Structural Interdicts: An Effective Means Of Ensuring Political Accountability?

Incapacity. Incompetence. Pure recalcitrance. Intentional non-compliance. Corruption. These are among the most egregious reasons for any government’s inability to create and implement policies to achieve the purposes set out in legislation.

Failures by executive officials to conduct themselves to an acceptable standard have put the most vulnerable members of South African society in increasingly precarious positions. A well-known example is the Department of Social Development’s decision unlawfully to award a tender to Cash Paymaster Services (CPS) for the payment of social grants. In extreme cases, the consequence is inexcusable suffering and death, such as that which transpired in the wake of the decision to close the Life Esidimeni facility for people with mental illnesses.

Those are just two high-profile instances that raised public ire. However, irresponsible decision-making can (and does) take place at all levels of government. Ordinarily, it is expected that poorly-performing officials will face administrative or political sanction. However, that expectation presupposes a healthy government environment untainted by disrupting influences such as corruption. Where political accountability is not enough, it becomes necessary to turn to legal means.

This brief will consider the value of the structural interdict as a constitutional “tool” to hold the executive to account by analysing two cases where a structural order was made – one in the High Court, and one in the Constitutional Court.

Structural interdicts: an overview

A structural interdict is “an order under which the court controls compliance with its order”[i]. Section 172(1)(b) of the Constitution, which provides that in constitutional matters courts may grant “any order that is just and equitable”, empowers courts to order structural interdicts. Mbariza captured the essential characteristics of this judicial remedy as follows:

• Its purpose is neither deterrence nor compensation. Rather, it is intended to eliminate systemic violations existing especially in institutional or organisational settings;
• Its focus is to adjust future behaviour rather than compensate for past wrongs;
• It is deliberately fashioned rather than logically deduced from the nature of the legal harm suffered; and
• Its prominent feature is the creation of a complex ongoing regime of performance, which is made possible by the court’s retention of jurisdiction and sometimes by its active participation in the implementation of the order.[ii]

Available models of this remedy include:

• The bargaining model, where parties negotiate regarding the appropriate remedy;
• The legislative/administrative hearing model, which allows for public hearings and direct informal participation by interested parties who may not have originally been party to the litigation;
• The expert remedial formulation model, where experts are given a mandate to develop a remedial plan;
• The report back to court model, which requires the respondent to provide the court with a plan on how he or she intends to remedy the violation, which the court then approves when it is satisfied;[iii] and
• The consensual remedial formulation model, where parties engage with each other by exchanging views and raising concerns with a view to settling on a suitable remedy. The input of other stakeholders may also form part of the process.[iv]

Practically, courts more frequently make use of the report back to court model. We can infer that this is in an effort to assuage concerns regarding encroachment on executive terrain – the court leaves it to the executive to formulate the plan for compliance with its order but retains jurisdiction to approve or reject that plan. Both cases discussed below make use of this model.

Given the variety of options, and the latitude provided in section 172(2)(b), courts would do well not to restrain themselves to one model alone. Structural interdicts have been identified[v] as a useful device in the (rather limited) toolbox available to activist courts – but if they are to live up to their promise, the use of this remedy should be approached in bold and innovative ways.

Case studies

Kenton on Sea Ratepayers Association and Others v Ndlambe Local Municipality[vi](“KORSA”)

The “sad tale of frustration and anxiety” described in this judgment illustrates the pre-eminence of an effective remedy – particularly when the issues giving rise to the litigation involve severe environmental mismanagement. This case concerns two matters: a sewage conservancy tank that overflowed into the Bushman’s River and a dump site at Marselle. The applicants alleged that the latter was illegally established and improperly operated, and that it was already overfull and yet was continuing to accept waste. The applicants sought a structural order for the Municipality to acquire, commission, and manage a new waste disposal plan and site.

The Court’s order included that the Municipality and its municipal manager report to the Court as to the steps it proposed to take to, firstly, maintain the sewage pump station and ensure its continued functioning, and secondly, to maintain the Marselle dump site pending its decommissioning. They were further ordered to report on the steps proposed to establish a replacement site. Thereafter, reports were to be made on affidavit at 90-day intervals as to the continued progress in meeting the outcomes detailed in the reports.

What is the legacy of this order? A January 2018 news article[vii] states that the Marselle dump site was “summarily” decommissioned and a new site has not been established. Reasons given for this by the municipality include the expense and complexity of meeting the High Court’s order. In the meantime, waste has been transported to Port Alfred to be dumped, and that site is now overflowing. Almost two years on, and despite a court order that required reporting every 90 days, it seems that the situation has only marginally improved for Marselle, and has had deleterious knock-on effects for Port Alfred.

What is really surprising, however, is that in the very same judgment, a major issue was the question of whether the municipal manager could be held in contempt of court for failing to take steps to remedy the sewage overflow problem timeously. Notwithstanding the fact that the municipal manager was found guilty of contempt of court, the same municipality has done very little at all to meet the obligations in the KORSA order. It seems then that two judicial mechanisms – a structural interdict and an order of contempt – are still not enough to ensure that the municipality complies with the order.

It remains to be seen whether the Court will take further steps such as making a further finding of contempt regarding the Municipality’s conduct.

AllPay Consolidated Investment Holdings (Pty) Ltd and Others v Chief Executive Officer of the South African Social Security Agency and Others (No 2)[viii]

Much ink has been spilled in setting out the story of how South Africa came to be in a state of social grants crisis[ix] and so only the basic facts will be stated here: The Constitutional Court invalidated a contract between the South African Social Security Agency (SASSA) and CPS for the provision of social grants, but suspended the declaration of invalidity pending the determination of a just and equitable remedy. The Court thereafter ordered that SASSA re-run the tender process and decide whether to award a new tender.

It also made a structural order requiring SASSA to report back to the Court at various stages of the new tender process. SASSA ultimately decided not to award a new tender and reported that it would take over the payment of social grants itself by 31 March 2017. The Court accepted this assurance and discharged its supervisory order, effectively divesting itself of jurisdiction over the matter. Soon after, it became apparent that not only was SASSA not able to take over the payment of social grants by the deadline, but it had failed to inform the Court of this despite knowing its predicament well in advance. Moreover, SASSA’s proposed resolution of the situation was to request that the Court permit it to enter into a further contract with CPS without following a tender process.

The Court, in the case of Black Sash Trust v Minister of Social Development and Others[x] (“Black Sash”), considered whether it was competent to resume supervision in respect of SASSA’s conduct since it had discharged its supervisory order, the continued performance of SASSA’s and CPS’s obligations in respect of the payment of social grants, and SASSA’s responsibilities to either run another tender process or take over the payment of social grants itself.

Bemoaning SASSA’s conduct that “put grant recipients at grave risk” and “appear[ed] to disregard Court orders”, the Court found that

“SASSA and the Minister have used the discharge by this Court of its supervisory jurisdiction as justification that there was no need for them to inform or approach the Court when it became clear that SASSA would not be in a position to assume the duty to pay the grants itself. This is disingenuous and incorrect.”[xi]

The court found that though the supervisory portion of the order had been discharged, the “material content” remained and that SASSA was constrained to two options: either to award a tender for the payment of social grants or to take on the task of paying grants itself. SASSA’s failure, firstly, to do either of these and secondly, to approach the Court once it realised that this was the case, was found by the Court to justify further supervision. But in its own words, the Court found that – as had been patently shown - judicial supervision on its own was not enough to “coax” SASSA to comply with its constitutional obligations.

Something more was needed. That “something more” took the form of an order providing for a monitoring function to be fulfilled by the Auditor-General regarding steps taken (or envisaged) to implement the payment of social grants, and to initiate a new tender process to pay grants, alternatively, to capacitate SASSA to pay grants itself.

The Auditor-General was ordered to report its evaluations periodically to the Court and provide recommendations. This was in addition to SASSA’s own reporting obligations under the supervisory order. The Court seems to have envisaged that its order would give rise to a productive sharing of information with assistance and oversight provided by a body knowledgeable about matters of finance.

Another aspect of the order was directed at the Minister for Social Development herself. It called upon her firstly, to provide reasons as to why she should not be joined in the matter in her personal capacity, and secondly, why she should not be liable for costs of the application from her own pocket. This process is still underway.

The order has borne somewhat bitter fruit thus far – despite the Auditor-General’s input and suggestions, the parties approached the court once more on 5 March 2018 to extend the suspension of invalidity for a further six months, on the basis that it will not meet the 31 March 2018 deadline. While taking argument, the questions from the bench indicated the Court’s displeasure, with the Chief Justice stating that it was “like [the Court is] being laughed at by SASSA and CPS” and Froneman J stating that SASSA had effectively given the Court no choice but to grant the extension[xii]. Judgment was reserved in the matter, but whether the contents of the reporting that was ordered in the structural interdict will feature in the court’s judgment will only be known when it is delivered.

Conclusion

The above cases do not provide a rosy view of structural interdicts as effective judicial mechanisms. The remedy’s success ultimately hinges on the executive’s willingness to respect court orders. This can be detrimental not just for each case at hand where a structural order is made. There is a real danger that when the executive fails to comply, the authority of the judiciary is undermined and the rule of law thus weakened. No doubt that this is at least part of the Constitutional Court’s apparent frustration with SASSA and the Minister of Social Development.

Structural interdicts, then, do not necessarily fix executive incompetence or recalcitrance. The Courts can look to using different models of the remedy to add further measures of accountability and engagement. Further, there is a need for courts to be more forceful in holding officials to the reports and strategies that they put before them, by issuing contempt of court orders where these are not followed. Holding officials and political office bearers personally liable for legal costs in cases occasioned by their actions (or lack of action), as is being investigated as per the Black Sash judgment, is another means of executive accountability that has the potential to be highly effective in compelling officials to adopt more responsible attitudes.

Most of all, however, it falls to officials to be responsive to the courts and use structural orders as a framework to aid their decision making, in a good faith attempt to meet their obligations. Will the officials in the Ndlambe Municipality, Department of Social Development, and others all over the country increase their respect for the courts? Only time will tell.

Cherese Thakur

Legal Researcher, Helen Suzman Foundation

This article first appeared as an HSF Brief.

[i] L Harms in Law of South Africa, Volume 11 (Second Edition Volume) at paragraph 411.

[ii] C Mbariza “From ambivalence to certainty: Norms and principles for the structural interdict in socio-economic rights litigation in South Africa” South African Journal on Human Rights 2008 (24) at page 4.

[iii] Prominent cases where structural interdicts formed part of the order often made use of the “report back to court model”. A key example, which will be discussed in further detail below, is that of AllPay Consolidated Payment Holdings (Pty) Ltd and Others v Chief Executive Officer for the South African Social Security Agency and Others (No 2) (“AllPay v SASSA and Others”).

[iv] Ibid, at pages 6 – 8.

[v] See, for instance, the report entitled Assessment of the Impact of Decisions in the Constitutional Court and Supreme Court of Appeal on the Transformation of Society prepared for the Department of Justice and Constitutional Development published in November 2015, where the following suggestion was recorded at page 17: ”Given the realities of service delivery failures, the courts could become more interventionist by, for instance, adopting innovative remedies such as structural interdicts and ‘meaningful engagement’, which enable judicial supervision to ensure that government departments implement and deliver on court orders.”

[vi] [2016] ZAECGHC 45; 2017 (2) SA 86 (ECG).

[vii] R Knowles “Chaos reigns at Port Alfred Dumpsite” in Talk of the Town 18 January 2018, https://www.pressreader.com/south-africa/talk-of-the-town/20180118/281479276828420 accessed on 7 March 2018.

[viii] [2014] ZACC 12, 2014 (4) SA 179 (CC). This is the second in a series of judgments arising from the same issue, being the invalidity of a contract for the payment of social grants concluded between SASSA and CPS. The first judgment (AllPay Consolidated Investment Holdings (Pty) Ltd and Others v Chief Executive Officer of the South African Social Security Agency and Others [2013] ZACC 42; 2014 (1) SA 604 (CC)) deals with the review of the decision to award the tender to CPS and makes the finding of invalidity. The second judgment makes an order as to remedy, essentially ordering SASSA to run the tender process again while suspending the declaration of invalidity pending the award of the tender. A third judgment, AllPay Consolidated Investment Holdings (Pty) Ltd and Others v Chief Executive Officer of the South African Social Security Agency and Others [2015] ZACC 7, dealt with a procedural question as to whether the Court could only be approached by the parties if it is in the interests of the beneficiaries to do so. Thereafter, in November 2015, SASSA reported to the Court that it would take over the payment of social grants itself by 31 March 2017. However, it transpired as early as April 2016 that SASSA would not in fact be able to take over the payment of grants from CPS, but only informed the Court of this in February 2017, just over a month from the deadline. The Black Sash Trust brought an urgent application directly in the Constitutional Court for an order that inter alia called upon SASSA to show how it intended to deal with the payment of social grants. Judgment in that matter was reported as Black Sash Trust v Minister of Social Development and Others (Freedom Under Law NPC Intervening) [2017] ZACC 8; 2017 (3) SA 335 (CC). Among the Court’s orders was an order that the Minister must file an affidavit setting out reasons why she should not be held liable in her personal capacity for the payment of legal costs. From this order, a further judgment, Black Sash Trust v Minister of Social Development and Others (Freedom Under Law NPC Intervening) [2017] ZACC 20, followed. The Court found that the Minister should be joined in the proceedings, and the parties should report to the Court concerning the appointment of a referee in terms of section 38 of the Superior Courts Act 10 if 2013. The referee would then investigate whether the Minister’s institution of “work streams” frustrated the resolution of the impasse following the invalidation of the contract with CPS. With the one-year suspension of the declaration of invalidity expiring on 31 March 2018, the parties again appeared in the Constitutional Court on 5 March 2018 to argue whether the suspension should be extended for a further six months. Judgment following this hearing is reserved at the time of writing.

[ix] See A Van Dalsen “What happens to social grant payments when the current service provider contract expires on 31 March 2017?” (here) accessed on 7 March 2018, AmaBhungane “Social grants payment crisis – everything you need to know but were afraid to ask” (here)  accessed on 7 March 2018.

[x] [2017] ZACC 8, 2017 (3) SA 335 (CC).

[xi] Ibid at paragraph 59.

[xii] J Shabalala “ConCourt reserves judgment on Sassa attempt to extend CPS contract” on news24 (here), and M Thamm “SassaGate Reloaded: ConCourt’s Mogoeng angered by Sassa’s and Bathabile Dlamini’s serial delinquency” (here), both accessed on 8 March 2018.