South Africa’s constitution is heralded as one of the most progressive in the world. More than two decades after the end of apartheid, however, entrenched inequalities and deprivations continue to affect millions. All too often, hard-won court victories do not mark the end of an injustice – as the orders handed down are not properly implemented.
In the Eastern Cape – one of the poorest provinces in the country – this reality is plain to see. Since 2015, CESR has been working closely with the Legal Resources Center (LRC), one of South Africa’s leading human rights organizations. Specifically, we are supporting its lawyers and the communities they represent monitor the implementation of court orders on ESCR.
The LRC has had considerable success in litigating ESCR, with courts in the country increasingly ordering innovative ‘dialogic’ remedies. These remedies declare a right has been infringed, but give the responsible government agency leeway to choose how to fix it. The government has repeatedly failed to implement these types orders, however. This undermines the transformative potential of public interest litigation on ESCR.
CESR and the LRC are exploring how CESR’s ‘OPERA’ Framework for monitoring economic and social rights might be used as a tool for identifying targets and indicators and gathering information to track progress on the implementation of court orders. We are piloting it in a case that seeks to tackle the government’s failure to provide basic furniture to schools in the Eastern Cape. Despite repeated court orders, thousands of schools across the province do not have desks and chairs for their students, who are forced to sit on the floor or work crammed around makeshift writing spaces.
Monitoring the implementation of the court’s orders in this case has been a substantial undertaking. It has involved sorting, collating and analyzing an enormous amount of data presented by the Department of Education during several rounds of litigation. It has also required in-depth study of the systemic dysfunctions that have hindered efforts to provide the furniture so badly needed, including problems in supply chains and procurement processes. Analyzing these issues through the lens of OPERA, we have been able to offer constructive, evidence-based recommendations to both the court and the Department of Education on the steps needed to overcome this long-standing injustice. In keeping with our commitment to exploring innovative technology-based approaches to human rights monitoring, we are also exploring how the LRC might use cell phones to collect data directly from the schools it supports.
This project is part of our broader efforts to foster closer cooperation between litigators and monitoring experts so as to ensure the transformative potential of ESCR litigation is fully realized.