From ambivalence to certainty : norms and principles for the structural interdict in socio-economic rights litigation in South Africa

Abstract

The parsimonious approach of the Constitutional Court in using the structural interdict in socio-economic rights cases has both been critiqued and also contrasts with that of the High Courts. Moreover, the Court has neither given a principled basis for its rejection and use of the remedy nor laid down any norms and principles for determining when the remedy is appropriate. Starting from these bases, this article highlights norms and principles which could guide the courts in determining when the structural interdict is appropriate, and its modalities. Drawing upon Amersican jurisprudence, the article proposes norms and principles including utilisation of the structural interdict in a graduated manner as a remedy of last resort; participation of all stakeholders; judicial impartiality and independence; reasoned decision making; remediation which enforces the substantive norms; and flexibility.