LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

194 Chapter 6
Nonetheless, it should be acknowledged that the structural
interdict may raise issues touching on the institutional capacity of the
courts as the judges may carry out what may appear to be
administrative functions for which they are ill-suited. 142 This is one of
the factors that force courts to prefer procedures that provide final
determinations to disputes. This is in contrast to those procedures
that call for a multiplicity of actions and ongoing judicial
supervision. 143 The courts do not want to be entangled in the day-today
running of government. 144 Fiss has submitted that such
entanglement may compromise the judge’s independence and may
act as an entry point for the judge into the world of politics. 145
In my opinion, however, the relevant issue is whether or not such
entry is justified by the circumstances of a particular case and
whether respect for other organs of state could still be maintained.
Respect for the executive and legislative branches of the state could
still be realised by crafting the structural interdict with a degree of
deference to the other organs. This is especially at the initial stages
of the remedial process. 146 The court may have to begin by
acknowledging the competence and expertise at the disposal of the
state. The court should seek to harness this expertise by requiring the
government to come up with a plan detailing how it intends to remedy
the proclaimed violation. This approach, if successful, will heighten
the chances of the remedy being implemented as it may do away with
resistance from the other organs. This is because of the involvement
of those responsible for its implementation in its formulation. Though
the court may choose to be intrusive, it could still, in the formulation
of the remedy, involve the state institution which is at fault. The
court could, for instance, appoint an expert who is mandated to assist
the parties to themselves find a solution to the problem. A more
intrusive approach would require the expert to find a solution, with
or without the contribution of the parties. An even more intrusive
approach would force the court itself to come up with a solution and
to ask the government, for instance, to implement its order within a
142 C Sunstein ‘Suing government: Citizen remedies for official wrongs. By Peter
Schuck’ Book review (1983) 92 Yale Law Journal 749 753. See also Special Project
(n 66 above) 813.
143 Cassels (n 5 above) 289. Horowitz (n 133 above) 19 attributes the institutional
challenges faced by the courts to the shift from the traditional nature of judicial
review which merely required forbidding of state action by the judiciary saying no
to other branches. The approach has been changed to one of requiring affirmative
action on the part of other branches, which may constrain the resources of the
judiciary to manage the task of commanding.
144 I Currie & J de Waal The Bill of Rights handbook (2005) 218-219. Currie and De
Waal have suggested that it is, therefore, important that the terms of the order
be devised in a flexible manner that does not result in supervision becoming too
intrusive and result in a blurring of the distinction between executive and judicial
functions (219).
145
Fiss (n 65 above) 46.
146 Cooper-Stephenson (n 7 above) 34.