From Ambivalence to Certainty

Norms and Principles for the Structural Interdict in Socio-Economic Rights Litigation in South Africa

Bibliographic Data

ID6222015
AuthorsChristopher Mbazir (Department of Public & Comparative Law, Faculty of Law Makerere University, P.O. Box 7062 Kampala — Uganda, corresponding author)
Year2008
Volume24
Issue1
Pages1-28
Publication date2008-01-01
Open AccessNo
TypeARTICLE
VenueSouth African Journal on Human Rights (JOURNAL)
Journal identifiersISSN: 0258-7203 • E-ISSN: 1996-2126
PublisherInforma UK Limited (PUBLISHER • GB)
DOI10.1080/19962126.2008.11864941
OpenAlexW1503432704
LanguageEN
Citations received1

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 theHigh 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 andprinciples 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

Ambivalence · Certainty · Epistemology · Impartiality · Jurisprudence · Law and economics · Legal certainty · Political science · Sociology · Human Rights and Development · Judicial and Constitutional Studies · Law · Legal Issues in South Africa · Philosophy · Psychology · Social Psychology

Tools

Open DOISci-Hub