LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

166 Chapter 6
Constitutional Court has used the structural interdict in a number of
cases. What is clear, however, is that all these cases deal with the
enforcement of civil and political rights. The reluctance to use the
structural interdict by the Constitutional Court in socio-economic
rights cases reflects the cautiousness with which the Court has
enforced these rights. As a result, the Constitutional Court’s approach
to the structural interdict is ambivalent and lacks clear norms and
principles.
This chapter gives an exposition of some of the norms and
principles that could guide the courts in deciding whether or not a
structural interdict is appropriate in a specific case dealing with
socio-economic rights. The norms and principles could also guide the
courts on how to proceed should they deem a structural interdict
appropriate. The structural interdict should be used as of last resort,
and when used, should be used with flexibility and in a graduated
manner which also ensures participation of all the affected
stakeholders. In addition, reasoned decision making should be
preserved, and remediation and protection of the substantive norms
should be promoted as much as possible. Furthermore, courts should
ensure that they maintain their independence and impartiality.
The chapter is divided into five sections. The first section prefaces
the discussion of the structural interdict with a discussion of the
general interdict as a remedy in constitutional litigation. This section
is followed by a discussion of the nature of the structural interdict and
the different forms it could take. The third section discusses the
arguments that have been advanced both to support and to oppose
the structural interdict. The opposition is based both on separation of
powers and corrective justice-type arguments. The fourth section
discuses the approach of the South African courts in using the
structural interdict as ‘appropriate, just and equitable relief’. The
last section is dedicated to a discussion of the norms and principles
that could guide the courts in determining when a structural interdict
is appropriate.
6.2 The interdict as a constitutional remedy
The interdict is an order of the court requiring the person to whom it
is directed to do or to refrain from doing a particular thing. 4 The
interdict can be used both as relief for those whose rights have been
violated and as a remedy to deter violations of a similar nature in
future. The interdict was initially developed exclusively as a remedy
to protect private property. Later, however, it evolved into an
4
See T Jones & H Buckle The civil practice of the magistrates’ courts in South
Africa (1988-1991) 87; and J Berryman The law of equitable remedies (2000) 12.