Philanthropy, civil society and litigation – without these our democracy could truly be captured
- Shelagh Gastrow
- 02 May 2017 11:29 (South Africa)
In the current political climate, both locally and internationally, philanthropy is having to review its giving programmes. In South Africa there was generally a view that with our Constitution and the advent of democracy, philanthropy could focus on specific areas such as welfare, education, health arts and culture, rather than civil and human rights. However, it is clear that every area of our society is impacted by poor governance and philanthropy will need to review whether support for litigation is a viable option to achieve social change.
There is a fairly standard activist formula for social justice change. This includes identifying a need, undertaking research, monitoring progress, engaging with government at different levels, articulating demands, building partnerships, advocating and demonstrating and, finally, litigation as a last resort.
Some of the key court cases that have recently affected and impacted our body politic include the following. Internationally, the Southern African Litigation Centre approached the Pretoria High Court in June 2015 to ensure that the South African government enforced an International Criminal Court arrest warrant for Sudanese President Omar al-Bashir. Whilst the government allowed him to slip out of the country, in March 2016 the Supreme Court of Appeal confirmed the ruling. Subsequently South Africa announced its withdrawal from the Rome Statute of the International Criminal Court, and again the Southern African Litigation Centre went to court and successfully challenged the procedural elements relating to the withdrawal. In February 2017 the North Gauteng High Court ruled that the notice of withdrawal from the Rome Statute without prior parliamentary approval was unconstitutional and invalid and government was ordered to revoke the notice of withdrawal.
Corruption Watch is also playing a key role in various areas of litigation. These included the case of Corruption Watch vs the CEO of the South African Social Security Agency (Sassa) when it made a decision to pay Cash Paymaster Services an amount of R317-million without following supply chain management procedures; it intervention as amicus curiae (friend of the court) in the case of Hlaudi Motsoeneng vs DA and Others in August 2015, a case that involved the nature and status of the Public Protector’s remedial directions and powers; it was involved in the case of City of Cape Town vs South African National Roads Agency and Others in 2015 (along with other civil society organisations) when the City sought to prevent the introduction by Sanral of new toll roads in the Western Cape; the court case Corruption Watch & Others vs President of RSA and Others where Corruption Watch and Freedom Under Law lodged a review application in the High Court of South Africa against the decision of the National Prosecuting Authority to enter into a settlement agreement with the former National Director of Public Prosecutions, Mxolisi Nxasana as it was unlawful and unconstitutional.
The organisation, Freedom Under Law, has also played a role in public interest litigation and the organisation specifically focuses on litigation “in relation to institutional conduct in conflict with the rule of law”. In November 2016, jointly with the Helen Suzman Foundation, FUL took a case to the Pretoria High Court to compel President Zuma to suspend the National Director of Public Prosecutions and others pending an inquiry into their fitness to hold office after they allegedly brought baseless criminal charges against the previous Finance Minister, Pravin Gordhan, Ivan Pillay and Oupa Magashula which were subsequently withdrawn. In April 2017 both organisations again were in court (The North Gauteng High Court) which upheld the application made by them that the appointment of Lt-Gen Berning Ntlemeza, head of the Hawks, was unlawful and set aside. It should be noted that three days after they launched their urgent application calling for the suspension of Ntlemeza, the offices of the Helen Suzman Foundation were raided and computers and other documents were removed.
Freedom Under Law and the Black Sash initiated a legal process that led to the Constitutional Court handing down a judgement relating to the payment of social grants by the South African Social Security Agency (Sassa) via Cash Paymaster Services, a contract that had previously been declared invalid. As Sassa had not yet made any alternative arrangements for the paying of the grants, Black Sash sought reinstatement of the oversight role of the Constitutional Court for the payment of social grants. The initial declaration of invalidity of the contract was therefore suspended for twelve months and that the Minister of Social Development and Sassa had to file reports to the Constitutional Court on a quarterly basis to ensure accountability, transparency and protection of the beneficiaries personal information. They also had to explain future plans to pay social grants once the invalid contract had expired. Importantly for the South African public, the Court issued a rule nisi which called on the minister to provide reasons why she should not be personally liable to cover the costs of the application.
The other recent case in 2017 that sent a strong message to government was that brought by Earthlife Africa and the Southern African Communities Environment Institute who managed to block the progress of the nuclear deal. The judge in the case ruled that the secret tabling of the Intergovernmental Agreements with Russia, the US and Korea was unconstitutional and that they be set aside. It was also ruled that the decisions made (Section 34 determinations) to procure nuclear facilities were unlawful and unconstitutional and that they be set aside. Essentially the court pointed out that the government’s decision to go nuclear required a public participation process and that Eskom, as the procurer, was also set aside.
Earlier in 2017, EarthLife Africa was also involved in a court case to revoke the environmental impact assessment for the proposed private Thabametsi power station as the Minister of Environmental Affairs and the Director General of Environmental Authorisation had failed to take into account how a new coal powered station would affect climate change. In this first climate change lawsuit, the attorney for the case was from the Centre for Environmental Rights, another civil society organisation providing legal services for environmental cases. The North Gauteng High Court ruled in the organisation’s favour and referred the appeal back to the Minister of Environmental Affairs on the basis that its climate change impacts had not been properly considered.
There are a myriad of other organisations that are active in advocacy and litigation, focusing on different areas of interest. These include, inter alia, Section 27, The Centre for Child Law, the Legal Resource Centre, the Women’s Legal Centre, The Socio-Economic Rights Institute of South Africa (SERI) and the Equal Education Law Centre. We will, no doubt, also be seeing new cases to be brought as private prosecutions by AfriForum who recently employed top state prosecutor Gerrie Nel to head such a programme.
A major issue for all the above organisations is the issue of financial support. According to a document produced in 2008 by Gilbert Marcus and Steven Budlender that explored public interest litigation in South Africa, the following key point was made that is still valid:
“The continued funding difficulties facing public interest organisations are, in our view, a cause for significant concern. Without sufficient funding and support, public interest organisations will find it increasingly difficult to enforce rights and, still more, to do so in a manner which produces lasting social change.” This statement has to be read taking into account the resources available to the State to continue appealing ad nauseum, both as a delaying tactic, but also in the hope that the organisations concerned will simply run out of money.
They quote Charles Epp who studied the growth of civil rights in four countries as follows: “The basic lesson of this study is that rights are not gifts; they are won through concerted collective action arising from both a vibrant civil society and public subsidy.”
South Africans are somewhat punch drunk with court cases brought not only by civil society, but also by various political parties. The sense of heightened levels of corruption, nepotism and state capture has necessitated these legal cases as government has done little to assuage general concerns relating to a lack of accountability and transparency. Each “win” speaks to either incompetence, dishonesty, corruption or a basic lack of concern about process and constitutionalism.
As philanthropy ponders where donor funding should be placed, thought should be given to those organisations that are prepared to take risk, personally for their staff and trustees, financially if they lose cases and politically if they are classified as “the enemy” by a government that is becoming increasingly paranoid about conspiracies and the role of civil society. Without these organisations serving on the front-line, our democracy and our country could truly be captured. DM
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