Standing up to government in public interest litigation – does it really effect change?

June 1st, 2021
x
Bookmark

Picture source: Gallo Images/Getty

A mere 15 minutes’ walk from former president Jacob Zuma’s homestead in Nkandla, the Nkungumathe community has been waiting since 1996 for a new school to be built. The community applied to the Department of Education in KwaZulu-Natal for the establishment of a secondary school in 1996, 2002 and then again in 2007.

In May 2010, the incumbent KwaZulu-Natal Member of the Executive Council (MEC) for Education took the decision to establish and register the Khuba secondary school as a fully-fledged school, the effect of which was that Khuba was to be constructed and appropriately provisioned. It did not come to pass. In June 2016 efforts were renewed to bring about the construction of Khuba. Then, on 16 February 2017, without notice or consultation, the MEC withdrew the decision of his predecessor in office to register and establish Khuba.

At the heart of this case and legal challenge, which is still ongoing despite a court order in favour of the community, is the fundamental right of access to basic education under s 29 of the Constitution, and foundational principles of the rule of law and the principle of legality insofar as the exercise of public powers are concerned.

Background to litigation

The applicants in the matter were Inkosi Zakhe Mpungose, as Nkosi of and on behalf of the Mpungose Traditional Council (the Council), together with the Nkungumathe NPO, a community representative organisation, two parents and one grandparent who are members of the community and who acted on behalf of their children and grandchild, respectively. The Nkungumathe NPO was represented by Mthokozi McDonald Mchunu the deponent for the Nkungumathe NPO (the third applicant), who is a primary school teacher in science and technology and the Deputy Principal of a primary school in the community. He is a community activist who wanted to hold government to its promise to build a school for the residents of the community. The applicants were quite carefully considered before the issuing of this application. As has become common practice in public interest litigation, using a mixture of different applicants that represent the interests of both the involved parties, as well as the public interest, is often an effective litigation strategy (S Budlender, G Marcus SC and N Ferreira Public interest litigation and social change in South Africa: Strategies, tactics and lessons (The Atlantic Philanthropies 2015)).

The promise of a new constitutional dispensation and a government that corrects the wrongs of the past, especially regarding education inequality kept the community on a string for over two decades. After years of attempting to engage with provincial government and after various promises to build the school, the community sought help from an unlikely place. Frustrated and fed up the community wrote to AfriForum in 2017, seeking their assistance. AfriForum offered to fund a legal challenge to review both the actions and inactions of the provincial government.

The determination of who should be the applicants plays into the discussion regarding case versus cause (J Brickhill and M Finn ‘The ethics and politics of public interest litigation’ in J Brickhill Public Interest Litigation in South Africa (Cape Town: Juta 2018) at 101 and 115). Not only were public interests’ lawyers concerned with the outcome of the case insofar as it relates to their particular clients and the countervailing interest of broad strategic litigation goals, but they had to consider how the case would be received both in the media and by the court in light of the unlikely alliance between this community and the civil rights organisation.

The decision as to who to include as co-applicants was, therefore, one of the early strategic litigation decisions that had to be taken by both the community and the legal representatives acting on behalf of the community. Despite the litigation being funded by AfriForum it was decided early on that AfriForum would not be cited as a co-applicant but rather that the emphasis and focus of the case would remain on the community, whose rights were being infringed.

Litigation

The application was brought on 4 October 2017 but only heard on 26 October 2018 after numerous attempts by the respondents to delay the process. The litigation was supported by a great amount of social mobilisation including a gathering of nearly 200 members of the Nkungumathe community in the court vicinity on the day of the hearing (Tania Broughton ‘Rural Community in Court for School’ www.africa-legal.com, accessed 6-5-2021). Although decisions of South African courts should not be swayed by spectacles outside of the courtroom, it is hard to imagine that any person could ignore hundreds of people gathered at a High Court located more than 200km from their community in order to assert the rights to education of their children.

Judgment was delivered on 17 July 2019. The order granted the review of the decision to renege on the promise made to the community and provided structural relief for the applicants as to how the decision should be implemented. The order also required the respondents to provide quarterly reports on the progress made in establishing the school.

Similar to the approach followed in the case of Mshengu and Others v Msunduzi Local Municipality and Others [2019] 4 All SA 469 (KZP) the relief was formulated and calibrated to ensure that the interests of the applicants were well served while leaving some room for the development of jurisprudence. In this case, the structural relief granted by the court went beyond what was sought by the applicants in their notice of motion. To an extent the broadened relief could be viewed as a type of punitive measure against the respondents, who arguably angered the presiding judge. Vahed J’s dismay of the way government reneged on its promise to the community was evident in the judgment (Mpungose Traditional Council and Others v MEC for Education, KZN Province and Others [2019] 3 All SA 817 (KZP)).

Post litigation and enforcement

The favourable judgment seems to be similar to other judgments, which were beneficial to the applicants, in this case the Nkungumathe community, but has not necessarily changed the reality of weak institutions in KwaZulu-Natal, particularly the provincial Department of Education, that hinder justice and the fulfilment of the fundamental right to education (Carmichele v Minister of Safety and Security and Another 2001 (10) BCLR 995 (CC)). Although it achieved a legal victory for the community the challenge of implementation remained. As Budlender, Marcus SC and Ferreira (op cit) argued, post litigation implementation is perhaps the most critical aspect of the public interest litigation process.

Since the judgment was delivered the respondents have filed five progress reports as required by the court order. However, the respondents have through the filing of progress reports attempted to relitigate the case by raising budgetary constraints, the COVID-19 pandemic, and other logistical challenges as defences in order to delay the building of the school. As Roa and Klugman note after suffering defeat in court, opponents may utilise an array of mechanisms to attempt to effectively halt or nullify a court judgment against them (M Roa and B Klugman ‘Social Change and The Courts: Options In The Activists’ Advocacy Toolkit’ (2016) at 94).

In the progress reports filed by the respondents, they claim that the earliest opportunity for the school to be built is 2024, which would be five years after the successful court challenge and more than 30 years after the community were first promised a school. The fact that the respondents are able to delay, but not necessarily circumvent, the building of the school and, therefore, in effect the fulfilment of the constitutional right to education, is a prime example of how a favourable court decision does not entail the end of the litigation road.

Although the court order provides that the applicants are able to approach the court again for assistance, should the respondents fail to make progress, is subject to first attempting meaningful engagement with the respondents. Since the judgment was handed down, there has been constant correspondence with the KwaZulu-Natal Department of Education seeking speedy compliance with the court order.

From a legal practitioner’s standpoint, the post judgment phase has been the most frustrating part of the litigation. As legal practitioners, public interest legal practitioners are comfortable and familiar with civil procedure and the workings and dealings with the South African court systems. They, however, are not as well trained in what to do at the conclusion of a case. An important decision to be made to ensure compliance by the respondents remains. The question begs, how to approach this phase. The initial instinct of a litigator would obviously firstly be to approach the court again should the respondents not comply with the order in a reasonable time. However, as is the case in public interest litigation before a judgment, perhaps the best route would be to find the right balance between sustained legal pressure, as well as continued mobilisation by the community.

Conclusion

The fight to secure the education rights of the children of the Nkungumathe community is not nearly done. In retrospect, although the legal victory might eventually secure the rights of the community, the victory may end up not securing and ensuring that the education rights of all learners in KwaZulu-Natal is protected. As Bell notes ‘replication of legal campaigns where heralded victories are gained at too great cost’ (D Bell ‘Law, litigation, and the search for the promised land’ (1987) 76 Georgetown Law Journal 229 at 236). This court victory should, therefore, be celebrated cautiously while firmly keeping the end goal in mind.

Although this case is likely not to be considered a classical public interest litigation test case that attempts to change an entire legal framework, it is nonetheless an important public interest litigation case in that it seeks to protect a vulnerable community against unlawful and exploitative governmental practices (H Corder (ed) Essays on Law and Social Practice in South Africa (Cape Town: Juta 1988)). Although merely a victory on procedural and administrative law grounds, the fact that the case received such widespread attention due to the combined efforts of social mobilisation through the community and the media leverage of AfriForum, this case had a positive impact. Moreover, there is much to be said about the unlikely alliance formed between AfriForum and this community. One might even slightly bullishly argue that unlikely alliances are crucially important in our constitutional order to ensure that all South Africans enjoy the rights promised to them in our Constitution.

What now remains is to ensure government is held accountable not only to the court but to the community that now has a court order in hand to assert the rights of their children.

Daniël Eloff LLB LLM (UP) PGDip Human Rights Advocacy (Wits) is a legal practitioner at Hurter Spies Inc in Pretoria. Hurter Spies Inc acted on behalf of the applicant.     

This article was first published in De Rebus in 2021 (June) DR 8.

X
South African COVID-19 Corona Virus. Access the latest information on: www.sacoronavirus.co.za