Public interest litigation for refugees in South Africa and the potential for structural change

Abstract

A decades-long social justice struggle that eventually displaced white minority rule in South Africa culminated in democratic elections in 1994. Following this historic transition from authoritarian rule to democracy, new issues came to the fore, including the rights of refugees and migrants. Civic actors in South Africa again became mobilised around this human rights and social justice issue through public interest litigation in the framework of South Africa’s bold, new Constitution. At different moments, civic actors confronted the government to fulfil its national and international obligations towards refugees. This article will briefly explain the emergence of new civic actors and issues in post-1994 democratic South Africa, and then elaborate three theoretical propositions on civic-state interactions to try and hold governments accountable to their human rights obligations. Next, these propositions will be applied to concrete examples where administrative law is tested in the domain of refugee law and policies. The article will conclude by briefly considering the extent to which public interest litigation in the area of refugee law and policies can inform the future prospects of public interest litigation in general.