LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

The structural interdict 195
stated time and to report on the same. However, as is noted below, 147
the court should gravitate towards such intrusiveness only when it is
absolutely necessary to do so. 148 The circumstances that determine
the level of intervention are detailed under the discussion of norms
and principles below. 149
In conclusion, therefore, the separation of powers objection is not
totally unfounded. Courts should not use the structural interdict to
assume functions of other organs of state as of first resort. I submit in
this chapter that using the structural interdict should be a matter of
last resort and only where there is evidence of failure on the part of
government to exercise its discretion. 150 It is this degree of failure
and extent of government recalcitrance that should dictate the level
of judicial intrusion.
6.4.2 Corrective justice-type arguments
As seen in chapter four, 151 the theory of corrective justice requires
that victims of violations be put in the position they were in before
the violation occurred. It is on the basis of this principle that the
structural interdict has been condemned for its failure to put victims
in the position they would have been but for the violations. Nagel, for
instance, refers to the US school desegregation cases and submits that
these cases did not benefit the students who had been illegally
segregated and who instituted the actions. 152 The orders were instead
directed at making structural reforms that would only bring about
change in the long run.
The structural interdict also contravenes the notion of corrective
justice by adopting unconventional mechanisms of adjudication. As
seen above, 153 for instance, the structural interdict may force judges
to ignore the principle of functus officio by allowing courts to retain
jurisdiction. It is, for example, on the basis of the functus officio
principle that an appellate court in Canada set aside a decision by a
lower court to retain supervisory jurisdiction in Doucet-Boudreau v
147
Sec 6.6.
148 Horowitz (n 133 above) 24 concedes that where there is reticence on the part of
other branches as regards policy decision making, however imperfect a judicial
remedy is, it may be the best available due to the absence of performance by
other branches. Horowitz could be read as suggesting that in a situation of a
recalcitrant government, the courts have to use all kinds of creative means to
protect the values and rights guaranteed by the Constitution. The structural
interdict is an example of such creative remedies used to achieve compliance
with court orders.
149
Sec 6.6.1.
150 See sec 6.6.1.
151 Sec 4.2.1.
152
Nagel (n 136 above) 402.
153 Sec 6.3.1.