LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

CHAPTER
6
THE STRUCTURAL INTERDICT:
NATURE, ROLE AND
APPROPRIATENESS
6.1 Introduction
This chapter discusses the interdict and particularly the structural
interdict, especially as used in socio-economic rights litigation against
government. 1 This form of relief has been reserved for detailed
consideration in this chapter because it is a true reflection of the
judicial flexibility required by the notion of distributive justice. This
is in addition to the controversies that it has generated. The
structural interdict has been used by the courts in a manner that goes
against traditional perceptions of the role of the courts as envisioned
under the theory of corrective justice. It has enabled judges to
discard their position as mere umpires and to assume positions which
make them active participants in the dispute. The courts have made
not only extensive judicial decrees, but have also overseen their
implementation. This has generated much controversy and objection
to the structural interdict as an appropriate relief. This is because it
forces courts to do things that they are ordinarily not expected to do.
This chapter delineates the circumstances under which grant of a
structural interdict may be considered appropriate. The approach of
the South African courts towards this form of relief, especially in
socio-economic rights litigation, is discussed. The approaches of the
High Court, 2 on one hand, and the Constitutional Court, on the other,
have differed markedly. The High Court has readily availed itself of
this remedy while the Constitutional Court has emphasised the need
to defer to the executive and legislative branches and not to get
embroiled in what it considers to be policy issues. 3 In spite of this, the
1 Some of the materials in this section have been published in the South African
Journal on Human Rights. See C Mbazira ‘From ambivalence to certainty: Norms
and principles for structural interdicts in socio-economic rights litigation in South
Africa’ (2008) 24 South African Journal on Human Rights (forthcoming).
2
In this chapter, I use the term High Court to describe all the provincial divisions of
the High Court as I deem all these divisions to be part of a single level with in the
judicial hierarchy.
3
D Davis ‘Adjudicating the socio-economic rights in the South African Constitution:
Towards “deference lite”?’ (2006) 22 South African Journal on Human Rights 304.
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