Authored By: Kimberley Prisca Mujumi
University of Witwatersrand
Abstract
While taking a different route to traditional litigation in that it is barely instituted by the aggrieved party individually, it plays a pivotal role in protecting the rights of the general public and can serve as a tool for ensuring a balance of power. This article will first provide a brief overview of the development and journey of Public Interest Litigation, then provide an assessment of theoretical frameworks of public interest litigation with reference to whether litigation is successful only when it delivers tangible, practical benefits for litigants, or rights will exist on paper only. The paper will then critically apply the different theories to the case of Sustaining the Wild Coast NPC and Others v Minister of Mineral Resources and Energy and Others (3491/2021) [2022].
Introduction
The history of South African law, which is characterised by inequality and disregard of socio-economic rights of the then black majority, has placed Public Interest litigation (PIL) in South Africa in a critical position as the responsibility of restoration has been placed on it . It has become one of the vehicles used in the advancement of human rights, equality, and more so to correct past wrongs. PIL is primarily used as a vehicle for the advancement of human rights, equality, and other issues that are of public importance. The main question, therefore, becomes “whether litigation should be considered successful only when it delivers tangible, practical benefits for litigants, or can the development of jurisprudence, political mobilisation, and symbolic victories also constitute meaningful success?” The Scholarly views considering PIL are not in any way apparent as they differ in terms of approach and conceptualisation, and scholars have not reached an apparent consensus on how to measure and or determine the success, value, and impact of public interest litigation.
Definition and Development of Public Interest Litigation:
The Black’s Law Dictionary has defined Public Interest Litigation as “a legal action initiated in a court of law for the enforcement of public interest or general interest in which the public or class of the community have pecuniary interest or some interest by which their legal rights or liabilities are affected”.[1] This definition gives the implication that the results of the litigation have an impact on the community at large hence the recourse should be to its benefit. PIL in South Africa has moved through major dispensations, and each period has brought about major developments. Before 1994 PIL was not fully developed, and it was very limited in its expressions and manifestations due to an unfavourable political climate that had black people as inferior and marginalised.[2] This period was characterized by human rights violations, thus making it difficult for the rule of law and PIL to be fully useful. It should be noted that in as much as there were all these violations, there was an effort from the government to present itself as an upright sovereign that respects the rule of law, thus creating room for PIL even though limited. Between 1994 and 2000, there was a major shift ushered in by the introduction of a constitutional era and judicial structure. The introduction of the Bill of Rights and Constitution brought empowerment to PIL. It became one of the major vehicles for implementing the newly introduced socio-economic rights; thus, a responsibility was placed on the shoulders of PIL to bring equality. Major changes started from 2000 to this day, and PIL has had a paradigm shift from the time it initially started. Organisations have now been formed to further the PIL agenda.
Theories of assessing the impact of PIL:
Brickhill’s theory combines the materialistic approach and legal mobilisation, and subsequently submits that three subcategories can be used to measure impact, these are material, political, and legal effects.[3] The first two categories are directly linked to the material and legal mobilisation approach, respectively. He provides that the third is legal impact, as is exemplified in the case of Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) is a change or development of the law.[4] In this case, the Court developed the test of reasonableness. Brickhill argues against the submission of other various scholars that the legal mobilisation and materialistic approaches compete by providing that the two are not in competition.[5] He argues that in evaluating the success or failure of a case, the first step is to distinguish between the success of a case and the impact a case has in that regard.4 Success in this theory is therefore directly linked to litigation meeting the objectives of that case. The success of litigation is vital because it determines the practicality and enforceability of the rights that are already available on paper. It has been argued that South Africa has one of the best Constitutions in the whole wide world, but this is only theoretical and not practical as the relationship between the law and what is happening in South Africa cannot be tallied. Brickhill suggests that Impact considers a wide range of factors which include but are not limited to assessing if the case bears any results.[6] As such the best way to evaluate litigation as asserted by Brickhill is to evaluate its impact against constitutional values, values of social justice, democracy, and the rule of law in general. The above approach will be subsequently referred to as the theory of impact which as noted above multifaceted with the mention of legal, material, and political impact of the course of litigation. With reference to this approach litigation is said to have been successful if it is impactful in that regard, mention needs to be had as to what change or impact it brings. As such in accordance with this approach, litigation is said to have been successful if it realises such impacts which are most likely to be tangible in their nature. Ligation is often linked to social movements that underly it to see if change is realisable, in essence ligation is not enough if it has no political support.[7] It can also hamper change by drawing away resources from organisations that have been formed to effect change. Ligation can offset a movement that seeks to counter-change.[8] Hence if viewed in terms of the political, legal and material impact with reference to the said aims of the ligating parties, litigation can then be said to have been successful if it has the effect to change the law, has material impact and reimagines/restructures the dictates of power in relations to what the aims of the litigation party/s are.
Legal mobilisation:
The theory of legal mobilisation was founded by international scholar, Michael Mc Cann and it was formed as a response to the material approach. According to this theory, the success of litigation is determined by its capability to create awareness and propagate social engagement. This is directly linked to the mobilisation of people (the general public). McCann holds that litigation should not primarily be measured on a single lawsuit but based on its ability to effect legal mobilisation and jurisprudence in which the people engaged in the struggle. This broadens the horizons of public interest litigation and does not confine it to decision but that the effects and how individuals have taken part and participated in a movement. Dugard who is also an advocate of legal mobilisation holds that litigation contributes to redefining the terms of disputes among various social groups both in short- and longterm periods.[9] As such it is held that successful public interest litigation is not necessarily about winning court cases, but it is more of a long-term engagement with a range of different factors, as such when located in a space of broader mobilisation, it can be said to be politics by other means. [10] Legal mobilisation moves away from reliance on the court order but rather casts a wider net beyond the scope of the materialist approach by expanding the resources and the leverage of a successful litigation and thus shifts the power. This can include non-material political or symbolic factors which are not so obvious; however, they can have profound significance on the consequences of litigation and politics. Proponents of legal mobilisation theory often cite the Treatment Action Campaign as an example of legal mobilisation success. In this case, the social movement successfully rallied for the government to provide HIV/AIDS treatment to those affected.
Materialistic Approach:
The materialistic approach theory is one of the most prominent theories of public interest litigation which is largely supported by international scholar Rosenberg. The scholar argues that the Judiciary can only be able to pass influential judgements which positively impact social change if they have the political support. This suggests that there is an inseparable relationship between the judiciary and politics which makes public interest litigation dependant on political support. With the use of the case Brown v Board of Education, he shows how litigation is in some instances counter intuitive and becomes a barrier to the change it is meant to propagate and or drive. The Atlantic Philanthropies Report brought to light the lack of congruence between PIL and reality. The report suggested necessary factors for the success of PIL. This includes the proper organisation of clients, an overall long-term strategy, coordination, and information sharing amongst differs actors, the timing of filing cases, in depth research, case characterisation and finally, follow up. Thus, the report suggests that the value and success of PIL should be observed and measured by the practical impact it has on the ground. The materialist approach looks at the court orders and whether the clients received tangible concrete results. Scholars aligned with this approach often site the Grootboom case as an example of what happens when the litigation is not aligned with lived reality and providing concrete results. This landmark Constitutional Court case about the urgent need for housing has transformed policy and has been cited by other authority cases because of how progressive and significant the jurisprudence it developed was- on paper. Rosenberg argues that the impact of public interest litigation is overstated, as such holds that for judgements produce social change, they must have political support.[11] One notable point addressed by these different ways of looking at the success of a case state that the success of a case does not in itself translate to success or an achievement of the aims of the parties seeking relief in that regard, unsuccessful cases can bring forth great success by relaying attention on the matter that was due to be decided.[12]
Application of the theoretical framework to the Case: Sustaining the Wild Coast NPC and Others v Minister of Mineral Resources and Energy and Others (3491/2021) [2022] ZAECMKHC 55 (1 September 2022).
Background of the case:
Sustaining the Wild Coast NPC together with other Applicants who had a material interest in the matter which represented the interests of the public brought forward a two-part application to firstly interdict the third and fourth applicants from continuing with the seismic survey of the Wild Coast in the Eastern Cape Province of South Africa until after they had undergone proper consultation of the communities.[13] In the first part of the application (which is the subject matter of the recent decision, which is under this note’s scrutiny), the Applicants sought an interim injunction against Shell that would prevent it from proceeding with the seismic survey. The injunction would remain in place until the second part of the application is finalised. In the second part, the Applicants requested the court to order a permanent injunction that would prohibit Shell from proceeding with the seismic survey until it obtains the necessary environmental authorisations under the National Environmental Management Act 107 of 1998 as amended (NEMA).
The Court had to deal with an application of a twofold interim interdict, on the first part the interdict was directed towards interdicting Shell, Impact Africa and BG International Ltd as respondents to the matter from undertaking seismic survey operations under their exploration right, pending the finalisation of the second part of the interdict which sought to prohibit the same respondents from proceeding with the seismic survey until ana environmental authorisation has been granted under the NEMA. [14] the court in this case granted an interdict in part A and postponed the matter sine die with reference to part B of the Application.[15] The judgement which was delivered on the 28th of December confirmed thereof that the requirements of an interdict by the applicants had been met the requirements for an interdict, the court therefore declared that the exploration right that was awarded without consideration of the applicants’ right to a meaningful consultation constitutes a prima facie violation of their right which then deserves to be protected by way of an interdict. Court stated that there is a reasonable apprehension of harm as the conducting of a seismic survey will extract fossil fuels and thus impact climate change, the applicant communities, and the spiritual and sustainable use of the ocean with due regard to the applicants’ customary practices.
Shell and Impact Africa appealed the judgment of the High Court on the 17th of February, which was then dismissed. [16] In the hearing of this judgment, the court held that it would not be in the interest of justice to grant leave to appeal the interim judgment against the respondents cited in the prior case.[17] The leave to appeal the interim judgement was therefore dismissed.[18] Another interdict was instituted, in the form of an urgent interdict by Border Deep Sea Angling Association, Kei Mouth Ski Boat Club, Natural Justice, and Greenpeace Environmental Organisation in the High Court of South Africa, Eastern Cape Division, Grahamstown. The urgency of an interdict at times may warrant the judge to dispense with the requirements of an interdict to cater for the urgency of the matter.18 The court rejected the interdict on the basis that it was not about the full exercise of the exploration right and the implications the said exploration has for the environment in that regard. [19] The court held that the question to be answered was whether the seismic survey should be interdicted whilst waiting for the final determination of a separate review applications, of which was answered in the negative. This case raised various issues with reference to the interplay of law and science and evidence bearing in relation to matters affecting the public which were not properly dealt with, the interdictory application was therefore dismissed in that regard.[20]
The seismic survey in question implicates section 24 which is the right to an environment that is not harmful to their health and wellbeing,[21] and have the environment protected for the benefit of both present future generations which includes the prevention of pollution and ecological degradation.[22] Further provisions that are implicated are sections 30 and 31, the former stating that one has the right to participate in the cultural life of their choice amongst other things,23 whilst the former states that a person who belongs to a specific cultural community may not be denied the right to enjoy their culture which in that regard must be excised in a manner that is consistent with the provisions of the bill of rights. It should be noted that in this case, political support did not necessarily give power to the judiciary thus the argument by Rosernberg becomes difficult to apply.
Conclusion:
At face value, the above theoretical frameworks view the judgment in Sustaining as progressive and successful, considering Public Interest Litigation; however, it should always be remembered that these theories define and measure success differently. The most fundamental and uniform point is the idea that PIL must be result based and there must some kind of positive outcome which propagates the required change.
REFERENCE(S):
Cases
Brown v. Board of Education, 347 US 483 (1954).
Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC).
Sustaining the Wild Coast NPC and Others v Minister of Mineral Resources and Energy and Others (3491/2021) [2022] ZAECMKHC 55 (1 September 2022).
Legislation
National Environmental Management Act 107 of 1998.
Books
Black’s Law Dictionary.
J Brickhill ‘Introduction: The past, present and promise of public interest litigation in South Africa’ in Brickhill (ed) Public Interest Litigation in South Africa (2018).
Journal Articles
G Rosenberg ‘Tilting at windmills: Brown II and the hopeless quest to resolve deep-seated social conflict through litigation’ (2006) 24 Law and Inequality 31.
J Dugard & M Langford ‘Art or science – Synthesising lessons from public interest litigation and the dangers of legal determinism’ (2011) 27 SAJHR 39.
M McCann ‘Reform Litigation on Trial’ (1992) 17 Law & Social Inquiry
715-743.
MW McCann Rights at Work: Pay Equity and the Politics of Legal Mobilisation (1994).
S Budlender, G Marcus SC & N Ferreira ‘PIL and Social Change in South Africa: Strategies, Tactics and Lessons’ (2 ed) Atlantic Report (2014) 8.
G Marcus & S Budlender (2008) ‘A Strategic Evaluation of Public Interest Litigation in South Africa’ available at:
http://www.atlanticphilanthropies.org/learning/strategic-evaluation-publicinterest-litigation-south-africa.
[1] Black’s Law Dictionary.
[2] G Marcus & S Budlender (2008) ‘A Strategic Evaluation of Public Interest Litigation in South Africa’ available at:
http://www.atlanticphilanthropies.org/learning/strategic-evaluation-publicinterest-litigation-south-africa.
[3] J Brickhill ‘Introduction: The past, present and promise of public interest litigation in South Africa’ in Brickhill (ed) Public Interest Litigation in South Africa (2018).
[4] Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC).
[5] Supra note 1. 4 Ibid.
[6] Ibid Page 42.
[7] Supra note 1 page 116.
[8] Ibid.
[9] J Dugard & M Langford ‘Art or science – Synthesising lessons from public interest litigation and the dangers of legal determinism’ (2011) 27 SAJHR 39 page 64.
[10] Ibid.
[11] G Rosenberg ‘Tilting at windmills: Brown II and the hopeless quest to resolve deep-seated social conflict through litigation’ (2006) 24 Law and Inequality 31.
[12] Ibid.
[13] Sustaining the Wild Coast NPC and Others v Minister of Mineral Resources and Energy and Others (3491/2021) [2022] ZAECMKHC 55 (1 September 2022).
[14] Ibid para 1.
[15] Ibid para 82.
[16] Ibid para 1.
[17] Ibid para 11 .
[18] Ibid para 13.
18 Ibid.
[19] Ibid para 41.
[20] Ibid.
[21] The Constitution of the Republic of South Africa, 1996 s 24(a).
[22] Ibid ss (b). 23 Ibid s 30.
