MAXIMISING IMPACT: STRATEGIES AND TACTICS FOR THE NEXT WAVE OF PUBLIC INTEREST LITIGATION IN SOUTH AFRICA

Briefing document for Session 3: Remedies

Focus of session:

While constitutional litigation in South Africa has resulted in numerous important victories, too few of these victories have had a tangible positive impact on the government programs and policies concerned.

This appears partly to be because the remedies sought by litigants or awarded by the Courts have not been effectively fashioned to achieve such impact. In particular, the remedies often fail to take sufficient account of whether the underlying problem is, for example, incompetent government conduct rather than intransigent government conduct and how this is to be dealt with.

Foreign jurisdictions have developed a number of remedial options to deal with these difficulties. However, only some of these have been used thus far in South Africa. South African lawyers are not yet sufficiently alive to the range of remedial options available in this regard or the manner in which such remedial options can best be utilised.

This session will explore how such remedies can be used most effectively in South Africa.

Speakers:

Geoff Budlender SC (Advocate at the Cape Town bar)

Professor Kent Roach (Prichard-Wilson Chair, Faculty of Law, University of Toronto)

Background:

The background on this topic is fully captured by the two attached papers:

·  K Roach and G Budlender, “Mandatory relief and supervisory jurisdiction: When is it appropriate, just and equitable?”, 122 SALJ 325 (2005).

·  G Budlender, “The Judicial Role in Cases Involving Resource Allocation”, unpublished (2010).

We have therefore not prepared a separate briefing document, but attach the articles for your convenience.

Cases attached:

  1. Government of the Republic of South Africa and Others v Grootboom and Others 2001 (1) SA 46 (CC)
  1. Minister of Health and Others v Treatment Action Campaign and Others (No 2) 2002 (5) SA 721 (CC)
  1. City of Cape Town v Rudolph and Others 2004 (5) SA 39 (C)
  1. Occupiers of 51 Olivia Road, Berea Township, and 197 Main Street, Johannesburg v City of Johannesburg and Others 2008 (3) SA 208 (CC)
  1. Sibiya v Director of Public Prosecutions (Sibiya III) 2006 (2) BCLR 293 (CC)

Steven Budlender

Nick Ferreira

17 December 2010

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