oa Constitutional Court Review - Forcing the court’s remedial hand : non-compliance as a catalyst for remedial innovation

Volume 9 Number 1
  • ISSN : 2073-6215
  • E-ISSN: 2521-5183



This article juxtaposes the pioneering remedies granted by the Constitutional Court in its trilogy of Black Sash judgments with similar innovations forged by our lower courts in the cases of Madzodzo, Linkside and Mwelase. By juxtaposing these cases in this way, their shared remedial predicament is foregrounded: litigation progresses in multiple stages as the court is confronted by the government’s continuing failure to comply with its positive constitutional duties, with remedial escalation culminating in a resort to novel mechanisms that seek to compel compliance. In seeking to capture this dynamic in which persistent non-compliance serves as a catalyst for remedial innovation, the article explores two lines of remedial development. First, it considers the emerging use of court-appointed agents to enhance the court’s supervisory jurisdiction, comparing the appointment of the Auditor-General and Panel of Experts in Black Sash I with the independent auditor in Madzodzo, the claims administrator in Linkside and the special master in Mwelase. Second, the resort to a personal costs order against the Minister in Black Sash III is evaluated as a strategy to ‘pierce the political veil’; and is compared to the attachment of state assets in Linkside. This analysis yields significant insights for our remedial jurisprudence. The front-line remedial experimentation in lower court litigation contextualises the innovations that filter up to the Constitutional Court, thus providing a richer understanding of the cross-fertilisation in remedial development between the different tiers of court. The two lines of remedial development also underscore the range and complexity of reasons for government non-compliance. Judicial responses to persistent non-compliance should not be confined to the individual mental states of public officials, but also target the systemic functioning of institutions that chronically fail to fulfil their constitutional obligations.

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