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

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Periodical article

Title:	From ambivalence to certainty: norms and principles for the structural interdict in socio-economic rights litigation in South Africa
Author:	Mbazira, Christopher
Year:	2008
Periodical:	South African Journal on Human Rights
Volume:	24
Issue:	1
Pages:	1-28
Language:	English
Geographic term:	South Africa
Subjects:	social and economic rights offences against human rights legal remedies constitutional courts
External link:	https://doi.org/10.1080/19962126.2008.11864941
Abstract:	The parsimonious approach of the Constitutional Court of South Africa in using the structural interdict in socioeconomic rights cases has both been critiqued and also contrasts with that of the High Courts. Moreover, the Court has neither been 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 American jurisprudence, the article proposes norms and principles, including utilization of the structural interdict in a graduated manner as a remedy of last resort; participation of all stakeholders; judicial impartiality and independence; reasoned decisionmaking; remediation which enforces the substantive norms; and flexibility. Notes, ref., sum. [Journal abstract]