Accounting for Future Consequences in PIL Cases – Lessons from South Africa

This paper explores whether and to what extent courts take into account the potential or future consequences of their orders in public interest litigation (PIL) cases involving the state’s positive obligations. Where the applicant’s claims in such cases are successful, courts frequently have to consider using forward-looking remedies like injunctions to force government actors to undertake certain actions to address rights-violations. Since PILs are cases where litigants aim to advance the public interest by transforming situations not only for themselves, but for all others similarly situated, courts’ decisions often impact a wide range of interlinked interests and groups not represented in court. For courts then, such cases raise questions of whether their orders are ‘workable’, how their orders might be complied with and, importantly, how might they address non-compliance and its various reasons. To explore how courts have undertaken these assessments, I turn to courts in South Africa and their experience with formulating and implementing orders that impose positive obligations on the State. Judicial decision-making there takes place in the context of a ‘transformative constitutionalism’ and South African courts explicitly perceive themselves to play a role in achieving social change. South African public interest organizations frequently invoke a number of constitutionally-guaranteed socio-economic rights in court to demand that the State provide adequate healthcare facilities, for instance, or provide basic education for school children. In this paper, I first show how courts formulate the complex orders necessary in such cases by exploring the particular actors involved PIL cases and their various roles in decision-making. Second, I explain how judges have found that despite ordering the government to undertake such steps, the government frequently does not comply. The reasons for non-compliance are often themselves complex and interlinked, meaning penalties serve little purpose, since failures by government actors to comply with court orders are not always caused by intransigence or plain refusal. Thirdly, I explain how the frequent failures in compliance are forcing judges and public interest organizations in South Africa to account for these risks when formulating remedies, leading them to experiment with new and innovative remedies that either attempt to induce or circumvent non-compliance.