The role of NGOs in the Courts

South Africa has a remarkably extensive civil society sector, ranging from small to large, complex organisations with sizeable staff and budgets. Before 1994, many organisations worked to end apartheid. In the post-apartheid era, some NGOs seem to have continued with the role of being watch dogs, playing oversight role on the government while others function as a service delivery vehicle for government and others perform both functions.

The role of civil society is often controversial, both internationally and in South Africa. David Mahlobo, former State Security Minister, argued in a speech that African countries are under threat from “colour revolutions”, which were as a result of the ‘nefarious activities of rogue NGOs threatening national security.’

The Chief Justice entered the arena on the value of NGOs in the October 2017 JSC hearings, saying to candidate David Unterhalter;

“Tell me if I am wrong, and I’ve said it one of the judgements that I have written. One gets a sense that NGO’s show their hand when there is something to challenge about how the country is run but hardly ever when issues like incidence of racism shows up, incidence of employment equity arise. ..

I wonder why NGO’s never say anything that will challenge these things in a court of law to say, this resistance to the implementation of employment equity.

I don’t see much activism relating to land redistribution. ….And finally, I don’t see much activism from the NGO’s in relation to ensuring that there is minimum for participation in the economy of this country. Also by the previously disadvantaged including women. Why? Am I mistaken? Or is that the reality as you have experienced it? And if so why?”

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The CJ is right – on the specific issues of racism, employment equity, land redistribution, a minimum for participation in the economy of this country. However, his criticism is unfair to NGOs who have brought numerous cases on behalf of “the previously disadvantaged including women.” The list of such cases include Black Sash Trust v Minister of Social Development (Freedom Under Law NPC Intervening) where the applicant, approached the court in the face of a social grant crisis. In 2012 the South African Social Security Agency (SASSA) contracted with Cash Paymaster Services (Pty) Limited (CPS) to pay social grants on its behalf. The Constitutional Court (CC) declared this contract invalid but then was approached to suspend that order in order to prevent a collapse of the system. In Lawyers for Human Rights v Minister of Home Affairs, an applicant successfully argued for the invalidation of legislation that authorised administrative detention without trial for purposes of deportation. In Limpopo Legal Solutions v Vhembe District Municipality, the application originated in urgent proceedings that the applicants brought against the respondents in the High Court. There they sought a final interdict directing all or any of the respondents to immediately dispatch a team of contractors to fix burst sewage pipeline(s) in Section B, Malamulele. The question of costs was argued with the court setting aside an adverse costs order against the NGO.

In University of Stellenbosch Legal Aid Clinic v Minister of Justice and Correctional Services, the Court declared certain words in section 65J(2) of the Magistrates’ Courts Act (Act) inconsistent with the Constitution. The effect of the order was that with immediate effect no emoluments attachment order may be issued unless the court has authorised the issuing of such emoluments attachment order after satisfying itself that it is just and equitable and that the amount is appropriate.

In Lawyers for Human Rights v Minister in the Presidency, the applicant who had adverse costs awarded against it by the High Court, appealed to the Constitutional Court. During attacks on non-South African nationals that took place in 2015, the army, police and Home Affairs officials carried out large-scale search and arrest operations: Operation Fiela-Reclaim (Operation). The applicant, representing most of those arrested, launched an urgent application against eight state respondents. It asserted that the way the Operation was implemented violated the Constitution because it was inconsistent with an array of legislation. The Constitutional Court held that it was unable to intervene to overturn the High Court’s finding that the urgent application was manifestly inappropriate.

In National Commissioner of the South African Police Service v Southern African Human Rights Litigation Centre, the Constitutional Court upheld the judgment of the SCA (Supreme Court of Appeal) where the respondent had successfully argued for an order compelling the South African police to investigate the crimes against humanity allegedly committed in Zimbabwe.

The above is obviously not an exhaustive list of cases where NGOs brought cases that have an impact on the protection of the rights and interests of previously disadvantaged groups. There are numerous such cases including: My Vote Counts NPC v Speaker of the National Assembly; Legal Aid South Africa v Magidiwana; Psychological Society of South Africa v Qwelane and Helen Suzman Foundation v President of the Republic of South Africa; Glenister v President of the Republic of South Africa.

So the CJ is right that NGOs may be missing in action on cases concerning racism, employment equity arise, land redistribution and minimum for participation in the economy of this country. But to say NGOs do not show their hand when the rights of previously disadvantaged groups are violated is too dismissive of the role played by NGOs thus far. The Constitutional Court of South Africa has developed a rich jurisprudence on the protection of constitutionalism and fundamental rights, including those of previously disadvantaged groups. It is not possible to celebrate this legacy by the Constitutional Court without also giving credit to the work of NGOs for the role that they have played.