‘”Litigation is warfare. And there is this thing called the “fog of war”.’ – David Mossop QC, Community Legal Assistance Society (Vancouver)
Litigation is often threadbare with risk and uncertainty. And the longer one marches forward along its path, the more certainly life gets in the way. This is particularly so in the area of public interest and community law, where clients often have multiple crises occurring, and few supports. So much legal work is done in the lead up to, after, or around the heat of the courtroom. Yet it is rarely celebrated, collated, or scrutinised.
The South African lawyers I met with were inspiring not only for their litigation work, but also the thinking they did beyond and outside of the courtroom. Much of this was in the areas of compliance, enforcement, and coordination of misaligned regulatory agents and systems. Below, in this final installment of the travel component of the blog, I set out a few examples of this work.
Monitoring and reporting on institutional arrangements. Since 2010, the Centre for Applied Legal Studies (CALS) has been working with the Save Mapungubwe Coalition on responding to the Coal of Africa (CoAL) (listed on the ASX) mining project on land adjacent to the Mapungubwe Cultural Landscape World Heritage Site (Mapungubwe). I spoke to Louis Snyman, Attorney in the CALS Environment Programme, about his work on this matter. He talked me through CALS’s “experimental, multi-pronged” litigation strategy in this case, which is also set out in its research report titled Changing Corporate Behaviour: the Mapungubwe Case Study (Feb 2014), at p 20-21:
“Although often painted as hardened opponents of all mining, Coalition members tried to adopt a position that was always nuanced. It advocated a considered approach to where and how much mining would be conducted, while being opposed to mining near sites of the highest heritage value and ecological sensitivity. However, since the outcomes of litigation are always uncertain, the Coalition was prepared for the possibility that it would not be able to stop the development. Under this scenario, the Coalition resolved that it would take all necessary steps to ensure that CoAL operated with all the required licenses and that license conditions adequately minimised and addressed environmental impacts, and that CoAL would be held accountable for any non-compliance. Litigation, even if unable to stop the mine, could convince the company to revisit its environmental practices and apply for amendments to licenses that failed sufficiently to protect heritage, biodiversity and water resources.”
And so it did. The Coalition, with the legal assistance of CALS, launched numerous appeals against licenses and approvals granted to CoAL, and made an application for an interdict (an injunction) to prevent environmental harm while these processes were underway. Yet in October 2011, CALS and the Coalition resolved that the “strategic calculus” shifted in favour of negotiations with CoAL, and so commenced these negotiations. Despite stalling in 2012 due to a revelation that CoAL had withheld information from the Coalition, this process resulted in the Coalition being granted a seat on the Environmental Management Committee for the project. Since that time, the Coalition has managed to play a vital role in ensuring CoAL’s compliance to the governance scheme. The Changing Corporate Behaviour report sets out a series of useful lessons learnt along this path.
CALS also found that its extensive work on the Mapungubwe case presented a unique opportunity to scrutinise the efficacy of the state’s regulatory and institutional framework for environmental governance. It therefore compiled a further report titled Structures of Governance: Enhancing or Impeding Environmental Justice? (August 2014) that sets out its findings and recommendations in this area, and which it intends to use as an advocacy tool.
A taxonomy of (non)compliance. Lawyers for Human Rights is “an independent human rights organisation with a 35-year track record of human rights activism and public interest litigation in South Africa“. During my visit there, the Head of its Strategic Litigation Unit, David Cote, helpfully introduced me to the established categories of legal (non)compliance.
This language provides a useful framework through which to assess the likely impact of available legal strategies. For example, one projected response to a court order may be incompetent noncompliance: where an institution will be practically unable to comply with the order. For example, a municipality may simply lack both the engineering skills, and financial resources, to provide its citizens with safe drinking water. In such cases, consideration may most usefully be directed to what action, and at what intervention point, would most effectively redirect resources in order to effect compliance.
Then there is traditional bad-faith noncompliance, vis-a-vis, for example, malicious compliance. The latter is where an institution complies with the words, but not the spirit, of a court order. Bad-faith noncompliance may require further enforcement litigation; however, a grudging form of compliance may be shifted by a more cooperative approach. Where there is an uncooperative old guard within a department with a new forward-thinking minister, for example, there may be more value in cooperating with the minister and encouraging robust departmental human resources practises, than in further litigation.
Interestingly, on further reading, this legal discussion seems to draw on the human resources literature of change management that deals in rule-related behaviour and responses to organisational reform. For example, one scale maps the movement from apathy and non-compliance, through various shades of compliance, to commitment. Other literature focuses on different forms of resistance to organisational change. This may be relevant to further expanding consideration of legal noncompliance.
For those in South Africa, the Public Interest Law Gathering to be held at Wits University in Johannesburg this 22-24 July 2015 is likely to feature a roundtable exploring these issues.
Remaining client-focused. I also met with Tashwill Esterhuizen, Litigation Attorney at the Social and Economic Research Institute (SERI). SERI undertakes legal and research work in order to advance the attainment of socio-economic rights of individuals, communities and social movements in South Africa. Tashwill and I discussed many of the unlawful eviction cases SERI has run, and in particular the Blue Moonlight, Dladla (currently on appeal) and Abahlali cases. SERI prioritises responding to the needs of the community, and so most of its cases come out of established relationships with clients and community groups. Tashwill warned me of the risk of having a case selection criteria without flexibility, which unduly restricts the ability to properly service the legal needs of a target client group. While being merely reactive is not ideal, nor is pursing strategic objectives oblivious to the very people that they intend serve. I, in turn, shared how Consumer Action tries to meet this dilemma. Consumer Action does set annual policy objectives, and these do inform its weekly legal case selection process. However, flexibility is inbuilt by way of an area of policy work called “hot issues“, which is informed by systemic issues emerging out of the legal, and Moneyhelp’s financial counseling, casework.
Playing a coordination role. Probono.Org in Johannesburg operates much like Justice Connect: it is a clearing house for pro bono work undertaken by the private law sector. Its office is also nestled in the Constitution Hill complex, one of my favourite places in the city. Here I met with its Head Staff Attorney, Annelie de Plessis, who told me about Probono.Org’s recently launched “One Child a Year Campaign“. The project calls on lawyers to take up a “watching brief” in child protection matters, providing at least one year’s commitment to monitor and oversee the child protection process. This is in response to a series of incidents in which, despite court orders, the poor coordination of state agents has resulted in children, at worst, being forgotten in hospitals or abused within the child protection system.
The importance of a healthy workplace. Finally, I met with Patrick Hundermark, Chief Legal Executive of Legal Aid South Africa. Through our discussion, I was particularly struck by the pride with which Patrick discussed Legal Aid SA’s recent certification as a “Top Employer“. I got the impression that this had been achieved on the back of a concerted reform effort targeted at revitalising the organisation’s governance practices and systems, and informed by private sector best practice. In particular, he referred to how the organisation had sought to establish a compelling “employee value proposition” (EVP). This is, to quote Wikipedia, “the balance of the rewards and benefits that are received by employees in return for their performance at the workplace“. While the composition of an EVP is specific to an organisation, and will no doubt differ markedly between private, public, and not-for-profit sectors, it is an important organisational consideration across the board.
We also discussed the operation of Legal Aid SA’s impact litigation arm, which is guided by a publicly available Impact Services Policy (set out in its Legal Aid Guide). Through this mechanism, Legal Aid SA funds internally, externally and collaboratively run impact litigation. One interesting example of this is the current and controversial Marikana appeal to the Supreme Court of Appeal. On August 16 2012, 34 people, mostly employed by Lonmin platinum mines, were killed after police opened fire on striking miners. Many more were injured and arrested following this shooting. This tragedy has been compared to the 1960 Sharpeville massacre, and a Commission of Inquiry was called to investigate the incident. In 2013, Legal Aid was ordered by the High Court to fund the legal representation of the injured and arrested Marikana miners before that Commission. In 2014, Legal Aid sought leave to appeal that order to the Supreme Court of Appeal. Its chief executive, Vidhu Vedalankar, is reported as saying that the High Court had trespassed on the separation of powers, in that it “has not only changed the priorities set by Legal Aid SA but fundamentally interfered with its budget, thereby impacting on its ability to provide representation”’.
I have begun the report-writing, and you can look forward to a few short blog posts over the next few months as this work unfolds. Again, I welcome all feedback, suggestions, or clarifications on any of the points or questions raised in this blog to date.
 Picture of Mapungubwe Hill. Source: http://upload.wikimedia.org/wikipedia/commons/5/53/Mapungubwe_hill_limpopo.jpg
 Lawyers for Human Rights entrance.
 SERI sign.
 Probono.Org doorway.