Professor Sandra Liebenberg presents public lecture at Rhodes University

Professor Sandra Liebenberg recently conducted a two-week research stay as Distinguished Visiting Professor in the Faculty of Law at Rhodes University. As part of her visit, she delivered a public lecture at Rhodes University on 28 July entitled “Forging new tools for vindicating the rights of the poor in the crucible of the Eastern Cape”. The lecture was organised and hosted by Dr Gustav Muller of the Rhodes Law Faculty. The International Office of Rhodes University sponsored Prof Liebenberg’s visiting professorship and the lecture.

The lecture highlighted the paradoxes involved with litigating and adjudicating socio-economic rights in the Eastern Cape. In addition to the conventional challenges posed by socio-economic rights litigation in South Africa, the Easter Cape is plagued by deep levels of poverty, administrative dysfunction, and barriers to community organisation and public interest litigation, which stem from its dispersed, largely rural population and inadequate infrastructure. Despite these significant challenges, the lecture highlighted that some of the most important innovations in socio-economic rights litigation have also been pioneered in the Eastern Cape. Two notable innovations include broadening access to courts through class actions, and designing innovative remedies and litigation strategies for securing compliance with court orders.

Professor Liebenberg explained that one of the ways in which the South African constitutional dispensation has facilitated access to courts for impoverished and marginalised groups is by broadening the category of people entitled to approach the courts for appropriate relief when their rights have been infringed or threatened. This includes the mechanism of class actions, which is particularly useful for challenging violations that have a similar impact on a large dispersed group of people lacking the means to institute a number of individual actions. Ngxuza v Permanent Secretary, Department of Welfare, Eastern Cape, is an example of a landmark class action and public interest litigation case that was instituted in the Eastern Cape High Court. The case concerned the suspension or cancelation of social grants by the Department of Social Development and the drastic affects that it had on a particularly vulnerable group, namely people living with disabilities. It illustrates how class action proceedings can enable a vulnerable group to vindicate their social security rights through access to courts in order to meet their basic material needs. The pioneering Eastern Cape judgment in Ngxuza has also laid the foundations for class actions in South Africa, which Professor Liebenberg elaborated on in her lecture.

Regarding remedies and litigation strategies for securing compliance with court orders, Professor Liebenberg noted that this represents a critical phase of litigation that arises once litigants obtain a favourable judgement on the merits. Without effective remedies and prompt compliance therewith, the actual significance of socio-economic rights litigation for the beneficiaries of a right is severely reduced. She explained that Eastern Cape courts have experimented with a range of innovative remedial strategies in order to give proper effect to constitutional rights and to promote administrative efficiency in the province. In Bushula v Permanent Secretary, Dept Welfare, Eastern Cape Provincial Government, for example, the court made declaratory and mandatory orders against the Department to reinstate unlawfully cancelled social grants and to pay outstanding arrears. In a series of cases culminating in the judgment of the Eastern Cape High Court in Kate v MEC for the Department of Welfare, Eastern Cape, the court awarded backpay and interest on outstanding arrears as a remedy for long delays in processing social grant payments. This decision led to the Supreme Court of Appeal recognising the validity of these kinds of orders as a form of constitutional damages for the breach of the right of access to social security entrenched in section 27 of the Constitution in MEC, Department of Welfare, Eastern Cape v Kate.

Recently, particularly in the context of education rights litigation in the Eastern Cape, litigants and courts have been experimenting with robust participatory structural remedies described above. The litigation to secure basic school furniture for all learners attending public schools in the Eastern Cape in Madzodzo v Minister of Basic Education constitutes but one example and is linked to the broader campaign and litigation by the organisation, Equal Education, to secure minimum norms and standards for school infrastructure throughout South Africa.

The lecture concluded by emphasising the innovations in socio-economic rights litigation in the Eastern Cape – many of which have now become settled features of South African constitutional jurisprudence – and how they hold broader significance in the context of global interest in socio-economic rights litigation. According to Professor Liebenberg, the Eastern Cape cases not only illustrate how socio-economic rights litigation can advance the interests of poor and marginalised communities through mobilisation and organisation, but show how adverse circumstances can stimulated bonds of social solidarity and activism, and unleashed creative forms of organisation, research, advocacy, and public interest litigating and adjudication.

The lecture attracted over a hundred participants and was attended by the Acting Deputy Vice Chancellor of Academic Affairs, academics and students at Rhodes University, a number of local judges, Justice Johan Froneman of the Constitutional Court, members of the legal profession as as well as members of the public.

For more information about this public lecture, see Rhodes University’s article “Litigating socio-economic rights is hard in any circumstances”.

For more information about this public lecture, refer to the Daily Dispatch’s article “EC leads in human rights adjudication” (30-07-2014).

Sorry, comments are closed for this post.