LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

188 Chapter 6
Nonetheless, the openness of the process allows for a better
understanding of the polycentric interests implicated by the case. The
informal nature of the process also makes accessibility much easier
especially for the weak and vulnerable. Such persons may not have
the resources to initiate and sustain litigation. This is in addition to
the fact that the process gives rise to a variety of remedies to choose
from.
Expert remedial formulation model
The expert remedial formulation model involves the appointment of
either an individual expert or a panel of experts with a mandate to
develop a remedial plan. Sometimes these experts are designated as
court officials and have judicial powers. 120 The court-appointed
experts in structural litigation differ from those in other forms of
litigation. Experts in other forms of litigation are always restricted to
fact-finding mandates. In contrast, the experts in structural litigation
are usually mandated to design and propose a remedial plan. 121 The
expert could even be designated as an administrator with a mandate
to take over and manage the institution for the purposes of effecting
reforms. The expert model is particularly relevant in those cases
where specialised and technical skills are required to formulate an
appropriate remedy. This could be in those cases where there is, for
instance, a need to appreciate some social information facts before
formulating the order. 122 The court may not have the expertise and
skill to ascertain the social facts. This does not, however, mean that
the parties are left out of the remedy-finding process. In spite of their
skills, the experts may be obliged to consult with the parties in
formulating the remedial plans. 123 This, like the legislative hearing
model, is intended to ensure that polycentric interests are considered
and that the remedy is acceptable not only to the parties but to other
members of the community who may play a role in its
implementation. 124
However, this model also has its disadvantages. First, it may
detract from the need for participation of all stakeholders in the case.
120 A variety of terms have been used to refer to these experts and panels of experts.
These include: receiver, monitor, human rights committee, administrator,
advisory committee, ombudsman, committee, audit and review committee, to
mention but a few. See Special Project (n 66 above) 826.
121 See Special Project (n 66 above) 805.
122
See Special Project (n 66 above) 795.
123 An example of this is found in Hart v Community School Board 383 F Supp 699
(EDNY 1974). In this case, the order of reference required the expert to solicit
views not only from the parties but also from community groups within the
district.
124 Sturm (n 63 above) 1419-1420 contends that the expert model also encourages
reasoned decision making and fosters the impartiality and independence of the
court.