When Litigation Serves a Greater Purpose

Faith47’s artwork in Cape Town depicting the words, “All shall be equal before the law”

In a recent article published by the Mail and Guardian, it feels as if the writer failed to give a comprehensive and considered account of another perspective on the current education crisis and it is the purpose of this post to respond to the article.

While I can only assume that the purpose of the piece is to articulate a case study account of ways in which civil society organisations go about the business of implementing education initiatives, and while I concede that it is necessary to explore the different means through which it is possible to achieve certain education-related goals, the article gives the inference that legal initiatives aimed at promoting the right to education are confrontational and ineffective. I can only surmise this due to the fact that the paragraph detailing recent education cases is left unexplained; subsequently looking accusatory in the context of an article which carries a pointedly positive spin on the Kagiso Trust.

The Trust’s project, which is discussed in some detail, may be an important and effective programme but this point is circumscribed by the way in which the Kagiso Trust chief executive Kgotso Schoeman is quoted. “At Kagiso Trust we ask ourselves: ‘How do we help the government spend its money?’” He is then quoted as saying that, “We never make the government feel threatened. We try to build a strong and trusting relationship with it and only then do we start the robust discussions.”

Placed within the context of the paragraph on recent education litigation, one wonders about the intention of using these particular remarks. If the point is to critique the way in which civil society engages with government, then it is important to understand why legal NGOs litigate and the process adopted when confronted by a human right’s issue. For many people reading about education litigation, they are only being made aware of a small part of the process. Little is mentioned about the negotiations which happen prior to a case or the number of other cases which have been settled outside of the courts. Generally, nothing is mentioned of the time, patience and ultimate frustration which lies behind these actions, where the expense of appearing in court is held off until there is no other option for redress. The intention is not to threaten government; instead NGOs are generally open to debate or discussion with government in order to find an acceptable path to a solution.

In fact, I would go so far as to mention the irony of thinking that litigation is an act against government in respect of education cases. Often public interest litigation organisations are staffed by people who were fighting for democracy during Apartheid, fully supportive of the new government which came into power in 1994. The generic terminology for their organisations points at the principle which drives their work; if they feel litigation is in the interests of the public then they will pursue the litigation. This is not an “us against them” scenario, but an attempt to advance certain values.

Being part of a public interest litigation orientated organisation doesn’t result in the repudiation of other initiatives, however. When society requires mobilisation around an issue, it necessitates all kinds of initiatives. However, it is frustrating to see the negation of the need for a legal remedy just because a court case is perceived to be a battle against government.

Litigation is a necessary instrument in our democracy and public interest law firms are the basic machinery of this. As Faranaaz Veriava says in a recent article in the Mail and Guardian, “The value of litigation, however, lies in the ability of social movements to use it strategically as a key tool in a broader campaign of direct action.” In this she recognises the value of litigation in giving additional leverage to movements.

Public interest litigation is necessary in every country throughout the world. A right on paper is only as good as its implementation. Public interest law firms are essentially partners in the implementation process; giving the poor, marginalised and disenfranchised the power to pursue their rights. South Africa is one of few countries in Africa which recognises that people require assistance in courts, helping to equalise the law by making it applicable to everyone and by providing the poor with legal aid in order to give their rights substance. A court order has the additional strength of longevity and enforceability, and the bonus of precedential or common application.

Sometimes, when no one else seems capable, public interest law firms will take the initiative to equalise the law on a universal level, recognising the power of a court order over and above the protracted and sometimes difficult process of negotiations or civil mobilisation. When it comes to the Limpopo textbook saga, commentators after ask why the teachers, principals or parents didn’t do something before. But when these people are silenced, then it may be necessary to take a direct route, which may be observed as confrontational, but really shows the degree of perceived necessity.

Recent education cases must be recognised as vital to the pursuit of a quality education. Equal Education’s norms and standards case will be an effective way to guarantee that the Department of Basic Education sets out standards for education, giving the right to education a substantive framework from which to move forward. The LRC’s post provisioning case recognises the role of teachers in education and highlights the various administrative issues which substantially impact on education. These cases will both support, and be supported by, the recent Limpopo textbook case.

Most importantly, however, all of these cases will act as a guides, supplements or powerful tools for any additional or complementary activity or initiative. The mutually-reinforcing quality of all initiatives implemented in this country need to be acknowledged, not negated.

By: Claire Martens

Disclaimer: The opinions expressed by the Realising Rights bloggers and those providing comments are theirs alone, and do not reflect the opinions of the Legal Resources Centre. The Legal Resources Centre is not responsible for the accuracy of any of the information supplied by the bloggers.

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The Legal Resources Centre is a public interest law clinic established in South Africa in 1979

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