PUBLIC INTEREST LITIGATION

MANUAL

Author: TAWANDA ZHUWARARA [LLBS (Hons) UZ)Senior Projects Lawyer Public Interest Litigation

ZIMBABWE LAWYERS FOR HUMAN RIGHTS

(email: zhuwi@myself.com)

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PART IIntroduction

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1 Background

Public Interest Litigation (otherwise referred to as PIL) is now recognized as an inevitable and indispensable feature of modern democracies1. In fact across the globe this type of litigation is being successfully utilized by various groups to enforce human rights, reform laws and legal systems, extend public participation, influence government economic and social policy, promote social equality, foster public accountability, protect the environment and generally promote and protect the rule of law.

Primarily because of its utility, PIL has emerged as an effective and versatile tool for seeking judicial intervention and subsequent government action to address the various socio-economic challenges of the unorganized and powerless segments of the society. PIL has not only enabled public-spirited individuals, groups and conscious citizens to litigate in the interest of the poor and disadvantaged but has also widened the scope for NGOs and civil society to participate in formulating pro-people policies and legal rules.

PIL is often considered an American creation, popularized by the ground breaking case of Brown v Board of Education2; however, this is not entirely correct. This type of litigation has a long and elaborate history dating as far back as the 18th century when it was employed in challenging slavery in England.3 Despite its long and rich history, PIL still remains a comparatively a new and ingenious way of litigating and whose success or failure largely depends on the competence and professional abilities of those lawyers who choose to litigate in this fashion.

This Manual therefore attempts to offer an array of litigation management techniques and procedures for the legal practitioners who decide to undertake PIL matters. The Manual does this by drawing on the various experiences of other litigators and attempts to distill this information into easily understandable practical guidelines designed to enable lawyers to get the maximum benefit out of this type of litigation.

2. Why take on PIL cases?

1 See Harkness Henry Lecture Public Interest Litigation delivered by Retired Hon Sir Ivor Richardson reproduced in the Waikato Law Review Volume 1 [1995] New Zealand.2 In the 1940s and 1950s American schools, like most of American society, then, used to be segregated. Children of colour could not attend schools for whites. As schools for children of colour had fewer resources the National Association for the Advancement of Coloured People (NAACP) organized some legal cases to challenge this policy. These cases were eventually combined into one case Brown v Board of Education. On May 17 1954 the NAACP won inspiring struggles for justice around the US and the world.3 See generally Pressure Through Law C Harlow and R Rawlings Routledge 1992

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The importance of taking on PIL matters may not seem obvious to many and it is therefore necessary at this point to enumerate some of the principal reasons why PIL is such an essential and noble endeavor. Various organizations and individuals have different explanations why they take on PIL cases but these reasons can be summarized into the following categories4:

2.1 To Set Legal PrecedentMost organizations and legal practitioners take on PIL matters in an effort to set new legal precedent(s) which in turn will establish and or protect the rights of large segments of society. The objective of setting legal precedent is usually the primary motivating factor behind the use of PIL. Once set it is this precedent that is hopped to be the bedrock of broader changes in society. In essence individuals who bring PIL want to use law to leave a lasting mark beyond winning the matter at hand.5

2.2 To Promote Access to JusticeThe adversarial system, which is common to most jurisdictions, is a formidable stumbling block for the vulnerable and indigent who attempt to use the legal system to enforce their rights. Apart from the fact that litigation is a complex and challenging exercise it is also prohibitively expensive and therefore inaccessible to the less fortunate in society6. PIL offers an opportunity for such individuals to enforce their rights collectively without the necessity of repetitive individual litigation. This allows those who ordinarily would have been unable to access justice due to their social status to enjoy their rights and legal entitlements. The Hon. Mr. Justice Benjamin J Odoki (Chief Justice of Uganda) in an article titled Public Interest Litigation and the Enforcement of Human Rights7 comments:

Why do we need public interest litigation? Public interest litigation gives more hope for the people than any other strategy given the current socio-economic conditions in our developing societies. Many people are illiterate and unaware of the law and their rights. The vast majorities of people are poor and cannot afford the services of a lawyer. There is also apathy because of mistrust of the legal system. Therefore it is necessary and healthy to allow public-spirited individuals to take up worthy causes on behalf of others who are not in a position to do so.

4 The reasons for taking on PIL matters are largely similar to the uses of PIL see Part II Section 3 of the Manual.5 See generally Guide To Strategic Litigation : An Introduction Children’s Rights Information Network Patrick Geary Simpson Thatcher & Bartlett LLP6 Human Rights and Poverty Reduction Strengthening pro-poor law Legal Enforcement of Economic and Social Rights Katrina Tomasevski January 2005 Rights in Action www.odi.org.uk/rights7 Commonwealth Judicial Journal Volume 15 Dec 2003

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2.3 Fostering Government AccountabilityDemocracy demands that governments be accountable to their citizenry and PIL has been instrumental in reminding encouraging governments to take cognizance their constitutional obligations to the electorate. The most notable successes achieved by PIL in this area have been in countries like India and the United States8. Lord Denning, the eminent English judge, in support of public interest stated in the case of Attorney General vs. Independent Broadcasting Authority9 that:

“In these days when Government Departments and Public authorities have such great powers and influence, this is the most important safeguard for the ordinary citizens of this country so they can see that those great powers and influence are exercised in accordance with the law”

2.4 To Protect the EnvironmentOne area in which PIL has also had a profound effect is in the area of environmental protection. Many cases concerning environmental and ecological degradation have been brought before the courts and in countries like India such matters have yielded positive results. Most environmental litigation has been aimed against large companies who often due to their enormous economic clout ignore various statues and legal rules concerning environmental protection. In the past this economic power had made these companies immune to legal challenge but the trend has been changing due to PIL. In the case of Vellore Citizen’s Welfare Forum v Union of India10the court pointed out that in spite of the fact that the leather industry was such an important foreign exchange earner for India, the said industry:

“…has no right to destroy the ecology, degrade the environment and pose a health hazard.11”

2.5 Strengthening the JudiciaryUnder the doctrine of separation of powers the Judiciary plays an important if not pivotal role in the constitutional balance of power. PIL offers the judiciary the opportunity to scrutinize Government action and policy which in essence then allows the judiciary to exercise its watch dog role over the other two arms of government.

8 See also the Introduction of Public Interest Litigation, Social Rights and Social Policy Siri Gloppen. Paper produced for World Bank Conference New Frontiers of Social Policy: Development in a Globalizing World91973 (1) ALL ER 689 10 (1996) 5 SCFC 64711 At 658

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PIL also gives the judiciary an opportunity to foster and be a catalyst for social transformation12.

3 Purpose of this Manual

3.1 The primary purpose of this manual is to provide legal practitioners with an overview of the general principles relating to the theory and practice of PIL with ultimate aim of encouraging them to undertake such cases.

3.2 The manual is also meant to highlight the advantages and challenges related to PIL in an effort to give potential PIL lawyers a candid and realistic picture of what PIL can and cannot do.

3.3 Furthermore, this manual is designed to provide the lawyers with an array of litigation management techniques which are designed to aid the practitioner and simplify the process of conducting PIL matters.

3.4 This is manual is also intended to provide an outline of the major issues and considerations to be taken into account at each of the important stages of a PIL matter.

3.5 The manual focuses on domestic litigation but also emphasizes the opportunities available in litigation at the regional level and continental level. This emphasis is to encourage lawyers to explore every possible avenue available to give full effect to the rights and entitlements accorded to individuals in constitutions and various international instruments.

4. How to use this Manual

4.1 This manual is for guidance purposes. Consequently, it does not deal with the exact manner in which a PIL case may be presented in any domestic or international court. The guidance in this manual will have to be adapted to the legal and procedural requirements of the court or tribunal in which the PIL matter is filed.

4.2 The manual mainly relates to the strategies and techniques pertaining to the process of filing PIL cases rather than the substance of the cases themselves. The manual does not purport to provide comprehensive and exhaustive information on PIL but is designed as an enabling tool for legal practitioners interested in handling such cases.

12 The ability of the judiciary to be an agent of change is aptly exemplified by Justice Thurgood Marshall’s use of the legal system to challenge the status quo during the difficult time of racial integration and non-discrimination in the U.S.

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4.3 The Manual is structured in such a way that it provides guidance from the conceptualization of the case to its conclusion. Each part discusses a particular stage in the life of a PIL matter and as such may be used as a training manual or resource tool. Specifically the manual is structured as follows:

4.3.1 Part I is the general introduction is designed to explain the use and purpose of the manual.

4.3.2 Part II provides the conceptual framework and is designed to provide the relevant theoretical background for the lawyer. In particular it clarifies the meaning of PIL and differentiates it from ordinary litigation. It also outlines and explains the common terms and phrases associated with PIL.

4.3.3 Part III relates to the important matter of case selection. PIL is usually a complex, demanding and resource intensive exercise and therefore not all cases qualify to be filed as PIL. A careful case selection strategy is outlined in this part of the Manual in an effort to provide some direction and guidance on how best to pick PIL cases.

4.3.4 In Part IV of the Manual provides guidelines on how to conduct a PIL matter. This section highlights the importance of preliminary planning and emphasizes some techniques of handling complex cases. Lastly this section outlines some strategic considerations unique to PIL cases.

4.3.5 Challenges and special considerations characteristic to PIL matters are canvassed in Part V of the Manual. PIL is different from ordinary litigation and particular attention has to be given to such things like locus standi, prescription and procedures relating to suing the state. These issues are discussed in detail in this part of the manual.

4.3.6 A special section is devoted to the enumeration of some of the qualities and skills that a PIL litigator should possess if he or she is get meaningful results from this type of litigation. Part VI therefore appropriately titled PIL in Practice and covers some of the demands PIL will make on the practitioner.

5. Acknowledgements

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This manual has been drafted from a number of sources in and each source has been acknowledged in the footnotes of the Manual. The Author has taken every effort to acknowledge all sources of information and any omission is unintentional and sincerely regretted.

PART IIConceptual Framework

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1 Introduction

In Africa, PIL remains an unconventional and somewhat unique way of litigating. It is therefore important that the starting point for any potential PIL lawyer is to understand PIL’s basic principles and characteristics. The objective is for one has to possess a holistic understanding of PIL and issues related to this type of litigation.

This Chapter is therefore devoted to delimiting and defining Public Interest Litigation. In particular it sheds light on the meaning of PIL and differentiates it from ordinary litigation. It also outlines and explains some the common terminology and phrases usually associated with PIL.

2. What is Public Interest Litigation?

2.1 Basic DefinitionThe term Public Interest Litigation has its roots in the phrase “public law litigation" which was an expression first used by Professor Abram Chayes of the Harvard University to refer to the practice of lawyers in the United States who sought to precipitate social change through court-ordered decrees that reform legal rules, enforce existing laws, and articulate public norms13.

13 See Public Interest Litigation Helen Hershkoff (Associate Legal Director of the American Civil Liberties Union) www.worldbank.org

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Over the years different courts in different jurisdictions have come up with their formulations of what PIL is however the accepted definition was captured in the Indian case of Janata Dal vs HS Chowdhury14 in which PIL is described as:

“… a legal action initiated in a court of law for the enforcement of public interest or general interest which the public or a class of the community have a pecuniary interest or some interest by which their rights or liabilities are affected.”

From the above it is clear that PIL is essentially the use of the court system to create broad social change and or enforce rights and entitlements of not just the primary litigant but the community at large. This description of PIL was canvassed in the Tanzanian case of Mtikila v Attorney General15 where the court declared:

(PIL)….is litigation which is instituted with the desire that the court would be able to give effective relief to the whole or a section of the society….

In essence what makes a suit a PIL matter is the fact that the outcome of the case will have significance not only to the primary litigant but for others too16. In other words the focus of litigation in a PIL matter is broader than the mere vindication or enforcement the individual client’s interest as in the case of conventional litigation.

2.2 Differences with Ordinary LitigationFrom the above it is clear that PIL is fundamentally different from ordinary bi-polar litigation. To further clarify the nature of PIL it is necessary at this point to highlight the major differences between PIL and ordinary litigation.17

2.2.1 Primary InterestTo begin with the interests at stake in PIL are fundamentally different from those in ordinary litigation. In this type of litigation the rights and interests in issue are not confined to those interests of the individual or primary litigant18. In a PIL matter there is always a specific group of people or section of society who although are

14 SC 1982 (India)15 [H.C.C.S No.5 of 1993]16 This definition is the one employed by The Child Poverty Action Group (CPAG) of England. See page 3 Test case strategies, Public Interest Litigation, The Human Rights Act and Legal NGO’s Roger Smith year: unknown17 These differences were adapted from a paper titled Rethinking the Function of Civil Litigation by Yoshitaka Wada18 This point will be further clarified in 2.3 below

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not part of the litigation process will be affected by the outcome the litigation.

2.2.2 Rights enforcedThe next most fundamental difference with ordinary litigation relates to the nature of the rights enforced by PIL. In most cases PIL matters are concerned with the vindication of collective rights rather than individual rights. In some cases the rights advocated for are very often newly created ones, based on no preexisting statute (for example environmental rights or nonsmoker’s rights) in other words PIL is not confined by precedent but rather is precedent setting.19

2.2.3 RemediesThe remedies usually applied for in PIL matters are not limited to remedies for past damage but more often than not include future action, typically in the form of injunctions of public or private organizations.

2.3 Main Characteristics of PIL casesIn defining and understanding this type of litigation it is also important to also highlight some of the common features and central characteristics of such cases. It is these characteristics that make this a unique way of litigating. These characteristics are enumerated below:

2.2.1 As mentioned above a PIL matter from the onset is designed not only to deal with the rights or concerns of the litigant(s) who bring the matter for judicial adjudication but is inherently designed to deal with the rights and concerns of similarly positioned individuals. This is reflected in the pleadings and the orders sought20.

2.3.2 The legal issues canvassed in PIL matters are always of broad public concern. In other words the general populace have some vested interest in the matter regardless of the fact that they might not be directly involved in the suit itself.21

19Page 85 of the Function of Civil Litigation by Yoshitaka Wada20 The court orders in PIL are usually couched in such a manner that is general and affords rights to those who necessarily were not direct parties to the litigation.21 An example of such a case is the US case of Clients for the Responsible Destruction of Chemical Weapons of the Miami Valley v. The U.S. Army where the claimants sought a court order to block construction of a nerve gas incinerator in a poor community with a substantial African-American population, and also an order to reduce emissions at the army’s waste-water facility.

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2.3.3 The primary aim of this type of litigation is the creation of precedent. PIL involves the selection and bringing of cases to the courtroom with the aim of seeking judgments that have a broader impact for future litigants and similarly placed individuals. It is for this reason that settlement is so unpopular in PIL.22

2.3.4 PIL goes further than the mere vindication or enforcement of existing legal rights and interests but often used to create new ones as well as expand existing ones.

2.3.5 In certain instances the claimant in these PIL cases may not have direct personal, proprietary or pecuniary interest in the outcome of the litigation. This is common in jurisdictions that have developed relaxed rules around locus standi.

2.3.6 Public Interest Law cannot be confined into a specific field of law and this is consistent with the inherent flexibility and innovative characteristics of PIL. Put differently, any law affecting the public in any way could be the subject matter of a public interest action.

2.4 Forms of PIL PIL as the term is used here covers a range of different legal actions which are generally considered to be in the family of PIL.23 The modes and methods of bringing these cases to court vary from jurisdiction to jurisdiction but the most fall into these following categories:

2.4.1 Strategic Litigation These are cases that raise legal issues that are part of an overall reform strategy. What makes a case strategic is that it falls into a broader law reform agenda or advocacy program. Such cases are usually taken up by organizations and groups that are concerned with one particular aspect of the society such as children’s rights or racial discrimination. This method of litigation was employed by the American Civil rights movement especially by the American Civil Liberties Union in its fight for equality and justice for black people in the United States. Such cases do not have to be high profile but can be a series of connected cases that are aimed at some ultimate future legal goal.

2.4.2 Test Case Litigation

22 An example of precedent setting case that affords future litigants the opportunity to sue is the South African case of Government of the Republic of South Africa and Others v Grootboom and Others 2001 (1) SA 46 (CC). where the court held that in South Africa there is a right to housing.23 Public Interest Litigation, Social Rights and Social Policy Siri Gloppen socialpolicy@worldbank.org

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A test case is a case that brings before the courts a legal issue(s) that has not been sufficiently dealt with or has never been judicially adjudicated upon. Usually a test case challenges the legality of existing laws and regulations or attempts to give new meaning to existing laws. A test case may be filed on behalf of a single individual, but the effect of stare decisis will give the judgment precedential effect in other lawsuits filed by other individuals. This is the most risky type of PIL but is the most rewarding if it is successful. Test case litigation has been used successfully across the world to extend existing rights and more importantly create new ones24.

2.4.3 Impact LitigationImpact litigation is the most common type of PIL and the term impact litigation has is often used interchangeably with PIL. Generally impact litigation cases are matters whose conclusion has a broader impact on the public. Usually impact litigation raises contentious or controversial issues and judicial pronouncements in such cases always have a wide and noticeable impact on society in general.

2.4.4 Class ActionsA class action, also known as a Representative Action, is a procedural device used to determine the rights of and remedies, if any, for large numbers of people whose cases involve common questions of law and/or fact. Class actions should be distinguished from mass actions or group claims. In a class action, the plaintiff seeks court approval to litigate on behalf of a group of similarly-situated persons whereas in a mass action the each individual plaintiff will appear on the court papers and for all intents and purposes is directly part of the suit.25

Class actions range from claims involving very small individual recoveries (such as consumer claims) that would otherwise likely not be litigated because no individual has a stake sufficient to justify individual litigation, to claims in which individual damages are high but the volume of claims creates advantages in group resolution. One example of such a class action is the historic claim of Dukes v. Wal-Mart Stores, 26 In this case Dukes a female employee of

24 An example of a test case was the US case of Daniels-Finegold v. Massachusetts Bay Transportation Authority which was a class action on behalf of people with disabilities who have been discriminated against by the MBTA’s failure to provide readily accessible and usable transportation.25 See generally the Zimbabwean case of Petho v Minister of Home Affairs and Another [2002] ZWSC 80; SC80/02 on the principles relating to class actions.26 222F.R.D. 137 (N.D. Cal. 2004))

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Wal-Mart claimed that the retail giant discriminated against female employees in it paid its female employees less than men performing the same jobs, and failed to promote women to management jobs at the same rate as men.

2.4.5 Mass ActionOriginally mass litigation was envisaged as a mechanism to combine multiple small claims into a single lawsuit so that it would become financially practical for the collective group to seek recourse to the courts27. As pointed above the main difference with class actions is that Mass Actions are not representative and each litigant appears on the court papers.

3. Uses of Public Interest Litigation

PIL is a creative and powerful means for precipitating social change. It can be used in a wide variety of ways and some of them are enumerated below:

3.1 Rule of LawThe rule of law in its basic form is the principle that the law is supreme and should be respected by all. PIL has been used extensively to enforce constitutional and legislative provisions with the aim of to translating legal rights and entitlements into practical reality. It is within this process of enforcing the law that PIL plays the important role of protecting and promoting the rule of law.

3.2 Clarifying lawsIn certain instances PIL is instrumental in the clarification of existing laws. Fresh legislation is often difficult abstract and often difficult to relate to the prevailing situation on the ground and PIL offers the Courts an opportunity to make various pronouncements that explain or spell out the law and its resultant effects. This clarification can help strengthen the legal system by providing better understanding of the legal rules themselves.

3.3 Challenging lawsThe most common use of PIL has been in the challenging of laws and or policies that violate the rights or fundamental rights. Using PIL one can also prevent the enforcement of bad law, strike them from the statute books and force governments or other defendants to change policies and practices.

3.4 Building laws

27 Class and Public Interest Litigation: The Raffles Town Club Saga Molly Lim SC/Roland Tong

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PIL can reveal gaps in existing laws and offers the judiciary an opportunity to fill in those gaps and correct inconstancies. It can both lay the groundwork for future cases and speed up the development of new practices and policies to address violations of rights or other protections on the ground.

3.5 Fostering Government AccountabilityGovernment action and policy is by nature subject to legal challenge if it is outside the realm of legality. PIL is particularly suited to encouraging the Government to ensure that its actions and policies are in conformity with the law. This view was expressed in the case of Dr. D.C. Wadhawa v. State of Bihar28where the court stated

…that exercise of the power by the State, whether it be the legislature or the executive or any other authority, should be within the constitutional limitations and if any practice is adopted by anyone of them which is in flagrant and systematic violation of its constitutional limitations, the petitioner as a member of public would have sufficient interest to challenge such practice by filing a writ petition and it would be constitutional duty of the court to entertain the writ petition and adjudicate upon the validity of such practice

3.6 Creating PressurePIL (especially before international bodies) even if unsuccessful, promotes government accountability. In many cases, the mere fact that a matter is brought before the courts initiates positive change. The extent to which a government will feel pressured by the filing of a suit largely will depend on the attitude of the government and its respect for the rule of law.29 In some instances the pressure created by the suit can result in change even when the matter its self is unsuccessful in court.30

3.7 AdvocacyPIL is an excellent advocacy tool and may be instrumental in advancing causes or goals. One case can have a dramatic impact as it affords litigants an opportunity to send a message out to the media, the public and government. One such example where PIL has been used as an advocacy tool is the famous Diane Pretty case in which the Voluntary Euthanasia Society of England was also active. The case related to an

28 AIRSC 579 at para 3. (Indian Case)29 The case of Mike Cambell (Pvt Ltd) and Ors vs. The Republic of Zimbabwean SADCT: 11/08 was among other things designed to create international pressure on Zimbabwe over the farm seizures.30 In the Chinese case of Qiao Zhanxiang vs. the Ministry of Railways (2001) the plaintiff sued the Ministry of Railways for raising ticket prices during the Spring Festival without the approval of the State Council or any public consultation. Qiao lost the case both in the first and second instance. However, since the lawsuit the Ministry of Railways has begun to holding public hearings on ticket pricing which is a marked improvement from the time they would arbitrarily raise prices.

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application to the Attorney General for an assurance that a terminally ill patient’s husband would not be prosecuted under the Suicide Act of England if he helped her to take her own life.31

3.8 Documenting injusticesIn many jurisdictions, PIL is used document or expose institutionalized injustice even when the lawsuit is unlikely to succeed. For victim of human rights violations, this process of having their case heard by a court can often be a very important form of redress in and of itself.32

3.9 Public AwarenessPIL can bring a cause or issue into the limelight, sometimes at far less expensive cost than mounting an elaborate media campaign. This attention raises general awareness and foster public discussion and debate. In China in the case of Xu Jianguo vs the Public Security Bureau33 the claimant challenged the practice of the Chinese Police who used to stop anyone and demand to see identification without them showing the concerned individual any identification or furnishing a reason for stopping them. Although the claimant later withdrew the case the suit put into the limelight the arbitrary nature of Police power in China.

3.10 Civic EducationBecause of its cutting-edge nature, PIL raises the level of legal literacy by educating the legal profession as well as the general public on the issues and intricacies of social justice. Most individuals are unaware of their rights and PIL, and the publicity that usually surrounds it, goes a long way in raising public awareness on various social rights issues.

4 Advantages of PIL

4.1 ImpactA single case can have extensive legal and social effects. As outlined above the main purpose of PIL is to have an impact beyond just vindicating or protecting the interests of the primary litigant(s). This makes PIL an invaluable tool for precipitating social transformation on a

31 The significance of this case is that it raised awareness and tried to advocate for an individual’s right to take his or her own life. The case generated a lot of publicity and debate around the subject. See www.justice4diane.org.uk32 A good example of such a PIL case is Zimbabwe Lawyers for Human Rights, Human Rights Trust of Southern Africa vs. The Government of Zimbabwe Forced Evictions Hopley- Porta Farm and Hatcliffe Communities ACHPR Case COMMUNICATION No. 314/05 where the complaint against the Zimbabwean government was centered on the fact that the government’s actions in a clean-up exercise had rendered over 7000 people homeless.33 Quoted from China Labour Bulletin Research Reports Public Interest Litigation in China: A new force for Social Change October 2007 www.clb.org.hk

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wide scale. The power and ability of PIL to precipitate social change was aptly demonstrated in the case of The American Council for the Blind et al v Henry M Paulson Jr (The Secretary of the Treasury)34 where the court declared that the United States paper currency discriminated against the blind in that it did not allow them to participate independently in society. This pronouncement has had a profound effect on the American society and if confirmed in the US Supreme court will lead to a fundamental revision in the how the US dollar is minted.

4.2 Broadens Access to JusticeMost people are unaware of their legal rights and are much less in a position to assert and enforce those rights. PIL allows such individuals to get legal redress even in circumstances in which they were not directly involved in the litigation. By this PIL broadens and strengthens access to justice especially for the vulnerable and indigent.

4.3 Enriches the LawPIL tests and clarifies the content of existing laws, enriching the legal system with precedent that benefits future individual litigants. This is particularly important in common law jurisdictions where stare decisis is the rule.

4.4 Mainstreaming issuesMany good causes suffer because of lack of publicity. PIL offers such causes a platform where the issues may be mainstreamed and in certain circumstances even increase public attention. PIL is a cost effective way to campaign and advocate for change. The case of Hoffmann v South African Airways35managed to mainstream the plight of HIV positive people in employment.

4.5 Cost EffectiveThe costs of individual litigation are often prohibitive but PIL offers a cost effective way of bringing an issue that affects a large number of people before the courts.

4.6 Promotes ConstitutionalismAt the core of any democracy is the concept rule of law. As outlined in para 3.1 above PIL may be used in the protection and promotion of the

34 United States Court of Appeals (for the District of Columbia circuit) No. 07-5063 Decided May 200835 2001 (1) SA 1 (CC).

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rule of law. By emphasizing government accountability one further entrenches constitutionalism.

5. Challenges of PIL

5.1 Unpredictable OutcomeBy its very nature, the outcome of any litigation can rarely be assured. PIL is even more unpredictable mainly because it often deals with issues that have never been dealt with or adjudicated upon. This has led some PIL practitioners to adopt a trial and error approach which in essence is the filing of multiple PIL cases in different fora and the refinement and modification of legal strategy until success is achieved.

5.2 Finding the right ClientPIL is dependent on finding the right client. Ideal clients are not easily found in the real world. There are many client problems such as fear, lack of resources, inability to understand the process which makes PIL difficult compared to ordinary litigation.36

5.3 EnforcementWhere legal protections and enforcements of court decision are weak, PIL may not achieve the desired impact. The issue of enforcement is arguably the greatest weakness of PIL and should always be at the back of the mind of any serious PIL lawyer.37

5.4 Conflict of InterestAs a strategy PIL has been criticized for being lawyer based and in certain circumstances disempowering the very communities that it is designed assist. Sometimes the interest of the lawyers are more centered around creating precedent than providing real remedies thus relegating claimants to victims and tools for generating court victories that do not necessarily benefit them.

36 See 5.1.5 of Part 3 of this manual37 For a general discussion on compliance and implementation of PIL judgments see Public Interest Litigation, Social Rights and Social Policy Siri Gloppen : socialpolicy@worldbank.org

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PART III

Case Selection

1 Introduction

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Public Interest Litigation matters are not only time consuming and resource intensive but are also complex and difficult to handle. It is for these reasons that it is important to have a comprehensive case selection strategy that ensures that only the right cases that are filed in this manner.38

This part of the manual is dedicated to highlighting some of the important considerations that have to be taken into account before a PIL case is filed. The considerations below are not hard and fast rules but are supposed to offer some guidance on the issues that have to be taken into account before deciding to take the matter on.

2. Where to find PIL cases

Lawyers seeking to undertake PIL matters use various techniques of networking to find the right cases to take on. Below are some of the ways in which have been employed to find PIL matters:

2.1 Lawyer networksMost individuals faced with a legal problem often approach lawyers first. It is therefore important to create and maintain a network of legal practitioners who refer to you cases that fit the criteria of cases you intend to take up. It is important that other lawyers are made aware that you offer representation in PIL cases and this will increase the likelihood of having matters referred to you.

2.2 NGO referralsReferrals from NGOs are also a common method of getting PIL cases. NGOs are usually in direct contact with communities and are thus able to identify potential cases and refer them to PIL lawyers. One should have contacts and create synergies with various NGO’s. The NGO community should be made aware of your expertise and your desire to take on such matters. This is the most effective way of getting PIL matters.

2.3 Media ReportsMedia reports offer a wealth of information on potential cases and also provide an important indicator of what causes are popular and topical within the society. Once a matter is identified then the next step would be to approach the individuals or group concerned and explore if they are interested in litigating.

38 While this part of the manual focuses on ways in which lawyers can plan strategically for selecting PIL cases, it is important to note that the majority of PIL matters arise on an ad hoc basis.

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2.4 Publications and PublicityThrough the publication of journals, newsletters, and case work bulletins PIL practitioners are able to generate PIL work. When the public is made aware of the possibility of litigating around certain issues that affect them, they are more likely to approach you for assistance.

2.5 AdvertisingAdvertising for PIL cases is arguably the most sophisticated approach to seeking PIL matters. In 2003 a British organization called the Child Poverty Action Group (CPAG) using its website indicated 11 areas in which the organization was seeking cases to take39. This can be a very effective and direct method of getting matters for litigation.

3 Preliminary Considerations

Before you decide to take on a PIL case there are some initial considerations that you should take into consideration. One needs to look at relative impact if the case, if litigation is the proper way to address the problem, what the public perception is and more importantly what the government’s position is on the issue. These concerns are discussed more in detail below:

3.1 Impact of the caseThe most important question is if the case will generate sufficient impact to justify it being filed as a PIL matter. Generally the case must, if won, establish some groundbreaking legal principle which will be of widespread benefit to the public or significant section of it40. In other words the case should involve some legal issue that exemplifies or relates to a broader social problem. PIL is about using the law to leave a lasting mark beyond just winning the case at hand. This means that PIL cases are as much concerned with the effects that they will have on larger populations as they are with the end result of the cases themselves.

3.2 Consider if Litigation the right strategyLitigation is inherently risky and the decision to litigate should never be taken lightly. Litigation often removes the possibility of an amicable settlement and ends any ongoing negotiations. It therefore follows that all non - litigation avenues have to be explored and that litigation should only be resorted to if all else fails.

39 See http://www.cpag.org.uk/cro/test.htm 40 This formulation comes from the Canadian Bar Association - Legal Resources Foundation (Zimbabwe) Test Case Programme January-April 2003 Report

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3.3 Public perceptionIt is also important to consider how the public will react to your case. Public perception is very important in PIL and a negative perception of your case can spell disaster. It is therefore important to consider if the cause or key issue in the case is easy to understand and if it has (or will have) general public support. If the cause is unpopular it is likely that the case will receive bad publicity and once a PIL matter is unpopular it is hard to convince the court it should decide in your favor because it is in the public interest to do so.

3.4 Government PositionEven a strong case can be undermined or stalled by a determined government opponent. It is important to also assess whether the government will oppose your case and if it will oppose whether that opposition can be countered by filling a good case.

3.5 Complexity of the caseAn early assessment of the relative complexity of the case needs to be carried out if adequate preparations are to be made. The complexity will depend on how difficult it will be to convince the courts to grant the relief sought. Once it is clear that a matter will be particularly difficult to pursue a realistic assessment of whether the matter should proceed to litigation should be made. It is not wise to proceed with a case that you are not competent to deal with or is unlikely to be understood by the court.

4 Assessing the Strength of the case

4.1 Can the case be won on the factsOne common mistake made by many lawyers is to focus on the legal arguments to the detriment of the facts. It pays to remember that all cases require factual underpinning. It is important then to ask whether you have the factual evidence to win the case. This is of particular importance in environmental cases. One must be familiar with what must be proved both to succeed on the substantive claim and to support the remedy sought, then list the factual evidence that is required to establish each point. A strong case is one were all the evidence is available or is readily available. A case with many factual gaps will be difficult and is unlikely to succeed.

4.2 Can the case be won on the lawIt is important to start with a realistic assessment of the strength of the case against existing laws and legal norms. If the law is not favorable,

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there should exist some other reason to proceed with litigation. Weak cases may be brought because there is no other choice or the case might be brought to highlight the gaps or obvious injustices in current legislation or legal norms.

In other words where the case is unlikely to succeed on law then there should be another reason for litigating. PIL unlike ordinary litigation can be successful even if there is an unfavorable judgment.

4.3 Is there an effective remedyIt is important to think about remedies from the onset of the case. It is common that litigants win legal arguments but are unable to obtain an effective remedy especially when litigating against governments. It should be understood from the onset that a really determined opponent can block or delay enforcement of a ruling for a long time. The ultimate question is whether or not you can get an effective remedy. However, sometimes a symbolic victory may be enough and justify pursuing the matter.

4.4 What are the risks of losingIn ordinary litigation losing only affects the individual litigant. However, if litigation is a proactive attempt to establish a new principle or benefit a broader group the risks of loosing are greater and will not only affect the individuals that brought the suit by similarly positioned individuals. It is important to emphasize that losing a PIL case could mean the setting of a bad precedent that could easily build road blocks for future cases. Furthermore losing can reinforce or strengthen a harmful law or practice, thereby making matters worse. On the other hand a blatantly unjust loss may be helpful to the cause.

5 Selecting the client

All litigation starts and ends with clients. PIL is usually (but not always) affected by the nature of the clients or principle litigant. Success in PIL cases is dependent on finding the “right client.” Ideal clients are not easily found in the real world; however, the many problems associated with clients may be addressed through clever client management as shown below. There are basically three types of clients in PIL namely Individual clients, group clients and Institutional clients and each category of client has its own considerations.

5.1 Considerations for Individual Clients

5.1.1 Does the client have locus standi

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As highlighted at the beginning of this section of the manual, PIL cases can arise in several ways. Where the client has suffered direct harm locus standi will not be an issue but in the case of proactive litigation on behalf of an identifiable group it is important to ensure that the individual client who is the principal litigant has sufficient interest to satisfy the requirement of locus standi.

Where you choose to proceed by way of class action and your client is the representative of the group it is important that you assess if the client satisfies the requirements to act in such a representative capacity. It is important to bear in mind that a good case can be lost by over-looking the obvious.

5.1.2 Client’s interest in the matterThe primary goal of ordinary litigation is to obtain an outcome for the client, however, with PIL the lawyer has to also focus on obtaining a result that has a wider impact and benefits others even though they were not a part of the suit. In light of this, it is important to realize that the interests of the individual client may at times come into conflict with the overall goal and when this happens it is likely that the client will lose interest and ultimately abandon the case.

5.1.3 Possibility of settlingIt is common that in contentious cases or where the stakes are very high for the weaker party to offer settlement. It is not unusual for governments or rich corporations to delay an adverse precedent indefinitely by paying off claimants41. In the case of PIL the goal is to set a precedent that has a wider impact on society. It therefore follows that settlement is not as desirable and actually militates against PIL’s desire to create the said precedent. It is therefore important to gauge if the client is committed to law reform and will see the case to its logical end.

5.1.4 Will the client work with othersSome cases are much stronger when brought in conjunction with media and law reform campaigns. There may be established advocacy groups who are concerned about the very same issue and are prepared to help, but whose goals are broader than those of the individual client. The chances of success in PIL are considerably lower where the litigant is not prepared to work in collaboration

41 Settlement is a big drawback in a PIL matter and was listed as one of the major challenges faced by PIL in South Africa, see A Strategic Evaluation of Public Interest Litigation in South Africa by G Marcus and S Buddlelender The Atlantic Philathropies June 2008

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with others consequently it is critical that you assess is the client is able to work with others.

5.1.5 Clients personal attributesYou have to thoroughly review any issues about the individual client that could undermine the case. The ultimate question whether the client is the best individual to present the case. The ideal PIL client is one

5.1.5.1 who has locus standi to bring the matter before the courts

5.1.5.2 who fully understands the legal issues at hand.

5.1.5.3 who is committed to seeing the matter through to its logical conclusion.

5.1.5.4 who presents the facts and evidence in a manner that fully illustrates the legal issue in contention

5.1.5.5 who is prepared to work with other strategic partners

5.1.5.6 who is an ideal spokesperson for the cause

5.1.5.7 who is credible and whose personal history or circumstances are unlikely to distract focus from the issues being pursued.

5.2 Considerations for Multiple ClaimantsJoining several clients as claimants in the same proceedings has several advantages and is commonly referred as a mass action. This should obviously be distinguished from class actions which are representative in nature.

5.2.1 Advantages

5.2.1.1 SecurityThere is obvious comfort in numbers and being a claimant in large group gives a sense of security not only to the claimant but also to the cause being pursued.

5.2.1.2 Presentations of Multiple Fact Situations

Mass litigation allows for the presentation of multiple fact situations which counters the argument that the client’s problem is unique and therefore minor. It helps to show

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that the issue at hand is not isolated and affects a large number of people.

5.2.1.2 ContinuityThe loss of a client for whatever reason in Mass actions does not spell disaster as in the case of loss of an individual client.

5.2.2 Special Considerations

5.2.2.1 Conflict of FactIt should be emphasized that the greatest danger in the filling of a mass actions is where there are major factual discrepancies amongst the claimants. Such discrepancies militate against the claim and therefore special attention to the uniformity of facts is pivotal.

5.2.2.2 Conflict of InterestIt is not uncommon for multiple claimants to have different reasons for litigating. It is important to mount a mass action where the interests of the claimants are to a greater extent similar. Where there are conflicting interests it will be difficult to get instructions and also develop a good case strategy.

5.3 Considerations for Institutional Clients

In certain instances an advocacy group or institution with interest in a particular issue may want to participate in PIL as an institutional litigant, either alone or in coalition with other organizations. Below are some of the issues that have to be considered before using an institution as the primary claimant.

5.3.1 Does the institutional Client have locus standiIn most jurisdictions it is a legal requirement that the claimant in a suit has some special interest or must have suffered some special injury before they have locus standi to bring a matter before the court. This requirement is obviously difficult to satisfy in the cases where an institution or organization is the principle litigant. Below are some issues that need to be taken into cognizance.

5.3.1.1 Does the law allow it?The most obvious starting point is to enquire if the Organization is allowed to sue on behalf of other

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individuals or class of individuals. It is important to demonstrate in the pleadings that the organization has some direct or special interest in the matter. This is particularly important to establish locus standi and to overlook this requirement of could mean the failure of a suit. In jurisdictions that allow class actions or representative actions it would be prudent to explore this route first before using an institution as the principle litigant.

5.3.1.2 Does the Institution or Organization have capacity to sue

It might seem obvious but it is important to establish that the institution has legal capacity to sue ad be sued. It would do no harm to have a look at the enabling document of the organization to establish that it has legal capacity to act as a litigant in a suit.

5.3.1.3 Should the Institution or Organization be the primary claimant

It is also important that the organization be capable of presenting all the material facts necessary to sustain the matter in court. If this is not possible by then it will be prudent to explore the possibility of the organization participating in the litigation as an intervener (amicus curiae) rather than the principle litigant.

5.3.2 Is it the right body to litigateBefore litigating it is imperative that you establish that the organization is indeed representative of the section of society it purports to litigate on behalf of. Some of the key considerations include:

5.3.2.1 Is the organization or institute well recognized and acknowledged as a major stakeholder in the area it wishes to litigate in?

5.3.2.2 Is the organization competent to provide accurate and up to date facts and evidence to the court?

5.3.2.3 Does the organization have a large membership or affiliated organizations? This is imperative as it is

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important to establish that the organization has authority to represent the interest of others.

5.3.2.4 Will a ruling in favor of the organization be meaningful to the people or section of the community it represents? It is important to remember that relief is granted to the one who approaches the courts. A decision in favor of the organization should have a real and direct impact on the people it has litigated for.

5.3.3 Does the Organization fully understand the issues at handIt is vital that the organization or institution litigating is fully aware of the legal issues involved and more importantly is conscious of the difficulties that come with litigation. Most Public Interest lawyers will point out that institutional litigants are sometimes the most difficult clients especially when the senior members of the organization have not fully understood the process of litigation.

6. The Defendant

Determining and selecting possible a defendant(s) in a PIL suit is just as important as finding the right client. In most cases it may be very clear who the appropriate defendant should be however there may be more options available.

6.1 Types of Defendants common to PILSince the aim of PIL is broader social change the defendants are most often government or branches of Government. However, in certain instances it is possible to sue private companies and individuals. Below is an enumeration of some of the defendants found in PIL.

6.1.1 National GovernmentsGovernments by nature have the broadest influence and power in society. Consequently, governments’ posses the most power to transform society on a large scale and change practices on a wider scale. Successful PIL against governments has the most profound impact but experience and common practice has shown that government can be the

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most resistant to change and will in contentious matters mount the most spirited defense.

Before deciding to sue the government it is important to enquire:

6.1.1.1 What is the governments likely position to the suit and if it is

likely to oppose the action how would it oppose, the reason

for such opposition.

6.1.1.2How much effort and resources will the government devote to opposing the action and what would their likely strategy be?

6.1.1.3Are there any upcoming elections or other changes in power that might influence the national governments position?

6.1.2 Arms of Government and local Government.This category includes national and local authorities, government ministries and certain statutory institutions. In many jurisdictions municipalities and other political subdivisions usually have their own governmental powers and as such will be appropriate defendants where the focus is change at a local level. However suing lower levels of Government come with its own set of considerations;

6.1.2.1If the suit is successful, will the defending government body have the resources funds or even political capacity and infrastructure to comply with the relief granted.

6.1.2.2Is there localized community opposition. If so what are the ways to overcome it.

6.1.2.3Will the suit generate national attention, and if yes will national politics change the perception of the suit or otherwise influence the government body or community at large.

6.1.3 Corporations

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With the advent of globalization and the rise of corporate power, many large multinational business entities now possess considerable social and political influence. Consequently suing corporations of this nature may have a considerable impact and set a strong precedent for socially responsible business practices.

However, due to the fact that many corporations have considerable resources at their disposal legal suits against them may be tricky and complex and more often than not drawn out and expensive.

On the other hand it should be noted that due to the fact that the goodwill of any business entity is directly dependant on public perception the threat of legal action or the bad publicity generated by such legal action can create considerable pressure on the corporate body to comply and or even capitulate.

6.2 Selecting the Right DefendantIn selecting the right defendant to sue one has to take the following into consideration.

6.2.1 Substance of the caseThe substance of your claim as well the laws you wish to enforce usually are the primary determinants of who the appropriate defendant should be.

6.2.2 ProcedureThe laws that underline your claim or the court in which you bring the case may have procedural requirements that suggest or mandate selecting a particular defendant for example the Attorney General.

6.2.3 SuccessStrategically it might be easier to prove a case against one potential defendant than another. Such instances arise when you do not have sufficient evidence against a particular defendant and in this scenario it is prudent to focus attention and resources on defendants against whom you have most evidence against.

6.2.3 Remedies

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Different defendants may offer different solutions may be able to offer different solutions so it is best to gauge which defendant will offer the best remedy.

6.2.4 Multiple DefendantsJust as it is possible to have multiple plaintiffs it is also possible to have multiple defendants. It may make sense to sue more than one party to get the relief that you are requesting, particularly if the claim is for money. This is especially the case where there is joint liability.

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PART IV

Conduct of the Case

1. Introduction

PIL is unlike ordinary litigation. The demands made on the legal practitioner go beyond those common to conventional litigation. PIL is often difficult and therefore there is a need for careful planning and strategy formulation. The success or failure of a PIL action largely depends on preparation and how it is presented in court.

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This part of the Manual is dedicated to providing some techniques that are useful in conducting a PIL matter. It is important to note that this chapter focuses on the issues that are peculiar to PIL.

2. Command of the Case42

After you have decided to take on a PIL matter it is imperative that you get a firm grasp of the case and all issues relating to it. The case needs to be properly analyzed from the onset and a well structured litigation strategy formulated. In particular you should

2.1 Outline the Goals for LitigationThe first and most important task is to define the reason why you are litigating. The answer to this question gives direction to the whole process and allows you to focus resources and energy where they are needed most. One of the main goals of any PIL matter is to set precedent for similar cases in the future to succeed. The impact of the case is judged by its value for future plaintiffs.

2.3 Identify key issuesThe next step of any case analysis is to identify the "key aspects" of the case. In other words what are the basic elements of the matter? Key to this identification process is to assess what you need to establish in order for the matter to succeed in court. This involves identifying the key facts and the cause(s) of action as well as the legal remedies to which they give rise to.

2.3 Assess Information and Evidence availableOnce the key elements of the matter are identified, you should then examine what information is available to support each of those points. This will involve both an analysis of the facts and arguments that support the case. You should also do an analysis of those facts that might damage the case.

2.4 Determine Burden of Proof In dealing with the key elements which must be established for the case to succeed, it is important to bear in mind what you will need to prove in

42 See generally the Civil Litigation Management Manual (The Judicial Conference of the United States Committee on Court Administration and Case Management) 2001This manual is essentially for judges but offers great pointers for legal practitioners handling complex cases

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relation to each of those elements. If the burden of proof lies with the other side, then it may be that their lack of evidence on a certain point will be pivotal to the success of your matter.

3. Formulate a working case theory

After the preliminary analysis of the key elements of the case, one should proceed to develop a working case theory. Put differently you should produce the best argument on the information available. The working case theory should be clear, simple and easy to believe.

For example The Divorce Act violates Article Articles 21 and 31(1) of the Constitution of Uganda in that it allows discrimination between the sexes

More importantly the working case theory should correspond with the client's instructions, but also should be persuasive to a judge or jury. It should take account of the available evidence and ignore evidence which will be inadmissible (and also try to avoid evidence which may simply be implausible).

4. Investigate and verify the Facts

It is common cause that the success or failure of a PIL case largely depends on the amount of preparation and quality of information gathered. This is especially the case in complex matters. For this reason it is imperative that time and resources are ploughed into fact investigation and information gathering. The following questions will be helpful.

4.1 What additional information is required?It is important to first establish if you have all the required information to sustain the action. Should there be need for additional information the next question would be where this information can be found. Statistical information is usually readily available from government departments and in certain circumstances technical information can be found in institutions of higher learning like Universities. It is important to rely on credible information from reputable sources. It is also critical to have information that is usable in court.

4.2. Which witnesses can support the factual issue?The quality of witnesses and the information that they will provide the court is very important. In PIL there are essentially two types of witnesses’ namely expert witnesses and witnesses to corroborate a certain factual issues. The use of expert witnesses is very common in PIL and in certain circumstances they are the heart and soul of the case. It pays to choose

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your experts wisely and to rely on respected and accomplished experts before flamboyant controversial ones43.

4.3 Which facts are important?You should identify and focus on the key factual elements of the case. This is of particular importance in cases where causation has to be established. This usually occurs in Environmental Damages claims or mass tort (delict) actions. As mentioned in para 4.1 of Part III the factual aspect of case should not be ignored

5. Preparation

The importance of the adequate preparation of cases cannot be exaggerated. Even for the experienced PIL practitioner thorough preparation is important. PIL matters usually involve a large amount of material and issues that the lawyer has to know intimately. It’s best to focus on:

5.1 Researching the areaOnce the legal issues have been identified the next logical step is to carry out comprehensive research around the area. It is important that the lawyer that is likely to present the matter in court to do the research personally. It’s crucial that this lawyer have intimate and personal knowledge of the subject especially when litigating complex cases. It is embarrassing to have a matter fail because counsel could not answer questions from the bench or overlooked certain aspects and issues of the case.

5.2 Consulting with Experts and StakeholdersEach field has experts. It is important to have wide ranging discussions with such individuals and in these consultations one should focus on:

5.2.1 Generally accepted principlesYou should become familiar with the general and accepted principles on the subject matter of the issue to be litigated upon. For instance if one is to go to court on an HIV AIDS related matter he should be aware and conversant in the terminology used as well as the biology and related science of the disease.

5.2.2 Current Trends and studiesApart from being aware of the general principles it is also prudent to familiarize yourself with the current trends and findings in the

43 See 5.2 below

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subject. This is essential especially when dealing with Environmental cases. The effects of industrial chemicals on health have been the subject of extensive research and there are new findings every day. This type of information cannot be ignored when making claims that rely on scientific evidence.

5.2.3 Identify Experts and their views on the subjectAfter having gathered the above mentioned information the next step is to single out the reputable experts in the area. Where possible try contact them and get their preliminary thoughts on your case and if they will testify in court.

5.2.4 General feelings around the areaIt is also sensible to be aware of the general feelings of the public around the subject. This information will allow you to make a decision on whether to have wide media coverage or to play it low. For instance it will not help to publicize that you are advocating for the gay rights in a conservative society. Negative publicity is likely to influence the court. That’s simply the reality of it.

5.3 Put a team togetherIt is not likely that there will ever be PIL matters that can be handled by a lone lawyer. Often a team of people have to work in concert toward winning the case. However, it should be highlighted that the team has to be small and have well defined roles to be effective. Dividing responsibilities allows the team to cover and deal with a number of issues at the same time. The designations or responsibilities may vary from case to case but may include

5.3.1 Lead CounselThe lead counsel is the head of the team and is tasked with overall co-ordination of the matter. It is also important to have an individual who is able to take over the matter from the lead counsel if the need arises.

5.3.2 Researchers (legal)Most PIL matters require a phenomenal amount of legal research. Information on similar cases in other jurisdictions and even the jurisprudence relating to the case has to be understood. This role is

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usually best suited to law students or learner legal practitioners because of their fresh understanding of the law.44

5.3.3 InvestigatorsAny litigation team requires individuals to help gather and verify facts. Although their role looks minuscule it should be understood that cases have failed on the grounds that the litigants did not verify facts or did not put before the court all the facts.

5.3.4 Court Assistants Court assistants are vital especially where there are a lot of documents and books to carry. Court assistance help to document court proceedings, help handling court documents and coordinate witnesses and related issues.

6. Drafting Pleadings

When handling a PIL matter it is important to take extra care with the drafting of pleadings and court document. This type of litigation is often complex and as such can be confusing. It is important to set out the basis of the case against the defendant/respondent with as much clarity as possible. This will enable the defendant/respondent to sufficiently plead his case and hopefully not complicate things further. Some of the important issues to consider include45:

6.1 Objective of Pleadings The pleadings should in essence inform the other party of the case they have to meet. But more importantly when it comes to this type of litigation the pleadings should clearly and concisely define the matters and issues at the core of the action. It is important to focus on the real issues in the case and tie the parties to the case they intend to argue. In this regard it is important that you to clearly state what the cause of action is. Many PIL matters have failed on the basis that they do not reveal a cause of action.46

44 Established legal practitioners will obviously argue otherwise45 This expose’ is in no way an attempt to teach lawyers how to draft pleadings but are general reminders on a skill any reader of this manual has obviously already developed.46 See the case of Operation Dismantle Inc v The Queen (1985) 1 SCR 441 where the Appellants alleged that a decision made by the Government of Canada to allow the United States to test cruise missiles in Canada violated s. 7 of the Charter. In that the testing heightened the risk of nuclear war and the increased American military presence and interest in Canada as a result of the testing allegedly made Canada more likely to be a target for nuclear attack. The claimants sought declaratory relief, an injunction as well as damages. The matter was thrown out on the basis that the statement of claim did not disclose facts which, if taken as true, would prove that the Canadian government's decision to permit the testing of the cruise missile in Canada could cause a violation or a threat of violation of their rights under s. 7 of the

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6.2 Content of PleadingsGood pleadings should contain concise statements of the fact on which you intended to rely on. More particularly you should:

6.2.1 Include all necessary facts Those facts which are necessary to establish the claimant's case should be specifically pleaded in the founding papers. More importantly you should correlate the essential facts necessary to prove the claim and the facts that are contained in the summons or Application. The pleadings should be designed in such a way that should the defendant/respondent not file a defense the court will have sufficient information to give a ruling.

6.2.2 Be ClearThe language used should be simple and straight forward. The content of the case can be confusing enough without being further complicated by lengthy pleadings written in complex legal jargon.

6.2.3 Plead only what you can proveOne should be very careful when pleading. Every allegation contained in any set of pleadings should be supported with evidence already in hand. It is not irresponsible to plead facts that you cannot prove nor have evidence to support. You will only embarrass yourself in court.

6.3 Structure of PleadingsWhen drafting pleadings, it is important to consider how they will be viewed by someone who is considering the facts for the first time. A lengthy narrative with little or no structure may fail to capture all the relevant and important facts and more importantly expose you to the risk of failing to engage the interest of the Judge assigned to read it. In order to avoid this, it is advisable to:

6.3.1 Set out the information in separate consecutively numbered paragraphs and, if necessary, sub-paragraphs;

6.3.2 Limit the number of allegations per paragraph to one;

Charter.

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6.3.3 Deal with the case on a point-by-point basis which should in turn invite a similar response from the Defendant;

6.3.4 Use headings, abbreviations and definitions where they will assist, although they should not be in a contentious form which would invite argument from the other parties. For example, "Particulars of the Defendant's guilty actions" should be replaced with "Particulars of Breach".

6. Case Management

Presenting a winning case requires effective case management and attention to detail. There is no need to emphasize the importance of good and clear pleadings or quality court presentation as these are obvious or any litigation. However PIL has extra demands and as such require the lawyer to supplement his litigation skill especially in the field of litigation management. The practitioner has to

6.1 Maintain effective control of the litigation processIt is easy to become unfocused in this type of litigation and it is cardinal that lawyers keep focused on the litigation goals and the litigation issues. (See 2.1 and 2.2 above) In particular one should not be distracted by the auxiliary issues especially relation to procedure. Some of the ways to gain effective control of the litigation process from the beginning include:

6.1.1 Stick to the planOne should not get distracted or caught up in peripheral issues. Once you have created and established as litigation strategy it is important to remain loyal to the strategy and only adapt it where absolutely necessary. This allows the litigation process to remain focused on your goal.

6.1.2 Be OrganizedPIL usually involves a large number or people and organizations working together to achieve a particular goal. It is therefore imperative that there clear roles and responsibilities and more importantly every participant in the litigation process should do their job. If one party is to gather evidence then it should gather the best evidence and within the timeframes agreed upon.

6.2 Pay Attention to DetailPIL typically involves large amounts of documents statistics facts and at times voluminous witness testimony. It is easy to neglect or overlook important aspects of the case and end up failing in court. It is crucial for

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one to pay attention to detail and one such way to do that is to always review all actions taken and ensure that those actions are in sync with the overall goal.

6.3 TechnologyPresenting a winning case requires effective use of new technology to manage data court documents and internal records. The use of technology largely depends on how appropriate it is and how familiar the practitioner is with the same technology. There are three basic areas the PIL practitioner may effectively employ technology and these include:

6.3.1 Presentation of EvidenceWhere permitted one should also try to use things like diagrams, images in court in order to clarity the course of events or evidence. One may use power-point presentations, short films or CD-Rom or animation. This is particularly important where you are presenting technical or evidence of a scientific nature. No affidavit can clearly illustrate the deplorable conditions of prison cells or explain how chemicals in water attack the cells in a body. In these instances one just has to resort to novel ways of presenting evidence and technology offers a variety of methods to achieve this goal. However this all depends on the court(s) allowing evidence it to be presented in this fashion.

6.3.2 Storing InformationTechnology plays an important role in storing information on your client and the case itself. PIL often requires you to handle large amounts of information and computers allow you to store that information in a manner that allows you to access it quickly and use it efficiently. For organizations that operate in hostile environments and are subject to police raids it is prudent to have a backup of the information in a secure location. Sometimes it is best to obtain the services of an online backup service provider. This allows you to access your information all over the world and also allows you to retrieve lost data47.

6.3.3 Increasing efficiencyWhere appropriate it is important to have the computers in your organization linked in a local area network that runs a case management and document-management software. This will significantly improve efficiency and allows the effective monitoring of the various litigation activities of the organization in question.

47 One organization that allows you to backup and restore data online is NovaStor.com

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7 Litigation Support StrategiesAs clearly stated in this manual PIL is very demanding and it is for this reason that there is need to utilize and take advantage of all available resources. This part of the manual outlines some of the ways that you may support the litigation effort. Through these support strategies the matter is better positioned to succeed and create the desired effect.

7.1 Strategic alliancesThe assistance of organizations and bodies that are involved in the field that you are litigating in is pivotal to the success of the suit. It is prudent to form alliances with organizations that are able to provide legal or factual research or give supporting arguments. In most cases the appropriate bodies to ally with are NGO’s and private associations that will offer valuable insight in the area. NGO’s are also particularly useful in mobilizing support and publicity for the action.

7.2 Amice curiae Where appropriate and permissible it will be advantageous to seek out and involve amice curea (friends of the court) in the suit. Before trying to obtain an organization to get involved in a matter as an amici curea, it is important to establish

7.2.1 You first need to assess the relative expertise, reputation, factual knowledge, prestige motive and weight of the organization? The body must be able to offer meaningful information and or insight into the subject matter of the case.

7.2.2 Are the contributions the potential amici curea allowed in the particular court or tribunal you intend to sue? Some lower courts may not have the ability to hear evidence of this nature and may not be allowed to entertain parties that are not the principle litigants.

7.2.3 How many amici curea are allowed to be parties to the suit? Sometimes different organizations are best suited to testify on different aspects of the case. It is rare but there are situation when more than one friend of the court may be allowed to place before the courts evidence relevant to the matter. It is therefore important to establish whether the court is allows to entertain more than one amici curea.

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7.3 Publicity and Public SupportA positive public perception of the PIL matter is indispensable and is key to the success or otherwise of the suit. As mentioned above it will be particularly difficult to convince a court that the remedy sought will be beneficial to the public when public opinion is against the issues raised in your case. It is important to assess public perception and then work a strategy around it. Some of the ways include:

7.3.1 Media48

The media is important in the shaping of public opinion and it is vital that you have a media plan to keep the media informed about the case and solicit their support. In fact the right type of media coverage may allow you to bring to light some of the issues that you will not be able to sufficiently deal with in the suit itself.

7.3.2 Lobbying

The activity of lobbying may also play a vital role in the ultimate success of the matter. For instance where defeat in the court room is anticipated you may proceed to lobby various politicians sensitizing them of the issues relating to your case and highlighting to them the injustices or the lack of appropriate judicial remedies. This may lead to the building of political will to legislate change.

8. Strategic Considerations

Apart from the ordinary considerations outlined above there are other strategic considerations that the PIL practitioner has to take into account. The issues outlined below are designed to ensure that you get the maximum output from the litigation process regardless of the outcome of the matter.

8.1 Anticipate DefeatThis might seem odd but any PIL litigation strategy that does not anticipate the worst is not realistic. As the case proceeds there should be careful documentation of all what transpired and proper preparations put in place to mount an appeal should the need to arise.49 Most appeals are ruined because of a failure to plan for them. It is therefore important to have an individual dedicated to laying the groundwork for an appeal even if you have a particularly strong case. Closely related to this point is the

48 The role and importance of the media in the litigation process is clearly illustrated by David Cole’s article No Equal Justice which begins by exploring how the media formed and shaped public perception in the OJ Simpson trial.49 In the first OJ Simpson trial Alan Dershowitz one of OJ’s lawyers was dedicated to preparing for the appeal even thought the matter was still at trial stage. Fortunately OJ Simpson was found not guilty.

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need to keep detailed records and have an efficient filling system. Well kept information is easier to handle.

8.2 Anticipate a long struggleSome practitioners make the mistake of not anticipating a long battle. Long battles are typical of PIL cases and this should be understood right from the inception of the suit. Lengthy litigation is typical especially where the stakes are high and the outcome of the case is likely to overturn the status quo. Corporate defendants will throw all available resources toward defeating a PIL claim and Governments will use all their political power to ensure that their view prevails. Consequently, it is very important to ensure that you have adequate resources to see the matter trough and that you have a dedicated staff and support structure for the case

8.3 Have a Follow up strategyClosely related to the point above is the need to have a follow up strategy after pronouncement of judgment. It is prudent to have some sort of plan in place relating to activities after the final pronouncement of judgment. It does not hurt to keep the media abreast with the developments of the case with the ultimate aim of publicizing the judgment once it’s out. It should be kept in mind that the idea behind PIL is to benefit as many people as possible and the media plays an important role in disseminating information relating to court victories. Such publicity accelerates the societal change. Workshops, symposiums, community meetings, trainings and related activities are all important in sensitizing the public on PIL successes are also important.

8.4 Consider International LitigationOver the years international laws and international tribunals have had a profound influence on domestic politics and social relations. It is now possible to commence an action in various international fora without having to necessarily satisfy local remedies.50 This is especially helpful in matters where it is not possible to get a satisfactory remedy in local courts.

50 The American Alien Torts Act allows a litigant to sue without necessarily satisfying the requirement to satisfy local remedies.

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PART V

Challenges and Special Considerations

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1. Introduction

PIL as you might have realized possesses unique challenges to the practitioner and requires special attention in certain areas if it is to be successful. Most of the problems with this type of litigation emanate not from the content of the case but actually from procedure. Below are some of the common difficulties and methods and ideas of dealing with them. It is hoped that this part of the manual will preempt the some of the challenges associated with PIL.

2. Timing

2.1 PrescriptionDifferent types of claims usually have different time requirements. Because of the statutes of limitations or prescriptive periods, finding the best case to litigate upon may be difficult. In some situations you may find a worthy case but find out it falls beyond the limitation rules. This problem

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is further compounded by the fact that most jurisdictions place a direct onus on the injured party to enforce his or her rights timorously.

Prescription may pose a particular problem in instances when the persons affected were not aware of the injury or not aware of their rights at the time. One example is when a company, unbeknown to local inhabitants, dumps toxic waste in a river and this is only discovered decades later when the inhabitants start getting medical complications. Prescription has been used in a number of instances to defeat valid claims and therefore requires special attention from the very inception of the case.

The clock is a civil matter usually starts running from when the time the action complained of actually occurred although in some cases there may be some exceptions. These exceptions often involve instances where the injured party was not aware of the damage being done at the time at the time it was happening, as in the case of fraud or exposure to harmful substances. It is important to pinpoint when the prescriptive period started and in fact when it ends. In some cases you might have to plead that the matter is not statute barred.

2.4 Time in which to Appeal Closely related to prescription is the issue of time in which to file an appeal or review of a lower court’s decision.

Most if not all jurisdictions place time limitations in which a matter may be heard on appeal. This rule is closely tied to the need for finality in litigation. For a PIL practitioner this poses a particular difficulty especially when one receives instructions in relation to cases that have been handled by others in lower courts.

The most common time frame is 30 days and this is a very short time and there is need to be very selective on which cases to take up on appeal.

2.5 Time Frame ExpectationsPIL invariably involves many people, organizations and sometimes governments. The involvement of multiple participants mean it is often difficult to successfully predict how long it will take before getting a final decision. It is important that you employ various methods to ensure there is little delay in getting the matter finalized.

A number of factors influence how long a case will take but chief among those factors are:

2.5.1 Complexity if the case

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Where a matter is complex and involves technical issues or relates to a difficult point of law it is likely that the matter will take a considerable time to conclude. In such a situation it is up to the legal practitioner to pay particular attention to presenting their cases in a clear manner that allows the court to understand the issues at hand and what the argument is all about.

2.5.2 Number of PartiesA matter that involves a large number of participants is prone to delays and complications especially in relation to synthesizing issues or postponements due to parties failing to attend. Where there is a likelihood of having a number of litigants it is important for the lawyer to ensure that the appropriate litigation method is used. In most instances it is best to use representative actions like class action rather than mass actions.

2.5.3 Contentious issuesIn certain instances the matter may not be complex but be highly contentious. The temptation for defendants is to tie up the matter in litigation and buy as much time as possible or even frustrate claimants. Usually unnecessary interlocutory applications are used to drag the matter. Where such tactics are foreseen it is important to make sure that the claim is water tight in terms of the substance and procedure. This will greatly reduce the other party capitalizing on small errors to delay determination of the matter.

2.6 Interim OrdersSometimes situations arise in PIL when there is urgent need for some sort of relief and it is not possible to wait for the final determination of the matter. This usually occurs when there is a continuing breach or injury which is irreparable. The procedure and intricacies of obtaining such orders largely depends on the rules and statutes of the jurisdiction in questions however such orders fall into two distinct categories namely:

2.6.1 Restraining ordersThese are also called restraining orders and are passed to stop either party from acting in a particular fashion pending the final determination of a matter. The essence of such orders is to ensure that the integrity of the court process is protected and that the final pronouncement of the court is note rendered academic. Such orders are particularly useful in protecting the status quo and their utility is best used in cases involving eviction.

2.6.2 Directive Orders

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Directive orders are orders passed by the court to direct either party to continue to act in a particular manner till the conclusion of a matter before the court. Such orders are issued if the discontinuance of a certain action will cause considerable harm or prejudice to one of the parties to the litigation.

3. Selection of Fora

Choosing the appropriate forum to hear your case is an important exercise that has a direct bearing on whether the matter will be successful or not. There are a number of considerations that have to be taken into account and all have to be taken seriously. The issues are enumerated bellow:

3.1 JurisdictionThe primary criterion of selecting a court in which to prosecute the matter is determined by the jurisdiction of the court. The court selected should be competent to handle the matter and order the remedy requested. This issue becomes particularly important when considering whether to litigate in a domestic court or an international court. The question of an international courts competence to hear a matter and issue certain orders is pivotal in deciding to file a matter in that forum. For instance in some cases the law may ouster a courts ability to deal with a specific issue51. This is therefore means that you would have to approach a different forum to have the matter resolved.

3.2 Applicable LawThe applicable law or rules are also an important consideration in deciding to use a particular tribunal or court. Some courts exclusively use domestic legal principles and it would not make sense to file a PIL matter that is largely based on international law principles in such a court. In such a situation it is best to explore the possibility of commencing the matter in an international tribunal or court.

3.3 Potential ImpactIt is cardinal to ask whether success in the chosen forum will have widespread effect and whether such impact is sufficient to cause

51 See the Zimbabwean case of Reid-Daly v Hickman & Others 1980 ZLR 201where the court declined to deal with a matter that was exclusively in the realm of military law. The court held that actions brought by army officers covering purely military matters not cognizable by court of law (following English law position). However the court declared that such matters were reviewable if authorities exceeded their jurisdiction.

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change on a local level. For example a victory in the SADC Tribunal will only be meaningful if it is respected by the state defendant. However, if the aim is to shame a government or highlight to the world certain issues such international litigation will appropriate.

3.4 Attitude of the CourtOver time certain courts or tribunal attain a discernable judicial character. If one is to look at each courts record in dealing with certain issues it is possible to assess the possibility of success or otherwise of a PIL matter. Where a court has been consistently hostile on a particular issue it is folly to commence an action based on issues that the court has rejected. You might get better results approaching another court or fora.

3.5 Integrity of the Court Unfortunately corruption and incompetence in the judiciary are a reality in some jurisdictions. It is therefore necessary to make a value judgment if it is worth it to bring certain cases before certain courts. There has to be a certain degree of judicial impartiality and inclination to doing justice before one can file a PIL matter. If the judicial adjudication process is likely to be corrupted and or abused it might be necessary to explore other avenues.

4. Locus StandiThe importance of locus standi in PIL has already been discussed above; however it is important to revisit the issue especially in relation to institutional clients (otherwise referred to as public interest groups) While in most jurisdictions there is no a separate standing test for public interest groups, when determining whether or not a public interest group should be accorded standing, the courts tend to take additional considerations into account52. In fact the standards of establishing locus standi are often higher and many courts are more than ready to dismiss PIL matters on the basis of lack of such standing53. Below are some of the important factors to consider if when using a Public Interest body as the principle litigant in a matter.

4.1 Recognition/Registration54

52 Fisher & Kirk, Still Standing: An Argument for Open Standing in Australia and England, 71 The Australian Law Journal 370, 376 (1997).53 See the Canadian case of Canadian Council of Churches v. Canada (Minister of Employment and Immigration) [1992] 1 S.C.R. 23654 See again Fisher & Kirk, Still Standing: An Argument for Open Standing in Australia and England, 71 The Australian Law Journal 370, 376 (1997).

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The first and most important thing to establish is the legitimacy of the organization to sue at law. Most challenges on an organizations right to sue emanate from the fact that the organization is not properly registered or recognized in terms of the law. It is therefore imperative that the recognition at law or registration of the institutional litigant is specifically pleaded in the founding paper.

4.2 Established Interest in the matter55

It is imperative that the group or organization have an established interest in the matter it intends to bring before the court. Such interest may be demonstrated by its past or continued activities in the relevant area or its constitution or other founding documents that outline the purpose for which the organization was formed.

4.3 Representative natureIt is important to demonstrate that the group or organization that is suing is representative of a significant public concern. It would help if the organization has a large membership or represents an important segment of the society. It is also important that the group demonstrates some prior participation in the area to prove that it indeed is a representative of the individuals it purports to sue on behalf of.56

4.4 Direct Benefit57

For an institutional litigant to establish standing it has to demonstrate some sort of direct grievance it seeks to address through the suit it brings before the court. In other words it has to show that its interest in the matter goes beyond mere intellectual or emotional concern. In other words the remedy that the body seeks to obtain is of some direct benefit to the organization in one way or another.

4.5 Appropriateness58

Courts across many jurisdictions have on occasions refused to recognize a body’s right to sue on the basis that it was not the

55 See generally the Australian case of Tasmanian Conservation Trust Inc. v. Minister for Resources (1995) FCR 516.56 North Coast Environment Council (1994) 55 FCR 492 (Australia)57 See the Canadian case of Hy and Zel's Inc. v. Ontario (Attorney General); Paul Magder Furs Ltd. v. Ontario (Attorney General) [1993] 3 S.C.R. 675 where the court declared that in order for the Court to exercise its discretion to grant standing in a civil case, where the party does not claim a breach of its own rights but those of others, a serious issue must be raised as to the Act's validity, the appellants must be directly affected by the Act or have a genuine interest in its validity, and no other reasonable and effective way can exist for bringing the Act's validity before the court.

58 Benjamin v. Downs [1976] 2 NSWLR 199

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appropriate litigant in the matter. This usually occurs where there are other possible litigants who have more standing than the litigating organizations. It pays to be careful to approach all major stakeholders and explore the possibility of joining them in the suit. In certain cases it might help to plead the fact that the individuals that might enjoy the appropriate standing at the time are laboring under some disability that make it impossible for them to bring their own case before the courts

4.6 Importance of the Issues Raised59

In some instances the court will readily overlook the question of locus standi in situations where the issues raised in the PIL case are of profound pubic importance. Such cases are rare but help to illustrate the need to file suits that are strong and have a direct relevance to the well being of society in general.

However, even though locus standi can be a real problem in PIL matters one should always bear in mind that that the interest of public rights and freedom transcend technicalities, especially to the rules of procedure leading to the protection of such rights and freedoms60. One should be quick to relay on the Tanzanian case of Mtikila vs Attorney General61where it was stated:

“if there should spring up a public spirited individual and seek the Courts intervention against a legislation or actions that pervert the Constitution, the Court, as guardian and trustee of the Constitution, and what is stands for, is under an obligation to rise up to the occasion and grant him standing.”

5. Res JudicataThe doctrine of res judicata or res iudicata is common to both civil and common law jurisdictions and is a familiar problem in PIL. Generally the doctrine states that once a judgment has been handed down in a suit subsequent judges who are confronted with a suit that is identical to or substantially the same as the earlier one will apply the res judicata doctrine to preserve the effect of the first judgment. The rationale is to ensure finality in litigation. As mentioned above this doctrine posses some difficulties to PIL practitioners. In particular a PIL lawyer about to file a matter should pay attention to the following:

5.1 Have the issues ever been dealt with before?

59 See again Fisher & Kirk, Still Standing: An Argument for Open Standing in Australia and England, 71 The Australian Law Journal 370, 375-380 (1997).60 Environmental Action Network Ltd (TEAN) vs. The Attorney General and national Environmental Management authorities (NEMA) MISC. Application No.30 of 2001 61 (Civil CaseNo.5 of 1993)

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The most vital fact to establish before embarking on a major PIL matter is whether the issues of fact and or law raised by your own case have ever been dealt with before or judicially adjudicated upon. It is imperative for to establish if the case dealt with the issue and what the pronouncement was. It will be embarrassing for the court to point out that the matter has been dealt with before and that the current suit is barred

5.2 How was the matter determined?The final determination of the similar matter is just as important and should be looked at carefully primarily for two reasons. Firstly, if the matter was not decided on the merits then it leaves the door wide open for your suit and secondly you may find some useful pointers at the courts attitude towards the matter.

5.3 Is it possible to distinguish the present matter?To avoid your matter being dismissed on the basis of a similar matter having been dealt with by the courts then it might be prudent to try and distinguish your matter from the previous.

Res judicata is an important doctrine that should remain at the back of the head for each PIL practitioner particularly because doctrine of res judicata, allows a litigant only one bite. The loss of an important PIL case could easily mean no one may raise the same issue again. Essentially res judicata prevents a litigant, or persons claiming under the same title from coming back to court to claim further relief not claimed in the earlier actions.

6. Suing the StateInstituting proceedings against the government posses numerous difficulties but is unavoidable in the practice of a PIL. Some of the concerns one has to address before or during proceedings against the state include:

6.1 Proper NotificationIn most if not all types of jurisdictions if you intend to proceed against the state/government in any matter you are required by law to give the government, usually through the Attorney General some sort of notification. The type of notification and notice period varies but it is important to comply with ALL requisite notification procedures before filling the matter. The issue of notification is usually raised as a preliminary issue by most defendant governments.

6.2 Appropriate Remedy

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It is also important to ensure that the remedy you apply for is within the power of government to comply with. Put differently the remedy should be sound at law and practically possible. The court will not hesitate to dismiss an action solely on the grounds that the remedy sought is not possible.

6.3 Cite the right partiesWhen suing against the state it is important to cite the right parties and officials. Some suits have been dismissed because they cited the wrong government official or did not join the Attorney General or the right government department. It is important to read carefully any state liability legislation especially the section that relates to exceptions.

6.4 Proper serviceWhen handling a PIL matter it is also important to see to it that the state is properly served with all the documents and court process because failure of which may result in unnecessary delays or even the dismissal of the action. It might seem an obvious reminder but proper service cannot be over emphasized.

7. CostsThe general rule on costs is that costs follow the event. The purpose of this rule is to compensate the winning party for the vindication of his or her position. The question of costs poses a particular difficulty in PIL matters and should be considered carefully. By nature PIL matters are lengthy and contentious and when a PIL matter is lost the costs are usually high. In fact the question of cost is one of the major deterrents in PIL and should be taken seriously by any litigator who chooses to litigate in this fashion. It is therefore important to:

7.1 Warn the Principal LitigantIt should be a rule of thumb that that your client, whether individual or institutional, be fully aware of the possibility of costs being awarded against them. Although it is hard to estimate how much the court will award as costs it is important to try to give a ball-park figure so that the litigant is fully prepared for such eventuality.

7.2 Keep costs lowIt is also imperative that you try to keep the costs low by avoiding unnecessary postponements and keeping in the good favor of the court. Where a litigant demonstrates goodwill and tries to keep well within the rules and regulations of the tribunal it is unlikely that they will have punitive costs awarded against them. In awarding costs the courts always take into consideration the conduct of the

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claimant and it helps where the claimant’s case has been presented in an efficient, civil and honest manner.

7.3 Budget for lossWhether or not you have a particularly strong case it is folly not to budget for a loss. Litigation by nature is unpredictable and the only certainty is that someone will lose. It is critical that you try to have some contingency or insurance of some sort that you ban relay on should costs be awarded against you. You might actually find it helpful to try raising funds specifically for this purpose. The courts have been known to award costs in some unlikely cases; for instance in the Canadian case of Eaton v. Brant County Board of Education62the court awarded costs against the parents seeking integration of their disabled daughter into the public school system.

7.4 Fully argue the question of costsSome lawyers make the elementary mistake of not addressing the question of costs and are only reminded of the issue when the other side starts making outrageous demands for punitive or exemplary costs. It should be noted that in recent times there has been a movement toward a no costs approach in PIL and its best to take advantage of this jurisprudence.63

62 [1997] 1 S.C.R. 24163 In fact one of the primary objects (article 3 (a)) of The South African Public Interest Litigation Association is “to promote acceptance in South Africa (and, in particular, amongst South African judges, advocates and attorneys) of the idea that the traditional “costs follow the event” principle in litigation should be abandoned or modified in such litigation (PIL)

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PART VI

The Practice of PIL

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1. Introduction

The quality, aptitude and general competence of the legal practitioner(s) handling a PIL matter is crucial to the success or otherwise of such type cases. The demands and pressures on public interest litigators go beyond those associated with ordinary bipolar litigation. Some of the attributes and traits that Public Interest Lawyers should posses are discussed below.

2. ApplicationPublic interest litigation as alluded to above is a very time consuming and demanding exercise. It therefore follows that practitioners handling such cases should show a higher level of dedication and attention to detail. A public interest litigator should exhibit commitment the case and in particular should focus on

2.1 Avoiding ProcrastinationOne should attempt to do all that is necessary for the case within reasonable time or prescribed period. The success of a PIL matter largely depends on having all the preparations done timeously and in a clear and concise manner. It is not possible to start researching the finer point of the case while the matter is already before the court or when the hearing has commenced. PIL matters often involve very technical and difficult points in law and it is critical that the lawyer has a firm grasp of the issues well before the hearing or even the drafting of pleading. Put simply, do everything on time and do it well.

2.2 Avoiding HasteStrange as it might seem, conducting a matter hastily is just has discouraged as procrastinating. While the routine of ordinary litigation may allow you to prepare for a matter last minute this is simply not possible with PIL. Such matters require you to make adequate preparation and to consider the case from many different angles. When you rush through preparations or pleadings you are bound to make mistakes and such mistakes may be costly in PIL. It is best to try to carry out case activities in a meticulous and orderly fashion that ensures that the essence of the case is clearly laid out before the court.

2.3 Developing a systemEvery PIL matter is different but where possible it is prudent to develop a system in terms of which you will deal with such type cases. The system being discussed here relates to how you prepare for the cases and how

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you present the case in court. Some lawyers are comfortable with dividing their file on a matter into the following segments

2.3.1 CorrespondenceEvery matter generates a considerable amount of paper in the form of correspondence. Correspondence is particularly important in PIL matters as vital information is usually exchanged in the initial stages of litigation. It would be wise to file this separately in chronological order with the oldest at the bottom. This allows you quick reference as to the progress of the matter especially on issues not included in the court documents.

2.3.2 PleadingsIt is important to keep a meticulous record of all the pleadings filed in a matter. In essence your sub-file on the pleadings should be an exact replica of the record before the judge preferably in the same order you have. You should also make sure that the pleadings are filed in the order they were filed in court. This allows you to keep a track of the matter and gives you an easy way of telling what the next step is in a matter. It is best not to include drafts in this sub-file but only originals.

2.3.3 ResearchPIL matters are notorious for being research intensive. Invariably you will have a volumes and volumes of research and its best to summarize what you have researched and then put them in the file. It is not possible to put all the research onto the file and its best to focus on the research that will be directly relevant to the court proceedings. It is important to separate the case law and highlight the relevant quotations in those cases. There is nothing that is more embarrassing that to rummage through unordered papers looking for some statistic, document or a case that you wish to refer to. This section of the file is most important as it will prove invaluable when the court asks you for clarifications or the basis of some of your oral submissions. It pays to have statistics readily available or up to date case law on every subject and issue.

2.3.4 Court NotesNo matter how experienced or brilliant a legal practitioner can be it is impossible that that you will be able to remember every word uttered during the proceedings. It is for this reason that it is a must that one keeps copious notes on what happens at the hearing as

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these will be invaluable when reviewing the day’s events and formulation of the closing argument. Such notes will help also in the preparation of the appeal should the need arise. You should guard your notes jealously and ensure that they are always bound together and in the file that you go to court with.

3 Be wide minded PIL demands that you be knowledgeable or become knowledgeable in a variety of diverse fields and subjects. The PIL practitioner cannot afford the luxury of being a novice in the subject matter of his case. He or she is required to be fully conversant with all the subtle nuances of the area. In short you have to be wide minded and a sort of “jack of all trades” who is competent to deal with any case regardless of the theme or focus area of the suit. As a matter for personal development as a public interest litigator one should:

3.1 Read widelyThere is nothing as valuable as a sharp and well informed mind in this type of litigation. It is imperative that one be well read and informed about a number of diverse subjects and issues. Most importantly one should try keep abreast with current affairs and major issues in society. More importantly when faced with a PIL matter it is important to read around the subject matter of the suit and become familiar with the main issues as well as the sub-issues. You should not restrict yourself to law related literature on the subject but should also endeavor read other works and literature that will help you get a better appreciation of the issues at hand. Such type background information will be particularly useful in answering and addressing questions and queries from the bench.

3.2 Consult widelyAs a PIL lawyer you should be open to other people’s ideas, comments, views and contributions. The PIL litigator cannot afford to act as a lone crusader. In fact when it comes to PIL it is imperative that you consult as many people as possible especially those that have some important knowledge and skill around the area. Specifically you should consider consulting:

3.2.1 Other LawyersThere is a wealth of experience within any legal fraternity and it is critical to draw on this experience especially relating to how to present the case or the legal strategy to be adopted. Consulting other legal practitioners will help you take a fresh look at your case or even identify gaps and weaknesses in the suit. In some instances it might be best to request a formal opinion that you then compare with your own assessment of the case.

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3.2.2 Special Interest GroupsYou should also be open to creating synergies and alliances with organizations that are involved in the area that you are litigating in. As already outlined above such organizations can offer the practitioner information, statistics and assistance that is beneficial to the litigation effort. It is important that the PIL lawyer recognize the importance of these organizations and work out some mechanism of including them in the process. However, as a word of caution: it is critical that these partners should not control the litigation process. This is the job of the lawyer and this should not be forgotten. Many matters have failed because lawyers have failed to have the final word on how a matter should be conducted.

3.2.3 Target Community or GroupSome practitioners often ignore the need to communicate with the target group or section of the community that they intend to benefit from the suit. It is prudent to get in touch with some of the individuals in the target group and have a general understanding of some of their feelings and views on the case. This will help evaluate the utility of the case and will accord you an opportunity to assess if the remedy you propose will be beneficial to the people you intend to represent.

3.3 Pay Attention to detailThe devil is in the detail. If you are to be a successful PIL practitioner you have to keep a keen eye on the nitty-gritty’s of the case. One has to be meticulous and ensure that nothing is ignored, overlooked or misplaced. Generally one should:

3.3.1 Study Your Case ThoroughlyMost cases are lost because the practitioner did not have a firm grasp of the facts and the law relating to the matter. It is cardinal that you have a thorough understanding of the case and what you need to prove and how you are going to prove it. Most courts depend on evidence before they rely on legal argumentation. It is therefore imperative that you pay attention to the factual foundation of the case and how this relates to the overall objective or remedy sought. Pay particular attention to what is contained in affidavits or what your witnesses are going to state in court.

3.3.2 Keep an eye on procedural issuesIt is the duty of the practitioner to ensure that the all procedural dictates and obligations are complied with. It is embarrassing for a

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matter to be dismissed on the ground that there was improper service or that you forgot to file a certain document. It does not matter how mundane or obvious this point may be but it is important that you create a checklist of all the important procedural requirements and then ensure that you comply with all of them. The law reports are littered with cases relating for lawyers overlooking the obvious.

3.3.3 Don’t ignore the weaknesses in your caseThe temptation in litigation is to ignore the weaknesses in your case and hope that the strengths will carry the suit through. This method may work in ordinary litigation but may prove disastrous in PIL. This type of litigation is as much concerned about winning the suit as much as it is about setting a good precedent. Where you chose to not address the weaknesses in the case you run the risk of those weaknesses being highlighted in the judgment and thus creating precedent that may militate against further claims or may not be beneficial to the target group. It pays to keep a close eye on the ultimate goal of setting a good precedent and one way of doing that is addressing all the weaknesses in a manner that allows the court to have a holistic picture of the matter.

3.3.4 Never underrate the oppositionClosely related to the point made above is to never underestimate the opposition that your case will face from the other side. PIL is usually a high stakes affair and the opposition is likely to be tough and vigorous. Easy victories in PIL are not common and usually both sides have good arguments to present in court. There is only one way to deal with this aspect of PIL matters and that is to never underestimate the capability of the opponents and to be always ready and prepared for any eventualities.

4 Stay FocusedIn any litigation process many things may happen that may distract you from the pertinent issues at hand. This is particularly prevalent in PIL matters and one needs to remain focused and not get caught up in trivialities. It is imperative that a PIL practitioner concentrates on:

4.1 Stay committed to the Litigation StrategyPart III 5.5 of the manual discusses the need to establish a litigation strategy which is basically how you plan to handle the case and its various aspects like its weaknesses and strengths. It is of paramount importance to remain committed to this strategy. The common mistake is to abandon your strategy at the first sign of trouble. If you had developed a

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comprehensive well thought through plan then it is important to remain committed to it. The importance of the litigation strategy is that it gives you direction and a framework in which to make decisions.

4.2 Adapt and adopt only when its necessaryThe advice given in 4.1 above holds fast but where necessary it may important to adapt the litigation strategy to fit new or unforeseen circumstances. What is important to remember is that the amendments or alterations have to be in conformity with the ultimate litigation goals. In other words you should always have in mind the prime objective of the litigation process. By remaining focused on the primary goals you ensure that any adoptions and adaptations will not harm the case itself.

4.3 Avoid Peripheral issuesBy all means you should avoid focusing on peripheral issues. Any experienced litigator will admit that no case is smooth and without its side issues like postponements or minor objections and concerns. Where these issues do not threaten the very essence of the case it may be beneficial not to get bogged down and try to steer the case to the more critical concerns. For instance it may be necessary to condone the late filling of documents by the state if it will avoid further delay of applying for condonation or to ignore a personal attack on you.

5 Be InnovativeChief among the talents of a Public Interest Litigator should be innovation. The PIL lawyer should in all matters be creative and think outside the box in order to come up with meaningful remedies and solutions to legal problems. Innovation cannot be taught but some helpful guidelines include:

5.1 Break New GroundSometimes situations will arise when you are faced with a matter whose issues have never been judicially adjudicated upon. The mere fact that there is no guiding precedent should not be a deterrent and in fact should be seized as an opportunity to further develop the law. It pays to restate the words of Lord Denning in Packer v Parker64

“….and what is the argument on the other side, only that no case has been found in which it has been done before. That argument does not appeal to me in the least. If we never do anything which has never been done before we shall never get anywhere. The law will stand still while the rest of the world goes on and that will be bad for both.”

64 1953 (2) AELR 127 at 129

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In other words one should not hesitate to try new things and explore fresh ways of resolving legal disputes or enforcing your client’s rights.

5.2 Incorporate International Law where possibleInternational law offers a plethora of remedies and legal protections that will not only be helpful to the domestic case but will also broaden your options should you fail to obtain relief at the domestic level. International law has penetrated the once exclusive zone of domestic affairs to regulate the relationship between governments and their own citizens particularly in the field of Human rights law65. This development means that PIL practitioners are now able to relay on it and even seek redress in domestic courts solely on the basis of treaty obligations or international norms and standards.

5.3 Be DaringThe last and most important piece of advice is to be daring. It is not sufficient to say it has not been done before and therefore it is impossible.

Summation

I hope that this manual has been as enjoyable to read as it has been to compile.

Tawanda Zhuwarara

65 See generally An Marie Slaughter and William Burke-White The Future of International Law Harvard International Law Journal Volume 47 Number 2 2006

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