LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

216 Chapter 6
spheres of government as regards the provision of social goods and
services. 237 Ignoring these interests and competences may affect the
efficacy of the remedy obtained and may lead to the imposition of
remedial burdens that fall outside a government sphere’s
constitutional mandates. Involvement of a wide range of stakeholders
is also necessary in securing collaboration between the different
spheres or departments of government and the different stakeholders
in the remedial process. It is also important to note that government
programmes often consist of partially co-ordinated outputs of a
number of departments and organs of state. In addition to the state
actors, there could be non-state actors such as trade unions and
organised groups that influence the direction of the government
programme. 238 It is prudent that these actors be consulted if
practicable.
Sturm has suggested that the forms of interaction used in the
decision-making process should promote involvement, co-operation
and consensus. He suggests further that the process should also
mitigate the unequal power, resources, and sophistication of
participants. 239 This is important because it establishes equality of
participation in the process and encourages parties to bring to the
fore their interests without fear. It is particularly important with
regard to socio-economic rights because of the imbalance of power
which usually exists between poor and marginalised communities and
powerful government or other artificial entities.
It is also vital that institutional reform includes identification of
the various groups and entities whose co-operation is necessary. This
is in addition to ascertainment of the needs and interests of those
groups and entities, and assessment of the likely impact of any
proposed reforms on their interests. 240 The involvement of a wide
variety of participants increases the number of alternative remedial
proposals before the court. 241 Participation will also allow all the
stakeholders to be educated on the nature of the case, the remedial
237
See schedules 4 and 5 of the Constitution for the competences of the different
levels of government. See also C Mbazira Realising socio-economic rights in the
South African Constitution: The obligations of local government. A guide for
municipalities (2006).
238 Note (n 68 above) 433.
239 Sturm (n 63 above) 1410.
240
Note (n 68 above) 433.
241 Special Project (n 66 above) 804.