LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

212 Chapter 6
enforcement of the court orders with the least involvement of the
court. Indeed, all the parties involved in the case have generally
expressed their satisfaction with the implementation of the order.
The buildings were not only made more habitable, but relocation of
occupants took place in a humane manner which, has not rendered
persons homeless. 220
In my opinion, the Olivia and Sibiya cases show that the Court is
willing to be guided by some norms and principles on how to exercise
supervisory jurisdiction. The principles in these cases, however, need
to be developed and applied consistently and in a broader manner.
Indeed, the principles in the Sibiya case thus far address only one
aspect of the structural interdict: the supervision process. Yet, the
Olivia case does not define any principles by which the decision to
grant the relief is guided. There is therefore a need for a
comprehensive list of norms and principles that address not only the
supervision process, but also the process of determining when the
relief is appropriate. This is what the next section sets out to do.
6.6 Norms and principles for the structural interdict
It is important that the structural remedial process adheres to certain
norms and principles if it is going to achieve its purpose and forestall
some of the criticisms that have been directed at it. These norms
should, by their nature, be capable of application in a number of
contexts. The norms include the utilisation of the structural interdict
in a graduated manner as a remedy of last resort, participation of all
stakeholders, impartiality and independence, reasoned decision
making; remediation which complies with the substantive norms 221
and flexibility.
Roach and Budlender should be commended for defining some of
the principles that could guide the courts in determining when a
structural interdict is an appropriate remedy. 222 They argue that the
remedy should be granted where there is evidence to believe that the
government may not comply promptly. The same applies to those
cases where the violation arises from ‘neglect, inadequate budgets
and inadequate training of public officials’. 223 This is in addition to
those cases where the consequences of ‘even a good-faith failure to
comply with a court order is so serious that the court should be at
220 See C Mbazira ‘You are the “weakest link” in realising socio-economic rights:
Goodbye. Strategies for effective implementation of court orders in South Africa’
(2008) Socio-Economic Rights Project, Community Law Centre Research Series 3
19.
221 Sturm (n 63 above).
222
Roach & Budlender (n 93 above).
223 Roach & Budlender (n 93 above) 349.