LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

More documents

Recommendations

Info

192 Chapter 6 result in a relief acceptable by all the parties. This explains why the Court ordered that the engagement extends to other stakeholders in the matter, including the United Nations High Commissioner for Refugees. 6.4 Arguments for and against the structural interdict Objection to the structural interdict has been based on two broad arguments: separation of powers and institutional competence-type arguments and arguments based on the notion of corrective justice. Although chapter two extensively discusses the separation of powers and institutional dimension objections to socio-economic rights, it is worth discussing them here again in the context of the structural interdict. This is because the dimension of the objections as regards the structural interdict is very specific and a discussion of the structural interdict without the separation of powers based objection would be incomplete. 6.4.1 Separation of powers-type arguments As discussed in chapters two and three, 132 making budgetary allocations and making policy-related choices are considered an exclusive domain of the legislative and executive branches of the state and not the courts. This is because the process of making budgetary allocations and policy choices gives rise to very difficult questions relating to the making of expenditure, policy and prioritisation. These questions are considered to be appropriately answered not in judicial but policy-making processes. It is on this basis that structural litigation has been perceived as inappropriately moving the courts ‘from the byways onto the highways of policymaking’. 133 It has been submitted that what this means is that there is now more overlap between the courts and the legislature in formulating policy and between the courts and the executive in both formulating and carrying out programmes. Accordingly, the types of decisions being made by the various institutions in terms of their scope and level of generality seem to be converging somewhat. 134 Although all forms of constitutional litigation may carry budgetary consequences, budget-related questions in socio-economic rights litigation requiring the structural interdict are always more 132 Sec 2.2.1 of ch three & sec 3.2.4 of ch four. 133 D Horowitz The courts and social policy (1977) 9. Referencing A Bickel The least dangerous branch: The Supreme Court at the bar of politics (1962), Horowitz submits that this has led to judges viewing themselves as roving commissions and as problem solvers charged with the duty to act when majoritarian institutions fail. 134 Horowitz (n 133 above) 20.
The structural interdict 193 pronounced. 135 Litigation of this nature usually takes the form of restructuring large organisations to provide services that have in the past been neglected and which impact on a number of people. This may call for a great deal of money and other resources to be provided by the government. This is in addition to involving the courts in what may appear to be administrative and policy-making matters. According to Frug, the orders in the institutional cases do not deal directly with either the raising or the allocation of money. They simply require a specified level of services, leaving to the legislature the necessary revenue raising and allocation decisions that result from the order. Frugs contends that, although the court does not specify the source of the money needed to comply with its order, it still is engaging in budget allocation. 136 However, as discussed in chapter two, 137 courts possess qualities that make them well-suited to perform some tasks where there is evidence of either failure or neglect on the part of the other organs of state. These characteristics include insulation from narrow political pressures, the ability to gather information within their nonbureaucratic structures and the willingness to encourage participation of affected interests. 138 It is, therefore, important that the competence of the courts in eliminating systemic violations be analysed not only in terms of institutional inappropriateness but also in terms of their advantages. 139 The courts should, therefore, be mandated to use their special qualities and intervene by way of a structural interdict where other organs have failed or neglected their duties. 140 This point is canvassed later in discussing the norms and principles of the structural interdict. 141 135 Horowitz (n 133 above) 7. 136 G Frug ‘The judicial power of the purse’ (1978) University of Pennsylvania Law Review 715 739. Nagel gives examples of United States cases in which government expenditure has been increased dramatically as a result of structural interdicts. In one mental institution case, the operating and capital expenses increased by US $29 million in one year. R Nagel ‘Controlling the structural interdict’ (1984) 7 Harvard Journal of Law and Public Policy 395 397. In this regard, Horowitz (n 133 above) 6 gives the example of a case which led to an increment of the state’s annual expenditure on mental institutions from US $14 million when the suit was filed to US $58 after the decree was made. 137 Sec 2.3. 138 Sturm (n 63 above) 1408. 139 Note (n 68 above) 437. This is not to suggest that the institutional competence and separation of powers concerns are totally irrelevant. The courts have to be cautious and to refrain from overrunning the executive and legislative branches of the state unless this is absolutely necessary. It is submitted later in this chapter (sec 6.6.1 below) that judicial supervision should only be justified when the political bodies that should exercise the necessary discretion are seriously and chronically in default. 140 A Rycroft ‘Judicial innovation and the delinquent state: A note on the State and Mfezeko Zuba and 23 similar cases’ (2004) 20 South African Journal on Human Rights 321 325. See also Davis (n 94 above). 141 Sec 6.5 below.
Page 1 and 2:
LITIGATING SOCIO-ECONOMIC RIGHTS IN
Page 3 and 4:
TABLE OF CONTENTS PREFACE ACKNOWLED
Page 5 and 6:
PREFACE As an international LLM Stu
Page 7 and 8:
ACKNOWLEDGMENTS I would like to exp
Page 9 and 10:
CHAPTER 1 INTRODUCTION The inclusio
Page 11 and 12:
Introduction 3 lay the foundation f
Page 13 and 14:
Introduction 5 positive obligations
Page 15 and 16:
Introduction 7 been very careful no
Page 17 and 18:
Introduction 9 justice theory takes
Page 19 and 20:
Introduction 11 jurisdictions. Many
Page 21 and 22:
Introduction 13 placed on general w
Page 23 and 24:
CHAPTER 2 THE LEGAL NATURE OF SOCIO
Page 25 and 26:
Legal nature of socio-economic righ
Page 27 and 28:
Page 29 and 30:
Page 31 and 32:
Page 33 and 34:
Page 35 and 36:
Page 37 and 38:
Page 39 and 40:
Page 41 and 42:
Page 43 and 44:
Page 45 and 46:
Page 47 and 48:
Page 49 and 50:
Page 51 and 52:
Page 53 and 54:
Page 55 and 56:
Page 57 and 58:
Page 59:
Page 62 and 63:
54 Chapter 3 appropriate means. Sim
Page 64 and 65:
56 Chapter 3 which he refers to as
Page 66 and 67:
58 Chapter 3 dialysis treatment to
Page 68 and 69:
60 Chapter 3 Though it is not withi
Page 70 and 71:
62 Chapter 3 number of rights in IC
Page 72 and 73:
64 Chapter 3 within the prevalent c
Page 74 and 75:
66 Chapter 3 the state cannot affor
Page 76 and 77:
68 Chapter 3 refusal to impose an a
Page 78 and 79:
70 Chapter 3 cases in which the cou
Page 80 and 81:
72 Chapter 3 enjoy all rights there
Page 82 and 83:
74 Chapter 3 formalistic and abstra
Page 84 and 85:
76 Chapter 3 behind the protection
Page 86 and 87:
78 Chapter 3 been able to determine
Page 88 and 89:
80 Chapter 3 27(1) are to have ‘a
Page 90 and 91:
82 Chapter 3 by the political organ
Page 92 and 93:
84 Chapter 3 The subsection must be
Page 94 and 95:
86 Chapter 3 dealing with sections
Page 96 and 97:
88 Chapter 3 arising from the exclu
Page 98 and 99:
90 Chapter 3 justifiable in an open
Page 100 and 101:
92 Chapter 3 The phrase ‘within a
Page 102 and 103:
94 Chapter 3 increase the levels of
Page 104 and 105:
96 Chapter 3 to withdraw from its r
Page 106 and 107:
98 Chapter 3 The problem with the C
Page 108 and 109:
100 Chapter 3 All that the courts w
Page 110 and 111:
102 Chapter 3 justify its failure t
Page 112 and 113:
104 Chapter 4 These theories of jus
Page 114 and 115:
106 Chapter 4 perceives the law as
Page 116 and 117:
108 Chapter 4 difference whether a
Page 118 and 119:
110 Chapter 4 Traditionally, the vi
Page 120 and 121:
112 Chapter 4 the wellbeing of all
Page 122 and 123:
114 Chapter 4 that may be short of
Page 124 and 125:
116 Chapter 4 the victim's needs sh
Page 126 and 127:
118 Chapter 4 doing so appears to d
Page 128 and 129:
120 Chapter 4 by its results. Those
Page 130 and 131:
122 Chapter 4 government that bears
Page 132 and 133:
124 Chapter 4 On the basis of the a
Page 134 and 135:
126 Chapter 4 realise that concept.
Page 136 and 137:
128 Chapter 4 ‘appropriate, just
Page 138 and 139:
130 Chapter 4 It is at this point t
Page 140 and 141:
132 Chapter 5 of the defendant too
Page 142 and 143:
134 Chapter 5 enforcement of these
Page 144 and 145:
136 Chapter 5 courts are constituti
Page 146 and 147:
138 Chapter 5 rights have been viol
Page 148 and 149:
140 Chapter 5 the law is ‘restora
Page 150 and 151: 142 Chapter 5 unfit for cabin work,
Page 152 and 153: 144 Chapter 5 measured by the yards
Page 154 and 155: 146 Chapter 5 (defendant) to determ
Page 156 and 157: 148 Chapter 5 has left open the pos
Page 158 and 159: 150 Chapter 5 without the need for
Page 160 and 161: 152 Chapter 5 demolishing their sha
Page 162 and 163: 154 Chapter 5 and power to bring an
Page 164 and 165: 156 Chapter 5 between the parties.
Page 166 and 167: 158 Chapter 5 such as those where t
Page 168 and 169: 160 Chapter 5 is in circumstances w
Page 170 and 171: 162 Chapter 5 concluded that it was
Page 172 and 173: 164 Chapter 5 because of the immens
Page 174 and 175: 166 Chapter 6 Constitutional Court
Page 176 and 177: 168 Chapter 6 actually committed or
Page 178 and 179: 170 Chapter 6 unlawful conduct. In
Page 180 and 181: 172 Chapter 6 is not prepared to ab
Page 182 and 183: 174 Chapter 6 (d) that the applican
Page 184 and 185: 176 Chapter 6 difficulties aired in
Page 186 and 187: 178 Chapter 6 It is because of thes
Page 188 and 189: 180 Chapter 6 which forced the cour
Page 190 and 191: 182 Chapter 6 institutions whose re
Page 192 and 193: 184 Chapter 6 acceptable to all the
Page 194 and 195: 186 Chapter 6 down the normative st
Page 196 and 197: 188 Chapter 6 Nonetheless, the open
Page 198 and 199: 190 Chapter 6 because of the qualit
Page 202 and 203: 194 Chapter 6 Nonetheless, it shoul
Page 204 and 205: 196 Chapter 6 Nova Scotia. 154 The
Page 206 and 207: 198 Chapter 6 Additionally, such co
Page 208 and 209: 200 Chapter 6 dealing with … righ
Page 210 and 211: 202 Chapter 6 Management and Treatm
Page 212 and 213: 204 Chapter 6 the most appropriate
Page 214 and 215: 206 Chapter 6 for the structural in
Page 216 and 217: 208 Chapter 6 have not obtained the
Page 218 and 219: 210 Chapter 6 further enabled the C
Page 220 and 221: 212 Chapter 6 enforcement of the co
Page 222 and 223: 214 Chapter 6 aimed at procuring th
Page 224 and 225: 216 Chapter 6 spheres of government
Page 226 and 227: 218 Chapter 6 independence in struc
Page 228 and 229: 220 Chapter 6 6.6.4 Reasoned decisi
Page 230 and 231: 222 Chapter 6 justified if the reme
Page 232 and 233: 224 Chapter 6 This could be followe
Page 235 and 236: CHAPTER 7 CONCLUSION Although the S
Page 237 and 238: Conclusions and recommendations 229
Page 249 and 250: TABLE OF CASES African Commission o
Page 251 and 252:
Table of cases 243 City Council of
Page 253 and 254:
Table of cases 245 Permanent Secret
Page 255 and 256:
Table of cases 247 Marbury v Madiso
Page 257 and 258:
Table of international treaties and
Page 259 and 260:
Bibliography 251 Brand, D & Heyns,
Page 261 and 262:
Bibliography 253 Locke, J (1967) Tw
Page 263 and 264:
Bibliography 255 Zakrzewski, R (200
Page 265 and 266:
Bibliography 257 Rendering justice
Page 267 and 268:
Bibliography 259 Sachs, A ‘The ju
Page 269 and 270:
Bibliography 261 Corbett, M ‘Repr
Page 271 and 272:
Bibliography 263 Gready, P & Kgalem
Page 273 and 274:
Bibliography 265 Moore, B ‘Commun
Page 275 and 276:
Bibliography 267 Schwarzschild, M
Page 277 and 278:
Bibliography 269 Water Delivery in
Page 279 and 280:
Bibliography 271 Garret, B Structur
Page 281:
Bibliography 273 Kanyeihamba, G ‘
show all

LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?