LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

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220 Chapter 6 6.6.4 Reasoned decision making One of the criticisms levied against structural litigation is that it sacrifices reasoned decision making and exalts remedies reached by consent. 257 It is therefore necessary for structural remedies to be based on reasoned decision making. Structural litigation should be conducted with open awareness of the fact that the litigation implicates interests beyond those of the parties. The court should determine whether the case negatively impacts on interests other than those of the parties. In addition to this, however, the court should support its decisions with legal norms and standards in the form of normative standards established, for instance, in the Bill of Rights. 258 This is where reasoned decision making becomes relevant as reflected in the way the judge interprets and applies the normative standards in issue. The judge has to justify his or her decision as based on the law. This forestalls accusation that the judge has applied his or her own value judgment to decide the case. Reasoned decision making in structural litigation terms, therefore, gives legitimacy to judicial intervention as being based on legal norms and the need to solve systemic problems. When remedies are based on reasoned decision making, they accord legitimacy to the process, which translates into acceptance of the directions issued by the court. The expert remedial formulation model is more capable of realising reasoned decision making in comparison to the bargaining and legislative hearing models. Usually, the court-appointed experts come with technical expertise and a capacity to gather and assess large quantities of information. In spite of this, whether a case requires an expert model of remediation should depend on the circumstances of each case. If a case has many technical aspects which need to be assessed before an effective remedy is crafted, it will definitely need expert help. But if a case merely requires ascertainment of some factual aspects, the hearing model and not the expert model may be the most appropriate. Reasoned decision making should, therefore, not be exalted blindly by appointing an expert without first considering the circumstances of the case. Finally, it should be noted that reasoned decision making also promotes the principle that aims at ensuring that remediation 257 Fiss (n 105 above) 1083. See also Horowitz (n 133 above) 22. 258 However, this does not mean that the court cannot disgorge the remedy from the normative standards if the demands of the case so require. I have submitted in ch four that, while the court should design its remedies to maximise the right in issue, this does not mean that it cannot separate right and remedy if this is what is appropriate (sec 4.3.2).
The structural interdict 221 complies with the substantive norm as discussed in the next subsection. The substantive norm is the law that protects the right(s) in issue. 6.6.5 Remedy that complies with substantive norms The reason why people litigate is to enforce their rights. The remedies must, therefore, as much as possible, be intended to realise the rights. Nonetheless, as mentioned in chapter four, 259 in certain cases the interests of justice may require that the remedy granted is not one that is necessarily capable of realising the right in full. 260 This does not mean, though, that the court should completely abandon the need to develop the substantive rights as protected. It is advisable that the court begins by detailing the normative standards implicated by the right. In the context of socio-economic rights, this approach would help to give content to the rights. This is important because, as I have submitted in chapter three, 261 the Constitutional Court is yet to give substantive content to the socioeconomic rights in the Constitution. Giving substantive content to the rights will help the court and the parties to understand what they are working towards. The remedies will also be structured with these objectives in mind. The normative content also provides a basis upon which the efficacy of the remedies selected can be criticised and evaluated. The court will also use these normative standards to ensure that its model of supervision is the most effective in terms of realising the objectives of the substantive norms. 6.6.6 Flexibility, monitoring and supervision In litigation challenging systemic violations, the court may usually embark on a remedial process without full knowledge of the requisite facts, interests and obstacles that may impact on the implementation of its order. 262 The necessarily speculative nature of this enterprise means that no single order can be regarded as final. Additionally, implementation of the remedy may continue for a long time. 263 This is because the judge must search for the best remedy and his judgment must incorporate such open-ended considerations as effectiveness and fairness, which always leaves the remedy open to revision. This could happen even without the strong showing traditionally required for modification of a court order; a revision is 259 Sec 4.2.2. 260 See also ch five sec 5.2.1. 261 Sec 3.2.2. 262 Sec 6.3.1. 263 Special Project (n 66 above) 789.
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LITIGATING SOCIO-ECONOMIC RIGHTS IN
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TABLE OF CONTENTS PREFACE ACKNOWLED
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PREFACE As an international LLM Stu
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ACKNOWLEDGMENTS I would like to exp
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CHAPTER 1 INTRODUCTION The inclusio
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Introduction 3 lay the foundation f
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Introduction 5 positive obligations
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Introduction 7 been very careful no
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Introduction 9 justice theory takes
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Introduction 11 jurisdictions. Many
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Introduction 13 placed on general w
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CHAPTER 2 THE LEGAL NATURE OF SOCIO
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Legal nature of socio-economic righ
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54 Chapter 3 appropriate means. Sim
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56 Chapter 3 which he refers to as
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58 Chapter 3 dialysis treatment to
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60 Chapter 3 Though it is not withi
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62 Chapter 3 number of rights in IC
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64 Chapter 3 within the prevalent c
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66 Chapter 3 the state cannot affor
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68 Chapter 3 refusal to impose an a
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70 Chapter 3 cases in which the cou
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72 Chapter 3 enjoy all rights there
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74 Chapter 3 formalistic and abstra
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76 Chapter 3 behind the protection
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78 Chapter 3 been able to determine
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80 Chapter 3 27(1) are to have ‘a
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82 Chapter 3 by the political organ
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84 Chapter 3 The subsection must be
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86 Chapter 3 dealing with sections
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88 Chapter 3 arising from the exclu
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90 Chapter 3 justifiable in an open
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92 Chapter 3 The phrase ‘within a
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94 Chapter 3 increase the levels of
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96 Chapter 3 to withdraw from its r
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98 Chapter 3 The problem with the C
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100 Chapter 3 All that the courts w
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102 Chapter 3 justify its failure t
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104 Chapter 4 These theories of jus
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106 Chapter 4 perceives the law as
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108 Chapter 4 difference whether a
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110 Chapter 4 Traditionally, the vi
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112 Chapter 4 the wellbeing of all
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114 Chapter 4 that may be short of
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116 Chapter 4 the victim's needs sh
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118 Chapter 4 doing so appears to d
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120 Chapter 4 by its results. Those
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122 Chapter 4 government that bears
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124 Chapter 4 On the basis of the a
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126 Chapter 4 realise that concept.
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128 Chapter 4 ‘appropriate, just
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130 Chapter 4 It is at this point t
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132 Chapter 5 of the defendant too
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134 Chapter 5 enforcement of these
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136 Chapter 5 courts are constituti
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138 Chapter 5 rights have been viol
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140 Chapter 5 the law is ‘restora
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142 Chapter 5 unfit for cabin work,
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144 Chapter 5 measured by the yards
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146 Chapter 5 (defendant) to determ
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148 Chapter 5 has left open the pos
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150 Chapter 5 without the need for
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152 Chapter 5 demolishing their sha
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154 Chapter 5 and power to bring an
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156 Chapter 5 between the parties.
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158 Chapter 5 such as those where t
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160 Chapter 5 is in circumstances w
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162 Chapter 5 concluded that it was
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164 Chapter 5 because of the immens
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166 Chapter 6 Constitutional Court
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168 Chapter 6 actually committed or
Page 178 and 179: 170 Chapter 6 unlawful conduct. In
Page 180 and 181: 172 Chapter 6 is not prepared to ab
Page 182 and 183: 174 Chapter 6 (d) that the applican
Page 184 and 185: 176 Chapter 6 difficulties aired in
Page 186 and 187: 178 Chapter 6 It is because of thes
Page 188 and 189: 180 Chapter 6 which forced the cour
Page 190 and 191: 182 Chapter 6 institutions whose re
Page 192 and 193: 184 Chapter 6 acceptable to all the
Page 194 and 195: 186 Chapter 6 down the normative st
Page 196 and 197: 188 Chapter 6 Nonetheless, the open
Page 198 and 199: 190 Chapter 6 because of the qualit
Page 200 and 201: 192 Chapter 6 result in a relief ac
Page 202 and 203: 194 Chapter 6 Nonetheless, it shoul
Page 204 and 205: 196 Chapter 6 Nova Scotia. 154 The
Page 206 and 207: 198 Chapter 6 Additionally, such co
Page 208 and 209: 200 Chapter 6 dealing with … righ
Page 210 and 211: 202 Chapter 6 Management and Treatm
Page 212 and 213: 204 Chapter 6 the most appropriate
Page 214 and 215: 206 Chapter 6 for the structural in
Page 216 and 217: 208 Chapter 6 have not obtained the
Page 218 and 219: 210 Chapter 6 further enabled the C
Page 220 and 221: 212 Chapter 6 enforcement of the co
Page 222 and 223: 214 Chapter 6 aimed at procuring th
Page 224 and 225: 216 Chapter 6 spheres of government
Page 226 and 227: 218 Chapter 6 independence in struc
Page 230 and 231: 222 Chapter 6 justified if the reme
Page 232 and 233: 224 Chapter 6 This could be followe
Page 235 and 236: CHAPTER 7 CONCLUSION Although the S
Page 237 and 238: Conclusions and recommendations 229
Page 249 and 250: TABLE OF CASES African Commission o
Page 251 and 252: Table of cases 243 City Council of
Page 253 and 254: Table of cases 245 Permanent Secret
Page 255 and 256: Table of cases 247 Marbury v Madiso
Page 257 and 258: Table of international treaties and
Page 259 and 260: Bibliography 251 Brand, D & Heyns,
Page 261 and 262: Bibliography 253 Locke, J (1967) Tw
Page 263 and 264: Bibliography 255 Zakrzewski, R (200
Page 265 and 266: Bibliography 257 Rendering justice
Page 267 and 268: Bibliography 259 Sachs, A ‘The ju
Page 269 and 270: Bibliography 261 Corbett, M ‘Repr
Page 271 and 272: Bibliography 263 Gready, P & Kgalem
Page 273 and 274: Bibliography 265 Moore, B ‘Commun
Page 275 and 276: Bibliography 267 Schwarzschild, M
Page 277 and 278: Bibliography 269 Water Delivery in
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Bibliography 271 Garret, B Structur
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Bibliography 273 Kanyeihamba, G ‘
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