LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

182 Chapter 6
institutions whose reform they seek to achieve. 92 In such a case, the
retention will be accompanied by a stipulation of supervisory powers,
thereby establishing supervisory jurisdiction on the part of the court.
Supervisory jurisdiction is particularly necessary where a mandatory
order has been issued in terms that are so general that it is not
possible to define with precision what is required of the defendant. 93
The continued participation in the case by the court will enable it to
make its order more precise as new facts and circumstances present
themselves.
General orders may be made, either because of the nature of the
duty, such as the duty to act reasonably, or because the court is
anxious to leave government with as much latitude as possible on how
to comply. This may be based on the conviction that the government
will comply with the order and carry it out in good faith. The retention
of jurisdiction in this case helps the court to keep a watchful eye over
the defendant, which is motivated by the fact that at this stage
compliance is dependant on the defendant’s good faith. An example
of this can be seen in the Canadian Société des Acadiens case. In this
case, the Court made a general declaration and initially declined to
assume a supervisory role because it was convinced that the
defendant would comply in good faith. However, because of the
general nature of the order, the Court decided to retain jurisdiction.
As it turned out, the defendants were in fact the first to make use of
this jurisdiction when they sought clarity on the nature of their
obligations. A few months down the road, the order was transformed
into a mandatory order because of evidence of non-compliance on the
part of the defendants. If jurisdiction had not been retained, the
plaintiffs would have had to commence a fresh and possibly unwinding
proceedings to secure compliance with the court order.
Retention of jurisdiction also affords the successful litigant with
an opportunity to be heard after the defendant has formulated his
response to the court’s directions. In the case of the government
defendants, the successful litigant is given a second chance to be
heard by a government whose initial failure could have been the cause
of the litigation. 94 The government would be compelled, this time
round, to engage with the plaintiffs in meaningful dialogue because
of the knowledge that the doors of the court are open to the
plaintiffs. This is in addition to the reluctance to endure another wave
of embarrassment arising from litigation which is easy to trigger. This
92
Note (n 68 above) 428.
93 K Roach & G Budlender ‘Mandatory relief and supervisory jurisdiction: When is it
appropriate, just and equitable’ (2005) 122 South African Law Journal 325 334.
94
D Davis ‘Socio-economic rights in South Africa: The record of the Constitutional
Court after ten years’ (2004) 5 ESR Review 3 6.