The Centre for Child Law on strategic impact litigation

Based on a learning brief prepared by the Centre for Child Law

Although the legal framework for children’s rights in South Africa is extremely progressive, the fact that South Africa is a developing country means that the realization of the rights guaranteed to children presents a great challenge. As a result, it is necessary that members of civil society actively seek out areas in which the state ignores or has reneged upon their obligations. Although many civil society organizations are very successful in advocating for systemic change, it is often a lengthy process which can result in a delayed response to children’s rights issues that need immediate responses. Strategic impact litigation can however complement advocacy efforts, especially in South Africa where court judgments has the potential to result in the development of  laws,setting precedents which have a lasting effect on the law.  The lack in knowledge and understanding of impact litigation amongst child rights organisations and legal practitioners prevents them from effectively ensuring the fulfilment, protection and enforcement of children’s rights?

What is strategic impact litigation?

Strategic impact litigation can best be explained as involving a strategy whereby cases, that have the potential of bringing about broad legal and social changes for people, are selected and taken to court.  It involves selecting cases to present  before courts with the aim to effect broad changes in society and have long term benefits for all children.  Through the Centre for Child Law’s litigation project, civil society organisations can refer cases to the centre for impact litigation.

When to refer a case to the Centre

The Centre is continuously building networks and partnerships with organizations for referrals of cases that will be appropriate for impact litigation. The Centre takes the following into account when deciding to embark on strategic impact litigation cases:

  • The scale of change for children similarly affected in South Africa;
  • The results from a through situation analysis (if time permits);
  • The broader political context – the time must be right for litigation;
  • Involving partners as amicus curiae (friends of the court);
  • Linking the case with other forms of advocacy and the media;
  • The client’s needs — first ensure that the client’s interests and protection and participation needs are met;
  • Whether the threat of litigation can also achieve the desired result.

How to refer a case to the Centre for Child Law

The Centre for Child Law welcomes the referral of cases from civil society organizations that deal with systemic issues relating to children or emergency protection of children and their rights. If an individual or organization is unsure as to whether the case is appropriate, contact the Centre nevertheless, and a referral will be made if the case does not fall within the scope of those undertaken by the Centre.

Steps to take:

  • Ensure that all options are exhausted before turning to impact litigation;
  • Gather all information available on the problem experienced;
  • Evaluate the type of case –is it a case that could potentially affect a wide range of children, or will it only affect a selected amount of children;
  • If other organizations are involved/experiencing the same problem, inform them of the possible litigation around the matter;
  • Contact the Centre for Child Law as soon as possible.

Contact details:

Centre for Child Law

Room 4-30

Faculty of Law Building

University of Pretoria

Hatfield

0083

Tel: +27 12 420 4502

Fax: +27 12 420 4499

www.centreforchildlaw.co.za

2 Comments

  • 1. The brief is very useful, as it sets out the criteria for how the Centre for Child Law decides to take matters on, as well as the strategy followed and when and how to refer clients. The cases mentioned were also interesting and relevant (especially for a family law environment).
    2. Impact litigation is a very strong tool available to civil society organisations as a mechanism of enforcing positive change where required. The brief highlights that it is imperative to follow through on judgements/orders obtained through impact litigation, by ensuring that the statutory bodies implement and act in accordance with such orders and judgments. The decided cases discussed were also useful and provided relevant information re: the current status quo governing child-care.
    3. The brief is very informative as it gives insight into what instances trigger strategic impact litigation as well as instances where strategic impact litigation is not necessary. Good to know that there is a lot being done to advance children’s rights in South Africa.
    4. The brief qualifies the strategy applied by citing case law. However, the issues are directed at practitioners and organizations only – there is no reference as to how this information can be fed to the public so that there is adequate facilitation and teaching of the procedures and rules to be used going forward. Theories relating to things such as ‘substantive equality and rights’ are of great importance and could be included in the article on strategic impact litigation.
    5. Using impact litigation has definitely played a major role in developing and advancing our law, thus giving meaning to the principles enshrined in our constitution. Such litigation is integral in the laws affecting children’s rights as our courts should be seen us the upper guardians, protecting children whom are most vulnerable. This brief appropriately highlighted the use of impact litigation and gave a simple understanding on how to determine which cases are impact litigation cases that would bring about a broader change.
    6. Strategic impact litigation is an effective approach that will make the litigation process easier and faster for attorneys and advocates. Great work by the Centre for Child Law.
    7. Very useful and relevant especially for people who are dealing with children’s matters. The Centre for Child Law has achieved much success using strategic impact litigation.
    8. The brief effectively sets out what the Centre for Child Law does, as well as how they achieve it (by way of impact litigation). Great that they included practical examples.

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