by Erica Emdon.
A conference was held in Belfast during October bringing together NGOs, community activists, litigators, academics and funders to reflect on the extent to which strategic litigation can transform lives and enable people and communities to realise their rights. With speakers from different geographic and legal settings, the conference explored:
- Lessons learnt from the use of test case litigation to date
- Strategic litigation as a tool for promoting social justice
- Models and approaches to supporting strategic litigation
A session was held that dealt with a range of different models by which strategic litigation can be supported as a tool for realising social justice. I was asked to consider the role of pro bono attorneys and advocates in supporting strategic litigation and the relative advantages and disadvantages of the pro bono model.
There was great interest in the pro bono model, particularly in the context of the diminishing funding available from the state in the UK and other countries to fund civil legal services for the poor.
I gave a brief history of ProBono.Org and how it was set up originally with Atlantic Philanthropies funding. I looked at how ProBono.Org is part of a wider spectrum of organisations providing access to justice, stating that we are demand driven and not in a position to select matters. However we are in a position to use the high numbers of cases opened to lead us towards impact litigation. I covered a range of issues in my talk including the following –
- The fact that in South Africa we have been helped by the pro bono rule and the situation that some firms have pro bono departments, some with great litigation capacity;
- That the size of a law firm determines to some extent the type of pro bono work they do, with small firms undertaking individual matters and the larger more well resourced to take on impact cases;
- The individual work done by lawyers in both the big and small firms often has a high impact on one person’s life in, for example, domestic violence, refugee, undocumented minors, labour and housing matters, to name but a few;
- Because the bulk of our matters are individual matters, we see it as our job to identify patterns and trends and to try to intervene. Our intervention could be by lobbying for improvements in legislation, policy and the administration of the law, and includes making submissions on these. In some cases the high volume of cases enables us to identify matters for litigation. The individual matters can end up generating a strategic litigation case;
- Pro bono work carried out by small practitioners can have a wide reach geographically, moving out of the cities. We have been able to recruit pro bono lawyers in small towns to assist rurally based community paralegals.
Limits of pro bono involvement in strategic litigation:
- For small firms it is a capacity issue. Strategic litigation can take years to finalise and involves a major commitment by the firm to channel significant resources to support the case. There are exceptions. For instance Egon Oswald, a single practitioner of Egon Oswald Attorneys, acted for a torture victim McCallum and 230 others from the St Albans Prison when serious allegations of torture were made against about 50 warders at the prison. Oswald has devoted years to this matter since it started in 2005, funded the litigation himself at the cost of his own practice and reaped no financial reward. In 2015 he spent 55 days in the Port Elizabeth High Court representing the first two of 231 potential plaintiffs.
- Bigger firms are more likely to take on the impact cases, but there are challenges, particularly if a conflict of interest arises. This happens particularly when the firm has banks, mining companies and municipalities as clients. The Chinese wall is not
used in South Africa.
- For all firms, big and small, there is frequently an unspoken ideological identification by the firms with the powers that be, whether they are the state, big corporates, banks or companies in the lending market. There might be a reluctance to challenge the status quo. An example is the discomfort private firms have in doing bail applications for students and other protestors, because they are viewed as violent and unruly.
- Another reason that firms do not undertake strategic litigation is that they are frequently not knowledgeable about the strategic litigation process and the steps to take.
Having said that, there are anumber of very interesting examples of impact litigation matters that have been undertaken by private sector legal professionals from big firms on a pro bono basis.
The Omar Al-Bashir case.
Webber Wentzel represented the Southern Africa Litigation Centre (SALC) and the Helen Suzman Foundation in their challenge regarding the South African government’s failure to arrest and detain the president of the Republic of the Sudan, Mr Omar Al-Bashir in June 2015. Al-Bashir is wanted by the International Criminal Court for crimes against humanity and genocide. The South African government was obliged to arrest President Al-Bashir when he came onto South African territory in terms of the Rome Statute, which it failed to do. The case was heard in the high court, then the Supreme Court of Appeal. The judgment held that the failure of the government to arrest Al-Bashir was unlawful. The state appealed to the Constitutional Court, then withdrew.
National Key Points matter.
Cliffe Dekker Hofmeyr acted in the Right2Know Campaign/ SAHA in the National Key Points case. Right2Know and SAHA had requested information on National Key Points from the state, which was not forthcoming. The court ordered the minister to release the list of National Key Points. This case was a great victory for access to information and accountability to the public.
University of Stellenbosch Legal Aid Clinic and others – Emolument Attachment Orders case.
Webber Wentzel acted in this matter that ended up in the Constitutional Court. The judgment in this case will have a significant impact on the lives of hundreds of thousands of people who have amounts deducted from their salaries every month to pay for debts incurred. As a result of this case, the manner in which Emolument Attachment Orders are administered through our courts will be overhauled to protect debtors.
Arthurstone Village Community case.
Norton Rose Fulbright SA successfully acted on behalf of the 150 indigent and vulnerable residents of Arthurstone, in Mpumalanga, who were unlawfully evicted from their homes on a communal farm by the tribal authority. The court found that the eviction and demolition order was unlawful and set it aside, ordering the tribal authority to construct temporary habitable dwellings and thereafter permanent housing equivalent to the housing they had occupied previously.
The Mgungundlovu Land Claims case.
This case proceeded for 19 years and Norton Rose Fulbright SA worked on it for the last 5, resulting in a remarkable victory for the 100 odd families whose land, which their community had lived on since time immemorial, was taken away. The land, situated along a beach with exceptionally fertile land, was made available to the Transkei Sun, whose lease required it to pay the community R30 000 per annum. The award that Norton Rose managed to secure for the community last year was an annual rental of R4m, escalating at 6% per annum, and a R50m settlement amount from the Department of Rural Development and Land Reform. This was an overwhelming victory for the community.