The public-interest action in South Africa: the transformative injunction of the South African Constitution
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Date
2016
Authors
Swanepoel, C. F.
Journal Title
Journal ISSN
Volume Title
Publisher
Faculty of Law, University of the Free State
Abstract
The insertion of sec. 38 in the Constitution of the Republic of
South Africa, 1996, has seen substantial broadening of standing
opportunities for litigants since the advent of the country’s
constitutional dispensation. Amongst others, it has led to the
development of public-interest litigation in terms of sec. 38(d), which
is in line with the constitutional mandate of societal transformation.
The full impact of the latter constitutional provision has recently
been illustrated by the public and legal controversy surrounding the
South African government’s failure to arrest Sudanese President
Omar Hassan Ahmed Al-Bashir while he was attending an AU
summit in Johannesburg. The Southern African Litigation Centre’s
application to enforce the International Criminal Court’s warrant
of arrest against Al-Bashir was brought in the centre’s own name,
but was supplemented by public interest. Currently, however, there
is neither case law nor legislation explicitly dealing with a pure
public-interest action in South Africa, which leaves litigants and
the judiciary without any guiding principles. Therefore, this article
draws on the South African Law Commission’s 1998 proposals on
class and public-interest actions, as well as the substantial case
law dealing with sec. 38(a) own-interest actions combined with a
strong element of public interest, to formulate proposals on how
‘public interest’ as well as standing for public-interest litigants
should be interpreted and determined.
Description
Keywords
South Africa, Constitution, Omar Hassan Ahmed Al-Bashir, International Criminal Court, Class actions, Public interest actions, Litigation
Citation
Swanepoel, C. F. (2016). The public-interest action in South Africa: the transformative injunction of the South African Constitution. Journal for Juridical Science, 41(2), 29-46.