Art or Science? Synthesising Lessons from Public Interest Litigation and the Dangers of Legal Determinism

Abstract

In 2008, one of the largest funders of human rights organisations in South Africa, the Atlantic Philanthropies, published a report that identified several factors for optimal public interest litigation. Despite the relative density of organisations that conduct public interest litigation in South Africa, there has been little critical engagement with its findings. Yet this exercise is pertinent given the growing reliance by South African civil society organisations on litigation to resolve systemic failures by the state, together with the ever more pressing requirement from donors to prove the strategic value of the turn (or return) to the courts. This article aims to contribute to the discussion about the uptake and value of public interest litigation by problematising the premises and recommendations of the Atlantic Philanthropies Report (APR). The report’s analysis is tested, partly through the lens of two recent cases concerning the disconnection of municipal services – Mazibuko (water) and Joseph (electricity) – revealing another type of disconnection: that the public impact litigation process is generally too unpredictable and diffuse for it to be adequately assessed through a formulaic or scientific approach. At the same time, it has more potential for social change than covered in the APR. The article therefore advances a more expansive, contextualised and responsive framework for conceptualising the role of public impact litigation and assessing its impact. The proposed framework takes into account structural conditions of power, agency in the form of social mobilisation and the role of public interest litigation in constituting ‘politics by other means’.1

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