Strategic litigation is litigation that is aimed at serving the interests of the public, and goes beyond the interests of the parties involved in the matter. Strategic litigation is used when there are systemic failures by the state; it is a mechanism for civil society to hold the government accountable while also maintaining the rule of law.
For instance, Democratic Alliance v President of the Republic of South Africa was one of the initial cases to address the unconstitutional exercise of public power by the former president Jacob Zuma. In the case, the president appointed Mr Simelane as National Director of Public Prosecutions. His appointment was contentious as the former president ignored factors that undermined Mr Simelane’s integrity. The case not only aided in addressing State Capture concerns, but it also set a key precedent in other spheres of government; public power may not be exercised absolutely and arbitrarily, irrespective of the ranking of officials. It indicated that the ever-expanding state is not above reproach. Despite being a case intended at addressing the ongoing State Capture, it was intended to not only set a precedent within the court room; it was intended to hold elected state officials accountable when they themselves failed to abide by not only the rules of their office – but also the Constitution.
In more recent years, due the impact of load shedding, the private sector began to raise questions as to whether the state has a negative (not to interfere with electricity supply), and positive (taking active steps to ensure that South Africans and the private sector have access to electricity), duty regarding the supply of electricity to all South Africans, including the private sector. Extended arguments were made in the landmark Mazibuko case.
Another recent example is the 2020 case against the Department of Cooperative Governance and Traditional Affairs (COGTA), which questioned the Department’s use of state power in controlling the spread of a disease. Traditionally, when the presidential cabinet and relevant authorities make decisions, oversight is provided in terms of the provisions of the Constitution and the Joint Rules of Parliament. Parliament has the power to conduct oversight of all organs of state, including those at provincial and local government level.
During the Covid-19 pandemic the National Coronavirus Command Council (NCCC), an “advisory body” in the words of the Minister, and National Joint Operational and Intelligence Structure (NatJoint), were charged with overseeing and advising on the application of the regulations. These bodies had no public accountability and were not established in terms of any law. Despite this, during this time the President and relevant minister would often state, “The NCCC has decided,” when informing the public of Covid-19 regulations. These decisions were binding, and resulted in a ban on the sale of cigarettes, for instance. The President has even said that matters discussed were ‘secret’, supposedly to avoid fueling public panic.
The lack of full accountability not only created confusion and mistrust, but the public cannot actively pinpoint the errors in governance. It should be noted that cabinet should be both individually and collectively accountable. The case was recently settled; however, this case is a demonstration of state systemic failure. The pandemic was unprecedented. Despite that, how did the state’s actions reflect today, especially with smaller-scale ongoing disaster management? For instance, there are the recent nationwide weather issues: the KZN flooding at the beginning of the year in January, and the more recent snowfall in September. Although their impact was restricted regionally, how did the unprecedented state overreach during Covid-19 set a precedent for state power in addressing smaller scale national disasters?
Strategic litigation serves as an essential tool in upholding democratic principles and ensuring the state remains accountable to its citizens. However, its increasing use to remedy state failures signals a troubling dependence on the courts to perform the role of an external watchdog, stepping in where the government has faltered. While the judiciary plays a crucial role in maintaining checks and balances, it is neither sustainable nor desirable for courts to continually act as the safeguard against systemic governmental failings.
However, this strategy raises the question, to what extent can the public rely on the courts to persistently save South Africans? Under State Capture, South Africa was narrowly protected by the intervention of the courts. The country is a new democracy that is undergoing growing pains – especially in the effort to protect the rule of law and address systemic failure. To what extent can this dance between courts and civil society continue, and when does the relationship between the state and civil society evolve into one where there is direct public accountability and reduced over-reliance on courts to save the day when addressing systemic failures by the state?
As South Africa’s democracy matures, there is a pressing need for more robust mechanisms of direct accountability, where the government is compelled to respond to public scrutiny without relying on judicial intervention. Civil society, the private sector, and state institutions must collectively evolve into a more balanced relationship—one that does not rely solely on litigation to rectify issues, but where the state proactively enforces transparency and responsiveness. Ultimately, the reliance on strategic litigation must be a temporary remedy, not a permanent crutch. It is only through meaningful, structural reforms that South Africa can fully transition towards a government that upholds the rule of law, not just in reaction to the courts, but as a natural feature of governance.
The views of the writer are not necessarily the views of the Daily Friend or the IRR.
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