From Ambivalence To Certainty - Norms and Principles For The Structural Interdict in Socio-Econ
From Ambivalence To Certainty - Norms and Principles For The Structural Interdict in Socio-Econ
From Ambivalence To Certainty - Norms and Principles For The Structural Interdict in Socio-Econ
Christopher Mbazir
To cite this article: Christopher Mbazir (2008) From Ambivalence to Certainty: Norms and
Principles for the Structural Interdict in Socio-Economic Rights Litigation in South Africa, South
African Journal on Human Rights, 24:1, 1-28, DOI: 10.1080/19962126.2008.11864941
Article views: 65
ABSTRACT
The parsimonious approach of the Constitutional Court in using the structural interdict
in socio-economic rights cases has both been critiqued and also contrasts with that of the
High Courts. Moreover, the Court has neither given a principled basis for its rejection
and use of the remedy nor laid down any norms and principles for determining when
the remedy is appropriate. Starting from these bases, this article highlights norms and
principles which could guide the courts in determining when the structural interdict is
appropriate, and its modalities. Drawing upon Amersican jurisprudence, the article pro-
poses norms and principles including utilisation of the structural interdict in a graduated
manner as a remedy of last resort; participation of all stakeholders; judicial impartiality
and independence; reasoned decision making; remediation which enforces the substantive
norms; and flexibility.
I Introduction
The South African Constitutional Court has been admonished for its reluc-
tance to use the structural interdict as a remedy in socio-economic rights
cases. The Court’s reluctance is considered by some critiques to be one of
the reasons why adjudication of socio-economic rights has not made a very
* LLB, LLM, PhD; lecturer in the Department of Public & Comparative Law, Makerere University
and researcher fellow Community Law Centre, University of the Western Cape. This paper is
extracted from one of the chapters in my doctoral thesis titled: ‘Enforcing the Economic, Social
and Cultural Rights in the South African Constitution as Justiciable Individual Rights: The Role
of Judicial Remedies’, I am grateful to my promoter, Professor Pierre de Vos, for his invaluable
comments and to Professor Israel Leeman and my former colleagues Dr Lilian Chenwi, Sibonile
Khoza and Christopher Heleba for their comments and insights. The comments of an anonymous
reviewer are also acknowledged.
Author’s current address:
Department of Public & Comparative Law
Faculty of Law
Makerere University
P.O. Box 7062 Kampala — Uganda
Tel: (+256 392) 967 390
<[email protected]>; <[email protected]>
1
2 (2008) 24 SAJHR
big impact in the lives of the poor.1 The reluctance is also viewed as one of
the reasons for failure by the executive to enforce the Constitutional Court’s
orders. This is in addition to the failure of the Court to monitor the enforce-
ment of its orders.2 The approach of the Constitutional Court in using the
structural interdict in socio-economic rights cases contrasts with that of the
High Courts. Unlike the Constitutional Court, the High Courts have readily
availed themselves of this form of relief to enforce socio-economic rights.3
The approach of the Constitutional Court also differs between civil and politi-
cal rights litigation and socio-economic rights litigation. The Constitutional
Court has readily issued the structural interdict in litigation touching on the
4
civil and political rights in the Constitution. The Court has acknowledged the
availability of this form of relief as an appropriate, just and equitable remedy
in socio-economic rights litigation. In spite of this, the Court has declined to
use the relief on the basis that the executive has always respected its orders;
this is so even in those cases where there is evidence to the contrary.5
What is more apparent, however, is that the Constitutional Court has been
ambivalent in determining the circumstances under which the structural
interdict would be considered an appropriate, just and equitable remedy.
The Court has neither given a principled basis for its rejection and use of
the remedy nor laid down any norms and principles for determining when
the remedy is appropriate. This could be one of the reasons that the Court’s
approach has received more negative criticism than praise.6 In spite of this,
1 M Swart ‘Left out in the Cold? Crafting Constitutional Remedies for the Poorest of the Poor’ (2005)
21 SAJHR 215, 228. See also D Bilchitz ‘Giving Socio-economic Rights Teeth: The Minimum Core
and its Importance’ (2002) 118 SALJ 484, 501.
2 DM Davis ‘Socio-economic Rights in South Africa: The Record of the Constitutional Court after
Ten Years’ (2004) 5 ESR Review 3, 5. See also DM Davis ‘Adjudicating the Socio-economic Rights
in the South African Constitution: Towards “Deference Lite”’ (2006) 22 SAJHR 300, 312. Davis
argues that a refusal to grant a structural interdict has prevented the Constitutional Court from
monitoring the efficacy of any order granted and hence being compelled to engage in the very
mechanisms of policy implementation.
3 See Grootboom v Oostenberg Municipality and Others 2000 (3) BCLR 277 (C) (Grootboom
Oostenberg case); S v Zuba and 23 similar cases 2004 (4) BCLR 410 (E) (Zuba case); City of Cape
Town v Rudolph and Others 2003 (11) BCLR 1236 (C) (Rudolph case), Centre for Child Law and
Others v MEC for Education and Others, Case No. 19559/06 [Unreported] (the Luckhoff case),
High Courts Transvaal Provincial Division; and EN and Others v Government of RSA and Others
2007 (1) BCLR 84 (D) (Westville case).
4 See August and Another v Electoral Commission 1999 (4) BCLR 363 (CC) (August case); and
Sibiya and Others v DPP, Johannesburg High Courts and Others, 2006 (2) BCLR 293 (CC) (Sibiya
case).
5 See, for instance, Minister of Health and Others v Treatment Action Campaign 2002 (5) SA 721
(CC) (TAC case), where the Minister of Health, Manto Tshabalala-Msimang indicated openly, in
the public arena, that government would not abide by any orders made against it by the Court.
Rationalising the decisions to appeal the High Court judgment, the Minister reasoned that if this
judgment were allowed to stand, it would create a precedent that could be used by a wide variety
of interest groups wishing to exercise quite specific influences on government policy in the area of
socio-economic rights, and could open the way for a spate of court applications and ‘policy judg-
ments’. See ‘Government, not Courts, must Decide HIV/AIDS and Other Social Policy’ Sunday
Times 30 December 2001.
6 See note 1 above.
from ambivalence to certainty 3
with a few exceptions,7 the critics have not come to the aid of the Court by
comprehensively defining norms and principles that could govern this type
of remedy. The critics have been motivated, arguably, mainly by frustration
that socio-economic rights litigation has thus far not resulted in rapid socio-
economic transformation, as was eagerly anticipated at the adoption of the
Constitution. There is also a general feeling that victories at the conclusion
of socio-economic rights cases have been hollow, as the lives of successful
litigants have not improved dramatically.8
It is not my intention to undermine the relevance and basis of the frustra-
tion above. The objective of this paper is to highlight norms and principles
which could guide the courts in determining when the structural interdict
is appropriate, and its modalities. The norms and principles suggested here
therefore provide a principled basis for either rejecting or using the struc-
tural interdict. They will also provide a foundation upon which to critique the
courts’ approach as regards the use of the structural interdict in future. These
norms and principles should, by their nature, be capable of application in a
number of contexts. This is because, rather than attempt to construct a rigid
rule, courts should focus on the broad principles that guide the exercise of
9
remedial discretion and ones that could be used in a variety of contexts. The
norms and principles I propose include: utilisation of the structural interdict
in a graduated manner as a remedy of last resort; participation of all stake-
holders; judicial impartiality and independence; reasoned decision making;
remediation which enforces the substantive norms;10 and flexibility.
While some principles could be deduced from the approaches of the High
Courts and Constitutional Court, these are not comprehensive and need to be
enhanced and elaborated upon. I do not purport the principles I have enunci-
ated here to be exclusive; more principles will emerge from scholarly and
judicial discourse as jurisprudence on the subject grows. The paper begins by
understanding the rather novel remedy.
This paper places heavy reliance on United States literature and juris-
prudence in formulating the norms and principles deemed relevant to South
Africa. The reason for this is obvious; the United States judiciary is credited
with being the initiator of this form of relief. Yet the controversial nature of
the structural interdict, as a constitutional remedy, has generated a large vol-
ume of scholarly work.11
7 See K Roach and G Budlender ‘Mandatory Relief and Supervisory Jurisdiction: When is it
Appropriate, Just and Equitable?’ (2005) 122 SALJ 325, 351.
8 See Swart (note 1 above) and Davis (note 2 above).
9 Roach & Budlender (note 7 above) 333.
10 See S Sturm ‘A Normative Theory of Public Law Remedies’ (1991) 79 GLJ 1355.
11 See, for instance, Sturm (as above); D Horowitz ‘Decreeing Organizational Change: Judicial
Supervision of Public Institutions’ (1983) Duke LJ 1265; M Schlanger ‘Beyond the Hero Judge.
Institutional Reform Litigation as Litigation’ (1999) 97 Michigan LR 1994; Chayes, supra (note 13);
F Sabel and H Simon ‘Destabilization Rights: How Public Law Litigation Succeeds’ (2004) 117
Harv L R 1015; S Diver ‘The Judge as Political Powerbroker: Superintending Structural Change in
Public Institutions (1979) 65 Vir L R 43; and Eisenberg & Yeazell (note 24 below).
4 (2008) 24 SAJHR
transformation of the dual school system, based on race, into a unitary and
non-racial school system. It required a great deal of organisational reform to
transform the entrenched racial segregation, which had survived for hundreds
of years. The courts were required to transform this entrenched status quo
and to reconstruct the social reality in a radical manner. What was required
included establishing new procedures for student assignments, new criteria
for construction of schools, revision of transport routes, re-assignment of
facilities, curricular modifications, reallocation of resources, and above all,
establishing equity in the school system. The question is whether all these
objectives would have been achieved through the conventional one-stance
traditional litigation and remedial procedures. The answer is a definite no; it
required protracted and unusual methods of litigation and remediation; hence
the resort to the structural interdict to ensure that the obstinate school and
local authorities implemented the desired reforms.
The functions of the structural interdict are various and determined by
the circumstances and demands of each case. Unlike other forms of inter-
dicts or remedies, such as damages, the purpose of a structural interdict
is not deterrence or compensation as such. In broad terms, its purpose is
the elimination of systemic violations existing especially in institutional or
organisational settings.15 Rather than compensate for past wrongs, it seeks
to adjust future behaviour, and is deliberately fashioned rather than logi-
cally deduced from the nature of the legal harm suffered. Its most prominent
feature is the creation of a complex ongoing regime of performance, and it
16
is not a one-shot and one-way approach to providing judicial remedies.
Its ongoing nature is facilitated by the court’s retention of jurisdiction, and
sometimes by the court’s active participation in the implementation of the
decree. By using the structural interdict, the courts disregard the traditional
functus officio doctrine. This doctrine requires that once a court has made
a final determination of a matter, its jurisdiction over the case ceases, and
the case is closed.17
The structural interdict is a response to the inadequacy of traditional
remedies in responding to systemic violations of a complex organisational
nature.18 The traditional remedies, such as damages and ordinary interdicts,
may not effectively eliminate systemic violations. In a setting of systemic
violations, what would be most appropriate are those remedies which aim at
achieving structural reforms by tackling the systemic problems at their root
rather than by redressing their impact. This may require development of
19
ongoing measures designed to eliminate the identified mischief, and to pro-
mote participation of not only the parties but also third parties in the remedy
selection process. Dealing with systemic violations in institutional settings
also requires a continued establishment of facts and the continual interplay
between such facts and the legal consequences.20 This is important because in
such cases, the problems could have their roots in the structural characteris-
tics of the institution itself.21 Facts which enhance the court’s understanding
of the nature of the institution, therefore, become relevant at all stages of the
case.22 The cases may also require frequent redetermination of liability and
reformulation of relief.23
It is because of these factors that the structural interdict has become a
preferred remedy in what has been described as structural or institutional
suits.24 These suits challenge large scale government deficiencies, sometimes
arising out of organisational or administrative failure. The causes of the
failure are various: failure to use (or misuse of) discretion; negligence; failure
to comprehend the law; administrative red tape; and deliberate disregard of
rights. Usually these suits are preceded by political pressure and instituted
only when this is unsuccessful. Even when they are filed, however, political
pressure may continue to be exerted on the government.25 The suits are usually
multi-partied, with large numbers of plaintiffs, who may act in a representative
capacity for known and unknown victims. The suits could also have amici
17 For a detailed discussion of the functus officio doctrine see D Pretorius ‘The Origins of the Functus
Officio Doctrine with Specific Reference to its Application in Administrative Law’ (2005) 122 SALJ
832. See also Special Project ‘The Remedial Process in Institutional Reform Litigation’ (1978)
Colum LR 784, 816.
18 Sturm (note 10 above) 1357.
19 Chayes (note 13 above) 1297. See also Special Project (note 17 above) 812.
20 Chayes ibid.
21 Note ‘Implementation Problems of Institutional Reform Litigation’ (1998) 91 Harv LR 428, 433.
22 It has been submitted that understanding the institution will permit the policy maker, whether
administrative or judicial, to anticipate obstacles to implementation and develop strategies of sur-
mounting the obstacles. Ibid 435.
23 Special Project (note 17 above) 790. In fact, the Special Project has described the resulting decree
as resembling a legislative or executive act.
24 See W Fletcher ‘The Discretionary Constitution: Institutional Remedies and Judicial Legitimacy’
(1982) Yale LJ 635, 637; T Eisenberg & Yeazell (note 11 above).
25 Fletcher (as above).
6 (2008) 24 SAJHR
37 An example of this is in United States v Michigan 471 F.Supp. 192 (W.D. Mich. 1979), where a
third party was appointed to assist the parties to come to an agreement on the allocation of fishing
waters between tribes.
38 See M Schwarzschild ‘Public Law by Private Bargain: Title VII Consent Decrees and the Fairness
of Negotiated Institutional Reform’ (1984) 5 Duk LJ pp 887–935.
39 Sturm (note 10) 1423.
from ambivalence to certainty 9
The High Courts have also underlined the structural interdict as an appropri-
ate response to systemic violations. It has been observed by one court that
other remedies, ‘such as declarator, the prohibitory interdict, mandamus, and
awards of damages’, are inappropriate to remedy ‘systemic failures or the
inadequate compliance with constitutional obligations, particularly when one
is dealing with … rights of a programmatic nature’.42
Additionally, the High Courts have been motivated to grant structural inter-
dicts by the need to protect and promote the doctrine of separation of powers.
The structural interdict has enabled the Court to give latitude to the executive
branch of government by deferring to it on the most appropriate solutions
to address unconstitutional conditions. In this respect, ‘[t]he structural
injunction is not intended to substitute the judiciary for the administration,
but to relieve the judge from framing relief in a way that would constitute
democracy by judicial decree’.43 This, as seen above, is manifested in what
the Court has described as the opportunity given to the respondent to propose
a practical solution. According to Budlender, ‘structural interdicts can be
deeply democratising. They create spaces for dialogue between the court, the
government and civil society actors. In this way, they strengthen and deepen
44
accountability and participation — the key elements of democracy’. Rather
than violate the doctrine of separation of powers, the High Courts, therefore,
view the structural interdict as a means of preserving the doctrine. The lati-
tude given to the government to fashion the remedy indicates that the High
Courts are not prepared to assume functions that are preserved for the execu-
tive organ of the state. The executive branch is, therefore, required to execute
self-imposed rather than judicial imposed remedies.
It appears, however, that the main reason the High Courts have resorted
to the structural interdict is to counter government recalcitrance.45 This is
in addition to ‘the dilatory and lackadaisical approach taken’ by the state in
some cases.46 The recent Westville case47 is evidence of this. The degree of
recalcitrance exhibited by the government in this case makes it worthwhile
discussing the case in detail. The AIDS Law Project (ALP) together with
the Treatment Action Campaign (TAC) commenced the case for 15 HIV/
AIDS positive prisoners from the Westville correction facility in Kwazulu-
Natal. The applicants sought orders to compel the government to remove all
obstacles preventing the 15 and other similarly-placed prisoners from access-
ing anti-retroviral treatment (ARV treatment). They also sought an order that
the government provide the 15 and other similarly-situated prisoners with
ARV treatment, in accordance with the existing government Operational
Plan for Comprehensive HIV and AIDS Care, Management and Treatment
48
(Operational Plan). The applicants argued that the Operational Plan had not
been implemented with reasonable speed and urgency.
The Court found implementation of the Operational Plan to be unreason-
able and inflexible, which had result in a disregard of the needs of prisoners.
The respondents were ordered to remove the obstacles which prevented pris-
oners from accessing ARVs under the Operational Plan.49 The Court found
the respondents to have acted with dilatoriness and a lack of commitment on
their part.50 Even when some agreement had been reached between the parties
outside court, this had not been honoured by the respondents, who instead
chose to engage in adversarial litigation. This behaviour motivated the judge
to retain jurisdiction and to order that the respondents file a plan within two
weeks on how they intended to implement the court order.51
Rather than implement the court order in good faith, the respondents
instead pursued a technicality-based appeal arising from the judge’s rejection
of a recusal request, on the ground that one of the counsel for the applicants
was his daughter. The respondents also failed to file the plan on the due date
and instead sought to set aside an interim order made for the implementation
of the orders of the Court pending the appeal. The application to stay the
52
order came before Nicholson J, who found that irreparable harm would be
suffered by the prisoners if the interim order were set aside. The harm that
the prisoners would suffer was not comparable to the inconvenience likely
Makwanyane case66 had taken far too long.67 The Court, therefore, deemed
the structural interdict appropriate in the circumstances. Government was
ordered to take immediate steps to ensure that all sentences of death imposed
before 5 June 1995 were set aside and replaced by an appropriate alterna-
tive sentence. The government was also required to report to the Court not
later than 15 August 2005 on all the steps taken to comply with the order
above. Instead of filing the report before 15 August 2005, the government
on 12 August 2005 filed an application for extension of the time for filing
the report.68 The Constitutional Court allowed the application and extended
the time to 15 September 2005. Thereafter, however, even with the defects
detected in the report filed on 15 September 2005, the Court granted the gov-
ernment still more time to rectify the defects and file another report by 7
November 2005. But the November report was also lacking, to the extent that
the sentences of some 28 people had not been substituted. A further extension
was given to the government to file an additional report by 15 February 2006.
Yet the February report still had names of persons whose sentences had not
been substituted, which attracted a further extension to 15 May 2006. The
May report was also not fully compliant; the sentence of one person had not
been substituted. This led to a further extension of up to 1 September 2006.
But before 1 September 2006 the government reported, to the satisfaction of
the Court, that all sentences had been substituted.
This case is important in a number of respects. It is evidence of the fact that
where the government fails to act in a timely manner in the face of a structural
interdict, the Court is prepared to continue to engage the government until full
compliance is obtained. This is because in some cases it is only after several
69
rounds of engagement that government may fully comply. The Court and
interested parties must, therefore, be patient and be prepared to engage the
government on more than one occasion.
The case is also important because, at the end, the Court made some obser-
vations which could inform the procedures that ought to be followed when
courts deem supervisory jurisdiction appropriate. These procedures are also
relevant in developing a comprehensive set of norms and principles for the
structural interdict. The Court observed that the supervisory process in the
case had shown the following:
• Successful supervision requires that detailed information be placed at the
disposal of a court;
This appears to be the basis upon which the Constitutional Court rejected and
set aside structural interdicts granted by the High Courts in the Grootboom
and TAC cases.75 The Court also declined to comment on the structural inter-
dict that had been granted by the High Court in Modderklip Boerdery (Pty)
Ltd and Others v President of RSA and Another (Modderklip case).76
The Constitutional Court’s reluctance to use the structural interdict in
socio-economic rights cases has generated condemnation and castigation of
the Court as undermining the socio-economic rights in the Constitution.77
This is because it has left court orders powerless in the face of government
recalcitrance. According to Davis:
... the Court’s … refusal to grant structural relief that would empower courts to supervise
the implementation of their own orders has produced unfortunate results. Litigants have won
cases and government has done little to produce the tangible benefits that these litigants were
entitled to expect from their success. The Court, in effect, has surrendered its powers to
sanction government inertia and, as a direct result, litigants have not obtained the shelter or
drugs that even a cursory reading of the judgments promised.78
75 Government of the Republic of South Africa v Grootboom & Others 2000 (11) BCLR 1169 (CC);
2001 (1) SA 46 (CC), and TAC case (note 5 above).
76 2005 (8) BCLR 786 (CC).
77 See D Bilchitz ‘Health’ in S Woolman, T Roux, J Klaaren, A Stein & M Chaskalson (eds)
Constitutional Law of South Africa (1996) Juta & Company and Centre for Human Rights,
University of Pretoria [2nd Edition, Original Service 2005] pp 56A-i to 56A-47, at p 56A-24. See
also M Heywood ‘Preventing Mother-to-child HIV Transmission in South Africa: Background,
Strategies and Outcomes of the Treatment Action Campaign Case against the Minister of Health’
(2003) 19 SAJHR 278, 312; Swart (note 1 above); and Davis (note 2 above).
78 Davis (note 2 above) 6.
79 Bilchitz (note 1 above) 510.
80 See T Roux ‘Legitimating Transformation: Political Resource Allocation in the South African
Constitutional Court’ (2003) 10 Democratization 92; and D Brand ‘The Proceduralisation of
South African Socio-economic Rights Jurisprudence, or “What are Socio-economic Rights for?”’
in H Botha, A Van der Walt & J Van der Walt (eds) Rights and Democracy in a Transformative
Constitution (2003) 33, 51.
16 (2008) 24 SAJHR
Court cautioned that due regard must be paid to the roles of the legislature and
the executive in a democracy.81
In order to respect the other branches of state, the Court has, even in the
face of government recalcitrance, struggled to convince itself that government
would comply with its orders in good faith. In the TAC case, for instance,
the Court declined to grant the structural interdict because, in its opinion,
‘the government has always respected and executed orders of this Court’
and there was ‘no reason to believe that it will not do so’.82 This conclusion
appears to have been motivated by evidence that emerged during the hearing
that the government had ‘made substantial additional funds available for the
83
treatment of HIV, including the reduction of mother to child transmission’.
However, this evidence blinded the Constitutional Court to the high degree
of recalcitrance demonstrated by the State during the hearing of the case,
particularly the declaration by the Minister of Health that the government
would not respect the judgment of the Court.84 Recalcitrance, in addition to
the seriousness of the matter in issue, saving innocent babies from a deadly
disease, was justification for the issuance of a structural interdict.85 This mat-
ter was especially serious because of the generally inadequate response of the
government in tackling the HIV/AIDS epidemic. As already observed above,
the policy of the government in relation to HIV has been notable for its very
slow progress in coming to terms with the health crisis facing the country.
There had indeed been a tremendous amount of bungling and a high degree of
reluctance expressed with regard to providing nevirapine.86
At the very least, the Constitutional Court should have retained jurisdiction,
without requiring that a report be filed by a stated date. The Court could have
left itself open to whichever party wanting to contest the manner in which the
order was being implemented.87 The mere fact that the Court retained jurisdic-
tion over the case could have propelled the government to act more cautiously
because of the knowledge that any deleteriousness would easily be brought to
the attention of the Court and might also spark media frenzy.
The Court would have only graduated into more specific and detailed direc-
tions, if necessary, on the basis of the evidence brought before it by those who
81 Para 137.
82 Para 129.
83 Para 120, the evidence indicated an increment in the HIV treatment budget from R350 million to
R1 billion which would increase to R1,8 million the following year.
84 See Bilchitz (note 56 above) 23–24.
85 Geoff Budlender has submitted that one of the indications of whether a structural interdict is
appropriate is the risk of severe consequences, such as loss of life, even in the case of good faith
failure on the part of government to comply with its obligations. G Budlender ‘Justiciability of
Socio-economic Rights: Some South African Experiences’ in Y Ghai and J Cottrell (eds) Economic,
Social and Cultural Rights in Practice: The Role of Judges in Implementing Economic, Social and
Cultural Rights (2004) 33, 358. See also D Bilchitz ‘Placing Basic Needs at the Centre of Socio-
economic Rights Jurisprudence’ (2003) 4 ESR Review 2, 4; and Roach & Budlender (note 7 above)
333.
86 Bilchitz (note 56 above) 23–24.
87 Unlike the declaration in the Grootboom case, this would not have caused any confusion, as the
order made in this case was a clear mandatory direction as to what had to be done.
from ambivalence to certainty 17
would have come back to it, and by the attitude of the government. Although
this may have exposed the Constitutional Court to protracted litigation, a thing
that the Court wanted to avoid, it would have been beneficial in many respects.
It would have demonstrated that in cases dealing with serious matters, and
where recalcitrance is detected, the Court would engage with a case until its
orders are implemented just as it did in the Sibiya case.88
The retention of jurisdiction would have further enabled the Court to
continue to engage the state as regards the mechanisms of policy imple-
mentation.89 Indeed, as a matter of fact, it is only through litigation that the
courts can engage the other organs of state in litigation on matters of policy
implementation and its impact on human rights. Maximising engagement of
this nature is justified, amongst others, by the fact that not so many cases
have been filed before the Constitutional Court since the Constitution was
adopted. It is, therefore, important that the Court should takes full advantage
of those cases before it to engage fully with the other organs of state. This
can be done effectively only if supervisory jurisdiction is retained in deserv-
ing cases. Another opportunity for such engagement may arise only after a
considerably long time. It is, for instance, almost eight years since the TAC
case was heard. Yet, in spite of the contentions surrounding the government’s
response to HIV/AIDS, the Court has not had another opportunity to engage
the government on this epidemic. In this regard, the TAC case was a very good
opportunity for the Court to use the structural interdict in order to elicit an
adequate response from the state.
88 Note 4 above.
89 Davis (note 2 above) 312.
90 Case CCT 24/07 [2008] ZACC 1. For a discussion of the history of this case see L Chenwi &
S Liebenberg ‘The Constitutional Protection of those Facing Eviction from Bad Buildings’ (2008)
9(1) ESR Review 12.
18 (2008) 24 SAJHR
the Supreme Court of Appeal,91 the Court found the buildings to be unsafe
and authorised the eviction of the occupiers and ordered them to vacate.92 The
occupiers appealed to the Constitutional Court against their eviction. In the
course of hearing the case, the Constitutional Court ordered what would be
described as ‘an interim structural interdict’. It was directed that the parties
‘engage with each other meaningfully ..., in an effort to resolve the differ-
ences and difficulties aired in this application’. The parties were also ordered
to file affidavits before the Court on or before 3 October 2007 reporting on
the results of the engagement between them as at 27 September 2007.93 The
approach was justified on the basis of the fact that the City has an obligation to
engage vulnerable people before making decisions that adversely affect them.
The Court held:
The City has constitutional obligations towards the occupants of Johannesburg. It must
provide services to communities in a sustainable manner, promote social and economic
development, and encourage the involvement of communities and community organisations
in matters of local government. It also has the obligation to fulfil the objectives mentioned
in the preamble of the Constitution to ‘[i]mprove the quality of life of all citizens and free
the potential of each person’ .... In light of these constitutional provisions a municipality
that ejects people from their homes without first meaningfully engaging with them acts in a
manner that is broadly at odds with the spirit and purpose of the constitutional obligations set
out in this paragraph taken together.94
91 See City of Johannesburg v Rand Properties (Pty) Ltd and Others (2007) (6) SA 417; 2007 (6)
BCLR 643. For a discussion of this case see G Quinot ‘An Administrative Law Perspective on “Bad
Buildings” Evictions in Johannesburg inner city’ (2007) 8(1) ESR Review 25; and C Mbazira, ‘An
Overview of the Constitutional Court Hearing of the Inner-city Evictions Case’ (2007) 8(3) ESR
Review 12.
92 The Court, however, ordered the provision of alternative accommodation by relocation to a tempo-
rary shelter of those in desperate need of housing.
93 At para 5. The Court found justification for this order in the advantages of attempting to resolve a
dispute amicably; and referred to a number of judicial decisions to justify this. These included the
Grootboom case and Port Elizabeth v Various Occupiers (Port Elizabeth case) 2005 (1) SA 217
(CC); 2004 (12) BCLR 1268 (CC), at para 39.
94 Olivia case (note 90 above) para 16.
95 Ibid para 25.
96 Ibid para 28.
from ambivalence to certainty 19
meaningful enforcement of the court orders with the least involvement of the
court.
Nonetheless, in spite of the seemingly progressive approach in Rand
Properties, the Constitutional Court is yet to define the norms and principles
governing the structural interdict. The Sibiya case, however, shows that the
Court is willing to be guided by some norms and principles on how to exer-
cise supervisory jurisdiction. The principles in this case, however, need to
be developed and applied consistently and in a broader manner. This is in
addition to the fact that the principles thus far address only one aspect of
the structural interdict: the supervision process. There is need for a compre-
hensive list of norms and principles which address not only the supervision
process but also the process of determining when the relief is appropriate.
The principles deduced from the Sibiya case could be developed together with
those deduced from the approach of the High Courts into a comprehensive
set of structural relief norms and principles. This is what the next section sets
out to do.
(b) Participation
Whatever the form taken by structural litigation, the court must strive to ensure
that it brings on board the widest array of stakeholders. This applies espe-
cially to those persons who may be affected by any relief ordered in the case.
Participation of a wide array of stakeholders has many advantages, especially
as regards the implementation of the remedy and attendance to polycentric
interests implicated by the case. Abram Chayes has submitted that:
Public law litigation, because of its widespread impact, seems to call for adequate representa-
tion in the proceedings of the range of interests that will be affected by them. At the stage
of relief in particular, if the decree is to be quasi-negotiated and party participation is to be
relied upon to ensure its viability, representation at the bargaining table assumes very great
importance, not only from the point of view of the affected interests but from that of the
system itself.108
106 Ibid 800. See also Roach & Budlender (note 7 above) 346.
107 Note 3 above.
108 Chayes (note 13 above) 1310.
109 Sturm (note 10 above) 1410.
110 Section 40.
22 (2008) 24 SAJHR
services.111 Ignoring these interests and competences may affect the efficacy
of the remedy obtained and may lead to imposition of remedial burdens which
fall outside a government sphere’s constitutional mandates. Involvement
of a wide range of stakeholders is also necessary in securing collaboration
between the different spheres or departments of government and the different
stakeholders in the remedial process. It is also important to note that govern-
ment programmes often consist of partially co-ordinated outputs of a number
of departments and organs of state. In addition to the state actors, there could
also be non-state actors such as trade unions and organised groups which
influence the direction of the government programme.112 It is prudent that
these actors be consulted if necessary and practicable.
Sturm has suggested that the forms of interaction used in the decision-
making process should promote involvement, co-operation and consensus.
He suggests further that the process should also mitigate the unequal power,
113
resources, and sophistication of participants. This is important because it
establishes equality of participation in the process and encourages parties to
bring their interests to the fore without fear. It is particularly important with
regard to socio-economic rights because of the imbalance of power which
usually exists between poor and marginalised communities and powerful
government or other artificial entities.
It is also vital that institutional reform includes identification of the vari-
ous groups and entities whose co-operation is necessary. This is in addition
to ascertainment of the needs and interests of those groups and entities, and
assessment of the likely impact of any proposed reforms on their interests.114
The involvement of a wide variety of participants increases the number of
alternative remedial proposals before the court.115 Participation will also allow
all the stakeholders to be educated on the nature of the case, the remedial
plan, and its likely impact. If crucial stakeholders misunderstand the remedy,
implementation may be grounded simply because they do not know both what
to do and the objectives to be realised:116
When those excluded complain, often justifiably, that their position has not received a fair
hearing, political as well as bureaucratic obstacles to implementation are often created. Thus,
in order to minimise opposition to implementation, it is advisable to invite the participation
at the decree formulation stage of relevant non-parties ... Participation by such non-parties
may have another advantage: they may raise policy and implementation factors overlooked
by the plaintiffs and defendant administrators yet pertinent to the shaping of the decree. The
court can employ various procedural devices to promote this expanded participation, such
111 See Schedules 4 and 5 of the Constitution for the competences of the different spheres of govern-
ment. See also C Mbazira Realising Socio-economic Rights in the South African Constitution: The
Obligations of Local Government. A Guide for Municipalities (2006); J De Visser ‘A Perspective
on Local Government’s Role in Realising the Right to Housing and the Answer of the Grootboom
Judgment’ 8 (2004) 2 Law, Democracy & Development 201; and J De Visser ‘Powers of Local
Government’ (2002) 17 SA Public Law 223.
112 Note (note 21 above) 433.
113 Sturm (note 10 above) 1410.
114 Note (note 21 above) 433.
115 Special Project (note 17 above) 804.
116 Note (note 21 above) 440.
from ambivalence to certainty 23
as inviting groups whose interests may be affected by the decree to file amicus briefs or, if
necessary, to intervene at the remedial stage.117
in issue.123 Judicial independence would also allow the judge to make judicial
orders, without interference, on the basis of legal standards and norms. It
therefore remains the duty of the judge not only to assert his independence,
but also to avoid being unnecessarily involved in tasks that would undermine
this independence. Where a political organ can make remedial decisions, this
should be considered a measure of first resort, and judicial usurpation of the
process a matter of last resort. This is not to ignore the fact that in some cases
it may be plainly clear that the political processes have failed and that court
assumption of the task is the only reasonable thing to do. Even then, the politi-
cal process should be given a second chance, although under the supervision
124
of the court.
Fiss contends that the expert is used as an intermediate structure whicht
stands between the judge and the institution, on the one hand, and on the
other hand, between the judge and the body politic.125 Nevertheless, it is not
necessary for the court to give itself a posture of complete disinterest, consid-
ering the fact that the court is the bearer of the ultimate obligation to devise
an effective remedy. In South Africa, the courts need not exhibit complete
disinterest; this is because they are expressly mandated to review the con-
stitution and guarantee appropriate relief.126 Even when a court delegates the
obligation to an expert, the expert is, to all intents and purposes, deemed
to be a representative of the court. The court must ensure that the remedy,
whether devised by the expert or by the court itself, enforces the substantive
legal norms. And also, as seen above,127 the expert model inherently exposes
the expert to perceptions of partiality on his or her part, especially where
participation is not guaranteed to its fullest. According to Nagel, the experts
‘are not judges and therefore neither their training nor role necessarily assures
the habits and capacities required for the kind of disciplined impartiality we
expect of judges’.128
Nagel contends further that judges cannot be counted on to correct any bias
in the formulation of the decree because the facts in the expert’s report are
traditionally alterable only` if clearly erroneous.129 It is my considered view,
however, that the possibility of bias can be overcome if the judge keeps a close
eye on the expert and requires periodic updates. The courts should also take
care not to appoint experts who are close to the interests of one of the parties.
In some cases, it may serve the interests of justice if more than one expert is
appointed; a panel of experts as opposed to an individual expert is less likely
to be biased. But this does not mean that all cases merit the appointment of a
130 O Fiss ‘Against Settlement’ (1984) 93 Yale LJ 1073, 1083. See also Horowitz (note 102 above)
22.
131 See section II(a) above.
26 (2008) 24 SAJHR
judicial expertise in drafting some of them, since some of the experts who
draft these decrees may not have a judicial background.137
The court may also have to monitor closely the implementation of its order
and obtain information that may be needed to make adjustments in the reme-
dial standards should the need to do so arise.138 This can be achieved only
if the court retains jurisdiction and assumes an active oversight role.139 The
court should nevertheless be careful not to interfere with the implementation
process if it is not necessary to do so. Although the parties should be relied on
for information and the need for adjustments, the court should be careful not
to be distracted by parties who may be interested in protecting their interests
at the expense of other equally important interests. Plaintiffs may underplay
the degree of compliance, while defendants may exaggerate it. All this may
distract the remedial process.
The need to adjust the court order may also arise, for instance, when it tran-
spires during the implementation period that the defendant cannot successfully
implement the decree without the co-operation of persons or departments not
140
party to the original suit. Other participants whose co-operation is needed
may, for instance, include different spheres of government. In such an event,
notice should be served on the third party participants, with a view to deter-
mining whether they are opposed to the order, and the likely impact that it
may have on their activities. In other cases it may merely be necessary to
widen the geographical scope of the order. Some adjustments of the order may
be motivated by changed legal standards, especially following decisions of
higher courts or even legislative enactments.
V Conclusion
The South African courts have not comprehensively defined norms and prin-
ciples that could be used to determine the appropriateness of the structural
interdict. In this paper, I have illustrated some of these norms and principles. I
would nonetheless not pretend that the norms and principles I propose here are
exhaustive. I have provided a foundation on which one may build additional
norms and principles.
It is important that the courts should only intervene by way of a structural
interdict where the other branches are ‘seriously and chronically in default’
141
as regards the exercise of their discretion. Even then, intervention should be
142
graduated, choosing first to merely retain jurisdiction and allow the state to
tackle the constitutional violation. This could be followed by a requirement
137 Most structural decrees arise from negotiated settlements and the court may not be able to anticipate
the impact of every aspect of the decree. It is, therefore, fair that the judge oversees implementation
of the decree to be able to make adjustments should the need to do so arise.
138 Note (note 21 above) 440.
139 See Special Project (note 17 above) 817.
140 Ibid 818.
141 Fletcher (note 24 above) 637. See also Eisenberg & Yeazell (note 24 above) 495–496.
142 See Fiss (note 122 above) 35–36; and K Cooper-Stephenson ‘Principle and Pragmatism in the Law
of Remedies’ in J Berryman (ed) Remedies, Issues and Perspectives (1991) 1, 36.
28 (2008) 24 SAJHR
to submit a report to the court and to the opposite party detailing the plan
to eradicate the violation. Where necessary, the court may more intrusively
devise the plan and supervise its implementation. It has been cautioned, how-
ever, that there could be cases which are of such a very serious nature that a
high degree of intervention is immediately necessary.143
In all these processes, the court should ensure that all persons whose
interests may be affected by the litigation process participate in the remedial
formulation process to the extent that this is necessary and practicable.144
The courts could use various models of the structural interdict, including the
expert model and the legislative hearing model, to realise this. The remedy
should be flexible, and the court should be prepared, if need be, to adjust it at
145
any time. The adjustments also allow the judge to find what is considered to
be the most appropriate means of responding to the constitutional violation.
This is because, usually, the structural interdict may begin as experimenta-
tion of several remedies, and perfection may only come after a number of
adjustments.146
Sometimes the main issue is not when a violation is going to be uprooted.
Rather the issue is what steps are being undertaken to begin the uprooting
process. In such a context, it is the direction and rate of change that may be
important and not the final outcomes, as these may still be too far away.147
Reform may be slow and almost viewed as amounting to failure, but this may
be necessary to accommodate the unforeseen obstacles. A slow but steady
process of uprooting the violation is far better than short-term artificial mea-
sures which may not overcome all the obstacles ahead. Artificial or ‘quick fix’
measures, although dramatic, may stall or dissipate in the long run.
It is important that the court take its time to study all the obstacles so that
it is able to fashion long-term solutions to them. It is because of this that the
US Supreme Court in the Brown case,148 for instance, initially merely ordered
that the state act with all deliberate speed and advised the local courts to act
with flexibility in their remedial exercise. This provided both the state and the
courts with time to study the obstacles and to find solutions to them. It also
illustrates the concern of a court to provide space for public authorities to
149
implement a far-reaching and contentious order gradually.
143 The Westville case (note 3 above) has been given as an example. In spite of this, one sees that the
graduated response is still applied to a certain extent.
144 See Chayes (note 13 above) 1310; and Sturm (note 10 above) 1410.
145 See Doucet-Boudreu case (note 72 above) para 68.
146 See Fiss (note 122 above) 49.
147 E Frug ‘The judicial power of the purse’ (1978) 126 Univ of Pennsylvania LR 715, 790.
148 Note 14 above.
149 Davis (note 2 above) 322. Davis has likened this approach to the reasonableness review approach
in Grootboom and TAC cases, which appear to accord deference to the executive. However, the dis-
tinction, he submits, is that the South African socio-economic rights cases were not as controversial
as the Brown case.