Winning isn't everything: Courts, context, and the barriers to effecting change through public interest litigation

Abstract

South Africa's progressive refugee legislation, together with its rights-regarding Constitution and a strong focus on administrative law, provide a powerful legal framework 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 procedures 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 overcoming these barriers and increasing the effectiveness of legal decisions.