LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

200 Chapter 6
dealing with … rights of a programmatic nature’. 168
Additionally, the High Court has been motivated to grant
structural interdicts by the need to protect and promote the doctrine
of separation of powers. The structural interdict has enabled the
Court to give latitude to the executive branch of government by
deferring to it on the most appropriate solutions to address
unconstitutional conditions. In this respect, ‘[t]he structural interdict
is not intended to substitute the judiciary for the administration, but
to relieve the judge from framing relief in a way that would constitute
democracy by judicial decree’. 169 This, as seen above, is what the
Court has described as the opportunity given to the respondent to
propose a practical solution. According to Budlender: 170
Structural interdicts can be deeply democratising. They create spaces
for dialogue between the court, the government and civil society actors.
In this way, they strengthen and deepen accountability and participation
— the key elements of democracy.
Rather than violate the doctrine of separation of powers, the High
Court, therefore, views the structural interdict as a means of
preserving the doctrine. The latitude given to the government to
fashion the remedy indicates that the High Court is not prepared to
assume functions that are preserved for the executive organ of the
state. The executive branch is, therefore, required to execute selfimposed
rather than judicially-imposed remedies.
It appears, however, that the main reason the Court has resorted
to the structural interdict is to counter recalcitrance by the
168
S v Zuba and 23 similar cases 2004 4 BCLR 410 (E) (Zuba case) para 36. This case
arose from the absence of juvenile reform schools in the Eastern Cape. It had
been established in evidence that the provincial government had just embarked
on what was to be a long planning process of establishing a reform school in the
province. After reviewing the problems as regards the establishment and
maintenance of reform schools in the province, the Court ordered the
Department of Education to file a report disclosing its short, medium and long
term plans for the incarceration of juvenile offenders. It was also ordered that a
task team, to work on the establishment of a reform school, be identified, and its
reports be submitted on a regular basis to the inspecting judge as regards
progress until the school is established.
169 Davis (n 94 above) 6.
170
G Budlender ‘The role of the courts in achieving the transformative potential of
socio-economic rights’ (2007) 8 ESR Review 9 11.