 of South Africa (TAU-SA), whose the [South African] Constitution.27 primary objective is the protection of The organisation says that it campaigns: the property rights and safety of South Though the union’s other cases are […] for the protection and African farmers, was granted leave to tailored to their own facts, it is clear consolidation of civil rights, as intervene as a complainant. The ANC that Solidarity views them as part of an contained in the South African intervened as a respondent. attempt to determine: Constitution and international During the course of the trial, there […] whether affirmative action in South conventions.31 Africa is reasonable or not [and as were discussions regarding a possible settlement. AfriForum withdrew the 28 26 See for example: Affirmative action ‘on its head’: Affirmative action ‘on its head’: Solidarity op.cit. 29 matter as against the ANC, but wished Solidarity, Times Live: 23 March 2011; Solidarity Solidarity vows to fight affirmative action in vs affirmative action – a war of attrition, Daily Concourt, Independent Online, Business Report: to proceed against Malema personally Maverick: 19 November 2010. 18 March 2011. 30 – possibly in an attempt to isolate him 27 Affirmative action ruling handed down, Mail & www..co.za. Guardian: 27 February 2010. 31 Ibid. politically.

Public interest litigation and social change in South Africa: Strategies, tactics and lessons 17 Chapter 1 Changing trends in the South African public interest litigation environment

That this was part of AfriForum and considerations underlying the singing On the other hand, the litigation TAU-SA’s litigation strategy appeared to of the song and its meaning and history. increased AfriForum’s prominence be confirmed by the cross-examination on the national political stage. During Crowds gathered outside the Equality of Malema, which was at times quite the 18 months in which the matter Court, and members of the ANC bizarre. Malema was cross-examined on received major press coverage, the and its Youth League gave speeches numerous strange and irrelevant issues, size of AfriForum’s donor base tripled. tapping into familiar anti-apartheid including his attitude to communism AfriForum also viewed the litigation narratives of political resistance in and Leninism, the nationalisation of as a way to put the issue on the agenda the face of unjust legal persecution. the mining industry and banks, land and to provide some leverage for Even after judgment was handed redistribution and compensation, the government to take their complaints down against Malema, this did not likelihood of Africa producing child seriously. appear to weaken him politically. On soldiers, and the propensity of black the contrary, the judgment provoked On 12 September 2011, the Equality people to become excitable and sing renewed criticism from members of the Court handed down judgment.34 The songs at political gatherings. The tone ANC and government that the courts extent of its order was extremely wide- of the cross-examination also seemed are undemocratic, untransformed and ranging. The Court found that the song to corroborate the supposition of a dominated by a racist minority. constituted hate speech and gave an political isolation strategy on the part of order that appears to prohibit the use of AfriForum and TAU-SA. It frequently AfriForum’s decision to institute this the words and the singing of the song descended into petty squabbles – for litigation and the manner in which it by any person in any circumstances example, an interchange between was conducted was in many ways a whatsoever. Malema and the ANC were Malema and counsel for AfriForum strategic miscalculation. Rather than granted leave to appeal. about which of them was ‘playing to isolating or weakening Malema, it the gallery’, concluded by Malema’s ensured his continued prominence Shortly before the matter was due masterful reference to counsel’s in the media and allowed him to cast to proceed in the Supreme Court response to the application to open the himself in the mode of successor of Appeal, the parties reached a hearing for television broadcast: to struggle stalwarts such as former settlement. While the full rationale I never wanted the gallery in the first President . The for the settlement is beyond the scope place. It is you who said to My Lord presence of prominent ANC activist of this publication, it seems that the you want cameras to run before you Winnie Madikizela-Mandela by his parties were at least partly influenced give your speech. I never said that.32 side for the duration of the trial was by the fact that the Supreme Court the most obvious sign that this was the of Appeal itself appeared intent on In sum, AfriForum and TAU-SA’s message the trial sent. Addressing a avoiding the case. The judges concerned strategy appeared to be to embarrass crowd of supporters after the hearing, not only wrote to the parties asking Malema, rather than to ventilate the she said: expressly about settlement, but issues arising from the cause of action. We thank AfriForum for bringing us some also complained informally to In the view of many of our respondents, here to baptise our president, the colleagues or members of the Bar however, this strategy backfired future president of South Africa.33 about the absence of such a settlement. spectacularly. Instead of undermining This, in our experience, is effectively Malema politically, the trial gave him The litigation also gave the song in unprecedented. a platform and allowed him to portray question a prominence it had never had himself as the target of a racial vendetta. before and provided an incentive for its The ultimate settlement, however, was Malema was articulate and persuasive rebellious singing at political gatherings an uneasy one and did not definitively as a witness and able to give coherent as a way of thumbing one’s nose at resolve the issues concerned. On voice to the historical and political reactionaries, and indeed at the courts. the one hand, the ANC and Malema

32 Transcript of Proceedings in AfriForum v Malema, 33 Cross-examination of ‘future president of SA’ 34 Afri-Forum & Another v Malema & Others [2011] 20 April 2011, page 1022, lines 9-12. ends, Mail & Guardian: 21 April 2011. ZAEQC 2; 2011 (6) SA 240 (EqC).

18 Public interest litigation and social change in South Africa: Strategies, tactics and lessons Changing trends in the South African public interest litigation environment Chapter 1

Winnie Madikizela-Mandela (left) and at ‘hate speech’ court proceedings against Malema in April 2011. Photograph: The Biggerpicture & ©

conceded that certain struggle […] instructed their attorneys […] to provision for equitable access to songs may be hurtful to minority find a suitable test case and to obtain and sustainable development of the communities and agreed to ‘encourage’ cession of the relevant right-holder’s country’s mineral resources. It was supporters to act with restraint to right to compensation.37 designed in part to address the fact that avoid such hurt. On the other hand, Agri SA obtained cession of the right the holders of old-order mineral rights AfriForum conceded that it was crucial to compensation for the purported were almost all white. To address this to recognise and respect the rights of expropriation of certain coal rights from unjust distribution of mineral wealth communities to celebrate and respect a company and instituted an action and ensure that such rights do not lie their cultural heritage. Nevertheless, claiming compensation from the state. dormant, the MPRDA made the state despite the uneasy nature of the the custodian of all mineral rights in settlement, the issue has thus far not Before the passing of the MPRDA, the country. It gave the Minister of resurfaced.35 the owner of land was also in principle Minerals and Energy the power to the owner of the minerals beneath grant prospecting and mining rights The Agri South Africa case the surface of the land. In terms of and fundamentally altered the previous Agri South Africa (Agri SA) is an and legislation, however, regime of private law mineral rights. agricultural union that promotes the it was possible to separate mineral rights from ownership of the land. The High Court found that the interests of commercial farmers in MPRDA radically changed the nature South Africa. It approached the courts Immediately before the MPRDA came into force, holders of old-order mineral of old-order rights and that it did away for an order that government’s efforts with some of those rights entirely.39 to create a new regime of mineral rights rights had numerous common-law rights, including the right to search It followed that the MPRDA had through the Mineral and Petroleum expropriated the mineral rights held by Resources Development Act 28 of 2002 for minerals, to sever such minerals if found, and the right of ownership Agri SA. Despite the fact that the Act (MPRDA) constituted an expropriation did not grant the rights taken from Agri of property. If so, government would of those minerals. These rights were transferable and could be sold or used SA to the state, it did extinguish those potentially be required to pay enormous rights and gave the Minister the power sums in compensation to holders of old- as security. The holder was under no 38 to grant rights with substantially the 36 obligation to exploit the minerals. order mineral rights. Agri SA: same content. The Court found that it 35 Malema was subsequently expelled from the The MPRDA was enacted to make therefore constituted an expropriation, ANC and formed his own opposition party, the Economic Freedom Fighters, which won a number and that the state was required to pay of seats in Parliament in the May 2014 elections. 37 Agri South Africa v Minister of Minerals and Agri SA R750 000 in compensation. 36 Witnesses for the state testified that the total Energy [2011] ZAGPPHC 62; 2012 (1) SA 171 amount of compensation could be as much as (GNP), paragraph 15. R90 billion, but the High Court dismissed this 38 Agri South Africa v Minister of Minerals and 39 Agri South Africa v Minister of Minerals and evidence as inaccurate. Energy [2011] ZAGPPHC 62 op.cit., paragraph 29. Energy [2011] ZAGPPHC 62 op.cit.

Public interest litigation and social change in South Africa: Strategies, tactics and lessons 19 Chapter 1 Changing trends in the South African public interest litigation environment

There is nothing necessarily progressive or egalitarian inherent in a culture of rights. Courts and the language of rights can be even more effective at preventing transformation than assisting it.

This decision was then held by the Amicus interventions Both JASA interventions were Supreme Court of Appeal to be Progressive public interest litigation ultimately unsuccessful in that the 40 wrongly decided. In April 2013, the litigants often have to contend with Constitutional Court upheld both Constitutional Court agreed with interventions by conservative interest constitutional challenges. However, in the Supreme Court of Appeal that groups. For example, the Justice the Teddy Bear Clinic case in particular, the High Court judgment had been Alliance of South Africa (JASA) is JASA’s intervention caused delays and 41 incorrect. The Constitutional Court a frequent participant in litigation. required the organisations challenging held that the MPRDA did not result JASA is a coalition of corporations, the law to commit significant additional in an expropriation (as opposed to a individuals and churches time and resources to combatting the deprivation) of property. In doing so, argument and evidence adduced by […] fighting for justice and the highest the Constitutional Court stressed the JASA. moral standards in South African objects of the MPRDA to facilitate society.42 equitable access to the mining industry, Concluding observations promote sustainable development of It intervened in two recent matters in It is clear that conservative South Africa’s mineral and petroleum an effort to aid government to defeat organisations in South Africa resources and advance the eradication constitutional challenges by progressive increasingly view litigation as a viable of all forms of discriminatory practices organisations. means for advancing their political in the mining sector. It also stressed The first was the Print Media case,43 interests. AfriForum expressly styles that Section 25 (the property clause) concerning a constitutional challenge itself as a civil rights movement, in the Constitution should not be to a statute giving extraordinarily wide dedicated to protecting the interests of interpreted in a way that would threaten censorship powers to a statutory board what it sees as a marginalised minority. the possibility of maintaining a sensitive in respect of magazines. The second was It has adopted the rhetoric and balance between existing private the Teddy Bear Clinic case,44 concerning techniques of public interest litigation property rights and the pursuit of a constitutional challenge to a statute and constitutional rights to pursue transformation, which the Section was criminalising consensual sexual behaviour this agenda. AfriForum explicitly drew designed to facilitate. between children under the age of 16. inspiration from the litigation strategy of the TAC (refer Chapter 2).

42 www.justicealliance.co.za. This development parallels what 43 Print Media South Africa & Another v Minister of Home Affairs & Another [2012] ZACC 22; 2012 occurred in the US, where: 40 Minister of Minerals and Energy v Agri South (6) SA 443 (CC). […] the right has taken its cues from Africa [2012] ZASCA 93; 2012 (5) SA 1 (SCA). 44 Teddy Bear Clinic for Abused Children & 41 Agri South Africa v Minister of Minerals and Another v Minister of Justice and Constitutional the left – constructing its own cultures Energy [2013] ZACC 9; 2013 (4) SA 1 (CC). Development & Another [2013] ZACC 35; 2014 (2) SA 168 (CC). of victimization and resistance and

20 Public interest litigation and social change in South Africa: Strategies, tactics and lessons Changing trends in the South African public interest litigation environment Chapter 1

deploying them both legally and aware of this if they are to respond such rulings. politically.45 appropriately. • Progressive organisations in these kinds of cases may find There is nothing necessarily progressive In this regard, it is notable that themselves in a more defensive or egalitarian inherent in a culture of conservative organisations did not posture than they are accustomed rights. The US experience demonstrates succeed in the Agri SA, Print Media to. They may be required to defend that courts and the language of rights or Teddy Bear Clinic cases. However, legislation and policy in some can be even more effective at preventing this was only because the progressive cases. Particularly in light of the fact transformation than assisting it. The organisations involved in each case took that the state often fails to defend formalism of South Africa’s legal the issue very seriously and actively legislation sufficiently by adducing tradition and the incremental common sought to counter the approach of the proper evidence, it will sometimes law heritage of judges mean that courts conservative organisations. Thus, in be desirable for progressive are often also quite conservative. As the Agri SA case, CALS intervened as organisations to lead evidence as Scheingold points out: an amicus curiae in all three courts in amici. […] rights have historically had more support of the state. The other two cases • Strategically, the above may help to do with the protection of property saw the intervention of progressive ease tensions with government and privilege than their redistribution. organisations as amici curiae to support because it means that the state Accordingly it should come as no the progressive organisations already and progressive civil society surprise that rights can readily be involved as the main litigants. organisations will sometimes line inflected with non-egalitarian meaning In our view, therefore, the following up together against conservative – in both the legal and political factors emerge from the above 46 litigants. arenas. discussion for consideration by We do not cavil at the right of progressive public interest litigants: Resistance by conservative groups to exercise their • P rogressive organisations must be rights of access to courts, or to enter alert to the kinds of litigation being government to cases as friends of the court. We simply brought by conservative groups and progressive public note that a new front of public interest must be ready to intervene as amici interest litigation litigation is being opened and that where appropriate. Where possible, progressive organisations need to be it is essential that progressive Recent public statements by senior 45 Stuart A Scheingold, The Politics of Rights: organisations attempt to dissuade government officials indicate that Lawyers, public policy, and political change, 2nd courts from making regressive some members of the executive Edition, University of Michigan Press: 2004, page xxxiii. rulings, or moderate the impact of perceive public interest litigation as 46 Ibid.

Public interest litigation and social change in South Africa: Strategies, tactics and lessons 21 Chapter 1 Changing trends in the South African public interest litigation environment

Recent public statements by senior government officials indicate that some members of the executive perceive public interest litigation as an obstacle to the legitimate aims of elected officials.

an obstacle to the legitimate aims the ANC. For example, the Office of In sum, there appears to be an increased of elected officials. For example, the ANC Chief Whip said the following degree of hostility on the part of several senior ANC politicians have in a statement about the resignation government towards public interest blamed unfavourable judgments on of Chief Justice , after litigation and progressive public interest ‘untransformed’ courts, and accused the a successful challenge by civil society organisations. This is a very serious judiciary of playing an oppositional role groups to a provision allowing the concern. Public interest litigation is only in South African politics.47 President to extend the tenure of the effective when court orders obtained Chief Justice: are properly implemented, and in most In April 2014, while sitting on the cases this requires implementation by Judicial Service Commission (JSC), It is, in our view, questionable whether government respondents. The increased a senior member of government thus the decision by the parties responsible degree of hostility by government commented that she found it : to mount a [Constitutional Court] challenge was taken in faith. No towards public interest litigation means […] a bit disturbing [that candidates similar legal challenges were taken an increased risk of non-compliance wanted to be appointed judges] while when the same process was followed or, potentially even worse, ‘malicious espousing very fervent human rights previously regarding the extension of compliance’ – that is, deliberately activist tendencies.48 the terms of office for former Justices complying with court orders to the Another senior member of government and .50 minimum extent possible and in a and of the JSC has argued that civil manner that prevents the true purpose of In June 2013, when faced with 52 society and opposition parties have a court order being achieved. significant pressure from protests used litigation to constrain the exercise organised by the progressive For public interest litigation to be as of power by Parliament and the organisation Equal Education (EE), the effective as possible, the attitude of executive.49 Minister of Basic Education responded government should thus be taken into These public statements have been with an extraordinary statement: account in the conception and execution accompanied by public attacks on the […] to suddenly see a group of white of cases, and public interest litigants may bona fides of public interest litigants by adults organizing black African wish to consider the following:

47 See for example: Constitutional Court used as children with half-truths can only be • There may be non-legal reasons opposition to ANC govt: Mantashe, Times Live: opportunistic, patronizing and simply to run or decide not to run a case. 18 August 2011; Malema takes aim at judiciary, Independent Online: 14 September 2011; dishonest to say the least.51 Public interest litigants have limited What really said – ANC, political capital, and difficult Politicsweb: 2 October 2011. 50 ANC Chief Whip’s office on Justice Ngcobo’s 48 Few Magistrates make the grade with JSC, decision, www.anc.org.za: 28 July 2011. Business Day: 10 April 2014. 51 Equal Education is disingenuous: Minister 52 Comment by Mark Heywood at the 4th Public 49 THE BIG READ: ANC’s fatal concessions, Times Motshekga, Statement issued by the Ministry of Interest Law Gathering, held at the Wits School of Live: 1 September 2009. Basic Education: 18 June 2013. Law, 23 July 2014.

22 Public interest litigation and social change in South Africa: Strategies, tactics and lessons Changing trends in the South African public interest litigation environment Chapter 1

Indwe Advice Office in the . Photograph: National Alliance for the Development of Community Advice Offices ©

decisions may need to be made chapter is the importance of realising engagement with government matters, about which cases that capital should that South Africa cannot avoid a dispute as does the language used in affidavits be expended on. over the meaning of its Constitution. and arguments presented to the courts. • Given the increasing pressure put on This is a public fight for legitimacy. And more than ever, we must realise the courts by government, it is always that litigation is just one part of a In this debate, progressive forces have desirable to give the court as much broader social change strategy that enjoyed the ascendancy since the advent political cover as possible in the needs to be allied with broad-based of democracy. We have a progressive conceptualisation and presentation political activism. Constitution, which has been guarded of a case. This is an additional by a largely progressive Constitutional The manner of doing so has been pragmatic consideration in favour Court, the legitimacy of which has not demonstrated particularly well by of seeking narrow rather than broad yet been seriously questioned. EE and the LRC in their litigation relief, and proceeding incrementally regarding binding minimum norms where possible. Yet, to many of our respondents it and standards for school infrastructure. • Where possible, it is preferable appears that the pendulum has begun We deal with this litigation in much to attempt proactively to engage to swing in the other direction. In more detail in Chapter 2. For present government outside court – for addition to trying to win their cases, purposes, we emphasise that EE and example, through negotiations and progressive public interest litigators now the LRC were at pains to ensure that input into legislative processes. need to litigate with a view to winning the case was not only fought in court • In crafting the relief sought, account hearts and minds. They cannot allow but also covered extensively and very must be taken of the likely response public interest litigation to be portrayed positively in traditional media and by the relevant government as a narrow, elitist domain of power, on social media. In particular, the respondent, and of how the relief the primary purpose of which is to video Build the Future made by EE is can anticipate and prevent non- ‘subvert democracy’. It is important that a powerful and compelling example compliance or malicious compliance. progressive public interest litigation be of the approach that can be taken This is dealt with in greater detail in widely understood for what it is, namely and is essential viewing for anyone the case study on litigation on the a mechanism for holding power to considering such a campaign.53 Indeed, right to basic education in Chapter 2. account in the interests of the powerless. the Minister of Basic Educations’s Even more than before, progressive somewhat extraordinary statement Conclusion organisations need to realise that 53 Available on YouTube. Other EE videos that merit perceptions matter. The racial viewing are: #FixOurSchools: Norms & Standards The overriding lesson of the new composition of organisations and for School Infrastructure Now! (also on YouTube); developments in the arena of public and Equal Education’s Campaign to Build the their attitudes matter. The tone of Future (available at www.atlanticphilanthropies. interest litigation presented in this org).

Public interest litigation and social change in South Africa: Strategies, tactics and lessons 23 Chapter 1 Changing trends in the South African public interest litigation environment

Residents from the Khutsong on ’s West Rand demonstrate outside the Constitutional Court in September 2007 against government’s re-zoning of their community into the much poorer North West province. Photograph: Antonio Muchave ©

referred to above can likely best be of the countries in this study, the This implies that it is not enough for understood as an attempt to avoid the judicial rights agenda has grown in a progressive groups only to succeed in considerable build-up of pressure on sustained way only to the extent that litigation. They also have to become the Minister that the campaign had it has been supported by continued, better at education, at public relations produced. organized efforts in civil society. and at making their arguments And those efforts, centred in rights- accessible and compelling. In closing, the sustainability of what advocacy organizations, government- Charles Epp has called a ‘rights provided legal aid, and the racial revolution’ depends on securing and sexual diversification of the legal legitimacy beyond an elite group of profession, have been strong only to legal practitioners: the extent that they have reflected The continuation of nascent rights either collective support or broad revolutions beyond their initial undercurrents of democratization.54 phases has also depended on broad

support outside the judiciary. In each 54 Epp op.cit., pages 199-200.

24 Public interest litigation and social change in South Africa: Strategies, tactics and lessons Chapter 2: Case studies of South African public interest litigation

Public interest litigation and social change in South Africa: Strategies, tactics and lessons 25 Case studies of South African public interest litigation

We have considered a very large number of examples of South African areas – water, electricity and sanitation. public interest litigation in reaching our conclusions set out in the Moreover, each of these cases resulted following chapters. We refer to a number of these cases in due course. in a decision by the Constitutional Court handed down within a short Nevertheless, the conclusions that follow are particularly well period – October to November 2009. illustrated by seven specific case studies. We have deliberately chosen They are: case studies that cover public interest litigation in seven different • the Mazibuko case on access to substantive areas: gay and lesbian rights, housing, health care, water, water; electricity, sanitation and education. • the Joseph case on access to electricity; and he first three of these case • the Nokotyana case on sanitation. studies were dealt with in the As we explain below, despite being T2008 report, though we have decided by a single court within a very supplemented some of the observations short period of time, these cases had made there. The case studies concern sharply divergent outcomes. A study three of the most significant pieces of of their comparative approaches and public interest litigation during the results is thus all the more valuable. period 1994-2008. They are: Lastly, our seventh case study • the National Coalition for Gay and concerns litigation on the right to Lesbian Equality (NCGLE) case on basic education. At the time of the the criminalisation of sodomy and 2008 report, there had been very subsequent litigation concerning little noteworthy litigation in South gay and lesbian rights; Africa regarding this right, despite • the Grootboom case on the right to the significant inadequacies regarding housing; and the provision of basic education that • the Treatment Action Campaign have existed for many years. Since (TAC) case on prevention of then, however, there have been a mother-to-child transmission of large number of public interest basic HIV. education cases at High Court level. The next three case studies that we have Four of the key pieces of litigation in chosen involved litigation on socio- this area are considered collectively in economic rights in, as yet, untested our seventh case study.

26 Public interest litigation and social change in South Africa: Strategies, tactics and lessons Changing trends in the South African public interest litigation environment Chapter 2

Participant in Pride celebrations, Johannesburg 2007. Photograph: Nadine Hutton ©

■ Background and virtually all other Constitutions, expressly outlaws unfair discrimination overview on the grounds of sexual orientation. The National Initially, the litigation was undertaken However, in truth, the successes Coalition by the NCGLE, an umbrella body that attained in this area and the now included among its members more seeming inevitability of the cases for Gay and than 70 organisations and associations can directly be attributed to the representing lesbian, gay, bisexual and extraordinarily careful strategy adopted Lesbian Equality transgender (LGBT) people in South by gay and lesbian groups in South case on the Africa. Later, litigation was undertaken Africa. by gay and lesbian individuals, as well The starting point, of course, was criminalisation as by successor organisations to the persuading the drafters of the Coalition such as the Lesbian and Gay Constitution to include a constitutional of sodomy and Equality Project (LGEP). prohibition on unfair discrimination subsequent The scale of this litigation was on grounds of sexual orientation. Such unparalleled. In the period 1994-2007, inclusion was by no means inevitable, litigation no fewer than seven separate matters given the lack of equivalent protection on gay and lesbian issues reached the in most other jurisdictions and the concerning gay Constitutional Court on issues ranging variety of issues vying for attention from adoption to same-sex marriage. during the constitutional drafting and lesbian Notably, not only did every case result process. rights in victory for those seeking to enforce The gay and lesbian rights cases make gay and lesbian rights, but all seven clear that the successes of litigation Perhaps the most ambitious and judgments were also unanimous on the in this sector depended substantially extensive public interest litigation merits. The single dissenting judgment on the mobilisation and advocacy programme embarked on by a issued related to what constituted an strategies adopted by gays and particular interest group in South Africa appropriate remedy – not to the merits. from the outset – that is, at the stage post-1994 is that undertaken by gay and With the benefit of hindsight, these of constitutional development. This lesbian groups. results may appear obvious and included political pressure brought to predictable given that Section 9(3) bear by ANC members belonging to of South Africa’s Constitution, unlike the LGBT community or sympathetic to the gay and lesbian cause, and

Public interest litigation and social change in South Africa: Strategies, tactics and lessons 27 Chapter 2 Changing trends in the South African public interest litigation environment

Perhaps the most ambitious and extensive public interest litigation programme embarked on by a particular interest group in South Africa post-1994 is that undertaken by gay and lesbian groups.

creating public awareness as well as a issues was not accidental. discriminated against. It was for these substantial academic discourse around reasons that the NCGLE chose this as The criminal law prohibiting sodomy gay and lesbian issues. These strategies its first case. was regarded by many as a great affront meant that when litigation began, those to the dignity of gays and lesbians and While the choice of the issue was involved did not need to rely on skilful was plainly a vestige of apartheid-era plainly correct, and while the prospects legal arguments or litigation strategies attitudes towards them. It was thus a of success were very good, one must to persuade the Constitutional Court case that would manifestly provoke not overlook the fact that a series of to locate such rights under the rubric massive support not only in the gay and strategic decisions had to be made of privacy, liberty or dignity, as in other lesbian community, but also among regarding how to structure the case. jurisdictions. Rather, the rights were set liberal judges and liberal members of out in express terms in the Constitution Firstly, the NCGLE had to decide the public. as a result of the political victory whether to challenge the law in a that had been achieved during the Moreover, there were clear proactive and abstract fashion, as constitutional development process. precedents in foreign jurisdictions opposed to in a defensive fashion when for court decisions striking down someone was charged with sodomy. the criminalisation of sodomy – for The sodomy case In general, a proactive and abstract example, Dudgeon v United Kingdom56 constitutional challenge can raise Following this political victory, the first and Norris v Republic of Ireland.57 significant complications. Indeed, public interest case on gay and lesbian Thus, while it was clear that the case still the Constitutional Court recently (in issues was brought by the NCGLE in presented its difficulties – compounded Savoi v National Director of Public 1998. This was the case of National by the fact that the Minister of Justice Prosecutions58) reaffirmed that this is Coalition for Gay and Lesbian Equality initially chose to oppose the order of the case, holding that while an abstract v Minister of Justice,55 in which the invalidity sought – it was nevertheless challenge is permissible: Constitutional Court confirmed the the clearest gay and lesbian issue on High Court’s decision to declare [t]his does not […] make it irrelevant which litigation could take place, unconstitutional statutory and common that this challenge is brought in and one that was likely to inspire the law criminal prohibitions on sodomy. the abstract. Courts generally treat members of the Constitutional Court abstract challenges with disfavour. The fact that the sodomy case was the to set forth in detail the legal position And rightly so. […] Abstract challenges opening chapter of South African public regarding gays and lesbians and the ask courts to peer into the future, and interest litigation on gay and lesbian need for them not to be unfairly

55 National Coalition for Gay and Lesbian Equality 58 Savoi & Others v National Director of Public & Another v Minister of Justice & Others [1998] 56 (1982) 4 EHRR 149. Prosecutions & Another [2014] ZACC 5; 2014 (1) ZACC 15; 1999 (1) SA 6. 57 (1991) 13 EHRR 186. SACR 545 (CC).

28 Public interest litigation and social change in South Africa: Strategies, tactics and lessons Changing trends in the South African public interest litigation environment Chapter 2

Former Minister of Justice Dullah Omar opposed the decriminalisation of sodomy, forcing the National Coalition for Gay and Lesbian Equality to go to the Constitutional Court. Photograph: Luck Morojane ©

in doing so they stretch the limits of whether it was necessary or appropriate so. On the other hand, the privacy judicial competence. For that reason, for there to be an individual gay or argument may subtly reinforce the the applicants in this case bear a lesbian person as an applicant, who idea that homosexual intimacy is heavy burden – that of showing that would have to go on oath and say that shameful or improper: that it is the provisions they seek to impugn are he or she had committed an offence. tolerable so long as it is confined to constitutionally unsound merely on The NCGLE took the view that in light the bedroom – but that its implications their face.59 of the broad standing provisions in cannot be countenanced outside. Privacy as a rationale for constitutional Nevertheless, the NCGLE ultimately South Africa’s Constitution (an issue protection therefore goes insufficiently decided that it could not justifiably dealt with in Chapter 5) this was not far, and has appreciable drawbacks refuse to bring a challenge until necessary. even on its own terms.60 someone was charged. It considered Thirdly, another issue that arose was that the effects and stigma created by whether the constitutional challenge In the end, the NCGLE decided to criminalisation were so severe that should be confined to the rights to pursue the privacy argument as well as the challenge had to be brought on a dignity and equality, or whether the the equality and dignity arguments. It proactive, abstract basis. right to privacy should also be invoked. did so because the Dudgeon and Norris cases provided strong support for a Moreover, bringing the challenge in This was a matter of some controversy finding of unconstitutionality on the this way would allow the NCGLE as there were concerns that relying basis of the privacy argument, and that a far greater degree of control on the right to privacy might send the it would therefore be unwise to jettison over the litigation, its timing and wrong signal. As explained in 1992 by this argument. However, the NCGLE characterisation than would have been later Justice Edwin Cameron (then specifically drew the attention of the the case with regard to a defensive a leading public interest lawyer and Constitutional Court to the concerns of challenge. openly gay man): [T]he privacy argument has Cameron set out above – meaning that The NCGLE was presumably also detrimental effects on the search the privacy argument was unlikely to be influenced by the obvious strength of for a society which is truly non- the sole basis for the judgment. the merits of the case, and the fact that stigmatizing as far as sexual In a comprehensive and extensive both the Dudgeon and Norris decisions orientation is concerned. On the one judgment, the Constitutional Court mentioned above had been brought hand, the privacy argument suggests unanimously struck down a series of successfully in a largely abstract fashion. that discrimination against gays and lesbians is confined to prohibiting Secondly, a related question was 60 Edwin Cameron, Sexual Orientation and the conduct between adults in the privacy Constitution: A Test Case for Human Rights, in 59 Savoi & Others v National Director of Public South African Law Journal, Vol. 110: 1993, page Prosecutions & Another op.cit., paragraph 13. of the bedroom. This is manifestly not 455.

Public interest litigation and social change in South Africa: Strategies, tactics and lessons 29 Chapter 2 Changing trends in the South African public interest litigation environment

The gay and lesbian litigation demonstrates how fundamental it is that public interest organisations command sufficient legitimacy in the area in which they operate.

criminal prohibitions contained in The NCGLE in turn explained to the virtually no court decisions anywhere statutory and common law regarding couple that it had a careful and co- in the world suggesting that a refusal the crime of sodomy. Moreover, it did ordinated litigation strategy to achieve to allow a same-sex marriage violated so in ringing tones, condemning the gay and lesbian equality steadily, but the right to equality, and while it is manner in which gays and lesbians had incrementally. The intention was possible that the application would been treated in South Africa, stressing to begin with victories that were have succeeded in any event, the issue is their consequent vulnerability and easier to obtain and leaving more open to some considerable doubt. the need for the law to protect them, controversial and difficult issues, Instead, the NCGLE was able to and exhorting equal treatment for all, such as gay marriage, for later. The proceed with its sodomy case and irrespective of sexual orientation. NCGLE explained that a defeat on obtain the emphatic judgment to which the marriage case could have negative One can only imagine how different we have already referred. This led to a repercussions for a whole range of other the situation may have been had the series of cases brought by the NCGLE, gay and lesbian issues. The foreign first gay and lesbian public interest or by gay and lesbian individuals. couple recognised the value of this case concerned, for example, same-sex approach and, most critically, did not marriage. seek to undermine or second-guess Subsequent cases This was not a remote prospect. At the legitimacy of the Coalition. They The next case brought by the NCGLE roughly the same time as the sodomy therefore opted not to bring their was National Coalition for Gay and challenge was being launched, a foreign application. Lesbian Equality v Minister of Home gay couple approached a leading 61 This demonstrates how fundamental Affairs. South African human rights advocate it is that public interest organisations and asked him to represent them in This case concerned provisions in command sufficient legitimacy in the challenging the provisions of the law South African immigration laws which area in which they operate. Had there that prevented gay couples from getting only allowed husbands or wives of been no organisation equivalent to the married. The advocate indicated his South African residents to obtain rights NCGLE, or had the Coalition lacked concerns about bringing such a case at to immigrate to South Africa. Thus, sufficient legitimacy to persuade the that time and also doing so on the basis the legislation excluded same-sex life couple to withdraw their case, the of the wishes of a foreign couple, rather partners of South African citizens from couple may well have proceeded to than a South African couple (which obtaining the same benefits. bring the same-sex marriage case at may have been more attractive to the a time when, in our view, it may have The case was a significant advancement court). He duly referred the couple to faced real difficulties. 61 the NCGLE. National Coalition for Gay and Lesbian Equality v Minister of Home Affairs [1999] ZACC 17; 2000 Indeed, at that stage, there were (2) SA 1 (CC).

30 Public interest litigation and social change in South Africa: Strategies, tactics and lessons Changing trends in the South African public interest litigation environment Chapter 2

Judge Kathy Satchwell (left) with her partner Lesley Carnelley. Photograph: Muntu Vilakazi & The Sunday Times ©

on the sodomy case. It went beyond of South Africa,62 a lesbian High Court rectifying it in the same way as in the establishing that gays and lesbians judge challenged the constitutional immigration case. could not be criminally condemned validity of statutes and regulations In J & Another v Director-General, for their actions. It was the first step in which stated that only judges’ spouses Department of Home Affairs,64 a establishing that same-sex life partners could obtain a series of pension and lesbian couple undergoing artificial ought to be afforded equivalent benefits other benefits from the state, thereby insemination challenged legislation to those granted to married heterosexual excluding life partners of gay and that did not provide for registration couples. lesbian judges from these benefits. The of persons in permanent same-sex life Constitutional Court struck down However, on the back of the sodomy partnerships as parents of children the relevant provisions and read in judgment, the case proved relatively conceived. The Constitutional Court the words ‘or same-sex life partner’ straightforward. Indeed, the government unanimously declared the legislation to remedy the defect and to provide of the day, having opposed the matter unconstitutional and remedied it in the immediate relief to affected gays and in the High Court, withdrew a few days same manner as previously. lesbians. before the hearing in the Constitutional Court, meaning that there was no In Du Toit v Minister of Welfare and Same-sex marriage opposition to the order sought. Population Development,63 another lesbian High Court judge and her cases Again, the Constitutional Court partner successfully challenged the had little hesitation in unanimously In light of all of these victories, it statutory prohibition on gay and lesbian declaring that the law was invalid and, rapidly became clear that the principal couples jointly adopting children. Up crucially for future cases, resolved the issue on which legal finality had not to that point, gays and lesbians could statutory difficulty itself by adopting a yet been obtained was the question of adopt, but only individually, never remedy of reading the words ‘or same- gay marriage. It should be noted that as a couple. Notwithstanding the sex life partner’ into the legislation not all members of the gay and lesbian emotions sometimes raised by the issue after the word ‘spouse’. This was to have community felt that the achievement of gay adoption, government did not significant effects in the future. of gay marriage was necessarily pursue any objection to the case and desirable and certainly not the ultimate In the years after the immigration a unanimous judgment was delivered prize. However, for many people, it decision, three cases were brought by declaring the statute invalid and represented a vital step. gay and lesbian individuals seeking to achieve equality in specific areas. All 62 Satchwell v President of the Republic of South Crucially, from a litigation strategy Africa [2003] ZACC 2; 2002 (6) SA 1 (CC). were successful. 63  Du Toit v Minister of Welfare and Population 64 J & Another v Director-General, Department of Development [2002] ZACC 20; 2003 (2) SA 198 Home Affairs [2003] ZACC 3; 2003 (5) SA 621 In Satchwell v President of the Republic (CC). (CC).

Public interest litigation and social change in South Africa: Strategies, tactics and lessons 31 Chapter 2 Changing trends in the South African public interest litigation environment

From a litigation strategy perspective, there was growing recognition by Constitutional Court judges that a major difficulty arose from the state’s failure to deal with gay and lesbian relationships holistically.

perspective, there was growing applicants’ case was doomed because By that stage, however, the LGEP recognition by Constitutional Court they had only attacked the common law (effectively a successor to the NCGLE) judges – developed over the course of definition of marriage (which excluded had marshalled its resources and had the various decisions and sometimes gay and lesbian partners) and not the launched a separate application in even manifested in comments from the Marriage Act 25 of 1961, which would, the High Court seeking to attack the bench – that a major difficulty arose in any event, prevent gays and lesbians relevant provisions of the Marriage from the state’s failure to deal with gay from getting married. Act. This timely intervention meant and lesbian relationships holistically, or that the issue could be dealt with as a Whatever the correctness of the to allow them the same general benefits whole in the Constitutional Court and High Court’s view on this issue, its as accrued to married heterosexual avoided the technical difficulties that judgment demonstrated the difficulty couples. Indeed, the Supreme Court had bedevilled the Fourie applicants of such a complex case being launched of Appeal had gone so far in Du Plessis in the High Court. It also meant that by individuals rather than by an v Road Accident Fund65 as to develop the Constitutional Court was not faced organisation such as the NCGLE, the common law of delict by extending merely with individuals who were which had great experience in litigating the spouse’s action for loss of support complaining about their desire to marry, these kinds of matters and access to the to partners in permanent same-sex but also with a credible organisation top constitutional lawyers. relationships. demonstrating that this was a widely Nevertheless, on appeal, the case held view among gays and lesbians. Initially, however, it was not the gave rise to a Supreme Court of NCGLE or its successor organisations Ultimately, despite the vigorous Appeal judgment holding that the that took the first move in challenging government appeal and the intervention common law definition of marriage as the prohibition on same-sex marriages. by a number of Christian groups excluding gay and lesbian partners was This was instead done by an individual opposed to same-sex marriage, the unconstitutional. lesbian couple in the case of Fourie v Constitutional Court held unanimously Minister of Home Affairs.66 However, while government may in Minister of Home Affairs v Fourie67 have acquiesced in findings of that it was unconstitutional for In its original form, this case was unconstitutionality in other gay and common law and for legislation to not without its difficulties. Indeed, lesbian cases, it was not prepared to let prohibit same-sex marriage. The only it initially failed in the High Court, this matter rest. Instead, it mounted a dissent related to the appropriate with the judge concluding that the substantial appeal to the Constitutional remedy, with one judge suggesting that 65 Du Plessis v Road Accident Fund [2003] ZASCA Court seeking to have the decision the declaration of invalidity should take 86; 2004 (1) SA 359 (SCA). 66 Fourie & Another v Minister of Home Affairs of the Supreme Court of Appeal & Others [2004] ZASCA 132; 2005 (3) SA 429 overturned. 67 Minister of Home Affairs v Fourie [2005] ZACC (SCA). 19; 2006 (1) SA 524 (CC).

32 Public interest litigation and social change in South Africa: Strategies, tactics and lessons Changing trends in the South African public interest litigation environment Chapter 2

Demonstration in favour of gay marriage in 2006. Photograph: Nadine Hutton ©

effect immediately, while other judges vigorous public dissent on the issue, Lessons suggested that it should take place over and some members of Parliament were a longer term to allow Parliament to apparently deeply uncomfortable with In our view, the litigation of the correct the defect itself. the suggestion that gay marriage should NCGLE, its successors and individual be allowed. gays and lesbians provides a virtual That all 10 sitting judges of the blueprint regarding successful public Constitutional Court (including some Nevertheless, armed with the powerful interest litigation in terms of achieving who could legitimately be described Constitutional Court precedent and the legal change. When (in Chapter 4) we as relatively conservative) were able threat that at the end of the 12-month set out the seven factors that we believe to reach a unanimous decision is period, the Court’s order of invalidity to be critical in maximising the prospect remarkable. In our view, this must be would come into effect, the of public interest litigation succeeding attributed to a significant degree to the Act 17 of 2006 was passed, giving gays and achieving social change, practically careful litigation strategy embarked and lesbians the right to obtain virtually all of them were present in this on by the NCGLE over the preceding all the benefits of marriage without campaign. They include particularly: eight years. This strategy succeeded in actually calling a gay or lesbian union a • the presence of a well-organised establishing and entrenching principles ‘m a r r i a g e’. litigant who was a repeat player in regarding the need for equal treatment The Act is certainly not perfect and constitutional litigation; of gays and lesbians in all contexts so some members of the gay and lesbian • an overall long-term strategy to emphatically that it made it virtually community have significant objections achieve a goal step by step; impossible for the Constitutional Court to it. What cannot be doubted, however, • a n organisation that not only to do anything else but follow through is that it represents a massive advance co-ordinated litigation around to the logical conclusion that allowing on many countries in the world in that these issues, but generally had the for same-sex marriage (in one form or the Act confers virtually all the benefits legitimacy to ensure that the correct another) was necessary. of marriage on same-sex couples.68 cases were brought at the right time; What remained was to lobby Parliament and to persuade it to amend the law to • an impeccable sense of timing. allow gay marriage as required by the However, the very same example also Constitutional Court order within 12 68 In an additional case, Gory v Kolver NO & demonstrates that even the best planned months. Others [2006] ZACC 20; 2007 (4) SA 97 (CC), the Constitutional Court upheld another victory and executed litigation which succeeds This, however, turned out to be a for gay and lesbian litigants. It held that it was in achieving legal change may have far unconstitutional for the inheritance laws of difficult process. Public hearings held South Africa to confer inheritance benefits on more limited effects in terms of social on proposed legislation produced heterosexual spouses, but not on same-sex life change. partners.

Public interest litigation and social change in South Africa: Strategies, tactics and lessons 33 Chapter 2 Changing trends in the South African public interest litigation environment

On the one hand, the social change Also, access to social justice will However, very regrettably, the situation resulting from the litigation in this be facilitated by public processes on the ground has not improved area is obvious. Gays and lesbians have and expanded services, not by and, if anything, appears to have experienced massive tangible benefits legislative change alone. The power worsened. This has been compounded – they can have sex lawfully, they have of administrative bureaucracies needs by significant structural and funding immigration rights, can adopt children, also to be taken on as part of the challenges facing organisations derive pension and inheritance benefits, advocacy strategy to affect impact as dedicated to promoting gay and lesbian and they can enter into civil unions. a result of litigation. In many respects, rights. the law is ahead of the populous and On the other hand, there remains so the weightiness and legitimacy of a massive gulf between this legal political leadership and the legislature ■ recognition and the attitude of many are critical in transformation that is ordinary South Africans. As one of meaningful and sustainable. our respondents in the gay and lesbian The Grootboom sector explained: The gay and lesbian litigation examples case on the Litigation strategies must be coupled thus demonstrate a key issue dealt with with community-based activism and in this publication: Even where legal right to housing popularisation of legal advocacy victories result in legal change and to allow a deepening of public tangible benefits for those concerned, Our second case study – the engagement with the issue of socio- they do not necessarily achieve Grootboom case – is perhaps the best economic rights. Rights are not only sufficient social change if they are not known of South Africa’s cases on socio- 69 won through the courts, for they are done in conjunction with additional economic rights. only as lasting and meaningful as the social mobilisation and advocacy In some ways, the Grootboom case extent to which they can be accessed. strategies. could not present a greater contrast In our sector, an over-reliance on legal This is demonstrated partly by the with the gay and lesbian litigation means to facilitate social change has process around the Civil Union discussed above. While the gay and meant that we now have a large gap Act. If there had been greater public lesbian litigation took place on the basis between the policy and the personal support for gay marriage at the time of a carefully formulated strategy over reality on a range of rights issues. the legislation was being debated, it eight years and through multiple cases, The respondent emphasised this point may have been possible to persuade the Grootboom litigation was a single repeatedly throughout the engagement Parliament to simply amend the case brought under circumstances of with us: Marriage Act to allow gays and lesbians great urgency to deal with people in a to marry under that Act, rather than truly desperate situation. A growing gap exists between our creating the separate Civil Union Act. Constitution, our law and public Though the basic facts of the case and Moreover, there would have been far opinion [...] The translation of techno- the legal principles enunciated are less pressure to allow civil servants the legal argument into a colloquial relatively well known, there has been right to refuse to perform civil union argument should be a strategy that little or no assessment of the underlying ceremonies on ‘conscientious objection forms part of any litigation aimed at facts and circumstances that led to the grounds’, something that made its way facilitating social change […] The law litigation. Indeed, even the outcomes into the Civil Union Act and which is of may well create a vehicle for change concern to many in the gay and lesbian 69 This section draws substantially on Steven and expand the parameters for such community. Budlender’s unpublished 2004 LL.M. paper at change, but the nature and extent the New York University School of Law, Giving Meaning to the Right to Housing: The Grootboom of transformation will be driven by In the years following the 2008 report, Litigation in South Africa. This paper was based the people and communities that none of the legal victories in this area on personal interviews conducted in August 2000 by Dr Elsa van Huyssteen and Steven Budlender are impacted by litigation efforts. have been overturned or retarded. with community members, lawyers and other role-players in the Grootboom case.

34 Public interest litigation and social change in South Africa: Strategies, tactics and lessons Changing trends in the South African public interest litigation environment Chapter 2

Irene Grootboom. Photograph: Ambrose Peters ©

of Grootboom have generally been shacks, causing repeated illnesses and a leave the land, but did not do so. They insufficiently considered. general worsening of the already terrible maintained that they had nowhere to conditions. This part was known as go as the space they had previously It is necessary to sketch these facts, Mooi Trap (‘step carefully’) because of occupied in Wallacedene had now been circumstances and outcomes properly all the water. Given a housing waiting occupied by other people. in order to place the Grootboom list of at least seven years, the residents litigation in accurate perspective and No eviction took place, apparently faced the prospect of remaining in adequately draw lessons from it. This due to the landowner’s lack of funds, intolerable conditions for an indefinite is particularly so given that (as noted but in March 1999, he once again period. As a result, some of the earlier) our brief made it explicitly took the community to court to have residents of Mooi Trap moved out of clear that one of the issues Atlantic them evicted. This time, the presiding Wallacedene and erected their shacks sought our input on was the reasons Magistrate engaged in an unusual move on vacant, privately owned land nearby for the difference in outcome in the by phoning a local attorney whom he – land that had been earmarked for low- Grootboom and TAC cases. knew – Julian Apollos – and asked him cost housing. They claimed that they to represent the community. Background did not know that the land was privately owned and that they only became aware The community’s The Grootboom case arose in 1998 in of this when the first eviction order the Wallacedene area in Cape Town, was served on them. The total of 390 response to the where approximately 4 000 residents adults and 510 children who ultimately eviction proceedings lived, almost all of them in informal moved to this land named it New Rust housing/shacks and in appalling (‘new rest’). These 900 people were With the community now having conditions. More than a quarter of the to become known as the Grootboom a lawyer, there was a need for an residents had no income at all, and community. important strategic decision. What more than two-thirds earned less than The owner of the land responded would the community’s response to the R500 a month. There was no water, by instituting eviction proceedings eviction proceedings be? They could sewage or refuse removal and only 5% against the Grootboom community. oppose the eviction and argue that the of the shacks had electricity. Most of the An eviction order was granted on 8 requirements of the governing statute shacks were extremely small. December 1998 in the local Magistrate’s – the Prevention of Illegal Evictions Act 19 of 1998 – had not been met. In September 1998, heavy winter Court. The Grootboom community They could launch proceedings against rainfall had left part of the Wallacedene did not have a lawyer and was not the local municipality (Oostenberg) area waterlogged. In one part of the represented at the hearing. They were or other levels of government, arguing area, there was a foot of water in the given a date by which they had to

Public interest litigation and social change in South Africa: Strategies, tactics and lessons 35 Chapter 2 Changing trends in the South African public interest litigation environment

In some ways, the Grootboom case could not present a greater contrast with the gay and lesbian litigation. While the latter took place on the basis of a carefully formulated strategy over eight years and through multiple cases, the Grootboom litigation was a single case brought under circumstances of great urgency to deal with people in a truly desperate situation.

that their constitutional rights were not evicted without some alternative for as long as possible. In doing so, being upheld. They chose to do neither. accommodation being provided, they wanted to use their only strategic Instead, they entered into an agreement especially because so many members of advantage – the fact that they were that they would vacate the land by the community were children. on the land – to secure some form of 19 May 1999. The agreement also settlement from what they hoped would Secondly, Apollos took the view that provided that there would be mediation be sympathetic authorities. There was the mediation and the study by the between the community and the certainly no suggestion at this stage that Municipality would be done in good Oostenberg Municipality, and that the the law or the Constitution could or faith, and that there was a very good Municipality would conduct a study in should be used against the Oostenberg chance of resolution. This proved an attempt to identify other land that the Municipality. Indeed, Apollos and overly optimistic. It turned out that community could occupy temporarily or the community were relying on the the Municipality had already done a permanently. goodwill of the Municipality. To study of the area and had concluded instigate litigation would thus have This decision is intriguing and warrants that there was nowhere else that been potentially very damaging to their close attention. There were two main could be allocated to the community. chances of being allocated other land by reasons for the decision. The mediation failed because the the Municipality. Municipality’s only response was that Firstly, Julian Apollos apparently took the community should return to its old Ultimately, however, they had the view that there were no legal grounds land in Wallacedene. As mentioned underestimated their legal rights and to object to the eviction. However, it earlier, the community was of the view overestimated the goodwill of the seems that this assessment may well that this was impossible, because the Municipality, and (with hindsight) the have been incorrect. The Constitutional space they had previously occupied had decision to agree to vacate the land was Court, in its later judgment, stated that: now been occupied by other people. to prove a damaging one. By mid-May nor is it clear whether the eviction […] 1999, mediation had reached a dead was in accordance with the provisions The decisions taken by Apollos and end, and the community was still on the of the Prevention of Illegal Evictions the community clearly signalled that land with no place to go. On 18 May Act.70 they were not intent on legal action. 1999, one day before the community Rather, like most other South African was due to leave, the Municipality In retrospect, there was at least an communities faced with eviction, they forcibly evicted the community. As the arguable case that this Act meant believed that they had few legal rights Constitutional Court later described it, that the community could not be and that their best strategic option was the eviction: to use the law to put off the eviction 70 Government of the Republic of South Africa & Others v Grootboom & Others [2000] ZACC 19; 2001 (1) SA 46 (CC), paragraph 10.

36 Public interest litigation and social change in South Africa: Strategies, tactics and lessons Changing trends in the South African public interest litigation environment Chapter 2

Children at the Zolane Community Centre in the Nyanga township, Cape Town 2008. Photograph: Sofia Tosolari & Treatment Action Campaign ©

[…] was done prematurely and community. The letter explained that permanent accommodation; inhumanely: reminiscent of apartheid- if this was not done, the community (ii) Directing first respondent, style evictions. The respondents’ would launch a High Court application alternatively one or more of the other homes were bulldozed and burnt and to compel government to comply respondents, forthwith to provide their possessions destroyed. Many with its constitutional obligations. adequate and sufficient basic nutrition, of the residents who were not there The Municipality responded that it shelter, health and care services and could not even salvage their personal had supplied food and shelter for social services to all of the applicants’ 71 belongings. the community at the Wallacedene children.72 The community was now truly community hall, which bordered the sports field. It also explained that it It was the first time the community had homeless. There was no space for them asserted any of its constitutional rights to return to in Wallacedene and their was approaching the Western Cape provincial government for assistance in with regard to shelter and housing. building materials had been destroyed. Indeed, it may have been the first time They were forced to simply camp on dealing with the problem. However, the community was dissatisfied with this any community in South Africa had the sports field adjacent to Wallacedene asserted such rights. Despite the fact with whatever plastic sheeting and response since the community hall in question could only house 80 people, that the right to housing had been in other materials they could find. Within the Constitution for over 18 months a week of the eviction, the winter rains who were at any rate not allowed to stay there at night. at that time, and despite the fact that began, rendering any shelter that the many communities had been faced community had virtually worthless. As a result, on 31 May 1999, Apollos with eviction and forced to live in launched an urgent application on conditions just as terrible as those of The launch of court behalf of the community in the Cape the Grootboom community, to our proceedings High Court. They sought an order: knowledge there had been little or no (i) Directing first respondent, litigation by communities claiming this A week after the community had alternatively one or more of the right. been evicted, Apollos wrote to the other respondents, forthwith to Taken at face value, the strategic Oostenberg Municipality describing the provide adequate and sufficient basic decision to embark on litigation is in intolerable conditions under which the temporary shelter and/or housing for itself unremarkable. Negotiations had community was living and demanding the applicants and their children in failed, the community no longer held that the Municipality meet its such premises, and/or on such land, as the advantage of being on the disputed constitutional obligations and provide is/may be owned and/or leased by one temporary accommodation for the or more of the respondents, pending 72 Grootboom & Others v Oostenberg Municipality & 71 Ibid. applicants and their children obtaining Others [1999] ZAWCHC 1, Introduction.

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The Grootboom litigation may have been the first time any community in South Africa had asserted its constitutional rights to shelter and housing, despite the fact that the right to housing had been in the Constitution for over 18 months at that time, and despite the fact that many communities had been faced with eviction and forced to live in conditions just as terrible as those of the Grootboom community.

land and they no longer trusted the with him. They did, and it was then that was to prove important. They Municipality. But this view obscures a that Irene Grootboom and Lucky phoned a prominent provincial ANC broader question – what was it that put Gwaza emerged as the leaders of the politician and asked him to sort out this community in a position to demand community. This committee was to play the situation. He immediately held their rights when virtually no other a key role in directing the strategies discussions with the community community had done so? of the community, in providing the leaders, and with Apollos and Neewat. information and background necessary It appears that there were three key Far from resolving the situation, for the court application and in factors: however, it was during these discussions keeping the community involved in that the community decided to embark • the community had legal and informed of the court application. on legal action against the Municipality. representation; The committee was assisted in this While it is clear that the community saw • there was an unusually high level of regard by Doris Neewat, a former ANC this as a way of gaining access to some community organisation; and councillor who lived nearby and had a relief and possibly housing, there were • politics. law degree, but who was not a practising broader political ramifications at play. lawyer. The first factor – that Apollos was asked Various ANC role-players, including the to represent the community by the However, it is the third factor – politics prominent provincial politician already Magistrate and agreed to do so with – which is the most intriguing. It is not referred to, wanted to demonstrate that no likelihood of fees being paid – was discussed at all in court records or in the New National Party (NNP – the crucial. It was Apollos who suggested the Constitutional Court judgment that then opposition party which controlled litigation, drafted the court papers and prior to launching the court application, the relevant province and municipality) secured the advocates to argue the case. the community tried to take the matter was not serving the community Without his involvement, the litigation into its own hands. A few days after adequately. This was particularly would not have occurred. being evicted, the community organised pertinent because the 1999 national The presence of Apollos also relates a march to the offices of the Oostenberg and provincial elections were at that to the second factor – the high level Municipality. They were encouraged to point only a couple of weeks away. do so by Doris Neewat. The marchers of community organisation. When This political backdrop to the case is forced their way into a council meeting the community first met with Apollos important for a number of reasons: during the eviction hearings, he had and demanded that something be done • It again points to the fact that to deal with more than 150 adults about their plight. neither Apollos nor the community simultaneously. He refused to do Although the municipal councillors was intent on legal action. The so and insisted that the community were unmoved by the community’s community was intent on using elect a five-person committee to deal actions, they did respond in one way

38 Public interest litigation and social change in South Africa: Strategies, tactics and lessons Changing trends in the South African public interest litigation environment Chapter 2

Khayelitsha on the , Cape Town 2007. is reputed to be the largest and fastest growing informal settlement in South Africa. Photograph: Audra Melton ©

popular pressure, and Apollos was the ANC. The attack focused only on This was an enormous victory because, following his clients’ instructions the provision of housing or shelter for for the first time, the socio-economic and had therefore not instituted the 900 applicants – not for any broader rights in the Constitution seemed to legal proceedings. It was the group. have come to fruition. The community’s intervention of the ANC provincial lawyers did an excellent job of A few days after the urgent application leadership that led to court action. portraying the dire situation in which had been lodged, a Cape High Court • It demonstrates that even at this the community found themselves – a judge conducted an in loco inspection early stage of the case there was portrait that was undoubtedly greatly of the conditions under which the already a potential divergence of assisted by having literally hundreds Grootboom community was living. interests between, on the one hand, of community members in court, He was sufficiently moved to order the community and their lawyer including children and babies. Faced that – pending the final determination and, on the other, the broader with scenes of desperate people and of the application – temporary political cause of embarrassing the knowing the dreadful winter conditions accommodation be provided for the NNP. in the Cape, there was clearly immense children in the community hall, as well • And most importantly, it suggests pressure on the Court to give the as for one parent of each child who that the demand of rights would not community some relief. required supervision. have happened in the same way had However, despite the victory, it was the community and its attorney not The High Court ultimately concluded already becoming clear that the hurried been strong ANC supporters and that given the pressing demands on manner in which the case had been therefore pitted against the NNP- the state’s scarce resources, it had not litigated, and the fact that the legal team run local municipality. breached its obligations under the lacked experience in the new, untested right to housing in terms of Section realm of socio-economic rights meant 26 of the Constitution, especially The High Court there had been some significant errors. because this Section explicitly referred As the Cape High Court judgment proceedings to the ‘available resources’ of the state. made clear, the application of the However, the Court did conclude that Ultimately though, and whatever the Grootboom community had given the state was in breach of its obligations initial political intentions, the litigation insufficient attention to the remedy that to provide children with shelter in terms was launched against all three levels would be appropriate. The community of Section 28(1)(c) of the Constitution of government involved in providing had not indicated the nature of the because it had not provided shelter housing – local and provincial shelter to be provided, its location, or to children in a situation where their government controlled by the NNP, which of the respondents should be parents were unable to do so. and national government controlled by responsible therefore. Indeed, it was

Public interest litigation and social change in South Africa: Strategies, tactics and lessons 39 Chapter 2 Changing trends in the South African public interest litigation environment

The High Court ruling in the Grootboom case was an enormous victory because, for the first time, the socio- economic rights in the Constitution seemed to have come to fruition.

only in the replying affidavits that the Court approach and decide the case on Section 26 instead of Section 28. The applicants, through their attorney, made the basis of the rights of the children LRC argued that government’s housing some practical suggestions as to the involved. This was partly because it programme, though substantial in nature of the relief. The Court therefore would then mean – in this case as well size, did not comply with the state’s could not grant any specific relief and as in future cases – that adults without obligations under Section 26 and was forced to postpone the case for children would not be accommodated contended that it was important for the three months, pending proposals from at all, which seemed at odds with the Court to clarify this in its judgment and both sides on the relief that should be spirit of the Constitution. order to ensure that the Constitution given. was upheld. More importantly, because the children’s rights contained no limitation Secondly, the case shifted away from The Constitutional with regard to resources, upholding the particular needs of the Grootboom Court hearing them here would potentially ‘open community. the floodgates’ to all claims from At the start of the Constitutional Before this could be done, however, homeless children, which would place Court hearing, government surprised government launched an appeal against unmanageable pressure on the state everyone by offering the community: the judgment before the Constitutional and the courts. With this concern some alternative accommodation, Court. The Court granted leave to in mind, the Constitutional Court […] not in fulfilment of any accepted appeal and set the case down for hearing and judgment focused on the constitutional obligation, but in hearing. At the same time, the South right to housing (Section 26 of the the interests of humanity and African Human Rights Commission Constitution) instead of the children’s pragmatism.73 (SAHRC) and the Community Law right to shelter (Section 28). This was Centre (CLC) intervened as amici despite the fact that the community’s This was not an offer of settlement curiae, represented by the LRC. lawyers had abandoned this leg of their and the community accepted the offer When the case was heard before the argument when the case reached the without prejudice. Constitutional Court, presumably Constitutional Court and when the As an aside, though the offer was not because it had been so thoroughly Court ultimately delivered its judgment, one of settlement, this illustrates how dismissed by the Cape High Court. a fundamental shift occurred from the easily government might have used the original narrow case to a far broader The space for the Constitutional Court narrow claim of the particular group cause. to focus on Section 26 was created of plaintiffs to thwart the precedent- Firstly, the Constitutional Court proved partly by the submissions of the LRC, representing the amici curiae, which 73 Government of the Republic of South Africa & extremely reluctant to follow the High Others v Grootboom & Others op.cit., paragraph urged the Court to decide the case on 91.

40 Public interest litigation and social change in South Africa: Strategies, tactics and lessons Changing trends in the South African public interest litigation environment Chapter 2

The ‘Red Ants’ (guards hired by the municipal authorities) breaking down shelters and evicting residents from an ‘illegal’ informal settlement in Eldorado Park, south-western Johannesburg, in 2003. Photograph: Nadine Hutton ©

setting value of the case. A proper offer This was a shift from the far starker (a) Section 26(2) of the Constitution of settlement to the plaintiffs would arguments that the plaintiffs’ lawyers requires the state to devise and have been almost impossible to resist were making, which asked simply implement within its available and this would have prevented the whether these people had housing, and resources a comprehensive and co- case going ahead and a Constitutional if not whether government could afford ordinated programme progressively to Court-level precedent being to supply it to them. realise the right of access to adequate established. housing. These shifts had a profound effect Nevertheless, the offer had a significant on the outcome of the case. In its (b) The programme must include effect. Suddenly, it seemed far less judgment, the Constitutional Court: reasonable measures such as, but not necessarily limited to, those important for the Constitutional • reversed the Cape High Court’s contemplated in the Accelerated Court to give a remedy that assisted ruling on both issues before it by Managed Land Settlement the community directly. The Court finding a violation of Section 26 Programme, to provide relief for therefore began to look even more (the right to housing) but not a people who have no access to land, closely at the broader implications violation of Section 28 (children’s no roof over their heads, and who are of the case, rather than the plaintiffs right to shelter); living in intolerable conditions or crisis involved. • emphatically rejected the notion situations. This was exacerbated by a decision that the constitutional rights could (c) As at the date of the launch of not to have any community members be used by individual plaintiffs to this application, the state housing present at the proceedings. While this claim ‘housing on demand’, finding programme in the area of the Cape must have seemed sensible at the time, instead that such cases only involved Metropolitan Council fell short of one can never overestimate the value an evaluation of the ‘reasonableness’ compliance with the requirements of having real plaintiffs being visible at of the government programme at in paragraph (b), in that it failed to court proceedings – especially where issue; and make reasonable provision within its the plaintiffs’ circumstances were as • did not give a tangible remedial available resources for people in the sympathetic as those of the Grootboom order to the community, despite Cape Metropolitan area with no access community. finding a violation of Section 26. Instead, the Court issued a to land, no roof over their heads, Thirdly, again at the instance of the declaratory order explaining that and who were living in intolerable 74 LRC, the focus of the legal arguments government’s policy generally was conditions or crisis situations. became whether the precise parameters a breach of the right to housing in and contours of government’s housing Section 26. It declared as follows: 74 Government of the Republic of South Africa & policy met its constitutional obligations. Others v Grootboom & Others op.cit., paragraph 99.

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When the Grootboom case was heard before the Constitutional Court and when the Court ultimately delivered its judgment, a fundamental shift occurred from the original narrow case to a far broader cause.

The effect of the to consider what the nature of the that this amounted to a breach of the obligations imposed by these rights right to housing when government was Legal Resources was. Although we didn’t accept the distributing houses to thousands of Centre intervention entire argument of the amici, this poor people, but had not reached these wasn’t vital. What was important was plaintiffs yet. The intervention of the LRC had the nature of the discourse. It was What the LRC’s intervention managed complex repercussions. On the one placing socio-economic rights at the to do was analyse government’s housing hand, the intervention may be seen as centre of our thinking and doctrine.75 damaging to the case because it took the programme with a sophistication and focus away from the individual plaintiffs One has to accept that this was an nuance that was lacking in the plaintiffs’ and their situation and focused on exceptionally difficult case. It was case. not a case about government doing government’s housing programme to The LRC emphasised the size and scope nothing or ignoring the Constitution. the potential exclusion of individual of government’s housing programme, Government had put in place a massive relief. However, in our view, had it not but argued that it suffered from a crucial housing programme to deliver housing been for the intervention of the LRC, it flaw – it was an ‘all-or-nothing’ policy. to poor people, and the Constitutional appears quite possible, and even likely, While poor people did get proper Court was acutely aware of the that the case might have been lost and houses under the policy, they were often challenges facing government. The would not have produced any binding left waiting for years on inordinately Court cited figures stating that, between precedent in favour of the right to long waiting lists. housing for the plaintiffs, particularly March 1994 and September 1997, The LRC argued that in addition to the once they had accepted government’s 362 160 houses had been built or were housing programme, the Constitution humanitarian offer. The critical role of under construction, while an overall required government to do something the LRC’s intervention was emphasised total of some 637 190 subsidies had in the interim for people who were by then Justice . As he been allocated by October 1997 for waiting and living in appalling explained: projects in various stages of planning or development. circumstances. This involved security The intervention swung the amicus of tenure, effective protection from the debate dramatically. Most of the Thus, for all the blunt arguments elements, and basic water and sanitation preceding arguments had failed to made by the Grootboom community’s services. really look socio-economic rights in lawyers about how their clients did the eye. There had been technical not have housing, it was far from clear Though a number of the LRC’s arguments and attempts to frame legal submissions were ultimately the case in terms of children’s rights, 75 Albie Sachs, Concluding Comments on the Panel rejected, its approach to and analysis Discussion, in ESR Review, Vol. 8, No. 1: May but [the LRC intervention] forced us 2007, pages 18-19. of government’s housing programme

42 Public interest litigation and social change in South Africa: Strategies, tactics and lessons Changing trends in the South African public interest litigation environment Chapter 2

Living conditions for the Grootboom community in 2007. Photograph: Legal Resources Centre ©

proved to be the core around which Outcomes of agreed on details regarding the the Constitutional Court judgment implementation of the offer and these was based. In particular, it looked at the case for the details were then, by consent, made an government’s policies and showed Grootboom order of court. that government itself had identified Over the following few months, the the need for an ‘accelerated land community offer was gradually implemented. management settlement scheme’ that As has been discussed above, at The community continued to live on would cater to people in desperate need, the hearing of the case before the the Wallacedene sports field in their but had failed to put such a programme Constitutional Court, government shacks, while government put in place in place. made an offer of some temporary the temporary and then permanent Without the LRC’s intervention and accommodation for the community sanitation and water services required approach, it is quite possible that consisting of a marked-off site, by the urgent order. Also, as per the the Grootboom case would have provision for temporary structures urgent order, government paid over an had to go the way of Soobramoney v intended to be waterproof, and basic amount of R200 000 for the purposes Minister of Health, KwaZulu-Natal. sanitation, water and refuse services. of obtaining materials to make the As noted in Chapter 1, there in its first As noted, the Grootboom community community’s shacks waterproof. At decision on socio-economic rights, accepted the offer. The Court’s the insistence of the community, the Constitutional Court held that it judgment referred to this offer and its these materials were bought and could not come to the assistance of a acceptance, but gave the community no distributed by Julian Apollos rather dying man needing dialysis treatment as additional relief. than by government to ensure that the government’s policy did not violate the However, the offer (which should have community got substantial value for right to health care. been relatively simple to implement) money. A loss in the Grootboom case, following took months to materialise. It was made Though government had taken months the loss in the Soobramoney case, on 11 May 2000, but four months later to comply with its own offer and would have been potentially devastating – and with the Constitutional Court the terms of the urgent order, and to future socio-economic rights judgment still pending – nothing had notwithstanding some disagreement litigation in South Africa. been done to fulfil it. The Grootboom about whether every aspect of the order community was therefore forced to had in fact been complied with, it is go back to the Constitutional Court clear that generally the terms of the with an urgent application to compel offer and order were fulfilled. fulfilment of the offer. At the hearing of the urgent application, the parties However, it is equally clear that,

Public interest litigation and social change in South Africa: Strategies, tactics and lessons 43 Chapter 2 Changing trends in the South African public interest litigation environment

Nearly 300 government houses were eventually distributed to the Grootboom community in July 2008 – more than eight years after the Constitutional Court judgment – but it remains unclear precisely how many of those involved in the case benefited.

despite this, the majority of the September 2008.79 suggested that formal housing for the Grootboom community continued to community was on the immediate This appalling state of affairs led live in appalling conditions for many horizon. Rather, the Court’s judgment to obvious disillusionment within years. Nearly 300 government houses focused on the far narrower violation the community regarding the legal were eventually distributed to the that took place because government processes and their effect. The community in July 200876 – more than did not have a programme in place to disillusionment stemmed mainly from eight years after the Constitutional provide temporary relief to people in the perception that the court victory Court judgment – but it remains desperate situations. In fact, the Court meant that the community would unclear precisely how many of those went as far as to stress that government’s be entitled to get actual housing, involved in the case benefited. formal housing programme was: rather than some temporary form of This is demonstrated most emphatically shelter. Though the community was [a] major achievement. Large sums by the position of Irene Grootboom very pleased with the temporary offer of money have been spent and a herself. Mrs Grootboom died in August made by government and celebrated significant number of houses[have] 80 2008, a month after the nearly 300 when it was fulfilled, it continued to been built. houses had been distributed to her feel frustrated about the years where It did find, though, that the housing community. She was penniless and still it had not been accommodated programme was having, at best, a small 77 homeless, living in the shack that she in government’s formal housing effect on the massive housing backlog had built on the Wallacedene sports programme. This frustration was facing South Africa. field. She was not allotted one of the unsurprising and understandable. In 300 houses, though the spokesperson the view of the community, and even In truth, however, this technical for the Western Cape MEC for Housing in the view of the arguments that the issue is beside the point. It is difficult – at the time of the handover of the community’s lawyers made before the to conceive why, in the unusual houses to the community – had stated court, this was a case where people’s circumstances of this case, relevant that she was bound to benefit “in the rights had been violated because they government officials did not make some next round”.78 After negative publicity were homeless. The natural remedy, arrangements for the community until sparked by her death, Mrs Grootboom’s of course, would then have been to eight years after the judgment. family eventually received a house in provide the necessary housing. A significant part of the explanation From a technical point of view, the appears to have been that the Grootboom community no longer had 76 Hundreds say farewell to housing heroine, IOL reality was slightly different. Nothing news: 10 August 2008. in the Constitutional Court judgment 77 Grootboom dies homeless and penniless, Mail & 80 Government of the Republic of South Africa & Guardian: 8 August 2008. 79 W Cape government apologises, IOL news: 10 Others v Grootboom & Others op.cit., paragraph 78 Hundreds say farewell to housing heroine op.cit. September 2008. 53.

44 Public interest litigation and social change in South Africa: Strategies, tactics and lessons Changing trends in the South African public interest litigation environment Chapter 2

Many South African communities are still in dire need of decent housing. Photograph: The Kuyasa Fund ©

effective legal representation. A few Broader outcomes destroyed or damaged, their prevailing months after the case concluded, Julian situation poses an immediate threat Apollos merged his small law firm with Despite the extraordinary to their life, health and safety, or they the larger firm that had represented disappointment one feels regarding the have been evicted, or face the threat the Oostenberg Municipality in the situation of Mrs Grootboom herself, it of imminent eviction. The assistance case. There is no other law firm in close must be stressed that the Grootboom provided consists of funds in the form vicinity. This meant that recently, when case has had a significant and tangible of grants to municipalities to give the Grootboom community wanted effect in a number of broader respects. effect to accelerated land development, to consider bringing another action Firstly, the decision significantly the provision of basic municipal against government, it had no lawyer to affected government’s housing policy, engineering services and shelter. The represent it. although it did not appear so initially. assistance provided falls short of formal housing as provided for in other At the same time, the organisational The Grootboom case held that what the Programmes of the Housing Subsidy structure of the community had also Constitution required was a short-term Scheme contained in the Housing been significantly weakened. In 2007, emergency relief policy for anyone Code, and is thus rendered only in when the LRC attempted to assist who finds themselves in desperate situations of exceptional and urgent the community to negotiate with circumstances. housing need.82 government, there seemed to be a lack At first, there was no sign of of effective community leadership, government putting such a policy in The emergency relief policy explicitly which made the process extremely place. However, in August 2003, three acknowledges that it was devised difficult. years after the decision was given, and accepted as a direct result of the Grootboom decision and aims to meet As one of Mrs Grootboom’s lawyers national and provincial governments what the Grootboom case laid down as said after her death: finally approved a short-term emergency relief policy for people in the constitutional requirements of the [T]he fact that she died homeless right to housing. shows how the legal system and civil desperate circumstances. It is worth society failed her. […] I am sorry that quoting a summary of the policy: This was followed, in 2004, by the we didn’t do enough following-up after [This policy] deals with the rules for adoption of Chapter 12 of the National judgement was given in her favour. exceptional urgent housing situations. Housing Code. The Code sets out the We should’ve done more. I feel a deep [It relates] to assistance to people who, principles, guidelines and standards regret today.81 for reasons beyond their control, find that apply to state housing programmes. themselves in a situation of exceptional and urgent housing need such as the 82 National housing programme: Housing assistance in emergency circumstances, Department of 81 Grootboom dies homeless and penniless op.cit. fact that their existing shelter has been Housing: 2004.

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The Grootboom decision played a major role in altering South African law on housing and evictions, and impacted significantly on government’s attitude to socio-economic rights and socio-economic rights cases.

Chapter 12 of the Code provides has commented: that where government fails to act for assistance to people who find [T]he true potential of [Grootboom] reasonably, it will be taken to court and themselves in a housing emergency for has only really come to light through defeated. According to a number of our reasons beyond their control. It is again multiple later decisions in which its respondents, it was for this reason that expressly stated to be enacted pursuant potential to stave off evictions which parts of government began factoring to the Grootboom decision. are likely to lead to homelessness has these issues into budget processes 84 and became far more responsive to Secondly, the decision played a major been recognised. lawyers’ letters pointing out programme role in altering South African law on In this regard, the impact of Grootboom flaws and requesting information. housing and evictions. The Constitution has certainly been felt very strongly This is despite the fact that many requires that no eviction be granted by people on the ground because, in government departments and officials until all the relevant circumstances effect, it gives them security of tenure had misgivings about the decision. have been taken into account by a that they would not otherwise have. However, because they recognised court. As a result, there are many court This is important not only because of that it was good law, which would be decisions which make it clear that, the inherent value of security of tenure, enforced against them in court, they effectively, eviction orders in respect but also because security of tenure plays took it into account. of poor people will only be given an important role in allowing ordinary when they are coupled with orders people and communities to organise Lastly, there can be no doubt that the directing the relevant municipality to and mobilise to protect and demand Grootboom decision had an enormous provide emergency housing to those their rights.85 impact on subsequent socio-economic being evicted. This is so irrespective of rights litigation and will continue to be whether the evictions are taking place at Thirdly, the Grootboom decision the foundational socio-economic rights the behest of the municipality or private impacted significantly on government’s decision for many years to come. landowners.83 attitude to socio-economic rights and socio-economic rights cases. In 2002, for example, the Constitutional There can be no question that South It loomed large as an indication Court repeatedly relied on the African courts have massively departed Grootboom decision in deciding the 84 Stuart Wilson, Litigating Housing Rights in from previous case law on evictions, Johannesburg’s Inner City: 2004-2008, in South TAC case. This case, which we deal with and the Grootboom case has been an African Journal on Human Rights, Vol. 27, Part 1: next, was an enormously important 2011, page 130. For an analysis of the housing obvious driving force. As Stuart Wilson cases decided by the Constitutional Court after and controversial case dealing with the 2008, see: Jackie Dugard, HSRC Review of provision of drugs for the prevention of the Courts – Paper on Socio-Economic Rights, 83 See for example: City of Johannesburg unpublished: 14 July 2014. mother-to-child transmission of HIV. Metropolitan Municipality v Blue Moonlight 85 Presentation by Jackie Dugard at the 4th Public Given government’s vociferous defence Properties 39 (Pty) Ltd & Another [2011] ZACC Interest Law Gathering, held at the Wits School of 33; 2012 (2) SA 104 (CC). Law, 23 July 2014. of its AIDS policy and the public

46 Public interest litigation and social change in South Africa: Strategies, tactics and lessons Changing trends in the South African public interest litigation environment Chapter 2

People being evicted from a building in the Johannesburg inner city in December 2013. Photograph: Matthew Wilhelm-Solomon ©

attention and controversy that the TAC rights are enforceable and by insisting Lessons case generated, it might have been on subjecting all government expected that this would be a difficult socio-economic rights policies to a The lessons to be learnt from the and close decision. The reality though, rigorous reasonableness standard, the Grootboom case really permeate this as various respondents made clear to Grootboom case has made possible entire publication. Suffice it to say at us, was that it was the Grootboom many future cases to ensure that this point that the Grootboom case principles regarding reasonableness that government is acting appropriately to demonstrated that: made the TAC decision relatively easy, achieve the progressive realisation of • A wareness of rights is an absolute at least as to whether there had been a the socio-economic rights enshrined in precondition if communities are to violation of the Constitution. Without the Constitution. enforce their rights in a manner that the Grootboom case, the TAC case leads to social change. Thus, ironically, whatever the limits of would have been far more difficult to • Advice and assistance are essential the Grootboom case in terms of social launch and decide, and – in the words if people are to enforce their change in the Grootboom community of one of our respondents: rights. This must include legal itself, it presented a remarkable and representation where necessary and, [...] may not have happened at all valuable victory that has played and will on a case of this scale and complexity, when it did. continue to play a key role in achieving the legal representatives should tangible social change for other The approach in the Grootboom case ideally be familiar with national, plaintiffs in a variety of areas. and the principles it laid down have also foreign and at play. had a substantial effect in a number of A question that requires separate • A lthough critical, the above facets socio-economic rights cases that have consideration though is whether and are by themselves likely to be been brought subsequently on issues to what extent the identified third 86 87 insufficient. What is necessary is for such as social grants, education and fourth broader effects of the the communities to become socially and others, many of which produced Grootboom case – that is, a more mobilised, structurally organised and very favourable settlements before responsive attitude to socio-economic actively involved. This includes using the matters could even get to court. rights on the part of government political pressure wherever possible. By holding that socio-economic and the effect on subsequent socio- Finally, of all the factors necessary to economic rights litigation – were ensure that litigation leads to social 86 See for example: Khosa & Others v Minister of diminished by the later Mazibuko Social Development & Others [2004] ZACC 11; change, perhaps the most significant is litigation. We address this further below 2004 (6) SA 505 (CC). follow-up. This applies irrespective of the 87 See for example: Western Cape Forum for as part of the Mazibuko case study. Intellectual Disability v Government of the kind of remedy granted by the court. Republic of South Africa & Another [2010] ZAWCHC 544; 2011 (5) SA 87 (WCC).

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■ Background programme to prevent MTCT. The objective was to put pressure on For HIV-positive pregnant women, government to implement the steps The Treatment there is a 30% risk that the child will listed in the Department of Health’s be infected with HIV, mostly during 1994 National AIDS Plan for South Action birth and the breastfeeding period. The Africa. These included offering Campaign issue of mother-to-child transmission HIV testing at antenatal clinics on a (MTCT) of HIV was extremely voluntary basis and conducting research case on the important in South Africa given that, into methods of preventing perinatal by 1998, it was estimated that up to transmission such as short-course prevention of 70 000 children were born with HIV AZT and non-nucleoside reverse every year, and there were already signs transcriptase inhibitors. mother-to-child that HIV was causing a rise in infant mortality. Most of these children live The campaign received renewed transmission of short, painful lives, with HIV infection impetus in December 1998 when HIV carrying a terrible toll for both parents the TAC was founded and set as one and children. of its primary objectives a demand One of the most well-known of all that government implement a the decisions of the Constitutional One of the earliest and most enduring programme to prevent MTCT. The Court, at least in the public eye, is the breakthroughs in the fight against the TAC conducted extensive activities in TAC case. Unlike the two case studies AIDS pandemic was the discovery in this regard between 1999 and 2001, dealt with above, in the TAC case we 1994 that the use of the antiretroviral including meetings with the first have the advantage of a full written (ARV) drug AZT could dramatically and second post-1994 Ministers of account of the background, strategies reduce the risk of MTCT. However, Health, demonstrations, the drafting of and outcomes of the case authored by this would be of limited efficacy outside memoranda, a 50 000-signature petition someone directly involved in the case. of industrialised countries because of to the President and a campaign that the need to begin administering the targeted pharmaceutical companies The articlePreventing mother-to-child drug relatively early in pregnancy and to reduce the prices of essential ARV HIV transmission in South Africa: the infrastructural requirements for medicines, particularly AZT. Background, strategies and outcomes of its delivery. Consequently, research the Treatment Action Campaign’s case began to find shorter and simpler Initially, demands for a policy and plan against the Minister of Health88 was ARV regimens that would also benefit on the prevention of mother-to-child written by Mark Heywood, co-founder patients in poorer countries. Ultimately, transmission (PMTCT) received of the TAC and its then National a clinical trial in Thailand demonstrated a relatively sympathetic ear from Secretary, and head of the AIDS Law that a short course of AZT given to government. In 1998, for example, the Project (ALP – now Section27). mother and child (starting at 36 weeks Gauteng health department responded timeously to the results of the In what follows, rather than attempting of pregnancy) still brought about significant reductions in MTCT. Bangkok-Thai study by announcing the to restate the facts relating to the TAC establishment of five pilot sites where case in our own words, we have instead It was with the aim of securing the programmes to reduce MTCT would made extensive use of the article by benefits of these breakthroughs in be introduced. On 30 April 1999, a Heywood. medical science for mothers who were meeting between the TAC and the then HIV positive that, as early as in 1997, Minister of Health, Nkosazana Dlamini- various HIV and AIDS organisations Zuma, led to a joint statement that the began a period of sustained lobbying price of AZT was the major barrier to a of the Minister and the Department PMTCT programme, and to a promise 88 Published in South African Journal on Human Rights, Vol. 19, Part 2: 2003, pages 278-315. of Health to develop a policy and that:

48 Public interest litigation and social change in South Africa: Strategies, tactics and lessons Changing trends in the South African public interest litigation environment Chapter 2

HIV-positive mother and HIV-negative child. Photograph: Helen MacDonald ©

[g]overnment would name in Africa is caused by poverty and that a The President informed the NCOP that an affordable price for the range of poverty-related illnesses (such he had instructed his new Minister of implementation of AZT to pregnant as tuberculosis) are misrepresented as Health, Manto Tshabalala-Msimang mothers and report within six HIV-related in order to create markets (who succeeded Dlamini-Zuma in June weeks on the price and other issues for first-world drugs, particularly ARVs. 1999), to launch a probe into the safety pertaining to the prevention of of AZT and that, until it was complete, When the TAC launched legal action mother-to-child transmission.89 the drug would not be used in South to demand broader access to the Africa. At this point, it appeared that the drug Nevirapine in 2001, none of the TAC’s campaign would primarily target affidavits filed by government officials From this point onwards, progress in manufacturers of ARV medicines made reference to these dissident implementing a national programme to force them to reduce their prices. views on ARV medicines or whether to prevent MTCT was derailed. A few However, an unanticipated and HIV is a cause of AIDS as reasons weeks later, on 16 November 1999, unfortunate diversion revealed itself in to justify the failure to develop or the Minister of Health announced to late 1999 – AIDS . implement a programme. However, a the National Assembly that although Since the mid-1990s, a small group of sometimes hidden, sometimes open she was aware of the positive results of scientists had developed a thesis that relationship was apparent between AZT: HIV had not been properly isolated the then President and […] there are other scientists who say as a virus, and that the real causes of AIDS denialists, and this seemed to not enough is yet known about the AIDS were initially the recreational be the primary reason for the delays in effects of the toxic profile of the drug, drugs taken by many gay men in the US establishing a PMTCT programme. that the risks might well outweigh the in the late 1970s and early 1980s, and The fact that such a relationship benefits, and that the drug should not 91 thereafter ARV medicines. This group existed was first signalled in October be used. (often referred to as ‘AIDS dissidents’) 1999 in a speech by President Mbeki As a result, she instructed the argued that, rather than helping to to the National Council of Provinces Medicines Control Council (MCC) to restore the immune system, ARV drugs (NCOP). At the end of this speech, he review the use of AZT. destroy it by destroying cell replication unexpectedly questioned the safety of and causing a range of life-threatening AZT and warned that the: On 5 April 2000, the Minister of Health made a speech to Parliament that had all side effects. Although their arguments […] toxicity of this drug is such that it the hallmarks of ‘dissidentese’. Raising vary, the basic contention is that AIDS is, in fact, a danger to health.90 91 Department of Health, Statement to the National 90 Department of Health, Address to the National Assembly by Dr M E Tshabalala-Msimang MP, 89 Quoted from Treatment Action Campaign News, Council of Provinces, Cape Town, 28 October Minister of Health, on HIV/AIDS and related 26 July 2000. 1999. issues, Tuesday, 16 November 1999.

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As early as in 1997, various HIV and AIDS organisations began a period of sustained lobbying of the Minister and the Department of Health to develop a policy and programme to prevent mother-to-child transmission of HIV. The campaign received renewed impetus in December 1998 when the TAC was founded.

reasonable concerns about a number tour to Uganda, which included the appeared to be confirmed at the of deaths of adults on therapeutic drug objective of hearing more about the International AIDS Conference held in trials that appeared to be associated trial of this drug. in July 2000. The conference with daily Nevirapine use as part of opened in controversy as President In answer to the growing pressure from a combination of ARV drugs, she Mbeki spoke eloquently about the TAC, Nevirapine was now offered confused these deaths with the use poverty, but refused to name HIV as government’s probable medicine of of the same medicine for preventing as a specific challenge for Africa. At choice and the TAC was persuaded to intrapartum HIV transmission – despite the same time, government declined stall its demands pending the outcome the knowledge that it requires only an offer from Boehringer Ingelheim, of a local trial known as the South one dose to mother and child and the manufacturer of Nevirapine, of a African Intrapartum Nevirapine Trial the fact that there were no reported ‘free’ supply of the drug for (SAINT). The TAC accepted thebona adverse safety events concerning its and reacted coolly to a preliminary fides of the Minister, and for a period of use in PMTCT. Tshabalala-Msimang announcement of the SAINT study nine months pressure on government remained steadfast in opposition to results. It took the intervention of was reduced. The TAC engaged in a AZT, stating that government would former President Nelson Mandela to number of other successful campaigns never use AZT in PMTCT. quell the storm. In his closing speech that aimed to bring down the price at the conference, Mandela called for of essential anti-HIV medicines, and widespread interventions to prevent Government’s targeted patent abuse and drug pricing. MTCT. choice of Nevirapine This was generally not well received by clinicians working on PMTCT, who felt In response to these developments, An important development occurred in that the TAC had ‘let government off the TAC publicly reinstated its threat July 1999 when the first results of a drug the hook’. of litigation. This threat of legal action trial in Uganda, known as HIVNET in July 2000 raises important issues As the preliminary results of the 012 (testing the efficacy of a single dose about the timing and objectives SAINT study (supporting the use of of Nevirapine in reducing MTCT), of the litigation. By this time, the Nevirapine) had started to leak out in were released. The results showed that TAC’s campaign had already made mid-2000, a new catalogue of excuses Nevirapine had similar efficacy to AZT government policy on PMTCT a matter emerged from the Minister of Health. but with a much less complex regimen. of national concern and had achieved It seemed as if the clinicians’ concerns wide support. At the International In the face of presidential opposition were correct. to AZT, the Minister of Health and AIDS Conference in Durban, the others latched on to Nevirapine as an Fear of further delays and political TAC seriously considered bringing alternative and quickly arranged a study interference in public health policy an urgent High Court application

50 Public interest litigation and social change in South Africa: Strategies, tactics and lessons Changing trends in the South African public interest litigation environment Chapter 2

A sister at the Msunduzi Hospice comforts a dying man with AIDS at his home outside Pietermaritzburg, KwaZulu-Natal. Photograph: Henner Frankenfeld & PictureNET Africa ©

for access to Nevirapine on behalf of from the Durban conference. After wanted to take the drug, if she gave several women in the late stages of this meeting, the Health MinMEC – a birth at a place other than a pilot site, pregnancy. However, despite scientific committee consisting of the national she was not allowed to take the drug. consensus on its safety and efficacy, Minister of Health and the heads In April 2002, after substantial delays the medicine was not yet registered in (MECs – Members of the Executive apparently due to significant political South Africa for PMTCT. AZT was Council) of the nine provincial health interference, the MCC finally formally registered, but it was felt that the greater departments – decided that the registered Nevirapine for the prevention cost of this medicine, together with a current policy of not using AZT would of intrapartum HIV transmission. more complicated drug regimen, made continue and that the use of Nevirapine, successful litigation more difficult. once registered, would first be tested This removed the last obstacle to for two years at two pilot sites in every legal action. The TAC decided that The TAC’s legal counsel cautioned province. The reason for this was: both morally and politically it had no against commencing litigation before other option than to launch a case Nevirapine was registered, because […] to determine whether or not the against government. As Heywood although the TAC could point to exercise would be feasible, taking explains, the TAC was able to elicit precedents for ‘off-label’ use of into account all the operational the support of some of the most medicines, and even instances where issues. Should the pilot sites be experienced constitutional lawyers in government policy endorsed this, a successful, the next step would be the country, whose commitment and court would likely have stuck to the phased implementation; should this professionalism were central to the strict letter of the law. For a court not be possible the exercise would be 92 success of the case. formally to condone off-label use of terminated. medicines was inviting compromise This approach ignored the ethical and Politics and in the system of medicine registration. constitutional obligation to provide There was no other option for the Nevirapine to women who already mobilisation TAC but to continue the campaign knew they were HIV positive. It meant In essence, the TAC’s challenge related while delaying the litigation. Pressure that even where a woman knew she to public health policy. It should was now turned to the MCC to speed was HIV positive and knew about the have been managed by government up registration of the drug, and to potential effects of Nevirapine but government to clarify its programme. as a legitimate challenge, envisaged 92 Health MinMEC Minutes, 18 August 2000, and encouraged by the Constitution On 12 and 13 August 2000, the quoted from Mark Heywood, Preventing mother-to-child HIV transmission in South Africa: – similar, for example, to the Department of Health convened a Background, strategies and outcomes of the Soobramoney case. But it was not. Treatment Action Campaign’s case against the meeting with South African scientists Minister of Health, in South African Journal on to assess the new knowledge gleaned Human Rights, Vol.19, Part 2: 2003, page 286. Throughout this period, the denialist

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In essence, the TAC’s challenge related to public health policy. It should have been managed by government as a legitimate challenge, envisaged and encouraged by the Constitution. But it was not.

AIDS policy was under fierce attack For the TAC, litigation both emerges marches took place around South Africa, and the policy on Nevirapine – being from and feeds back into a social context. including an all-night vigil of 600 TAC essentially a manifestation of President Resort to litigation is not exclusive of volunteers outside the Pretoria High Mbeki’s AIDS policy – was ferociously other strategies. Litigation can also help Court before the hearing commenced. defended. There also appeared to catalyse mobilisation and assist public For the two days of the hearing, the be political interference in the case, education on contested issues, as well as Court was packed with people wearing particularly apparent in pressure bring about direct relief to individuals the TAC’s trademark ‘HIV-Positive’ brought to bear on the SAHRC to or classes of applicants. Thus, between T-shirt, and with health professionals withdraw its application to enter as August and December 2001, the TAC and journalists, all listening intently to amicus curiae in the case in support of engaged in intensive public mobilisation, the evolution of the argument. the TAC.93 attracting enormous support and media The urgency of the case seemed to be interest. The TAC, however, was prepared for understood by Judge Chris Botha, who the politics that surrounded the case. However, support within the TAC for a handed down his judgment to a tense It believed that the PMTCT policy litigation strategy could not be taken for and expectant court on 14 December was based on a political decision taken granted. 2001. On all the key issues, the High at the highest level of government. Court found in favour of the TAC, Internally, numerous workshops The TAC’s constitution empowers it commenting that in government’s were conducted with TAC volunteers to engage in litigation as a means of arguments: to explain the case. Externally, and challenging any type of discrimination among some of the TAC’s main allies [t]here was no unqualified relating to the treatment of HIV and – particularly the Congress of South commitment to reach the rest of the AIDS in the private and public sector. African Trade Unions (COSATU) population in any given time or at any This allows it to take legal action to – there was hesitation publically to given rate […] a programme that is enforce any right that is explicitly endorse taking ‘our’ government to open-ended and that leaves everything recognised in the South African court. Going the route of litigation to the future cannot be said to be Constitution. The reference to litigation 95 had to be defended against allies who coherent, progressive and purposeful. in the TAC’s constitution occurs in the considered it ‘disloyal’ or ‘unpatriotic’. same paragraph as a reference to: Judge Botha further declared that: While COSATU welcomed each [a]bout one thing there must be no [...] lobbying, advocacy and all forms of judgment in the TAC’s favour, it never 94 misunderstanding: a countrywide legitimate social mobilisation. openly backed the litigation. 95 Treatment Action Campaign & Others v Minister 93 Heywood, op.cit., pages 299-300. Mobilisation culminated on 25 and of Health & Others, High Court of South 94 About the Treatment Action Campaign, www. 26 November 2001, when rallies and Africa (Transvaal Provincial Division), Case No. tac.org.za. 21182/2001, page 24.

52 Public interest litigation and social change in South Africa: Strategies, tactics and lessons Changing trends in the South African public interest litigation environment Chapter 2

Former President Thabo Mbeki delivering his State of the Nation address at the opening of Parliament in February 2002. Photograph: Trevor Samson ©

MTCT prevention programme is an the principle of separation of powers operational and any new ones that may ineluctable obligation of the State.96 between the judiciary and the executive be decided upon.100 The High Court’s order was bold and by interfering in health policy and A few days later this shift seemed to be original. It instructed government ordering government to supply a specific confirmed in a live television interview to allow Nevirapine to be prescribed medicine. Thus, on 18 December 2001, when President Mbeki explicitly stated where it was ‘medically indicated’ and when the Minister of Health announced that provinces should be able to provide where, in the opinion of the doctors that she would seek leave to appeal a PMTCT programme according to acting in consultation with the medical directly to the Constitutional Court, it their respective capacities and that superintendent, there was capacity to was claimed that the appeal was: provinces with the resources to extend do so. The High Court also ordered […] aimed at clarifying a constitutional the programme should not be delayed government to develop: and jurisdictional matter which, if by provinces that did not have the left vague, could throw executive [...] an effective comprehensive national resources. policymaking into disarray and create programme to prevent or reduce confusion about the principle of the This new approach appears to have MTCT97 separation of powers, which is a been read by a number of senior ANC and to return to the Court with this cornerstone of our democracy.99 politicians as condoning the roll-out programme for further scrutiny before of the programme to health facilities 31 March 2002. where capacity existed or could The political and easily be created. In particular, on 18 The High Court judgment was February 2002, the then ANC Premier welcomed in South Africa and legal unravelling of of Gauteng, Mbhazima Shilowa, worldwide. The acclaim, however, was government’s case announced a bold roll-out of the not universal. In South Africa, it attracted programme. He promised that: the ire not only of government but also When President Mbeki opened of a number of legal academics, one Parliament in February 2002, he […] during the next financial year, we of whom declared it a case of “when appeared to shift government policy by will ensure that all public hospitals and judges go too far”.98 The accusation promising that: our large community health centres 101 arose that the High Court had breached […] continuing work will be done to will provide Nevirapine. monitor the efficacy of antiretroviral 96 Treatment Action Campaign & Others v Minister interventions against mother-to- 100 State of the Nation address by the President of of Health & Others op.cit., page 25. South Africa, Thabo Mbeki, to the joint sitting of 97 Treatment Action Campaign & Others v Minister child transmission in the sites already the Houses of Parliament, Cape Town, 8 February of Health & Others op.cit., page 26. 2002, www.gcis.gov.za. 98 Kevin Hopkins, Shattering the divide – when 101 Quoted from HIV drug to save 5 000 Gauteng judges go too far, in De Rebus, No. 409: March 99 Department of Health, Press Release: 19 babies a year, Independent Online: 18 February 2002. December 2001. 2002.

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On all key issues, the High Court found in favour of the TAC and issued a bold and original order. The judgment was welcomed in South Africa and worldwide, but attracted the ire of government and a number of legal academics.

He also named nine further hospitals to return to the Pretoria High Court to to seek leave to appeal against this that would commence the programme seek an order of execution on the part judgment directly to the Constitutional within the next 100 days. of the judgment that instructed that Court. In response, the TAC’s legal Nevirapine be made available where team quickly filed a counter-application However, once again falling foul of capacity existed. The justification for arguing that government’s main purpose public opinion and her own department this action was that it could save up for further legal action was solely to – which had initially claimed that to 10 lives a day during the period in stultify the execution order. New legal the Gauteng roll-out was within the which legal processes around the appeal issues arose as to whether interlocutory parameters set by the Health MinMEC took place – approximately six months. orders could be appealed. The matter – the Minister of Health publicly Outside and inside of court, the TAC was heard on 22 March 2002 and rebuked Shilowa. Although Shilowa argued that this approach was validated judgment was handed down three days gave the impression of backing down by developments in the political arena later. after a behind-the-scenes meeting, the such as President Mbeki’s 2002 State of Gauteng programme continued. By In the days immediately before the Nation address and the extension October 2002, Shilowa was in a position the hearing, government had of the programme in Gauteng and to announce that Nevirapine was taken advantage of the decision by KwaZulu-Natal. available at 70% of all health facilities in Boehringer Ingelheim to withdraw its Gauteng. On 1 March 2002, demonstrations took application to the U.S. Food & Drug place at the Pretoria High Court during Administration for the registration of During this period, politics and law the hearing of government’s application Nevirapine as preventing intrapartum developed an interesting dialectic. The for leave to appeal to the Constitutional HIV transmission. Inside (and pressure of the ongoing legal action Court and the TAC’s application for outside) of court, government cast this forced government back into court, an execution order, which were heard development as a safety issue, justifying and the different stages of the appeal together. Ten days later, on 11 March its caution in making the medicine and application for execution order 2002, another judgment was handed more widely available. However, further spurred advocacy and social down in favour of the TAC. In this the High Court saw this argument mobilisation – which in turn placed new judgment, the High Court granted the as a red herring, pointing out that if pressures on government. execution order and drew attention to the registration of Nevirapine was At its national executive committee the TAC’s argument that up to 10 lives withdrawn, it would apply to all uses of meeting in January 2002, and in a day could be saved by execution of the drug, including at government pilot discussion with its legal team, the orders 1 and 2, and that this was not sites. TAC had decided to embark on an denied by government. During this time, it seemed as if sensible offensive in response to the appeal, and Inexplicably, government decided legal advice to government was the last

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Co-founder of the Treatment Action Campaign (left) with former President Nelson Mandela, 27 July 2002. Photograph: Andrew October & Treatment Action Campaign ©

thing driving its case. It was as if a nerve as to why government was so fiercely in accordance with international had been touched and had triggered an opposed to the execution order. standards.103 irrational response that took everything Not surprisingly, on 4 April 2002, Against this backdrop, the TAC to the extreme, regardless of public the Constitutional Court refused mobilised for the last leg of the case – to perceptions, lives lost or the cost of government leave to appeal against the be heard in the Constitutional Court. ongoing legal action. Thus, on 26 March order of execution. A decision was taken to rally ‘Stand Up 2002 (one day after the Pretoria High for Your Rights’ marches on the first Court had dismissed the attempt to Constitutional day of the Constitutional Court hearing appeal the execution order) government advocacy on the and demonstrations were prepared in launched a further and final application Johannesburg, Cape Town and Durban. for leave to appeal – this time directly streets and in court In Johannesburg, over 5 000 people to the Constitutional Court. The marched to the Constitutional Court in application was heard on 3 April 2002. On 17 April 2002 – two weeks before the main appeal hearing in the support of the TAC. In the court of public opinion, Constitutional Court – Cabinet took On 2 May 2002, the Constitutional government’s various appeals were South Africa and the world by surprise Court was filled with activists, doctors, lambasted by newspaper editorials and by releasing a statement on HIV nurses and the media. Two months political cartoonists. The appeals were and AIDS that, among other things, later, on 5 July 2002, the judgments in also a failure of legal strategy. Although promised: the TAC case and related matters were the legal issues that the Constitutional […] a Universal Roll-out Plan to be handed down. Court had to decide in the latest completed as soon as possible, in appeal were narrow and different from Unanimously, the Constitutional Court preparation for the post-December those it would consider in the main decided that government’s policy 2002 period.102 appeal, they could not be decided had not met the state’s constitutional without considering the broader issues, For the first time, Cabinet publicly obligations to provide people with including the rationality of the PMTCT acknowledged that ARV drug access to health care services in a policy. The result was that government treatments: manner that was reasonable and took itself created a situation where the […] could help improve the conditions account of pressing social needs. issues of the case were aired in the of [people living with HIV and AIDS] Drawing on its own prior judgments Constitutional Court a month before if administered at certain stages in and foreign jurisprudence, the Court the date set for the full appeal. the progression of the condition, confirmed the judiciary’s right to issue instructions to government to amend During the hearing, the Constitutional 102 Statement by Cabinet on HIV/AIDS, 17 April Court judges appeared to be at a loss 2002. 103 Ibid.

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On 5 July 2002, the Constitutional Court handed down judgments in the TAC case and related matters. Unanimously, the Court decided that government’s policy had not met the state’s constitutional obligations to provide people with access to health care services in a manner that was reasonable and took account of pressing social needs.

policies where these were found to be acting in consultation with the issue and the history of government’s unconstitutional. The judgment also medical superintendent of the facility conduct in the case, a supervisory order insisted on the court’s right to: concerned this is medically indicated, was both justified and necessary as it […] ensure that effective relief is which shall if necessary include that would make it easier to monitor and granted [and to exercise] supervisory the mother concerned has been oversee compliance. jurisdiction.104 appropriately tested and counselled. (c) Make provision, if necessary, for Without contradicting the High Court, Follow-up counsellors based at public hospitals the Constitutional Court stopped short and clinics other than the research The judgment of the Constitutional of setting time frames for government and training sites, to be trained for Court did not end the disputes over the on the basis that it accepted the the counselling necessary for the use provision of PMTCT services. After it bona fides of commitments made by of Nevirapine to reduce the risk of was handed down, pressure continued government whose policy was no longer mother-to-child transmission of HIV. to be necessary to ensure provinces as rigid as it was when proceedings complied with the court order. The (d) Take reasonable measures to commenced. Instead, it ordered TAC held meetings with the Director extend the testing and counselling government without delay to: General of the Department of Health, facilities at hospitals and clinics (a) Remove the restrictions that the Deputy President of South Africa, throughout the public health sector prevent Nevirapine from being and with MECs in the three least to facilitate and expedite the use made available for the purpose of compliant provinces. of Nevirapine for the purpose of reducing the risk of mother-to-child reducing the risk of mother-to-child In September 2002, the TAC took a transmission of HIV at public hospitals transmission of HIV.105 decision to launch rolling contempt of and clinics that are not research and court proceedings against individual training sites. Ironically, in light of the April Cabinet provinces, and this decision was (b) Permit and facilitate the use resolution, this was arguably a more communicated to the Director General. of Nevirapine for the purpose of intrusive order than that of the High This triggered government’s first serious reducing the risk of mother-to-child Court. Time frames and an instruction attempt to provide the TAC with the transmission of HIV and to make it to return to court were replaced with information that the Constitutional available for this purpose at hospitals instructions requiring immediate Court held it was under a duty to and clinics when in the judgement action. Despite this, some observers make available. The information was of the attending medical practitioner have argued that, given the life and inadequate but reflected a creeping death nature of the human rights compliance that benefited parents and 104 Minister of Health & Others v Treatment Action Campaign & Others (No. 2) [2002] ZACC 15; 105 Minister of Health & Others v Treatment Action children. For example, on 16 October 2002 (5) SA 721 (CC), paragraph 106. Campaign & Others op.cit, paragraph 135.3.

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A Treatment Action Campaign demonstration in Durban, March 2002. Photograph: Richard Shorey ©

2002, an email was received from a programme – which owes its existence Berger adds that: doctor in the province saying in large part to the Court victory [h]ad this work happened earlier, the that the provincial health department – many people believe that the drug regimen used in the PMTCT there had: TAC has continually monitored the programme may have been improved […] at long last [given] permission for implementation of [the judgment], – in line with current World Health the implementation of the PMTCT putting pressure on government to Organization guidelines. Certainly, programme. I think this was due to comply with the order. Given the coverage of the programme, uptake pressure from the TAC/courts. [The] detail of the order granted by the and its linkages with the ARV initiative came from their side this time Constitutional Court, in some ways treatment programme, would in all and they seem to be in quite a hurry to perhaps dispensing with the need for likelihood have been better.107 get the programme up and running. a structural interdict, it should have been possible for an organisation Broader Lessons of the TAC’s size and strength to do what is clearly required to ensure consequences and As we highlight in the remainder of this effective implementation. But this did ramifications publication, the TAC case is an almost not happen. Despite recognising the perfect model of how to combine importance of the issue in the case, the Despite the concerns about follow- social mobilisation with litigation. It is organisation’s focus was largely on the up, it is important to appreciate the without a doubt a shining example as to bigger picture, seeing [the judgment] extraordinary practical effects of the how litigation – when run properly and as an entry point to develop the right case. These effects were not only about as part of a series of broader strategies – to health in general and access to the provision of treatment to prevent can achieve social change. ARV treatment in particular. The TAC MTCT of HIV. Rather it was about the admits that it was a mistake to take its manner in which South Africa would However, the one aspect of the TAC eye off the ball. Its current programme deal with and treat HIV and AIDS in case that was, in retrospect, inadequate of action thus focuses attention general. was its follow-up after the court victory. on improving on the state’s MTCT This is notwithstanding the efforts In 2000, the scale of the HIV and prevention programme.106 referred to above. The deficiencies AIDS pandemic in South Africa was in follow-up and their effect are well staggering. Whereas the prevalence of 106 Jonathan Berger, Litigating for Social Justice explained by Jonathan Berger: in Post-Apartheid South Africa: A Focus on HIV among women attending public Perhaps because of its high profile Health and Education, in Varun Gauri & Daniel antenatal clinics had been less than M Brinks (eds), Courting Social Justice: Judicial work regarding the implementation Enforcement of Social and Economic Rights in 1% in 1990, by 1995 it was more than the Developing World, 1st Edition, Cambridge of the public sector ARV treatment University Press: 2008, page 80. 107 Ibid.

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10%, and by 2000 it had passed 24%. employed or unemployed, is denied ■ Thus, almost a quarter of all pregnant treatment for AIDS because they women attending public health facilities cannot afford it. in South Africa had HIV, and there was The South African government The Mazibuko no sign of the rise in infections levelling programme to provide antiretroviral 108 case on access off. medications is the largest publicly When the TAC case was first provided AIDS treatment programme to water conceptualised, it was hoped that it in the world. This is the most significant practical outcome of the One of the most controversial decisions would be the first step towards achieving of the Constitutional Court in the universal treatment for all people living court’s decision. Although too many people are still dying of AIDS, the last few years is the decision in the with HIV. In this regard, the TAC 111 decision saved many lives. More even Mazibuko case. This case was the first saw the PMTCT litigation as an ideal and thus far only case on the right of starting point in dealing with the issue than Grootboom, the Nevirapine case materially changed the lives of access to sufficient water to reach the as opposed to, for example, litigation Constitutional Court. seeking ARVs for all HIV-positive people hundreds of thousands and ultimately (which was regarded as too expensive to millions of people: it enabled them to have good prospects), or ARVs for not die. In this way, the court’s decision Background had dramatic practical force.109 survivors (where the absence of clinical The applicants in the Mazibuko case trials would be an obstacle to success). As Cameron explains, this was in part were five residents of Phiri, Soweto. Ultimately, the TAC did indeed achieve because the Court’s decision: Phiri is one of the poorest areas in universal treatment for everyone living […] had a profound effect on public Johannesburg. Many of its residents with HIV. This was because of the ideas and public discussion. […] It was cannot afford to pay for basic services skilful way in which the TAC not merely a rebuke not only for government and water. Properties in Phiri are often succeeded in the litigation but regarded inaction on AIDS drugs, but for the occupied by multiple residents, all using this as just one component of its overall anguished and utterly unnecessary the same water supply. struggle for access to medicines. debate that led to that inaction. That Until 2003, the residents of Phiri poor women had a legal right to use The effects are described compellingly were provided with unlimited water anti-retroviral drugs to protect their by Justice Edwin Cameron (who was in their homes, charged on a ‘deemed babies from HIV transmission, and not a Constitutional Court judge at the consumption’ basis at the rate of R68 that government was constitutionally time of the TAC decision): per month. This rate assumed a monthly obliged to offer them the choice to do consumption of 20 kilolitres per As a matter of political history, the so, dealt a blow that would eventually household per month. It was part of the court’s decision was the pivot that prove fatal to the presidential discourse apartheid legacy of charging a fixed rate eventually forced government to of denialism.110 for water usage, irrespective of actual take decisive action in the epidemic. consumption, in the absence of water Although it responded grudgingly meters. at first, government eventually gave effect to the ruling. Large-scale However, due to numerous factors, provision of ARVs began 30 months including Soweto’s aging and leaking later, in December 2004. water infrastructure and a culture Today, well over two million people in of non-payment (in protest against South Africa are living because of ARV discriminatory service delivery), enormous amounts of water were lost in treatment. […] no one, rich or poor, 109 Cameron, Justice – A Personal Account op.cit., page 197. 108 Cameron, Justice – A Personal Account op.cit., 110 Cameron, Justice – A Personal Account op.cit., 111 Mazibuko & Others v City of Johannesburg & pages 140-141. pages 197 and 198-199. Others [2009] ZACC 28; 2010 (4) SA 1 (CC).

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Soweto. Very little revenue in respect of The response of members of the Phiri in managing any infringements of water consumption was generated there. community was to resist the roll-out of these terms. This effectively put an the PPMs. There were two organisations end to the direct activism. With this As a result, the company responsible integrally involved in this process – the avenue of protest effectively closed for providing water and sanitation Anti-Privatisation Forum (APF) and the off, the community turned to the in Johannesburg – Johannesburg Coalition Against Water Privatisation. option of rights-based litigation as a Water – and the City of Johannesburg Among the APF’s core objectives were: tactic to challenge PPMs (together decided that it was necessary to alter the with the ‘standpipe’ yard taps that pattern of water usage in Soweto. They […] a halt to all privatisation of public the City offered some residents as an developed a plan that aimed to reduce sector entities and return of public alternative to PPMs).113 unaccounted-for water, rehabilitate the control and ownership; [and] the water network, reduce demand for water co-ordination and intensification and improve the rate of payment. of antiprivatisation struggles in Litigation communities.112 Phiri was selected as the area where the The case was launched in the plan would first be implemented. In The move towards litigation was part of Johannesburg High Court in 2006. It 2003 and 2004, residents were required the effort to resist the roll-out of PPMs. was factually complex and involved to choose between a prepayment meter As Dugard and Langford explain: enormous amounts of research and (PPM) and a yard tap. The yard tap had Determined not to accept PPMs, marshalling of evidence regarding a restricted water flow providing only the Phiri community embarked on budgets and policy considerations. six kilolitres of water per month. The a course of direct resistance against The litigation was brought with PPMs dispensed six kilolitres of free the roll-out. However, the resistance the assistance of experienced and water per household per month, and was critically undermined after knowledgeable public interest litigators. once this free water allocation had been the City secured a wide-ranging CALS served as the attorney for the consumed, the PPMs automatically cut interdict. Activists were prohibited applicants. Though the APF and the off the water supply unless more credit from coming within 50 meters of any Coalition Against Water Privatisation was purchased. PPM operations and private security were actively involved in the process, companies were authorised to assist Residents with PPMs, unlike those in they did not participate as named other suburbs of Johannesburg, were applicants in the litigation. not given the option to buy water on 112 Jackie Dugard, Civic Action and Legal Mobilisation: The Phiri water meters case, in Jeff As the quote from Dugard and credit. However, prepayment users paid Handmaker & Remko Berkhout (eds), Mobilising Langford above makes clear, the Social Justice in South Africa: Perspectives from significantly less for water than those on Researchers and Practitioners, Hivos/ISS Civil litigation was “a tactic to challenge credit meters. Society Building Knowledge Programme/Pretoria University Law Press, : 2010, page 87. 113 Dugard & Langford op.cit., page 43.

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One of the most controversial decisions of the Constitutional Court in the last few years is the decision in the Mazibuko case. This case was the first and thus far only case on the right of access to sufficient water to reach the Constitutional Court.

PPMs”. During the writing of this unable to pay for it would certainly PPMs within two years. publication, Dugard confirmed to us be able to access at least 50 litres per Despite the alterations made by the that this litigation was always primarily person per day. The City was prepared Supreme Court of Appeal to the High about the PPMs. to have the settlement made an order Court order, the Supreme Court of of court, with the consequence that However, in some respects, this was Appeal judgment still represented a non-compliance could be enforced by not the way the case was presented to significant victory for the applicants. contempt proceedings. The applicants, the court. The relief sought and the however, refused the offer because it The applicants, however, elected to manner in which the case was presented, would have required them to relinquish appeal the Supreme Court of Appeal especially before the High Court, was the challenge to the PPMs. judgment to the Constitutional Court. broader and covered two main issues: This was primarily because of the The matter was then argued in the High • Firstly, the applicants sought to have applicants’ concerns regarding the order Court and the applicants succeeded. the use of PPMs declared unlawful. of the Supreme Court of Appeal on the They secured an order that the right to • Secondly, the applicants challenged PPM issue.115 the City’s free basic water policy. In water entailed a free basic water supply terms of this policy, every household of 50 litres per person per day and that The applicants’ decision to appeal 114 in Johannesburg was provided PPMs were unlawful. was an important and, with hindsight, ultimately damaging one. The appeal with six kilolitres of free water per The City then appealed to the Supreme by the applicants in turn resulted in a month. The applicants contended Court of Appeal. The Court reduced cross-appeal by the City, meaning that that this was unreasonable and the amount of water required to be the entire case was placed before the constitutionally insufficient and that supplied to 42 litres per person per day Constitutional Court. It is clear that the they were entitled to 50 litres per and required the City to reformulate its City would not have sought to appeal to person per day free of charge. policy in light of this finding. The Court the Constitutional Court in the absence also found that the use of PPMs was Before the matter was heard in the of the appeal by the applicants. High Court, the City made an offer unlawful but suspended the effect of its of settlement. It offered to make declaration of invalidity for two years In the Constitutional Court, the City its supplementary water provision to allow the City to amend its bylaws to did not seek to defend the policy that measures, which would in effect have allow for PPMs. This meant that PPMs the applicants had originally challenged. provided those in need with unlimited could continue to be used during this Instead, it updated and revised the water, an order of court. The settlement period and raised a real possibility that policy, partly in light of the challenge, offer would have ensured that those the City would regularise the use of and sought to put additional evidence who required additional water but were 114 Mazibuko & Others v City of Johannesburg & Others [2008] ZAGPHC 106. 115 Dugard & Langford op.cit., pages 44-45.

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Wall mural in Phiri, Soweto. Photograph: Anti-Privatisation Forum ©

before the Constitutional Court of The applicants disputed the admissibility […] does not require the state upon the changes it had made. Crucially, of this new evidence, arguing that the demand to provide every person with the City placed evidence before the policy should be evaluated as it was at sufficient water[…] ; rather it requires Constitutional Court that it had the time the challenge was launched. the state to take reasonable legislative expanded its indigent persons policy The Constitutional Court rejected these and other measures progressively to to include among others the following contentions, holding that the duty of realise the achievement of the right benefits: progressive realisation requires the of access to sufficient water, within 117 • People who were registered as state continually to review and revise available resources. indigent would receive 10 kilolitres its policies. The Court held that the Furthermore, the Court found that: evidence was admissible: of free water per month, rather than […] ordinarily it is institutionally […] for the purpose of showing that the the standard six kilolitres provided inappropriate for a court to determine City accepts an obligation to continue to everyone with a PPM. precisely what the achievement of any to revise its policy consistently with • An allowance was made for an particular social and economic right the obligation to ensure progressive additional four-kilolitre allocation entails and what steps government realisation of rights, and that it has for emergencies. should take to ensure the progressive done so.116 • A mechanism was created for realisation of the right. This is a matter, individuals to make representations in the first place, for the legislature for an additional allocation The judgment of the and executive, the institutions of depending on their personal Constitutional Court government best placed to investigate circumstances (including, for social conditions in the light of example, people living with HIV and The Constitutional Court overturned available budgets and to determine AIDS). the judgments of both lower courts, what targets are achievable in relation These measures were provided under finding that the City’s free basic water to social and economic rights. Indeed, the City’s interim policy for indigent policy was reasonable. The Court it is desirable as a matter of democratic persons. In terms of the final policy that refused to give quantified content to the accountability that they should do so it intended to implement, every indigent right to water, holding that this would for it is their programmes and promises person would be entitled to at least 50 not be appropriate. It reaffirmed the that are subjected to democratic litres of free basic water per day, which approach to socio-economic rights that popular choice.118 was essentially what the applicants were it had taken in the Grootboom and TAC asking the Constitutional Court to cases. It found that the right to water: 117 Mazibuko & Others v City of Johannesburg & order. Others [2009] ZACC 28 op.cit., paragraph 50. 116 Mazibuko & Others v City of Johannesburg & 118 Mazibuko & Others v City of Johannesburg & Others [2009] ZACC 28 op.cit., paragraph 40. Others [2009] ZACC 28 op.cit., paragraph 61.

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The Mazibuko litigation was a tactic to challenge prepayment water meters, but in some respects, this was not the way the case was presented to the court.

The Court pointed out that its orders of reasonableness. From Grootboom, Court interpreted their free basic water in the Grootboom and TAC cases it is clear that a measure will be claim as being “similar to”122 a minimum illustrated: unreasonable if it makes no provision core argument. The Court rejected the […] institutional respect for the policy- for those most desperately in need. claim for the same reasons as in the making function of the two other arms If government adopts a policy with Grootboom case. unreasonable limitations or exclusions, of government. The Court did not Finally, the Constitutional Court spelt as in Treatment Action Campaign seek to draft policy or to determine its out its vision of the role and purpose of No 2, the Court may order that those content. Instead, having found that socio-economic rights litigation. The are removed. Finally, the obligation the policy adopted by government did passage of the Mazibuko judgment is of progressive realisation imposes a not meet the required constitutional worth quoting at length in view of its duty upon government continually standard of reasonableness, the Court, potential effect on future public interest to review its policies to ensure that in Grootboom, required government litigation: to revise its policy to provide for those the achievement of the right is 120 The outcome of the case is that the most in need and, in Treatment Action progressively realised. applicants have not persuaded this Campaign No 2, to remove anomalous The Constitutional Court held that Court to specify what quantity of water restrictions.119 the High Court and the Supreme is “sufficient water” within the meaning The Constitutional Court summarised Court of Appeal had overlooked these of Section 27 of the Constitution. Nor its approach to socio-economic rights considerations and erred by quantifying have they persuaded the Court that cases as follows: the content of the right. the City’s policy is unreasonable. The [T]he positive obligations imposed Despite the applicants’ disavowal applicants submitted during argument upon government by the social and of reliance on the concept of the that if this were to be the result, economic rights in our Constitution will ‘minimum core’,121 the Constitutional litigation in respect of the positive be enforced by courts in at least the obligations imposed by social and 120 Mazibuko & Others v City of Johannesburg & following ways. If government takes no Others [2009] ZACC 28 op.cit., paragraph 67. economic rights would be futile. It is 121 steps to realise the rights, the courts A ‘minimum core’ approach to socio-economic necessary to consider this submission. rights involves a determination of some basic will require government to take steps. level of the relevant socio-economic right The purpose of litigation concerning the If government’s adopted measures are that every person is, absent extraordinary positive obligations imposed by social circumstances, able to claim. In both the unreasonable, the courts will similarly Grootboom case (Government of the Republic and economic rights should be to hold of South Africa & Others v Grootboom & Others require that they be reviewed so as op.cit., paragraphs 29-33) and the TAC case the democratic arms of government to to meet the constitutional standard (Minister of Health & Others v Treatment Action account through litigation. In so doing, Campaign & Others op.cit., paragraphs 26-39), the Constitutional Court effectively rejected 119 Mazibuko & Others v City of Johannesburg & this approach in favour of a reasonableness 122 Mazibuko & Others v City of Johannesburg & Others [2009] ZACC 28 op.cit., paragraph 65. approach. Others [2009] ZACC 28 op.cit., paragraph 52.

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litigation of this sort fosters a form of the policy it has selected is reasonable, Lessons participative democracy that holds it must show that the policy is being government accountable and requires reconsidered consistent with the The Constitutional Court judgment it to account between elections over obligation to “progressively realise” provoked outrage and dismay on the specific aspects of government policy. social and economic rights in mind. part of some public interest litigators When challenged as to its policies A policy that is set in stone and never and commentators, who interpreted relating to social and economic revisited is unlikely to be a policy that it as the death knell for South African rights, the government agency must will result in the progressive realisation socio-economic rights litigation. It explain why the policy is reasonable. of rights consistently with the has been said, for example, that the Government must disclose what it obligations imposed by the social and Mazibuko judgment: has done to formulate the policy: economic rights in our Constitution. • […] represents a retreat for the Court its investigation and research, the This case illustrates how litigation from its hey-day when (in the TAC alternatives considered, and the concerning social and economic rights case) it ordered the state to take reasons why the option underlying the can exact a detailed accounting from steps to make Nevirapine available;124 policy was selected. The Constitution government and, in doing so, impact • […] endorses the neo-liberal does not require government to be held beneficially on the policy-making paradigm of water provision adopted to an impossible standard of perfection. process. The applicants, in argument, by the city, a policy which would Nor does it require courts to take over rued the fact that the City had often deny poor people access to the tasks that in a democracy should continually amended its policies during adequate water because they would properly be reserved for the democratic the course of the litigation. In fact, be unable to pay for the water arms of government. Simply put, that consequence of the litigation (if needed to live;125 through the institution of the courts, such it was) was beneficial. Having to and that it is government can be called upon to explain why the Free Basic Water policy • […] a classic example of a lazy account to citizens for its decisions. was reasonable shone a bright, cold legalism as well as wholly biased and This understanding of social and light on the policy that undoubtedly contradictory reasoning.126 economic rights litigation accords with revealed flaws. The continual revision the founding values of our Constitution of the policy in the ensuing years and, in particular, the principles that has improved the policy in a manner 124 government should be responsive, entirely consistent with an obligation of , Water is life (but life is cheap), www.constitutionallyspeaking.co.za: 13 October accountable and open. progressive realisation.123 2009. 125 Ibid. Not only must government show that 123 Mazibuko & Others v City of Johannesburg & 126 Constitutional Court rules against Phiri, Coalition Others [2009] ZACC 28 op.cit., paragraphs 159- Against Water Privatisation, www.apf.org.za: 8 163. October 2009.

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The Constitutional Court judgment in the Mazibuko case provoked outrage and dismay on the part of some public interest litigators and commentators, who interpreted it as the death knell for South African socio-economic rights litigation.

There is no doubt that the Mazibuko case on a particular right should take as not be taken too far. As we have made judgment is unhelpful for future its focus the worst off, or the poorest of clear above, irrespective of how the case litigation on socio-economic rights the poor. was characterised in the media, and even in South Africa. However, we do not in the litigation itself, it seems clear that It would have been difficult for the City consider that it has had or will have the the main concern of the applicants was of Johannesburg to resist, for example, apocalyptic effect initially claimed by to resist the installation of PPMs. At a structural interdict compelling it its critics. its core, therefore, the case was not as to demonstrate what it was doing much about the City’s water policy as In what follows, we distil five main to extend access to water to the it was about an attempt to prevent the public interest litigation lessons from approximately 750 000 residents in the implementation of the privatisation of the Mazibuko case. City who have none at all. water (and ultimately other) municipal Taking a cautious We consider that this point has much services. force and that it demonstrates how approach when litigating When understood in this way, the future cases on the right to water (and rights without precedent reasons why the case was not run on other socio-economic rights) might be behalf of residents with no access to The first lesson is that when litigating run. Indeed, LHR is currently in the water at all become clear. Indeed, once rights in respect of which no precedent process of building and launching just one accepts the proposition that the exists, taking a cautious, incremental such a case, on the right to water and on case was fundamentally a case about approach to the relief sought is the behalf of farming communities living resisting PPMs and privatisation, it is prudent option. without access to safe and clean water in hard to conceive of better applicants. The Mazibuko case was the first serious the Northern Cape province. However, with this understanding, attempt to litigate the right to water. We do not suggest that litigation must additional difficulties which are of It was suggested by a number of our necessarily begin with the worst off. importance in their own right are respondents and by commentators that However, where it is possible to persuade revealed. the first right to water case should have a court that the relief sought would been on behalf of those who are worst amount to giving content to a right in The first difficulty is that litigation off with respect to water – the many an incremental, restrained manner, it is not generally a reliable means to people who have no access to water at is more likely to succeed. The sexual obtain direct large-scale and radical all – rather than people who were in the orientation litigation discussed earlier is policy change such as reversing the relatively advantaged position of having an example of this. privatisation of the provision of basic access to running water in their homes services. but could not afford to pay for it. This is In fairness to the applicants in the a variation on the criticism that the first Mazibuko case though, this point must If the Mazibuko litigation is viewed

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Communal tap for drinking water in Soweto. Photograph: E Muench & www. wikimedia.org ©

as being primarily about PPMs and of the case – against PPMs. free of charge, let alone in a developing privatisation – and with the obvious and water-stressed country like South The same potential tension is evident benefit of hindsight – the case had Africa. in the decisions the applicants had to a high mountain to climb. This case take regarding whether to accept the Moreover, an order invalidating the use is then materially different from the settlement proposal and whether to of PPMs (especially with immediate Grootboom case (where no real appeal to the Constitutional Court. In effect as the applicants sought) policy considerations were at play) both cases, the prepayment water issue would have had enormous financial and the TAC case (which was about suggested taking one route (refusing implications for the City. Huge sums policy completely precluding access the settlement and proceeding with of money had already been spent and to medicines and on very dubious the appeal), whereas the free basic over 80 000 meters had already been grounds). water policy issue might have suggested installed. This was inevitably going The second difficulty is that taking the opposite route. to raise a risk that even if the court achieving two different objectives found for the applicants on the merits in a single case can be problematic Ensuring the of the attack, it would be inclined to and counterproductive. In this case, jurisprudential suspend the declaration of invalidity in the two aims – challenging PPMs sustainability and terms of Section 172(1)(b)(ii) of the and privatisation on the one hand, practicality of the order Constitution while the City corrected and challenging the free basic water sought the defect – thus allowing the PPMs policy on the other – did not always sit The second lesson relates to the vital to remain in place.127 This was the comfortably with each other. importance of reassuring courts that the approach taken by the Supreme Court of Appeal. As one of our respondents explained, if order sought is both jurisprudentially the aim was primarily to ensure wider sustainable and practically workable. At a broader level, we point out that the access to water, it might well have In the Mazibuko case, the practical 127 Section 172(1) of the Constitution provides: made more sense for the organisations and cost implications of the broad, When deciding a constitutional matter within its involved to organise registration and ambitious relief sought by the power, a court— (a) must declare that any law or conduct that is education campaigns to maximise the applicants regarding the City’s free inconsistent with the Constitution is invalid to number of people who registered for the extent of its inconsistency; and basic water policy ultimately counted (b) may make any order that is just and the City’s indigent persons benefits, against them. The applicants were equitable, including— thereby ensuring that more people had (i) an order limiting the retrospective effect unable to find any precedent in the of the declaration of invalidity; and access to the 10 kilolitres of free water world in which a court had ordered the (ii) an order suspending the declaration of invalidity for any period and on any per month. However, this route would provision of 50 litres per person per day conditions, to allow the competent authority arguably have undermined the other leg to correct the defect.

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courts have, understandably, become indigent residents. (when explaining the damage done by increasingly receptive to requests by the failed sodomy reform case in the US It is apparent that there are problems government departments for orders of Supreme Court): with the implementation of these types suspending declarations of invalidity. of policies – but it is here that extra- The most important judicial body This means that it is now critical for legal strategies such as mass-registration in the United States has expressed public interest litigants to consider at campaigns, engagement with the City, a certain distaste for gay men and the outset whether: and protests where necessary, are women and suggested they may • there is a risk of the court granting appropriate. be treated differently from other suspension; Americans.130 • the extent to which this would Value in spite of In another example, the immediate prevent the aims of the litigation unsuccessful outcome practical effects of the Grootboom being achieved; and A fourth lesson that can be derived judgment taken alone were really quite • any evidence that could be placed from the Mazibuko case is that litigation limited in scope. However, it was widely before a court to dissuade it from can serve valuable political purposes perceived as a significant victory for the granting such a suspension order. even when it is not successful. poor and a bloody nose for government, Causing indirect policy It seems clear that there were significant a perception that contributed to the changes benefits to running the Mazibuko bringing into effect of the Housing litigation despite its unsuccessful Code and other changes in the housing A third lesson is that litigation can policy environment. produce indirect policy changes, even outcome. Some of those involved where it is ultimately unsuccessful. argued that the benefits of having By contrast, the Mazibuko judgment brought the case justified the decision was perceived as a big win for A City of Johannesburg official whom of those involved: government and a significant reversal we interviewed commented that [T]he litigation was strategic – and for public interest litigation. the mere existence of the Mazibuko successful – because it raised the After the judgment was delivered, litigation gave progressive bureaucrats profile of the issues and energised there was considerable anxiety that the in the City a lever with which to effect the movement at a time when direct progress made in terms of government policy changes. The threat of an adverse protest had been crushed by state responsiveness would be diminished as order from the litigation made the City repression.129 more responsive to such efforts than a consequence. it otherwise would have been, and Perceptions matter When we raised this issue with a made the expansion of the indigent The last lesson is that perceptions of senior City of Johannesburg official, he persons and social benefits programmes litigation and its consequences matter. disagreed that this had been the effect of politically possible. When it comes to trying to effect the Mazibuko case. He emphasised that International experience suggests broad social change in government the effect of the Grootboom case and that litigation can give administrators bureaucracies, perceptions of the results other cases had only really permeated who are willing to make changes of litigation can be just as important senior levels of officialdom, with the political cover, or a tool for leverage.128 as its actual direct legal effects. Even bulk of officials content simply to This appears to have occurred in the tone and language of a judgment implement whatever instructions came the Mazibuko case. The litigation can be significant and may sometimes from above. In relation to these senior contributed to a significant expansion of be more important than the ultimate officials, he felt that the Mazibuko case the City’s social services provision for order. For example, a leading gay rights made them more trusting of balance activist in the US, Tom Stoddard, said in the litigation process because they 128 See for example: Gerald N Rosenberg, The considered that this case gave more Hollow Hope: Can Courts Bring About Social Change?, 2nd Edition, University of Chicago Press: 129 Losers can be winners, Business Day: 20 October 2008, pages 311-312. 2009. 130 Quoted from Andersen op.cit., page 98.

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Photograph: War on Want © emphasis to practicality as a relevant ■ reasons for the disconnection. Members variable in implementing socio- of the committee visited the City economic rights than the cases which Council offices and were informed that preceded it. Thus, his view appeared to The Joseph the electricity had been disconnected be that these senior officials viewed the because the landlord’s account was in Mazibuko judgment as assisting them case on access arrears by about R400 000. – but only where they embarked on to electricity The disconnection had significant practical methods of addressing socio- effects on the quality of life of the economic rights. Background residents. Learners had to study by Accordingly, it appears to us that The applicants in the case of Joseph candlelight, food could not be stored concerns about the Grootboom effect v City of Johannesburg131 were the as refrigeration was impossible, and being dissipated by the Mazibuko case tenants of a building in Johannesburg heating was provided through the did not ultimately come to fruition. City called Ennerdale Mansions. The burning of paraffin or other fuels, with officials with a sufficient understanding tenants paid their electricity bills detrimental effect on the health of of the nuances of the Mazibuko to the landlord as part of their rent children and adults. judgment have taken cognisance of the accounts. The landlord had a contract Many of the residents left the building fact that it was only the City’s belated 132 with City Power for the provision of as the lack of electricity made life efforts to amend and alter its policies electricity to the building. However, the there unbearable for them. Those who that led to success in the Constitutional landlord had not paid City Power for remained did so because it was the Court. the electricity supplied to the building. only accommodation in the area they As a result, and without notice to the could afford. The average household tenants, City Power disconnected income at Ennerdale Mansions was the electricity supply to Ennerdale R3 000-4 000 per month. Some of the Mansions on 8 July 2008. households had no income at all. The tenants had no idea why their electricity was disconnected and Litigation formed a committee to investigate the The residents approached the University of the Witwatersrand 131 Joseph & Others v City of Johannesburg & Others [2009] ZACC 30; 2010 (4) SA 55 (CC). (Wits) Law Clinic and were advised to 132 Private company responsible for the provision of launch proceedings in the High Court. electricity in Johannesburg, and wholly owned by the City of Johannesburg. The litigation was brought with the

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The Joseph case was a narrow one. The applicants did not contend that they were entitled to free electricity, or that City Power was absolutely precluded from cutting off their electricity. What they contended was simply that they had a right to prior notice of the cut-off and a right to make representations before the cut-off occurred.

assistance of CALS. to a building or residence, the on the ground that the residents had respondents are required to ensure no contractual relationship with City On 21 July 2008, the applicants that the disconnection is procedurally Power and therefore had no rights that brought an application in two parts. fair as envisaged in the Promotion of were affected by the disconnection. The Their case was a narrow one. They did Administrative Justice Act 3 of 2000 High Court found that the landlord was not contend that they were entitled to (PAJA) – legislation that had been entitled to notice of the disconnection free electricity, or that City Power was enacted to give effect to the right to because he had a contract with the City, absolutely precluded from cutting off administrative justice enshrined in but the residents were not. their electricity. What they contended Section 33 of the Constitution. PAJA was simply that they had a right to prior The residents sought leave to appeal creates wide-ranging procedural and notice of the cut-off and a right to make directly to the Constitutional Court. substantive constraints on the exercise representations to City Power before They conceded that they had no of public power. the cut-off occurred. The notice could contractual rights against the City or have happened by means of a general Under the heading of procedural City Power. They argued that they were poster in the foyer of the building, and fairness, the applicants argued for nonetheless entitled to procedural representations could have been made a declaration that the electricity fairness in terms of PAJA because access in writing. disconnection in this case was unlawful to electricity was a component of the and invalid, as PAJA requires that: right of access to adequate housing in The first part of the application terms of Section 26 of the Constitution. (Part A), which was brought on an • affected persons receive adequate urgent basis to operate as interim notice; They also argued that the disconnection relief pending the resolution of the • affected persons are afforded the affected their right to human dignity in second part (Part B), sought an order right to make representations; and terms of Section 10 of the Constitution, requiring the respondents to reconnect that that they were entitled to be given the electricity supply to the building • all relevant circumstances are notice before the cut-off, and that and requiring City Power to conclude taken into account, including the the City ought to have allowed them temporary electricity use agreements personal circumstances of those to to make representations before the with the applicants to govern the be affected. disconnection. contractual relationship between the The High Court dismissed Part A (the The Constitutional Court ruled in parties. urgent relief) on the ground that the favour of the applicants, though not on In Part B, the applicants sought a applicants did not have a prima facie the basis of the case they made out. The declaration stipulating that, before right to the relief sought in Part B. Later, Court did not find that electricity was disconnecting the electricity supply when it was heard, Part B was dismissed a component of the right of access to

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adequate housing. Instead, it ruled that been stolen. This made it impossible rather than offensive, in the sense that when City Power supplied electricity to reconnect the electricity without it involved applicants who went to to the building, it did so in fulfilment of considerable expenditure to replace court to prevent the state from taking its constitutional and statutory duty to the wiring. The residents did not have action which reduced their access to provide basic municipal services to all access to the resources to pay for this an important good. Several of our persons living in the City: and therefore did not obtain any direct respondents felt that it is easier to When the applicants received relief as a result of the litigation. obtain relief in such cases than in cases electricity, they did so by virtue of where the applicants turn to courts their corresponding public law right to Lessons to require organs of state to provide a receive this basic municipal service. In good. depriving them of a service which they The advantages of narrow were already receiving as a matter of relief and defensive Delivering meaningful right, City Power was obliged to afford litigation outcomes for the applicants them procedural fairness before taking The first lesson derived from the Joseph a decision which would materially and case relates to the advantages that can The second lesson concerns the 133 adversely affect that right. result from narrow relief and defensive importance of trying to structure litigation in a manner that produces a Procedural fairness required that the litigation. meaningful outcome for those affected. applicants had to be given 14 days’ The relief sought in Joseph was narrow pre-termination notice in the form of a and limited, despite the novelty of In the Joseph case, the applicants’ legal physical notice placed in a prominent the legal argument in its favour. The representatives tried to do precisely position in the building. Users were effect of the order sought was merely that. They were alive to the fact that a entitled to approach the City within to extend certain procedural fairness victory at the end of the day would not the notice period in order to challenge entitlements to people who lacked them resolve their applicants’ urgent needs. the proposed termination or to tender under the law as it stood. Though the Consequently, they sought the urgent arrangements to pay off arrears. City of Johannesburg and City Power interim reconnection order in Part A, pending the final determination in The Constitutional Court ordered the attempted to do so, it was not easy to Part B. reconnection of the electricity supply paint this relief as imposing enormous to Ennerdale Mansions. Unfortunately, burdens on them if it was granted. This Regrettably, the High Court refused in the interim, the building’s wiring had made it easier for the court to grant the the Part A relief, meaning that by the order sought. time Part B of the case succeeded in the 133 Joseph & Others v City of Johannesburg & Others The litigation was also defensive, Constitutional Court, the applicants op.cit., paragraph 47.

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Two of the lessons that can be derived from the Joseph case relate to the advantages that can result from narrow relief and defensive litigation, and to the importance of trying to structure litigation in a manner that produces a meaningful outcome for those affected.

could no longer get any effective relief, even where the applicants obtain no […] an affordable payment plan since the wiring at Ennerdale Mansions relief themselves. in respect of any arrears agreed had been stolen and electricity could between the parties.137 This was the case in Grootboom, and not be restored. the Joseph case also demonstrates Moreover, the Joseph litigation With the benefit of hindsight, it might this very well. While the applicants also appears to have had effects well have been appropriate to try to got no effective relief (because the on the manner in which the City appeal the High Court’s refusal of the Constitutional Court’s order could of Johannesburg conducts itself Part A application immediately to the not be implemented due to a lack of on electricity disconnections due Constitutional Court. wiring) the tangible effects of the order to arrears. This was confirmed were felt in a later case – Residents of independently by a respondent of ours Such a course was recently followed Chiawelo Flats v Eskom135 & City of working at a public interest organisation successfully in the case of South Johannesburg.136 and by an official from the City. The African Informal Traders Forum v City official indicated that there was a City of Johannesburg,134 involving the This case involved a block of 420 flats “palpable shift” away from mass cut-offs removal by the City of Johannesburg in Soweto, housing many vulnerable towards data clean-up, customer focus of thousands of informal traders. people. had disconnected and accuracy as the main tools to drive In this case, when the High Court the electricity supply due to non- the collection of outstanding debt, refused to grant urgent interim relief, payment. When the disconnection was and he considered that the Joseph case the applicants felt that they had no challenged on the basis of the Joseph helped force this “bureaucratic culture other option but to take the bold decision, the matter was settled by c h a n g e”. step of appealing immediately to the agreement and an order was issued in Constitutional Court – which upheld terms of which: Deciding whether to the appeal and granted interim relief to • the electricity supply had to be pursue an appeal the applicants. reconnected; and The last lesson is about deciding • Eskom had to engage with each No immediate relief but whether to pursue an appeal to the applicant separately to conclude broader effects Constitutional Court at all. individual agreements regarding The third lesson relates to an awareness electricity supply, including where Having lost in the High Court, the that sometimes litigation will have an appropriate: applicants in the Joseph case wanted to effect on other people on the ground appeal. Quite apart from ethical duties 135 Parastatal electricity utility. to the tenants, CALS had to decide 134 South African Informal Traders Forum & Others 136 Residents of Chiawelo Flats v Eskom & City of v City of Johannesburg & Others [2014] ZACC 8; Johannesburg, South Gauteng High Court, Case 137 Residents of Chiawelo Flats v Eskom & City of 2014 (6) BCLR 726 (CC). No. 2010/35177. Johannesburg op.cit., paragraph 4.1.

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Protest against electricity price hikes, January 2013. Photograph: Erin Mc Luckie & The Daily Maverick ©

whether this was the correct move from • Is this the best context to establish procedural safeguards whatsoever. a test case point of view or whether it the right contended for? Secondly, were the respondents the would be better to wait for another case. • Is there any deficiency in the papers right respondents? The primary Ultimately, CALS decided that the case or in the evidence? respondent was City Power. This is a should be appealed. • Do the applicants have any private entity, which would ordinarily alternative remedies? The Joseph case provides an instructive raise concerns given that the assertion • What will be the consequences of example of the factors that ought to be of socio-economic rights against private an unsuccessful attempt to run this taken into account in deciding whether parties is controversial and relatively case? to pursue an appeal. It seems to us that untested. the first question to be asked is always: We address each of these questions in However, City Power was acting as What are the prospects of success? If turn in the context of the Joseph appeal. the agent of the City of Johannesburg, those prospects are slim, then it will Firstly, were the applicants the right which is the entity that bears the seldom be in the public interest to run applicants? The applicants were constitutional obligation for delivering the case. But what if, as here, the case certainly poor. However, they were not services, including electricity. It was eminently plausible, albeit difficult? the poorest of the poor. If they were the accordingly accepted (as it had to) In other words, what if it is a 50-50 poorest of the poor, the City’s argument that it is akin to a state entity for the case? would probably have been that they purposes of this litigation. In those circumstances, it seems to us ought to have applied for exemptions Thirdly, was this the best context to that the focus shifts to another enquiry: from paying under the City’s indigent establish that the right to electricity Is this the right case to run on this persons policy – therefore, the appeal forms part of the right to adequate issue? Clearly, where an issue has a would have been unlikely to succeed. housing? The case did not involve an 50-50 chance of success and will have The applicants were families. They had attempt to get government to provide a positive effect on people’s lives in the among them numerous children and free electricity. It was therefore a event of a court victory, it ought to be elderly people. They were thus plainly ‘negative’ assertion of the right, not a litigated. But is this the right case in vulnerable. ‘positive’ one. Indeed, it was a limited which to ventilate the issue? negative assertion of the right given that Moreover, they were lawful occupiers In determining this, we believe the tenants accepted that cut-offs could who had paid their rent (and electricity) the following questions need to be occur provided that correct procedure timeously. The fact that the applicants’ answered: is followed. conduct was so exemplary contributed • Are these the right applicants? to the sense that it was unfair that they Moreover, it was thought that while • Are these the right respondents? should be disconnected without any it may be that the extent to which

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The Joseph case provides an instructive example of the factors that ought to be taken into account in deciding whether to pursue an appeal.

electricity formed part of the right to before direct billing agreements are chastisement cases discussed elsewhere housing would depend on context, reached. in this publication. these were people living in an urban And, lastly, what would be the In sum, CALS concluded that it was apartment block. If electricity formed consequences if the judgment was difficult to envisage a ‘better’ case on part of the right anywhere, it would appealed and lost in the Constitutional this issue arising in the foreseeable seem to be here. Court? Due to the narrow nature of future. Perhaps the only real strategic Fourthly, was there any deficiency in the relief sought, CALS decided that weakness was the fact that the tenants the evidence or papers? There was none the negative consequences of losing on did not have a contract with City Power as far as CALS was aware. The case was appeal would be limited. The only result – but the whole point of the case of designed as a constitutional test case would be that the previous position – course was to establish that procedural and papers were carefully drawn up namely that persons in the situation fairness obligations existed even with this in mind. of the applicants were not entitled to without such a contract. procedural fairness prior to electricity Moreover, there was no deficiency Ultimately, the decision to pursue the disconnections – would be confirmed exposed at the High Court level. The appeal proved beneficial. However, the by the Constitutional Court. High Court judgment simply took a point we make is a different one: These different principled point of view as a Because of this, no one would be are the sort of questions that should matter of law. any worse off than they were before be carefully considered whenever a the litigation. Since the case was major public interest case is initiated, or Fifthly, did the tenants have alternative conceptualised on such a novel basis whenever a decision is taken regarding remedies? This was a hotly contested (that access to electricity may be a an appeal. issue in this case. City Power contended component of the right of access to that there were alternative remedies Of course, sometimes decisions adequate housing), CALS believed that available for the tenants such as will inevitably be made to run less a loss would not preclude viable future compelling the landlord to pay City than ideal cases, for ethical or other litigation. Power the outstanding arrears and reasons. Where this occurs, however, engaging in direct billing with City Essentially, CALS decided that there the decision must be mindful of the Power. was no significant broader risk in weaknesses in the case and alive to the pursuing the appeal. This is to be dangers involved. The tenants disputed this, pointing to contrasted with other cases, where City Power’s own inability to extract a losing appeal might inhibit future payment from the landlord and the fact litigation on better facts such as in that, by law, all arrears must be paid the Mazibuko case or in reasonable

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Harry Gwala informal settlement. Photograph: Dorothy Tang ©

■ Litigation a decision on whether the settlement would be upgraded in situ. In particular, The applicants, represented by the they sought one ventilated improved pit The Nokotyana pro bono department of a Johannesburg (VIP) latrine per household, rather than firm of attorneys, went to the High the one chemical toilet per 10 families case on Court seeking an order that the offered to them by the Municipality. sanitation Ekurhuleni Municipality provide them They relied on their right of access with basic services pending the decision to adequate housing, arguing that Background on whether the settlement would be adequate sanitation was a component of upgraded to a formal township. They this right. The third of the socio-economic rights sought: Government respondents argued that it cases decided by the Constitutional • communal water taps; was impractical to invest in VIP latrines Court in late 2009 was the Nokotyana • temporary sanitation facilities; 138 before the decision as to whether the matter. • refuse removal; and settlement should be upgraded had • high mast lighting in key areas. The applicants in this case were been taken, since such a significant residents of the Harry Gwala informal The Municipality did not resist the investment would then be wasted if a settlement in Ekurhuleni, Gauteng. The application for water taps and refuse decision to relocate the settlement was settlement lacked access to any basic removal, and the Court ordered it to taken. services, including decent sanitation, provide these services immediately. water services and electricity. It was on appeal to the Constitutional However, the High Court found that Court that it became clear that there In 2006, the Ekurhuleni Municipality no case had been made out in respect of were significant problems with the submitted a proposal to the provincial temporary sanitation services and high manner in which the Nokotyana case MEC for Housing that the status of mast lighting, because in the absence was conceptualised and formulated. the settlement be upgraded to that of of a decision to upgrade the settlement, Firstly, the applicants’ representatives a formal township. This would have the did not apply National Housing Code failed to realise that the core of the entitled the residents to basic services. to the settlement. The MEC did not respond to the case was the failure of the Gauteng proposal for a period of more than three The applicants then appealed to the provincial government to process the years. Constitutional Court seeking an order Ekurhuleni Municipality’s application compelling the Municipality to provide to upgrade the settlement. As a

138 Nokotyana & Others v Ekurhuleni Metropolitan them with high mast lighting and result, they did not seek relief in this Municipality & Others [2009] ZACC 33; 2010 (4) temporary sanitation facilities, pending regard and did not include provincial BCLR 312 (CC).

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It was on appeal to the Constitutional Court that it became clear that there were significant problems with the manner in which the Nokotyana case was conceptualised and formulated.

government as a respondent in the to introduce controversial new evidence provincial government duly made a proceedings before the High Court. before the Constitutional Court. The settlement offer in terms of which it The Constitutional Court was therefore new evidence addressed, among other would subsidise the Municipality’s forced to take the very unusual step things: sanitation provision, resulting in the of remedying this failure of its own • the extent of sanitation provision in provision of sanitation at a level of one accord by joining the provincial MEC townships across the country; toilet for every four families (compared for Local Government and Housing • the negative consequences of poor to the one for every 10 that was being as second respondent, as well as sanitation on health, the economy offered by the Municipality). The terms national government officials as further and education; of this agreement would have ensured respondents. • the link between water, HIV and that the residents of the Harry Gwala settlement were substantially better Secondly, the remedy sought and the AIDS; and off, and that the quality of sanitation arguments advanced by the applicants • the costs of providing latrines. in the settlement would have been changed substantially on appeal to the Because of the late attempt to introduce markedly improved. The applicants’ Constitutional Court. The applicants this new evidence, none of the representatives, however, turned down had not challenged the sanitation policy respondents had the opportunity to the settlement offer. of the Municipality in the High Court. respond to it. Instead, they sought to proceed to the The matter proceeded and the appeal Constitutional Court relying directly Lastly, at the Constitutional Court was unequivocally dismissed. Far from on the constitutional right to housing. hearing, counsel for the applicants overturning Grootboom and TAC, Because of this, the High Court did not took an extravagant line, urging the as the counsel for the applicants had consider any evidence regarding the Court to overturn its socio-economic urged, the Constitutional Court did not reasonableness of the sanitation policy, rights jurisprudence on the basis that consider that the applicants had made and government respondents were not the Grootboom and TAC judgments even an arguable case. The applicants’ called upon to defend the policy in the were clearly wrong, and to adopt the direct reliance on several constitutional 139 High Court. This put the Constitutional minimum coreapproach to socio- provisions was held to be “vague Court in an impossible position, economic rights. and insufficiently specified”. 140 The requiring it to sit as a court of first and Despite all of this, on the morning Court did not pronounce on the final instance on factual matters that of the hearing, the Chief Justice reasonableness of the Municipality’s ought to have been considered in the encouraged the parties to discuss a newly adopted policy, as it was held to courts below. possible settlement. The Gauteng be inappropriate to consider a case so fundamentally changed on appeal. Thirdly, the problems were exacerbated 139 The minimum core approach is explained above by the applicants’ unsuccessful attempt in the context of the Mazibuko case study. 140 Ibid.

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However, the Court did order used for the development. seeking to change it only when strictly provincial government to take a necessary. We suggest that trying to We understand that discussions around decision on the Municipality’s overturn settled precedent should only potential solutions are still ongoing. application for the upgrade of the be attempted as a last resort when there What does seem clear is that the settlement within 14 months of are no other options available for the development of the settlement for at its judgment. Again, it is worth litigation to succeed. Litigators should least 400 stands will occur. emphasising that the applicants did be mindful of how enormously difficult not seek this relief and that it was only it will be to persuade a court to change made possible by the Court going out Lessons its mind. of its way and joining the province as a Three main lessons emerge from the The insistence on a minimum core respondent. Nokotyana matter. approach in the Nokotyana case was all The sequel to the Court’s ruling is that the more surprising and unnecessary Awareness of existing slow progress has been made towards because there was an easier route for precedents upgrading the settlement. In 2011, success to be achieved, namely to bring provincial government ultimately took The first lesson is about the importance an application to court compelling the decision required by the court of designing and arguing a case with full the Gauteng province to render a order. It concluded that the settlement awareness of the Constitutional Court’s decision on the possible in situ upgrade should be upgraded in situ and existing precedents and the difficulties of the informal settlement and, if the developed. of overturning recent and repeatedly decision went against the applicants, affirmed precedents. to consider reviewing that decision on However, at the time of writing, such administrative and constitutional law upgrading and development had not Litigators must live in the real world. grounds. yet occurred. It appears that this is a Academic debates are important and consequence of disagreement over valuable, but there is little point in being Though the Constitutional Court precisely what form the development outraged about the Court’s approach to eventually gave an order compelling a should take. In particular, the plan minimum core and trying repeatedly to decision by provincial government, this currently proposed by the province overturn it, when there is no possibility was due to the Court trying to find a would accommodate only 400 stands, of that occurring and when it is way to assist the applicants despite the meaning that 800 households would unnecessary. fact that their representatives had not not be accommodated. The situation In general, successful public interest sought such an order. is complicated further by disputes litigation involves taking the existing This point is especially important regarding the practical suitability of jurisprudence as a starting point and in light of the Court’s judgment in certain land which could potentially be

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The Nokotyana case demonstrates the importance of designing and arguing a case with full awareness of the Constitutional Court’s existing precedents and the difficulties of overturning recent and repeatedly affirmed precedents.

the Mazibuko case. There, the Court decision, they must now contend where evidence cannot be introduced for the unequivocally laid down a range possible that their case falls within one first time on appeal. For this reason, of situations in which the positive of these situations. Doing so avoids or litigators must be extraordinarily careful obligations arising from socio- reduces the risk of government relying to ensure that their case is properly economic rights would be enforced by on Mazibuko as a defence, because conceived from the start of litigation, the courts. It is worth repeating these litigants can argue that these are the as it will rarely be possible to provide situations: very situations in which the Court has essential evidence for the first time on If government takes no steps to made it clear that it will enforce the appeal. positive obligations concerned. realise the rights, the courts will Former Justice require government to take steps. If It is true that the judgment states that points out that the same mistake was government’s adopted measures are this is not a closed list and that the made in the Grootboom case: unreasonable, the courts will similarly obligations will be enforced in “at For the first time on appeal before require that they be reviewed so as 142 least” these ways. But if applicants the Constitutional Court, counsel to meet the constitutional standard cannot bring themselves within one sought to rely on the approach of of reasonableness. From Grootboom of these categories, they will likely the United Nations Committee on it is clear that a measure will be need a particularly compelling set of Economic, Social, and Cultural Rights unreasonable if it makes no provision facts to succeed, coupled with a cogent that socioeconomic rights contain a for those most desperately in need. argument to explain why their case does ‘minimum core’. […] There was no If government adopts a policy with not fall foul of the Mazibuko principles. evidence at all on the record that unreasonable limitations or exclusions would have enabled the Court to begin as in Treatment Action Campaign Properly forming a case a consideration of an appropriate No 2, the court may order that those and placing the evidence minimum core for the provision of are removed. Finally, the obligation before the court housing or access to housing in the of progressive realisation imposes a Secondly, the Nokotyana case also South African context.143 duty upon government continually demonstrates the importance of to review its policies to ensure that properly conceiving a case and ensuring The risk of rejecting the achievement of the right is that all the required evidence is placed reasonable settlement 141 progressively realised. before the appropriate court at the offers Whatever misgivings organisations and appropriate stage. As a third and final lesson, the litigators may hold about the Mazibuko Ordinarily, new and controversial Nokotyana case shows the risk of

141 Mazibuko & Others v City of Johannesburg & 143 Richard Goldstone, Foreword, in Gauri & Brinks Others [2009] ZACC 28 op.cit., paragraph 67. 142 Ibid. (eds) op.cit., page xii.

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Toilet protest in Cape Town in 2010, organised by the Social Justice Coalition. Photograph: Justin van Zyl & Social Justice Coalition © litigants seeking full vindication and, ■ the Constitutional Court dealt with, for in doing so, rejecting settlement offers example, school language policies,145 that might be better than what could religious146 and cultural practices,147 realistically be achieved via a court Litigation on and with the obligations of a private judgment. landowner (a trust) in relation to a the right to school situated on its land.148 The decision to reject the settlement offer made at the doors of the basic education However, since 2010 this situation has Constitutional Court was plainly The right to basic education was changed markedly. A number of skilled incorrect. By that stage, it ought to included in Section 32(a) of South legal and advocacy organisations have have been clear that the odds of the Africa’s interim Constitution, which engaged in a series of pieces of litigation applicants obtaining substantive relief came into force in April 1994. It was dealing with a wide range of aspects of from the Court were slim. then also included in Section 29(1) government’s positive obligations in terms of the right to basic education. The offer would have given the (a) of South Africa’s final Constitution applicants immediate relief in respect which came into effect in February In this section, we consider four main of sanitation. Moreover, it would not 1997. Section 29(1) provides: examples of such litigation and lessons have precluded the applicants from Everyone has the right— emerging from these. We do so in part requesting, if needs be compelling, by drawing on reports done by the (a) to a basic education, including the province to make a decision on organisations involved in the litigation.149 adult basic education; and the in situ upgrade within a specific time. In other words, there was no real (b) to further education, which the 145 Head of Department: Mpumalanga Department state, through reasonable measures, of Education & Another v Hoërskool Ermelo & downside. Another [2009] ZACC 32; 2010 (2) SA 415 (CC). must make progressively available and 146 Christian Education South Africa v Minister of Yet, the offer was rejected. It was only accessible.144 Education [2000] ZACC 11; 2000 (4) SA 757 by virtue of the Constitutional Court’s (CC). 147 MEC for Education: KwaZulu-Natal & Others v determination to assist the applicants – Despite this and despite the severe Pillay [2007] ZACC 21; 2008 (1) SA 474 (CC). despite the inherently flawed nature of challenges facing many learners and 148 Governing Body of the Juma Musjid Primary School & Others v Essay N.O. & Others [2011] the case – that the applicants ended up schools throughout the country, there ZACC 13; 2011 (8) BCLR 761 (CC). with any relief at all. was no meaningful litigation around 149 Notably: Faranaaz Veriava, The 2012 Limpopo government’s positive obligations to Textbook Crisis: A study in rights-based advocacy, the raising of rights consciousness provide basic education until 2010. and governance, Section27: September 2013; Legal Resources Centre, Ready to Learn: A legal Those education cases that did reach resource for realising the right to education, 1st Edition, Legal Resources Centre: 2013; and Equal 144 Constitution of the Republic of South Africa Education campaign materials and statements op.cit. (www.equaleducation.org.za).

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Despite Section 29(1)(a) of the Constitution, which provides everyone with the right to a basic education, and despite the severe challenges facing many learners and schools throughout the country, there was no meaningful litigation around government’s positive obligations to provide basic education until 2010.

Background in regards to sanitation; standards regarding admission • the lack of norms and standards for policy; Many of the problems that beset the school infrastructure; • the delivery of education related South African education system today • the critical shortage of desks and services to children being interrupted are a direct consequence of apartheid chairs in schools throughout the through problems with tenders; and its use of education as a tool of nation; • the lack of any discernable success oppression. As the rest of society, the in the Department’s section 100(1) education system was segregated along • the failure to combat the rise (b)152 intervention in Limpopo and racial lines, with schools for children of sexual violence and corporal the Eastern Cape, where substantial classified as white far better resourced, punishment in schools; problems remain in school nutrition, and with inferior curricula prescribed • the non-delivery of workbooks and scholar transport, and textbook at schools for children classified as textbooks to thousands of learners delivery; black, Indian or coloured. Although across the country; • the failure to implement the 2012 these policies have long been abolished, • the lack of access to libraries, post provisioning in the Eastern their legacy is reflected in the state particularly where this means that Cape, leaving many schools without of historically disadvantaged schools home language texts cannot be enough educators; and today. As then Justice Kate O’Regan put accessed; • the lack of a pro-poor teacher it in 2008: • the failure to revise the national post-provisioning scheme, meaning […] although the law no longer policy on learner pregnancies; compels racially separate institutions, a failure to draw quality teaching • inadequate public school funding social realities by and large still do.150 into township and rural schools, and and the placement of schools in the lack of training, support and inappropriate quintiles,151 directly The problems faced by the education accountability for teachers in these impacting the school’s funding; system are manifold. In 2012, in an [sic] schools.153 open letter to the Minister of Basic • the failure to provide learner Education penned by a number of transport in accordance with policy; It is not immediately clear to what public interest organisations, the • the failure to issue norms and 152 Refers to Section 100(1)(b) of the Constitution, following issues were highlighted: which gives national government the right to • the appalling state of school 151 The quintile system divides all government assume direct responsibility for a provincial-level schools into five quintiles, with quintile 1 constitutional obligation, if a province fails to infrastructure at township and rural schools being the poorest and quintile 5 schools deliver on it. 153 schools across the country, especially the least poor. Lower quintile schools qualify Open Letter to the Minister of Basic Education for higher levels of state funding than higher and the Director General of the Department of quintile schools. The latter are expected to raise Basic Education from Centre for Child Law, CALS, 150 MEC for Education: KwaZulu-Natal & Others v significant funding through the charging of EE, EE Law Centre, Section27 and LRC, www. Pillay op.cit., paragraph 24. school fees. equaleducation.org.za: 25 June 2012.

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Bomvini Senior Primary School, Libode, Eastern Cape. Photograph: Equal Education ©

extent these problems result from is no internal limitation requiring that the conditions at these schools were resource constraints, lack of human the right be “progressively realised” unacceptable and constituted a capacity, lack of political will or even within “available resources” subject to breach of the state’s duties under the active political obstruction – or some “reasonable legislative measures”. The Constitution. Yet, despite repeated combination thereof. In terms of right to a basic education in section requests for assistance, the schools litigation, the causes of a particular 29(1)(a) may be limited only in terms received no help. problem will have a bearing on of a law of general application which Using government’s 2005 school the manner in which the matter is is “reasonable and justifiable in an district profiles, the LRC identified the approached and the relief that is sought open and democratic society based on worst-off mud schools and visited 20 to remedy it. human dignity, equality and freedom”. of them in July 2009. Comprehensive This right is therefore distinct from the In considering the cases that follow, interviews with teachers and school right to “further education” provided a significant feature is the fact that governing bodies at each school were for in section 29(1)(b). The state is, in Section 29(1)(a) of the Constitution conducted and a decision was taken terms of that right, obliged, through deals with the right to basic education to assist seven schools in litigation reasonable measures, to make further differently from provisions on rights against the state for failing to provide education “progressively available and of access to housing, water, food and the schools with adequate and safe accessible.154 social security. This was addressed by infrastructure, sufficient desks and the Constitutional Court in the Juma chairs, and potable water. Musjid case. This case concerned The mud schools The seven applicant schools were the eviction by a private landowner case located in one of the poorest areas (a trust) of a school on its property. in South Africa, around the towns of However, the Court – particularly after In 2010, the LRC launched proceedings Libode and Ngqeleni in the Nyandeni encouragement from two amici curiae – on behalf of the Centre for Child Law Local Municipality/Oliver Tambo nevertheless pronounced emphatically (CCL) and seven schools in the Eastern District Municipality in the Eastern on the nature of the positive obligations Cape to compel government to rebuild Cape. The parents of the learners resting on government in this regard: South Africa’s ‘mud schools’. were predominantly indigent. Six of It is important, for the purpose of this The case was ideal in that speeches the seven schools had been placed by judgment, to understand the nature and policy documents by government government in quintile 1 (the quintile of the right to “a basic education” officials themselves conceded that representing the poorest schools). under section 29(1)(a). Unlike some of The schools were constructed of mud, the other socio-economic rights, this 154 Governing Body of the Juma Musjid Primary School & Others v Essay N.O. & Others op.cit., cinder blocks and branches and were right is immediately realisable. There paragraph 37. among the most under-resourced in the

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The mud schools case was ideal in that speeches and policy documents by government officials themselves conceded that the conditions at the schools concerned were unacceptable and constituted a breach of the state’s duties under the Constitution.

country. The structures were unstable, It was also clear from the Eastern remedy these problems. doing very little to protect students and Cape Department of Education’s own The application focused on the seven teachers from the elements and (to the documents that the budget allocated applicant schools and the need to extent that they were even useable) for school infrastructure was “totally remedy their situation. The idea was they were massively overcrowded. All inadequate”,155 and the province had to begin with these seven schools of the seven schools also faced a severe placed a moratorium on infrastructure and establish a precedent regarding lack of desks and chairs, and adequate projects for the foreseeable future. government’s duties in this regard. access to potable water. They relied on While at one point it was suggested by Consequently, the applicants sought an tanks to catch rainwater but this meant some members of the legal team that order that: that during the dry winter months there this was the ideal case to establish the was no water available at the schools. • declared unconstitutional and minimum core approach156 as part of Learners were forced to get water from unlawful the failure of national and South African law, it was ultimately streams 1-2km away and the water was provincial government to provide agreed that such an approach would be often not suitable for drinking. the schools with proper facilities, both unhelpful and counterproductive. furniture and access to water, as well The applicants, including the Instead, given that the founding papers as the failure to develop a plan to CCL (which played the role of an were drafted and filed prior to the do so; institutional applicant in the public decision in Juma Musjid, the case was • directed the national and provincial interest) argued that these conditions built to demonstrate that government’s education departments, in were unsafe and prevented effective failure to provide proper school consultation with the seven schools, teaching and learning. As such, they infrastructure was unreasonable, in to formulate a plan to provide the constituted a breach of the state’s duties line with the Grootboom and TAC schools with proper facilities and under the Constitution. Despite this, it precedents. The papers were replete adequate access to potable water; appeared that national and provincial with vivid details of the appalling • directed the national and provincial government did not have plans in place conditions under which the learners education departments to provide to remedy the conditions at these seven concerned had to seek education, the schools with sufficient desks and schools. The repeated written and verbal coupled with the repeated failure by chairs; and that pleas by the schools for assistance government to remedy or plan to • required the respondents to file fell on deaf ears – no responses were reports on affidavit with the court received from government, and the 155 Ann Marie Skelton on behalf of the Centre and the applicants’ attorneys at least schools remained unaware as to for Child Law and others, Founding Affidavit, Eastern Cape High Court in Bhisho, paragraph every three months, setting out whether the conditions would be 22.4. the progress that had been made addressed in the future, and if so, when. 156 The minimum core approach is explained above in the context of the Mazibuko case study. pursuant to the other orders.

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March for school libraries in Cape Town organised by Equal Education, 21 March 2010. Photograph: Equal Education ©

After the founding papers had been government’s commitment (recorded in finalising this publication, the case had filed, the respondents endeavoured the agreement) to allocate R8.2 billion not yet been heard. on a number of occasions to avoid to rebuild inadequate school structures filing an answering affidavit. They did across the country – with R6.26 billion Binding minimum so both by taking technical points of this amount earmarked for the and then by repeatedly calling for rebuilding of schools in the Eastern norms and standards settlement discussions. The applicants, Cape. Government’s programme EE (Equal Education) is a Cape Town- however, were anxious that engaging became known as the Accelerated based social movement which seeks in settlement discussions before the Schools Infrastructure Development to remedy inequalities in education. It respondents had committed to a version Initiative. was formed in 2008 and sees itself as a on oath would be disadvantageous. Implementation of this initiative has ‘grass-roots response to this inequality’. They therefore insisted that the commenced and although the LRC As Brad Brockman, its General respondents file an answering affidavit has reported various delays, substantial Secretary, has explained: before any settlement discussions took progress appears to have been made. The way in which we approach place. This ultimately proved a decisive By the end of 2013, reconstruction of the problem is primarily through moment because the answering affidavit the seven applicant schools had neared community organising. What that that was eventually filed essentially completion, replacement/construction means is really to organise the disclosed no defence of substance. of more than 90 other schools had people who are most affected by this Against this backdrop, the parties commenced, and approximately 200 inequality, which are children who then engaged in negotiations and ‘mud schools’ had received temporary attend schools in townships […] and settled the matter without a court pre-fabricated classrooms. very poor rural schools. hearing. The terms of the agreement In 2014, as part of the follow-up effort, [T]hese students and parents become constituted a resounding success for the LRC and the CCL launched a members of the organisation and the the applicants. Government agreed to ‘mud schools 2’ case. This case is far organisation acts like a vehicle which provide both temporary and permanent narrower in its aims. It seeks an order organises […] shares and educates infrastructural relief to the seven mud compelling government to make full students and parents about the schools. Relief took the form of mobile disclosure of its school infrastructure education system, inequality within classrooms, desks and chairs, and access plans so that schools and relevant the education system and how it to water in the interim, to be followed NGOs can consider them and make is structured, how it is perpetuated by the construction of permanent representations, as well as urgent relief and also explains to them about classrooms from 31 May 2011. An for some schools with particularly dire law, activism and history, and how – even greater success was national infrastructural needs. At the time of through coming together, through […]

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In March 2012, Equal Education and two public schools in the Eastern Cape instituted legal proceedings to compel the Minister of Basic Education to publish binding minimum norms and standards for school infrastructure in South Africa.

research, through organising, through Legal action was brought in response to that the demands of equality are using campaigns, through using the gross inadequacy of infrastructure met. Government can use the litigation, one can actually achieve in schools across the country. The standards to guide its infrastructure change within individual schools and Department of Basic Education’s planning and its spending priorities. across the education system. National Education Infrastructure • Binding norms and standards The principle of organising is really to Management System Reports, published provide learners, parents, teachers start where people are at, and to take in May 2011, highlight the pervasiveness and civil society organisations with up the issues that they can understand, of these conditions. Of the 24 793 public a clear indication of what they are that affect them and that they want ordinary schools in the country: entitled to. Communities are able to act to change, and use that as • over 3 500 did not have electricity; to measure the performance of a basis to build and develop more • more than 2 400 had no water government against a clear standard consciousness of education equality, supply; and hold it accountable to that and what are all the different factors • over 900 did not have any ablution standard. which go into creating this particular facilities, while 11 450 schools were • B inding standards are tools of system.157 still using pit latrines; and top-down accountability. They enable the Minister to set a clear In March 2012, EE and two public • more than 2 700 schools had no fencing at all.158 policy framework with defined schools in the Eastern Cape instituted and measurable targets. Provincial legal proceedings to compel the Minister The applicants took the view that education departments are thereby of Basic Education to publish binding establishing binding standards which given a definite goal to work towards minimum norms and standards for stipulate the structures and facilities and a legal standard to which they school infrastructure in South Africa. that each school must have was a are bound.159 Represented by the LRC, the applicants necessary step to improving these argued that the unacceptable conditions conditions, for three reasons: Long before legal action was instituted, however, EE had launched an extensive in many public schools violate the • Binding regulations provide and powerful political campaign on constitutional rights of learners, as the government with a clear legal these issues. The norms and standards conditions prevent effective learning and standard and a mechanism to meet campaign arose out of EE’s national teaching and pose a real risk to the health its constitutional obligations. The campaign for school libraries, which and safety of learners. standard clarifies what constitutes was launched in 2009. In May 2010, an adequate education and ensures 157 Transcribed from the audio version of the in a letter responding to EE about discussion on Social Mobilization and Strategic Litigation for Equal Education in South Africa, 158 Department of Basic Education, NEIMS (National www.opensocietyfoundations.org/events: 5 June Education Infrastructure Management System) 159 Email communication circulated by EE on 8 2014. Reports, May 2011. August 2013.

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school libraries, the Minister of Basic public action in the campaign – as a On the eve of the hearing, the Minister Education, , wrote ‘reminder’ to the Minister to make good capitulated and a settlement agreement that government’s response to the on her promise. Even after the march, was entered into. In terms of the issue of libraries would be to adopt the Minister and her officials reassured agreement (dated 19 November 2012), a national school infrastructure EE that the norms and standards were the Minister undertook to publish a policy, and norms and standards for on their way. draft set of regulations for comment school infrastructure. It was at that by 15 January 2013 and adopt binding From EE’s perspective, non-binding stage that EE started looking into standards by 15 May 2013. In the event guidelines were unacceptable, and norms and standards and discovered of non-compliance with any of the it decided to resort to legal action as a comprehensive draft released by terms of the undertaking, the agreement it became increasingly clear that the former Minister of Education,160 Naledi provided that the applicants were Minister had no intention of prescribing Pandor, in 2008. EE came to realise entitled to approach the High Court on binding regulations. Hence, in March the value and power of having norms an expedited basis for appropriate relief. 2012, an application was launched in the and standards which would establish a Bhisho High Court. Draft guidelines were published within legally binding, minimum standard for the specified time frame. In response to a school infrastructure, and which would The application included affidavits from relatively weak and unsatisfactory draft, in the long term also address the lack of 26 schools that gave vivid, personal EE and a number of other organisations libraries. accounts of the dreadful conditions submitted comprehensive comments. experienced by learners. They also EE consequently shifted the focus of This followed EE organising public emphasised how government’s failures its campaign and advocacy work to workshops on the draft in five provinces impact most harshly on the poorest norms and standards. In mid-2010, the – the Western Cape, Eastern Cape, schools in the country. Minister of Basic Education indicated KwaZulu-Natal, Limpopo and Gauteng both formally and in engagements with In conjunction with its application – to inform poor rural and township EE that norms and standards would be to court, EE intensified its public communities about the draft and enable adopted by 1 April 2011. On 21 March campaign. It organised a number of them to give their input in the public 2011, EE organised 20 000 protestors marches, put out advertisements in participation process. More than 500 in a march to Parliament – EE’s first newspapers and on radio, distributed individual comments arose from these posters and pamphlets, and arranged workshops, which were submitted 160 Until May 2009, South Africa had one national Ministry and Department of Education. Following for protestors to camp outside the High together with EE’s official submission. elections in May 2009, however, the national Court for the duration of the hearing, education portfolio was split in two, with a Much to the chagrin of all involved, which was scheduled for 20 November Ministry and Department of Basic Education and the Minister missed the 15 May 2013 a Ministry and Department of Higher Education 2012. and Training. deadline for final publication and

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Equal Education’s campaign proved to be an outstanding success. On 29 November 2013, the Minister of Basic Education complied with the court order and published legally binding minimum norms and standards for school infrastructure, stipulating among other things that all schools must have access to sufficient water, electricity and sanitation.

insisted on an extension of six months. more support for EE and led the computer and science laboratories, and Her reasons for the extension were Deputy Minister of Basic Education recreational facilities. They also provide unconvincing and lacked legal or to convene an extraordinary meeting time frames for implementation, practical basis. Hence, EE approached between EE, the Minister, Deputy ranging from three to 17 years (based the Bhisho High Court for an order Minister and provincial education on the type of services or resources to convert the 19 November 2012 MECs shortly thereafter. needed) and require provincial agreement into a court order. education departments to report Following agreement between the annually on progress in implementing Before the matter reached the Court, parties, the Court then ordered the the norms and standards. EE intensified the public pressure on Minister to issue a revised draft for the Minister – for example, via the very comment by 12 September 2013 and to While certainly not perfect, the effective videos we have referred to in promulgate final binding regulations by published norms and standards are a Chapter 1.161 On 17 June 2013, EE held 30 November 2013. vast improvement on previous versions mass marches in Pretoria and Cape and will provide a powerful tool for Despite its success in court, however, Town, and on 18 June 2013, it held bettering the conditions at South EE persisted with its public campaign another in Bhisho. Following this mass African schools. to maintain political pressure on the action and the publicity it generated, Minister. the Department of Basic Education The Limpopo released its extraordinary (and baseless) Ultimately, the campaign proved to public statement that: be an outstanding success. On 29 textbook case […] to suddenly see a group of white November 2013, the Minister complied While both of the cases referred to adults organizing black African with the court order and published above garnered significant public and children with half-truths can only be legally binding minimum norms and media attention, it is fair to say that the 163 opportunistic, patronizing and simply standards for school infrastructure. case which caused the greatest public dishonest to say the least.162 These provide that all schools must have reaction and outrage was the Limpopo access to sufficient water, electricity, textbook case.164 There was widespread condemnation of sanitation, safe classrooms with a the statement, which in fact generated maximum of 40 learners, internet, In this case, the applicants – including security, and thereafter libraries, Section27 (formerly the ALP) – 161 Build the Future and #FixOurSchools: Norms challenged government’s protracted & Standards for School Infrastructure Now! 163 Department of Basic Education, South African (both available on YouTube), as well as Equal Schools Act (84/1996): Regulations relating failure to deliver textbooks to schools Education’s Campaign to Build the Future to minimum uniform norms and standards (available at www.atlanticphilanthropies.org). for public school infrastructure, Government 164 Section27 & Others v Minister of Basic Education 162 Equal Education is disingenuous: Minister Gazette, Vol. 581, No. 37081, 29 November & Another [2012] ZAGPPHC 114; 2013 (2) SA Motshekga op.cit. 2013. 40 (GNP).

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in the Limpopo province for the 2012 applicants, sent letters to the provincial […] essential component of the right academic year. The case was marred by education department and the national to basic education [and that their failed negotiations, unfulfilled promises Department of Basic Education, provision] is inextricably linked to the and the flagrant disregard of court demanding delivery by 2 May 2012. fulfilment of the right.165 orders. Ultimately, the applicants were Government’s failure to meet this The Court ordered that a catch-up plan able to secure the timely delivery of deadline spurred Section27 to resort be developed immediately and that textbooks for the 2013 academic year to legal action. Together with two co- government commence delivery of and the implementation of a catch-up applicants (a secondary school and a textbooks urgently, completing it by no programme for the 2012 academic year. mother of two primary school learners, later than 15 June 2012. all of whom had not received any The case began in January 2012. textbooks for the 2012 academic year), The judgment received widespread Having been alerted to the issue by it launched an urgent application in the media coverage and was heralded as media reports, Section27 initiated an Pretoria High Court. a victory for the rights of learners. investigation into textbook deliveries. Despite this, the Department of Basic It made visits to a number of schools The relief sought by the applicants was Education failed to meet the 15 June in Limpopo during February 2012 and carefully crafted. It only requested the deadline. A number of schools reported found that none had received textbooks. delivery of textbooks to those learners that they had not received textbooks or Section27 then sent enquiries to the who were most severely impacted – any information from the Department Department of Basic Education and learners in Grades R, 1, 2, 3 and 10, regarding future deliveries. In addition, met with the head of the departmental who had just started a new curriculum. many principals and teachers reported intervention team that had taken Further, the applicants requested that that they had been threatened with control of the provincial education government develop a catch-up plan for disciplinary action if they reported the department in Limpopo. Section27’s the Grade 10 learners to regain ground non-delivery. concerns were noted and it was given lost in the months when they did not an undertaking that deliveries would have textbooks. Finally, the applicants At this point, Section27 was faced with be completed by mid-April 2012 at the requested a supervisory order to the choice of whether or not to launch latest. monitor the implementation of the contempt of court proceedings. It relief sought. decided against doing so on the ground What followed was a string of broken that its aim was not to embarrass the promises and missed deadlines by The High Court handed down Department, but to ensure the delivery the Department. Follow-up visits judgment on 17 May 2012, granting of textbooks to Limpopo schools. to Limpopo schools in late April all aspects of the relief sought by the confirmed that deliveries had still not applicants. It noted that textbooks are 165 Section27 & Others v Minister of Basic Education been made. CALS, representing the an: & Another op.cit., paragraph 25.

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It is fair to say that the case which caused the greatest public reaction and outrage was the Limpopo textbook case, where the applicants – including Section27 – challenged government’s protracted failure to deliver textbooks to schools in the Limpopo province.

The antagonistic nature of contempt June 2012.167 a dramatic impact on improving proceedings would undoubtedly end deliveries for the 2013 academic year. The pattern of undertakings by the all prospects of co-operation with the In addition, the litigation caused a Department, unfulfilled promises and Department, which was necessary to media furore that focused the public’s unaddressed concerns continued. As secure delivery.166 Instead, Section27 attention on the deeper problems that a result, Section27 launched a second entered into negotiations with the gave rise to the failed deliveries and put application to the Pretoria High Department on 21 June 2012 and the inadequacy of education into the Court in September 2012. It sought a extracted a new deadline (27 June public domain in a remarkable manner. declaratory order that the Department 2012) which was made an order of Concerns were raised about potential had failed to comply with the court court by consent of the parties on 5 July corruption in the award of the tender to orders of 17 May and 5 July 2012 2012. EduSolutions (the textbook provider) (the settlement agreement), and a and about general dysfunction and Again, however, the state failed to mandatory order directing government corruption in the Limpopo education comply with the court order. While to deliver textbooks for the 2012 and department. The intense media scrutiny the Department reported on 28 2013 academic years within specified and criticism led President Jacob June 2012 that delivery had neared timelines (agreed by the parties) Zuma to appointment a task team to completion, Section27 received reports and develop catch-up plans in terms investigate the causes of the delays. of substantial non-delivery from a of the previous order. It also sought Regrettably, however, even this did number of schools. The progress a supervisory order regarding the not fully resolve the problem of non- reports submitted by the state were also delivery of 2013 textbooks and, finally, a delivery of textbooks in Limpopo. riddled with inconsistencies. Given punitive costs order against the Minister these inconsistencies, the parties agreed of Basic Education. On 4 October 2012, One of the positive effects of the initial to appoint an independent verification Judge Kollapen handed down judgment litigation though was the formation team to assess the true state of delivery. and issued the declaratory and of Basic Education for All (BEFA), Professor Mary Metcalfe (former MEC mandatory orders sought. However, the a community-based organisation for Education in Gauteng) and her Court declined to make a punitive costs dedicated to promoting and protecting team confirmed that, by 27 June 2012, order.168 the right to basic education in there was substantial non-delivery of Limpopo. In early 2014, BEFA and Although the litigation failed to achieve both textbooks and catch-up plans to 22 school governing bodies launched delivery of textbooks in Limpopo schools. The team also reported that an application in the High Court for for the 2012 academic year, it had orders for books had only been placed further relief on the textbook issue. On 167 with the publishers in the first week of Veriava op.cit., page 22. 5 May 2014, the High Court upheld 168 Veriava op.cit., pages 25-27.

166 Veriava op.cit., page 30.

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the application.169 The order granted undertakings by the respondents to of Education has been unwilling or included the following relief: deliver textbooks by various dates in unable to move these surplus teachers 1. It is declared that the content of the May and June 2014 and directed the (or ’teachers in excess’) to the schools right to basic education in s 29(1)(a) of respondents to affidavits setting out where they are actually required. This the Constitution includes: various steps taken with regard to the is so even though the Department has 1.1. the right of every learner at a delivery of textbooks for both the 2014 formally recognised that these schools public school as contemplated in the and 2015 academic years. require the teachers concerned. Schools Act, 84 of 1996, in Limpopo The respondents then sought leave to The process that is meant to resolve this to be provided with every textbook appeal to the Constitutional Court problem is called ‘post-provisioning’. prescribed for that learner’s grade; against this judgment. At the time of It is the process whereby a provincial 1.2. the right of every such learner writing, the Court had not decided department of education decides how to be provided with every such whether to grant such leave to appeal. many teaching posts each public school textbook before the teaching of the in the province is entitled to, appoints curriculum for which such textbook Teacher vacancies in teachers to these posts and pays them. is prescribed is due to commence. the Eastern Cape Over a decade of ineffective post- 2. It is declared that the non-delivery provisioning has had the result that to certain of such learners of certain A protracted problem facing the some schools have more teachers than textbooks prescribed for such learners’ education system in the Eastern Cape necessary, while others have too few. grades in the 2014 academic year has been vacant teacher posts at various Thus, in 2012, there were more than before the teaching of the curricula schools across the province. These 4 000 vacant teacher posts and at the for which such textbooks were vacancies mean that learners are left same time over 7 000 surplus teachers prescribed was due to commence was without the necessary teachers, or in the Eastern Cape. a violation of such learners’ rights that schools are themselves forced to The provincial Department of to a basic education in s 29(1)(a) of employ temporary teachers with their Education’s failure to move surplus the Constitution and of their rights own limited resources in circumstances teachers placed many schools in a to equality and dignity in ss 9 and 10 where government is legally responsible position of severe financial strain. respectively of the Constitution.170 for doing so. In 2011 and 2012, many fee-paying The court order also noted The problem is not, however, that there schools were forced to step into the are too few teachers in the Eastern Cape shoes of government and appoint 169 Basic Education for All & Others v Minister of Basic Education & Others [2014] ZAGPPHC 566; – indeed, there is a surplus of teachers educators with their own funds as a 2014 (4) SA 274 (GP). – but that the provincial Department stop-gap measure. However, these 170 Ibid.

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A protracted problem in the Eastern Cape has been vacant teacher posts at various schools across the province. These vacancies mean that learners are left without the necessary teachers, or that schools are themselves forced to employ temporary teachers with their own limited resources in circumstances where government is legally responsible for doing so.

funds were soon depleted. Schools were a letter requesting that the provincial bold in its claims.172 brought to the brink of bankruptcy by Department take steps to remedy the As predicted, the LRC’s terms were their attempts to mitigate the provincial situation immediately. On 31 May largely accepted by the respondents Department’s failure to pay educators. 2012, having received no satisfactory and were made an order of court response, the LRC (acting on behalf of No-fee schools (the poorest schools on 3 August 2012. The only issue the CCL and various school governing in the province) were placed in an that remained in contention was the bodies) launched an application in the intolerable position because they appointment of non-educator posts, Grahamstown High Court. The relief were unable to pay their government- which became the subject of a court sought was as follows: appointed teachers. As a result, teachers hearing and a judgment in the High across the Eastern Cape were left to • The inisterM of Basic Education Court in favour of the applicants.173 stay at home, unpaid, or to work for or the head of the provincial In the months that followed, the as little as a bus fare, and hundreds of Department of Education was to fill provincial Department passed a budget learners were left without instruction, all the vacant posts with permanent that made provision for the posts and particularly in vital subjects such as appointments within three months made progress in appointing and paying mathematics and sciences.171 of the order. In the interim, teachers were to be appointed to vacant posts some temporary teachers. However, However, the disastrous consequences on a temporary basis within one it failed to appoint and remunerate extended beyond the lack of teachers. month of the order. educators on a permanent basis, Because many schools were financially • The alariess of all teachers that were as required by the court order. The crippled by their attempts to pay appointed were to be paid from the Department raised no legal defence teachers, they were unable to fund day on which they assumed duty. for its inaction. Rather, the reports critical facilities and resources such as • Recognising the need to monitor that it submitted made it clear that nutrition programmes (which provided compliance, the applicants sought the non-compliance was a result of a meal per day for school children), a supervisory order requiring the incompetence, inefficiency and trade textbooks, stationary, infrastructure and provincial Department to report on union resistance. school transport schemes. its progress. Meanwhile, the situation in the Eastern Litigation was instituted when a The LRC’s past experience with the Cape worsened. By 2013, the number number of schools approached the Department suggested that the terms of vacant teacher posts had risen to LRC to seek assistance. The LRC sent of the application would be accepted 172 Legal Resources Centre, Ready to Learn op.cit., 171 Sarah Sephton on behalf of the Governing Body and a settlement agreement reached. As page 66. of Linkside High School in Port Elizabeth and a consequence, the LRC was relatively 173 The Centre for Child Law & Others v Minister of others, Founding Affidavit, Eastern Cape High Basic Education & Others [2012] ZAECGHC 60; Court in Grahamstown, paragraph 103 and 113. 2013 (3) SA 183 (ECG).

88 Public interest litigation and social change in South Africa: Strategies, tactics and lessons Changing trends in the South African public interest litigation environment Chapter 2

Photograph: United Nations Educational, Scientific and Cultural Organization/ Darryl Evans ©

more than 8 400, and schools remained moves ahead. […] A case has to be the threat of a contempt of court order in a position of financial peril due to the built on the basis that it may be would not provide sufficient incentive Department’s failure to pay teachers. contested in court, while at the same for it to act. This occurred despite the active efforts time recognising that the Eastern Cape Consequently, the LRC and the CCL of the LRC to assist the Department Department of Education will likely – if worked to formulate a new order in achieving compliance with the its track record is anything to go by that did not rely on positive action court order. From the date of the first –– agree to the LRC’s terms which will from the Department to achieve the court order, the LRC maintained a then be made an order of court. desired result. Rather, the proposed constant stream of communication with Then, over and above the usual order put in place a number of default the Department, informing it of the considerations requisite for building consequences that would be triggered if circumstances in schools, warning it of a robust case, experience has shown government failed to take positive steps. anticipated violations, and advising it that measures must be built into In other words, the proposed order was on the scope of the court order.174 Given one’s case in anticipation that the formulated to shift the onus onto the the lack of responsiveness from the Department will fail to comply with Department – the desired result would Department and its flagrant disregard the court order. In crafting these be achieved even if the Department of the court order, the LRC and the measures, the LRC has had to ensure failed to act.176 CCL felt that they had no option but to that they are forceful without being return to court. inflexible. Furthermore, given the The new approach consisted of two phases. The first phase concerned the In strategising for the second round myriad of potential ways a party may appointment of teachers on a temporary of litigation, the LRC and the CCL find themselves in breach, the LRC has basis, and the second the appointment recognised that this was an unusual had to craft ways to coerce compliance of teachers on a permanent basis. situation. The Department would while reserving scope to facilitate its almost certainly have no legal defence continued constructive involvement in In respect of the first phase, the 175 at all and, moreover, was likely to the matter. LRC consulted with a selection of again settle at the doors of the court. The LRC and the CCL took the schools and compiled a list of over However, the Department would then view that a second order against the 140 candidates for appointment as likely fail to comply with the resultant government would be futile if it was temporary teachers. Thereafter, a order. As is explained by the LRC: granted in the same terms as the settlement agreement was reached with As it is in the game of chess, successful first. It was clear from the provincial the respondents for the temporary litigation requires planning several Department’s behaviour to date that appointment of specific teachers to named schools. Importantly, 174 Legal Resources Centre, Ready to Learn op.cit., 175 Legal Resources Centre, Ready to Learn op.cit., page 67. page 65. 176 Ibid.

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Although effective relief has been obtained for a significant number of schools in the Eastern Cape, the problem of teacher post-provisioning persists and on a scale that makes it hard to use traditional forms of litigation to address it. Accordingly, in 2014, the Legal Resources Centre brought an application seeking certification from the court for an ‘opt-in’ class action.

the agreement stipulated that the shortlist, interview and recommend in South African law which made Department would remunerate the candidates for appointment. If the clear that the use of class actions was appointees from the date that they Department failed to decide on permissible.180 The relief sought in assumed duty. The agreement was made recommendations within a specified this class action involves both the an order of court on 7 March 2013. period of time, the candidates would be repayment of schools for the amounts deemed to be appointed.178 The second they have paid to temporary teachers The Department failed, however, to pay court order also provided that, should and the appointment (if necessary, on a the teachers appointed by the agreed the Department fail to pay salaries, they deemed basis) of temporary teachers to deadline. Given the terms of the order, would be declared an ascertainable remaining vacancies. the LRC was able to apply to court for debt, executable in terms of the State the payment of the teachers’ salaries. The advantage of this opt-in class Liability Act. Hence, in the event of The effect was that the respondents action – the first of its kind in South non-payment, there was no need for were liable for an ascertainable debt, Africa – is that it created a way for the the LRC to return to court for such a which was enforceable in terms of LRC to publicise the litigation to the declaration.179 the State Liability Act 20 of 1957. various schools potentially affected, and This effectively meant that state assets The orders obtained have provided produced an efficient way for the LRC could be attached to satisfy the debt. effective relief for a significant number to act on their behalf and claim relief The threat of execution on state assets of schools in the Eastern Cape. for them, despite the magnitude of the was sufficient incentive to spur the However, the problem of teacher problem. The High Court duly granted Department into action. It made the vacancies and the failure to implement the certification order on an unopposed requested payments.177 post-provisioning remains a very basis, and since then 90 schools have serious one. Moreover, the scale of opted into the class action. At the time A similar approach was adopted in the problem is so significant that it of writing, the merits of the class action the second phase (the appointment of made it hard to use traditional forms of had not yet been determined. teachers on a permanent basis). Lists of litigation to address it. permanent appointees were compiled, a settlement agreement was reached Accordingly, in 2014, the LRC brought Lessons regarding their appointment and a fresh application in which it sought A number of useful lessons emerge remuneration, and the agreement was immediate relief for some schools, but from these four examples of litigation made an order of court on 6 June 2013. more importantly, certification from the on the right to basic education. In addition, schools that still had vacant court for an ‘opt-in’ class action. This posts were given the power to advertise, took advantage of recent developments

177 Legal Resources Centre, Ready to Learn op.cit., 178 Ibid. page 68. 179 Ibid. 180 This is discussed in more detail in Chapter 5.

90 Public interest litigation and social change in South Africa: Strategies, tactics and lessons Changing trends in the South African public interest litigation environment Chapter 2

Child walking to school in a village outside Mthatha in the Eastern Cape.

The benefits of an Thus, the approach has been to give reasonableness shifts constantly, incremental approach content to the right to basic education depending on the circumstances of The first lesson is about the advantages by gradually building it up from the a particular case and government’s of an incremental approach. In the absolute minimum. This has the resources at the time, adequacy education litigation cases above, advantages of the minimum core represents a defined threshold that although the right to basic education approach – it provides clear content to has been developed through case law. is immediately realisable, civil society the right and gives communities and At present, an adequate education is organisations have opted to take an courts a definite standard against which constituted by instruction in a school incremental approach to litigation and to measure government’s performance. with safe infrastructure, sanitation, have used the standard of ‘adequacy’. However, unlike the minimum core, it potable water, sufficient security, This incremental approach is evident does not risk stagnating or becoming textbooks, and a permanent teacher in the choice of cases that have been fixed. The minimum standard will rise (among other things). This standard brought. The first cases thus dealt with every new case that is brought and is immediately realisable, in line with with the poorest of the poor and most won. the wording of Section 29(1)(a) of the Constitution. vulnerable. Moreover, by forcing government itself The schools chosen for the mud schools to set the minimum requirements, the The advantages of narrow case, for example, are situated in the norms and standards case avoided the litigation repeated refrain from the courts that Eastern Cape (one of the country’s A second lesson concerns the advantages poorest provinces) and were among the judges are not well placed to set such standards. This was a far more effective of narrowly-focused litigation. Each worst-off schools in the province. There of the cases described above takes on was little doubt that the court would find way of proceeding than, for example, asking the courts for broad systemic a specific issue, provides extensive in favour of the applicants when faced evidence regarding that issue and seeks with the dire conditions at these schools. infrastructural relief on an unrealistic scale. a clear order in relation thereto. In our Similarly, the norms and standards view, there are a number of strategic case dealt with the absolute minimum Litigating parties have used the shortcomings in pursuing a contrasting, standards required for teaching and standard of adequacy when assessing overly broad relief: the constitutionality of government’s learning, including access to potable • Courts will be reluctant to grant provision of education. The standard water, functioning toilets, buildings that sweeping and vaguely defined orders of adequacy is arguably more fixed protect students from the elements, for fear that they might intrude into than that of reasonableness. This and classrooms that contain desks and the policy-making domain of the is particularly true if one takes the chairs. legislature and executive. approach described above. While

Public interest litigation and social change in South Africa: Strategies, tactics and lessons 91 Chapter 2 Changing trends in the South African public interest litigation environment

Although the right to basic education is immediately realisable, civil society organisations have opted to take an incremental approach to litigation and have used the standard of ‘adequacy’. Their approach has been to give content to the right to basic education by gradually building it up from the absolute minimum.

• By seeking too much too early, the informing the ongoing litigation […] take all such steps, including applicants risk a refusal and thereby in Pease v Government of South urgent and interim steps, as may be creation of a negative precedent that Africa.181 This case is brought against necessary to address reasonably and will close off litigation on certain the national government, as well responsively each and every failure issues in the future. as the MEC for Education in each and/or omission [as listed above] by • A broad order does not give clear province. The applicants, an education taking reasonable and accountable guidance to government officials as specialist and the Progressive Principals steps to remedy the conditions to the steps that they should take. Association, claim that the respondents [referred to above].182 An order in specific terms increases have breached their duties under no In addition, the applicants seek a the likelihood of compliance when less than 12 different Sections in the supervisory order whereby government the state’s failures were caused by Constitution by failing to: would report to the court on the steps the incapacity, incompetence or • equip the majority of learners that it has taken and the progress that it inattention of officials. The same in South African schools with has made. holds true when failures result sufficient literacy and numeracy from active political opposition or skills to attain functional literacy; At the time of writing, the matter had a lack of political will. A clear and • deliver textbooks and learning been argued in the High Court, but no specific order removes the space for materials timeously, in appropriate judgment had yet been delivered. We uncooperative government officials quantities and in appropriate therefore express no view on the merits to delay or avoid acting. languages; of this case. • The agnitudem of the issues • address teacher absenteeism, lack of However, the strategy underlying the addressed and the relief claimed professionalism and lack of training; litigation appears to us to be seriously would make a supervisory order a • promote and provide mother- questionable. In view of the difficulty daunting prospect for any court. tongue education; and of persuading courts to even make • Communities will be unable to • make available comprehensive narrow, precise orders and then to get monitor the implementation of an early childhood development government to properly implement order made in broad, ill-defined programmes to children under five them, we have doubts about the terms. years of age. effectiveness of this approach. In particular, it must be emphasised that The applicants seek an order that a case that aims to attain everything is at national government must: risk of achieving nothing. 182 Notice of Motion, Pease & Another v It is for this reason that we have to 181 Pease & Another v Government of South Africa Government of South Africa & Others, Western & Others, Western Cape High Court, Case No. Cape High Court, Case No. 18904/13, paragraph record our concerns about the strategy 18904/13. 3.

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Photograph: Annalisa Burrello ©

Building a record Also, in the Limpopo textbook case, such as lack of access to education for A third lesson is the significance of Section27 relied on reports from poor children, where public support building a record, as illustrated by the schools, teachers and parent members is virtually guaranteed provided that mud schools and Limpopo textbook of school governing bodies to monitor the public understands the nature cases. In the latter, for example, compliance with court orders. Without of the case. This is demonstrated by Section27 took steps to create a record such careful and attentive monitoring, each of the four cases above. All of the of correspondence showing: the continued lack of delivery would organisations involved have spent time have gone unnoticed and the issue and effort to ensure that the media • attempts to resolve the dispute prior would not have been pursued.183 understands and reports on their to resorting to litigation; cases – even where, as in the teacher • the history of misrepresentation and Likewise, in the mud schools case, the post-provisioning case, the issues are unfulfilled promises by government; LRC and the CCL worked with the technical and need to be simplified in and relevant schools and communities to order to attract public attention. • government’s lack of responsiveness enumerate the needs of the schools to the queries and concerns raised and formulate petitions to be signed by The use of creative 184 by communities. members of the communities. remedies A record of this nature significantly The significance of public The sixth lesson is also illustrated increases the likelihood that a court will mobilisation well by the teacher post-provisioning intervene and issue a mandatory order case, namely the value of flexibility A fifth lesson centres on the importance directing government to take specific and willingness to make short-term of public mobilisation. Public interest action. concessions in the name of long-term litigation is most effective when it is gains, and the use of creative remedies. Close ties with affected only one part of an overall campaign. communities This is demonstrated most emphatically In this case, the different approach by the norms and standards case. taken in the second round of litigation The fourth lesson relates to the required the applicants to narrow maintenance of a close connection Similarly, public interest litigation must the scope of their case. Rather than with the communities affected by the (where possible) successfully marshal applying for relief for all schools in the litigation, which is vital for gathering the support of the general public Eastern Cape, the applicants narrowed information and for monitoring through media and other strategies. their focus to secure the appointment compliance. EE’s approach in the norms This is especially the case on an issue of teachers at a specified list of schools. and standards case is a shining example 183 Veriava op.cit., page 36. This concession paid dividends later. of this. 184 Legal Resources Centre, Ready to Learn op.cit., page 19. Having won the relief with regard to

Public interest litigation and social change in South Africa: Strategies, tactics and lessons 93 Chapter 2 Changing trends in the South African public interest litigation environment

Iqonce High School (shack school) in King William’s Town, Eastern Cape. Photograph: Equal Education ©

specific schools in the first phase, the to attach state property in the teacher reasoned judgment – while regrettable LRC and the CCL were able to expand post-provisioning case. – could never justify proceeding with the relief sought to a wider group of the litigation. schools in the second phase. Hence, Knowing when and how to However, the education litigation in the second phase they sought (and accept settlement cases also demonstrate the need for won) an order giving schools the power A final important lesson that emerges litigants to be tactically astute when to permanently appoint candidates from these education litigation settlement prospects arise. The decision to teaching positions if the provincial examples is that public interest litigants in the mud schools case to refuse to Department of Education had failed must know when to accept settlement entertain settlement discussions until to make a decision on the schools’ offers to achieve their aims. This is an answering affidavit was filed was recommendations. demonstrated most emphatically by the an important one, as it altered the Moreover, the repeated non-compliance mud schools case. While this case had approach of the parties to settlement. with court orders led the parties initially been built in the hope that it Equally critical was the repeated involved to develop creative remedies would achieve a binding legal precedent decision by the litigants in the teacher designed to fit the anticipated state on the state’s duties in relation to the post-provisioning case to ask for very response, rather than the overly blunt right to basic education, the matter extensive relief which anticipated mechanism of contempt proceedings. was ultimately settled. The decision by eventual non-compliance by the state. For example, the use in the Limpopo the litigants to settle was undoubtedly This approach meant that practical textbook case of an independent correct. The terms of the settlement results were achieved from the litigation verification mechanism was extremely agreement were far more extensive than – even in the face of apparently effective, as was the approach of relying they could ever have hoped to obtain intransigent respondents. on deemed appointments and the right from a court order. The absence of a

94 Public interest litigation and social change in South Africa: Strategies, tactics and lessons Chapter 3: Four key strategies for using rights to achieve social change

Public interest litigation and social change in South Africa: Strategies, tactics and lessons 95 Four key strategies for using rights to achieve social change

One of the main questions Atlantic raised with us was which four strategies (litigation being the combination of strategies has been most effective in using rights to fourth strategy). Indeed, often this achieve social change, as well as the relationship of public interest is not possible and we readily accept litigation to various aspects of social mobilisation. In this regard, we that specialist litigation organisations understand social change to refer simply to whether rights have been frequently have a vital role to play. As used to produce a tangible and sustainable impact on the ground for one of our respondents put it: those who ought to benefit from them. The ‘successful’ combination is not a paint-by-numbers one, but very much depends on the issue. However, the rawing on the case studies history of social change has proven presented in Chapter 2, as well many times over that a single action Das our evaluation as a whole, strategy – whether litigation on its we conclude that for public interest own, or activism on its own, will always litigation to achieve maximum success fail. in advancing social change, it ought to Indeed, as the Rural Women’s Action take place in combination with three Research Programme has correctly other strategies. These are: explained, these strategic processes • c onducting public information should not be directed by lawyers as campaigns to achieve rights ‘experts’ or outsiders: awareness; [I]t is our experience that in order to • pr oviding advice and assistance to successfully achieve social change, people in claiming their rights; and these strategic processes need to be • m aking use of social mobilisation framed by the initiatives and actions and advocacy to ensure that of community members and leaders, communities are actively involved not by ‘experts’. These processes in asserting rights inside and outside may indeed require support from the legal environment. ‘expert’ partners, but the terms of the We do not suggest that it is essential interaction should be governed by a that a single organisation itself be frame and agenda that is set by the integrally involved in each of these community. This approach increases

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Sisters Manoko and Elizabeth Dolo pictured in 2003. They were unable to attend school near Mokopane in Limpopo because their mother could not afford school fees for all her seven children. Photograph: Sydney Seshibedi ©

the likelihood that the interaction This empowerment of the citizenry and its outcome will constitute best ■ will necessitate capacity-building of practice.185 grassroots organisations, so that these Strategy 1 – groups may develop the skills needed A similar conclusion is reached by to educate people about their rights Lucie White and Jeremy Perelman after public and assist them in situations where considering four case studies regarding their rights are being violated. economic and social rights in different information parts of Africa. In respect of those A public information campaign is A public information campaign that valuable in itself in terms of changing involved, they conclude that: informs ordinary people of their rights attitudes and empowering individuals, [these activists] are among a new is an essential component of any effort but it is also essential if people are to generation of social justice activists to achieve social change on rights issues. who have seized upon human rights understand the role that law and legal values, language, and tactics to When asked about the major obstacles rights can play in achieving social change. challenge the realities of extreme to using the law to achieve social Somewhat surprisingly, a number of poverty. All in this new generation change, virtually all our respondents respondents suggested that even certain identified lack of knowledge about share a striking similarity in how they well-organised civil society bodies are rights as the primary obstacle. As one do their work. Although embracing insufficiently aware or persuaded of respondent explained: the role that legal rights could play in human rights values, they reject assisting them to achieve their goals. traditional notions of human rights Few of the poor and marginalised In respect of ordinary citizens and practice as a top-down, lawyer-driven, (especially those in rural areas that lack access to information and communities, the lack of knowledge is professional “game”. Each of these communication technology) are aware far more severe. advocates has understood human of their rights, know the law, or have rights activism as political practice.186 The need for public information is been informed that the law may be brought home forcefully by the example able to help change their situation. of the Grootboom case. There, until the Another respondent made the same Magistrate of his own accord referred the 185 Aninka Claassens, Monica de Souza, Mazibuko point with regard to expanding the use community to a lawyer, they apparently Jara & Dee Smythe, Advancing the Human Rights had no idea that they had legal rights of the Rural Poor: Building Resources for Local of socio-economic rights: Activism, Strategic Litigation and Law Reform, The first step necessary to achieve which might assist them in preventing unpublished: June 2011, page 23. eviction. As a result, they did not seek 186 Lucie E White & Jeremy Perelman (eds), Stones this expansion is the creation of a of Hope: How African Activists Reclaim Human system wherein the people know legal advice, let alone make adequate use Rights to Challenge Global Poverty, Stanford of the legal rights that they had. University Press: 2010, page 3. their rights and begin to assert them.

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A public information campaign that informs ordinary people of their rights is an essential component of any effort to achieve social change on rights issues.

This is true of many areas of South information campaigns, both directed at them a say in terms of the campaign, African life where statutes or the its own members and the general public, including when we decided to actually Constitution confer rights on people, explaining what the rights of HIV- go to court. So, by the time we actually but they are unaware of these rights and positive individuals are. Moreover, as the made the decision to go to court, we therefore cannot make use of them. This case study discussion demonstrates, this had actually been campaigning for is so even when the rights are explicit public information campaign continued about two years. And by that time our and contained in legislation. even after the litigation had been members were ready and they agreed launched, with numerous workshops and felt it was time to take the Minister For example, one respondent conducted by TAC volunteers to explain to court. […] emphasised that although the South the case. African Schools Act 84 of 1996 provides [I]n the middle of 2013 [the Minister of substantial protection for children Similarly, in the case on norms and Basic Education] asked for an extension whose parents have not paid school fees, standards for school infrastructure, to adopt norms and standards, and the majority of families who have had EE engaged in a sustained public we took that to the membership, and their children threatened or sent home information and protest campaign. This we asked the membership how they from school due to unpaid fees do not included leading school children and felt about that particular request – know that they have any legal recourse. supporters in a number of marches, and overwhelmingly they said that going door-to-door in communities we shouldn’t give the Minister an Another example is the fact that some to explain the issues and garner extension. As the leadership of the municipalities have indigent persons support, taking out full page adverts in organisation, we consulted with them, policies that allow poor people to obtain newspapers, putting adverts on radio, but in actual fact we decided to give free or reduced-rate municipal services releasing an animated video explaining the Minister a limited extension. such as electricity and water. Generally, the campaign, and organising a ‘Ten [O]n the one hand we were informed however, the municipalities appear to Days of Action’ project in schools by what the members felt, but also have made no effort to alert consumers (filling each day with a different activity we felt very strongly together with to this and, as a result, consumers are to draw attention to the campaign our lawyers […] that if we didn’t give simply unaware of this route as an such as the production of a play to the Minister this extension and if the option. The indigent persons policies inform learners about the case). As EE’s matter were to go to court, the judges remain in by-laws only, with poor people General Secretary, Brad Brockman, has may be very sympathetic to what the having their electricity and water cut off explained, however, this is not always Minister was saying. [W]e might even due to non-payment. easy: get in a situation where the judge gives [the Minister] a much longer The kind of public information required We made a very conscious effort to extension than we would have given is demonstrated by the TAC example. keep our members involved and to give The TAC engaged in extensive public […] and agreed to in the first place. So,

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Parents in Shallcross, near Durban, protesting against the imposition of school fees in November 2006. Photograph: Abhi Indrarajan ©

that created a lot of tension within the ■ interest organisations under apartheid. organisation. It was important for us A number of our respondents to consult and also important for us emphasised the important role played afterwards to explain our particular Strategy 2 – by advice offices in this period. This choice. And, in the end, I think we meant that organisations such as made the right choice.187 advice and the Black Sash, which did not itself Nevertheless, such public information assistance undertake litigation, could nevertheless strategies are crucial in increasing the provide legal assistance to large Once people are aware of their rights, it likelihood of public interest litigation numbers of people and channel cases is critical that a strategy enabling people succeeding. If ordinary people do not that required litigation to lawyers in to claim these rights is developed. understand and buy into the litigation, private practice. those conducting it are unable to obtain Of course, all public interest litigation The end of apartheid, however, saw the the required information to launch is notionally about enabling people dwindling of such advice centres. This litigation and are unlikely to generate to claim their rights. However, we was highly problematic as it meant that substantial support from ordinary conclude that something beyond this indigent people either had to access people, which in turn plays an important – and separate from it – is necessary. fully fledged lawyers or, for the most role in perceptions of the litigation by Litigation cannot and should not be the part, were left without any legal advice courts, the public and government. only way in which people are enabled to at all. claim their rights. Moreover, where litigation succeeds, it As one respondent explained, reflecting is essential that people are aware of the Instead, it is essential that there are on the situation in the mid-2000s and in success in order to pursue their rights intermediary organisations which answer to the question of how poor and and transform the victory into concrete support people to claim their rights, marginalised communities have used progress on the ground, or in order to through giving advice, directing them to the law to access rights and services: inform the public interest organisations appropriate institutions, assisting them They have used the law very effectively involved if the victory, for whatever with the formulation of their claims, when they have access to advice reason, is not leading to tangible social and taking matters up on their behalf offices, the LRC and other free legal change on the ground. – all of which can be done successfully services. But the major problem is without necessarily engaging in access. litigation. There have since been substantial efforts 187 Transcribed from the audio version of the The need for such advice centres is discussion on Social Mobilization and Strategic to repair this situation. As mentioned Litigation for Equal Education in South Africa made clear by the efforts of public op.cit. earlier, ProBono.Org was established in

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It is essential that there are intermediary organisations which support people to claim their rights, through giving advice, directing them to appropriate institutions, assisting them with the formulation of their claims, and taking matters up on their behalf – all of which can be done successfully without necessarily engaging in litigation.

2006 to facilitate legal pro bono support without a lawyer’s letter ever being be effectively designed and targeted to the poor by law firms and private written – let alone litigation being to achieve maximum impact. It also practitioners. This was followed in 2007 launched. As one respondent who runs provides a wide range of possible by the launch of the National Alliance such advice centres explained: applicants to participate in litigation for the Development of Community Of the 10 000 cases we see per year, and sustains the factual contentions Advice Offices (NADCAO) – an only a small portion require the necessary to make such litigation alliance of NGOs and donors seeking assistance of a pro bono attorney. Still successful. to strengthen the community advice fewer form part of test cases seeking to Equally important, advice centres office sector and broaden access to change the law. play a crucial role in ensuring that a justice. Recently, LASA has also begun substantial victory in a landmark case to increase its involvement in civil However, it is important that advice actually translates into tangible benefits cases and has struck a co-operation centres either be staffed by paralegals far beyond those directly involved in the agreement with NADCAO involving or at least have staff who are sufficiently case. A socio-economic rights victory in legal back-up services by LASA to trained to see what legal routes are the Constitutional Court is meaningless community advice offices, and referrals available. This is demonstrated by the if the news of this is not disseminated from these offices to LASA’s Justice Grootboom case. Had the Grootboom and acted upon – for example, by Centres and Satellite Offices. In sum, community not been referred by the writing letters reminding the relevant while there is undoubtedly always more Magistrate to Julian Apollos, they would department of the Court’s decision that can be done, these developments likely have been left unrepresented and and its effect. An advice and assistance are important in enabling people to entirely unable to resist the eviction. strategy is therefore essential, if we claim their rights. This demonstrates the valuable role of advice and support to people wishing to are to avoid having jurisprudentially It bears emphasis that community- assert their rights. important cases that have little practical based advice centres need not be staffed impact on the ground. by lawyers. Many of the issues raised by Advice centres thus play a clients may not even need legal advice. fundamentally important role, for In many instances, people simply example, in referring people to litigation do not know where to go to claim a organisations. In doing so, they provide service from a particular government an essential feeding ground for future department or do not know the services litigation – by identifying the core or to which they are entitled. Proper most serious issues that are affecting advice on these issues could mean a large numbers of ordinary people. significant change in people’s lives, This allows public interest litigation to

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Farmworkers are among the most vulnerable, and community advice offices often play an important role in enforcing their rights.

We must always remember that the innumerable and appalling social ■ social action litigation is a necessary evils through the courts and the media. and valuable ally in the cause of the We must link up with social activists Strategy 3 – poor, but it cannot be a substitute who alone can provide them with for the organisation of the poor, ground support.189 social development of community self- mobilisation reliance and establishment of Potential tension effective organisational structures and advocacy through which the poor can combat between litigation exploitation and injustice, protect and and social It is clear from our study that rights defend their interests, and secure their generally are most effectively asserted rights and entitlements.188 mobilisation and by social movements. This point is well advocacy demonstrated by the case studies in The same point is made even more Chapter 2 as well as other examples, and forcefully by Indian public interest The use of litigation may even distract is a view shared by virtually all of our litigation activist, Vasudha Dhagamwar: from and undermine other activities of a respondents. For the downtrodden of the world, we social movement which seek to enforce secure their rights by law, exactly as rights. As Richard Abel explains: Importantly, it appears that this though they had the same privileged conclusion is not limited to South The legal representation of similarly background as we, and then, outside Africa. Instead, comparative foreign situated individuals, even when it takes the courtroom we leave them to their experience demonstrates the same the form of a “class” action, tends separate ways […] Their grim, hostile to substitute for, rather than foster, trend, a point emphasised by Geoff world, which recedes while we are organisation […] The inescapable Budlender in his paper from 2000, present, returns with a vengeance. This conclusions, however reluctant we may Using the South African Constitution as is why our legal victories turn out to be to draw them, are that the clientele a Mechanism for Addressing Poverty, on be pyrrhic and dangerous to the poor. of legal aid does not lend itself to which we draw here. There is a real danger if legal activists organisation, and that the offer of legal The view that litigation by itself is continue to interfere haphazardly, on assistance actually may undermine generally insufficient to produce social a short term, case-wise basis with the collective action.190 change and that social mobilisation is lives of the downtrodden. It is time we essential has been particularly forcefully learn that it is not enough to expose expressed in the Indian context. As 189 Cooper op.cit., page 139. 188 Quoted from Jeremy Cooper, Public interest law 190 Richard L Abel, Law without Politics: Legal former Chief Justice PN Bhagwati of the revisited, in Commonwealth Law Bulletin. Vol. Aid under Advanced Capitalism, in UCLA Law Supreme Court of India expresses it: 25, Issue 1: 1999, page 140. Review, Vol. 32: 1985, pages 496-497.

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Public interest litigation achieves maximum social impact when it complements and assists other advocacy strategies, including efforts to achieve social change via formal and informal political processes as well as public pressure.

Almost precisely the same view was system. [This is] one of the reasons litigation achieves maximum social expressed by one of our respondents: why you have to be quite careful and impact when it complements and assists The potential exists for litigation think about when it is that you choose other advocacy strategies, including and mobilisation to be in tension, to take on strategic litigation, because efforts to achieve social change via if recourse to the courts leads to you in essence are now taking away formal and informal political processes resources being devoted only to certain space within which to engage as well as public pressure. As Geoff litigation, at the expense of other and ultimately get potentially stuck Budlender explains, there is a need for strategies, leading to demobilisation. in what could be a long, drawn-out social movements that: This can also involve lawyers and court process. [This] is again a caution […] identify issues, mobilise support intellectuals taking the lead in devising to any of us when making these around them, place pressure on the 191 strategies and making key decisions, decisions. political system, use the legal system at the expense of decision-making by What all of this makes clear is that as a means of achieving this, and communities or their representatives. making use of litigation can never monitor and enforce favourable laws This danger needs to be guarded suffice as an alternative to or substitute and orders by the courts. The best against. for proper social mobilisation on rights legal work supports the development of this sort of social movement.192 The scepticism of NGOs with regard issues. Rights have to be asserted both to the use of litigation is relatively outside and inside the courts. Laws widespread and ultimately not and policies have to be developed in Successful surprising. In the context of the a manner which has proper regard to mobilisation in Mazibuko case, for example, one rights. Even when litigation results in respondent explained that the APF was a major breakthrough, there has to be practice organisation to ensure that it is properly initially resistant to being associated The proper relationship between implemented. with litigation and engaged in extensive mobilisation and litigation is conversations and deliberations It is therefore critical that public interest demonstrated by a number of South about the ‘turn to the courts’. Even litigation be seen as merely one facet – African examples. Some of these organisations that have litigated in their albeit an important one – of broader, examples demonstrate how, skilfully own names remain cautious on this more varied efforts to achieve social managed, litigation can contribute as score. As EE has explained: change. In particular, public interest one aspect of a broader mobilisation One of the dangers […] that you face process. Other examples demonstrate when deciding to take a campaign 191 Transcribed from the audio version of the case to court is that you then get a discussion on Social Mobilization and Strategic 192 Geoff Budlender, Using the South African Litigation for Equal Education in South Africa Constitution as a Mechanism for Addressing process pretty much stuck in the court op.cit. Poverty, unpublished: 2000.

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Protest against ‘’ in East in May 2011, organised by the Eastern Cape LGBTI Organisation. Photograph: Zamanguni Mzimela ©

the negative consequences that result Other examples of successful political The Grootboom case also presents an when this is not done. and social mobilisation emerge in the important example. In this case, there litigation around the right to education. was initially active social mobilisation An especially good example of and protest. combining mobilisation and litigation During the Limpopo textbook is that of the TAC case. The TAC saw litigation, for example, Section27 A few days after being evicted, the litigation as one facet of a much bigger launched an extensive media campaign community organised a march to the political fight over the availability that put pressure on government offices of the Oostenberg Municipality, of HIV and AIDS drugs. For years respondents to act. The organisation forced their way into a council meeting before the case commenced, the TAC relied on both traditional and social and demanded that something be had been engaging in substantial media platforms. Section27 thus done about their plight. This ultimately social mobilisation of its members released press statements, held press did not secure them any assistance – and the broader public in an effort to conferences, wrote opinion pieces and although it did put them in contact put pressure on government. Geoff provided updates via social media. with the ANC politician who later Budlender makes this point: The political pressure resulted in encouraged them to launch the court The TAC built a strong alliance with government interventions beyond action. those sought in the litigation, including key pillars of civil society – trade However, once the litigation began, the appointment by President Zuma of unions, churches and media. It built the social mobilisation appeared to a task team to investigate the causes of a genuine social movement and dissipate, with the community relying delayed deliveries. showed how the Constitution, which largely on the legal process to resolve represents the best ideals and values Similarly, in the norms and standards the dispute. This had a number of of our country, can be a powerful tool case, EE used its public campaign negative effects, including that by the for holding government to those ideals to build grass-roots support for the time judgment was handed down, the and values. movement. As a result, there was community was no longer in a strong In some ways, the final judgement of significant pressure brought to bear position actively to assert and enforce the Constitutional Court was simply on the Minister of Basic Education to its rights. the conclusion of a battle that the TAC uphold her commitment to publish The weak and temporary nature of the had already won outside the courts, binding minimum norms and standards social mobilisation in the Grootboom but with the skilful use of the courts as for school infrastructure. Moreover, case was, regrettably, symptomatic of part of a broader struggle.193 EE grew its support base significantly a lack of mobilisation in the land and 193 and gained momentum for its other  Geoff Budlender in A paper dog with real teeth, housing sectors more generally. As one Mail & Guardian: 12 July 2002. education campaigns. of our respondents explained of the

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land sector in 2007: It is important to understand, however, similarly placed) regard the judgment The key weakness in South Africa’s that the effect of this victory went as a symbolic victory which precludes land sector to date has clearly been far beyond merely setting aside the the inclusion of any of the opposed the lack of an organised political legislation on procedural grounds: provisions’ content in future versions of 195 constituency in rural society, Court victories are often important the Act. articulating a powerful rural voice able in illuminating for poor people that Equally important and impressive to counter the persistent urban bias in victories against powerful actors – were extensive efforts to oppose the the country’s politics and economics. such as the state – are possible and Traditional Courts Bill.196 These efforts Land sector NGOs have consistently within their grasp. This is critically resulted in the Bill notionally ‘lapsing’ advocated pro-poor policies and important in contexts where the power in Parliament in February 2014 – but greater levels of state investment in of the state has previously seemed it is quite clear that it was the extensive rural areas, but their reach is limited impregnable. The impact works organised resistance to the Bill that and their impact on policy has been both ways in the sense that often produced this result. As explained by uneven and often very limited. state officials are disproportionately Nomboniso Gasa from the Centre Rural social movements pushing for disheartened by losing cases. In this for Law and Society, which has been fundamental change did not emerge sense the symbolic impact of victories actively involved in many of these on any scale in the 1990s, and an and successes may be disproportionate campaigns: attempt in 1999 to foster such a to the narrow focus of the issue being Who killed the [Traditional Courts movement, undertaken by an alliance litigated. This changed perception of Bill]? The people who took great of NGOs under the umbrella of the the balance of power builds confidence risks and refused to be hoodwinked Rural Development Initiative, came to and inspires people to engage actively into believing that the bill was about naught. in struggles for change – including their culture, custom and affirmation non-legal on-the-ground struggles. This may well explain why, by 2007, of traditional leadership. These are Success breeds confidence which is the land and housing cases brought the people who travelled to hearings important in and of itself in processes under the Constitution had all related again and again, thirsty, without of local struggle. […] to individual communities often faced travel money, and relied on the help of with an immediate threat of eviction. Despite the generally limited scope of others. […] the content dealt with in judgments, This was in stark contrast to the careful To go with the story that “the the symbolic impact of a court victory strategy of the TAC, for example. [Traditional Courts Bill] lapsed” is often goes beyond that which is to deny the courage of these people Thankfully, this situation has begun to contained in the judge’s final decision. in face of great humiliation and change. Increasingly, significant efforts The recent constitutional court case intimidation in some of the public are being made to engage in social of Tongoane […] is illustrative of hearings, including in Parliament. mobilisation strategies, particularly this point. Judgment was delivered They are South Africans who live in among rural communities. The careful in favour of the applicants and the the “back of beyond”, who are often and sustained efforts to resist the Communal Land Rights Act 11 of blurred in national consciousness. negative effects of the Communal 2004 was declared unconstitutional Despite being told in public hearings, Land Rights Act 11 of 2004 are good in its entirety. However, judgment was “Tata, asithethi ngezikhalazo zakho examples, ultimately ending in a delivered only in respect of procedural phatsi kwentlalo yeNkosi” (Father, victory in the Constitutional Court in irregularities in the parliamentary we are not speaking about your Tongoane v Minister of Agriculture drafting of the Act, not in respect 194 complaints about your chief here), they and Land Affairs, albeit only on of more substantive arguments put were not deterred. They continued to procedural grounds. forward by the applicants about the content of the Act. Despite this, 194 Tongoane & Others v National Minister of 195 Claassens et al. op.cit., pages 23-24. Agriculture and Land Affairs & Others [2010] the applicants (and other persons 196 Traditional Courts Bill [B1-2012], formerly ZACC 10; 2010 (6) SA 214 (CC). [B15-2008].

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Photograph: War on Want ©

give their reasons for rejecting the bill. extent to which they can be accessed. surprisingly those involving individual They know their customs and live in In our sector, an over-reliance of legal litigants. Thus, for example, there have these communities.197 means to facilitate social change has been a series of decisions by the courts meant that we now have a large gap Turning to the gay and lesbian in favour of individual women who have between the policy and the personal litigation, the NCGLE was initially been subjected to violence and abuse by reality, on a range of rights issues. […] very active and effective at lobbying at the police or due to state inaction such a political level and at ensuring a public The LGBT sector has largely won as in Carmichele v Minister of Safety its gains through the courts, with and Security,198 and K v Minister of presence – for example, at the court 199 hearings that took place in the sodomy little engagement with affected Safety and Security. matter. This public presence waned over constituencies or the broader public. These were landmark and time, although it was revived to some The disparity that exists between law groundbreaking judgments which held extent briefly by the gay marriage case change and the practical outcomes this the state accountable and awarded and its aftermath. will affect is glaring. Implementation substantial damages – but as one of our is key and the human factor mediates respondents asked: However, our respondents in the gay here, so unless we engage with the [W]here has this had any impact on and lesbian sector made clear to us that social attitudes and perceptions the way in which ordinary women are a lack of social mobilisation and public that make up this human factor, the treated in general or by the state in engagement on gay and lesbian issues effects of law in action will be limited. particular? was a major problem for the sector, Administrative barriers are key here, notwithstanding the string of emphatic and civil society organisations and While these judgments and monetary court victories. As one respondent service providers have a critical role damages awarded may have vindicated explained: to play. the rights of the individual women Litigation strategies must be coupled concerned, they appear to have had It is thus clear that even in the gay with community-based activism and little impact on a broader scale. popularisation of legal advocacy and lesbian litigation – which we have The same emerges from litigation to allow a deepening of public argued was as carefully thought out and under apartheid. Though the legal and engagement with the issue of socio- well run as any of which we are aware political environment was substantially economic rights. Rights are not only – a solid litigation strategy was not different to the present, an examination won through the courts, for they are sufficient to compensate for a lack of of Richard Abel’s excellent book Politics only as lasting and meaningful as the social mobilisation. The lack of mobilisation is even starker 198 Carmichele v Minister of Safety and Security & Another [2001] ZACC 22; 2001 (4) SA 938 (CC). 197 Nomboniso Gasa in Who killed the Traditional in other areas – particularly and not 199 K v Minister of Safety and Security [2005] ZACC Courts Bill, Sunday Independent: 2 March 2014. 8; 2005 (6) SA 419 (CC).

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A lack of social mobilisation and public engagement on gay and lesbian issues was a major problem for the sector, notwithstanding the string of emphatic court victories.

by Other Means: Law in the Struggle to bear in mind that – at least initially – been spurred on by the ANC politician Against Apartheid, 1980-1994200 makes the TAC used a model of ‘mobilisation and had the primary target not been the it clear that legal work under apartheid first, litigation second’. As another NNP-run local municipality. was most likely to be successful in an respondent put it: A similar issue is raised by the TAC case enduring way when it was supported […] litigation can only catalyse where, as Heywood explains: by political or social movements mobilisation that is already taking [t]here was reluctance publicly to or organisations, to the extent then place, it cannot create a movement endorse taking ‘our’ government possible. where there was none. to court. Therefore the right of civil The lesson in our view is clear – it is the While much will depend on the specific society to use litigation to claim and combination of complementary social circumstances of the organisation, enforce rights had to be argued in mobilisation and litigation strategies community and cause involved, we are meetings and workshops against that has the greatest potential to alter of the view that for many communities those who considered it ‘disloyal’ laws and policies. and organisations, until there is or ‘unpatriotic.’ Although COSATU sufficient mobilisation, litigation will welcomed each judgment in TAC’s Litigation as an not even be a possible option. This favour, it never openly supported the entry-point for is demonstrated by the Grootboom litigation.201 example. mobilisation? Indeed, these concerns may well have In the Grootboom case, the been exacerbated by the fact that, over One respondent suggested to us that community’s decision to embark on the past five years, opposition political one could successfully use litigation legal action only occurred when a parties have turned to the courts with as an entry point for large-scale prominent provincial ANC politician increasing frequency in an effort to mobilisation. While this may occur in became involved and supported such challenge government conduct and a unusual cases, we doubt that it is likely a course, thinking it would assist the range of laws. This has prompted Judge to be successful in general. ANC to embarrass the NNP. Until that Dennis Davis to remark that: point, litigation was not on the agenda For example, there can be no question [t]here is a danger in South Africa […] – even though the community was now that the TAC case vastly increased the of the politicisation of the judiciary, legally represented. public profile of the TAC and assisted drawing the judiciary into every and all in widening its existing mobilisation This strongly suggests that the litigation political disputes, as if there is no other process. Nevertheless, it is important may not have happened in the same forum to deal with a political impasse way or even at all had the community relating to policy, or disputes which 200 Abel, Politics by Other Means: Law in the (generally strong ANC supporters) not Struggle Against Apartheid 1980-1994 op.cit. 201 Heywood op.cit., page 300.

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Treatment Action Campaign community outreach in the Buhle Park township in south-eastern Johannesburg, February 2011. Photograph: Luckyboy Mkhondwane & Treatment Action Campaign ©

clearly carry polycentric consequences used in combination with the three All our respondents, in different beyond the scope of adjudication.202 strategies set out above. guises, supported the proposition that, properly used, public interest litigation Whatever the origin of the concerns, The advantages of using litigation enables poor or marginalised groups to they may in part go some way in as a complement to the three other achieve impact and success that would explaining the relatively limited strategies are well explained by the often not be available to them if they litigation by poor communities against Rural Women’s Action Research were limited only to the three strategies government, particularly given that all Programme: set out above. three spheres of government are in most This approach to litigation is attractive areas ANC-controlled. because it implicitly acknowledges the At some stage, however, even this While the loyalty of various systemic disadvantages suffered by starting point has proved controversial communities to the ANC is not many communities in South Africa, in certain parts of the world, surprising, it strongly supports the and incorporates mobilisation and particularly in the US. In the 1990s, a argument that at least some degree of other community-based strategies furious academic debate took place over social mobilisation of communities is into the litigation process so that whether litigation could produce social essential before litigation can even be community members themselves change, sparked by Gerald Rosenberg’s (in partnering with lawyers) can work The Hollow Hope: Can Courts placed on the table as a viable option. 205 be empowered to overcome these Bring About Social Change? However, disadvantages. In the words of two even Rosenberg does not contend that ■ ‘community lawyers’ from the USA: litigation can never produce social “In this model, rather than saviors or change. As he explains: Strategy 4 – gatekeepers, lawyers are tacticians Courts influence events all the time. in the struggle for change. We call it The claim The Hollow Hope makes litigation community lawyering”.203 And later: is that only under certain specified “... fundamentally we believe that conditions can courts further The final of our four proposed strategies lawyers are most effective when significant social reform. Without the is that of litigation. While we have they assist those most impacted by presence of those decisions, court repeatedly stressed that successful marginalization and oppression to lead influence will still be felt, but it won’t litigation must not be seen as an end their own fights for justice”.204 in itself, it can play a pivotal role when

202 Mazibuko, Leader of the Opposition in the 203 Purvi Shah & Charles Elsesser, Purvi & Chuck: National Assembly v Sisulu MP Speaker of the Community Lawyering, 1 June 2010 (available at National Assembly & Others (21990/2012) [2012] www.organizingupgrade.com). 205 Rosenberg op.cit. (1st Edition, University of ZAWCHC 189; 2013 (4) SA 243 (WCC). 204 Claassens et al. op.cit., page 20. Chicago Press: 1991).

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2007: The light towers of the Constitutional Court rise above the barbed wire fortification of Section Four at the Johannesburg Fort (an apartheid-era prison). Photograph: Gerald Kraak ©

contribute very much to producing of the practical consequences of the This does not suggest, of course, that significant social reform.206 case studies discussed in Chapter 2 the litigation has produced a radical This is not the place for a detailed debate demonstrate the social change that can reordering of our society. It does make over the correctness of Rosenberg’s result from public interest litigation. clear, however, that public interest arguments and views and, even These consequences include: litigation can, when used appropriately, more critically, the extent of their • Millions of people are now on ARVs produce social change as we have applicability in a South African context. and countless babies have been defined it above – that is, a tangible and Such a debate would be particularly saved. sustainable impact on the ground for unnecessary because, in truth, virtually • Learners have been given access those who ought to benefit from the no one seriously contends that public to textbooks, teachers and proper rights concerned. interest litigation is inherently incapable school infrastructure. The real question, therefore, is in which of bringing about social change. • Poor people have obtained circumstances and in conjunction increased security of tenure. Moreover, even a brief consideration with which other strategies such social • Gay and lesbian couples are now change is most likely to occur. 206 Gerald Rosenberg, Knowledge and Desire: able to get married, adopt children, Thinking about Courts and Social Change, in and receive pension and inheritance David A Schultz (ed), Leveraging the Law: Using the Courts to Achieve Social Change, 1st Edition, benefits from their partner. Peter Lang Publishing Inc., New York: 1998, page 255.

108 Public interest litigation and social change in South Africa: Strategies, tactics and lessons Chapter 4: Seven factors to maximise the prospect of ensuring that public interest litigation succeeds and achieves social change

Public interest litigation and social change in South Africa: Strategies, tactics and lessons 109 Seven factors to maximise the prospect of ensuring that public interest litigation succeeds and achieves social change

What remains to be considered is in which manner litigation is most interest component may arise by way of likely to succeed and achieve social change. In this chapter, we set out a defence, or even the intervention of an seven factors which we consider critical in this regard. In particular, it amicus curiae. The approach we advance is vital that litigation be properly conceptualised, run and followed up. applies to both proactive and defensive litigation, but is certainly of easier application to the former. he seven factors identified and The second point is that we have noted addressed in this chapter are: the criticism by Jackie Dugard and T• proper organisation of clients; Malcolm Langford of the use of the • overall long-term strategy; seven factors following the 2008 report. • co-ordination and information- They conclude: sharing; [Our] examination of Mazibuko and • timing; Joseph has indicated the complexity of • research; the causal connection between public • characterisation; and interest litigation and both successful • follow-up. judicial outcome and maximal social Somewhat unsurprisingly, our impact. Regarding successful judicial assessment is that where public interest outcome, while various factors are litigation takes place in combination relevant in specific cases (particularly with the first three strategies set out retrospectively), the litigation process in the preceding chapter, these seven is too unpredictable to rely on any factors are far more likely to be present pre-conceived formula. As Mazibuko than where public interest litigation is has shown, you can tick all the seen as a strategy and an end in itself. conventional boxes and still lose in Before we discuss each of these seven court. Or, as Joseph has shown, you factors in turn, we make two points. can sometimes win in court without ticking all the boxes. The first is to recognise that litigation This is not to imply that there are can be either proactive or defensive. not better or worse ways to do In the former case, the parties and public interest litigation. Clearly, the their advisers are able to control the more immersed in the area you are litigation. In the latter, the public litigating the better. As with any kind

110 Public interest litigation and social change in South Africa: Strategies, tactics and lessons Changing trends in the South African public interest litigation environment Chapter 4

A young illegal immigrant on the deportation train from South Africa to in 2000. Photograph: Nadine Hutton ©

of litigation, this includes conducting Joseph did not.208 However, the more of precedent and rules of evidence ongoing research, coordinating with critical point is that, in setting out and procedure. Advancing a litigation stakeholders and learning from these seven factors, we do not purport strategy is, in principle, no different. being a repeat player. In this respect, to provide a mathematical formula This does not mean that courts will there is mounting evidence that civic for success in litigation. Nor could we inevitably decide matters in a particular action requires long-term strategic ever do so. Litigation is subject to so way. It means only that it makes sense thinking based on thorough contextual many variables that outcomes are never to adopt a litigation strategy that has and structural analyses. These are certain. the best prospects of succeeding and to habits worth acquiring. However, as This is not to say, though, that litigation do so in a way that maximises the social evidenced in Mazibuko, such factors can or should be reduced to a lottery. change which will likely result. might not be enough to ensure a Every day, lawyers provide advice based successful judicial outcome. Judicial Against this backdrop, we turn to the on their reasonable prediction of how outcome depends ultimately on the seven factors concerned. the highest court would decide the issue judges themselves. In this regard, in question. That advice presupposes a studying trends and patterns might measure of consistency and continuity offer some clues as to how judges ■ in the legal system based on a system might adjudicate. However, in the case of the South African Constitutional 208 To provide two examples: Factor 1 – Court, particularly in relation to socio- Dugard and Langford conclude that Mazibuko fully met the timing factor because all attempted economic rights claims such as those political engagement had failed by the time of proper pursued in Mazibuko and Joseph, the the launch of the litigation. However, a number of our respondents disagreed. They emphasised Court’s jurisprudence is still too sparse that the first case on access to water should not organisation of and inconclusive to provide concrete have been one brought on behalf of people with access to running water in their homes, and that clients 207 direction. political engagement in relation to the City of Johannesburg’s indigence measures regarding water An important point that arises for We disagree with the assessment that had not occurred at all. consideration is which types of clients Mazibuko ticked all the boxes while Dugard and Langford contend that the characterisation factor in Joseph was only partially are most likely to lead to the most satisfied because the applicants characterised successful public interest litigation? In the case as a ‘right to housing’ case and the Constitutional Court then sidestepped that our view, the ideal public interest client characterisation. That is not correct. The applicants were at pains to avoid characterising the case as a has two characteristics: right to housing case and repeatedly emphasised • Firstly, generally speaking, public that the case was about administrative justice and procedural fairness, a characterisation that was interest litigation is likely to 207 Dugard & Langford op.cit., page 63. ultimately accepted by the Court.

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Litigation is likely to achieve greater social change when the client is a collective entity with a direct interest in the matters being litigated.

achieve greater social change when example, but there is often no greater Cape province failed to comply with the client is a collective entity cause at stake that is being asserted. As the Constitution. We deal with the (organisation or movement) with a a result, the conceptualisation of the effect of declaratory orders later in this direct interest in the matters being case, the scope of the legal debate and chapter, but for present purposes suffice litigated, rather than, for example, a any remedy awarded tends to be narrow it to say that the Grootboom order, if few disparate individuals. and individualistic, thus reducing the used properly by organisations such • S econdly, public interest litigation prospects of achieving social change. as the SAHRC, could have provided is likely to achieve greater social an ideal springboard for achieving A good example of this is the change when the client plays an substantial social change. This situation Grootboom case. Until the LRC active and engaged role, rather than was only made possible by the LRC’s became involved in representing the allowing legal representatives to intervention, broadening the focus of amici, the case focused exclusively make key decisions without proper the case. on the position of the Grootboom client input. community and whether they should Some of the litigation that has been receive housing or shelter. Had the undertaken on behalf of individually Individual or LRC not intervened, and even if the detained asylum seekers and refugees collective clients Grootboom community had succeeded, demonstrates the same point. As Roni it is very likely that the result would Amit explains, in respect of various With regard to the first issue, we have been a narrow judgment and order, court victories – including in the have already touched on examples of focusing only on the community’s Supreme Court of Appeal: litigation that, while achieving impact limited circumstances and affording […] while the individual on whose for the individuals concerned, have them some narrow relief. As a result, behalf the cases was brought generally apparently not had any lasting social while they may have achieved success, obtained some relief, similarly situated impact. These are the women’s rights the broad effect and prospects for social asylum seekers and refugees have cases mentioned earlier – Carmichele v change would have been minimal. continued to confront the same illegal Minister of Safety and Security, and K v practices.209 Minister of Safety and Security. The LRC’s intervention shifted the focus from a narrow case to a broader This is not, of course, to deny the The difficulty, of course, is that an cause. It resulted in a judgment setting importance of vindicating the individual litigant generally has out principles and precedent far individual rights of those who have an individual and narrow interest. beyond the narrow circumstances of 209 Roni Amit, Winning Isn’t Everything: Courts, He or she (or they in the case of a the Grootboom community and gave a Context and Barriers to Effecting Change community) wishes to achieve an broad declaratory order stating that the Through Public Interest Litigation, in South African Journal on Human Rights, Vol. 27, Part 1: award of damages or avoid eviction, for housing policy in the entire Western 2011, page 16.

112 Public interest litigation and social change in South Africa: Strategies, tactics and lessons Changing trends in the South African public interest litigation environment Chapter 4

Tents at a refugee camp in Midrand, Gauteng in 2008. A wave of rioting and xenophobic violence swept through South Africa in May 2008. Photograph: NJR ZA/www.wikimedia.org ©

been unlawfully detained, but it points of an adverse judgment or order made in respect of them, but also used to the difficulty of obtaining systemic that may have negative implications, South Africa’s broad standing provisions relief and producing meaningful social certain departments tend to litigate to act in the public interest in seeking change when cases are only brought on vigorously – taking every technical wide-ranging general relief consisting an individual basis. point imaginable – until shortly before of declaratory and mandatory orders in the matter is to go to court. Then, a few order to resolve systemic problems. In response to this difficulty, LHR days before the court hearing or even has recently launched litigation as This meant that although government on the day of the hearing on the steps an institutional litigant seeking to conceded the individual relief very early of the court, a settlement offer is made challenge the constitutionality of on, the case proceeded to obtain a full to resolve the position of the individual certain provisions of the Immigration judgment in favour of the applicants, litigants. This offer, if accepted, means Act 13 of 2002 on the basis that they together with granting of the general that there is not even a precedent set fail to adequately safeguard the rights relief. because no judgment is issued, let alone of detainees. It is hoped that this will a broad remedial order granted. This Another tactic is to take on a mix of produce greater systemic benefits to tactic is particularly frequently used clients, representing individuals who those affected. by the Department of Home Affairs in are directly affected by the offending Even where an individual litigant does dealing with refugee matters. law or practice as well as one or more seek to bring a case with a broader organisations that represent the public However, where individual clients truly goal in mind, the narrowness of his interest in the matter. This allows public seek to act in the public interest as well, or her direct interest can undermine interest litigators to accept a settlement tactics can be devised to minimise this these efforts. Faced with a settlement for the benefit of the individuals, while risk. This is demonstrated by the case proposal that would resolve the continuing to litigate for the broader of Tafira v Ngozwane210 run by the immediate and individual concern, relief on behalf of the organisations. Wits Law Clinic and dealing with the most clients (and their lawyers who are This strategy was employed in the unlawfulness of procedures in place at ethically obliged to act in their interests) school infrastructure norms and refugee reception offices. will have little option but to accept standards case discussed in Chapter 2. the settlement proposal, thus putting In this case, the seven individual The case was brought on behalf of paid to the case and meaning that the applicants – all of whom were seeking two schools and EE. Both schools had broader cause cannot be furthered. refugee status – made clear that they suffered serious infrastructural damage acted in their own interest in reviewing Indeed, this has become an almost caused by severe weather storms and and setting aside the unlawful decisions inevitable tactic of certain government fire. Consequently, the relief sought was departments. Faced with the prospect split into two parts – the first seeking 210 Tafira v Ngozwane [2006] ZAGPHC 136.

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emergency relief for the two schools the organisational nature of clients conducted on behalf of rights and the second relating to the failure is that it is not always necessary for claimants is conducted with little by the Minister of Basic Education to organisations to represent all those of their input insofar as lawyering make regulations prescribing minimum affected. Coalitions of different is concerned. While a few notable Public interest litigation generally works best and norms and standards for school organisations can work just as well. exceptions – such as TAC – may exist, the bulk of cases analysed follow this achieves maximum social impact when it involves infrastructure applicable to all public What is critical, however, is that the schools in South Africa. relevant organisations or movements trend to a greater or lesser extent.211 clients who are well organised and able to provide proper must be respected as legitimate and After a settlement agreement was Increasingly, however, there are credible by as many people involved as instruction and direction to legal representatives. entered into on 19 November 2012, important exceptions to this approach. possible. Without this legitimacy, it is the Minister fulfilled her obligations in Apart from the TAC case cited by difficult for organisations to properly relation to the two applicant schools, Berger and the NCGLE cases, EE co-ordinate and plan litigation as there thus providing sufficient classrooms, now provides an ideal example of is always a risk of other, potentially security fencing, toilets, water and community organisations playing a damaging, litigation being brought furniture. However, the case did not vital and central role in conceptualising, simultaneously on similar issues. end there. When the Minister failed to running and following up litigation. publish final regulations by the agreed The NCGLE presents an excellent Where litigation is led primarily by deadline, EE and the LRC returned to example of this: If the Coalition had lawyers, it runs a substantially greater court to pursue the second part of the not had the necessary legitimacy to risk of producing a case and a judgment relief. persuade the foreign gay couple to that is removed from the reality on allow the Coalition’s litigation strategy Hence, the inclusion of an institutional the ground and that does not achieve to run its course, the strategy could applicant like EE was crucial for the tangible social change. Even with the have been severely undermined. continuation of the case and the best intentions in the world, lawyers attainment of broader relief. However, generally see things from a legal the importance of including the Involved clients perspective first, in contrast with clients two schools as applicants must not The second aspect of client organisation who want to see an impact on their lives be underestimated. Their inclusion is that public interest litigation generally or those of their constituencies. allowed the LRC to place specific and works best and achieves maximum On the other hand, for instance, it concrete evidence before the court. social impact when it involves clients is notable that for all the difficulties This evidence painted a vivid and who are well organised and able of the Grootboom case, one of the personal account of the severe hardship to provide proper instruction and key factors that allowed the litigation and indignity experienced by learners direction to legal representatives, to succeed as much as it did was the and teachers as a result of inadequate combined with proper follow-up after high degree of organisation in the infrastructure. This, in turn, set the tone the litigation. In other words, public community. Though the role played by and created the context for argument interest litigation – like other forms of the community appears to have waned on the broader question of national litigation – should ideally be run by somewhat once litigation was underway regulations for school infrastructure. clients, not by lawyers. – a regular difficulty – the Grootboom Such tactics, however, will not Regrettably, but unsurprisingly, this has community’s level of organisation was always be successful. Government generally not been the case. As Jonathan important in getting the litigation off departments often seek to settle the Berger explained in 2007: the ground. case as a whole by agreeing to the Many claims for [socio-economic] A similar example is provided by Berger individual relief, only if the general benefits at state expense are in respect of another case concerning relief is abandoned. Nevertheless, this the domain of the poor and the a poor community seeking to obtain represents a valuable tactic to consider. marginalised. As such, it is not A final point to be considered on surprising that much of the litigation 211 Berger op.cit., page 88.

114 Public interest litigation and social change in South Africa: Strategies, tactics and lessons Changing trends in the South African public interest litigation environment Chapter 4

‘We Are Watching’ march in Cape Town in 2009 organised by the Treatment Action Campaign and the AIDS and Rights Alliance for . The march was part of a campaign to challenge irresponsible government spending in light of health priorities. Photograph: Samantha Reinders & Treatment Action Campaign ©

security of tenure – President of the on this role as active clients. As one of Teddy Bear Clinic for Abused Children Republic of South Africa v Modderklip our respondents put it in 2007: and RAPCAN.215 They were challenging 212 Boerdery. As Berger explains: The major obstacle post-2000 is the a statute which was ostensibly enacted [This is] an interesting example of how lack of mobilisation and organisation for the protection of vulnerable a small firm – led by a larger-than- at the community level. It may sound children, but which the applicants life, tenacious attorney – collaborated alarmist, but at some levels it will be contended was in fact deeply harmful to with the residents of the informal correct to talk of the collapse of civil those children. settlement: the disciplined Gabon society. In this regard, it was of considerable community. It confirms what many Since then, the founding of importance that the applicants had a litigators understand that large groups organisations such as EE, the Social stellar track record in protecting the of people cannot be well-represented Justice Coalition and others has been kinds of children involved. As the unless they are well-organised, able an important step in redressing this Constitutional Court remarked: to take decisive action and resilient problem. However, given the focused Both applicants have over twenty to undue pressure. Making use of an substantive areas in which these years’ experience in attempting to curb outdoor ‘community office’ where organisations operate, this issue remains the scourge of sexual abuse of children, meetings were held, the community a cause for concern. and in dealing with its consequences.216 took decisions on the basis of consensus-building and inclusivity. One final point should be made with By contrast, with regard to the For their part, the lawyers provided regard to the ideal client: credibility Mazibuko case, one of our respondents free legal services all the way to the with the court is crucial. speculated that including the APF as a Constitutional Court. To date, they co-applicant would have undermined This is perhaps best demonstrated by continue to assist as the community the credibility of the case in view the recent case of Teddy Bear Clinic,214 successfully asserts its claims to free of the fact that the APF had already which concerned a constitutional basic municipal services 213 had an interdict granted against it for . challenge to a statute criminalising vandalising PPMs. In this regard, a key difficulty is consensual sexual behaviour between the relative lack of appropriate children under the age of 16. organisations presently operating in In this case, the two applicants were the South African civil society that can take

215 Resources Aimed at the Prevention of Child 212 President of the Republic of South Africa & Abuse and Neglect. Another v Modderklip Boerdery (Pty) Ltd [2005] 214 Teddy Bear Clinic for Abused Children & 216 Teddy Bear Clinic for Abused Children & ZACC 5; 2005 (5) SA 3 (CC). Another v Minister of Justice and Constitutional Another v Minister of Justice and Constitutional 213 Berger op.cit., page 89. Development & Another op.cit. Development & Another op.cit., paragraph 6.

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It is critical that organisations seeking to utilise public interest litigation to achieve social impact do not attempt to rely on ‘one-shot’ success. Rather, they must develop a coherent long-term strategy that allows them to benefit from the substantial advantage that derives from being a ‘repeat player’ in court.

■ In this article, Galanter demonstrated sector was the NCGLE. As Chapter 2 the advantages which repeat players makes clear, the Coalition adopted a have in litigation over one-shotters. long-term incremental strategy which, Factor 2 – Parties that repeatedly litigate in the ultimately, resulted in massive success same area have the advantages of – a string of seven unanimous victories overall long- developing specialised expertise and from the Constitutional Court. Though term strategy enjoying economies of scale as well as not all of those cases were NCGLE low start-up costs. cases, it was the Coalition’s strategy of Where public interest litigation achieves ‘easier cases first, more difficult cases Moreover, and critically, repeat players maximum social impact, it is invariably later’ that allowed this success. not by virtue of a single case. Rather, it need not seek to achieve their goals tends to require a series of cases brought immediately and in every piece of Another repeat player is the handful on different but related issues over a litigation. Rather, they can develop of NGOs (collectively) that have substantial period of time. Earlier cases long-term litigation strategies aimed at engaged in incremental litigation in the thus act as vital building blocks for more maximising the achievement of their education cases covered in Chapter complex and difficult later cases. long-term goals in an incremental 2. They have taken on a number of fashion. narrow issues in a series of cases, which We therefore conclude that it is critical together have gradually given content to Though Galanter’s article was that organisations seeking to utilise the right to basic education. public interest litigation to achieve social not focusing on public interest impact do not attempt to rely on ‘one- organisations, it applies with at least This should be contrasted with the shot’ success. Rather, they must develop equal force to them. Indeed, his theories effect of the Soobramoney case, for a coherent long-term strategy that allows demonstrate precisely why, as Geoff example. As noted in Chapter 1, this them to benefit from the substantial Budlender puts it: was the Constitutional Court’s first advantage that derives from being a [p]ublic interest law centres can often judgment on socio-economic rights, in ‘repeat player’ in court. ‘punch above their weight’ – the which it refused an application brought impact of their work can be far beyond by a severely ill man who needed renal The concepts of ‘one-shotters’ and the size of the organisations.218 dialysis treatment but did not qualify in ‘repeat players’ come from a famous terms of the criteria set out by the state. article by Marc Galanter entitled Why the The best example of such a repeat player The problem was that these criteria ‘Haves’ Come Out Ahead: Speculations on in the South African public interest were almost entirely beyond reproach 217 the Limits of Legal Change. and had been developed in order to deal 218 Geoff Budlender, Access to Justice: Lessons with the limited availability of medical 217 Published in Law & Society Review, Vol. 9, No. 1, from South Africa’s Land Reform Programme, Autumn: 1974, pages 95-160. American Bar Foundation: undated, page 8. equipment and staff.

116 Public interest litigation and social change in South Africa: Strategies, tactics and lessons Changing trends in the South African public interest litigation environment Chapter 4

Photograph: Wired Communications ©

Though one cannot blame Mr standards plainly involved viewing the the best example of this is the CCL, Soobramoney – who died shortly after problems of school infrastructure as a a highly-skilled organisation which judgment was delivered – the fact of long-term problem. They resisted the both litigates in its own name and the matter is that, as Jonathan Berger urge to bring one massive case seeking represents clients. Over the last ten explains, the Soobramoney case shows to resolve infrastructural problems years, the Centre has not only carefully what can happen when the ‘wrong’ in one shot. Instead, they viewed the implemented a strategy to develop the cases are litigated.219 litigation as only the first step in a much jurisprudence on children’s rights, but longer process. This was plainly realistic in doing so, it has built an outstanding The failure of the Soobramoney case and the correct approach. reputation in the courts as having both not only appears to have discouraged expertise in and a practical approach socio-economic rights litigation, but Similarly, we referred earlier to the to children’s rights. This is a substantial it also led to a perception that cases litigation being initiated by LHR to advantage for the Centre when it seeking actual medical treatment challenge the detention provisions litigates cases. would not be able to succeed. Though of the Immigration Act 13 of 2002. the losses in the Soobramoney case This constitutional challenge was only The second point is that an were painstakingly ‘clawed back’ via instituted after painstakingly laying organisation’s repeated involvement in Grootboom, TAC and other High the groundwork over a number of specialised areas allows it to identify Court litigation, it is plain that running years by bringing case after case to free both the core issues that require the wrong case undermines the broader individual detainees. The founding litigation and the ideal cases to do so. cause. papers from LHR place great emphasis This is demonstrated in the context on the fact that even after succeeding A repeat-player organisation, properly of litigation around the Promotion of in 136 separate cases (involving 167 advised, would have made the Access to Information Act 2 of 2000 clients), the problems of unlawful agonising, but ultimately correct, (PAIA). Two of the organisations most detention still persist. It is hoped that decision that running the Soobramoney actively engaged in PAIA requests are this will demonstrate compellingly to case would set back the cause of the South African History Archive the Constitutional Court the need for a achieving social change and should not (SAHA) in respect of public bodies, systemic solution. occur. and the Centre for Environmental Two last points should be made about Rights (CER) in respect of mainly The education cases in Chapter 2 the advantages of repeat players. private bodies. They have each engaged demonstrate the same point. The in or are in the process of engaging decision by the LRC and EE to litigate The first is that if they perform in litigation which seeks to remedy to compel the issuing of norms and successfully, they tend to have great key obstacles to PAIA requests being credibility with the courts. Perhaps 219 Berger op.cit., page 82. properly dealt with. The potential effect

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If they perform successfully, repeat players tend to have great credibility with the courts. Also, an organisation’s repeated involvement in specialised areas allows it to identify both the core issues that require litigation and the ideal cases to do so.

of this could be significant, as was and information-sharing among these v South African Airways contained demonstrated by the recent success of organisations, there is a real danger that precisely such evidence. the CER in requiring Eskom, without resources will not be used effectively Ultimately, the difficulty was avoided litigation, to provide under PAIA a and, even more damaging, viable when the ALP applied to be an amicus report indicating the number of deaths cases will be undermined by other in the Hoffmann case and successfully caused by air pollution from Eskom.220 conflicting cases being brought by sought to place the relevant evidence other organisations simultaneously or before the Constitutional Court. The beforehand. ■ Court ruled in favour of Hoffmann, An example of what can go wrong in relying substantially on the evidence this context is the case of Hoffmann from the ALP. Factor 3 – v South African Airways.221 This case The case thus ended in a victory for all concerned the practice of South African concerned. However, it demonstrates co-ordination Airways to refuse to employ HIV- the danger of insufficient co-ordination positive individuals as cabin attendants. and among public interest litigation The case was litigated by the LRC. organisations. If the ALP had not information- However, at around the same time, the intervened and if the Constitutional sharing ALP was litigating precisely the same Court had held that the absence issue for another cabin attendant in A v of the necessary medical evidence An interesting issue emerging from South African Airways.222 meant that the discrimination against this study is that in virtually any given Hoffmann was justified, this would The difficulty was that although the area of public interest litigation there have represented a major setback for Hoffmann case was the first to reach are multiple organisations with similar organisations in this sector. It could also the Constitutional Court, it appeared to aims all seeking to achieve success via have irreparably damaged the A v South lack certain important medical evidence litigation. This is both unsurprising and African Airways case, even though the on the transmission, progression and desirable given that many organisations relevant evidence was available. treatment of HIV, as well as the ability are operating in different parts of the of people with HIV to be vaccinated It is therefore crucial that there be country. against yellow fever, an important issue proper information-sharing and Nevertheless, it raises the concern that in the case. In contrast, the case of A co-ordination among different if there is insufficient co-ordination organisations. We appreciate that this 221 Hoffmann v South African Airways [2000] ZACC 17; 2001 (1) SA 1 (CC). is not always easy when organisations 220 How Eskom’s coal kills, Mail & Guardian: 20 June 222 A v South African Airways (Pty) Ltd, Labour find themselves competing for 2014. Court, Case No. J1916/99.

118 Public interest litigation and social change in South Africa: Strategies, tactics and lessons Changing trends in the South African public interest litigation environment Chapter 4

Arthur Chaskalson, President of the Constitutional Court from 1994 to 2001 and Chief Justice of South Africa from 2001 to 2005, presided over some of the Constitutional Court’s most groundbreaking judgments. Photograph: Helen MacDonald ©

funding from the same funders. meetings around evictions, not been the first (or at least not the However, some funders have now alternative accommodation and first and only) port of call for the actively emphasised the need for their related issues. These have included parties involved. Where litigation is grantees to work together with other other key players in this area. against government on controversial organisations in certain areas. Provided • In July 2014, four organisations – issues, courts will tend to be far more that this does not impede effective Section27, EE, the EE Law Centre receptive and sympathetic where it progress, and provided that the mode and the LRC – jointly hosted a can be demonstrated that the litigants of co-ordination is flexible rather conference on the now enacted have repeatedly sought to engage with than formalistic, this is a welcome Norms and Standards for School government to achieve a solution, but development. Infrastructure. that this has not resulted. Happily, since the 2008 report, there In this regard, the TAC case provides has been a significant increase in ■ an ideal example of launching litigation information-sharing and co-ordination at the right time. As Jonathan Berger in different areas. For example: explains: • For the last four years, a number of Factor 4 – Timing played a crucial factor in TAC, key public interest organisations timing which was launched only after a long have jointly organised an annual four-year history of engagement on ‘Public Interest Law Gathering’. Timing is an essential element in any the specific issue. In addition, it built This gathering allows public interest public interest litigation that is to on the organisation’s previous work to litigators and others to meet and have meaningful impact. Litigation reduce ARV medicine prices, as well discuss a wide range of issues, should not commence until and unless as scientific developments regarding including in sessions devoted to the climate is right and the relevant the proven efficacy of a simple specific areas of public interest evidence is in place. The damaging and affordable MTCT prevention litigation. It is also a very effective effects of running litigation too soon intervention. Equally important, the mechanism of getting law students can be disastrous – particularly as an TAC did not act until it had given engaged in public interest issues. unsuccessful piece of public interest the state a reasonable opportunity • The ocio-EconomicS Rights litigation could, in practice, permanently to explain why – in the face of the Institute of South Africa, arguably foreclose the issue from being re- available evidence – it continued the leading public interest litigated. to refuse to permit the use of ARV organisation in the country in It is also very helpful to be able to medicines for MTCT prevention outside the area of housing litigation, has demonstrate that court action has of a limited number of ‘pilot’ sites, co-ordinated a series of quarterly let alone to provide the medicines at

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Timing is an essential element in any public interest litigation that is to have meaningful impact. Litigation should not commence until and unless the climate is right and the relevant evidence is in place.

state expense. Simply put, litigation front, it would be highly risky to It should be noted, however, that came onto the agenda when all other abandon this option and rely purely deciding to bring litigation at the right options had been exhausted. [emphasis on litigation instead. Not only may the time is often easier said than done. added]223 litigation fail, but if this took place, the In the TAC case, for instance, very The TAC case demonstrates that public chances of reviving a political victory difficult decisions had to be made at interest litigation cannot and should would generally be substantially various points – notably the decision not be the starting point and exclusive reduced. Other considerations not to proceed with litigation when strategy for an organisation wishing to favouring using the political route first government appeared to be making achieve social change. Rather, it should include: some progress, and later the decision be used carefully where a process of • The chances of succeeding to follow counsel’s advice that litigation social mobilisation has begun, and yet in litigation are substantially would likely not succeed unless and where attempts to achieve social change increased if government has had an until the MCC registered Nevirapine via the political route appear to have opportunity to resolve the issue, for use to prevent MTCT. These failed. but has failed to do so without decisions were agonising given the lives justification. at stake and provoked criticism from This is in line with the approach of • It conserves the limited political some of the TAC’s allies. Nevertheless, well-known American lawyer and law capital that courts have by only with hindsight, they were absolutely professor Gary Bellow: asking them to come into conflict correct. Had the case been run any The worst thing a lawyer can do is to with government when absolutely sooner and then lost, that would have take an issue that could be won by necessary. been the end of the matter – there political organisation and win it in the • It ensures that the primary focus would have been no way of recovering. courts.224 of an organisation or movement – There are many reasons for only using mobilising members and supporters ■ litigation to achieve social change once to achieve change – is not overrun the political route has failed. Prime by litigation taking centre stage. among them is that this approach The approach of the LRC and EE Factor 5 – affords two separate opportunities to regarding the norms and standards research achieve goals. Provided there is real litigation is a particularly good example possibility of progress on the political of the correct approach – pursuing A critical but often neglected facet of successful public interest litigation 223 Berger op.cit., page 87. the political route vigorously and only 224 Quoted from Philip B Heymann & Lance Liebman, turning to litigation when it is quite is the need for detailed research in Social Responsibilities of Lawyers, Foundation advance of and during litigation. We Press: 1988, page 24. clear that the political route has failed.

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A Treatment Action Campaign demonstration in Cape Town in 2007. Photograph: Treatment Action Campaign ©

conclude that two different types of appropriate organisations engaged in English-speaking learners (all of whom research are needed: legal research and such research. In this regard, one of were black). factual research. our respondents stressed the need for While the case could be seen as being funding of: The legal research is essential if public about language rights (the issue interest litigation is to be given a proper […] multidisciplinary and multiskilled the courts ultimately held as being theoretical foundation. It involves a organisations to have capacity to do implicated) there was a real risk of the particular emphasis on making use of socio-economic research as well as school’s approach being seen to be foreign and international law, which is legal research and litigation. motivated by instead. Thus, as often not easily accessible but can play a Jonathan Berger explains: pivotal role. The importance of public opinion ■ was well-understood in Mikro. Much The need for access to proper factual time was spent by the litigants trying research is just as acute. Particularly in to win the media over, with a key cases on socio-economic rights, many Factor 6 – spokesperson deliberately making of the factual issues will be highly characterisation himself available for more than just specialised and complicated, involving answering questions. This approach statistical, medical, social science or A substantial component of any seems to have borne fruit – an initially other information. Those engaged in successful case is the ‘characterisation hostile mainstream media warmed running such litigation must have access debate’. This is particularly important to the school’s position over time. to relevant research capabilities – either given that any case – especially when in This was crucial given the perception within their own organisation or via the public eye – might be viewed and that the school’s conduct was racially alliances with other organisations. perceived in multiple ways by the courts and by the public. motivated – a big and powerful white An excellent example of this is the school refusing to admit small and Limpopo textbook litigation initiated by A particularly good example in this weak black children.226 Section27, where expert evidence was regard is the case of Minister of adduced to demonstrate how critical Education, Western Cape v Governing It is thus extremely important for it was that learners had proper access Body, Mikro Primary School.225 This those involved in public interest to textbooks if they were to receive a case concerned the right of an litigation to demonstrate to both the meaningful education. language school (with largely white courts and the public that the issues learners) to refuse to admit various at stake are critical, that the assertion At present, in the South African public of fundamental rights is being used to interest litigation environment, there 225 Minister of Education, Western Cape, & Others appears to be a relative absence of v Governing Body, Mikro Primary School, & Another [2005] ZASCA 66; 2006 (1) SA 1 (SCA). 226 Berger op.cit., page 91.

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redress unfairness and inequality rather contentions based on administrative expose them to harsh circumstances than to perpetuate it, and that there are justice and declining to decide whether which can only have adverse effects on numerous, real people being affected on the right to housing was implicated at all. their development. […] a daily basis. Similarly, in Teddy Bear Clinic, the At the outset it is important to Moreover, there are often multiple ways applicants had to choose between two emphasise what this case is not of presenting a case. ways of characterising the case. The first about. It is not about whether children was to contend that the provisions in should or should not engage in sexual In Joseph, for example, the applicants the statute they were challenging were conduct. It is also not about whether were alive to the fact that contending unconstitutional because they would Parliament may set a minimum age that access to electricity formed part violate the autonomy rights of children. for consensual sexual conduct. Rather, of the right of access to housing was The second was to contend that the we are concerned with a far narrower a significant bridge to cross. For provisions were unconstitutional issue: whether it is constitutionally that reason, the case was primarily because they caused damage to precisely permissible for children to be subject characterised as being about the very vulnerable children that they to criminal sanctions in order to deter administrative justice and procedural were meant to protect. early sexual intimacy and combat the fairness – not the right to housing. risks associated therewith.228 Thus, the heads of argument in the While the applicants ran both Constitutional Court characterised the arguments, they placed considerably crisp issue before the Court as being: greater emphasis on the latter issue. This ■ [I]s it lawful for the respondents to was due to the strong jurisprudence disconnect the electricity supply to a that had already been developed by residence without complying with the the applicants’ attorneys (the CCL) Factor 7 – recognised components of the right around the protection of children follow-up to procedural fairness as envisaged and also because it was felt that the by the PAJA and the Constitution Constitutional Court would find this Perhaps the most critical factor of all in in respect of the residents affected argument less controversial. ensuring that public interest litigation and without even considering their The Court ultimately upheld both achieves maximum social change is the 227 circumstances? arguments, but plainly accepted the issue of proper follow-up after litigation. While the applicants did refer to the characterisation of the issue proposed right to housing in their heads of by the applicants, as appears from the Compliance and argument (along with their right to beginning of its judgment: assessment dignity and their contractual rights), Children are precious members of this was only for the purpose of our society and any law that affects Most critically, follow-up involves satisfying the requirement that, to be them must have due regard to their ensuring that a litigation victory is put administrative action, the decision vulnerability and their need for into effect by the relevant government had to adversely affect the rights of the guidance. We have a duty to ensure departments, thus translating the legal residents. Indeed they were at pains that they receive the support and success into practical benefits for a to limit the emphasis on the right to assistance that is necessary for their large number of people on the ground, housing, meaning that this issue took positive growth and development. including those not directly involved in up only two pages of the heads of Indeed, this Court has recognised the litigation. It also involves identifying argument. that children merit special protection the extent to which the litigation has had limited success, and which issues Ultimately, the Court accepted this through legislation that guards and therefore need attention in further characterisation by upholding the enforces their rights and liberties. We must be careful, however, to ensure 228 Teddy Bear Clinic for Abused Children & that, in attempting to guide and protect Another v Minister of Justice and Constitutional 227 Applicants’ Heads of Argument, Joseph & Others Development & Another op.cit., paragraphs 1 v City of Johannesburg & Others op.cit. children, our interventions do not and 3.

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litigation or advocacy campaigns. difficulty in getting any compliance to which we have already referred. This need for proper follow-up is well out of a government opponent that There, pressure placed on government explained by one of our respondents: is recalcitrant and does not want to by the parents of both sets of learners The ability of litigation to effect real respond. resulted in compliance with the order granted. social change depends in large part on In contrast, using public pressure the government’s willingness to respect and mobilisation – combined Similarly, in the Limpopo textbook case, and implement the court’s judgments. where necessary with further legal Section27 decided against proceeding By raising awareness and mobilising mechanisms – has a far higher with a contempt application, even the public around an issue, civil society likelihood of success, because if the though grounds for contempt existed. groups can bring enough pressure pressure is effective, government will Section27 reasoned that the highly on government to compel it to make have no option but to comply. adversarial and antagonistic contempt concrete changes. proceedings would eliminate any This is what occurred in the case of N possibility of co-operation with The views of this respondent, which v Government of Republic of South government officials. It weighed up were shared by many others, also make Africa229 and the sequels thereto. In the strategic advantage of the court it clear that in follow-up, as in litigation, these cases, the applicants successfully officially recognising the recalcitrance a combination of strategies is likely to obtained an order requiring the state of government, and the potential media be most successful. to provide ARV treatment for HIV- and social mobilisation that would positive prisoners at the Westville Trying to rectify government’s non- result, against the benefit that would be Prison in Durban. Despite government’s compliance with a court order by using gained from co-operation. It concluded deeply hostile attitude on the issue, as only legal mechanisms – contempt of that co-operation was more valuable. Berger points out: court proceedings, court inspections, Ultimately, the overwhelming media persistent follow-up and skilful more detailed orders – can succeed but […] attention and public pressure pushed media and legal work has resulted faces significant difficulties. Among unresponsive government officials into in significant – albeit insufficient – these is the fact that many courts are complying with the court orders. (correctly) slow to use their limited compliance [with court orders].230 political capital to threaten government This can be contrasted with a range The same is true of pressure brought officials with incarceration, as well as of other cases in which effective to bear on the state in the Mikro case obstacles arising from the State Liability follow-up was not present, and as a concerning language rights in schools, Act 20 of 1957, which limits actions result, substantial legal victories either produced no effect on the ground or that can be taken against government. 229 N & Others v Government of Republic of South Most of all, however, there is significant Africa & Others (No. 1) 2006 (6) SA 543 (D). took years to do so. As discussed in 230 Berger op.cit., page 77. Chapter 2, the Grootboom case is an

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Perhaps the most critical factor of all in ensuring that public interest litigation achieves maximum social change is proper follow-up. This involves ensuring that a litigation victory is put into effect by the relevant government departments, and identifying the extent to which the litigation has had limited success, and which issues therefore need attention in further litigation or advocacy campaigns.

example of this much broader trend. enforcement authorities. Indeed, it took three further judgments from the Constitutional Court (in The importance of social mobilisation Thus, [despite refugee information Sibiya v Director of Public Prosecutions, and advocacy in the follow-up process networks] in Johannesburg, Cape Johannesburg232 and its sequels), a is particularly well illustrated by one of Town and Durban […] the lack of structural interdict and a 10-year delay our respondents in the refugee sector: strong refugee-run organisations limits the ability to ensure that the before this occurred. In the use of litigation as a catalyst for Department of Home Affairs and other social change, it is necessary to have Similarly, in Nkuzi Development law enforcement authorities actively strong representative organisations on Association v Government of the implement court orders and decisions. 233 the ground to ensure implementation Republic of South Africa – a of the gains made through litigation. It should be noted that there are some decision which upheld a right to legal However, [in the refugee sector, the] cases which do not require a great deal representation in certain eviction cases ability to ensure ongoing monitoring of of follow-up – in other words, obtaining – it was only after tenacious follow- the actions of the Department of Home the judgment has a sufficient effect on up and pressure on government that Affairs has been circumscribed by its own. However, it would be a mistake the Department of Land Affairs and the weakness of refugee and migrant in our view to conclude, as one of our the Department of Justice began to organisations in the country. respondents did, that civil and political implement the judgment. cases generally require no follow-up Refugee communities, in particular, Thus, in cases involving a classic civil or whereas socio-economic rights cases do. often embody many of the divisions political right – the death penalty and the that led them to flee their countries This is demonstrated by the aftermath right to legal representation – extensive in the first place. Much of their time of the Constitutional Court’s decision follow-up was also required for the is also devoted to securing their own to invalidate the death penalty in S v judgments to be effective. individual survival and access to Makwanyane.231 Virtually everyone documentation rather than striving for took the view that the Constitutional Remedy the protection of the rights of asylum Court order removing the death penalty A final issue on the question of follow-up seekers and refugees as a group. from the statute books would be the is the relationship between follow-up and Moreover, asylum seekers and refugees end of the matter. However, the process the remedies issued by courts. Following are an extremely vulnerable group who of substituting sentences for those often refrain from engaging in active sentenced to death prior to 1995 where 232 Sibiya & Others v Director of Public Prosecutions, advocacy activities for fear that this will these sentences had not been carried Johannesburg, & Others [2005] ZACC 6; 2005 (5) affect decisions on their asylum claims out, took inordinate time and effort. SA 315 (CC). 233 Nkuzi Development Association v Government of or lead them to be arrested by law 231  & Another [1995] ZACC 3; the Republic of South Africa & Another [2002] 1995 (3) SA 391 (CC). ZALCC 20; 2002 (2) SA 733 (LCC).

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Photograph: Section27 ©

the Constitutional Court’s refusal to Perhaps in response, there has us by one of our respondents was that grant more than a declaratory order in also recently been an increasing while the use of innovative and wide- the Grootboom case, for instance, there willingness on the part of public ranging remedial powers by the courts was a groundswell of academic opinion interest organisations to consider more is important in terms of achieving social and litigation efforts seeking to obtain creative remedies. This is demonstrated impact, it is arguably less important more creative and/or intrusive orders particularly by the teacher post- than the capacity and willingness of from courts. Generally, the orders sought provisioning litigation discussed in the organisations involved to properly fall into two categories, often sought Chapter 2. There, the remedies sought follow-up and enforce whatever order is together: included the deemed appointment granted. of educators, orders allowing the • mandatory orders – directing Even an order that combines both attachment of state property, and now government to take certain defined mandatory and supervisory elements (in the pending class action) even the steps, often within specified time will likely achieve little in the way of appointment of a special master to frames; and social change and will be rendered manage the distribution of funds if the • supervisory orders – requiring meaningless if the organisations class action succeeds. government to report back to involved fail to properly follow up and litigants and/or the court as to the The question of which order is enforce it, ideally via a combination of steps taken in fulfilment of an order. appropriate in any specific case depends legal and political pressure. on the circumstances of that case, Since the decision in the TAC case, By contrast, a declaratory order need including the attitude of government. it has been beyond doubt that South not be seen as inherently ineffective. This is a point well made by Kent Roach African courts have the power to grant Properly used, it too can form the basis and Geoff Budlender,235 who seek to such orders. The courts also appear to for a sustained and effective campaign distinguish between three types of be shedding their reluctance to grant of legal and political follow-up. these types of orders in practice. This government respondents – those that are is demonstrated, for example, by the ‘inattentive’, those that are ‘incompetent’ In this regard, declaratory orders appear Constitutonal Court’s recent decision to and those that are ‘intransigent’ – and set to have been written off by numerous grant a supervisory order in the context out their views on which remedies are organisations, including by some of our of an extensive tender dispute which had appropriate in each case. respondents, substantially on the basis that the decision in the Grootboom the potential to affect millions of people However, a point made powerfully to on social grants.234 case – which involved a declaratory 235 Kent Roach & Geoff Budlender, Mandatory order – has failed to produce any or 234 Allpay Consolidated Investment Holdings (Pty) Ltd Relief and Supervisory Jurisdiction: When Is & Others v Chief Executive Officer of the South It Appropriate, Just and Equitable?, in South adequate social change. African Social Security Agency & Others (No. 2) African Law Journal, Vol. 122: 2005, pages 325- [2014] ZACC 12; 2014 (6) BCLR 641 (CC). 351. However, it appears that the blame in

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Bomvini Senior Primary School in Libode, Eastern Cape. Photograph: Equal Education ©

this regard cannot be laid exclusively at compliance by the state of its Section powerful supervisory remedy have been the door of the declaratory order issued 26 obligations. In the circumstances, forcefully criticised.237 by the Constitutional Court. the Commission will monitor and, if There is no reason that a declaratory necessary, report in terms of these Indeed, in its judgment in Grootboom, order granted by a court – provided powers on the efforts made by the the Court emphasised the role of the that it is sufficiently specific as to state to comply with its Section 26 SAHRC in monitoring government’s government’s obligations – cannot be obligations in accordance with this compliance with the judgment: properly enforced, followed up and judgment.236 The Human Rights Commission is an used as a basis for social change. Regrettably, this came to naught. amicus in this case. Section 184 […] of Thus, while public interest litigants Though the SAHRC did issue some the Constitution places a duty on the should continue to push for mandatory, reports on the progress of government, Commission to ‘monitor and assess supervisory and creative orders in it seems to have construed its role as an the observance of human rights in appropriate cases to assist in achieving extremely narrow one – focusing only the Republic’ [and gives it] the power tangible results, and while courts on the Grootboom community and not to investigate and to report on the should be prepared to grant such orders on the effects of the order in general observance of human rights [and] in appropriate circumstances, the – and its monitoring had little, if any, to take steps to secure appropriate particular remedy granted can never effect on government’s response to the redress where human rights have been become an excuse for a failure to engage judgment. The Commission’s approach violated. Counsel for the Commission in proper follow-up. indicated during the argument that and the Court’s refusal to give a more the Commission had the duty and was 236 Government of the Republic of South Africa & 237 See for example: Kameshni Pillay, Implementing prepared to monitor and report on the Others v Grootboom & Others op.cit., paragraph Grootboom: Supervision needed, in ESR Review, 97. Vol. 3, No. 1: July 2002, pages 16-18.

126 Public interest litigation and social change in South Africa: Strategies, tactics and lessons Chapter 5: Procedural mechanisms which promote effective public interest litigation

Public interest litigation and social change in South Africa: Strategies, tactics and lessons 127 Procedural mechanisms which promote effective public interest litigation

When presenting the 2008 report to public interest litigators in other ■ jurisdictions, we were struck by the fact that the South African public interest litigation environment is, from a procedural point of view, a very generous one. Broad rules of standing his chapter therefore considers Under common law prior to 1994, the three procedural mechanisms courts took a restrictive approach to Tin place in South Africa which standing. A person approaching a court promote effective public interest for relief was required to establish a litigation. This is important for two personal and direct interest in the relief reasons. sought. Firstly, for foreign readers in However, this position was changed jurisdictions with less generous radically in 1994 when a supreme procedural regimes, it provides an Constitution and a justiciable Bill of insight into possible procedural reforms Rights were enacted. Standing cases to be suggested to promote effective concerning the Bill of Rights are now public interest litigation in their governed by Section 38 (enforcement jurisdictions. of rights) of the Constitution, which Secondly, for South African as well as provides: foreign readers, it seeks to consider Anyone listed in this section has the how to take full advantage of these right to approach a competent court, mechanisms when designing and alleging that a right in the Bill of Rights engaging in public interest litigation. has been infringed or threatened, and the court may grant appropriate relief, The three procedural mechanisms we including a declaration of rights. The deal with are: persons who may approach a court • broad rules of standing; are— • a protective costs regime; and (a) anyone acting in their own • significant opportunities for interest; interventions by amicus curiae. (b) anyone acting on behalf of

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another person who cannot act in be specific and, often, retrospective, In determining whether an applicant is their own name; in that it applies to a set of past acting in the public interest, the courts (c) anyone acting as a member of, or events. Such litigation will generally have taken into account a range of in the interest of, a group or class of not directly affect people who are factors, including: persons; not parties to the litigation. In such • whether there is another reasonable cases, the plaintiff is both the victim (d) anyone acting in the public and effective manner in which the of the harm and the beneficiary of interest; and challenge can be brought; the relief. In litigation of a public (e) an association acting in the • the nature of the relief sought and character, however, that nexus is interest of its members.238 the extent to which it is of general rarely so intimate. The relief sought is and prospective application; The Constitutional Court has generally forward-looking and general • the range of persons or groups emphasised that this introduces a: in its application, so that it may who may be directly or indirectly directly affect a wide range of people. [...] radical departure from the affected by any order made by the common law in relation to In addition, the harm alleged may courts and the opportunity that standing.239 often be quite diffuse or amorphous. those persons or groups have had to Of course, these categories are ideal present evidence and argument to The standing requirements of this types: no bright line can be drawn the courts; Section are as broad as in any other between private litigation and • whether the case is brought as an country of which we are aware. litigation of a public or constitutional abstract challenge or live case; That this is entirely appropriate in the nature. Not all non-constitutional • the degree of vulnerability of the context of constitutional litigation has litigation is private in nature. Nor people affected; and been made clear by the Constitutional can it be said that all constitutional • the nature of the right said Court: challenges involve litigation of a to be infringed as well as the purely public character: a challenge Existing common-law rules of standing consequences of the infringement of to a particular administrative act or have often developed in the context the right. 241 decision may be of a private rather of private litigation. As a general rule, than a public character. But it is clear private litigation is concerned with the that in litigation of a public character, determination of a dispute between different considerations may be two individuals, in which relief will 1996 (1) SA 984 (CC), paragraph 229, later appropriate to determine who should endorsed by the full Court in Kruger v President 238 Constitution of the Republic of South Africa have standing to launch litigation.240 of the Republic of South Africa & Others op.cit., op.cit., Section 38. paragraph 23. 239 Kruger v President of the Republic of South 241 Lawyers for Human Rights & Other v Minister of Africa & Others [2008] ZACC 17; 2009 (1) SA 240 Ferreira v Levin NO & Others; Vryenhoek & Home Affairs & Other [2004] ZACC 12; 2004 (4) 417 (CC), paragraph 22. Others v Powell NO & Others [1995] ZACC 13; SA 125 (CC), paragraphs 16-18.

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There is no doubt that the broad standing provisions contained in the Constitution and the generous way in which they have been applied have facilitated effective public interest litigation and allowed important matters to reach the courts.

The effect of broad The difficulties that would arise with stated focus is children’s rights, and strict standing requirements are also in this case it has standing to protect standing provisions demonstrated by the case of Centre them. It was thus entitled to take up the 242 There is no doubt that these broad for Child Law v Minister of Justice cudgels. To have required the Centre standing provisions and the generous – a challenge to statutory provisions to augment its standing by waiting for way in which they have been applied which imposed a system of minimum a child to be sentenced under the new have facilitated effective public interest sentences on child offenders. There, provisions would, in my view, have been 243 litigation and allowed important matters the broad standing provisions meant an exercise in needless formalism. to reach the courts. that government was forced to abandon Even in the TAC case, it might have its technical objection that there was been very difficult to find an individual This is demonstrated, for example, by no individual child before the court the large number of cases which have to act as an applicant who satisfied the who was complaining about a sentence common law test for standing if applied been brought by institutional litigants against him or her. The Constitutional acting in either the public interest or on strictly. While countless HIV-positive Court was emphatic that this was the pregnant women were of course affected behalf of a group of people affected. In appropriate approach: many of those cases, finding individual by government’s policy and while [I]n this Court the Minister did not applicants to bring the cases would have some might have been willing to act as persist with his challenge to the potentially proved very difficult. applicants, there is the obvious problem Centre’s legal standing, or with the that they would all have given birth by For example, in the NCGLE litigation, contention that the issues were purely the time the case had made its way to the it might have been possible to find a academic. That approach was in my Constitutional Court. This would have gay rights activist who was willing to view correct. Although the Centre led to absurd and unnecessary debates admit to committing a crime in order to did not act on behalf of (or join) any about whether those women still had demonstrate his interest in challenging particular child sentenced under the the necessary legal interest to proceed the laws criminalising sodomy. However, statute as amended, its provisions are with the case in their own interests, and this would have been far more difficult clearly intended to have immediate whether that interest extended to those to achieve, for instance, in the Teddy effect on its promulgation. So the women seeking a declaration that the Bear Clinic case mentioned earlier, prospect of children being sentenced policy was invalid as a whole – or merely where it would have been necessary under the challenged provisions was that they themselves were entitled to to have a child (or his/her parents or immediate, and the issue anything Nevirapine. guardians) admit to committing a crime but abstract or academic. The Centre’s by engaging in various forms of sexual 242 Centre for Child Law v Minister for Justice and 243 Centre for Child Law v Minister for Justice and acts. Constitutional Development & Others [2009] Constitutional Development & Others op.cit., ZACC 18; 2009 (6) SA 632 (CC). paragraph 11.

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This demonstrates that the broad corruption-fighting body); application in this case as it does standing provisions are often particularly • Justice Alliance of South Africa245 not concern a challenge based on a important where government conduct where three NGOs successfully right in chapter 2 of the Constitution. (as opposed to law) is being challenged. challenged the validity of a law Nevertheless, in my view, we should Thus, in the Limpopo textbook case, allowing the President to extend the adopt a generous approach to standing for instance, the absence of broad term of office of the Chief Justice; in this case. In so doing, I am mindful of standing provisions may have prevented • Democratic Alliance246 where the fact that constitutional litigation is vindication of the rights of the learners a political party successfully of particular importance in our country concerned. Section27 would then have challenged the appointment of where we have a large number of been precluded from participating as the National Director of Public people who have had scant educational a litigant, and only schools or learners Prosecutions; and opportunities and who may not be themselves could have litigated. In • Kruger247 where an attorney aware of their rights. Such an approach respect of these learners or schools, they successfully challenged unlawful to standing will facilitate the protection would not have had a sufficient direct conduct by the President in bringing of the Constitution. interest in the provision of textbooks to into force certain amendments to the Mr Kruger asserts locus standi on other schools or learners – meaning that Road Accident Fund Act 56 of 1996. two grounds: a direct and personal the bulk of the schools and learners in What is particularly notable is that some interest and as a person acting in the Limpopo would have received no relief. of these cases relied on provisions of public interest. Although Mr Kruger Similarly, there are some instances the Constitution lying outside the Bill may not have established standing on of unlawful or unconstitutional of Rights, meaning that the standing either basis under the restricted rules government conduct which do not provisions in Section 38 did not apply. of standing operative at common law, affect any person in particular. In those Nevertheless, in the Kruger case the I am persuaded that an expanded situations, strict standing requirements Constitutional Court made it clear that understanding of what constitutes a might prevent the issues being litigated even in such situations it was appropriate direct and personal interest should be 248 at all. Examples of this include the to adopt a broad approach to standing: adopted in this case. following cases: Section 38 […] is not of direct Thus, there is no doubt that broad • Glenister244 where a businessman standing provisions are critical tools successfully challenged laws which 245 Justice Alliance of South Africa v President of in promoting access to justice and the disbanded the (a specialist Republic of South Africa & Others [2011] ZACC vindication of rights. 23; 2011 (5) SA 388 (CC). 246 Democratic Alliance v President of South Africa & 244 Glenister v President of the Republic of South Others [2012] ZACC 24; 2013 (1) SA 248 (CC). Africa & Others [2011] ZACC 6; 2011 (3) SA 347 247 Kruger v President of the Republic of South 248 Kruger v President of the Republic of South (CC). Africa & Others op.cit. Africa & Others op.cit., paragraphs 23-24.

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Broad standing provisions are often particularly important where government conduct (as opposed to law) is being challenged.

Class actions grants which were unlawfully cancelled, class must be given the opportunity to without notice, without reasons, and choose to be excluded from the class. Until recently, the one provision of without giving them the opportunity The Court held that: Section 38 that had received little to be heard. Both the High Court and […] it would be irrational for the court judicial attention was Section 38(c), the Supreme Court of Appeal upheld to sanction a class action in cases entitling someone to approach a court: the right of the applicants to proceed where a constitutional right is invoked, […] acting as a member of, or in by way of a class action. However, the but to deny it in equally appropriate the interest of, a group or class of case only dealt with class actions in the circumstances, merely because of the persons.249 context of the Bill of Rights – and not claimants’ inability to point to the common law – and did not spark much Common law in South Africa did not infringement of a right protected under reliance on the class action procedure. allow for class actions, and prior to the Bill of Rights. The procedural 1994 class actions were entirely foreign This situation changed in 2012 and requirements that will be determined to South African law. In 1998, the South 2013 when two cases dealing with class in relation to the one type of case can African Law Commission published actions reached the Supreme Court of equally easily be applied in the other. a draft bill on public interest and class Appeal and the Constitutional Court. Class actions are a particularly actions.250 It was intended to allow for Both cases arose from breaches of the appropriate way in which to vindicate and regulate class actions. However, Competition Act 89 of 1998 by bread some types of constitutional rights, but the bill was never enacted, despite the manufacturers. This led to applications they are equally useful in the context Commission’s recommendation that the seeking certification of two classes – a of mass personal injury cases or 253 bill and the necessary rules of court be class of bread consumers and a class of consumer litigation. enacted as a matter of urgency. bread distributors. The Court went on to confirm that class Prior to 2012, the leading case on class In the Children’s Resource Centre actions would first have to be certified actions was Ngxuza.251 The applicants case,252 dealing with the application by a court, and then laid down the 254 in this case were recipients of social of the bread consumers, the Supreme requirements for such certification. Court of Appeal for the first time 249 Constitution of the Republic of South Africa However, in the companion case of op.cit., Section 38(c). recognised that opt-out class actions Mukaddam,255 the Supreme Court of 250 Project 88 –The Recognition of Class Actions were sustainable in South African law and Public Interest Actions in South African Law, South African Law Commission: August 1998. for Bill of Rights claims and for ordinary 253 Children’s Resource Centre Trust v Pioneer Food 251 Ngxuza & Others v Permanent Secretary, common-law claims. An opt-out class op.cit., paragraph 21. Department of Welfare, Eastern Cape, & Another 254 Children’s Resource Centre Trust v Pioneer Food 2001 (2) SA 609 (E); and Permanent Secretary, action is one where members of the op.cit., paragraph 26. Department of Welfare, Eastern Cape, & Another 255 Mukaddam & Others v Pioneer Food (Pty) Ltd v Ngxuza & Others [2001] ZASCA 85; 2001 (4) 252 Children’s Resource Centre Trust v Pioneer Food & Others [2012] ZASCA 183; 2013 (2) SA 254 SA 1184 (SCA). [2012] ZASCA 182; 2013 (2) SA 213 (SCA). (SCA).

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‘One Billion Rising’ protest against rape at Wits University in Johannesburg, February 2013. Photograph: Gay and Lesbian Memory in Action ©

Appeal, largely rejected opt-in class say that there are now two substantial vast majority of the cases – NCGLE, actions, requiring that exceptional applications for certification of a Grootboom, TAC, Mazibuko, Joseph circumstances had to be shown for such class action pending in the courts and Nokotyana – we consider that a class action to be permitted. An opt-in – one involving claims against gold using the class action route would not class action is one where members of mining companies by miners who have provided any material advantage. the class are required to join the class. have contracted silicosis, and another These cases were brought either on involving claims by pensioners against behalf of the individual applicants or This was overturned on appeal to the transport and logistics parastatal communities involved, or as cases in the Constitutional Court, which held that: Transnet’s pension fund. public interest. There was no respect in • The ertificationc requirements which this approach constrained the delineated by the Supreme Court applications. of Appeal were largely appropriate How the different provided that they were flexibly grounds of standing We therefore consider that in most applied.256 fit together public interest litigation cases, the • However, the requirement of appropriate route will be to continue certification had no application The recognition of the availability of class to rely on Sections 38(a), (b) and (d) at all to class actions in which the actions by the highest courts and the of the Constitution – that is, where enforcement of rights entrenched in provision of much-needed certainty as the applicants act in their own interest, the Bill of Rights was sought against to how this occurs raises a key question: in the interests of others who cannot the state.257 Is this likely to alter the manner in which do so, and in the public interest. We • There was also no reason to public interest litigation should take emphasise that there is no reason that limit opt-in class actions only place, and if so, how? these three grounds of standing cannot to cases involving exceptional be pleaded simultaneously, as was done In our view, the availability of class circumstances.258 in various of the cases considered. actions is an important and welcome It is too soon and beyond the scope of change for public interest litigation. It seems to us that class actions come to this publication to discuss in detail the However, in the majority of cases, it will the fore in a relatively narrow category effect of these judgments. Suffice it to not be necessary to rely on class actions. of cases, namely where the aim is to seek specific relief, including awards of 256 Mukaddam v Pioneer Foods (Pty) Ltd & This is demonstrated by considering damages, in respect of large numbers of Others [2013] ZACC 23; 2013 (5) SA 89 (CC), to what extent the cases covered paragraphs 34-39. unnamed individuals or entities. 257 Mukaddam v Pioneer Foods (Pty) Ltd & Others in Chapter 2 might have been run op.cit., paragraphs 40-41. differently had it been clear that the This is demonstrated by the teacher 258 Mukaddam v Pioneer Foods (Pty) Ltd & Others post-provisioning case study in op.cit., paragraph 55. class action route was available. In the

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Chapter 2. There, the initial cases were amounts from the provincial very few cases where one can be certain brought without any use being made education department as repayment of winning, and an adverse costs order of the class action procedure. While for the payments made to on a sufficient scale could bankrupt the they obtained effective relief for many temporary teachers. The prospects individual or organisation concerned. learners and schools, it became clear of such orders being implemented From the outset, the Constitutional that further litigation would have to are far greater than if there had Court has been alive to the potential take place, which would be very difficult been a blanket order compelling chilling effect of adverse costs orders to manage given: the provincial department to fill all and therefore developed an approach to vacant teacher posts. • the large number of schools guard against it. However, it was in the involved, many of which were not in We thus consider the teacher post- Biowatch matter259 that the Court most communication with the LRC; provisioning case to be an ideal example comprehensively and emphatically • the fact that each school’s individual of the role that can be played by class laid down the proper approach to circumstances varied materially (for actions in bringing about effective costs in constitutional matters. The instance, how many vacant teacher public interest litigation. This is in Court articulated four principles of posts and how much had been spent addition to the more traditional use importance. by the school governing body on of class actions for claims for damages Firstly, the Court held that: paying temporary teachers); and against wrongdoers such as in the miner as a general rule in constitutional • the fact that it seemed unrealistic silicosis case we mentioned above. […] to expect that a blanket order litigation, an unsuccessful litigant in compelling the provincial education proceedings against the state ought department to fill all vacant teacher ■ not to be ordered to pay costs.260 posts would ever be implemented. This would generally only be departed In this context, the use of an opt-in A protective from where the litigation was: class action proved ideal as it had the [...] frivolous or vexatious [or where following advantages: costs regime there was] conduct on the part of the • It provided a mechanism whereby A second procedural respect in litigant that deserves censure.261 the litigation could be launched which the South African legal system In the absence of such circumstances, without all affected schools being promotes public interest litigation the ordinary order should be that there on board. concerns costs awards. is no order as to costs. • The notice requirements of a class The ordinary and almost invariable action provided a helpful way Secondly, and equally important, approach is that costs follow results. of attracting the attention of the the Court confirmed that where the This means that the losing litigant is schools concerned. litigant asserting constitutional rights required to pay the taxed costs of the • The opt-in procedures allowed the succeeded, the state should be directed successful litigant. While taxed costs schools to join the litigation and to pay the costs. This is important normally only amount to approximately place their own information before because it ultimately increases the 40% of the actual costs, this can the court. ability and likelihood of public interest obviously still be a very sizeable figure – • If the case succeeds on the merits, organisations bringing litigation. This especially where the litigation has gone the 90 schools that have opted in is not only because they receive costs through multiple courts. will each have discrete orders in awards when successful, but also their favour entitling them to have For this reason, the prospects of an because it makes it easier for them to adverse costs award would ordinarily their specific number of vacant 259 Biowatch Trust v Registrar Genetic Resources & teacher posts filled (whether constitute a significant disincentive Others [2009] ZACC 14; 2009 (6) SA 232 (CC). via deemed appointments or to public interest litigation. Given the 260 Biowatch Trust v Registrar Genetic Resources & Others op.cit., paragraph 21. otherwise) and to claim fixed unpredictability of litigation, there are 261 Ibid.

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persuade counsel to take cases on the Indeed, each constitutional case that the dispute turns on whether the basis of a ’no-win, no-fee’ arrangement. is heard enriches the general body governmental agencies have failed of constitutional jurisprudence and adequately to fulfil their constitutional The effect of these two rules taken adds texture to what it means to be and statutory responsibilities. together is that, in general, if living in a constitutional democracy. Essentially, therefore, these matters government loses, it is required to pay Thirdly, it is the state that bears primary involve litigation between a private the costs; and if government wins, each responsibility for ensuring that both the party and the state, with radiating party pays its own costs. law and state conduct are consistent impact on other private parties. The Constitutional Court articulated with the Constitution. If there should In general terms costs awards in the need for this approach as follows: be a genuine, non-frivolous challenge these matters should be governed The rationale for this general rule is to the constitutionality of a law or of by the over-arching principle of three-fold. In the first place it diminishes state conduct, it is appropriate that not discouraging the pursuit of the chilling effect that adverse the state should bear the costs if the constitutional claims, irrespective of costs orders would have on parties challenge is good, but if it is not, then the number of private parties seeking seeking to assert constitutional rights. the losing non-state litigant should be to support or oppose the state’s Constitutional litigation frequently shielded from the costs consequences posture in the litigation.263 of failure. In this way responsibility for goes through many courts and the Lastly, the Court stressed that this ensuring that the law and state conduct costs involved can be high. Meritorious approach applied irrespective of whether is constitutional is placed at the correct claims might not be proceeded with the litigant asserting constitutional door.262 because of a fear that failure could lead rights was a public interest litigant or to financially ruinous consequences. Thirdly, the Court held that this not. It held that: Similarly, people might be deterred approach applied even where the Equal protection under the law requires from pursuing constitutional claims litigation between a private party and that costs awards not be dependent on because of a concern that even if they the state also involved other private whether the parties are acting in their succeed they will be deprived of their respondents: own interests or in the public interest. costs because of some inadvertent The fact that more than one private Nor should they be determined by procedural or technical lapse. Secondly, party is involved in the proceedings whether the parties are financially constitutional litigation, whatever the does not mean […] that the litigation well-endowed or indigent or, as in the outcome, might ordinarily bear not should be characterised as being case of many NGOs, reliant on external only on the interests of the particular between the private parties. In essence funding. The primary consideration litigants involved, but on the rights

of all those in similar situations. 262 Biowatch Trust v Registrar Genetic Resources & 263 Biowatch Trust v Registrar Genetic Resources & Others op.cit., paragraph 23. Others op.cit., paragraph 28.

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From the outset, the Constitutional Court has been alive to the potential chilling effect of adverse costs orders and therefore developed an approach to guard against it.

in constitutional litigation must be asserting constitutional rights – even ■ the way in which a costs order would though one party might be extremely hinder or promote the advancement of well resourced (such as a mining constitutional justice.264 company) and the other not (such as Significant The costs regime laid down in Biowatch an environmental NGO). In disputes opportunities has been of significant importance in between private parties, the Court promoting public interest litigation. characterises its approach as generally for having costs follow the result in such Prior to this decision, there was 265 considerable anxiety – especially among cases, save for exceptional cases. interventions by institutions litigating in the public However, discerning in advance what amici curiae interest – about the prospect of an those exceptional circumstances adverse costs order being made against might be is not always easy – meaning, The termamicus curiae can have a them. There can be little doubt that unfortunately, that the risk of an adverse variety of meanings. Traditionally, the this had a very real and chilling effect costs order continues to figure as a most common form of amicus curiae is on public interest litigation, and either major worry for a public interest litigant a person who appears at the request of prevented or impeded some of this trying to decide whether to embark on a the court to represent an unrepresented litigation from occurring. case against a private litigant. The Court party or interest. Moreover, there has been no suggestion has made clear that it will consider: Another form of amicus is demonstrated of which we are aware that the costs […] the extent to which the pursuit where the court requests counsel to regime articulated in Biowatch of public interest litigation could be appear before it to advise or assist it on has produced a spate of baseless unduly chilled by an adverse costs difficult or novel questions of law which constitutional litigation. order [and] the broader implications of arise in the matter, or (less commonly) most constitutional litigation.266 where a person asks leave to intervene Regrettably, the one cost issue on which for this purpose. In such cases, the amicus the Constitutional Court has been The potential unpredictability of this, curiae does not represent a particular somewhat inconsistent is the question however, remains a cause for concern. interest or point of view. of costs in constitutional litigation between private parties, where there is A third common type of amicus curiae no state involvement. This is a difficult is the Law Society or Bar Council in an area because often both parties are application for the admission of a legal

265 Bothma v Els [2009] ZACC 27; 2010 (2) SA 622 practitioner. The professional body 264 Biowatch Trust v Registrar Genetic Resources & (CC), paragraphs 91-99. makes submissions to the court, not to Others op.cit., paragraph 16. 266 Ibid.

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Children playing in portable toilet. Photograph: Social Justice Coalition ©

represent the interests of the professional As this Court has noted: curiae in criminal matters,270 but even body’s members, but to assist and advise “The role of an amicus is to draw the this approach is subject to exceptions, the court in promoting the interests of attention of the Court to relevant as is demonstrated by the intervention the administration of justice. matters of law and fact to which of amici in various criminal cases.271 However, in the new constitutional attention would not otherwise be There is no question that the order of South Africa, a new form of drawn. In return for the privilege intervention of amici curiae has played amicus curiae has been introduced, of participating in the proceedings a critical role in a number of public namely a non-party which contends for without having to qualify as a party, interest cases. In what follows, we focus a particular position which it has itself an amicus has a special duty to the on a largely unexplored question in the chosen.267 The Constitutional Court has Court. That duty is to provide cogent South African context – what different emphasised the importance of this role: and helpful submissions that assist roles can an amicus curiae play in the Court.” [T]he role of an amicus […] is very assisting public interest litigation? closely linked to the protection of our The role of a friend of the court can, constitutional values and the rights therefore, be characterised as one The radical outlier that assists the courts in effectively enshrined in the Bill of Rights. […] role [A]lthough friends of the court played promoting and protecting the rights 268 a variety of roles at common law, the enshrined in our Constitution. A particularly frequent form of amicus new Rule was specifically intended to The rules of the High Court, the intervention is to run an argument facilitate the role of amici in promoting Supreme Court of Appeal and the that supports the relief sought by the and protecting the public interest. In Constitutional Court contain specific main public interest litigant, but that these cases, amici play an important procedures for the admission of amici is (perhaps significantly) more radical, role first, by ensuring that courts curiae. These procedures also permit progressive and/or far-reaching than consider a wide range of options and amici curiae to seek to adduce evidence the arguments of the main litigant. are well informed; and second, by 269 before the court. This can have substantial benefits for increasing access to the courts by the main litigant. If the more radical creating space for interested non- The Constitutional Court has expressed amicus argument succeeds, then the parties to provide input on important caution about the admission of amici

public interest matters, particularly 268 Children’s Institute v Presiding Officer of the 270 Ex Parte Institute for Security Studies, In re S v those relating to constitutional issues. Children’s Court, District of Krugersdorp & Basson [2005] ZACC 4; 2006 (6) SA 195 (CC), Others [2012] ZACC 25; 2013 (2) SA 620 (CC), paragraph 15. paragraphs 26-27. 271 See for example: Masiya v Director of Public 269 Children’s Institute v Presiding Officer of the Prosecutions & Another [2007] ZACC 9; 2007 (5) Children’s Court, District of Krugersdorp & Others SA 30 (CC); and S v Vilakazi [2008] ZASCA 87; 267 Ibid. op.cit., paragraphs 28-34. 2012 (6) SA 353 (SCA).

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In the new constitutional order of South Africa, a new form of amicus curiae has been introduced, namely a non-party which contends for a particular position which it has itself chosen.

case will almost certainly succeed and permitted a minimum core approach more measured and limited. will likely be even more far-reaching to socio-economic rights. This meant The Court could thus feel quite than the main litigant may have hoped. that in respect of certain key aspects comfortable that, in adopting the of socio-economic rights – the However, even if the court rejects or arguments and relief contended for by minimum core – it was not sufficient declines to decide the argument raised the TAC, it was doing no more than for government to merely say that by the amicus, the intervention may follow a middle ground consistent with they had a reasonable programme in still have substantial benefit for the previous jurisprudence. place. Rather, where an individual main litigant. This is because anamicus lacked access to his or her minimum While it is difficult to assess precisely intervention of this sort will often core socio-economic rights, he or she the extent to which the intervention of change the nature and dynamics of the could claim that his or her rights had the amici affected the Court, it is clear debate before the court and, in doing so, been violated. Theamici were in effect that the intervention certainly helped cast the arguments raised by the main suggesting that the Court’s existing the TAC, even though the arguments of litigant in a more palatable light. jurisprudence on socio-economic rights the amici were rejected. An excellent example of this is the was inadequate and would not give full There have been various other examples TAC’s Constitutional Court case. In effect to the Constitution. of this type of radical amicus approach. this case, there was an intervention by The argument of the CLC and 272 three amici. Two of these amici were the In the Pillay case, for example, the IDASA was ultimately rejected by the CLC and the Institute for Democracy Constitutional Court was faced with Constitutional Court in its judgment. in Africa (IDASA). They sought to an argument by a Hindu learner that Nevertheless, for a brief but crucial intervene on the question of the proper a school decision to preclude her part of the hearing, this argument held approach to socio-economic rights. wearing a nose stud breached the centre stage. Whereas government right to equality because it unfairly The Constitutional Court had was seeking to debate whether the discriminated against her. Two amici previously decided in Grootboom that socio-economic rights were properly intervened – the Natal Tamil Vedic in adjudicating socio-economic rights justiciable at all and whether the Society and the Freedom of Expression challenges to government programmes, Court could go beyond a mere Institute. They contended that, in the relevant standard would be declaratory order, the intervention of addition to breaching her right to reasonableness. The TAC was content the amici changed this debate. It meant equality, the decision breached her to rely on this standard. that – contrary to the arguments of rights to freedom of culture and However, the CLC and IDASA took government that the TAC was running freedom of expression. The Court a more radical line. They contended a radical, unprecedented case – the arguments of the TAC now seemed far 272 MEC for Education: KwaZulu-Natal & Others v that the Constitution required and Pillay op.cit.

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Indigent parents and caregivers often ask community advice offices to help them access child support grants. Photograph: United Nations ©

ultimately declined to decide the • there is unlikely to be a better the case in the applicants’ favour on contentions of the amici, finding it case in the near future to run the the right of access to adequate housing unnecessary in light of its decision to argument – for example, the TAC or (Section 26 of the Constitution), uphold the main equality contention of Biowatch cases; or that which was qualified in various respects the applicant. • the amicus will likely be able to including a reasonableness standard, persuade the court to either uphold instead of on children’s right to shelter The Biowatch decision on costs is a its contentions or leave them open (Section 28), which was unqualified. further example. Two amici – the CCL for another day – for example, the This was critical as it was quite clear and LHR – intervened and contended Pillay case. that the Constitutional Court did not that public interest litigants deserve want to decide the case on a Section 28 special protection against adverse Providing a route basis, because it was anxious about the costs orders. A further amicus – CALS repercussions in future. – intervened and contended that through environmental rights litigants deserved A second and different role that can be Had it not been for the intervention of special protection against adverse played by an amicus is that of providing the amici, it appears quite possible, and costs orders. Ultimately, the Court a court with a route through a case filled even likely, that the Grootboom case rejected these arguments. However, the with difficult factual or legal issues or might have been lost and not produced arguments plainly changed the debate where the existing arguments do not any binding precedent in favour of the regarding the matter and, in the end, get to grips with the issues. In this type right to housing or right to shelter. the Court applied the same generous of intervention, the amicus does not Moreover, the LRC’s intervention standard that the amici had asked for run a more radical argument than the managed to analyse government’s to all matters in which a constitutional main litigant. Rather, it uses its position housing programme with a right was asserted in good faith – no to stand back and adopt a bird’s eye sophistication and nuance that was matter the nature of the litigant or the view in order to offer the court an lacking in the plaintiffs’ case. Though a particular right at issue. appropriate route to decide the case. number of the LRC’s legal submissions There is only one note of caution Perhaps the best example of this is were ultimately rejected, its approach that should be sounded. An amicus the role of the amici (the SAHRC to and analysis of government’s housing must ensure that it does not end up and the CLC, represented by the programme proved to be the core preventing future viable cases on an LRC) in the Grootboom case. It was around which the judgment was based. issue by running the argument too soon the intervention of the LRC that A further example is the matter of as an amicus intervention. Before taking demonstrated to the Constitutional S v M273. This matter concerned an the radical outlier position, the amicus Court that it could and should decide needs to be reasonably sure that: 273 S v M [2007] ZACC 18; 2008 (3) SA 232 (CC).

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A particularly frequent form of amicus intervention is to run an argument that supports the relief sought by the main public interest litigant, but that is (perhaps significantly) more radical, progressive and/or far-reaching than the arguments of the main litigant.

appeal by a divorced mother of three of the amicus that demonstrated to the and combatted corruption. The CCL children aged 16, 12 and 8 years Court how the law could accommodate intervened to focus on the question of against a sentence of four years’ the facts in question, without remedy and the negative ramifications imprisonment on charges of . undermining general legal principles for beneficiaries if the tender was set While the applicant’s arguments relied in future cases, in this case regarding aside. A full discussion of the case is on the effect that the sentence would sentencing. beyond the scope of this publication, have on her children, it took an amicus but the Court’s judgment made it plain A more recent example is the matter intervention by the CCL to analyse the that both amici interventions had a of Allpay,274 which was about the case and provide the Constitutional significant effect. lawfulness of a massive tender award Court with a route to decide it. It was concerning the administration and the amicus that demonstrated to the disbursement of social grants. The case Filling a gap Court that: was immensely complicated at the level The first two types ofamicus • the matter had to be dealt with as of fact and law, and had potentially interventions we have dealt with one of children’s rights – not the massive ramifications for the millions of concerned attempts byamici to reshape rights of the applicant; beneficiaries receiving social grants, and or redirect the case as a whole. There • international law made it clear that for future tender cases. are, however, other more limited amicus children’s rights had to be taken into interventions that are no less effective account; and that The case ultimately saw two different and can often be crucial to the success • requiring the consideration of amici curiae intervening and adopting of a case. children’s rights in sentencing did contrasting positions in an effort to find not mean being soft on crime. a route through for the Constitutional For example, an amicus intervention Court. Corruption Watch intervened can often cover an issue that the main This intervention had a profound to deal with the relevant legal litigant has not covered at all and may impact on the Court. Indeed, the need principles, expressing concern that the be unable to cover. Often the issue for the intervention is highlighted by Court should espouse principles of presented by the amicus in this way is the fact that it was the Court itself that administrative law and remedy which primarily a legal one. prompted it. The Chief Justice directed protected procurement processes the Registrar to serve a copy of the It happens quite frequently, for instance, directions setting the matter down for 274 Allpay Consolidated Investment Holdings (Pty) that the main litigant has not covered Ltd & Others v Chief Executive Officer of the hearing on the CCL. South African Social Security Agency & Others the foreign and international law [2013] ZACC 42; 2014 (1) SA 604 (CC); and dimensions of a case. In cases like S v M Much as in the Grootboom case, it was Allpay Consolidated Investment Holdings (Pty) Ltd & Others v Chief Executive Officer of the South mentioned above and Grootboom, this the sophisticated, nuanced argument African Social Security Agency & Others (No. 2) op.cit. was done by the amici.

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Protest against gender-related violence and child abuse outside Parliament in Cape Town, May 2008. Photograph: Paul Hofman ©

The same approach applies to South on requesters, and why even reading an unjustifiable limitation of the right of African legal issues which have received in a condonation provision would not access to courts, and the submissions of inadequate emphasis. In the TAC case, solve the problem. SAHA made a significant contribution for example, the focus of the main in persuading it to make this order. This gap was filled by anamicus litigant was the right to health care. An intervention by SAHA. Theamicus A further example is the Biowatch effectiveamicus intervention, however, intervention demonstrated that due case referred to earlier, concerning was brought by the Cotlands Baby to the complexities involved, even the awarding of costs against litigants Sanctuary, focusing on children’s rights an organisation like SAHA – which asserting constitutional rights. and the effect on children. specialises in access to information – While we have already discussed the On other occasions, the gap filled had not once managed to approach a substantive arguments made by the by the amicus is to demonstrate at a court within the 30-day time period. amici (the CCL, LHR and CALS) in practical level the effect of a judgment It also demonstrated that even a this case, their intervention served an or provision. A good example in condonation provision would not solve earlier and arguably more important this regard is the case of Brümmer v the problem as it would have a chilling purpose: To demonstrate to the Constitutional Court that the Biowatch Minister of Social Development.275 effect on the running of such litigation. matter did not merely concern an This case concerned a challenge to the There is no question that SAHA’s adverse costs award against one constitutionality of the Promotion of intervention substantially strengthened organisation but was, in fact, having Access to Information Act of 2000, the main litigant’s case. The a chilling effect on the entire public which provided that where a request Constitutional Court’s judgment interest litigation arena. for access to information is refused, the described SAHA’s account of the The purpose was to assist in persuading requester must approach a court within practical difficulties caused by the time the Court that this was indeed a matter 30 days to challenge that decision. This bar as: where it was appropriate to hear an provision was challenged by a journalist […] illuminating […] If an NGO faces appeal on costs alone, despite the as violating the rights of access to these difficulties in meeting the 30-day general reluctance of courts to do so. information and access to courts. limit, I think it is fair to expect that It was for this reason that the amici While the journalist’s case was well individuals will have even greater interventions were launched at a very presented and persuasive, it did not difficulty in complying with this time early stage – prior to the Court even 276 manage to convey fully the practical limit. deciding whether to set the matter down. effect that the 30-day time period had The Court struck down the time bar as Finally, although an amicus is largely 275 Brümmer v Minister of Social Development & 276 Brümmer v Minister of Social Development & prevented from adducing further Others [2009] ZACC 21; 2009 (6) SA 323 (CC). Others op.cit., paragraphs 53-54.

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Photograph: Treatment Action Campaign ©

In sum An amicus intervention can be brought in at least three ways – playing the radical outlier role, providing a route through or filling a gap. In many cases, there are overlaps between the three with the amicus fulfilling more than one of these functions. On some occasions, the amicus interventions above were run after consultation with the main litigant. On other occasions, this did not occur. While one cannot be prescriptive on this score, it is worth bearing in mind that amicus interventions can hinder as much as they can help. In particular, it evidence, there are exceptions to treatment of HIV, as well as the ability may be the case that the main litigant this rule. There are some unusual of people with HIV to be vaccinated has given careful consideration to occasions where an amicus can fill the against yellow fever, an important issue the possible range of arguments and gap in respect of missing evidence. An in the case. has declined to run some of them for example of this is the case of Hoffmann This evidence had been adduced in a practical or strategic reasons. v South African Airways mentioned different lower court matter, A v South earlier. Therefore, before any public interest African Airways, and the attorneys in organisation seeks to intervene in a As noted, this case concerned the this matter – the ALP – successfully case as an amicus, we are of the view practice of South African Airways applied to be an amicus in the that there should at least be a full and to refuse to employ HIV-positive Hoffmann case and to place the relevant frank exchange of views between the individuals as cabin attendants. When evidence before the Constitutional potential amicus and the main litigant as the case reached the Constitutional Court. Ultimately, the Constitutional to the advantages and disadvantages of Court, it appeared to lack certain Court ruled in favour of Hoffmann, such an intervention. important medical evidence on relying substantially on the evidence the transmission, progression and from the ALP.

142 Public interest litigation and social change in South Africa: Strategies, tactics and lessons Chapter 6: Summary of findings

Public interest litigation and social change in South Africa: Strategies, tactics and lessons 143 Summary of findings

Our key findings may be divided into four parts: substantial progress on human rights unless there are sufficient resources • the main challenges facing the public interest litigation to sustain support structures (in the environment in South Africa; form of rights advocacy organisations • four strategies that should be used in combination in order to use and rights advocacy lawyers) for legal rights to achieve social change; mobilisation. • seven factors that are critical to maximising the prospect that public interest litigation succeeds and achieves social change; and Given the massive inequality and • three procedural mechanisms which promote effective public poverty continuing to face South Africa, interest litigation in South Africa. we are concerned that if organisations engaged in this work do not receive adequate support, there is a danger that n Chapter 1 we identified the main the gains of the last few years will be challenges facing the public interest undermined. Ilitigation environment in South The remaining challenges discussed in Africa. this chapter arise from the beginnings We concluded that a major challenge of a potential backlash to public interest is a lack of funding and resources. litigation – in the form of increased This challenge is also substantially hostility by government towards responsible for a second major public interest litigation, and the use challenge – the difficutly faced of public interest litigation tactics by public interest litigation by organisations opposed to social organisations in attracting and change. retaining sufficient quality In Chapter 3, on the basis of the case personnel. studies presented in Chapter 2 as These challenges are matters of well as other examples, we identified significant concern. As we have four strategies that should be used in indicated, international research combination in order to use rights to suggests that progressive Constitutions achieve social change. and progressive judges – both of The first ispublic information. which South Africa undoubtedly Public campaigns that inform ordinary possesses – are insufficient to achieve people of their rights are an essential

144 Public interest litigation and social change in South Africa: Strategies, tactics and lessons Changing trends in the South African public interest litigation environment Chapter 6

Isolation cells at Section Four at the Johannesburg Fort (an apartheid-era prison). ANC 1963 treason trialist Walter Sisulu, and leader of the 1976 Tsietsi Mashinini were held here. Photograph: Gerald Kraak ©

component of any effort to achieve litigation to be designed effectively and Often this is not possible and we accept social change on rights issues. They to target maximum impact, while also that specialist litigation organisations are critical if people are to understand improving the prospects that a victory frequently have an important role the role that law and legal rights in a landmark case actually translates to play. Indeed, these four strategic can play in achieving social justice. into tangible benefits for people far processes should preferably not be Moreover, without such campaigns, beyond those directly involved. directed by lawyers as ‘experts’ or those conducting public interest outsiders but instead be framed by the The third issocial mobilisation and litigation are unlikely to be able to initiatives and actions of communities advocacy. It is clear from our study obtain the required information to themselves. that the assertion of rights is generally launch successful litigation, to generate most effective when linked to social In Chapter 4 we concluded that in substantial support from ordinary movements. Rights have to be asserted order to achieve social change via people – which plays an important role both outside and inside the courts. litigation, it is critical that litigation in perceptions of litigation by courts, Some form of social movement is be properly conceptualised, run the public and government – or to necessary to identify issues, mobilise and followed up. In this regard, we transform any litigation victory into support, apply political pressure, engage identified seven factors that are critical concrete progress on the ground. in litigation where necessary, and to maximising the prospect that public The second isadvice and assistance. monitor and enforce favourable orders interest litigation succeeds and achieves It is essential that there are intermediary by the courts. social change. organisations which enable people The fourth islitigation . While Proper organisation of clients. to claim their rights, by giving successful litigation must not be seen While public interest litigation can advice, directing them to appropriate as an end in itself, it can play a pivotal be run on behalf of a few disparate institutions, assisting them with the role when combined with the three individual clients, we conclude that formulation of their claims, and taking strategies set out above. Properly used, this is usually not an effective way of matters up on their behalf – all of litigation enables poor or marginalised achieving social impact. Generally which can occur successfully without groups to achieve impact and success speaking, public interest litigation is necessarily engaging in litigation. This that would not be available to them if likely to achieve greater social change strategy too has substantial benefits they were limited only to the strategies when the client is an organisation or for litigation, particularly because set out above. movement with a direct interest in it provides an efficient means of the matters being litigated. Moreover, identifying the core issues that are We do not imply that it is vital that a public interest litigation is likely to affecting large numbers of ordinary single organisation itself be integrally achieve greater social change when people. It thus allows public interest involved in each of these four strategies. the client plays an active and engaged

Public interest litigation and social change in South Africa: Strategies, tactics and lessons 145 Chapter 6

South Africa’s Constitution is one of the most progressive in the world. Yet, South Africa also continues to face massive inequality and poverty. It is therefore essential that the Constitution is used in a manner that produces tangible and lasting social change.

role, rather than allowing legal simultaneously or beforehand. during litigation. Legal research, representatives to make key decisions Successful public interest litigation including using foreign and without proper client input. therefore requires co-ordination international law, is essential if public and information-sharing among the interest litigation is to be given a proper Overall long-term strategy. Where organisations involved so that they can theoretical foundation. The need public interest litigation achieves build on each other’s successes. for access to proper factual research, maximum social impact, this is particularly in socio-economic rights invariably not by virtue of a single case. Timing. Timing is an essential cases, is just as acute. Those involved in Rather, it tends to require a series of element in any public interest litigation running such litigation must have access cases brought on different but related that is to have meaningful impact. to relevant research capabilities – either issues over a substantial period of time. Litigation should not commence within their own organisation or via It is therefore critical that organisations until and unless the climate is right alliances with other organisations. seeking to utilise public interest and the relevant evidence is in place. litigation to achieve social impact The effects of running litigation too Characterisation. A substantial do not attempt to rely on ‘one-shot’ soon can be disastrous – particularly component of any successful case is success. Instead, they must develop a as an unsuccessful piece of public the characterisation debate – that is, coherent long-term strategy that allows interest litigation could, in practice, ensuring that a case is brought under them to benefit from the substantial permanently foreclose the issue from the appropriate right and is correctly advantage that derives from being a being re-litigated. It is also helpful to be pitched to the court. Any given case can repeat player in the courts. able to demonstrate that court action be viewed and perceived in multiple has not been the first port of call for ways by the courts and by the public. It Co-ordination and information- the litigants involved. Where litigation is thus important for those involved in sharing. In virtually any given area is against government on controversial public interest litigation to demonstrate of public interest litigation, there are issues, courts will tend to be far more that the issues at stake are critical, that multiple organisations with similar receptive and sympathetic where it the assertion of fundamental rights is aims, all seeking to achieve success can be demonstrated that the litigants being used to redress unfairness and via litigation. If there is insufficient have repeatedly sought to engage with inequality rather than perpetuate it, and co-ordination and information- government to find a solution but that that countless, real people are being sharing between these organisations, none has been achieved. affected on a daily basis. there is a real danger that resources will not be used effectively and, even Research. A critical and often Follow-up. Perhaps the most more damagingly, viable cases will be neglected facet of successful public important factor of all in ensuring that undermined by other conflicting cases interest litigation is the need for public interest litigation has maximum being brought by other organisations detailed research in advance of and social impact is the need for proper

146 Public interest litigation and social change in South Africa: Strategies, tactics and lessons Changing trends in the South African public interest litigation environment Chapter 6

follow-up post-litigation. This mainly damages) in respect of large numbers of involves ensuring that a litigation unnamed individuals or entities. victory is translated into practical The second is theprotective costs benefits for a large number of people regime adopted by South African on the ground, including those not courts in relation to constitutional directly involved in the litigation. This is litigation. In constitutional litigation ideally done by a combination of legal between private parties and and political pressure. While the use of government, the courts have adopted innovative and wide-ranging remedial the principle that if government loses, it powers by the courts is important for should pay the costs, and if government achieving social impact, it is arguably wins, each party should bear its own less important than the capacity costs. This has been critical to enabling and willingness of the organisations effective public interest litigation. involved to properly follow up and enforce whatever order is granted. The third consists of thesignificant opportunities for interventions In Chapter 5 we identified three by amici curiae. These interventions procedural mechanisms which promote can play an essential role in seeking to effective public interest litigation in the achieve social change. They allow public South African environment. interest organisations to influence the The first is thebroad rules of development of the law without having standing contained in South Africa’s to start litigation themselves and can Constitution and applied by its courts. prevent retrogressive judicial decisions These have been essential in allowing occurring. effective public interest litigation and have recently been developed further by courts embracing the idea of class actions. While this is a welcome and important development, we consider that class actions should only be used in a relatively narrow category of cases – namely where the aim is to seek specific, enforceable relief (including awards of

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Former President Nelson Mandela engaging with HIV- positive children in Crossroads, Cape Town, in 2007. Photograph: Ruvan Boshoff ©

In closing South Africa’s Constitution is one of the most progressive in the world. It contains powerful and far-reaching provisions, including in relation to socio-economic rights. Yet, South Africa also continues to face massive inequality and poverty. It is therefore essential that the Constitution is used in a manner that produces tangible and lasting social change. As Judge Dennis Davis has pointed out:

A failure by successful litigants to benefit from constitutional litigation […] can only contribute to the long-term illegitimacy of the very constitutional enterprise with which South Africa engaged in 1994. A right asserted successfully by litigants who then wait in vain for any tangible benefit to flow from the costly process of litigation, is rapidly transformed into an illusory right and hardly represents the kind of conclusion designed to construct a practice of constitutional rights so essential to the long-term success of the constitutional project.277

277 DM Davis, Adjudicating the Socio-economic Rights in the South African Constitution: Towards ‘Deference Lite’?, in South African Journal on Human Rights, Vol. 22, Part 2: 2006, page 314.

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Abel, Richard L, Law without Politics: Legal Aid under Advanced Capitalism, UCLA Law Review, Vol. 32: 1985, pages 474-642

Abel, Richard L, Politics by Other Means: Law in the Struggle Against Apartheid, 1980-1994, Routledge, New York: 1995

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152 Public interest litigation and social change in South Africa: Strategies, tactics and lessons Appendices

Public interest litigation and social change in South Africa: Strategies, tactics and lessons 153 Appendix A

Constitution of the Republic of South Africa 108 of 1996, Chapter 2 (Bill of Rights, Sections 7-39)

7 Rights (1) This Bill of Rights is a cornerstone of democracy in South Africa. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom. (2) The state must respect, protect, promote and fulfil the rights in the Bill of Rights. (3) The rights in the Bill of Rights are subject to the limitations contained or referred to in section 36, or elsewhere in the Bill.

8 Application (1) The Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary and all organs of state. (2) A provision of the Bill of Rights binds a natural or a juristic person if, and to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right. (3) When applying a provision of the Bill of Rights to a natural or juristic person in terms of subsection (2), a court— (a) in order to give effect to a right in the Bill, must apply, or if necessary develop, the common law to the extent that legislation does not give effect to that right; and (b) may develop rules of the common law to limit the right, provided that the limitation is in accordance with section 36 (1). (4) A juristic person is entitled to the rights in the Bill of Rights to the extent required by the nature of the rights and the nature of that juristic person.

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9 Equality (1) Everyone is equal before the law and has the right to equal protection and benefit of the law. (2) Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken. (3) The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth. (4) No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination. (5) Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.

10 Human dignity Everyone has inherent dignity and the right to have their dignity respected and protected.

11 Life Everyone has the right to life.

12 Freedom and security of the person (1) Everyone has the right to freedom and security of the person, which includes the right— (a) not to be deprived of freedom arbitrarily or without just cause; (b) not to be detained without trial; (c) to be free from all forms of violence from either public or private sources; (d) not to be tortured in any way; and (e) not to be treated or punished in a cruel, inhuman or degrading way. (2) Everyone has the right to bodily and psychological integrity, which includes the right— (a) to make decisions concerning reproduction; (b) to security in and control over their body; and (c) not to be subjected to medical or scientific experiments without their informed consent.

13 Slavery, servitude and forced labour No one may be subjected to slavery, servitude or forced labour.

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14 Privacy Everyone has the right to privacy, which includes the right not to have— (a) their person or home searched; (b) their property searched; (c) their possessions seized; or (d) the privacy of their communications infringed.

15 Freedom of religion, belief and opinion (1) Everyone has the right to freedom of conscience, religion, thought, belief and opinion. (2) Religious observances may be conducted at state or state-aided institutions, provided that— (a) those observances follow rules made by the appropriate public authorities; (b) they are conducted on an equitable basis; and (c) attendance at them is free and voluntary. (3)(a) This section does not prevent legislation recognising— (i) marriages concluded under any tradition, or a system of religious, personal or family law; or (ii) systems of personal and family law under any tradition, or adhered to by persons professing a particular religion. (b) R ecognition in terms of paragraph (a) must be consistent with this section and the other provisions of the Constitution.

16 Freedom of expression (1) Everyone has the right to freedom of expression, which includes— (a) freedom of the press and other media; (b) freedom to receive or impart information or ideas; (c) freedom of artistic creativity; and (d) academic freedom and freedom of scientific research. (2) The right in subsection (1) does not extend to— (a) propaganda for war; (b) incitement of imminent violence; or (c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.

17 Assembly, demonstration, picket and petition Everyone has the right, peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions.

18 Freedom of association Everyone has the right to freedom of association.

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19 Political rights (1) Every citizen is free to make political choices, which includes the right— (a) to form a political party; (b) to participate in the activities of, or recruit members for, a political party; and (c) to campaign for a political party or cause. (2) Every citizen has the right to free, fair and regular elections for any legislative body established in terms of the Constitution. (3) Every adult citizen has the right— (a) to vote in elections for any legislative body established in terms of the Constitution, and to do so in secret; and (b) to stand for public office and, if elected, to hold office.

20 Citizenship No citizen may be deprived of citizenship.

21 Freedom of movement and residence (1) Everyone has the right to freedom of movement. (2) Everyone has the right to leave the Republic. (3) Every citizen has the right to enter, to remain in and to reside anywhere in, the Republic. (4) Every citizen has the right to a passport.

22 Freedom of trade, occupation and profession Every citizen has the right to choose their trade, occupation or profession freely. The practice of a trade, occupation or profession may be regulated by law.

23 Labour relations (1) Everyone has the right to fair labour practices. (2) Every worker has the right— (a) to form and join a trade union; (b) to participate in the activities and programmes of a trade union; and (c) to strike. (3) Every employer has the right— (a) to form and join an employers’ organisation; and (b) to participate in the activities and programmes of an employers’ organisation. (4) Every trade union and every employers’ organisation has the right— (a) to determine its own administration, programmes and activities; (b) to organise; and (c) to form and join a federation.

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(5) Every trade union, employers’ organisation and employer has the right to engage in collective bargaining. National legislation may be enacted to regulate collective bargaining. To the extent that the legislation may limit a right in this Chapter, the limitation must comply with section 36 (1). (6) National legislation may recognise union security arrangements contained in collective agreements. To the extent that the legislation may limit a right in this Chapter the limitation must comply with section 36 (1).

24 Environment Everyone has the right— (a) to an environment that is not harmful to their health or well-being; and (b) to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that— (i) prevent pollution and ecological degradation; (ii) promote conservation; and (iii) secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.

25 Property (1) No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property. (2) Property may be expropriated only in terms of law of general application— (a) for a public purpose or in the public interest; and (b) subject to compensation, the amount of which and the time and manner of payment of which have either been agreed to by those affected or decided or approved by a court. (3) The amount of the compensation and the time and manner of payment must be just and equitable, reflecting an equitable balance between the public interest and the interests of those affected, having regard to all relevant circumstances, including— (a) the current use of the property; (b) the history of the acquisition and use of the property; (c) the market value of the property; (d) the extent of direct state investment and subsidy in the acquisition and beneficial capital improvement of the property; and (e) the purpose of the expropriation. (4) For the purposes of this section— (a) the public interest includes the nation’s commitment to land reform, and to reforms to bring about equitable access to all South Africa’s natural resources; and (b) property is not limited to land.

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(5) The state must take reasonable legislative and other measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis. (6) 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. (7) A person or community dispossessed of property after 19 June 1913 as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to restitution of that property or to equitable redress. (8) No provision of this section may impede the state from taking legislative and other measures to achieve land, water and related reform, in order to redress the results of past racial discrimination, provided that any departure from the provisions of this section is in accordance with the provisions of section 36 (1). (9) Parliament must enact the legislation referred to in subsection (6).

26 Housing (1) Everyone has the right to have access to adequate housing. (2) The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right. (3) No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.

27 Health care, food, water and social security (1) Everyone has the right to have access to— (a) health care services, including reproductive health care; (b) sufficient food and water; and (c) social security, including, if they are unable to support themselves and their dependants, appropriate social assistance. (2) The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights. (3) No one may be refused emergency medical treatment.

28 Children (1) Every child has the right— (a) to a name and a nationality from birth; (b) to family care or parental care, or to appropriate alternative care when removed from the family environment; (c) to basic nutrition, shelter, basic health care services and social services;

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(d) to be protected from maltreatment, neglect, abuse or degradation; (e) to be protected from exploitative labour practices; (f) not to be required or permitted to perform work or provide services that— (i) are inappropriate for a person of that child’s age; or (ii) place at risk the child’s well-being, education, physical or mental health or spiritual, moral or social development; (g) not to be detained except as a measure of last resort, in which case, in addition to the rights a child enjoys under sections 12 and 35, the child may be detained only for the shortest appropriate period of time, and has the right to be— (i) kept separately from detained persons over the age of 18 years; and (ii) treated in a manner, and kept in conditions, that take account of the child’s age; (h) to have a legal practitioner assigned to the child by the state, and at state expense, in civil proceedings affecting the child, if substantial injustice would otherwise result; and (i) not to be used directly in armed conflict, and to be protected in times of armed conflict. (2) A child’s best interests are of paramount importance in every matter concerning the child. (3) In this section ‘child’ means a person under the age of 18 years.

29 Education (1) Everyone has the right— (a) to a basic education, including adult basic education; and (b) to further education, which the state, through reasonable measures, must make progressively available and accessible. (2) Everyone has the right to receive education in the official language or languages of their choice in public educational institutions where that education is reasonably practicable. In order to ensure the effective access to, and implementation of, this right, the state must consider all reasonable educational alternatives, including single medium institutions, taking into account— (a) equity; (b) practicability; and (c) the need to redress the results of past racially discriminatory laws and practices. (3) Everyone has the right to establish and maintain, at their own expense, independent educational institutions that— (a) do not discriminate on the basis of race; (b) are registered with the state; and (c) maintain standards that are not inferior to standards at comparable public educational institutions.

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(4) Subsection (3) does not preclude state subsidies for independent educational institutions.

30 Language and culture Everyone has the right to use the language and to participate in the cultural life of their choice, but no one exercising these rights may do so in a manner inconsistent with any provision of the Bill of Rights.

31 Cultural, religious and linguistic communities (1) Persons belonging to a cultural, religious or linguistic community may not be denied the right, with other members of that community— (a) to enjoy their culture, practise their religion and use their language; and (b) to form, join and maintain cultural, religious and linguistic associations and other organs of civil society. (2) The rights in subsection (1) may not be exercised in a manner inconsistent with any provision of the Bill of Rights.

32 Access to information (1) Everyone has the right of access to— (a) any information held by the state; and (b) any information that is held by another person and that is required for the exercise or protection of any rights. (2) National legislation must be enacted to give effect to this right, and may provide for reasonable measures to alleviate the administrative and financial burden on the state.

33 Just administrative action (1) Everyone has the right to administrative action that is lawful, reasonable and procedurally fair. (2) Everyone whose rights have been adversely affected by administrative action has the right to be given written reasons. (3) National legislation must be enacted to give effect to these rights, and must— (a) provide for the review of administrative action by a court or, where appropriate, an independent and impartial tribunal; (b) impose a duty on the state to give effect to the rights in subsections (1) and (2); and (c) promote an efficient administration.

34 Access to courts Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.

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35 Arrested, detained and accused persons (1) Everyone who is arrested for allegedly committing an offence has the right— (a) to remain silent; (b) to be informed promptly— (i) of the right to remain silent; and (ii) of the consequences of not remaining silent; (c) not to be compelled to make any confession or admission that could be used in evidence against that person; (d) to be brought before a court as soon as reasonably possible, but not later than— (i) 48 hours after the arrest; or (ii) the end of the first court day after the expiry of the 48 hours, if the 48 hours expire outside ordinary court hours or on a day which is not an ordinary court day; (e) at the first court appearance after being arrested, to be charged or to be informed of the reason for the detention to continue, or to be released; and (f) t o be released from detention if the interests of justice permit, subject to reasonable conditions. (2) Everyone who is detained, including every sentenced prisoner, has the right— (a) to be informed promptly of the reason for being detained; (b) to choose, and to consult with, a legal practitioner, and to be informed of this right promptly; (c) to have a legal practitioner assigned to the detained person by the state and at state expense, if substantial injustice would otherwise result, and to be informed of this right promptly; (d) to challenge the lawfulness of the detention in person before a court and, if the detention is unlawful, to be released; (e) to conditions of detention that are consistent with human dignity, including at least exercise and the provision, at state expense, of adequate accommodation, nutrition, reading material and medical treatment; and (f) to communicate with, and be visited by, that person’s— (i) spouse or partner; (ii) next of kin; (iii) chosen religious counsellor; and (iv) chosen medical practitioner. (3) Every accused person has a right to a fair trial, which includes the right— (a) to be informed of the charge with sufficient detail to answer it; (b) to have adequate time and facilities to prepare a defence; (c) to a public trial before an ordinary court; (d) to have their trial begin and conclude without unreasonable delay; (e) to be present when being tried;

162 Public interest litigation and social change in South Africa: Strategies, tactics and lessons Changing trends in the South African public interest litigation environment Appendix A

(f) t o choose, and be represented by, a legal practitioner, and to be informed of this right promptly; (g) to have a legal practitioner assigned to the accused person by the state and at state expense, if substantial injustice would otherwise result, and to be informed of this right promptly; (h) to be presumed innocent, to remain silent, and not to testify during the proceedings; (i) to adduce and challenge evidence; (j) not to be compelled to give self-incriminating evidence; (k) to be tried in a language that the accused person understands or, if that is not practicable, to have the proceedings interpreted in that language; (l) not to be convicted for an act or omission that was not an offence under either national or international law at the time it was committed or omitted; (m) not to be tried for an offence in respect of an act or omission for which that person has previously been either acquitted or convicted; (n) to the benefit of the least severe of the prescribed punishments if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing; and (o) of appeal to, or review by, a higher court. (4) Whenever this section requires information to be given to a person, that information must be given in a language that the person understands. (5) Evidence obtained in a manner that violates any right in the Bill of Rights must be excluded if the admission of that evidence would render the trial unfair or otherwise be detrimental to the administration of justice.

36 Limitation of rights (1) The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including— (a) the nature of the right; (b) the importance of the purpose of the limitation; (c) the nature and extent of the limitation; (d) the relation between the limitation and its purpose; and (e) less restrictive means to achieve the purpose. (2) Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights.

37 States of emergency (1) A may be declared only in terms of an Act of Parliament, and only when— (a) the life of the nation is threatened by war, invasion, general insurrection, disorder, natural disaster or other public emergency; and

Public interest litigation and social change in South Africa: Strategies, tactics and lessons 163 Appendix A

(b) the declaration is necessary to restore peace and order.

38 Enforcement of rights Anyone listed in this section has the right to approach a competent court, alleging that a right in the Bill of Rights has been infringed or threatened, and the court may grant appropriate relief, including a declaration of rights. The persons who may approach a court are— (a) anyone acting in their own interest; (b) anyone acting on behalf of another person who cannot act in their own name; (c) anyone acting as a member of, or in the interest of, a group or class of persons; (d) anyone acting in the public interest; and (e) an association acting in the interest of its members.

39 Interpretation of Bill of Rights (1) When interpreting the Bill of Rights, a court, tribunal or forum— (a) must promote the values that underlie an open and democratic society based on human dignity, equality and freedom; (b) must consider international law; and (c) may consider foreign law. (2) When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights. (3) The Bill of Rights does not deny the existence of any other rights or freedoms that are recognised or conferred by common law, customary law or legislation, to the extent that they are consistent with the Bill.

164 Public interest litigation and social change in South Africa: Strategies, tactics and lessons Appendix B

Organisations & individuals participating via personal interview or questionnaire*1

Black Sash Trust Zackie Achmat, co-founder of the Janet Love, National Director of the Treatment Action Campaign Legal Resources Centre Centre for Applied Legal Studies, University of the Witwatersrand Brad Brockman, General Secretary Kate O’Regan, former of Equal Education Constitutional Court Justice Centre for Criminal Justice, University of KwaZulu-Natal Geoff Budlender SC, practising Ann Skelton, Director of the Centre Advocate and former National for Child Law Education and Training Unit Director of the Legal Resources Wim Trengove SC, practising Freedom of Expression Institute Centre Advocate and former Director Law Clinic Edwin Cameron, Constitutional of the Legal Resources Centre’s Court Justice Constitutional Litigation Unit Lawyers for Human Rights Arthur Chaskalson, former Chief Stuart Wilson, practising Advocate Justice of South Africa and former and co-founder of the Socio- OUT LGBT Well-being National Director of the Legal Economic Rights Institute of South PLAAS - Institute for Poverty, Resources Centre Africa Land and Agrarian Studies, Matthew Chaskalson SC, practising University of the Western Cape Advocate ProBono.Org Jackie Dugard, co-founder of the Rhodes University Legal Aid Socio-Economic Rights Institute of Clinic South Africa Rural Legal Trust Adila Hassim, practising Advocate Socio-Economic Rights Project and co-founder of Section27 of the Community Law Centre, Kallie Kriel, Chief Executive Officer University of the Western Cape of AfriForum South African History Archive Pius Langa, former Chief Justice of South Africa

* This list includes the respondents for both the 2008 report and this publication. Some were respondents on both occasions. One City of Johannesburg official agreed to be interviewed on the basis that his identity would be kept confidential.

Public interest litigation and social change in South Africa: Strategies, tactics and lessons 165 Bill of Rights on the wall of the remains of the old prison in Durban. Photograph: Jan Speed/Norad Bistandsaktuelt/www.flickr.com © Back page photographs: Audra Melton & Nadine Hutton Public interest litigation and social change in South Africa: Strategies, tactics and lessons

Biographies

Steven Budlender is an advocate at the Johannesburg Bar and specialises in human rights and constitutional law. He has appeared in numerous key public interest cases in the Constitutional Court and the Supreme Court of Appeal, frequently acting as lead counsel. He previously clerked at the Constitutional Court for then Chief Justice Arthur Chaskalson. Gilbert Marcus SC is a senior advocate at the Johannesburg Bar and specialises in human rights and constitutional law. He is one of South Africa’s most respected advocates and has represented clients in some of the country’s seminal political trials under apartheid, as well as in path-breaking Constitutional Court cases. He is an honorary Professor of Law at the University of the Witwatersrand. Nick Ferreira is an advocate at the Johannesburg Bar and specialises in human rights and constitutional law. He has master’s and doctoral degrees in philosophy from Oxford University, where he studied as a Rhodes Scholar. On returning to South Africa, he clerked for Justice Edwin Cameron at the Constitutional Court.

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