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Public Interest Litigation in South AfricaJason Brickhill – an edited extract from the introduction1

PHParsons

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The development of Public Interest Litigation in South AfricaTo understand Public Interest Litigation (PIL) in South Africa today, one must appreciate how it evolved, what principal areas of contestation attracted PIL and who was driving it at different points. Here, I provide a brief overview of the evolution of PIL over three periods. The first was the period from the earliest use of the courts to resist colonial dispossession and injustice in the nineteenth century, through to the imposition of apartheid in 1948 and its implementation through the 1950s to the 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.

Public interest litigation in the struggle against colonialism and apartheid (nineteenth century–1978) [C]onstitutionalism and human rights were central normative underpinnings of the freedom struggle, as embodied in particu-lar by the ANC. Many of the ANC’s early leaders were them-selves lawyers, including Pixley Seme, Anton Lembede and Richard Msimang. Along with other lawyers, they turned to the courts for redress over issues of land dispossession, voting rights and racial classifications.2 This intensified under apart-heid, with an increase in defensive PIL in the form of political trials.3 Political activists were defended by a pool of individual attorneys and advocates from across the country, particularly by small black firms.4 However, the cost of litigation was mount-ing. Although there was a co-ordinated source of funding from 1960 through the South African Defence and Aid Fund (SADAF) and (after it was banned) the International Defence and Aid Fund from 1966,5 there were no institutions able to run these cases. PIL was prolific, but it was unco-ordinated, largely reac-tive and depended on individual lawyers taking on cases.

In the early period of apartheid, most strategic litigation was conducted as a defensive response to apartheid laws. In particular, a vast number of political trials were conducted. As former Deputy Chief Justice Dikgang Moseneke has explained, these court cases ‘became sites not only of mass mobilisation and resistance, but also of political or ideological contests. The accused, and so too, their counsel, claimed the space to display their superior notions of a just society’.6 The two most famous examples are the Treason Trial and the Rivonia Trial.

The Treason Trial of 1956 lasted until 1961 and resulted in the acquittal of the 156 accused, all prominent political or com-munity leaders. Although all were acquitted, the Treason Trial ruined many families, careers and livelihoods of the trialists and diminished the effectiveness of their political activism.7 Shulamith Muller was one of the attorneys in the 1956 Treason Trial and her practice was at the forefront of defending black South Africans persecuted by apartheid laws. In 1971, Muller was removed from the roll of attorneys at the behest of the Law Society as she was listed by the apartheid government as a ‘communist’. In 2005, she was posthumously re-enrolled.8

The Rivonia Trial, officially S v Mandela and Others, is a cen-tral strand of the history of South African resistance to apart-heid through the law. It resulted in the conviction of Nelson

TheFreedomCharterwrittenonthewallintheholdingcellsatthePalaceofJustice,Pretoria

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Mandela and many of the leadership of the ANC.9 They were sentenced to either life imprisonment or long periods of deten-tion. Many accounts have been given of the Rivonia Trial, in which the accused were represented by Joel Joffe as attorney, with a counsel team of Bram Fischer, Vernon Berrangé, Arthur Chaskalson and George Bizos. A year after the Rivonia Trial, Bram Fischer himself was convicted for furthering the aims of communism and conspiracy to overthrow the state.10 He spent the last decade of his life in custody. George Bizos was prob-ably involved in more of the political trials before and after the Rivonia Trial than any other lawyer in South Africa.11 He went on to work as counsel at the Legal Resources Centre (LRC), which was founded by Arthur Chaskalson. Chaskalson was later appointed by his former client, President Mandela, as the first President of the Constitutional Court of South Africa (later

Chief Justice). However, in addition to the iconic political tri-als such as the Treason Trial and the Rivonia Trial, there were scores of cases in which political activists were hauled before the courts. Many lawyers dedicated much of their careers to defending political activists and I can only provide a limited account here.

There were many lawyers, especially small firms of black at-torneys and sole practitioners across the country, who stepped forward to represent political activists throughout apartheid. The most famous of these was Mandela and Tambo Attorneys, which operated from 1952 to 1956.12 Other lawyers who took on many of the political trials of the apartheid period included Johannesburg attorneys such as Raymond Tucker, Godfrey Pitje (earlier an articled clerk at Mandela and Tambo),13 Shun Chetty and Priscilla Jana; in Pretoria, Maluleke, Seriti and Moseneke; in Durban, Griffiths and Victoria Mxenge; in the Cape, Ahmed Allie, Himie Bernadt, Siraj Desai, Cissie Gool, Essa Moosa, Dul-lah Omar, Michael Richman and Percy Sonn; in Port Elizabeth, Silas Nkanunu and Herbert Fischat; in Mthatha, Dumisa Nt-sebeza; and in East London, Ben Ntonga and Hintsa Siswa.14 Many of these lawyers were themselves imprisoned for political offences, including Nelson Mandela, Bram Fischer,15 Dikgang Moseneke,16 Dumisa Ntsebeza,17 Gcina Malindi,18 Albie Sachs19 and many others. Some, such as Tambo, Sachs, Joe Slovo and Duma Nokwe, South Africa’s first black advocate, joined the

“In addition to the iconic political trials such as the Treason Trial and the Rivonia Trial, there were scores of cases in which political activists were hauled before the courts. Many lawyers dedicated much of their careers to defending political activists…”

PublicInterestLitigationinSouthAfrica

GraffitibyFaith47onthesideofabuildinginMarketStreet,Johannesburg

Public Interest Litigation in South Africa

Public Interest Litigation in South Africa

Pub

lic In

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st Litiga

tion

in So

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Afric

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JASON BRICKHILL (Contributing Editor)

JASO

N BRIC

KHILL

www.jutalaw.co.za

Public Interest Litigation in South Africa offers a collection of grounded accounts – by leaders in the field – of the campaigns, cases, and causes that have defined key areas of public interest litigation in the country since the constitutional transition. The authors share their perspectives on the struggles led by people, communities, activists, and civil society organisations to realise the vision of the Constitution. This volume captures the legal narratives of those particular struggles in the hope that this will contribute to the broader, ongoing struggle for social justice.

Part One of the book considers general themes relating to public interest litigation. These include its history, the development of the public interest sector and the impact and value of public interest litigation; the role of international law in public interest litigation; the ethics and politics of public interest litigation; and constitutional procedure. Part Two addresses public interest litigation in ten key areas of law: property rights, gender, basic services, health care, LGBTI equality, children’s rights, basic education, freedom of expression, access to information, and prisoners’ rights.

Public Interest Litigation in South Africa seeks to share some of what has been achieved in the courts, beyond the well-trodden landmark appellate decisions, as a contribution to informed and critical engagement with litigation as a tool for social change.

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armed struggle and went into exile. Some, such as the coura-geous struggle lawyer couple, Griffiths and Victoria Mxenge, were murdered by the regime.

In the absence of formalised institutions to represent ac-cused persons in political trials, it was necessary to secure law-yers in private practice to represent them. This required funds. The Treason Trial Defence Fund was set up to secure represen-tation for the 156 accused in the Treason Trial, which dragged on for five years.20 In 1960, SADAF was established to fund political trials, and it later supported other civil and criminal litigation opposing apartheid.21 When SADAF was banned in 1966, the International Defence and Aid Fund was established in London to channel funds surreptitiously to lawyers defend-ing political activists.22

Even during apartheid, a conviction in a political trial was not inevitable and, accordingly, the law was employed to de-fend political activists with some notable acquittals.23 In addi-tion, some ‘losing cases’ were understood nevertheless to have significant impact, by providing a platform to articulate resist-ance to apartheid and to preserve the historical record. The series of inquests into the deaths of detained activists – each absolving the state – provides a powerful example.24

The establishment of dedicated public interest organisations (1978–1994) As apartheid – and the freedom struggle – intensified into the 1970s, discussions within the legal profession began to develop the idea of establishing organisations to engage in PIL to resist the daily rights violations of apartheid laws and even to seek to attack the legal architecture of apartheid itself. Eventually, in 1978–1979, having secured international seed funding, three or-ganisations were set up. Although today all three organisations employ full-time lawyers and conduct PIL, they were initially structured differently. The LRC was established as a public interest law firm. The Centre for Applied Legal Studies (CALS), based at the University of the Witwatersrand, was initially set up as a legal research institute, but soon also began to take cases of its own. Lawyers for Human Rights (LHR) was initially formed as a membership association for lawyers committed to doing human rights work. In the mid-1980s, it also took on permanent staff and began conducting PIL.Reflecting on the establishment of these three organisations at an event to mark their founding on their 35th ‘birthday’, Edwin Cameron explained:

The founding of CALS in 1978, by Professor John Dugard, and of the LRC in 1979, by Arthur Chaskalson and Felicia Ken-tridge, with Dugard’s backing and assistance, with LHR fol-lowing just a few years later, therefore represented the triumph of an idea – the belief that lawyers had an especial role and a particular responsibility in the face of gross injustice. That idea was animated by the iniquities of apartheid. But behind it lay a deeper belief about the nature of law itself. These lawyers’ oppo-sition to apartheid embodied the insight that law need not only oppress, separate, subordinate and exclude, but could be used and indeed should be used in the fulfilment of a deeper and bet-ter ordering of human society: that this was its true role.25

It was also during this period that the Black Lawyers As-sociation (BLA) was established.26 Initially set up as the Black Lawyers Discussion Group to address the professional needs of

black legal practitioners, the BLA later established the BLA Le-gal Centre, which ran programmes that provided professional training for black lawyers but also had the power to litigate in the public interest in exceptional circumstances.27 The BLA ran a number of programmes, including a placement programme that supported young black law graduates in placements with practising attorneys and a successful advocacy programme.28 Therefore, although the BLA did not conduct much PIL in its own name, it provided substantial support to public interest practice and its members were heavily involved in such cases. Almost all the early members of the BLA went on to become judges in democratic South Africa.29

During the 1970s and 1980s, social movements working in collaboration with activist lawyers undertook considerable PIL. Social movements, such as the trade unions, the churches, the United Democratic Front (UDF) and later the Mass Democratic Movement (MDM), identified the need, initiated the litigation and either acted as applicants or found suitable people to do so. They did not have the resources to hire lawyers, in any event not at commercial rates. They accordingly collaborated with CALS or the LRC, or with activist law firms. These law firms charged reduced rates and were subsidised by international funders, sometimes in clandestine fashion. This collaboration be-

tween social movements and activist lawyers generated a great deal of significant impact litigation, particularly in the 1980s.

The cumulative efforts of these various role-players – CALS, the LRC and LHR, as well as the BLA, Black Sash, social move-ments, private attorneys and advocates – generated a wide range of PIL with some important results. In addition to politi-cal trials and inquests, the period saw significant PIL in the areas of forced removals, pass laws, labour laws and censorship. Among the many forced removals cases, notable cases included the drawn-out struggle of the Bakwena ba Mogopa, who won an important victory in the Appellate Division after they had already been removed from their land.30

The decision made further forced removals difficult; it energised the community’s reoccupation of the land; and it contributed to the apartheid government’s settlement of the Mfengu land restitution claim. The dispossession of land was coupled with the enforcement of pass laws to implement geo-graphical apartheid. In respect of the pass laws, two of the most significant cases of the period were the Komani31 and Rikhoto32 cases litigated by the LRC. Komani involved a successful chal-lenge to regulations requiring the dependents of black workers to obtain permits to reside in white areas. Following the success in Komani, the LRC assisted approximately two hundred clients with similar cases the following year, launched proceedings over a dozen times and succeeded in rendering the system of

“Law firms charged reduced rates and were subsidised by international

funders, sometimes in clandestine fashion. This collaboration between

social movements and activist lawyers generated a great deal of significant impact litigation, particularly in the

1980s.”

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forcing dependents of black workers to obtain permits inef-fectual. Rikhoto concerned the problem that black workers who were employed in white areas could not acquire urban resi-dence even after ten years’ employment with a single employer, because the authorities considered annual leave as terminating the employment contract. The court held that annual leave did not interrupt continuous employment.

In 1980, legislative reforms resulted in the recognition for the first time of black trade unions, revolutionising labour rela-tions in South Africa. CALS and the related private firm, Chea-dle Thompson & Haysom, entered this new space and secured important victories on behalf of the new trade union sector. Important areas of PIL during this period were the protection of union leadership against victimisation, the acquisition of organisational and bargaining rights and protection of striking workers.33

Censorship was a central strategy of apartheid, and also a site of resistance. CALS, in particular, ran a large number of successful cases challenging censorship of material and the banning of particular newspapers or publications.34 Notable examples included challenges by the UDF to censorship of the Argus and Saan Newspapers,35 and the unsuccessful attempts to prevent the shutdown of the New Nation.36 The successful appeal before the Publications Appeal Board to unban the Free-dom Charter meant that many of the affiliates of the UDF and the trade unions adopted it as their manifesto.37

Across the areas of forced removals, pass laws, labour rights and censorship, the courts were therefore an important site of struggle in which some significant victories were secured. Geoff

Budlender, writing in 1988, put the PIL victories of this period in perspective:

It is important that the famous victories of the past few years should not mislead one into the failure to recognise a depressing reality. For many South Africans, the law is not an effective protection against those who have greater political, economic or physical power. This is perhaps most stark in the transparent failure of the authorities to take effective action to stop or even curb vigilante activities. In some parts of the coun-try, people are afraid even to approach the courts for an inter-dict against threatened violence, for fear that this will trigger reprisals by people who seem totally confident that their actions will go unpunished.38

But through the throes of the dying apartheid system, South Africa made the transition to democracy and the interim Consti-tution was adopted in 1993. This heralded a new era for PIL.

Growth and specialisation of the sector in the constitutional era (1994–present) After 1994, South Africa saw continuing growth in the PIL sec-tor. Alongside the three existing generalist PIL organisations, namely CALS, the LRC and LHR, new specialist organisations were established to work in particular substantive areas. The first of these were the Centre for Child Law (CCL) and Wom-en’s Legal Centre (WLC) in 1998 and 1999, established shortly after the Constitution came into effect. As the chapters in this volume discussing PIL on children’s rights and gender demon-strate, it is misleading to describe these as ‘single-issue’ organi-sations, given the breadth and complexity of these areas of law

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and the interconnectedness and overlap of rights.The Southern African Litigation Centre (SALC), established

in 2005, had a different focus to all the domestic organisations that already existed. It was the first PIL organisation to adopt a regional focus on litigating human rights and rule of law is-sues in Southern African countries. From 2009, the sector saw the establishment of several more organisations with a focus on socio-economic rights. The Centre for Environmental Rights (CER) and the Socio-Economic Rights Institute of South Africa (SERI) were both established in 2009, with SECTION27 – also a socio-economic rights organisation – set up the following year in 2010.

Subsequently, two organisations were launched that now engage in movement lawyering. Ndifuna Ukwazi (NU), which focuses on urban land and housing, was founded as a non-prof-it organisation allied to the Reclaim the City campaign in 2011, and later registered as a law clinic in 2015. Equal Education Law Centre (EELC) similarly grew out of a social movement, Equal Education (EE). It was founded in 2012 as a specialist education law centre. In the next section, I describe the PIL sector in more detail, including the other role-players such as clients, funders and other partners.

The Public Interest Law sector todayPIL should not be the exclusive preserve of dedicated public interest law organisations or ‘educated Constitutional Court watchers’.39 The Constitution must infuse all law, and every litigant – especially poor people and communities – must have access to the courts. The Constitutional Court recently confirmed that, at least in some cases, the right of access to courts in s 34 of the Constitution may require the state to provide free legal representation in civil matters.40 But the reality is that Legal Aid South Africa, the statutory entity responsible for discharging the state’s legal aid duties, provides legal aid in only very narrow categories of civil matters, to a small proportion of the people who need it.41 In the absence of state-aided civil legal aid, it is left to law clinics and public interest organisations to fill the gap.42 PIL is complex, expensive and requires extensive evidence-gathering and legal expertise.

In Mazibuko, towards the end of a judgment in which the court rejected a public interest case seeking to enforce the right to water, O’Regan J recognised the important role of public in-terest organisations in bringing socio-economic rights litigation:

It is true that litigation of this sort is expensive and requires great expertise. South Africa is fortunate to have a range of non-governmental organisations working in the legal arena seeking improvement in the lives of poor South Africans. Long may that be so. These organisations have developed an expertise in litigating in the interests of the poor to the great benefit of our society. The approach to costs in constitutional matters means that litigation launched in a serious attempt to further constitu-tional rights, even if unsuccessful, will not result in an adverse costs order. The challenges posed by social and economic rights litigation are significant, but given the benefits that it can offer, it should be pursued.43

The public interest sector today works across all areas of human rights law. The Constitutional Court has recognised its collective impact. In Biowatch, Sachs J paused to observe:

Interventions by public interest groups have led to important

decisions concerning the rights of the homeless, refugees, pris-oners on death row, prisoners generally, prisoners imprisoned for civil debt and the landless. There has also been pioneering litigation brought by groups concerned with gender equality, the rights of the child, cases concerned with upholding the constitutional rights of gay men and lesbian women, and in relation to freedom of expression.44

Today, the public interest sector is increasingly specialised and varied in its approach, but also increasingly cohesive and able to act collectively. Once a year, the sector comes together for the Public Interest Law Gathering (PILG), which has taken place annually since 2011.45 PILG brings together ‘public interest legal practitioners and organisations, law students, paralegals, social movement leaders and legal academics with the aim of serving as a focal point for professionals in the field to share and develop knowledge’. It is organised by a co-ordinating committee comprising public interest organisations, including CALS, the EELC, LHR, the LRC, ProBono.Org, SALC, SEC-TION27, SERI, Students for Law and Social Justice (SLSJ), and the School of Law at the University of the Witwatersrand. PILG is just one manifestation of the collaborative approach of the sector. Indeed, as the sector has grown, the collaboration among organisations has deepened.46 Collaboration is vital for several reasons: advancing claims for social justice on behalf of commu-nities often requires a joint approach, or at least co-ordination; this can be strategically effective and increase the effectiveness of litigation; it optimises the use of limited resources; and the issues are complex, benefiting from the expertise and insights of different organisations and individuals.47

The sector now includes the three public interest law organisations established in the late 1970s as what has been described as a ‘three-pronged assault on apartheid’48 — the LRC, LHR and CALS. It also includes a growing number of newer organisations focusing on a particular area of law. The newer organisations work in the areas of women’s rights and gender,49 socio-economic rights,50 children’s rights,51 freedom of expression,52 environmental justice53 and education rights.54 The newer, specialist public interest organisations all operate from one urban centre and all are based in Johannesburg, Pretoria or Cape Town. The LRC and LHR remain the only organisations that operate nationally. As the public interest sector grew, it also saw a diversification of strategies and an increase in the amount of litigation undertaken by these organisations. University law clinics also provide valuable legal services across the country, including engaging in PIL from time to time. Their focus, how-ever, is on providing advice and assistance to walk-in clients. In addition, some private firms of attorneys and some advocates at the Bar engage in PIL, often on a pro bono basis.

In addition to the dedicated public interest sector, South Africa has also experienced growth in the number of civil soci-ety organisations that employ litigation as but one strategy to

“It is true that litigation of this sort is expensive and requires great expertise.

South Africa is fortunate to have a range of non-governmental organisations working in the legal arena seeking improvement in the

lives of poor South Africans. “

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seek and effect systemic change. Social movements, such as the Treatment Action Campaign (TAC),55 Abahlali Base Mjondolo,56 EE,57 the Right2Know Campaign,58 Reclaim the City59 and the Social Justice Coalition have demonstrated the potential of movement lawyering. In addition, non-governmental organisa-tions (NGOs) such as Corruption Watch,60 the Council for the Advancement of the South African Constitution (CASAC),61 the Helen Suzman Foundation (HSF),62 Freedom Under Law (FUL)63 and Sonke Gender Justice have increasingly not only intervened in PIL but also initiated it. More recently, formal political movements, including opposition political parties, have increased their use of strategic litigation. The opposition political parties, the Democratic Alliance (DA)64 and the Eco-nomic Freedom Fighters (EFF),65 in particular, have engaged in significant strategic litigation (though it is arguable whether such cases constitute PIL).

The PIL sector therefore consists of a range of organisations. Three are generalist public interest law centres, while the oth-ers specialise in substantive areas of law. The organisations also vary in their structure, positionality and approaches to PIL. While some organisations, such as SECTION27, the EELC and NU adopt an avowedly ‘activist’ approach, others such as the LRC and LHR operate more in the mode of law firms represent-ing their clients. A

Endnotes1 This is an excerpt from chapter 1: Introduction. My thanks go to the other contributors

to the volume, and to Sanya Samtani for helping me to identify a suitable extract. The excerpt omits some portions of the original chapter, each omission reflected with an ellipsis, and there are minor edits to the references to amend cross-references for purposes of the excerpt.

2 Tembeka Ngcukaitobi The Land is Ours: South Africa’s First Black Lawyers and the Birth of Constitutionalism (2018).

3 Rick Abel Politics by Other Means: Law in the Struggle Against Apartheid, 1980-1994 (1995).

4 Dikgang Moseneke My Own Liberator: A Memoir (2016) 208–125 Mary McClymont, Stephen Golub & Ford Foundation (eds) Many Roads to Justice:

The Law-Related Work of Ford Foundation Grantees around the World (2000) 22.6 Moseneke (note 4 above) 209.7 Ibid 208.8 Ruth Nathanya Muller A Certain Legal Practitioner: Reconstructing the Life of Shu-

lamith Muller (unpublished LLM thesis, Wits, 2012).9 See Joel Joffe The State vs. Nelson Mandela: The Trial that Changed South Africa

(2007).10 Stephen Clingman Bram Fischer: Afrikaner Revolutionary (1998). 11 George Bizos Odyssey to Freedom (2007).12 Moseneke (note 4 above) 208.13 Pitje was himself convicted for refusing a magistrate’s instruction to move to a table

designated for black lawyers and insisting on sitting at the table designated for whites. The Appellate Division upheld his conviction in R v Pitje 1960 (4) SA 709 (A).

14 Ibid 210–12. Geoff Budlender drew my attention to additional attorneys who did this work apart from those mentioned in Moseneke (note 4 above).

15 See Clingman (note 10 above).16 See Moseneke (note 4 above).17 See Dumisa Ntsebeza ‘Address by the Incoming Chancellor of the University of Fort

Hare, Advocate Dumisa Buhle Ntsebeza SC, on the occasion of his inauguration and investiture’ 3 May 2017 10–11, last accessed on 1 June 2018 from <http://

www.ufh.ac.za/files/ Chancellors%20Address.pdf>. Ntsebeza was imprisoned for four years, during which he completed his law degree. He later served as a com-missioner of the Truth and Reconciliation Commission. Recently, he represented the families of the deceased mineworkers in the Marikana Commission of Inquiry.

18 A key member of the BLA and the National Association of Democratic Lawyers (NADEL). Malindi was one of the accused in the Delmas Trial. He was convicted and spent five years on Robben Island, where he studied law.

19 See Albie Sachs The Jail Diary of Albie Sachs (1990). Sachs, in 1988, survived an assassination attempt in which he lost an arm and the sight of one eye. He went on to serve as a justice on the first bench of the Constitutional Court.

20 McClymont et al (note 5 above) 22.21 Ibid.22 Ibid.23 One significant acquittal was the Pietermaritzburg Treason Trial in 1984, in which

16 leaders from the South African Allied Workers Union, the United Democratic Front and the Transvaal or Natal Indian Congress were tried for treason. See S v Ramgobin and Others 1986 (1) SA 68 (N).

24 George Bizos No One to Blame (1998) describes a number of inquests into the deaths in custody of political activists, including Ahmed Timol, Steve Biko, Simon Mndawe, Neil Aggett and the ‘Cradock Four’ of Matthew Goniwe, Fort Calata, Sparrow Mkhonto and Sicelo Mhlauli. Every inquest discussed by Bizos resulted in a finding that the authorities were not responsible. However, the inquests drew the world’s attention to the deaths in custody and secured a historical record of the events. Recently, with the support of Bizos, the 1972 inquest of Ahmed Timol was successfully reopened, and the original decision replaced with a finding of murder by state agents. See The Re-opened Inquest into the Death of Ahmed Essop Timol [2017] ZAGPPHC 652.

25 Edwin Cameron ‘Remarks at the celebration of the founding of CALS, the LRC and LHR at the Public Interest Law Gathering’ 24 July 2014, last accessed on 1 June 2018 from <http:// www.publicinterestlawgathering.com/justice-cameron-speech-pilg-2014-24-july/>.

26 For an overview of the history of the BLA written by one of its founders, see Moseneke (note 4 above) 206–20.

27 Ibid 216.28 Ibid 217.29 Ibid 220.30 More v Minister of Co-operation and Development 1985 ZASCA 89; 1986 (1) SA

102 (A); Abel (note 3 above) 385–433; Gilbert Marcus ‘Section 5 of the Black Ad-ministration Act: The case of the Bakwena ba Mogopa’ in C Murray & C O’Regan (eds) No Place to Rest: Forced Removals and the Law in South Africa (1990) 20. Geoff Budlender provided useful comments on the impact of this case.

31 Komani NO v Bantu Affairs Administration Board, Peninsula Area 1980 (4) SA 448 (A).

32 Oos-Randse Administrasieraad v Rikhoto 1983 (3) SA 595 (A).33 Clive Thompson ‘Trade Unions Using the Law’ in Hugh Corder (ed) Essays on Law

and Social Practice in South Africa (1988) 340–5.34 See Gilbert Marcus ‘Reasonable censorship’ in Hugh Corder (ed) Essays on Law

and Social Practice in South Africa (1988).35 Abel (note 3 above) 263.36 Catholic Bishops’ Publishing Co v State President and Another 1990 (1) SA 849 (A).37 CALS successfully overturned the banning of the Freedom Charter before the Pub-

lications Appeal Board in 1983. See interview with Gilbert Marcus, 17, LRC Oral History Project, archived in the Historical Papers Research Archive of the University of the Witwatersrand last accessed from <www.historicalpapers.wits.ac.za> on 1 June 2018.

38 Geoff Budlender ‘On practising law’ in Hugh Corder (ed) Essays on Law and Social Practice in South Africa (1988) 331.

39 Tshepo Madlingozi ‘The Constitutional Court, court watchers and the commons: A reply to Professor Michelman on constitutional dialogue, ‘‘interpretive charity’’ and the citizenry as Sangomas: Lead essay/response’ (2008) 1 CCR 63, 74.

40 Legal Aid South Africa v Magidiwana and Others [2015] ZACC 28; 2015 (6) SA 494 (CC) paras 22–7.

41 Jason Brickhill & Christine Grobler ‘The right to civil legal aid in South Africa: Legal Aid South Africa v Magidiwana’ (2016) 8 CCR 256–282.

42 Jason Brickhill ‘The right to a fair civil trial: The duties of lawyers and law students to act pro bono’ (2005) 21 SAJHR 293, 303–7.

43 Mazibuko and Others v City of Johannesburg and Others [2009] ZACC 28; 2010 (4) SA 1 (CC).

44 Biowatch Trust v Registrar Genetic Resources and Others [2009] ZACC 14; 2009 (6) SA 232 (CC) para 19.

45 See the PILG website, last accessed from <www.publicinterestlawgathering.com> on 27 May 2018.

46 Socio-Economic Rights Institute of South Africa Public Interest Legal Services in South Africa: Project Report (2015) 64–96.

47 Ibid 67.48 Interview with John Dugard, LRC Oral History Project (note 37 above) 18.49 The WLC and Sonke Gender Justice.50 The ALP, which was later subsumed in SECTION27; SERI; and NU.51 The CCL.52 The Freedom of Expression Institute (FXI).

“In addition to the dedicated public interest sector, South Africa has also experienced growth in the number of civil society organisations that employ litigation as but one strategy to seek and effect systemic change. “

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53 The CER and Natural Justice.54 The EELC, which works closely with the social movement, EE.55 See Mark Heywood ‘South Africa’s Treatment Action Campaign: Combining law and

social mobilization to realize the right to health’ (2009) 1 JHRP 14–36; Minister of Health and Others v Treatment Action Campaign and Others (No 2) [2002] ZACC 15; 2002 (5) SA 721 (CC).

56 See eg, Abahlali Basemjondolo Movement SA v Premier of the Province of KwaZulu-Natal and Others [2009] ZACC 31; 2010 (2) BCLR 99 (CC).

57 See generally, chapter 11, Cameron McConnachie & Samantha Brener ‘Litigating the right to basic education’ and see the discussion of the work of the EELC below.

58 See chapter 13, Dario Milo & Avani Singh ‘Access to information’; Right2Know Campaign and Another v Minister of Police and Another [2014] ZAGPJHC 343; [2015] 1 All SA 367 (GJ).

59 See the discussion of the work of NU in partnership with Reclaim the City below.60 See eg, Corruption Watch (RF) NPC and Another v President of the Republic of South

Africa and Others; Council for the Advancement of the South African Constitution v President of the Republic of South Africa and Others [2017] ZAGPPHC 743; [2018] 1 All SA 471 (GP). The case involved a successful application to set aside a settle-ment agreement between former President Zuma and former National Director of Public Prosecutions (NDPP).

61 Ibid. 62 See eg, Helen Suzman Foundation v Judicial Service Commission [2018] ZACC 8.

The case concerned an application to compel the JSC to disclose the record of its deliberations in a review of a decision regarding judicial appointments.

63 See eg, Justice Alliance of South Africa v President of Republic of South Africa and Others, Freedom Under Law v President of Republic of South Africa and Others, Centre for Applied Legal Studies and Another v President of Republic of South Africa and Others [2011] ZACC 23; 2011 (5) SA 388 (CC). The case involved a successful challenge to legislation extending the term of the Chief Justice.

64 Perhaps most notably, Democratic Alliance v President of South Africa and Others [2012] ZACC 24; 2013 (1) SA 248 (CC), in which the DA successfully challenged the appointment of the NDPP and had it set aside.

65 In a recent line of three cases, the EFF (along with other opposition parties) ap-proached the courts in support of its attempts to impeach former President Zuma. See Economic Freedom Fighters v Speaker of the National Assembly and Others; Democratic Alliance v Speaker of the National Assembly and Others [2016] ZACC 11; 2016 (3) SA 580 (CC), in which the court found a report by the Public Protector recommending that President Zuma pay money back to the state in connection with upgrades to his residence to be binding; United Democratic Movement v Speaker of the National Assembly and Others [2017] ZACC 21; 2017 (5) SA 300 (CC), in which the court set aside a decision of the Speaker not to hold a secret ballot in a vote of no confidence against the President; and Economic Freedom Fighters and Others v Speaker of the National Assembly and Another [2017] ZACC 47; 2018 (2) SA 571 (CC), in which the court ordered Parliament to make rules regulating the removal of a President.

PublicInterestLitigationinSouthAfrica

Thejudges’viewintheConstitutionalCourt

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