Public interest standing in Bill of Rights litigation under the South African Constitution: Lessons from India

[摘要] ENGLISH ABSTRACT : Section 38(d) of the Constitution of the Republic of South Africa, 1996, states that anyone acting in the public interest may approach a court for relief arising from the infringement or threatened infringement of a right in the Bill of Rights. This relaxed approach to locus standi permits litigants to act on behalf of sections of the public whose human rights have been infringed, whether or not the individual victims are aware of these violations or able to approach the court for relief themselves. A similar mechanism for approaching the courts in the public interest was introduced in India in the late 1970s, but this broadening of locus standi has over time extended beyond the objectives for which it was intended originally, with mixed results. After examining the history and background of the development of public interest standing in South Africa and India, the thesis proceeds to analyse the manner in which the courts have dealt with public interest standing in the respective jurisdictions. A study of case law, legislation and academic commentary dealing with this area of the law constitutes the basis for analysing the judicial management of public interest standing in these two jurisdictions. The thesis finds that South Africa has much to learn from both the advantages and pitfalls of the Indian experience of public interest standing. It concludes with recommendations on how public interest standing in South Africa could be strengthened, including identifying the most appropriate public interest representative, the management of public interest standing cases by the courts, the involvement of third parties, and potential legislative interventions.

[发布机构] Stellenbosch University