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Strategic Evaluation Of Public Interest Litigation In South Africa

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Executive summary

This report will be of relevance to anyone interested in human rights,
advocacy and the law generally. It is a public document, so please feel
free to distribute it widely.

Key findings in this report may be divided into three parts.
 
Challenges

We identified the key challenges facing the public interest litigation
environment in South Africa:

·      The major challenge facing the public interest litigation environment in South Africa is a lack of funding and resources. This challenge is also substantially responsible for the second major challenge, that is the inability of public interest organisations to attract and retain sufficient numbers of quality personnel.
·      These challenges are matters of significant concern. As we have indicated, international research suggests that progressive constitutions and progressive judges - both of which South Africa undoubtedly possesses - are insufficient to achieve substantial progress on human rights unless there are sufficient resources to sustain “support structures” - in the form of rights advocacy organisations
and rights-advocacy lawyers - for legal mobilisation.
·      Given the massive inequality and poverty continuing to face outh Africa, we are concerned that if organisations engaged in this work do not receive sufficient support, there is a danger that the gains of the last few years will be undermined.


Strategies

To achieve maximum impact, we have identified four strategies that
should be used in combination in order to achieve social change:

·      public information campaigns that inform ordinary people of their rights
·      advice and assistance in order to enable people to claim their rights
·      social mobilisation and advocacy, to assert rights both inside and outside the courts
·      public interest litigation to enable poor or marginalised groups to achieve impact and success that would not otherwise be available to them.


Success Factors

We concluded that in order to achieve social change via litigation, it
is critical that the litigation be properly conceptualised, run and
followed up. In this regard we identified seven factors that are
essential to ensuring that public interest litigation succeeds and
achieves maximum social change, including:

·      proper organisations of clients

·      overall long-term strategy through a series of cases, brought on different but related issues over a substantial period

·      co-ordination and information sharing between multiple organisations with similar aims

·      timing when the climate is right and until the relevant evidence is in place

·      detailed research in advance of, and during, the litigation including using foreign law and international law

·      the “characterisation debate” - ensuring that the case is brought under the appropriate right and is correctly pitched to the court

·      proper follow-up and enforcement after the litigation ensuring ractical benefits for those not directly involved in the litigation at all.

South Africa’s Constitution is one of the most progressive in the
world. It includes powerful and far-reaching provisions, including those
related 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.
 
Atlantic Philanthropies - South Africa Office: link to full-text

Thanks to Dilshaad Brey for this information