LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

176 Chapter 6
difficulties aired in the application. In what could be described as ‘an
interim structural order’, the Court issued a report-back-to-court
order requiring the City to file affidavits on a stipulated date
reporting on the results of the engagement with the applicants. 56
The Court justified the forced engagement on the basis of the
advantages of resolving disputes amicably. This is in addition to the
constitutional obligations imposed on the City, as a public institution,
to engage vulnerable people before making decisions that adversely
affected them. 57 The court order was heeded by the parties, who
engaged each other resulting in an agreement on interim measures.
By this agreement, the City undertook to render the buildings safer
and more habitable. Most importantly, the agreement has not been
mere rhetoric, but has resulted in tangible positive results for the
applicants. The legal representatives of the applicants recently
indicated satisfaction with the implementation of the order arising
from the settlement. The 450 residents have voluntary been moved by
the City to more decent housing. 58 It has also been indicated that the
new residences are more decent; they have water, electricity and
sanitation facilities. 59 The conclusion of this case could be described
as a big success for advocates of housing rights in South Africa.
6.3 Nature, functions and models of the structural interdict
The structural interdict is a complicated form of interdict. It involves
continued participation of the court in the implementation of its
orders. The functions of the structural interdict are various and
determined by the circumstances and demands of each case. Unlike
other forms of interdicts 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. 60 Rather
than compensate for past wrongs, it seeks to adjust future behaviour
and is deliberately fashioned rather than logically deduced from the
nature of the legal harm suffered. 61 Its most prominent feature is that
it provides for a complex ongoing regime of performance and is not a
one-shot and one-way approach of providing relief. 62 Its ongoing
56
Para 5.
57 Olivia case (n 55 above) para 16.
58 See H Moray et al ‘Victory for engagement in relocation from San Jose’ Business
Day 9 September 2008.
59 As above.
60 See S Liebenberg ‘The value of human dignity in interpreting socio-economic
rights’ (2005) 21 South African Journal on Human Rights 1 30.
61 See the discussion in ch four sec 4.3 regarding the relationship between rights and
remedies.
62
A Chayes ‘The role of the judge in public law litigation’ (1979) 89 Harvard Law
Review 1281 1298.