What remedy do you want?

Contents:

Introduction to remedies

Remedy as part of the case

Remedy and the agenda

Preparing arguments for the remedies

Follow up on remedies

Introduction to remedies

As one prepares a public interest case, in addition to determining the rights which have been violated, it is important to reflect on the remedies to be sought. Yet, reflection on the remedy should not be considered in isolation of the rest of the case. A remedy is the final outcome of the case and the direction given by the court, many times directed at the losing party and requiring that party to either do something or abstain from some form of conduct. The remedy should be thought about as part of conceptualising the case itself. Indeed most times when victims of rights violations decided to go to court, their interest is in the ultimate outcome of the proceedings. In other words, many times, victims and similarly situated persons will always be interested in knowing what there is for them in the case. Yet, at the same time, the remedy has to be conceptualised within the broader agenda of the case, while, in some cases, still balancing this with the expectations of the victims being represented.

1.4.1. Remedy as part of the case

The biggest problem though is that many times litigators either conceptualise the remedy separately from the case or fail to fit it into the wider picture of the case. They conceptualise the case and reflection on the remedy as if these are two separate things. In some cases, reflection on the remedy comes at the very end and is dealt with as if it is a subsidiary issue. During the hearing, this may be reflected in the way the case is presented, with strong arguments to establish the violation, and yet, not similarly strong arguments are not made to justify the remedy sought. In some cases, arguments on remedies are made when everybody is tired, characterised with the feeling that all there is to say has been said. In some cases, lawyers may give their clients high expectations regarding what the Court can do for them and yet the same is unrealistic.

1.4.2. Remedy and the agenda

The remedy sought in every case must be determined by the broader agenda of the case. One should start by determining what the cases is intended to achieve, which could include the following:

(a) Changing provisions of the law which violate rights

(b) Getting clarity on vague/unclear laws

(d) Preventing the re-occurrence of the violation in future

(e) Preventing a violation before it occurs

(f) Creating public awareness about a violation

(g) Ensuring that victims of violations are restored to position before violation

(h) Getting compensation for the victims

(i) Seeking accountability/acknowledgement of wrong doing

(j) Ending systemic violations

Each of the above objectives will dictate the kind of remedy that is sought as different forms of remedies are appropriate in different circumstance. A negative remedy such as a prohibitory injunction/interdict may be appropriate with agenda (c), yet in appropriate for agenda (h).

Additionally,a simple mandatory injunction may be inappropriate with for agenda (j), which may require more structured remedies. For these reasons, once a litigator establishes that there is a violation they should immediately ask and answer the questions: What do I want to achieve. In some cases, the answer to this question could even establish that litigation is not the most appropriate strategy because of its incapability to deliver on the required outcome. Yet, the choice of outcome will very much determine how the case itself should be crafted and in some cases against whom and for whose benefit the case should be crafted. For example, it may be hard to get such individualised remedies if the agenda is to challenge to systematic violations. In some cases the remedies sough could be of a nature that looks beyond the needs of the victim before court to embrace similarly situated persons.

1.4.3. Preparing arguments for the remedies

As a matter of fact, arguments have to be prepared to convince the court on the appropriateness of the remedies sought. Even in a simple civil case seeking damages, arguments are usually made to for instance establish the quantum of damages. It is even more pertinent to prepare arguments where someone in public interest litigation is seeking either strong or unusual remedies which do not usually follow the finding of a violation. Simple remedies in cases of violation such as declarations may not require arguments which are as compelling as those requiring the court to order the state to for instance change policy, stop the implementation of programme or even change or halt the application of legislation. To the courts, this on its face is interference in the terrain of other organs of the state from the perspective of the doctrine of separation of powers. For this reason, the courts require compelling arguments to convince them that the interference is justified and the only way of remedying the violation.

The situation is even more complex when such structural remedies such as the structural injunction/interdict are being sought. The structural interdict/injunction is a complex type of remedy through which courts intervene by requiring complex changes in situations and actually overseeing the implementation of those changes. On its face, this form of remedy not only interferes with the doctrine of separation of powers but could also be seen as going against the doctrine of functus officio. Yet, this form of relief is increasing becoming necessary as public interest litigation tackles complex cases with systemic violations. However, the newness of this remedy in some jurisdictions demands thorough arguments to convince that the court that this last resort remedy is appropriate in the case.

1.4.4. Follow up on remedies

It is important in preparing for a case to also reflect on the strategies that will be used to ensure that the remedy proclaimed is actually implemented. It is important to identify the persons/institutions responsible for the implementation of the remedy and to work out ways of ensuring that these act appropriately.