LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

The structural interdict 177
nature is facilitated by the court’s retention of jurisdiction, and
sometimes by the court’s active participation in the implementation
of the decree.
The structural interdict is a response to the inadequacy of the
traditional remedies in responding to systemic violations of a complex
organisational nature. 63 The traditional remedies may not be
effective to eliminate systemic violations because these may require
negotiation, dialogue, ex parte communications and broad
participation of parties not liable for the violation. 64 The structural
interdict has also been inspired by a recognition that some
constitutional values cannot be fully secured without effecting
changes in the structures of complex organisations, especially in
government bureaucracy settings. 65
In a setting of systemic violations, what would be most
appropriate are those remedies that aim at achieving structural
reforms and tackling the systemic problems at their root rather than
redressing their impact. This may require the development of ongoing
measures designed to eliminate the identified mischief, 66 and
to promote participation of not only the parties, but also third parties
in the remedy selection process. Dealing with systemic violations in
institutional settings also requires a continued establishment of facts
and the continual interplay between such facts and the legal
consequences thereof. 67 This is important because in such cases, the
problems could have their roots in the structural characteristics of the
institution itself. 68 Facts that enhance the court’s understanding of
the nature of the institution therefore become relevant at all stages
of the case. 69 The cases may also require frequent redetermination of
liability and reformulation of relief. 70
63 S Sturm ‘A normative theory of public law remedies’ (1991) 79 Georgetown Law
Journal 1355 1357.
64 Sturm (n 63 above) 1357.
65 O Fiss ‘Foreword: The forms of justice’ (1979) 93 Harvard Law Review 2.
66
Chayes (n 62 above) 1297. See also Special Project ‘The remedial process in
institutional reform litigation’ (1978) Columbia Law Review 784 812.
67 Chayes (n 62 above) 1297.
68
Note ‘Implementation problems of institutional reform litigation’ (1998) 91
Harvard Law Review 433.
69 It has been submitted that understanding the institution will permit the policy
maker, whether administrative or judicial, to anticipate obstacles to
implementation and develop strategies of surmounting the obstacles. Note (n 68
above) 435.
70
Special Project (n 66 above) 790. In fact, the Special Project has described the
resulting decree as resembling a legislative or executive act (791).