Strategic litigation in South Africa: understanding and evaluating impact

Thesis

This Thesis analyses the impact of strategic litigation in South Africa, being litigation that concerns interests beyond the immediate parties and pursues generally forward-looking goals involving social change. Part I develops an analytical and evaluative framework to assess impact and its value. Part II applies that framework to two case studies concerning litigation on the right to education and the appointment and removal of government officials.

I situate strategic litigation in the litigation process, considering the models and forms that it may take and the range of remedies that may result from it. The analytical framework identifies the type, temporality, people affected and reach of impact as its main dimensions, and, in respect of type, proposes a typology of legal, material and political impact to analyse the effects of strategic litigation. Recognising that litigation in South Africa takes place in a constitutional context, the Thesis proposes the values of social justice, democracy and the rule of law as a normative framework to evaluate the effects of strategic litigation.

In Part II, this analytical and evaluative framework is applied to two case studies. The first case study concerns six streams of litigation to compel government to provide certain educational inputs, including infrastructure, textbooks, furniture, teachers and scholar transport. The second case study, arising in the context of the phenomenon of ‘state capture’, considers litigation seeking to remove allegedly unfit officials from key state institutions and to compel the appointment of suitable persons.

The conclusion to the Thesis consolidates insights from across the case studies, ultimately arguing that the South African litigation environment is generally conducive to strategic litigation and that, given adequate litigation resources and appropriate litigation decisions, strategic litigation in South Africa is capable of contributing to significant legal, material and political impact and therefore to social change.

Authors: Brickhill, J

• Type of award: DPhil
• Level of award: Doctoral
• Awarding institution: University of Oxford
• Language: English
• Keywords: impact of litigation; South Africa; socio-legal studies; state capture; constitutional law; economic, social and cultural rights; public interest litigation; legal mobilisation; right to education; strategic litigation
• Subjects: Litigation; International law and human rights; Corruption; Education; Constitutional law