LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

214 Chapter 6
aimed at procuring the government to exercise its discretion in a
manner that eliminates the violation. The government should be given
an opportunity to demonstrate the plans it intends to follow to
eliminate the violation. The court could also require the parties to
negotiate a plan and report back to it. It is only when all these
attempts fail that the court should intervene by taking administrative
decisions. 229
The courts should, therefore, exercise what has been described as
‘remedial absentation’. 230 A court exercising remedial absentation
merely retains jurisdiction to stop the infringement while allowing the
state to formulate a remedial plan indicating how it intends to end the
infringement. At this stage, the court should only order the defendant
to produce a plan for judicial evaluation. The order may be
accompanied by guidelines suggested by the court. This is important
because a defendant making a good-faith attempt may need
guidance, but also a recalcitrant defendant will produce an
inadequate plan unless closely instructed. 231 As mentioned above, 232
this approach is important because it limits judicial involvement in
what may be viewed as policy matters. Additionally, it allows the
court to harvest the special expertise of the defendant and to secure
co-operation in this regard. Remedial absentation should be
contrasted with judicially imposed remedies, which are formulated
without the benefit of the expertise or skills of the parties and may
be considered to be intrusive. 233
Roach and Budlender suggest that in some cases it may be
appropriate for the court to require the government to report to the
public on the steps it plans to take to comply with the Constitution.
In their opinion, such reporting would make it possible for civil society
and political organisation to monitor compliance. 234 This is a softer
remedy in comparison to requiring the government to report to the
court. In such circumstances, the court cannot be accused of being
undemocratic and breaching the doctrine of separation of powers.
Roach and Budlender contend that a court that requires an elected
government to communicate with its citizens about important
matters of governance and steps taken to comply with constitutional
rights cannot reasonably be criticised for being undemocratic or
infringing the separation of powers. This is because reporting to the
229 The United States experience shows reluctance on the part of the courts to devise
the remedial plans themselves. Instead, the parties were themselves required to
do so. The courts only imposed plans where the parties had failed to come to an
agreement. See Chayes (n 62 above).
230
Special Project (n 66 above) 796.
231 Special Project (n 66 above) 798.
232 Sec 6.3.2.
233
Special Project (n 66 above) 800.
234 Roach & Budlender (n 93 above) 346.