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27 S. Afr. J. on Hum. Rts. 8 (2011)
Winning Isn't Everything: Courts, Context, and the Barriers to Effecting Change through Public Interest Litigation

handle is hein.journals/soafjhr27 and id is 16 raw text is: WINNING ISN'T EVERYTHING:
South Africa's progressive refugee legislation, together with its rights-regarding
Constitution and a strong focus on administrative law, provide a powerful legal frame-
work for the protection of refugee and asylum-seeker rights. Yet, despite numerous
successful court challenges advancing these rights, many rights-violating practices have
persisted. Asylum seekers face problems accessing the proper status determination pro-
cedures and are illegally detained and deported. The effects of court judgments upholding
asylum-seeker and refugee rights have been blocked because courts lack a supportive
socio-political support structure to implement their decisions. Government actors do
not feel strictly bound by the law, have few incentives for compliance, and are largely
unaccountable for legal violations. By better understanding the barriers to effective legal
decisions, public interest lawyers and courts can develop broader strategies aimed at over-
coming these barriers and increasing the effectiveness of legal decisions.
In October 2008, a group of jubilant men danced and hugged for joy as they
made their way out of the Lindela Detention Centre for illegal foreigners.
After spending the previous three months in and out of detention, the men had
finally won a court order securing their freedom and recognising their rights
as asylum seekers. But despite their release from detention, theirs was a some-
what pyrrhic victory. Over the next few months, they would face continuing
battles to access documents, have a fair and timely hearing of their asylum
claims, and remain free from arrest.
The story of these asylum seekers is not unique, but exemplifies the chal-
lenges that many asylum seekers and refugees face in accessing their rights.
It also provides a useful illustration of the limits of turning to the courts to
achieve social change. On the surface, South Africa's constitutional and leg-
islative framework places the country's public interest lawyers in an enviable
position. In addition to its progressive Constitution, including a Bill of Rights
*   Senior Researcher, Forced Migration Studies Programme (FMSP), University of the Witwatersrand.
Much of the information in this article stems from personal observations and experiences while
based at the Johannesburg office of Lawyers for Human Rights (LHR). I am grateful to LHR for
allowing me access to their offices, cases, and materials. Gina Snyman and Gail Super provided
invaluable feedback on the content of the article. I would also like to thank the FMSP for supporting
the various research projects that contributed to this analysis.


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