LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

The structural interdict 189
The expert, and not the stakeholders, gets the benefit of integrating
the range of information and perspectives on the remedy. The
parties’ limited involvement may make it difficult for the expert to
justify particular remedial decisions. This is because, in the course of
developing specific approaches to realising the underlying legal
principles, the expert must in some situations pursue goals and norms
that are not dictated by those underlying principles. These choices
can be justified only by the expert's view of the wisdom of those
norms; and those who must live with the remedy may have a different
perspective on the norms and how they should be implemented. In
some cases, there may be a reasoned basis for striking a particular
balance among competing norms and applications in a particular
context.
Achieving and justifying this balance, however, requires a
participatory process of exploring the interests of, and the factual
bases and reasoned justifications offered by, the various
participants. 125 In my opinion, however, whether participation is
fostered also depends on the expert’s mandate and how he or she
carries it out. The court may foster participation by making
consultation part of the expert’s mandate. The court may also leave
its doors open to the stakeholders to express their dissatisfaction with
the way the expert is conducting him or herself. 126 The parties may
also be afforded the opportunity to contradict the proposals of the
expert or to present alternative plans. Additionally, the court may not
be bound by the recommendations of the expert and may disregard
them if found to be erroneous.
Report back to court model
This is the most commonly-used model implemented by requiring the
defendant to report back to the court with a plan on how he or she
intends to remedy the violation. Usually a fixed date is set for the
filing of the plan and the other party is given an opportunity to
comment on the plan. It is only when the court is satisfied with the
plan that it will concretise it as part of its decree. This model has a
number of advantages. First, it allows the court to defer to the
government (defendant) on the most effective way of eliminating the
violation. This promotes the doctrine of separation of powers and
shields the court from accusations that it has usurped functions
reserved for the other organs of state. The model also enables the
court to harness the expertise that may be in the hands of the
defendant. This is especially relevant in the case of government
125 See Special Project (n 66 above) 807.
126
This though should not be done in such a way that it undermines the expert’s
authority and leads to entertainment of frivolous complaints.