LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

The structural interdict 203
appreciation, if not misunderstanding, on the part of the executive of
their constitutional obligations, and the role of the judiciary in
reasserting these obligations through means such as the structural
interdict. Rather than lead to a breakdown in the relationship
between the judiciary and the executive, the structural interdict
should be viewed as promoting a dynamic dialogue between these two
branches. This is dialogue on the intricacies of implementing court
orders and actualising constitutional rights. 182 It is clear from this
case that, rather than be deferential, in those cases where there is
evidence of recalcitrance from the start, use of a structural interdict
as a remedy of first resort may be justified. The South African
government has in the past exhibited inconsistence and incoherence
towards the HIV/AIDS problem. 183 This leaves the courts with no
option but to demand, on those occasions when cases are filed,
concrete plans detailing the intended response to the problem. The
persistence of the court in the Westville case forced the government
to give in and file a plan as earlier directed. 184
Analysis of the High Court approach
Although the High Court has readily availed itself of the structural
interdict and used it consistently, it has not devised clear principles
that could determine when such remedy is appropriate. While the
Court has deemed the remedy appropriate whenever there is
recalcitrance on the part of government, this does not detail all the
relevant principles needed to determine appropriateness and use of
the structural interdict. In addition to clear principles that may be
used to determine when the remedy is appropriate, there should also
be principles on how the remedy should be applied. The High Court
has, for instance, not determined the level of recalcitrance that
would justify use of the remedy, let alone the causes of such
recalcitrance. It is this lack of clear principles in respect of
application of the structural interdict that has motivated me to craft
a set of norms and principles applicable to this remedy. These norms
and principles are detailed in section 6.6 of this chapter.
One should, however, underline some of the important principles
that may be deduced from the High Court’s approach. These
principles, though not exhaustive, are relevant in designing more
comprehensive norms and principles, as I do later. First, the High
Court has made it clear that the court should retain jurisdiction where
the evidence before it is inadequate for the purpose of determining
182
See M Pieterse ‘Coming to terms with judicial enforcement of socio-economic
rights’ (2004) 20 South African Journal on Human Rights 383 414.
183 See ‘Aids criticism: Manto hits back’ Mail & Guardian 11 September 2006.
184
See G Stolley ‘Prisons department reveals plan for AIDS drugs’ Mail & Guardian 11
September 2006.