‘The people shall govern!” declares the first clause of the Freedom Charter, adopted on June 25 and 26 1955 by the Congress of the People in Kliptown, Johannesburg. This political demand reflected the reality of the day — that the majority of South Africans were deprived of the right to self-govern and to vote.
The legal system of apartheid made any meaningful political participation impossible. Yet poor people and activists turned to the courts for redress in what, even then, was called “public interest litigation”.
How could the disenfranchised and oppressed ever hope to secure any relief from the judicial arm of the apartheid state, which excluded them from the polity? How could litigation in such courts pursue the “public interest” at all?
The courts were one site of struggle. Though severely constrained by the substantive and procedural legal terrain, public interest litigation was possible during apartheid and yielded outcomes that at the very least mitigated some of the worst excesses of the racist ideology.
The demand that “the people” must govern was never limited to formal political representation. Throughout the freedom struggle, it was articulated as a demand for economic equality, realisation of human rights and fair access to social goods, status and opportunities.
This demand, framed in the language of human rights and constitutionalism, runs like a golden thread through the 20th-century history of resistance in South Africa, at times being refined and rearticulated in important written claims instruments.
In 1923, African lawyers working through the ANC prepared the “African Bill of Rights for South Africa”. Two decades later, at its annual conference in December 1943, the ANC adopted the Africans’ Claims in South Africa, which set out a proposed Bill of Rights, which included, in addition to the abolition of political discrimination, rights in relation to mineral resources and land, education and healthcare. A little more than a decade later, the 1955 Freedom Charter envisioned a democratic state in which the people would share in the country’s wealth, the land would be shared among those who worked it, there would be work, the doors of learning and culture would be opened, and where there would be houses, security and comfort.
As Tembeka Ngcukaitobi notes in The Land Is Ours, “[constitutionalism] … did not emerge as an alternative to political struggle. Instead, constitutionalism is an integral part of South Africa’s political struggle.”
Given that apartheid was enforced through the law and that human rights and constitutionalism were central to the political resistance to colonialism and apartheid, it followed that the courts would become an important site of struggle.
Though it may not have been described as such, public interest litigation commenced in South African was as early as the 19th century. Public interest litigation did not end with the formal demise of apartheid — individuals, groups, social movements and other civil society actors continued to use it as one strategy to secure largely the same goals as articulated in the Freedom Charter.
The book Public Interest Litigation in South Africa considers the development and use of public interest litigation in the constitutional era. The Constitution revolutionised the procedural and substantive legal environment. The most significant substantive developments included the shift from parliamentary to constitutional supremacy; a justiciable Bill of Rights, including socioeconomic rights; and a robust doctrine of the rule of law.
Procedurally, constitutional innovations included the broadening of standing rules, greater receptiveness to amici curiae and intervening parties, the creation of flexible and extensive remedial powers for courts and a protective regime relating to costs in constitutional litigation.
In the democratic era, the paradox of pursuing the “public interest” in the courts of an undemocratic, racist state has fallen away. But another paradox remains: In a country with political freedom seemingly won but economic freedom still a distant hope, what does public interest litigation have to contribute? … Public interest litigation in this context is best understood as the use of litigation to pursue objectives that extend beyond the interests of individual litigants in a case and that are normatively justifiable …
Although South African organisations define the content of those objectives differently, all frame them within the normative system of the Constitution and most associate public interest litigation specifically with human rights, constitutionalism and the pursuit of social justice …
Academic works on the development of constitutional jurisprudence have examined cases that resulted from public interest litigation and other campaign strategies aimed at the realisation of rights. These works have tended to focus on the development of legal doctrine, and usually prioritised the most well-known decisions of apex courts, especially the Constitutional Court.
Most have adopted the perspective of courts (or court-watchers), rather than of the activist-lawyers who ran the cases or of the individuals, communities, social movements and other clients whom they represented. In other words, court decisions and the law are analysed in great detail, without much attention being paid to the social actors who use the law, their tactics and strategies, and empirical evidence of the effect of their work.
More recently, there is an emerging body of work that attempts to map and analyse the value and effect of public interest litigation, including research reports supported by long-time funders of this work.
The authors of this volume offer a unique contribution to this debate, both in South Africa and in the international arena, regarding the potential of South African courts to contribute to social justice. They provide a grounded account and analysis by leading public interest lawyers who have actually litigated in the areas in which they write. Their accounts therefore go beyond law reports and academic discourse on landmark cases; they look beyond appellate courts to the breadth of litigation in the lower courts and particularly the high court, where most public interest litigation is conducted.
The contributors to this volume identify the key social actors involved: individuals, communities, social movements and civil society organisations that employ public interest litigation as a strategy for social change, often in parallel with other strategies and as part of broader campaigns.
Each chapter traces the development of public interest litigation in a particular area of law, observing techniques, tactics, doctrines and approaches that public interest lawyers and their adversaries employed. (The 10 areas of law include property rights, gender, basic services, healthcare, lesbian, gay, bisexual, transsexual and intersex equality, children’s rights, education, freedom of expression, access to information and prisoners’ rights.)
The authors analyse the effect of public interest litigation in those areas and predict the key frontiers of future contestation. Naturally, accounts by lawyers with an interest in presenting a positive picture of the work that they do should be approached critically, acknowledging the risk that lawyers may valorise the law and its potential …
To understand public interest litigation in South Africa today, one must appreciate how it evolved, what areas of contestation attracted public interest litigation and who was driving it at different points. In the Introduction, I provide an overview of the evolution of public interest litigation over three periods. The first was from the earliest use of the courts to resist colonial dispossession and injustice in the 19th century to the imposition of apartheid in 1948 and its implementation during the 1950s to 1970s.
The second period, beginning at the end of the 1970s, saw the establishment of dedicated public interest organisations, which used the law to resist apartheid. The third period is the constitutional era, which saw new actors emerge in the public interest sector, specialising in discrete areas …
One of the aims of this volume is to analyse and share accounts of public interest litigation in South Africa to enable a richer and fuller assessment of what it has achieved and what that means for the future of public interest litigation.
These contributions set the stage for a more informed discussion on the role of public interest litigation in achieving the constitutional vision of social justice, as well as reflecting on the strategies and tactics that are likely to be effective in the future.
This is an excerpt from Public Interest Litigation in South Africa (Juta), which includes contributions from more than 20 public interest lawyers. Jason Brickhill, the contributing editor, is an advocate and former director of the constitutional litigation unit of the Legal Resources Centre. He is completing a DPhil in law at the University of Oxford