LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

The structural interdict 187
third party interests, the judge may intervene and fashion the
remedy. 115
Legislative/administrative hearing model
The legislative/administrative hearing model resembles a legislative
committee process providing for public hearings and direct informal
participation by interested parties. 116 This model allows persons not
originally party to the litigation, but who may be interested in the
case, to participate in the formulation of the remedy. It is an
effective model in responding to polycentric interests that may be
implicated by the case.
Like the bargaining model, this model allows the court to
appreciate facts and issues as brought to the fore by those attending
at the hearing. These are facts and issues that may probably have not
come out in court but relevant to finding an appropriate remedy. Yet,
unlike the bargaining model, which may be restricted to identified
parties, the legislative hearing model is more easily opened for third
parties to express their views
An example of a case where this model was used is the US case of
Pennsylvania Association for Retarded Children v Pennsylvania. 117 In
this case, in addition to conducting extensive informal public
hearings, the judge established an advisory committee composed of
representatives of the various groups and organisations with a stake
in the case. The mandate of the committee was to advise on an
appropriate remedy, 118 which was deemed necessary because of the
multitude of people interested in the outcome of the case. Their
participation made it possible for the different views and divergences
to be brought to the fore. However, as discussed below, 119
participation should not be inflated to such an extent that the process
becomes muddled, making it hard for the Committee to make a
decision.
115
Sturm (n 63 above) 1415 submits that the bargaining model fails to provide for
mechanisms for fostering the accountability of the participants in the negotiation
process to those they represent. He contends that, where lawyers are involved,
the bargaining closely follows an adversarial model of presentation. Sturm also
submits that usually the bargaining model tends to lay emphasis on reaching
agreement and proceeds according to an adversary structure which narrows the
terms of the discussion and inhibits meaningful exchange (1416). The lawyers
control the agenda and the process of negotiation. It is, therefore, important for
the court to ensure the participation of those affected and accountability to them
through, eg, the legislative and hearing model.
116 Sturm (n 63 above) 1370.
117 334 F Supp 1257 (ED Pa 1971) (PARC case).
118
See Sturm (n 63 above) 1370.
119 Sec 6.6.2.