The constitutional impact of strategic litigation in South Africa

Abstract

The broad focus of the thesis is an analysis of the constitutional limits to strategic litigation involving the state. The first chapter outlines the background of the study and defines the concept of strategic litigation. In the following chapter the application of the Constitution on legal disputes involving the state is analysed. In the third chapter the concept of strategic litigation is explored within the context of the doctrine of separation of powers. This analysis seeks to ascertain to what extent strategic litigation can serve as an effective check on the abuse of power by organs of state. The fact that the judiciary is the only effective check on the abuse of power by the executive is acknowledged and the resultant tension between the different branches of government is analysed. In the subsequent chapters, the focus shifts to the role of the judge in strategic litigation and the effect of possible subjective constitutional interpretation on the right of the strategic litigant to pursue his or her rights through the courts with the expectation that the court will adjudicate on the matter impartially and fairly and the expectation that the court will come to a reasoned and just decision. Chapter 5 considers the constitutional limitations of strategic litigation by analysing different examples of strategic litigation and the findings of the South African courts. It is shown that constitutional limitations to strategic litigation are in some instances self-imposed by the courts. Furthermore, procedural rules and regulations and ethical considerations are not effective in holding the state litigant accountable for the flouting of constitutionally imposed positive duties. In the final chapter, a short summary is made and conclusions are drawn. It is argued that there is a need in South African law of civil procedure for a set of rules or guidelines to hold the state litigant constitutionally accountable and to force the state litigant to be the model litigant.