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• Public Interest Actions
• 4.1 Introduction
• 4.2 Is There A Need For A Public Interest Action In South African Law?
• 4.3 How Should A Public Interest Action Be Defined?
• 4.4 What Are The Requirements For A Public Interest Action?
• 4.5 “In The Public Interest”
• 4.6 The Ideological Plaintiff As Representative
• 4.7 The Defendant In A Public Interest Action
• 4.8 Which Courts Should Hear Public Interest Actions?
• 4.9 Who Should Be Liable For Costs?
• 4.10 Conclusion

CHAPTER 4

PUBLIC INTEREST ACTIONS

4.1 Introduction

4.1.1 This Chapter specifically deals with public interest actions. Public interest actions are concerned with the implementation and enforcement of rights vested in the general public or a segment of it. Normally they challenge an alleged unconstitutional or illegal exercise of power by the political branches of the government.

4.2 Is there a need for a public interest action in South African law?

4.2.1 Certain types of public interest actions were a feature of Roman law, but our courts have repeatedly held that all the actiones populares,^[65]except the actio de libero homine exhibendo, became obsolete in Roman Dutch law by the sixteenth century and were never received into South African law.^[66]

4.2.2 Actions in the public interest are therefore virtually unknown in South African law. There are a few reported cases that may be said to have been brought in the public interest, although they were not presented as such.^[67] Some succeeded,^[68] some failed.^[69]

The other cases in which the courts took the opportunity to observe that there is no action in the public interest were not actions in the public interest, nor did they purport to be so.^[70] They were actions in the plaintiff’s own interest.

4.2.3 Nor has there been a sustained development in our law towards a public interest action. Early case law established that South African law does not require the plaintiff to have an interest greater than that of other members of society^[71]but the courts have consistently required that the plaintiff be personally affected by the wrong in issue.^[72] A significant departure from this principle was made by the Appellate Division in Wood and others v Ondangwa Tribal Authority and another^[73] where church leaders were allowed to claim an interdict in the interest of a large vaguely defined group of persons who feared that they would be illegally arrested, tried and subjected to summary punishment on account of their political affiliations. The Appellate Division could have used this decision as a precedent to justify the relaxation of the traditional rules of standing in many areas of law, instead it restricted it by limiting its application to matters involving violations of life, liberty or physical integrity.^[74] The South African courts have not even allowed organizations to claim relief on behalf of their members, insisting that the individual members must approach the court themselves.^[75]

4.2.4 The failure of South African courts to facilitate the development of public interest actions makes it imperative that legislation be enacted to enable this type of action to be brought. It is particularly important that access to justice should be a reality during periods of social and economic change.^[76] While section 38 of the Constitution, 1996 authorizes public interest actions, this is only for the purpose of enforcing the fundamental rights contained in the Bill of Rights. There will be many other kinds of actions which need to be brought in the public interest. Rather than following the route of enacting citizen suit clauses piecemeal in different legislative instruments, acceptance of the concept of public interest litigation should be demonstrated by the enactment of a statute which will authorize public interest actions for all types of matters in all courts.

4.2.5 Public interest litigation also helps to enhance judicial decisions in two ways. First of all, the willingness of courts to listen to interveners is a reflection of the value that judges attach to people. Our commitment to a right to a hearing and public participation in government decision-making is derived not only from the belief that we improve the accuracy of decisions when we allow people to present their side of the story, but also from our sense that participation is necessary to preserve human dignity and self-respect. Secondly, participation by public interest interveners in litigation creates a moral obligation on their part to respect the outcome of the litigation.^[77]

4.3 How should a public interest action be defined?

4.3.1 In the Working Paper we defined^[78] a public interest action as “an action instituted by a representative in the interest of the public generally, or in the interests of a section of the public, but not necessarily in that representative’s own interest”.

4.3.2 It appears as if some uncertainty exists as to what we mean by an action in the public interest. It is precisely for this reason that we defined the concept in the Working Paper. From the definition it is apparent that the overriding consideration in a public interest action is the “interest of the public generally”.^[79]

4.3.3 Unlike the class action plaintiff, the public interest plaintiff does not purport to represent any particular individual. He or she acts as a spokesman for a public at large or a segment of it. Neither problems of notice nor of res judicata, so troublesome in class actions, plague public interest litigation. If the plaintiff succeeds, the benefit of the judgment accrues automatically to the general public through injunctive, declaratory or other relief, restraining or invalidating the governmental action.^[80] On the other hand, if the government prevails, under the present doctrine, stare decisis rather than res judicata should discourage a renewed attack by another public interest plaintiff.

4.3.4 Accordingly we recommend:

4.4 What are the requirements for a public interest action?

4.4.1 In the Working Paper we proposed that the locus standi requirement of a direct and personal interest be relaxed to pave the way for an action in the public interest.^[81] This proposal was qualified by the recommendation that the court should have a discretion to entertain or dismiss an action as a public interest action. We accordingly suggested^[82] that the plaintiff should identify the action as a public interest action and nominate either himself or herself or another suitable person to act as representative. Thereupon the court should consider whether the action should proceed as such and, if so, appoint the representative. Except as indicated, no special procedures are required and a public interest action follow the normal course of a civil action. “And since the locus standi barrier is set to disappear, no other real obstacles are foreseen.”^[83]

4.4.2 Mr D L Titlestad, the Manager: Legal Services, Anglo American Corporation suggests that public interest actions should be limited to matters in which the litigant claims declaratory or intermediary relief.^[84] Mr P J Conradie of Hofmeyr Attorneys is of the same view as public interest actions are not well suited to claims for damages. Mr Conradie shows that members of a public interest group could be differently affected by, for example, pollution. The one member could have a claim for damages for corroded iron roofing caused by the pollutant and another member could have a claim for pollution that caused his crop to fail. Each individual member could therefore have different claims for different reasons.

4.4.3 Mr Conradie further recommends that public interest actions be subject to a certification process, with notice to all interested parties. Since Mr Conradie feels that public interest actions should be subject to a certification process, he criticises the Commission for not listing the criteria which the Court must take into account when allowing an action to continue as a public interest action. He feels that aspects such as the relief requested, whether the action is in the interest of the public generally or in the interest of a particular section of the public, the benefit that might accrue to the public at large or a specific group and the extent to which individuals who has suffered damages may be prejudiced by a judgment should be included as elements the court must consider before allowing a matter to proceed as a public interest action.

4.4.4 It will not open the doors of access to justice if public interest actions were subjected to complicated and costly procedures and requirements. The idea is to broaden standing by making it possible for person not having a direct interest in the relief claimed to institute an action in the public interest. Public interest actions should therefore not be subject to a certification process. On the other hand, the courts will be able to limit unmeritorious public interest actions by the requirement that the action be instituted in the interest of the public generally or of any particular section thereof and the presence of a suitably qualified representative.

4.4.5 Accordingly we recommend:

4.5 “In the public interest”

4.5.1 It is important to differentiate between an action in the public interest and an action based on a public right which is brought in the plaintiff’s own interest. This second type of action seeks to enforce a right which is enjoyed by all members of the public. The outcome of the action may, by virtue of the doctrine of stare decisis, affect others who enjoy the same right, but the primary intention of the plaintiff is to claim the relief in his or her own interest.^[85]

4.5.2 It is also necessary to highlight the different meanings of the phrase “in the public interest”. The phrase can firstly mean that it is in the public interest to have a particular matter raised and adjudicated. Secondly, it can mean that the effect of the successful outcome of the matter is that each and every member of the public or a part thereof benefits therefrom. If it is in the public interest to raise and adjudicate issues, then the situation could arise that the courts would be flooded by busybodies with no real interest in the matter. This need not necessary be the case since it depends on the relief claimed.

4.6 The ideological plaintiff as representative

4.6.1 A public interest action is one brought by a plaintiff who, in claiming the relief he or she seeks, is moved by a desire to benefit the public at large or a segment of the public. Such a plaintiff has been referred to as an ideological plaintiff.^[86]

4.6.2 In the Working Paper it was contemplated that any person would be afforded the opportunity to institute action in court claiming by way of a public interest action relief in the interest of the public generally or of any particular section of the public, irrespective of whether or not such person has any direct interest in the relief claimed.^[87] In terms of the draft bill, all that the person wishing to institute a public interest action has to do is to identify the public interest action as such and to nominate either himself or herself or any other suitable person as the representative plaintiff of those on whose behalf the relief is claimed.^[88] If the court is satisfied that the action should proceed by way of a public interest action, it must appoint as the representative a person who, in the court’s opinion, is suitably qualified to represent the public interest in the matter concerned.^[89]

4.6.3 It is important to ensure that the representative will fairly and adequately protect the best interests of the public generally or of any particular section thereof. The representative should therefore be “suitably qualified” or “genuine” in his or her endeavours to represent the public interest. It follows that the court should also be in a position to remove any representative and appoint another on good cause shown. The requirement of promoting the “best interests” of the public implies that the representative concerned should be independent of the defendant(s), and that there should be no apparent conflict of interest, but does not imply that the representative should have the financial resources likely to be necessary to support the litigation.^[90]

4.7 The defendant in a public interest action

4.7.1 In an ordinary action a specific plaintiff confronts a specific defendant. This is inherent in the word “action” and embodies the essence of our adversarial system. If judgment is given against a specific defendant, the principle of stare decisis would apply and this would ensure a much wider effect of the single judgment. However, the question has been raised whether it is necessary in a public interest action that the relief claimed be directed against one or more specific defendants.

4.7.2 Take the following example. Clearly it would be very much in the public interest if it was possible to determine authoritatively and economically, whether or not cigarette smoking causes lung cancer. Say, for instance, a widow institutes an action for damages against a tobacco company which was said to be responsible for her husband’s death from lung cancer after smoking their products. That is to say, a specific plaintiff sues a specific defendant for specific relief, as will ordinarily be the case. No problems are foreseen in such a case. However, what happens if the deceased displayed no brand loyalty and smoked whatever he could lay his hands on? Do we still need a specific defendant tobacco company? If the widow claims damages, then it seems logical to sue a specific defendant, preferably one with deep pockets.^[91] If intermediary relief is claimed, then it still seems necessary to cite a specific defendant or defendants. Even a general class of defendants will do. The widow can, for instance, ask for an interdict prohibiting the sale of cigarettes without clearly visible health warnings on the packets.

4.7.3 In the ordinary course of practice, however, it is not necessary to cite a specific defendant if a declaration of rights is sought. In terms of section 19(1)(a)(iii) of the Supreme Court Act, 1959, a division of the High Court may in its discretion and at the instance of any interested person enquire into, and determine any existing, future or contingent right or obligation notwithstanding that such person cannot claim relief consequent upon the determination.^[92] It is an essential requirement that there be an interested person upon whom the declaration will be binding. That does not mean that there must be an existing dispute.^[93] The interest of the claimant must be real and not an abstract or intellectual one as it is not the function of the court to act in a consulting or advisory capacity.^[94]

4.7.4 Accordingly we recommend:

4.7.5 To avoid bad publicity, for instance, the defendant cited in a public interest action may offer no defence or a poor defence. The danger is then that the court will basically be faced with a single version. In order to prevent such an occurrence or to address the inadequacy of the defence, the court can appoint either a commissioner, a curator or an amicus curiae to assist the defendant and or the court or to argue the matter on the defendant’s behalf.

4.7.6 In the Working Paper^[95] we proposed that the court may appoint a commissioner inter alia for the purpose of collating evidence. Such a commissioner will then be in a position to place factual material before the court. We endorse this proposal but also offer the following two alternatives. First, the court might appoint a curator to defend the public interest action on behalf of the reluctant defendant. The advantage of such a step would be that the curator can tax fees for the work done. Secondly, the court might rely on the services of an amicus curiae.^[96]

4.8 Which courts should hear public interest actions?

4.8.1 In the Working Paper we suggested that the Constitutional Court, the Supreme Court (now the High Court) and any other court designated by the Minister of Justice should be empowered to hear public interest actions.^[97] The Labour Court and the Land Claims Court obviously also fall under this category. We also indicated that nothing prevents the Minister to designate the lower courts as being entitled to adjudicate public interest actions as opposed to class actions where we suggested an incremental approach.^[98] We reiterate our position even though the lower courts have only limited territorial jurisdiction as the public interest in a public interest action should not be equated with the national interest or even provincial interests.

4.8.2 Accordingly we recommend:

4.9 Who should be liable for costs?

4.9.1 In the Working Paper we noted that the general rule in South Africa is that costs follow the outcome of the action, resulting in the losing party paying most of the winning party’s costs, including the fees of the legal representatives.^[99] We do not depart from this general approach.^[100] We did, however, recommend that the court be given the discretion to order the representative to provide security for costs; to refuse to do so where it is in the public interests to do so; to authorise a public interest action or a class action subject to the granting of funds or the indemnification of the defendant’s costs by a Fund; and order those persons who have elected to opt-in to contribute towards costs and, where appropriate, to provide security for costs.^[101] We still believe the court should have a discretion to deviate from the normal cost rules, but we are in principle against the court making costs orders against the representative or requiring the representative to provide security for costs as this will have an inhibiting factor on the bringing of public interest actions. We have accordingly provided for security to be furnished only where there is good reason to do so.

4.9.2 Accordingly we recommend:

4.10 Conclusion

4.10.1 Public interest actions are concerned with the implementation and enforcement of rights vested in the general public or a segment of it. The public interest plaintiff, the representative, does not purport to represent any particular individual and acts as a spokesman for the public at large or a segment of it. If the representative succeeds, the benefit of the judgment accrues automatically to the general public through intermediary, declaratory or other relief.

[65] In Roman law, actions were private (privatae) or popular (populares): Thomas Textbook of Roman Law 88 - 89. Private actions were actions between individuals arising out of a dispute peculiar to themselves, while popular actions were really means of social control and something of a substitute for criminal law.

[66] Bagnall v Colonial Government 24 SC 470; Dalrymple v Colonial Treasurer 1910 TS 372 at 380; Director of Education, Transvaal v McCagie and others 1918 AD 616 at 621 per Innes CJ; Wood and others v Ondangwa Tribal Authority 1975 2 SA 294 (A) at 310 D per Rumpff CJ.

[67] Loots 1987 (104) SALJ 132.

^[68]Wood & others v Ondangwa Tribal Authority 1975 2 SA 294 (A); Deary NO v Acting President, Rhodesia 1979 4 SA 43 (R); Roberts v Chairman, Local Road Transportation Board (1) 1980 2 SA 472 (C); Bamford v Minister of Community Development and State Auxiliary Services 1981 3 SA 1054 (C); Transvaal Canoe Union and another v Butgereit and another 1986 4 SA 207 (T) at 209 F-G.

^[69]Dalrymple v Colonial Treasurer 1910 TS 372; Von Moltke v Costa Areosa 1975 1 SA 255 (C); Christian League of Southern Africa v Rall 1981 2 SA 821 (O).

^[70] Bagnall v The Colonial Government (1907) 24 SC 470; Patz v Greene & Co 1907 TS 427; Dalrymple v Colonial Treasurer 1910 TS 372. See also Loots 1987 (104) SALJ 133 et seq for a discussion of these and other cases.

[71] Dalrymple v Colonial Treasurer 1910 TS 372.

[72] Eckard Die Locus Standi van Aansoekers by die Geregtelike Hersiening van Administratiewe Handelinge (unpublished LL.D thesis) University of South Africa, 1975 181; De Vos LL.M thesis 99 - 151; Loots 1987 (104) SALJ 131.

[73] 1975 2 SA 294 (A).

[74] See Loots 1987 (3) SAJHR 66.

[75] Ahmadiyya Anjuman Ihaati-Islam Lahore (South Africa) and another v Muslim Judicial Council (Cape) and others 1983 4 SA 855 (C) at 864 E-F; South African Optometric Association v Frames Distributors (Pty) Ltd 1985 3 SA 100 (O) at 103 F - 105 C; Natal Fresh Produce Growers' Association and others v Agroserve (Pty) Ltd and others 1990 4 SA 749 (N) at 758 G - 759 D.

[76] See Bhagwati Judicial Activism and Public Interest Litigation 61 - 66.

[77] Bryden 1987 (66) Canadian Bar Review 508 - 509.

^[78] Paragraph 2.1 of Working Paper 57; clause 1 of the draft bill.

^[79] Canadian Aids Society v Ontario 1996 (32) CRR (2d) D5 (Ontario General Division). See also Bryden 1987 (66) Canadian Bar Review 490; Hough 1991 Denning Law Journal 77; Koch 1990 (48) University of Toronto Faculty of Law Review 151; Lane 1988 (18) Queensland Law Society Journal 115; Susman 1994 (13) Wisconsin International Law Journal 57.

^[80] Thus, although the public interest litigant acts in the interest of the public generally or a segment of it, a judgment in a public interest action is not binding on the public generally or a segment of it.

^[81] Paragraph 3.3 of Working Paper 57.

^[82] Paragraph 6.15 of Working Paper 57; clause 2(2) of the draft bill. See also Friedlander 1995 (40) McGill Law Journal 55; Fudge 1987 (25) Osgoode Hall Law Journal 485.

^[83] De Vos 1996 (4) Journal of South African Law 642.

^[84]See also Lane 1988 (18) Queensland Law Society Journal 115; Ross 1995 (33) Osgoode Hall Law Journal 151; Vern 1988 (18) Queensland Law Society Journal 115.

^[85]Loots 1987 (104) SALJ 132.

^[86]Or a non-Hohfeldian plaintiff, a term used by Louis L Jaffe, referring to Hohfeld’s characterisation of the plaintiff as one seeking a determination that he or she has a right, a privilege, an immunity or a power. See Jaffe 1968 (116) University of Pennsylvania Law Review 1033; Hohfeld 1913 (23) Yale Law Journal 16.

^[87] Clause 2(1) of the draft bill.

^[88] Clause 2(2) of the draft bill.

^[89] Clause 2(3) of the draft bill.

^[90] This is also the recommendation of the Ontario Commission Report on Class Actions 358; contra Scottish Law Commission Multi-Party Actions Report 20.

^[91] Problems concerning proof of causation might occur. However, these same problems occur in ‘ordinary’ (non-public interest) actions. See also Fleming 1994 (42) American Journal of Comparative Law 511 - 513 for more on the indeterminate defendant.

^[92] The Court cannot, however, grant a declaration as to a fact, as the declaration must relate to a right. The persons who have such a right are those in whom the right inheres or against whom it avails: Electrical Contractors' Association SA v Building Industries Federation SA (2) 1980 2 SA 516 (T).

^[93] Ex parte Nell 1963 1 SA 754 (A).

^[94] Durban City Council v Association of Building Societies 1942 AD 27.

^[95] See clause 7 of the draft bill.

^[96] It should be noted that Rule 34 of the Constitutional Court Rules provides that any party to any proceedings before the court, and an amicus curiae properly admitted by the court, is entitled to canvas factual material which is relevant to the determination of the issues before the court and which does not specifically appear on the record. This is what is known in the USA as a “Brandeis brief”. See also Fose v Minister of Safety and Security 1997 (7) BCLR 851 (CC) where the Constitutional Court held that the Human Rights Commission does not enjoy a privileged position with respect to admission as amicus curiae.

^[97] See paragraphs 6.3 et seq of Working Paper 57.

^[98] See paragraph 6.3 of Working Paper 57.

^[99] Paragraph 5.40 of Working Paper 57. See also De Vos 1996 (4) Journal of South African Law 651 who shows how the negative implications of the rule that costs follow the outcome of the suit are “substantially reduced” by the Commission’s proposals regarding contingency fees arrangements and the public interest and class action fund.

^[100] See also paragraph 4.74 of the Commission’s Report on Speculative and Contingency Fees, 1996.

^[101] See clause 9(1) of the draft bill.