LegalWise, the pioneer of legal expenses insurance in our country, has launched an Impact Litigation Unit (ILU) as a vehicle to drive positive social change for all South Africans. 

With an enduring legacy of providing its Members with affordable access to justice, LegalWise will now amplify and extend the right to access to justice to not only include its Members, but also other vulnerable individuals within the broader South African society. 

“While we have one of the best Constitutions in the world, and although the right to access to justice is constitutionally entrenched, South Africans are significantly impeded by legal fees and other costs associated with accessing the South African justice system,” says Siva Gengan, LegalWise South Africa CEO.

“As a champion of justice, LegalWise has been providing our Members with affordable access to justice for almost 40 years, and with the launch of our Impact Litigation Unit we are well positioned to leverage our existing wealth of knowledge to advance the human rights of all South Africans, and not just our Members.”   

Impact Litigation is a legal strategy that aims to bring about positive social change on a systemic level.  Unlike normal legal services that focuses on assisting one particular client, impact litigation seeks to assist a larger population with the same issue, through changing the laws and policies that cause them harm. As a strategic tool, it is widely used by mostly public interest litigants in non-governmental organisations (NGOs), and has been written about in academic circles, both in South Africa and internationally. In recent years, there has been a rise in private law firms also litigating on constitutional rights. 

The real impact of Impact Litigation 

Though it is early days, some of the cases the LegalWise Impact Litigation Unit is currently focusing on is assisting South Africans who have had their Identity Documents (IDs) blocked.

“We have taken proactive steps to challenge the Department of Home Affairs' unlawful practice of blocking IDs. This pivotal case was heard in the Gauteng High Court in Pretoria on Wednesday 20 September 2023, and we await the judgment,” notes Lithalethemba Stwayi, who manages the Impact Litigation Unit at LegalWise.

The LegalWise ILU joined this matter on behalf of its Members, who have been grappling with the distressing issue of blocked IDs.  They were receiving no assistance from the Department of Home Affairs, despite cooperating with the Department, and submitting the necessary documentation.

“Some of our fellow citizens have endured this burden for an extended period of up to ten years, and we firmly believe that this situation is neither just nor reasonable and contravenes Section 33 of the Constitution, as well as sections in the Promotion of Administrative Justice Act,” says Stwayi.

Blocked IDs have profound implications for individuals' lives, rendering them unable to assert their identity and access their fundamental rights as citizens. These documents are indispensable for various essential activities, including marriage, banking, healthcare access, employment, and even the exercise of voting rights. Such violations of the right to identification have far-reaching consequences for other constitutional rights, including equality, human dignity,  freedom of movement, and citizenship as individuals are stripped of their citizenship with a blocked ID. 

“Our objective through this legal application is to compel the Department of Home Affairs to establish legislation and regulations that provide clarity on the blocking and, more importantly, the unblocking of identity documents. This case holds immense significance as it directly impacts the fundamental rights and privileges of our citizens,” says Stwayi.

Written submissions on proposed Amendment Bills 

In addition to the matter of the blocked IDs, the LegalWise ILU also made written submissions to the Parliamentary Committee on Health and Social Services as well as the Portfolio Committee on Social Development in the Eastern Cape Provincial Legislature, commenting on the proposed Children’s Amendment Bill [B18B-2022]. They also made written submissions to the Director-General of the Department of Transport in response to the Draft Road Accident Fund Amendment Bill 2023. The proposed amendments could have far-reaching negative consequences, and they are closely monitoring its progress to safeguard the rights of all citizens.

“Impact Litigation is less about compensation, although it can involve that, but more about making strategic efforts to stop rights violations and to seek adequate relief through advocacy or litigation. In our South African context, Impact Litigation matters because it empowers individuals to participate in the democracy through education and advocacy initiatives. It also provides a means for individuals and organisations to hold the government and private sector accountable for its actions and to seek redress for grievances through the courts when the need arises,” stresses Stwayi.

Rethinking the social aspect or “S” in ESG (Environmental, Social and Governance) reporting

The United Nations (UN) Sustainable Development Goals (SDGs) were adopted by the members of the United Nations in 2015 and provides a blueprint for business to address the systemic challenges we face on a global level, including poverty, inequality, climate change, environmental degradation, peace and justice by 2030. Companies are expected to play a role in realising the SDGs by addressing a set of Environmental, Social and Governance (ESG) guiding principles, providing a framework to account for their impact on society, the environment, and good governance.

In an age of ESG reporting, Sustainable Development Goal (SDG) 16 addresses the promotion of “peaceful and inclusive societies for sustainable development, providing access to justice for all and building effective, accountable and inclusive institutions at all levels.” SDG 16.3 specifically talks about “promoting rule of law at both national and international levels and ensuring equal access to justice for all.” 

Since its creation, LegalWise has offered its Members, who are ordinary citizens, access to justice at an affordable fee. “Through the ILU, LegalWise will further contribute to the realisation of SDG 16 as we now provide assistance, not only to our Members but also the broader society, on matters of public interest. The ILU will serve as a showcase of LegalWise’s expertise and how we apply our know-how to deliver social outcomes that will push us towards becoming a more equal, just and thriving society, where no one is left behind,” says Stwayi.

Bringing about social change on a systemic level 

Impact Litigation is designed to address laws or behavior that harm groups of people and prevent others from being harmed in the future. This is based on one of the founding provisions in our Bill of Rights which states that “the Constitution is the supreme law of the Republic and all law or conduct that is inconsistent with it, is invalid.” The ILU will consider all matters of public interest that will achieve broad legal change to systemic issues by challenging laws, policies, and practices that are unjust or discriminatory through advocacy and or litigation. “The work of the ILU will be done at no cost to the applicant, and all required litigation will be funded by us. It will include, but will not be limited to, research, advocacy, as well as planning and preparing selected litigation matters on behalf of applicant(s) for court,” states Stwayi. 

“It is important to note that litigation is deemed a measure of last resort, as our legal system stipulates that other avenues must be exhausted before a matter is brought to court. We will constantly be on the lookout for public interest matters and will initially focus on cases pertaining to constitutional and human rights.”  

Stwayi urges South Africans from all communities and all walks of life to contact the ILU with matters of public interest that will achieve broad legal change to systemic issues. 

If you have an issue that affects you and your greater community, send an email to Lithalethemba Stwayi of  impactlitigation@legalwise.co.za.  All matters will be considered and evaluated.

For more information on LegalWise ILU, click here.