LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

The structural interdict 201
government towards court orders. In City of Cape Town v Rudolph and
Others, 171 for instance, the Court justified the structural interdict by
the circumstances of the case, in particular the attitude of denial
expressed by government. The government had deliberately failed to
recognise the plight of the respondents, thereby ignoring the
Grootboom judgment to the effect that those in desperate need
should not be ignored. 172 In this case, on the basis of the Grootboom
case, the Court had found that Cape Town’s housing programme was
unreasonable in as much as it failed to make provision for short term
needs — the needs of those in desperate or crisis-like situations.
The structural interdict has also been justified by ‘the dilatory
and lackadaisical approach taken’ by the state in some cases. 173 The
recent case of EN and Others v Government of RSA and Others 174 is
evidence of this. The degree of recalcitrance exhibited by the
government in this case makes it worthwhile discussing the case in
detail. The case was commenced by the AIDS Law Project (ALP), the
Treatment Action Campaign (TAC) and 15 HIV/AIDS-positive prisoners
from the Westville correctional facility in KwaZulu-Natal. The
applicants sought orders to compel the government to remove all
obstacles preventing the 15 and other similarly-placed prisoners from
accessing anti-retroviral (ARV) treatment. They also sought an order
that the government provides the 15 and other similarly situated
prisoners with ARV treatment in accordance with the existing
government Operational Plan for Comprehensive HIV and AIDS Care,
171 2003 11 BCLR 1236 (C) (Rudolph case). Eg, the Court justified the structural
interdict by the circumstances of the case, in particular the attitude of denial
expressed by government. The government had deliberately failed to recognise
the plight of the respondents, thereby ignoring the Grootboom judgment to the
effect that those in desperate need should not be ignored (1279). In this case, on
the basis of the Grootboom case, the Court had found that Cape Town’s housing
programme was unreasonable in as much as it failed to make provision for short
term needs - the needs of those in desperate or crisis-like situations.
172 2003 11 BCLR 1236 (C) 1279.
173 Centre for Child Law and Others v MEC for Education and Others, Case 19559/06
(unreported) (Luckhoff case), High Court Transvaal Provincial Division 11 [lines 7-
9] of the unreported judgment. In this case, the respondents contested the
conditions under which children placed at JW Luckhoff High School pursuant to
sec 15(1)(d) of the Child Care Act of 1983 lived. The physical conditions in the
hostels were pathetic: There were poor sleeping facilities; the hostels did not
have access control systems; and psychological support and therapeutic services
were absent. The applicants contended that these features, among others,
amounted to an infringement of the children’s socio-economic rights under sec
28. The children had been removed from the care of their parents or families
which imposed a direct duty on the state to provide for their socio-economic
needs. Murphy J agreed with the applicants that the school needed a quality
assurance programme, immediate provision of sleeping bags for the children, and
putting in place of a plan for construction of a perimeter wall and access control
system.
174 2007 1 BCLR 84 (D) (Westville case). For a discussion of this case, see L Muntingh
& C Mbazira ‘Prisoners’ right of access to anti-retroviral treatment’ (2006) 7 ESR
Review 14.