Jason Brickhill

This Thesis analyses the impact of strategic litigation in South Africa, being litigation that concerns interests beyond the immediate parties and pursues generally forward-looking goals involving social change. Part I develops an analytical and evaluative framework to assess impact and its value. Part II applies that framework to two case studies concerning litigation on the right to education and the appointment and removal of government officials.

I situate strategic litigation in the litigation process, considering the models and forms that it may take and the range of remedies that may result from it. The analytical framework identifies the type, temporality, people affected and reach of impact as its main dimensions, and, in respect of type, proposes a typology of legal, material and political impact to analyse the effects of strategic litigation. Recognising that litigation in South Africa takes place in a constitutional context, the Thesis proposes the values of social justice, democracy and the rule of law as a normative framework to evaluate the effects of strategic litigation.

In Part II, this analytical and evaluative framework is applied to two case studies. The first case study concerns six streams of litigation to compel government to provide certain educational inputs, including infrastructure, textbooks, furniture, teachers and scholar transport. The second case study, arising in the context of the phenomenon of ‘state capture’, considers litigation seeking to remove allegedly unfit officials from key state institutions and to compel the appointment of suitable persons.

The conclusion to the Thesis consolidates insights from across the case studies, ultimately arguing that the South African litigation environment is generally conducive to strategic litigation and that, given adequate litigation resources and appropriate litigation decisions, strategic litigation in South Africa is capable of contributing to significant legal, material and political impact and therefore to social change.

The central purpose of this study is to analyse the working models of public interest law organisations (‘PILOs’) in South Africa and their impact, and to explore what additional support they require in order to build resilience and maximise their contribution to social justice. It covers success and impact; develops a typology of PILOs in South Africa and reports on the empirical data on various aspects of PILOs, including size, distribution, strategic focus. The report analyses the models of public interest lawyering in South Africa and their dynamics, legitimacy and effectiveness. It traces the financial models, capacity and staffing models of PILOs and discusses their constraints and challenges. The report is based on a mixed methods study that included quantitative data (annual data on PILOs) and interviews with the heads of all the core South African PILOs, as well as analysis of their key documents.

Silicosis is an incurable lung disease caused by the inhalation of silica dust. Gold is usually found alongside silica, so goldminers are especially at risk of silicosis. Studies show that up to a quarter of career mineworkers in South Africa have contracted it. As one expert witness in the litigation put it, a 'river of disease' was flowing through the mines. The river metaphor also captures the meandering course of the silicosis litigation, which spanned more than a decade, its course unpredictable, joined by new tributaries and splitting into new streams of litigation along the way. It included test cases, arbitration, massed claims and eventually, a class action. The silicosis class action in South Africa not only provided the first real test for the new court-made rules governing class actions, but is one of the largest and most complex multi-class, multi-defendant, dispersed incident class actions the world has seen. The class action succeeded, culminating in a R5 billion settlement. It also provides a strong basis to consider how best class action law should develop in South Africa. This article engages with the test for certification, representation in class actions, settlements and legal fees and costs. It argues that the constitutional commitment to access to justice undergirds class actions and must inform the development of these rules. The profit incentive presented by class actions presents risks of abuse that must be addressed. The Constitution, and not the market, should determine which poor litigants get legal representation to bring class actions, and how class actions work.

In the aftermath of the police shootings that left 34 striking mineworkers dead at Marikana, a Commission of Inquiry was set up. The issue of the legal representation of a group of injured and arrested mineworkers before the Commission arose as a dispute, after the state refused to fund their representation. In a groundbreaking decision, the High Court in Magidiwana v Legal Aid South Africa affirmed the mineworkers' right to civil legal aid. Subsequent appeals to the Supreme Court of Appeal and the Constitutional Court upheld the High Court decision, mainly on the basis that the issue had become moot because the state was now covering their legal representation. However, important questions remain about the scope of the right to civil legal aid arising from s 34 of the Constitution (right of access to courts) and the extent of the state's duties. In this article, we set out an approach to understanding when the right to a 'fair hearing' will require state-funded legal representation.

In this article, we engage afresh with the notion of 'transformative constitutionalism' as envisaged by Former South African Chief Justice, Pius Langa. We respond to the charge that it is an empty slogan, which can mean anything and therefore means nothing. It includes at least two components: economic change and change in legal culture. The economic change must include, at the very least, the entitlement to the material conditions necessary for a dignified life, as represented in the Bill of Rights. We then consider progress, since Justice Langa spoke in 2006, against five challenges that he recognised - both at the level of the jurisprudence during that period and political developments within the legal profession and more broadly. Recent developments suggest that, despite progress, we have been diverted from the path of transformative constitutionalism that Justice Langa proposed, both in relation to economic change and legal culture.

Michael Bishop and Jason Brickhill, 'In the Beginning Was the Word: The Role of Text in the Interpretation of Statutes' (2012) 129 S African LJ 681

This article deals with statutory interpretation under the South African Constitution. It has been cited with approval several times by the South African Constitutional Court.

The article takes as its point of departure a set of recent decisions in which the Constitutional Court has interpreted legislation in a manner that is incompatible with the words of the statutes. This article criticises the Court’s approach in these cases and argues for a return to the carefully calibrated approach to interpretation that the Court has always advocated. We describe the Court’s current interpretive doctrine to set the scene for the charge that the Court has been unfaithful to that approach. We then discuss each of the six cases – SAPS, Chirwa, Director of Public Prosecutions, Bertie Van Zyl African National Congress, and Van Vuuren. Read together, these cases indicate that, when it suits it, the Court is willing to ignore legislative text. This unrestrained interpretive method threatens the rule of law and the separation of powers. We argue that there are three drivers of this approach: practitioners’ and courts’ over-use of section 39(2); an academic legal culture that encourages disregard for the text; and the single-step structure of the interpretive method. We propose a two-stage approach to mitigate these risks: first, identifying the available meanings and explaining how they fit the text; and, second, relying on the values of the Constitution to choose a meaning. We do not call for a return to the arid literalism of yesteryear, and support the Court’s attempt to secure just outcomes, but argue that it may do so without sacrificing the text.

Jason Brickhill and Zanele Mbuyisa review the current state of play in South Africa in terms of the imposition of civil liability on multinationals for human rights abuses. They outline the rules on jurisdiction over claims by foreign claimants and corporations and potential causes of action under common law, statute, and the Constitution. Specific consideration is given to the potential influence on the development of South African law of recent English law decisions on parent company liability. By reference to the goldminers’ silicosis and the Kabwe lead poisoning cases, they highlight the value to claimants of the relatively recent developments of class actions in South Africa and the rules on discovery and damages. In terms of access to justice, they consider the receptiveness of the judiciary to public interest litigation and the key provisions relating to prescription and costs and funding, including by litigation funders.

Jason Brickhill "Constitutional Implications of Covid-19" The Corporate Report 10 (2020) 33.

This article critically reviews the regulatory measures implemented to response to the Covid-19 pandemic in South Africa and the litigation that followed, including constitutional challenges to the regulations. It also considers other rule of law and human rights issues that arose, including the functioning of parliament and the courts, the use of force and a range of human rights issues.

The article discusses the dynamics of non-party interventions in investor-state arbitration proceedings, drawing on the experience of a coalition of civil society intervenors in the Piero Foresti v South Africa proceedings before the International Centre for the Settlement of Investment Disputes (ICSID).

Tembeka Ngcukaitobi & Jason Brickhill 'A difficult boundary: Public sector employment and administrative law' (2007) Industrial Law Journal 28 (4) 769-792

The article engages the boundary of labour law and administrative law in South Africa, focusing on public sector employment disputes. The difficulty of this interaction arises at the procedural and substantive levels. We argue that at least some employment decisions in the public sector are subject to review under administrative law, either under the Promotion of Administrative Justice Act 3 of 2000 or the constitutional principle of legality. We propose an approach to determine when administrative law is applicable.

J Brickhill 'Precedent and the Constitutional Court' 2010 (3) Constitutional Court Review 79.

This article engages critically with the approach of the Constitutional Court of South Africa to the doctrine of precedent. It traces the development of the doctrine of precedent and how it has been applied (and avoided) by the Constitutional Court, critiquing the Court's reluctance to acknowledge instances when it appears to be overturning earlier decisions.

Vast numbers of civil litigants in South Africa go unrepresented and unadvised during proceedings which affect their most significant interests. Section 34 of the Constitution guarantees a fair civil trial. While s 35, which entrenches the right to a fair criminal trial, expressly confers a right to legal representation in criminal matters, at least in some cases, s 34 is silent on what a ‘fair’ civil trial requires. This article considers the scope of the right to a fair trial in civil matters, sketches the history of diverse attempts to provide civil legal aid to the poor and analyses the effectiveness of the different approaches. Against a background of glaring statistics about the cost and availability of free representation, and on numbers of law students, recent graduates and practising attorneys, it considers the feasibility of compulsory programmes for the provision of civil legal aid by the state and the private sector.

Public Interest Litigation in South Africa covers the theory and practice of public interest litigation since South Africa's transition to constitutional democracy. This multi-author volume contains critical accounts – by leaders in the field – of the campaigns, cases, and causes that have defined key areas of public interest litigation in South Africa since the constitutional transition. The authors span most of the public interest law centres of South Africa. The editor, Jason Brickhill, is currently teaching and completing a DPhil in law at the University of Oxford, and is the former Director of the Constitutional Litigation Unit of the Legal Resources Centre. 

The authors offer detailed, critical perspectives on the struggles led by people, communities, activists, and civil society organisations to realise the vision of the Constitution.

Part One of the book considers general themes relating to public interest litigation. These include its history, the development of the public interest sector and the impact and value of public interest litigation; the role of international law in public interest litigation; the ethics and politics of public interest litigation; and constitutional procedure.

Part Two addresses public interest litigation in ten key areas of law: property rights, gender, basic services, health care, LGBTI equality, children’s rights, basic education, freedom of expression, access to information, and prisoners’ rights.

The work offers a fuller account of the legal, material and political impact of public interest litigation in South Africa, going beyond the well-trodden, landmark appellate decisions, as a contribution to informed and critical engagement with litigation as a tool for social change.

This multi-author volume covers the use of public interest litigation (PIL) to pursue social change in Zimbabwe. With twelve chapters contributed by leading Zimbabwean practitioners and academics, it covers the history of PIL in Zimbabwe from the period of colonial dispossession, focusing in particular on its use under the current 2013 Constitution of Zimbabwe. In addition to history, procedure and general considerations relating to legal strategies for social change, it includes chapters on PIL in seven substantive areas, including: socio-economic rights; expression and other civil and political rights; anti-impunity; electoral litigation; women's rights; children's rights; environmental rights. The conclusion draws together lessons from across these diverse areas.

Over the past twenty years, the South African courts, and particularly the Constitutional Court, have developed a rich set of rules and principles applicable to cases that involve constitutional matters. Constitutional Litigation gathers together those rules and principles into a comprehensive, but digestible and easily accessible, book that will be of interest and value not only to the newcomer to constitutional litigation, but also to the more seasoned practitioner.

Constitutional Litigation examines the constitutional jurisdiction of the High Court and the Supreme Court of Appeal (and certain other specialist courts), and considers the various rules peculiar to these courts that are often relevant to constitutional litigation, such as the admission of an amicus curiae, the duty to raise a constitutional matter as early as possible in the proceedings, and the duty to join the relevant organ of state in a case involving a constitutional issue. Ultimately, though, it is the Constitutional Court that is the central focus of the book. The following areas are covered: jurisdiction, confirmation proceedings, applications for leave to appeal and direct access procedures, constitutional remedies, costs, interlocutory proceedings, and hearings.

This chapter focuses on two streams of education litigation concerning public schools in South Africa: first, cases concerning contestation over the power to formulate policy for schools in the education system established in the new democratic era; and, second, cases seeking to compel the state to provide specific education inputs. In respect of the power to determine key school policies, the South African Constitutional Court has sought to strike a balance between recognising the democratic and community-level legitimacy of school governing bodies, on one hand, and the need to empower government to act in the interests of all students and to promote equal education, on the other. In the second category of cases, the courts incrementally developed the content of the right to a basic education in section 29(1)(a).

Class Action Litigation in South Africa is the first book on the emerging class action law in South Africa. This chapter by Jason Brickhill and Janice Bleazard engages with class actions based on a right in the Bill of Rights. It traces the development of class action law in South Africa, situating the inquiry in the context of access to justice challenges. The chapter contrasts class actions with alternative forms of litigation. It then focuses on the legal doctrine that has developed to govern the procedural and substantive requirements for class actions, in particular the requirements for certification of a class action. The chapter critiques the distinction between 'Bill of Rights class actions' and 'non-Bill of Rights claims', arguing that the distinction collapses in the context of class actions. Finally, the chapter addresses the remedies that have been granted in class actions and discusses what other remedies may be available.

The Constitutional Law Casebook consists of approximately fifty case extracts from significant judgments handed down by South African courts.  The majority of the cases discussed are decisions of the Constitutional Court, although some extracts are from significant decisions of the Supreme Court of Appeal. The enclosed CD contains the full text of the judgments.

The cases are considered under separate themes, for example, separation of powers, equality, property etc. The extract selected from each case traces the development of the principles applicable to each particular category.

An introductory question on the legal issues introduces each case discussion. This is followed by a brief description of the factual background and the legal history of the case.  The key legal issues to be determined by the Court are then identified. An extract of the relevant paragraphs of the decision itself follows, tracing the Court’s ratio decidendi in answering the introductory question. The order is quoted as well, where it provides a useful confirmation of the ratio decidendi.

Three to five questions for students follow each case extract. These are intended to spark debate around the issues raised in the judgment, to test comprehension of the decision and to encourage a deeper reflection on these issues. The questions may be used to initiate class discussions, or as essay topics for students.