LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

South Africa: Distributive or corrective justice 161
light, therefore, is that, where there is evidence that a government
will not comply, in good faith, with a declaratory order, the court
would be well advised to issue a mandatory interdict instead of a
declaratory order. 161
Hence, declaratory orders are only successful against states that
are committed to the rule of law, 162 and therefore responsive to the
decisions of the courts. It is because of such responsiveness that
declaratory judgments have found favour with the European Court of
Human Rights 163 and with Canadian courts. In Canada, a
constitutional convention has developed by which the government has
responded positively to the directions of the courts. 164 This is in
contrast with the United States where preference for declaratory
relief broke down because of the resistance exhibited by some states,
especially in the school desegregation cases, but also in many civil
rights cases. The courts were left with no option but to use the
interdict and to invoke contempt of court citations in order to induce
change. 165 In contrast, the Canadian experience, even in cases with
evidence of non-compliance, the courts have been very reluctant to
move beyond declaratory relief. This is because of the high degree of
judicial deference that the courts accord to the other organs of state
owing to separation of powers based concerns. In Mahe v Alberta, 166
for instance, the Canadian Supreme Court observed that once the
Court has declared what is required, then the government can and
must do whatever is necessary to ensure that these appellants, and
other parents in their situation, receive what they are due under the
Charter: ‘To date, the legislature of Alberta has failed to discharge
that obligation. It must delay no longer in putting into place the
appropriate minority language education scheme.’ 167
However, in those cases where it is clear that the state would not
comply with the court orders in good faith; the Canadian courts have
combined declaratory with mandatory relief. An example of such case
is Marchand v Simcoe County Board of Education. 168 Convinced that
the defendant board continued to demonstrate a negative attitude
towards the plaintiff’s minority language rights, 169 the Court
161 Roach (n 42 above) 3-24 12-5.
162 Shelton (n 47 above) 199. See also Roach (n 15 above) 113.
163
Shelton (n 47 above) 201. There is evidence that in the overwhelming majority of
cases, states have reported to the Council of Ministers of the European Union on
positive steps they have taken to remedy the violations highlighted in the
declaratory judgments.
164 Roach (n 42 above) 3-38 12-2. See also E Borchand Declaratory judgments (1941)
876.
165
See Roach (n 42 above) 12-1.
166 (1985) 22 DLR (4th) 24, 39 Alta LR (2d) 215 (Q.B.).
167 [1990] 1 SCR 342 (my emphasis).
168
(1989) 55 OR (2d) 638 (Marchand case).
169 660.