LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

172 Chapter 6
is not prepared to abide by any order against it in a pending case
compelling government to provide Nevirapine. 35
The Constitutional Court has asserted its powers to grant
mandatory interdicts as part of ‘appropriate, just and equitable
relief’. The Court has rejected submissions that the only order it can
make against the government in constitutional litigation is a
declaratory order. It had been submitted that the Court was
prevented by the doctrine of separation of powers from granting a
mandatory interdict as this would amount to requiring the executive
to pursue a particular policy. 36 According to the Constitutional Court,
there is no distinction between a mandatory order and a declaratory
order because they both affect state policy and may have budgetary
implications. This is because the government is constitutionally bound
to give effect to both mandatory and declaratory orders. 37
I do endorse the holding that government is constitutionally bound
to carry out declaratory orders in the same way as mandatory orders.
In my opinion, however, the distinction between declaratory and
mandatory order becomes clear when government disregards its
constitutional obligations. As mentioned in chapter five, 38
declaratory orders once disobeyed cannot be enforced in the same
way as the interdict. The interdict can be followed by contempt of
court proceedings to secure compliance from the state. This explains
why it was easy for those dissatisfied with the implementation of the
TAC case order in some provinces to secure compliance. 39 This should
be contrasted with the position of those dissatisfied with the
implementation of the judgment in Government of the Republic of
South Africa v Grootboom and Others 40 (Grootboom case) whose only
35 This was the situation in the TAC case where the minister of health stated, on
public television, that the government would not abide by the judgment of the
Court. See D Bilchitz ‘Towards a reasonable approach to the minimum core:
Laying the foundations for a future socio-economic rights jurisprudence’ (2003)
19 South African Journal on Human Rights 1 23-24. Though at the end of the case
evidence had emerged that the government was prepared to abide by the
judgment, the commitment was too fluid to merit a declaratory order alone. The
Constitutional Court therefore made a mandatory order, compelling the
government to remove, without delay, the restrictions that prevented Nevirapine
from being made available at public hospitals and clinics that had not been
designated research and training sites. Indeed, subsequent events proved the
usefulness of the mandatory interdict as some provinces had to be threatened
with contempt of court order citations to extract an undertaking from them to
abide by the order. See TAC v MEC for Health, Mpumalanga and Minister of
Health TPD Case 35272/02 (unreported) (TAC Mpumalanga case). See also M
Heywood ‘Contempt or compliance? The TAC case after the Constitutional Court
judgment’ (2003) 4 ESR Review 7.
36
TAC case paras 97-98.
37 TAC case para 99.
38 Sec 5.3.2.
39
See TAC Mpumalanga case (n 35 above) and Heywood (n 35 above).
40 2000 11 BCLR 1169 (CC); 2001 1 SA 46 (CC).