South African case law and literature are unfortunately riddled with examples of unflattering references to unconstitutional governmental conduct. South Africa is a relatively young constitutional state and it is to be expected that the process by which suitable constitutional breach remedies are developed will be protracted and incremental. The constitutional remedies offered by the employment of the structural interdict is recognised as one of the most effective ways of dealing with constitutional rights violations and developing effective and appropriate relief. Legal relief in terms of the structural interdict does, however, face a number of challenges. The first is that it requires a radically altered approach to the adjudication of public interest litigation by the South African judiciary. The article draws substantially on the work of Harvard professor Chayes, who has convincingly demonstrated the differences between private and public rights litigation. Through this comparison, and remarks by a number of eminent South African jurists in the context of developing suitable constitutional remedies, a clear message evolves: even though the relief offered by the structural interdict may very often imply a transgression by the judiciary on the territory of the executive, the Constitution anticipated this. Not only does the Constitution provide for judicial review of all governmental conduct, it implores the courts to develop suitable constitutional remedies. But the second part of the message that emerges is equally significant: the process is to be participatory. Not only the courts, but all organs of state, governmental bodies, public interest lawyers, non-governmental bodies and civil society at large must participate in the process of the protection and development of the constitutional rights and the values that underlie the South African legal order. In terms of the structural interdict a court retains jurisdiction over a matter until it is satisfied that after (what is often) a protracted process of deliberation between the litigating parties and other interested parties, a suitable solution (remedy) evolves. It is this process of deliberation that ought to be characterised by a spirit of keenness by organs of state, as has been called for by, among others, South African judges Yacoob and O’Regan. It is in the USA that the structural interdict as a constitutional remedy first evolved. At the time of the judgment in the well-known case of Brown v Board of Education, that country was faced with a racist schooling system that had become so institutionally entrenched over decades that the courts had to retain jurisdiction over the case until a constitutionally effective remedy was effected. (Court supervision in some instances arising from the judgment terminated only in 2009.) Since the Brown v Board of Education judgment the application of the “supervisory injunction” as it is sometimes called in the USA, has been extended to many other areas of constitutional public interest, such as prisoner rights and the equal rights to education of mentally impaired citizens. But it is the different adjudication models that have evolved through the structural interdict that provide the most valuable guidance for South Africa. They are characterised by wide-ranging participation in the development of suitable constitutional remedies by not only the litigants, but also interested parties in civil society. The structural interdict is mostly employed by, or on behalf of, the most vulnerable members of society that seek the protection and development of their most basic rights. Legal costs of public interest litigation in South Africa are therefore a huge challenge which is exacerbated by the fact that the country has relatively few public interest lawyers and public interest agencies. The few resources that the country does have ought to be utilised in close conjunction with one another and use could, for example, be made of the expertise of retired/interested judges, magistrates and academics in court-ordered deliberations to craft suitable constitutional remedies.
This article examines the structural interdict as the appropriate process by which to develop suitable constitutional remedies. It investigates the origin, nature and normative framework for its existence in South African jurisprudence, the US adjudication models, the main challenges to granting structural relief, and the most apt circumstances in which it may be employed. This discussion is supplemented by the South African judiciary’s application of structural relief in some of the most prominent socio-economic rights cases. The investigation leads to a dual conclusion: firstly, that there may possibly be an insufficient realisation of the changed adjudication role of the South African judiciary within a constitutional dispensation. In a constitutional dispensation the judiciary must necessarily be much more active in its adjudicatory function. In this regard, some of the South African constitutional court judgments have not been without criticism. One of the criticisms is the court’s hesitancy to impinge on the territory of the executive, which hesitancy has been suggested as being overly sensitive in light of the Constitution’s own anticipation of such impingement. It is further argued that a complete separation of powers is impossible and particularly as a result of the current substantial dysfunctionality of some South African organs of state. The second major conclusion, and drawing on the USA example, is that suitable constitutional remedies can be developed only with greater participation of not only the litigants to public interest litigation but also the participation of South African society at large.
Keywords: adjudication models, available resources, constitutional legal order, constitutional remedies, effective and appropriate relief, judicial adjudication, judicial authority, legal relief, public interest litigation, separation of powers, socio-economic rights, structured interdict, supervisory jurisdiction.