LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

The structural interdict 185
officials and departments or spheres of government, each with
different motives and goals to achieve. 104
The model has, however, been criticised as encouraging
perpetuation of the case and indefinite involvement of the court. This
is in addition to sacrificing reasoned decision making on the part of
the court. According to Fiss: 105
The drive for settlement knows no bounds and can result in a consent
decree even in … [structural litigation], that is, even when a court finds
itself embroiled in a continuing struggle between the parties or must
reform a bureaucratic organisation. The parties may be ignorant of the
difficulties ahead or optimistic about the future, or they may simply
believe that they can get more favorable terms through a bargained-for
agreement. Soon, however, the inevitable happens: One party returns to
court and asks the judge to modify the decree, either to make it more
effective or less stringent. But the judge is at a loss: He has no basis for
assessing the request. He cannot, to use Cardozo's somewhat
melodramatic formula, easily decide whether the ‘dangers, once
substantial, have become attenuated to a shadow’, because, by
definition, he never knew the dangers. 106
It should be noted, however, that Fiss’s criticism is based on
erroneous assumptions. Some of these assumptions are motivated by
the purpose of his article, namely, to criticise models of litigation that
encourage alternative dispute resolution in the place of court
determinations. Structural litigation does not, however, fall in this
class of litigation. Structural litigation is conducted with clear
appreciation of the fact that the litigation implicates interests beyond
the interests of parties. This is a fact that Fiss ignores: He trivialises
litigation by reducing its social function ‘to one of resolving private
disputes’. 107 Fiss also ignores the fact that structural litigation is
always opened up to persons not originally parties to the litigation and
allows them to bring to the fore their interests. The judge remains
conscious of these interests and reserves the right to reject
settlements that sideline them. Fiss also does not understand that the
continued involvement of the judge in the litigation is motivated by
the desire to stop a systemic violation rather than the protection of
the interests of the parties.
Furthermore, Fiss assumes that the adversarial litigation process
is the only possible method of preserving a reasoned decision-making
process. 108 Reasoned decision making could still be preserved even
when the order is a negotiated one; the judge could begin by laying
104
Note (n 68 above) 434.
105 O Fiss ‘Against settlement’ (1984) 93 Yale Law Journal 1073.
106 Fiss (n 105 above) 1083 (footnotes excluded).
107
Fiss (n 105 above) 1085.
108 Sturm (n 63 above) 1400-1401.