LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

More documents

Recommendations

Info

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.
The structural interdict 199 6.5.1 The approach of the High Court The High Courts have rejected the view that a declaratory order would be the only sufficient remedy for the government to implement orders from the courts. The Cape of Good Hope High Court, for instance has considered a declaratory order without injunctive relief to lack practical content. 166 Most importantly, however, the Court considers the structural interdict to be of practical importance both to the applicants and the government. This is especially in those cases where there is insufficient information before the court to determine the most appropriate relief that would redress the violation. The practical advantages arise particularly from the court’s retention of jurisdiction over the case. The applicants, on the one hand, would not be bothered by filing new papers when more information emerges. On the other hand, it would be fair to the respondent government which may need more time to come up with solutions. In the words of Davis J, in fairness to the respondents, who now know where their duty lies, they should be given an opportunity of proposing a practical solution. Yet in fairness to the applicants, now that they know where their rights lie, the respondents should be directed to make such proposals within a reasonable time. The judge adds that the applicants should furthermore have the opportunity of commenting on the proposal, and the respondents should be allowed to respond to such comment. 167 At the High Court level, the structural interdict has also been underlined as an appropriate response to systemic violations. The Court has observed that other remedies, ‘such as declarator, the prohibitory interdict, mandamus, and awards of damages’, are inappropriate to remedy ‘systemic failures or the inadequate compliance with constitutional obligations, particularly when one is 166 167 See Grootboom v Oostenberg Municipality and Others 2000 3 BCLR 277 (C) (Grootboom Oostenberg case). In this case, the High Court found that the state was obliged by sec 28(1)(c) of the Constitution to provide shelter for children. The Court ordered the state to provide the children with shelter until such time as their parents were able to shelter them. The government was also ordered to report to the Court, under oath, within a period of three months from the date of the order, on how it was planning to eradicate the violation. The applicants were also given a right to deliver a commentary on the government report within a period of one month after the state report. Grootbom Oostenberg case (n 166 above) 292. One of the issues that the Court thought needed clarification was the question of on which sphere of government the remedial obligations in the case would lie, the Oostenberg Municipality or the Cape Metropolitan Council. The judge hoped that this would be clarified in the plan to be filed (293).
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 200 and 201: 192 Chapter 6 result in a relief ac
Page 202 and 203: 194 Chapter 6 Nonetheless, it shoul
Page 204 and 205: 196 Chapter 6 Nova Scotia. 154 The
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

Create successful ePaper yourself

Delete template?

Save as template?