Book Review – Public Interest Litigation in SA

by Jason Brickhill (contributing Editor) (433 pages)
Juta & Co (Pty) Ltd www.jutalaw.co.za

“The welfare of the people is the ultimate law”– Marcus Tullius Cicero (106-43 BC)

Litigation in the public interest has been enabled by the democratic Constitution of South Africa to play an increasingly significant role in recent years, largely to hold government to account, and to a lesser degree (thus far) the private sector. There is expanded scope for civil society organisations to tackle oppressive, corrupt, unjust and unlawful action and inaction to achieve social, human and economic rights for those sectors of the public affected.

Advocate Geoff Bundlender SC in his foreward to this book also points to a new willingness on the part of the courts to recognise the need to facilitate, and not obstruct, the accountability of government. He also raises the need for courts to develop innovative procedures and remedies to address the problem of inept government that is simply unable to provide relief through incompetence.

This volume is a timely collection of reflections and observations by a spread of contributors on various aspects of public interest litigation as it has developed, particularly since 1994. Difficult questions, both theoretical and practical, are addressed, and the contributors probe and grapple with many unresolved issues around the impact of public interest litigation on social and economic change in complex situations.

The 24 contributors include attorneys, advocates and academics, who bring a wealth of insight into human rights and constitutional litigation to these pages. A number have written and published extensively, others have meaningful experience in children’s rights, penal reform, gender equity, administrative law, education, environmental justice, media law, refugee rights, socio-economic issues and much more.

The 14 chapters delve into a full spectrum of public interest litigation. The historic context is introduced and the ethics and problems of public interest litigation examined. The role of international law is unpacked and constitutional litigation procedure explained.

Key areas of public interest litigation are considered. These include health care, gender bias, basic services, children’s rights, the right to basic education, freedom of expression, prisoners’ rights, access to information and LGBTI equality.

Important judgments of our courts are examined and the long road ahead is often bluntly spelled out by the authors. The need for strategic interventions far broader than litigation is emphasised, and this also helps to recalibrate the approach to litigation.

A good example of the contextual approach to the role that public interest litigation can play is author Nikki Stein’s remarks on health care:

“In addition to an economic recession, the current political climate brings
with it a level of uncertainty. It highlights cases of erosion of accountability, respect for the rule of law and good governance. We see this conduct in decisions regarding the availability of health care services, in the award of tenders for the delivery of these services, and in the failure to hold to account those who act in breach of their obligations. In addition to violating the foundation on which our Constitution is built, these cases will affect the day-to-day living of millions of people.

As such, legal strategies to advance the right of access to health care services are not just about those health care service. It will likely not be enough to focus on progressive realisation of the right to health. It will also likely not suffice to address the positive and negative obligations arising from the right to health without addressing closely related issues such as corruption and financial mismanagement. Finally, it is necessary to hold all forms of power to account, in the public and private sectors, to ensure that health care users’ rights comes first.”

Unfortunately, the biographical list of contributors omits both Nikki Stein and Frances Hobden.

In addition to the table of cases cited, footnotes and index, this volume includes a useful list of public interest law centres that conduct litigation, organisations that fund public interest litigation, and organisations that often intervene in public interest matters as amici curiae, with their websites.

This compendium will draw a readership well beyond legal practitioners because of its grounded accounts of the campaigns, struggles and public interest causes undertaken by activists, individuals, communities and civil society organisations to achieve social justice and realise the vision of the Constitution.

The editor, contributors and publisher Juta are to be commended for marshalling these insightful essays into a coherent and compelling narrative. This publication is a significiant step on the path untrod, as outlined by former Deputy Chief Justice Dikgang Moseneke:

“When the Constitution was negogiated, the parties skirted around the need for social change. The negotiators did not stare in the eye historical structural inequality in the economy. There was no pact on how to achieve the equality and social justice the constitution promised. Instead, the constitution imposed qualified duties on the state to facilitate access to social goods such as health, housing, water, education and social grants. But these socio-economic entitlements were premised on and limited to state transfers as and when funds were available. On the face of it, the protections were praiseworthy, and they promised a state-sponsored reduction of poverty, but in practice socio-economic rights did not speak to how to restructure the economy in a way that rendered it more productive and inclusive.”

(My Own Liberator: A Memoir (2016) 352-3)

Review by Louis Rood BA LLB (UCT), Consultant at Fairbridges Wertheim Becker Attorneys.