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University of Pretoria Centre for Child Law

Centre for Child Law: Filling the Gap between law and reality – the use of strategic impact litigation

Category: Inclusive, Enabling Communities | Caring and protection of particularly vulnerable groups | 29 June, 2012 - 15:43

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Centre for Child Law: Filling the Gap between law and reality – the use of strategic impact litigation.
 
Introduction:
 
Children’s rights have significantly advanced during the seventeen years of South Africa’s constitutional dispensation. In 1995, South Africa ratified the UN Convention on the Rights of the Child, and following the inclusion of children’s rights in the South African Constitution in 1996, the government embarked on a process of law reform which resulted in an entirely new legal framework being created through the Children’s Act in 2005, the Criminal Law (Sexual Offences and Related Matters) Amendment Act and the Child Justice Act in 2010.
 
Although the legal framework is extremely progressive, the fact that South Africa is a developing country means that the realization of the rights guaranteed to children presents a great challenge. As a result, it is necessary that members of civil society actively seek out areas in which the state ignores or has reneged upon their obligations. 
 
Most civil society organizations are in one way or another heavily involved in advocacy for systemic change, and very often succeed in achieving excellent results for children through it. However, as effective as advocacy may be, is often a lengthy process, involving many stakeholders which can result in a delayed response to children’s rights issues that need immediate responses. There are also other instances where advocacy attempts fail and more vigorous methods are needed. These are instances where it may be necessary to embark on strategic impact litigation.
 
The courts are sites where important advances for children can be made, particularly in countries such as South Africa that have a ‘common law’ system which includes the concept of ‘precedent’. Court judgments can develop laws, and precedents set by judgments have a lasting effect on the law, in that it binds all judges to follow the judgment that preceded it. 
 
However, the lack in knowledge and understanding of impact litigation amongst child rights organisations and legal practitioners prevents them from effectively ensuring the fulfilment, protection and enforcement of children’s rights.
 
What exactly is strategic impact litigation?
Strategic impact litigation can best be explained as involving a strategy whereby cases, that have the potential of bringing about broad legal and social changes for people, are selected and taken to court.  It involves selecting and bringing cases before courts with the aim to effect broad changes in society and to leave a lasting mark for many children. 
 
Legal Aid South Africa reaches over 46 000 children per year in its daily work. This is significant access to justice, and benefits each child that is reached.  However, important as this day to day work of representing children is, it has limited influence on the way that the courts interpret the law, and rarely impacts more broadly than the ambit of the case itself. That is why impact litigation is so important – it can change things for many children at once. South Africa boasts one of the best children’s rights clauses in its Bill of Rights. However, this would have a limited effect if laws and practices are not measured against those provisions.
 
Our strategy
 
The Centre for Child Law’s litigation project was established in 2003. The aim of the project is to use impact litigation in the areas of both civil and criminal law in order to:
  • Push forward boundaries of law relating to children;
  • Establish the content of legal rights and protection of children;
  • Set precedents, and thereby changing the attitude of the courts;
  • Hold government accountable on their responsibilities towards children; and 
  • Build experience and knowledge in children’s Litigation
In a fledgling democracy such as South Africa, it is important to ensure that the substantial guarantee of rights and freedoms made by the state is realized through a process of systematic and consistent implementation. In order to ensure that this happens, the Centre engages the judicial arm of government with a view to set precedents that bind other courts and where appropriate, to give direction to the Executive for fulfilment of children’s dues.
 
The Centre’s focus on strategic impact litigation aims to benefit not only the children represented in a specific case, but also other children in similar predicaments. The Centre also continuously engages with many organisations that work with children on the ground, which bring systemic problems and serious child rights violations to the Centre’s attention. 
 
Raising awareness of the problems experienced by children and the outcomes of judgments is also a fundamental area of the Centre’s work, with new projects on Monitoring, Evaluation and Communication having started in 2012. These projects will ensure that the children’s sector in South Africa and duty bearers are aware of the outcomes of judgments and also ensure monitoring and follow up on fulfilment of obligations from judgments and court orders by duty bearers.
 
Examples of results yielded for children
 
Over the years, the Centre has been involved in a number of cases in which government was held accountable in respect of their statutory and constitutional obligations. The following are some examples of the judgments that the Centre has managed to obtain:
 
Constitutional Court Judgment on Child Victims and Witnesses:
 
This case questioned the constitutionality of provisions in the Criminal Procedure Act that dealt with the treatment of child victims and witnesses during trial proceedings. 
The Constitutional court held that in every case where a child is required to testify, a judicial officer must enquire as to whether it would be in the best interests of the child concerned to have the assistance of an intermediary. The judicial officer has to examine the individual needs, wishes and feelings of the child. The Constitutional court acknowledged the serious lack of intermediaries which leads to the postponement of cases. Further concerns were the shortage of facilities to be used by intermediaries and the inadequate training of intermediaries to effectively help children testify. The court therefore ordered the Director General for the Department of Justice and Constitutional Development to provide the Court with information on the number of intermediaries available, a list of facilities like separate rooms in which children may testify, closed circuit television and one-way mirrors; and the steps that will be taken to rectify the shortfall. 
 
Children removed from their parents – litigation makes sure that these decisions are reviewed
 
This Constitutional Court case arose from an incident in 2010. The DSD, the City of Tshwane (Pretoria) and the South African Police Services (“SAPS”) launched a “dragnet operation” in which several children were summarily removed from parents who appeared to be begging on the streets. In May 2011, a Constitutional challenge to certain sections of the Children’s Act was brought before the North Gauteng High Court. It seemed that a gap had been left in the new Children’s Act – under the previous law (Child Care Act) there was always a children’s court hearing within 48 hours of a child being removed from a parent. This safeguard was left out of the new Children’s Act.  The Department of Social Development did not oppose the case – they agreed that this gap in the law went against children’s rights. The judgment of the Constitutional Court was handed down on 11 Jan 2012. The Court found that the lack of a judicial review process rendered the law unconstitutional because it breached both children’s right to parental care and the child’s right to have his or her best interests considered as paramount. This judgment means that from now on, whenever any child is removed from his or her parents that decision has to be reviewed by the children’s court on the next court day.
 
Foster care system crisis resolved through litigation
 
In 2010, the Children’s Act came into full operation. One of the changes brought about by this law reform was that the extension of foster care orders would no longer be an administrative process, but would rather be done by the Children’s Court. In early 2011 this had a negative effect on over 123 000 children when an immense backlog in the court’s system caused their orders to expire. A further crisis loomed as foster care court orders are a prerequisite to the paying out of foster care grants. The Centre for Child Law brought an urgent application in the North Gauteng High Court and obtained an order stating that until such time as this backlog could be resolved, an administrative process similar to the one previously applicable under the Child Care Act must be utilized in respect of Children whose foster care orders were due to lapse, and that those that had lapsed should be deemed not to have lapsed. In this case the Minister for Social Development did not oppose our case because they agreed that there was a crisis. The staff from the Centre sat down with officials from the department to agree on what would go into the court order.
 
When to refer a case to the Centre
 
The Centre is continuously building networks and partnerships with organizations for referrals of cases that will be appropriate for impact litigation. The Centre takes the following into account when deciding to embark on strategic impact litigation cases:
  • The scale of change for children similarly affected in South Africa;
  • The results from a through situation analysis (if time permits);
  • The broader political context – the time must be right for litigation;
  • Involving partners as amicus curiae (friends of the court); 
  • Linking the case with other forms of advocacy and the media; 
  • The client’s needs — first ensure that the client’s interests and protection and participation needs are met; 
  • Whether the threat of litigation can also achieve the desired result.
What are the risks?
 
Impact litigation can be a costly exercise, and can result in alienation of duty bearers. Impact litigation should therefore be used as a last resort, but should not be shied away from. Open conversation about possible litigation with duty bearers often either results in fulfillment of the duty bearer’s responsibilities before going to court, or acceptance by the duty bearer that the interests of children requires the Centre to approach the courts.
 
With regards to costs orders, the Constitutional Court in a recent judgment4 held that if a party litigating in the public interest is unsuccessful in proceedings against the state, it ought not to be ordered to pay costs even if it loses the case, unless the application is frivolous or vexatious or in any other way manifestly inappropriate. This landmark judgment has the effect that small organisations will be able to litigate against the state without fearing the chilling effect of costs being awarded against them. 
 
How to refer a case to the Centre for Child Law
The Centre for Child Law welcomes the referral of cases from civil society organizations that deal with systemic issues relating to children or emergency protection of children and their rights. If an individual or organization is unsure as to whether the case is appropriate, contact the Centre nevertheless, and a referral will be made if the case does not fall within the scope of those undertaken by the Centre.
 
Steps to take:
  • Ensure that all options are exhausted before turning to impact litigation;
  • Gather all information available on the problem experienced;
  • Evaluate the type of case –is it a case that could potentially affect a wide range of children, or will it only affect a selected amount of children;
  • If other organizations are involved/experiencing the same problem, inform them of the possible litigation around the matter;
  • Contact the Centre for Child Law as soon as possible.
 
References:
Director of Public Prosecutions, Transvaal v Minister of Justice and Constitutional Development and Others 2009 (4) SA 222 (CC)
C and Others v Department of Health and Social Development, Gauteng and Others 2012 (2) SA 209 (CC)
 Biowatch Trust v Registrar Genetic Resources and Others 2009 (6) SA 232 (CC)


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