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.
Centre for Child Law
Faculty of Law Building
University of Pretoria
Tel: +27 12 420 4502
Fax: +27 12 420 4499