LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

198 Chapter 6
Additionally, such common law principles as functus officio, if
considered, may impair the capacity of the courts to administer
justice in a more flexible manner. The courts will be barred from
retaining jurisdiction to ensure that the remedial orders are
implemented to their final end. In the Canadian Doucet-Boudreau
case, for instance, the majority in the Supreme Court held that some
of the common law principles such as functus officio, as found outside
Charter jurisprudence, are overly vague and inapplicable to orders
made under section 24(1) of the Charter. 162 They held that there was
need for creative remedies in enforcing Charter rights to meet the
challenges and circumstances presented by the cases under the
Charter. The majority held that tradition and history should not
present themselves as barriers to this enterprise; the judicial
approach must be flexible and responsive to the needs of a given
case. 163 The circumstances of the case, according to the majority,
disclosed delay on the part of the defendants, yet the protected rights
were imperilled. 164 The traditional procedures of litigation would
have but furthered these delays. The order of the trial judge was
found to have been flexible and sufficient to address unforeseen
difficulties. 165
It therefore remains true that the structural interdict has a very
important role to play in uprooting systemic violations, especially in
institutional or organisational settings. What remains to be explored
is whether (and how) the South African courts have made use of this
very important remedy. The next section will show the circumstances
under which the South Africa courts have deemed the structural
interdict appropriate.
6.5 South Africa: Which way?
The South African experience shows a willingness and frequent use of
the structural interdict in High Court socio-economic rights litigation,
but reluctance on the part of the Constitutional Court to use this form
of relief. In spite of this, the Constitutional Court has acknowledged
that it is within its powers to grant structural remedies, including the
structural interdict. The Court has indeed easily availed itself of this
remedy in civil and political rights litigation. In this section, I contrast
the approaches of these two courts and the reasons for this.
162 [2003] 3 SCR 3 para 54.
163 n 162 bove, para 59.
164
n 162 bove, para 60.
165 n 162 bove, para 68.