LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

The structural interdict 181
defined with greater and greater specificity. Ultimately, after many
cycles of supplemental decrees, the ordinary contempt sanctions may
become realistically available, but the point to emphasise is that it is
only then — only at the end of a series — that the threat of contempt
becomes credible. 86
The factors propelling such specificity are discussed later in this
chapter, 87 but it is mainly the inadequacy of the steps taken by the
defendant, or even the degree of recalcitrance exhibited. According
to Fiss, the gradualism of the structural sanctioning system might be
attributable to political considerations (such as a desire to ‘go slow’
so as to build wide popular support for the remedial enterprise). He
argues that, although it might be said that it reflects ambivalence
toward the underlying decree, the gradualism has deeper roots:
uncertainties in the goal to be achieved (for example, what is a
‘unitary non-racial’ school system) or shortcomings in our knowledge
and ability to restructure ongoing institutions. 88 The gradualism also
helps the court juggle around a number of options in its search for the
most effective way of remedying the violation. It is not until the court
has decided on what it considers the most appropriate means of
remedying the violation that it concretises the order. 89 I discuss this
point in detail below. 90
Retention of jurisdiction
The most peculiar feature of the structural interdict is the court’s
retention of jurisdiction over the case even after judgment has been
passed. The courts have disregarded the traditional functus officio
doctrine, which requires that, once a court has made a final
determination of a matter, its jurisdiction over the case ceases and
the case is closed. 91 Although the case can be reopened, conventional
legal procedures put in place stringent legal requirements that have
to be satisfied before this is done.
Retention of jurisdiction by the court helps a party who thinks
that the order is not being complied with to bring this to the attention
of the court. It also helps the persons to whom the order is directed,
in certain circumstances, to seek clarity from the court as regards
what the order entails. Courts have also retained jurisdiction to
enable them to participate sporadically in the administration of the
86 Fiss (n 6 above) 36 (emphasis in original).
87
See sec 6.6.1 below.
88 Fiss (n 6 above) 36.
89 Cooper-Stephenson (n 7 above) 36. See also Fiss (n 6 above) 36.
90
Sec 6.6.1.
91 For a detailed discussion of the functus officio doctrine, see M Pretorius ‘The
origins of the functus officio doctrine, with specific reference to its application in
administrative law’ (2005) 122 South African Law Journal 832. See also Special
Project (n 66 above) 816.