LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

Conclusions and recommendations 235
setting. The courts may have to defer these questions to the
executive and legislative organs of state. This, though, does not mean
that judicial deference should be adopted as a general rule. It is
something that the court ought to have in mind and apply on a caseby-case
basis depending on the demands of every case. In essence,
the issue relates to the necessity of maintaining a fine balance
between, on the one hand, the need to protect rights and, on the
other hand, the danger of too great an interference in the affairs of
the executive and legislative branches of government. 29 The question
then becomes one of determining the stage at which judicial
intervention would be justified.
There is no doubt that some functions are preserved for the
executive and legislative branches of government. However, when
these branches ignore their constitutional obligations, the judiciary is
empowered to step in and enforce them. This interference is
mandated by the Constitution. Most importantly, however, the extent
of what may appear to be interference should be determined by the
degree of failure or neglect on the part of the executive and
legislative organs to discharge their constitutional obligations. In
remedial terms, the level of intrusiveness in response to failure or
neglect should be determined by the level of recalcitrance exhibited
by the government. Where there is evidence that the government will
not respect the court order, the court is justified to issue highly
intrusive remedies such as mandatory or structural interdicts. This,
though, should come as a last resort after all efforts have been
exhausted to secure the co-operation of government in implementing
the court orders. The courts should, for instance, acknowledge and
make use of the expertise at the disposal of the executive and
legislative organs of state before displacing these organs. This
notwithstanding, there could be cases in which intervention as a
matter of first resort is justified. This could be in those cases where
there is no chance of procuring co-operation, or where the seriousness
of the matter at stake demands immediate intervention.
It should also be noted that it is not prudent for the courts to
overlook the fact that socio-economic rights litigation is essentially
polycentric. The courts may not be able to appreciate and attend to
all the polycentric interests implicated by a case. However, the courts
should strive as much as possible to appreciate and attend to these
interests. It is for this reason that I have suggested that, when using
the structural interdict, courts should try, as much as possible, to
secure the participation of persons who may be affected by the
outcome of a case. The courts should also ensure that the remedies
29
M Corbett ‘Human rights: The road ahead’ in C Forsyth & J Schiller (eds) Human
rights: The Cape Town conference (1979) 6.