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24 S. Afr. J. on Hum. Rts. [i] (2008)

handle is hein.journals/soafjhr24 and id is 1 raw text is: SOUTH AFRICAN JOURNAL ON HUMAN RIGHTS VOLUME 24 PART 1 2008 CONTENTS Page FROM AMBIVALENCE TO CERTAINTY: NORMS AND PRINCIPLES FOR THE STRUCTURAL INTERDICT IN SOCIO- ECONOMIC RIGHTS LITIGATION IN SOUTH AFRICA Christopher Mbazira The parsimonious approach of the Constitutional Court in using the structural interdict in socio-economic rights cases has both been critiqued and also contrasts with that of the High Courts. Moreover, the Court has neither given a principled basis for its rejection and use of the remedy nor laid down any norms and principles for determining when the remedy is ap- propriate. Starting from these bases, this article highlights norms and principles which could guide the courts in determining when the structural interdict is appropriate, and its modalities. Drawing upon Amersican jurisprudence, the article proposes norms and principles including utilisation of the structural interdict in a graduated manner as a remedy of last resort; partici- pation of all stakeholders; judicial impartiality and independence; reasoned decision making; remediation which enforces the substantive norms; and flexibility. CONSTITUTIONAL ENVIRONMENTAL RIGHTS: AN UNDER- UTILISED RESOURCE Loretta Feris 29 This article supports the principled proposition that all human beings have a fundamental right to an environment that is ecologically sound and does not threaten health or well-being. It also takes the position that we need a solid and detailed understanding of the content of the environmental right in the South African Constitution. It is particularly imperative that such content reflect the particular context within which the right operates. The article argues, however, that the content and value of South Africa's environmental right, remains largely undefined. It reviews a number of decisions which have provided opportune moments to give content to the right, and in this regard focuses on two areas where jurisprudence may enhance the application of an environmental right. These developing principles of environmental law and interrogating the relationship between the environmental right and other constitutionally- entrenched rights. SORRY SEEMS TO BE THE HARDEST WORD: APOLOGY AS A FORM OF SYMBOLIC REPARATION Mia Swart 50 Almost none of the leaders of the apartheid government apologised during the TRC process. This article argues that it is not too late for these leaders to apologise, and that one should be open to the transcendent value of apologies. Although apology does not fit easily into our individualistic, adversarial legal culture, it does fit into the paradigm of restorative justice. As a form of symbolic reparation, apology can be part of a package of restorative measures. Symbolic reparations (such as apology) have been ordered by courts both in South Africa and intemationally. Because of the essentially performative nature of apologies, even incomplete or insincere apologies have restorative value. Incomplete apologies can have value if the apologist exhibits shame or if the apology involves public humiliation. The foot washing gesture ofAdriaan Vlok is an example of an incomplete apology with restorative results.

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