LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

224 Chapter 6
This could be followed by a requirement to submit a report to the
court and to the opposite party detailing the plan to eradicate the
violation. Where necessary, the court may more intrusively devise the
plan and supervise its implementation. It has been cautioned, though,
that there could be cases that are of a very serious nature where a
high degree of intervention is immediately necessary. 278
In all these processes the court should ensure that all persons
whose interests may be affected by the litigation process participate
in the remedial formulation process to the extent that this is
necessary and practicable. 279 The courts could use various models of
the structural interdict, including the expert model and the
legislative hearing model to realise this. The remedy should be
flexible and the court should be prepared, if need be, to adjust it at
any time. 280 The adjustments also allow the judge to find what is
considered to be the most appropriate means of responding to the
constitutional violation. This is because usually the structural
interdict may begin as experimentation of several remedies, and
perfection may only come after a number of adjustments. 281
Sometimes the main issue is not when a violation is going to be
uprooted. Rather, the issue is what steps are being undertaken to
begin the uprooting process. In such a context, it is the direction and
rate of change that may be important and not the final outcomes, as
these may still be too far away. 282 Sometimes reform may be slow and
almost viewed as amounting to failure, but this may be necessary to
accommodate the unforeseen obstacles. A slow but steady process of
uprooting the violation is far better than short-run artificial measures
that may not overcome all the obstacles ahead. In this regard, a
structural interdict is ‘a process for setting ambitious but achievable
targets and monitoring the achievement of those targets’. 283
Artificial or ‘quick fix’-like measures, though dramatic, may stall or
disappear in the long run. It is important that the court takes its time
to study all the obstacles so that it is able to fashion long-term
solutions to them. It is because of this that the US Supreme Court in
the Brown case, for instance, initially merely ordered that the states
act with all deliberate speed, and, as seen above, 284 advised the local
courts to act with flexibility in their remedial exercise. This provided
both the state and the courts with time to study the obstacles and to
278 EN and Others v Government of RSA and Others 2007 1 BCLR 84 (D) (Westville
case) has been given as an example. In spite of this, one sees that the graduated
response is still applied to a certain extent.
279 See Chayes (n 62 above) 1310; and Sturm (n 63 above) 1410.
280
See Doucet-Boudreu case (n 154 above) 68.
281 See Fiss (n 65 above) 49.
282 Frug (n 136 above) 790.
283
Budlender (n 170 above) 11.
284 See sec 6.3.