By Justice Dhaya Pillay
I am troubled by the inequality in our society despite our grand Constitution. My concern is that the impact of apartheid plagues black and poor people who seem reticent about challenging their circumstances. Public interest law practised strategically has and could continue to advance our constitutional project.
My definition of public interest law is law that impacts the interests of the public, and particularly, law that advances the rights of the vulnerable, the poor and the disadvantaged. Litigation is not the only means of achieving these goals. Advocacy and participation in drafting and commenting on legislation are some activities of PIL practitioners. Typically the impact of PIL decisions have ripple effects. Whereas in the past our primary target was the State, today any person, corporate or human, can be held to account for violations of constitutional rights.
Unfortunately, one of the greatest obstacles to PIL is “inequality of arms” – meaning that access to the courts is often out of reach. Except for a few NGO’s, public spirited lawyers, Public interest law firms and to some extent Legal Aid SA, the road to our courts is closed or at best bumpy and potholed. Could this be a reason for poor communities resorting to marches, violence and demonstrations?
Recent events in two spheres of social services demonstrate the importance of public interest law for the development of sound enduring jurisprudence:
Recently, Minister of Health Aaron Motsoaledi was in a heated radio debate with Leon Louw of the Free Market Foundation on the pros and cons of regulating alcohol usage and advertising. This debate is hard for courts to resolve. South African Breweries redistributes wealth by employing a huge workforce, reaching out to rural areas of South Africa, paying taxes and paying much needed dividends to pension funds. Regulating alcohol sales could have the unintended consequence of impairing SAB’s capacity to redistribute wealth. At the same time, hardly a serious crime is committed without offenders drinking alcohol. From this single issue of regulating alcohol usage, at least four sectors have an interest in decisions – judges, economists, psychologists, community health practitioners, etc. Imagine if any one party was omitted from the debate?
Finding enduring solutions is also a theme in basic education. Recently, SADTU threatened to go slow until the Department of Education re-instates a collective agreement providing a rural allowance. The rights engaged in this dispute include not only the right to fair labour practices and to education, but also the protection that ‘a child’s best interests are of paramount importance in every matter concerning the child’. Education is technically not an essential service in the sense that if interrupted it will not result in a risk to life, health and personal safety. However, education is essential to other important constitutional values and rights. To entrust a court with the task of making a decision in this case without full evidence would be irresponsible.
It may not always be possible to decide between right and wrong, instead striking a balance between competing rights may be the only option. For that, public participation through non governmental organisations and PIL is indispensable.
PIL practitioners may find that some cases have better prospects of success through mediation than litigation. The CC was recommended mediation in an eviction case in Port Elizabeth Municipality. In Mazibuko v City of Johannesburg the City of Johannesburg restricted Phiri residents to 25 litres of free water per person per day. The High Court upheld the residents’ argument and awarded 50 litres per person per day. The Supreme Court of Appeal concluded that 42 litres of water per person per day was sufficient. In contrast, the Constitutional Court declined to decide the issue preferring to leave the decision to the legislature and the executive to investigate. Would mediation have worked better in this case?
In contrast, the CC created a new socio-economic right to electricity in Leon Joseph v City of Johannesburg. Alas for these residents’ victory was phyrric. By the time it took for the case to go to the CC, vandals had stripped the building of electrical wiring. But SERI used this precedent to reconnect electricity for low income residents in Soweto.
No matter how well a PIL is presented, it counts for nought if implementation is not possible. Organisational capabilities need to be structured into the practice of PIL to to yield the most effective remedies.
Justice Dhaya Pillay is judge of the High Court, KZN. This post is based on the 11th Victoria and Griffiths Mxenge Memorial Lecture, which Justice Pillay delivered at UKZN in May 2013.