K
LEIN
F
INAL
2/25/2008
7:38:21
PM
382
COLUMBIA HUMAN RIGHTS LAW REVIEW [39:343
South African Constitutional Court’s reluctance, up to this point,
146
to
grant structural relief in SER litigation. Rather than retain
jurisdiction to supervise the implementation of the case, the
Constitutional Court in Grootboom instead indicated (however
redundantly) that the Human Rights Commission was to monitor
compliance with its judgment instead of the court.
147
Indeed, the
Human Rights Commission has been dissatisfied continually with
the government’s implementation of Grootboom. If the courts were to
retain jurisdiction in cases like Grootboom, as some commentators
have argued they should,
148
and as some high courts enforcing SERs
in South Africa have done,
149
when does the retention of jurisdiction
end? Further, if retention of jurisdiction comes to include the power
to issue further orders—a likely development if the government’s
progress
is
unsatisfactory—then
the
risk
of
judicial
micromanagement continues.
A requirement that the government report on its progress in
court makes sense where there is legislative-judicial consensus on
ends, a relatively short timeline for their achievement, and where the
court wants to leave the government with discretion as to means.
Where the ends are themselves unclear or contested, such as where
the content of rights is expected to change over time, retention of
jurisdiction is a less practicable means of ensuring that governments
do not neglect positive constitutional obligations.
146.
Occupiers of 51 Olivia Road, Berea Township and 197 Main Street,
Johannesburg v. City of Johannesburg and Others, Case No. CCT 24/07, pending
before the South African Constitutional Court at the time of this publication,
raises the issue of whether it is appropriate for a lower court to issue a limited
supervisory order requiring the City of Johannesburg to register a compliance
affidavit within four months of the order. The case concerns the eviction of poor
people from allegedly unsafe buildings in Johannesburg and thus implicates the
government’s compliance with Grootboom.
147.
See also TAC, 2002 (5) SA 721 at paras. 96–103.
148.
See Pillay, supra note 106, at 18.
149.
See, e.g., the High Court orders in Grootboom v. Oostenberg
Municipality and Others, 2000 (3) BCLR 277 (CC) at paras. 293H–294C; TAC &
Others v. Minister of Health and Others, 2002 (4) BCLR 356, 386–87; City of
Cape Town v. Rudolph and Others, 2002 (11) BCLR (CC) 1236, 1280–81; S v. Z
and 23 Similar Cases, 2004 (4) BCLR 410; E, N, and Others v. Government of
RSA and Others, 2007 (1) BCLR 84.
Convention