LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

40 Chapter 2
summon witnesses to testify whenever technical questions arise in the
course of the proceedings. 118
It is also important to note that, although the courts may not have
access to as many sources of information as other organs do, the
litigation process allows for distilled presentation of information in
the form of evidence. Sometimes the adversarial nature of litigation
compels parties to search and bring before the courts all information
relevant to the dispute. 119 The courts’ problem-solving procedures
also offer a number of advantages not found in the processes of other
organs. Within the judicial processes, interested parties are given an
opportunity to make submissions in accordance with a settled
procedure and the courts are under a duty to give reasoned
judgments. Indeed, a court provides a forum for relating debates over
fundamental values to individual concrete cases: ‘[I]t is an
opportunity to have personal narratives heard and rights put in living
context in a way that is virtually impossible for modern
legislatures.’ 120
Additionally, the court processes provide for avenues of reviewing
decisions if they are contested. This is through procedures that
guarantee parties rights of appeal and review. The political processes
may not have the advantage of revisiting decisions as of right.
Mistakes and oversights may therefore go unnoticed, and when
noticed, remedial measures may require involvement in protracted
and inaccessible political processes.
The judiciary is also always keen to tap into outside energies and
resources in search of appropriate remedies that vindicate the rights.
As is seen in chapter six, 121 the courts have particularly been most
effective in this endeavour through the use of structural remedies
that take the courts outside the traditional constraints of
adjudication. 122 The courts have successfully used court-appointed
experts, commissions of inquiry, public hearings and negotiation
committees to find solutions to structural problems. 123
In spite of some technical deficiencies, therefore, the courts have
a number of advantages that enhance their capacity to adjudicate
118
Horowitz (n 20 above) 24-25 48 has, however, warned that it has always proved
difficult to integrate specialists into the adjudicative process; specialised
information is usually provided to judges through the medium of expert witnesses
and consultants or through popularised written versions of the information. In his
opinion, the expert witnesses are paid by the respective parties and they are
almost invariably partisan.
119
Chayes (n 92 above) 1308.
120 Scott & Macklem (n 9 above) 38.
121 Sec 6.3.
122
Chayes (n 92 above) 1309.
123 Ch six sec 6.3.