James LE Regout (14772914) Constitutional Law: Written assignment (DRAFT) Topic 12: Structural Interdicts 14 September 2009

Introduction: When encountered with any question involving the Constitution and the Bill of Rights, contained in chapter two of the constitution of the Republic of South Africa, the court that is adjudicating the case will assess each case individually to come to a conclusion. In coming to a conclusion the basis on which the court will grant relief will be in terms of sections 38 and 172(1)(b). These sections of the constitution allow the court to fashion appropriate relief and give any order that is just and equitable where it is required that the court protect and enforce the Constitution.1 In some cases, especially those involving socio-economic rights, the court will grant a form of relief known as a structural interdict as the appropriate relief. This form of relief is especially prevalent in cases where socio-economic rights are infringed or need to be furthered due to the fact, that because of their nature, these rights involve positive obligations that must be fulfilled. These obligations in many cases need to be fulfilled by government or some department of the executive or require the legislature to either amend or introduce new laws. Many of the problems that stem from this form of relief are due to the fact that many believe that by employing structural interdicts the court is getting involved in the day-to-day business of governance and in doing so is going against the constitutional principle of separation of powers. This is definitely a valid observation, however, due to the supervisory nature of structural interdicts, and as will be shown through reference to many cases where this relief has been used, they can serve as a very effective means of enforcing the rights enshrined in the constitution. This essay will discuss and seek to shed light on whether and when structural interdicts are an appropriate relief in terms of section 38 of the constitution. In order to achieve this, the nature of what exactly a structural interdict entails will be expanded on. This form of relief will also be discussed in the context of case law where it has already been used and the justifications for its use. Along with this the problems of the structural interdict will also be clarified to show if and when the court will regard it as an inappropriate form of relief.

1 Fose v Minister of Safety and Security 1997 3 SA 786 (CC) para 19.

The nature of structural interdicts as a form of relief. A structural interdict, also known as supervised interdicts, is in essence a relief that is supervised by the court when there has been an infringement of a fundamental right. It requires that the infringement of the right in question be rectified by a court order while the court oversees the implementation of the rectification. Currie and de Waal describe the structural interdict as typically consisting of five elements.2 The first of these the court declares how the conduct in the case in question infringes on a right. Secondly the court will order compliance in terms of the infringed right. Thirdly, the court will order the respondent (usually the government), to produce a report that shows what steps have been taken and what further steps will be taken to comply with the obligations that must be met. This report will have to be given on or before a specified date. Fourthly, the court affords the applicant a chance to respond to the report and, depending on the response and whether or not the court find the steps taken to be constitutionally sound, the final step, whereby the court makes an order which will implement these steps as a remedy, will then be issued. In terms of section 38 this is an appropriate relief, as mentioned before, especially when there has been an infringement of an socio-economic right or a similar right which entails a positive obligation to be fulfilled. This relief ensures that positive steps are taken and that plans are made in order to fulfil various obligations and also ensures that these steps and plans are carried out as the court fully supervises the process. By granting this type of interdict, and in doing so along the guidelines set out by Currie and de Waal, we see an effective and appropriate measure that can be taken by the court to ensure that these type of rights are enforced because at very least the court makes sure that there a report that can clearly be used to account for the dissatisfaction of the positive obligations that are imposed in the Bill of Rights. A further reason for the effectiveness of the structural interdict is the fact that a failure to comply with the obligations set out in the court order will result in contempt of court. Therefore further showing that when applied correctly and to the correct situation this remedy can be just and equitable and appropriate relief as it is an obvious way whereby the court can retain control over the implementation of its orders. Case Law and the use of structural interdicts: 2 Iain Currie & Johan de Waal, The Bill of Rights Handbook, 218.

To answer the question of whether and when structural interdicts are an appropriate form of relief it is very important to look at case law in South Africa as it shows not only that structural interdicts are an appropriate relief in certain cases but also why they are so. The Constitutional Court first adopted the structural interdict as a valid form of relief in 1998 when it held that litigants who could obtain an order whereby a government body could have been compelled to take appropriate steps as soon as possible to eliminate the unfair differentiation and to report back to the Court in question3 where there was a declaratory order or a mandamus regarding an infringed right. High courts have used this remedy in cases involving prisoners rights4, welfare benefits5, housing and evictions6 and childrens rights. It is thus clear that in terms of section 38, structural interdict have been used by the court as a means whereby disputes involving socio-economic rights are in question. This again is clearly an appropriate relief due to the fact that the court can supervise the implementation of obligations brought about by this type of constitutional right. Other non-socio-economic rights have also been enforced by use of the structural interdict. We see this in cases involving juvenile offenders, asylum seekers and public interests more broadly. Very important for the justification of the use of structural interdicts are cases where the Constitutional court issued them. These cases are however unlike the ones involving socio-economic rights. The first Constitutional Court case that deserves mention in this discussion is that of is August & Another v Electoral Commission & Others.7 Here we see how the court resolved the problem of prisoners being deprived of their fundamental right to vote. Here we see how the structural interdict works very well and is a perfect example of a 3 Pretoria City Council v Walker 1998 (2) SA 363 (CC) 4 Strydom v Minister of Correctional Services & Others (3) BCLR 342 (W) 5 Ngxuza & Others v Permanent Secretary, Department of Welfare, Eastern Cape, & Another 2001
(2) SA 609 (E)

6 City of Cape Town v Rudolph & Others 2004 (5) SA 39 (C) 7 1999 (3) SA 1 (CC)

just and equitable use of an appropriate relief. The court itself was not of the institutional competence to rectify the problem and therefore the Electoral Commission was ordered to rectify the problem at hand and give an affidavit to the court within two weeks to show how it would comply with this order. Here we see how the court gave the government an opportunity to offer a bona fide plan to realise the right in question while it supervised the matter to ensure it was carried out. Another Constitutional Court case of importance is that of Sibaya & Others v Director of Public Prosecutions, Johannesburg & Others.8 Here the court again used the structural interdict, this time to remedy the fact that the process of substitution of sentences, brought about by the declaration of invalidity of the death penalty in S v Makwanyane9, [had] taken far too long. Here this remedy served to allow the court to supervise the sentence-conversion process. As can be seen from these highlighted cases the court has shown a willingness to use structural interdict to afford relief in a wide array of cases were rights have been infringed. Whether they be socio-economic or not, relief in terms of the infringement of fundamental rights can most definitely come from the use of structural interdicts as an appropriate relief. Benefits and Limitations of structural interdicts: In terms of benefits that arise from this form of remedy they are far-reaching. This remedy allows the judiciary to be active while giving the appropriate authority the flexibility to take action through planning and still allowing them to take into account all the complex factors that need to be addressed in order to take the required measures. This remedy also makes sure that action is taken within the bounds of the constitution as the court is afforded the opportunity to inspect and assess the measures that will be taken to remedy various Bill of Rights violations, thus upholding the courts special function in a very young democracy and keeping its independence and integrity in place. The process also ensures that co-operative governance is not lost, as it requires the various branches of government working together. This in turn also ensures accountability of the various branches as they develop a greater awareness of which departments are responsible for ensuring the enforcement of constitution rights. 8 2005 (5) SA 315 (CC) 9 1996 (3) SA 391 (CC)

Structural interdicts have contributed to a better understanding on the part of public authorities of their constitutional legal obligations in particular areas, whilst [also assisting] the judiciary in gaining a valuable insight in the difficulties that these authorities encounter in their efforts to comply with their duties.10 These benefit again show that whether and when there are rights that require the fulfilment of certain obligations, in terms of sections 38 and 172(1)(b), structural interdicts serve an important function. There are however some problems regarding this remedy. If the supervision becomes too strict there may well be cases where the court becomes too involved in the functions of the executive. Plans submitted to the court may not be carried out and may even not be submitted and due to the complexities involved in contempt cases people whos rights have been infringed may not find the relief they need. This may also lead to the legitimacy of the judiciary being undermined. These limitations show that although an effective relief in many cases structural interdicts may not always be the most appropriate relief. Conclusion: As has been discussed we that structural interdicts involve the exercise of supervisory jurisdiction of the courts. Where there is an infringement of rights which involves a positive obligation this remedy may serve as an appropriate relief in terms of section 38 of the constitution, however, this is not to say that this remedy does not have its weaknesses. It is therefore that one must conclude that the courts must carefully assess each case individually to make sure that it is in fact just and equitable and appropriate and makes sure that the Constitution and all its provisions are satisfied.

Bibliography: Cases: 1. August & Another v Electoral Commission & Others 1999 (3) SA 1 (CC) 2. City of Cape Town v Rudolph & Others 2004 (5) SA 39 (C) 3. Fose v Minister of Safety and Security 1997 3 SA 786

10 Magidimisi v Premier of the Eastern Cape & Others 2006 JDR 0346 (B)

4. Magidimisi v Premier of the Eastern Cape & Others 2006 JDR 0346 (B) 5. Ngxuza & Others v Permanent Secretary, Department of Welfare, Eastern Cape, & Another 2001 (2) SA 609 (E) 6. Pretoria City Council v Walker 1998 (2) SA 363 (CC) 7. Sibaya & Others v Director of Public Prosecutions, Johannesburg & Others 2005 (5) SA 315 (CC) 8. Strydom v Minister of Correctional Services & Others (3) BCLR 342 (W) Books and Articles: 1. M Ebadolahi Using Structural Interdicts and the South African Human Rights Commission to Achieve Judicial Enforcement of Economic and Social Rights in South Africa. (2008), [online] available at: http://ssrn.com/abstract=1312452, retrieved: 5 September 2009 2. I Currie and J de Waal The Bill of Rights Handbook (2005, 5th edition), Juta & Co, 217-219. 3. D Isaacs Interpreting, Litigating and Realising the Right to Education in South Africa: A lesson from America (2007), University of Cape Town, 26-27.