The potential of structural interdicts to constitute effective relief in socio-economic rights cases

[摘要] ENGLISH ABSTRACT : The realisation of socio-economic rights for the poorest and most vulnerable members of society is of critical importance if South Africa's project of transformative constitutionalism is to succeed. It is thus important that courts grant effective relief in cases where socio-economic rights have been found to be violated. This thesis sets out to determine whether the structural interdict in South African constitutional law can constitute such effective relief for socio-economic rights violations.This thesis firstly aims to determine what the judicially recognised concept of effective relief entails. This is done by developing an evaluative framework that should be used to both design and evaluate remedies granted in cases where human rights have been violated. This evaluative framework consists of certain remedial norms, drawn from Susan Sturm's scholarship, to which public law remedies should adhere and also of more concrete factors that should be considered by courts during the remedial design phase. The remedial norms include participation, respect for the separation of powers doctrine, impartiality, reasoned decision making and remediation. The factors which should be considered include the nature of the right and nature of the violation, diverse interests, reason for the violation, practicability concerns, and the deterrent effect of the remedy.The second part of this thesis aims to determine if structural interdicts can constitute effective relief. This thesis argues that structural interdicts can constitute such relief, and that it holds specific potential to remedy systemic violations. However, structural interdicts will only constitute effective relief if diverse stakeholders participate in the remedial design phase and if the court sufficiently retains supervisory jurisdiction over the case.This thesis lastly proposes a participatory structural interdict model for socio-economic rights violations. This model is specifically designed to adhere to the remedial norms for public law remedies and to mitigate against concerns relating to the separation of powers doctrine, democratic legitimacy of the judiciary and institutional capacity of the courts – concerns traditionally associated with socio-economic rights adjudication.

[发布机构] Stellenbosch University