What issues should be contested?

Use the vocabulary of the 4-As to frame the case e.g. the quality of the teaching materials is not acceptable.

If the courts in your country have not touched upon rights much it is probably easier to start with a case complaining about actions the government has done and asking them to rule on them than to force the government to actually act in the first instance.

It is sensible to try to establish a narrow set of rights at first and then possibly show how they lead on to other rights.

What are the common government defences? How might you argue against them?

Ensure that the facts of the case are well established and not heavily contested – if not the case, it is probably better to avoid litigation.

Don’t ask for too much straight away – In the case of Soobramoney v Minister of Health, KwaZulu-. Natal (1998), the Court, faced with a demand for access to a limited number of kidney dialysis machines, simply dismissed the case on the basis of lack of available resources. Often modest claims that leave open the possibility for future development of jurisprudence are a sensible approach.

Choosing clear violations may ensure easy wins and develop momentum in a campaign.

Think about cases that involve multiple issues – i.e. discrimination on several grounds.

Look for under-utilised laws that can be used in other contexts as well.

Overambitious cases can result in negative judicial precedents, thereby frustrating more modest
claims in the short term. At the same time, under ambitious cases or avoiding arguments based on Economic, Social and Cultural rights because they may seem too radical to the courts can stultify the future development of the law.

Consider litigation that starts from claims resembling a defence of civil and political rights for example discrimination.