Public interest litigation and social change in South Africa: 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, Equal Education, Esa Alexander, National Alliance for the Development of Community Advice Offices, Richard Shorey & War on Want Public interest litigation and social change in South Africa: 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. 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Abbreviations Agri SA Agri South Africa MPRDA Mineral and Petroleum Resources Development Act 28 of 2002 AIDS Acquired Immune Deficiency Syndrome MTCT Mother-to-child transmission ALP AIDS Law Project NAACP National Association for the Advancement of Colored People ANC African National Congress NADCAO National Alliance for the APF Anti-Privatisation Forum Development of Community Advice ARV(s) Antiretroviral (drugs) Offices Atlantic The tlanticA Philanthropies NCGLE National Coalition for Gay and BEFA Basic Education for All Lesbian 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 Congress of South African Trade Unions PAJA Promotion 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 South African Human Rights LASA Legal Aid South Africa Commission LDF Legal Defense Fund SAINT South African Intrapartum Nevirapine Trial LGBT(s) Lesbian, gay, bisexual and transgender (people) SAPS South African Police Service LGEP Lesbian and Gay Equality Project TAC Treatment Action Campaign LHR Lawyers for Human Rights TAU-SA Transvaal Agricultural Union of South Africa LRC Legal Resources Centre 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;