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Structural interdicts

The Structural interdict is an extreme remedy and should be applied only in cases where there are no other judicial remedies capable of setting matters right. Even in such cases considerations of institutional competence, resources and legitimacy will frequently militate against the grant of a structural interdict, and a declaration of rights will always be a preferable remedy where there is a likelihood that the declaration will trigger an adequate legislative or administrative response to the underlying problem. Structural interdicts represent an assertion of judicial power that goes significantly beyond that of propitiatory and mandatory interdicts. Structural interdicts involve the court itself in ongoing supervision of an institutional or public agency as a last resort. Most acutely, structural interdicts may involve courts in budgetary questions and raise difficult issues of the legitimate limits of court power.

Section 38 of the Constitution grants standing for the Bill of Rights claims to assorted individuals and groups and provides that a court "may grant appropriate relief, including a declaration of rights" when confronted with rights violations. Under section 38 of the Constitution, the Respondents are entitled to 'appropriate relief'. This means an effective remedy:

'[A]n appropriate remedy must mean an effective remedy, for without effective remedies for breach, the values underlying and the rights entrenched in the Constitution cannot properly be upheld or enchanced'.

Elements of Structural Interdicts

In essence, structural interdicts (also known as supervised interdicts) require 'the violator to rectify the breach of fundamental rights under court supervision.' Iain Currie and Johan de Waal have isolated five elements common to structural interdicts. First the court issue a declaration identifying how the government has infringed an individual or group’s constitutional rights or otherwise failed to comply with its constitutional obligations. Second, the court mandates government compliance with constitutional responsibilities. Third, the government is ordered to prepare and submit a comprehensive report, usually under oath, to the court on a preset date. This report, which should explicate the government’s action plan for remedying the challenged violations, gives '[t]he responsible state agency…the opportunity to choose the means of compliance' with the constitutional rights in question, rather than the court itself developing or dictating a solution. The submitted plan is typically expected 'to be tied to a period within which it is to be implemented or a series of deadlines by which identified milestones have to be reached.'
Fourth, once the required report is presented, the court evaluates whether the proposed plan in fact remedies the constitutional infringement and whether it brings the government into compliance with its constitutional obligations. As a consequence, '[t]hrough the exercise of supervisory jurisdiction, a dynamic dialogue between the judiciary and the other branches of government in the intricacies of implementation may be initiated.' This stage of structural interdict may involve multiple government presentations at several 'check in' hearings, depending on how the litigants respond to the proposed plan and, more significantly, whether the court finds the plan to be constitutionally sound. Structural interdicts thus provide an important opportunity for litigants to return to court and follow up on declaratory or mandatory orders. The chance to assess a specific plan, complete with deadlines, is especially valuable in cases involving the rights of 'poorest of the poor,' who must make the most of rare and costly opportunities to litigate.

After court approval, a final order (integrating the government plan and any court ordered amendments) is issued. Following this fifth step, the government's failure to adhere to its plan (or any associated requirements) essentially 'amount[s] to contempt of court.'

Early use of Stuctural Interdicts

The Constitutional Court first acknowledged structural interdicts as a valid remedy in 1998, when it held that litigants seeking either a declaratory or mandatory order to vindicate a constitutional right could also obtain a court order that the government body in question 'take appropriate steps as soon as possible to eliminate [the rights violation] and to report back to the Court in question.'

The South African High Courts and Supreme Court of Appeal have since gradually increased their use of structural interdicts. High Courts have used structural interdicts in cases involving prisoners' rights, welfare benefits, housing and evictions, and children's rights. The High Court have also issued structural interdicts in non Economic and Social Rights cases involving juvenile offenders, asylum seekers, and "the public interest " more broadly.

The Constitutional Court has issued structural interdicts only twice and both cases were unlike most Economic and Social Rights litigation. In August & Another v Electoral Commission & Others the Court found the Electoral Commission had violated South African prisoners' right to vote. Conceding the Court lacked the institutional competence to rectify the constitutional wrong, Judge Albie Sachs directed the Electoral Commission to do so itself, requiring the Commission "to furnish a affidavit setting out the manner in which the order will be complied with" within two weeks.

Six years after August, the Constitutional Court issued a second structural interdict in Sibiya & Others v Director of Public Prosecution, Johannesburg & Others (Sibiya 1). In the 1995 Makwanyane case, the Constitutional Court had declared the death penalty inconsistent with the interim Constitution and ordered the substitution of lawful punishment for prisoners on death row. A decade later, finding that '[t]he process of the substitution of sentences has taken far too long' the Sibiya Court issued a structural interdict to exercise supervisory jurisdiction over the sentence conversion process.

Despite these, our courts have issued structural interdicts in an increasing number of cases. From those cases and from the experience in other parts of the world, one can establish the sorts of cases in which various forms of structural interdicts will provide appropriate relief.

In Treatment Action Campaign, the Constitutional Court emphasised that the decision to grant mandatory and structural interdicts would depend on the circumstances of each particular case. It concluded that structural interdicts constitute 'appropriate relief' when they are 'necessary to secure compliance with a court order'. This could be the case, for example, where there is a proven 'failure to heed declaratory orders or other relief granted in a particular case'.

Sibiya is an example of this: The Constitutional Court ordered the respondents to take 'all the necessary steps', without describing each step in specific terms, or stating when each step should be taken. As the Court noted, its use of the phrase 'as soon as possible' also had a lack of specificity. This was plainly relevant to the decision to order a structural interdict, as there would be debate, in any enforcement proceedings, as to whether the respondents had done everything in their power that was necessary.

In such circumstances, a structural interdict may provide benefit to all, including government. The approval of a plan (including a timeline) by the court can allow the government to move forward with implementation, secure in the knowledge that this will not be an invitation to non compliance, but rather an invitation to the government to formulate a place in order to achieve compliance with the Constitution.

Structural interdicts granted in these circumstances do not undermine the separation of powers, but actually allow the state the space to fulfil its executive function. These categories rather demonstrate types of instances in which it will be 'appropriate' to order structural relief.

Structural interdicts : Advantages and Limitations

Structural interdicts preserve the courts' special role within South Africa's fledgling democracy, since the supervisory portion of this remedy allows the courts to inspect proposed plans and ensure that they are not constitutionally suspect. By providing the judiciary with an effective tool to remedy Bill of Rights violations, structural interdicts bolster the political and popular integrity of the South African courts.

Structural interdicts also provide significant advantages for the political branches. The very process of formulating and presenting a plan to the courts can improve government accountability, helping officials identify which organ or department of the State is responsible for providing particular services or for ensuring access to specific rights. In addition, 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.'
The 'check in' hearings that follow the initial interdict facilitate information sharing between qualified experts and government officials grappling with critical policy decisions and may clarify the content the rights at stake. In addition, structural interdicts may help authorities comply with otherwise politically unpopular constitutional obligations. An explicit court order to satisfy constitutional obligations can support government officials against pressure from small but politically powerful interest groups opposed to certain rights.

Finally structural interdicts may provide a more fundamentally fair outcome than other remedies in Economic and Social Rights litigation. By requiring the responsible government officials to formulate a plan designed to operationalize the right in general, rather than just to remedy an individual violation thereof, structural interdicts can provide relief to all members of a similarly situated class, whether or not any given individual has the resources to litigate his or her own case. As such, structural interdicts do not privilege those who can afford to litigate over those who cannot, and can prevent 'queue jumping' in access to Economic and Social Rights.

Yet despite these benefits, structural interdicts are not flawless remedies. Some argue that the implementation of a structural interdict order violates the separation of powers between branches of governments. Others contend that judges are ill equipped to make such decisions, because as the are polycentric and complex; and that enforcement is best left to the political branches. Court supervision of government planning can lead to prohibitive enforcement costs, resource diversion , or waste, which may explain South African courts' reluctance to issue this otherwise useful remedy. A second and perhaps more serious problem is the possibility that the government actors responsible for implementing a presented plan will take no action after the plan is court approved, or, worse yet, fail to submit a plan to the court in a timely fashion. Given the difficulties of contempt proceedings, litigants may find themselves back at square one: Although their rights have been recognized with a declaration and a court order issued for a plan of action to be promulgated. litigants have no further follow up mechanism to ensure that their rights are meaningfully granted if government officials do not abide by a structural interdict. Such stalemates also threaten to undermine the judiciary's credibility. Worried about judicial competence, unclear as to the content of vague rights, and concerned about limited resources, courts may continue to avoid orders requiring judicial supervision without additional institutional support from other actors.

The South African Human Rights Commission (SAHRC) has the institutional resources and expertise to implementing structural interdicts. The SAHRC can help government actors develop remedial plans before such plans are presented in court and oversee plan implementation after the follow up court hearing has occurred. The SAHRC can also notify the courts when government actors breach their own plans.

To conclude structural interdicts have been used effectively in the United States to remedy institutional violations of constitutional rights. They are an attractive way for the nascent Constitutional Court and South African judiciary to remedy the wide range of socio economic issues that they are faced with. South African courts have taken unprecedented, progressive steps to recognize socio economic rights. Court ordered structural interdicts are one way that those intended rights can be realized by all South Africans.

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