LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

The structural interdict 197
Without such information, the court may not understand the nature
of the remedial problem. The court cannot rely on the parties, as is
the case in the adversarial procedure, to produce all the legislative
facts required. 157 In this setting, therefore, corrective justice
principles ‘offer unstable foundation for structural remedies because
of their limitation as principles best suited for rectification of discrete
wrongs committed by one individual against another’. 158 Roach
submits that corrective justice’s presumption of causation encourages
an absolutist approach to remedial decision making by ignoring the
socio-economic background of the violation, the involvement of other
parties and interests, and the possibility that intervening forces will
work against the court’s remedy. In his opinion, causation discourages
open balancing of interests or addressing intervening factors that can
threaten a remedial ambition. 159 Fiss follows the same line of thought
and identifies a number of distinctions between the structural suit
and the traditional suit. 160 These distinctions, although this is not
mentioned by Fiss, are structured along the lines of the notions of
corrective and distributive justice. Fiss describes the traditional suit
as challenging a legal wrong as opposed to a structural suit which
opposes a social condition that threatens the constitutional values.
While the victim of a traditional suit is deemed to speak for him or
herself, the victim of a structural suit is not an individual but a group
of people. The suit could have been triggered by an individual but it
remains representative of a group interest. The same may be said to
apply to the defendant who may be perceived as the wrongdoer. Fiss
submits that in structural suits the defendant may not even be a
wrongdoer, and yet has other interested parties behind him who may
not be defendants.
In structural settings, the finding of an appropriate remedy may
require the courts to depart from the traditional process of litigation
built around individualised litigation which seeks to enforce
corrective justice. The evidence on the court record at what would
ordinarily be the conclusion of traditional litigation may, for instance,
be inadequate for choosing an appropriate remedy. It may be
necessary for the court to retain its jurisdiction in order to adjust its
remedies in response to the factual discoveries that may emerge
later. The court may also have to involve parties who were not part
of the original litigation in its factual inquiries. 161 The traditional
adversarial presentation of proof and evidence may also prove
inadequate because of the need for information on facts that do not
necessarily inform the disputes between the parties.
157
Special Project (n 66 above) 792-793.
158 Roach (n 97 above) 874-875.
159 Roach (n 97 above) 875.
160
Fiss (n 65 above) 18-32.
161 Sturm (n 63 above) 1367.