Dear Corruption Watch
A few weeks ago, the Constitutional Court declared the R10-billion contract for the payment of social grants between the South African Social Security Agency (Sassa) and Cash Paymaster Services invalid. The court ordered Sassa to rerun its tender process and suspended the declaration of invalidity pending the new tender process. It also granted a “structural interdict” compelling Sassa to report back to the court at each stage of the new tender process. What exactly is a structural interdict and does this not go too far?
A structural interdict is sometimes also referred to as a supervisory order. In essence, it forces the government to rectify its breach of fundamental rights under court supervision. Supervisory orders typically consist of four elements, although they may take different forms:
• An order compelling the government body to take steps to remedy an unlawful situation, sometimes within a defined period;
• A requirement that the government body must submit a report on the steps it has taken or intends to take;
• An opportunity for other parties in the case to comment on the government body’s report; and
• The possibility of further court orders either confirming compliance with the original order, or granting further relief.
The Constitutional Court has been reluctant to grant structural interdicts because they involve the courts becoming involved in day-to-day administrative matters. Although noting that courts should grant supervisory orders when necessary to secure compliance with court orders, the Constitutional Court has refused to make supervisory orders unless it believed the government would not comply with a court order. It has suggested that a declaration of rights is a preferable order when there is a likelihood that this will trigger an adequate legislative or administrative response to the underlying problem.
Structural interdicts assert judicial power in cases in which no other judicial remedies are capable of setting matters right. Do they go too far? No, they do not. They preserve the courts’ special role in South Africa’s fledgling democracy, since the supervisory portion of this remedy allows courts to inspect proposed plans to 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 integrity of South African courts.
Structural interdicts also provide advantages for government bodies. The process of formulating and presenting a plan to the courts can improve accountability by helping officials to identify which organ or department is responsible for providing particular services or for ensuring access to specific rights. The check-in processes that follow the initial order facilitate the sharing of information between experts and government officials grappling with policy decisions.
Structural interdicts also provide an opportunity for litigants to return to court to follow up on court orders. The chance to assess a specific plan, complete with deadlines, is especially valuable in cases involving the rights of the “poorest of the poor”, who must make the most of rare and costly opportunities to litigate.
Structural interdicts are an important element of oversight. They provide citizens with an extra layer of protection and government bodies with a road map to meeting their obligations.
• This article was first published in Sunday Times: Business Times