Reasons for service delivery failures

It was affirmed in Joseph and Others v City of Johannesburg and Others that providing basic municipal services is an essential, if not the most important, function of every municipality.Footnote ¹¹ Municipalities, with the support of other organs of state such as the National Treasury, must develop service delivery capacity so they can meet all the public service needs of their residents.Footnote ¹² Despite the importance of this service delivery function, municipalities are unable to fulfil it for various reasons. Exploring some of these reasons can provide some context on how to choose sustainable solutions for these service delivery failures.

In Eskom Holdings SOC Limited v Letsemeng Local Municipality and Others, the court highlighted some reasons why municipalities fail to provide services.Footnote ¹³ The court noted that, since the COVID-19 pandemic, South African local government has had to cope with many stresses, such as extensive droughts, flash floods and widespread public violence, in a short time. This resulted in the damage and loss of municipal infrastructure and very high unemployment rates.Footnote ¹⁴ These circumstances contributed to many consumers being unable to pay for their municipal services, which led to a drastic reduction in municipalities’ revenue.Footnote ¹⁵ It also meant that municipalities have had to spend more on building new infrastructure and infrastructure repairs. Being financially compromised, many municipalities are unable to pay their outstanding debt to other organs of state for bulk public service providers, eventually leading to the service providers threatening to disconnect the municipality's access to bulk services.Footnote ¹⁶

A lack of skills to draw up an effective municipal budget is another reason why some municipalities are not financially able to provide public services.Footnote ¹⁷ In the past, the National Treasury has penalized municipalities by reducing their equitable share when their budgets have been drawn up incorrectly.Footnote ¹⁸ Sometimes the National Treasury has also reduced money granted to a municipality if that municipality underspent during its previous financial year.Footnote ¹⁹ This illustrates that a municipality should have access to the proper skills to enable it to manage its financial and other planning matters to ensure that it can obtain the maximum benefit from national and provincial sources of funding.

Moreover, non-revenue losses, where bulk services such as water and electricity are lost due to old, derelict systems or theft, is another factor contributing to service delivery failures.Footnote ²⁰ Municipalities are unable to recover fees even though a bulk services provider will still hold the municipality accountable for such services.Footnote ²¹ At this point, one can start to observe a definite trend that many service delivery failures may be attributable to a lack of resources (financial, human or infrastructure) or mismanagement.

Where service delivery failures do strike, LingFootnote ²² considers the recalcitrance of government as one of the biggest impediments to solving them.Footnote ²³ To illustrate this point Ling refers to the Government of the Republic of South Africa and Others v Grootboom and Others,Footnote ²⁴ where the state, two years after the decision, still did not comply with the traditional interdict that the court granted in favour of the community.Footnote ²⁵

Solving service delivery failures

It is undeniable that there are many ways to address failures in municipal service delivery, many of which are aimed at preventing such failures in the first place.Footnote ²⁶ However, many municipalities in South Africa already face service delivery failures and, for this reason, this article does not address the prevention of service failures.

One can turn to many options to address service delivery failures. First, many municipalities have internal dispute resolution mechanisms, including logging online complaints such as for leaking pipes.Footnote ²⁷ Secondly, many political channels are built into the local government structure, such as ward committees and council meetings through which communities can participate in local governance issues.Footnote ²⁸ Thirdly, democratic and participatory mechanisms may involve voicing concerns at organized fora, signing petitions or participating in local government elections.Footnote ²⁹ Fourthly, communities may initiate litigation for declaratory or public engagement orders.Footnote ³⁰ Fifthly, the Constitution provides for provincial or national interventions in local government.Footnote ³¹ Sixthly, communities can seek the assistance of institutions listed in chapter 9 of the Constitution, such as the public protector, the auditor-general or the Human Rights Commission, which can recommend remedial measures to address deficiencies in service delivery. In addition, the law enables peaceful protests to empower community members to voice their concerns to the various government institutions.Footnote ³² These options are by no means an exhaustive list.

Notwithstanding the merit these options may have to address municipal service delivery failures, this article specifically proposes using mediation, the structural interdict, or a combination of the two, to address these issues. The purpose is to put forward methods that allow the development of sustainable solutions to service delivery problems, while allowing the community to play a more significant role in local governance. As explained more fully below, these provide enforceable solutions and meaningful stakeholder involvement, as well as securing political buy-in, while respecting local government autonomy.

Mediation has recently increased in popularity and is now preferred as a conflict resolution mechanism in various legal disputes in South Africa, including in the fields of labour law, family law, commercial contracts, environmental law and criminal law.Footnote ³³ A case has also been argued for using mediation in all public disputes, some of which could involve spatial planning.Footnote ³⁴ In the USA, for example, mediation was introduced to resolve environmental-related disputes between municipalities and communities.Footnote ³⁵ Furthermore, some scholars argue that, in the context of non-labour-related disputes involving municipalities, mediation has been underutilized and there remains significant potential to develop and promote the use of mediation in these disputes.Footnote ³⁶

On the other hand, the structural interdict can be considered as a possible remedy where mediation fails. Globally, the roots of the structural interdict can be found in US law.Footnote ³⁷ The remedy was developed to provide a means for the direct adjustment of behaviour within an institution.Footnote ³⁸ Hirsch states that it is a medium used by the courts to address ongoing non-compliant behaviour of bureaucratic organizations and is mainly used in instances where a systemic failure is present or when socio-economic rights are infringed.Footnote ³⁹

This article critically analyses both mediation and the structural interdict, by examining inter alia their definitions, main advantages and shortcomings, and why they would offer sustainable solutions instead of the other available legal options. The discussion also shows how these two legal avenues can be used in combination with each other for a third legal avenue to resolve these disputes.

Mediation

Mediation can be described as an alternative to litigation where the aim is to resolve a dispute between two or more parties, with the help of a neutral party who facilitates an amicable solution for all the parties.Footnote ⁴⁰ Some writers also refer to mediation as “assisted negotiation”.Footnote ⁴¹ This dispute resolution method is informal and adaptable, which enables all stakeholders in the dispute to participate in the process.Footnote ⁴² Other features of mediation are the voluntary participation of all parties, the joint exploration of all interests and problems, the search for a solution acceptable to all, and the presence of a neutral third party who is an expert on the subject of the main dispute.Footnote ⁴³ Mediation is said to have many advantages over conventional litigation,Footnote ⁴⁴ although this article specifically explores those that contribute to sustainable solutions for service delivery failures.

One of the main advantages of mediation is its potential to make a significant contribution to participatory governance because of its emphasis on stakeholder involvement.Footnote ⁴⁵ Mediation allows a dispute to be resolved in a non-isolated manner. This means that the dispute is viewed as part of a broader social context, so it provides the opportunity to investigate the history of the preceding events from which the dispute arose.Footnote ⁴⁶ During mediation, a wider investigation is thus conducted into the circumstances surrounding the dispute, which may involve more than the parties to the dispute and possible consequences for others. In other words, the parties, their families, extended social networks and the interests of future generations can be taken into consideration during the mediation process.Footnote ⁴⁷

Mediation provides all stakeholders with the opportunity to interact with each other, to reduce the scope, intensity and effects of the conflict underlying the dispute.Footnote ⁴⁸ Mediation, through formal and informal meetings of stakeholders, allows for a reassessment of the interests involved as a foundation for finding options to resolve a crisis and reconcile divergent points of view.Footnote ⁴⁹ One can, therefore, say that mediation has the added benefit of increasing public participation, improving communication and making local government more responsive to community needs.Footnote ⁵⁰ In mediation, the parties and stakeholders to the dispute decide what the solution will be, instead of having solutions imposed on them, which may be politically laden or ill-suited to providing both immediate and long-term relief.Footnote ⁵¹

In South Africa, municipalities consist of an administration and a municipal council.Footnote ⁵² The latter consists of elected politicians.Footnote ⁵³ The successful resolution of disputes through mediation can be accompanied by substantial political gain for the municipal council. All municipalities, at one time or another, are confronted with highly sensitive and potentially volatile disputes with their communities that receive significant public and media attention.Footnote ⁵⁴ These disputes are often accompanied by unwanted and negative publicity, which leads to a decrease in public confidence in the municipality's ability to govern.Footnote ⁵⁵ It is therefore in the interest of the municipality (more specifically, the municipal council) to resolve these disputes as quickly and effectively as possible.Footnote ⁵⁶ Mediation can be used in these instances for expedient solutions and can preserve the relationship between the community and municipality.Footnote ⁵⁷

South African law and case law have shown the place of mediation in disputes between the community and municipality. The Uniform Rules of Court were amended in 2014 to include provisions that regulate mediation.Footnote ⁵⁸ The purposes of these rules are to promote access to justice, encourage restorative justice, safeguard relationships, facilitate a speedier and cost-effective solution for a dispute, and provide solutions that are beyond the scope of the judiciary.Footnote ⁵⁹ Although the judiciary prefers that complex disputes, which are not solely founded on a question in law, be first subjected to mediation before litigation is initiated, the Uniform Rules affirm that mediation is a voluntary process.Footnote ⁶⁰ In particular, rule 41A, which came into force in March 2020, provides that, in any new matter, each party to the dispute must inform the other party whether or not it agrees that the dispute should be referred to mediation.Footnote ⁶¹ This means that the parties to a dispute must seriously consider the use of mediation before the dispute can be brought before a court.

Mediation is often criticised because the power relationships among the stakeholders are almost always unequal, especially in respect of access to information and access to resources to support the resolution of the dispute.Footnote ⁶² This unequal balance of power (often in favour of the municipality) may be the cause of an unjust outcome that adversely affects the sustainability of the solution.Footnote ⁶³ However, mediating service delivery disputes where the party with the weaker bargaining power (in this case the community) has access to a legal remedy such as a structural interdict may remove this imbalance.

Ray refers to this phenomenon as mediating in the “shadow” of the law.Footnote ⁶⁴ The likelihood of litigation and court involvement is thus an incentive for fair, meaningful and ultimately successful engagement by both the community and the municipality. Simply put, it refers to parties being more open to mediation and more likely to adhere to all constitutional values and norms when engaging with each other.Footnote ⁶⁵ The “shadow” of the law may therefore help to balance the unequal bargaining power between the community and the municipality. In addition to the motivation of mediating in the “shadow” of the law, parties can agree to make the agreement (which is considered contractually binding) and solution emanating from mediation an order of the court.Footnote ⁶⁶ This provides an added layer of enforceability that may contribute to the overall sustainability of the solution.

A solution tailored through mediation is also more sustainable than one developed through other processes, such as a mandatory provincial intervention, because it is not imposed by other entities.Footnote ⁶⁷ Instead of an imposition, parties see the solution as a collaboration. Municipalities can keep their autonomy and still make their own decisions while the community has a meaningful opportunity to voice its concerns.Footnote ⁶⁸ All of this takes place within a framework in which the rights and duties of all parties are determined.Footnote ⁶⁹ It is often the case that the duties of communities are downplayed in these solutions; after all, communities are considered to be part of a municipality under the Systems Act.Footnote ⁷⁰ For example, residents have the duty to pay their rates and taxes. Another example could be that residents are expected to put out their solid waste at a designated location in their street to ease the task of the municipality gathering solid waste, where it is impossible for the community to gain access to several waste trucks. This solution could have alleviated Ekurhuleni's uncollected solid waste problem in 2022.Footnote ⁷¹

So, how can one envision mediation playing out in service delivery disputes? McAdoo and Bakken show that public disputes, including those of service delivery problems, follow the same “uncontrollable spiral” if left unmanaged.Footnote ⁷² A service delivery failure emerges as a problem for the community, which leads to the formation of sides with the municipality seen as being on the “wrong” side.Footnote ⁷³ Without intervention, positions against the municipality harden and communication inevitably breaks down.Footnote ⁷⁴ At this point, community members will stop reporting the service delivery problem and will resort to group actions, such as protests. This conflict then spills outside the community and may encourage actions that escalate to national strikes and “shut-downs”. At this stage, perceptions have become distorted to the point where a sense of crisis emerges.Footnote ⁷⁵

Mediation of service delivery disputes should preferably take place before communication between the municipality and community breaks down completely. There is nothing to suggest which party should initiate the process. The municipality (administration and politicians) carries the primary duty to deliver services, but it is the community that will be disadvantaged most if the service delivery problem remains unsolved.Footnote ⁷⁶ Both parties therefore have much to lose should the dispute continue. Although competing interests will always be present in these disputes, there will also always be a common goal from which the mediation process can build. The immediate common goal should be to prevent the complete collapse of the specific service. This will provide the common ground for parties to explore realistic options to minimize the impact of the service delivery failure, while safeguarding the municipality's ability gradually to restore the service to an adequate level. Unrealistic demands from the side of the community could lead the municipality to de facto bankruptcy, for example. Mediation should develop a written medium- to long-term plan that contains this immediate goal and the incremental steps that both parties will take to secure the restoration of an adequate level of service delivery. The commitments from both parties involving both actions and sources should be clearly stipulated in this plan. Successful implementation of such plans can motivate more of these initiatives and local governance can eventually move away from the destructive dispute resolutions that include violent protests.Footnote ⁷⁷

Although mediation has many benefits, it also has some potential pitfalls. One such pitfall is that participating in mediation remains voluntary. Even where mediation is compulsory, the emphasis in South African law is on the stakeholders’ participation, not on finding a sustainable solution. Where parties were actively engaged in mediation, but unsuccessful in finding a solution, a treasury of information should be available that was gathered during the mediation process. The community at this point may consider approaching a court to obtain a structural interdict against the municipality.

Structural interdicts

A structural interdict, as the name suggests, contains an element of interdictory relief.Footnote ⁷⁸ The court order therefore partially consists of positive acts or omissions necessary to remedy a constitutional violation or service delivery failure (also referred to as a remedial plan).Footnote ⁷⁹ Often, the remedial plan is accompanied by specific timeframes within which certain actions must take place.Footnote ⁸⁰ Structural interdicts also involve court supervision. In other words, the implementation of the remedy is monitored by the judiciary until the court deems the failure to provide the service sufficiently remedied.Footnote ⁸¹ Sometimes it may also be necessary for the court to issue further directions at periodic intervals because of changing circumstances and as the implementation of the remedy progresses.Footnote ⁸² It may thus be said that structural interdicts are remedies to be implemented over a long period of time.

The purpose of the structural interdict is to eliminate systemic violations, especially those within institutional or organizational settings.Footnote ⁸³ Instead of traditional remedies that seek deterrence or compensation, structural interdicts seek to adjust the future behaviour of the parties concerned in a manner that will prevent the root cause of the service delivery failures from resurfacing.Footnote ⁸⁴

The legal basis for using structural interdicts can be described as follows. The Constitution specifically mandates municipalities to ensure the sustainable provision of services and promote social and economic development while promoting a safe and healthy environment.Footnote ⁸⁵ Additionally, section 153(a) of the Constitution determines that a municipality must give priority to the basic needs of the community. Parliamentary legislation, with which municipalities must comply, has been enacted either to give effect to a right entrenched in the Bill of Rights or other mentioned constitutional mandates, or to provide tools to empower municipalities to fulfil their constitutional mandates.Footnote ⁸⁶ Therefore, disputes concerning service delivery failures should be regarded as constitutional matters.Footnote ⁸⁷

The Constitution renders courts competent to make any order that is just and equitable in the circumstances when adjudicating constitutional matters.Footnote ⁸⁸ This gives courts the authority to impose a structural interdict whenever the surrounding circumstances of a service delivery dispute render it just and equitable to do so.Footnote ⁸⁹ Government recalcitrance and / or incompetence, or the expectation of irremediable harm without judicial intervention are some of the circumstances that the judiciary has accepted as justification for a structural interdict.Footnote ⁹⁰ This remedy is also used where the court is convinced that a different order will not be complied with promptly or where further non-compliance will have a severe negative impact on the community.Footnote ⁹¹ Additionally, Swanepoel believes that a structural interdict must be employed where a general mandatory interdict would be too broad to enable the municipality to comply with it effectively and therefore a structural interdict would provide some guidance to the parties involved.Footnote ⁹² Lastly, Liebenberg argues that participatory remedies, such as structural interdicts, can be effective in remedying institutional dysfunction that cannot be addressed by traditional “once and for all” court orders.Footnote ⁹³

Different processes have been followed by the South African judiciary to formulate structural interdicts.Footnote ⁹⁴ In the first instance, a municipality can be ordered to compile a remedial plan through negotiating with the community, and then to report back to the court to present that plan.Footnote ⁹⁵ If the court is convinced that the plan will satisfactorily remedy the non-compliance, the court will transform the plan into a court order.Footnote ⁹⁶ The structural interdict will thus consist of the remedial plan, accompanied by a deadline/s by when the municipality will have to report back to court on progress made.Footnote ⁹⁷ The second process functions similarly, except negotiation is replaced by a hearing conducted by the municipality. Views may be expressed by the community, but the municipality can still choose to deviate from those views. The third option is to use a panel of experts to formulate the remedial plan.Footnote ⁹⁸ The first approach is best suited to solving service delivery failures, as indicated by the advantages below.

Details of the application of structural interdicts can mostly be found in case law that relates to socio-economic rights and the Msunduzi Footnote ⁹⁹ judgment, which was handed down in 2021. However, it could be argued that, since the provision of services is a method of fulfilling certain socio-economic rights, the principles used in socio-economic case law can be applied. Experience has shown that approaching structural interdicts incrementally enhances the remedy's effectiveness and overall success.Footnote ¹⁰⁰

Initially, a structural interdict should give the parties clear guidelines on the process to be followed to formulate a remedial plan. This initial order should set out clear timeframes to produce the initial remedial plan.Footnote ¹⁰¹ It is important that the timeframes are realistic; it might therefore be necessary for the court to consult the parties to establish appropriate timeframes. The guidelines should also provide some detail on the requirements for public participation and meaningful engagement. Much has been written about how meaningful engagement should take place when a structural interdict and other constitutional remedy are considered.Footnote ¹⁰² For this discussion, however, it is sufficient to emphasize that the interests of all parties who would be affected by the remedial plan must be taken into account for the structural interdict to be fair.Footnote ¹⁰³ In addition, much success has been achieved with structural interdicts where diverse stakeholders were involved in developing the remedial plan.Footnote ¹⁰⁴

When the parties return to court with the remedial plan, the court may: require more stakeholders to have an opportunity to comment on the plan and have the parties review it; refer the remedial plan to independent experts to assess its viability and feasibility; or accept the plan and make it an order of the court.Footnote ¹⁰⁵ A court should not blindly adopt the product of such participation, but ensure that the content of the structural interdict can be substantiated with a sound reasoned decision-making process.Footnote ¹⁰⁶ The ultimate decision on the specific content of the remedial plan, therefore, remains with the court. The court may continue to refer it back to the parties to make amendments until it is satisfied that the proposed plan will yield the desired results.Footnote ¹⁰⁷ Accepting that courts are legal experts and may not have the technical knowledge to deliver municipal services, the court should appoint individual expertsFootnote ¹⁰⁸ to help assess these remedial plans.

A structural interdict must be enforceable to provide effective relief. The structural interdict ordered by the court in Black Sash Trust v Minister of Social Development (Black Sash)Footnote ¹⁰⁹ is one of the most effective remedies issued of its kind.Footnote ¹¹⁰ According to Swanepoel, this success may be attributed to the care the court took to set out detailed enforcement mechanisms and safeguards.Footnote ¹¹¹ This corresponds with the judgment in Minister of Basic Education v Basic Education for All,Footnote ¹¹² where the court stated that an effective remedy can be enforced.Footnote ¹¹³ The enforcement mechanisms in Black Sash included stringent reporting requirements and the appointment of independent monitors to help supervise the practical implementation of the structural interdict.Footnote ¹¹⁴ Furthermore, the court required the minister, in this case, to justify why they should not be held personally liable for the legal costs incurred, as they are the officeholder and have primary responsibility for their portfolio.Footnote ¹¹⁵ The municipal manager was held similarly liable in Kenton on Sea Ratepayers Association and Others v Ndlambe Local Municipality and Others,Footnote ¹¹⁶ in which the court found that the municipal manager would be guilty of contempt of court should the municipality not adhere to the structural interdict.Footnote ¹¹⁷

It is acknowledged that giving courts a supervisory role as part of a structural interdict will increase the judiciary's already sizeable workload. However, in Black Sash the court minimized the addition to its caseload by appointing independent experts to assist with the practical implementation of the structural interdict it ordered.Footnote ¹¹⁸ Structural interdicts should also allow for an adequate period of supervision to ensure material compliance with the potential long-term remedial goals. In AllPay Consolidated Investment Holdings (Pty) Ltd and Others v Chief Executive Officer of the South African Social Security Agency and Others,Footnote ¹¹⁹ the court relinquished its supervision after the first progress report had been submitted. This was too soon, and the dispute resurfaced in Black Sash.Footnote ¹²⁰ Judicial supervision is thus both a valuable deterrent and an enforcement mechanism.Footnote ¹²¹

Structural interdicts should be formulated to allow sufficient flexibility for the plan to be adapted when its implementation is reviewed.Footnote ¹²² The idea is that the implementation of these remedies will change the circumstances within which the service delivery failures took place, hopefully for the better. It may thus be necessary to adjust the initial order as implementation progresses, to ensure the continued effectiveness of the long-term implementation of the remedy.Footnote ¹²³

As with mediation, there are many benefits to using structural interdicts instead of more traditional remedies such as declaratory or compensation orders. However, the most relevant benefits to this discussion are those that can contribute to the overall sustainability of the solution that the structural interdict may provide. The advantages are that both the community and the municipality retain most of their autonomy, that it contains a significant element of participation and that, if formulated realistically, it can be effectively enforced.

The structural interdict, as described, embodies an effective participatory remedy.Footnote ¹²⁴ This type of remedy allows all stakeholders to participate in forging a solid plan for how to move forward, which can involve the expertise of qualified persons.Footnote ¹²⁵ In so doing, the court can employ the expertise and experience of all stakeholders, which will lead to an informed and evidence-based decision on what solution is best suited to remedy the service delivery failure.Footnote ¹²⁶ Participation of the municipality further encourages compliance, because it is unlikely that the municipality will make commitments it knows would be impossible for it to implement within its resource constraints.

This involvement of the community further strengthens the notions of accountability,Footnote ¹²⁷ as well as restoring the community's confidence in the administration of justice and governance in general.Footnote ¹²⁸ Furthermore, both parties may now have more empathy for each other's situations. The participation process should also be seen as an opportunity to educate both parties on their respective duties toward service delivery, while making the judiciary aware of the obstacles that municipalities may experience when delivering services,Footnote ¹²⁹ such as not being able to provide an uninterrupted supply of electricity due to the implementation of loadshedding.

It is not a remedy where the judiciary acts as a substitute for the executive, but a means to create dialogue between the court, executive and community.Footnote ¹³⁰ The dialogue offered by this remedy effectively addresses concerns that the separation of powers will not be respected because of the power given to the judiciary to dictate how the executive will fulfil its functions.Footnote ¹³¹ Moreover, in Treatment Action Campaign Footnote ¹³² the court indicated that it may make orders that could affect policy and legislation or interfere with the executive's duties when the state's obligations are not performed diligently and in a timely manner.Footnote ¹³³ Structural interdicts can thus be seen to offer an appropriate balance between needing executive relief and maintaining the separation of powers.Footnote ¹³⁴

A structural interdict allows both the municipality and the community to retain a degree of autonomy. By retaining sufficient autonomy, the municipality is allowed to help devise a remedial plan with which it can comply within the limits of its resources and capacities.Footnote ¹³⁵ Political buy-in from the municipality is enhanced because it played a significant role in the deliberations during the development of the remedial plan.Footnote ¹³⁶ This facilitates mutual trust and repairs the relationship between the community and the municipality.Footnote ¹³⁷ In allowing the municipality together with the community to develop a practical and amicable solution, both parties will have a better sense of justice being served: for the municipality, the remedy is, in a sense, self-imposed, while the community can experience at first-hand that non-compliant practices will change.Footnote ¹³⁸

This remedy empowers the court to supervise implementation and progress made in terms of the mandate given.Footnote ¹³⁹ Supervision increases efficiency when enforcing the court order. This remedy further offers the court flexibility to be able to establish facts at each reporting interval as progress is made and for it then to alter the interdict if the new facts so require.Footnote ¹⁴⁰ Transformative justice is enhanced because the court is enabled to prescribe acts to rectify non-compliance.Footnote ¹⁴¹

Each municipality is unique in its functioning and structure, yet it is expected that they meet the same constitutional obligations. Another strength of the structural interdict is that it has the flexibility to be tailored to meet the needs of each specific municipality.Footnote ¹⁴² This increases effectiveness since the solution was specifically tailored according to the demands of that case.Footnote ¹⁴³ This remedy offers a pragmatic approach to eliminate systemic violations within the municipality.Footnote ¹⁴⁴

In summary, this constitutional remedy contains a substantial participatory element, it enables parties to keep most of their autonomy and be able to secure political buy-in from state organs. Furthermore, detailed safeguards and accountability measures make this remedy easy to enforce, which in turn leads to an effective deterrent against non-compliance with the order. These characteristics all contribute to making a sustainable solution for service delivery failures. Despite this, neither the judiciary nor the legislature has provided guiding principles on how to use these remedies. For a complex issue such as a service delivery failure, such principles might have been useful to guide both the court and parties on how to optimize structural interdicts specifically to find solutions for service delivery failures.

Combining mediation and a structural interdict

Mediation's starkest shortcoming is that the process remains voluntary and its enforceability is limited without court intervention. A structural interdict, on the other hand, is still a relatively novel remedy in service delivery disputes and courts do not have many guidelines to which to turn in this regard.Footnote ¹⁴⁵ Structural interdicts have also been critiqued as contributing to the judiciary's workload and allowing courts to make decisions on issues that fall beyond their expertise.Footnote ¹⁴⁶ However, is there a potential third option that could harness the advantages of mediation and structural interdicts while eliminating the shortcomings of both?

Mediation offers proven principles to guide both the parties and the mediator. It shows how to facilitate communication and party participation and how to work towards a realistic plan to which both parties commit. It is also a reference to establish the responsibilities of each party to facilitate accountability and enforcement. By including mediation, the court can have the added benefit of appointing an independent mediator who can both provide expertise on service delivery failures as well as balance the bargaining power between the parties. This means that, when a court is initially approached with a service delivery dispute, it may make an order (drawing from the principles of mediation) for the parties (and other relevant stakeholders) to engage with each other and develop a remedial plan. An independent expert may be appointed as a mediator to facilitate this process.

As with the structural interdict described above, once a remedial plan is on the table, the dispute goes back to the court, which can review the plan with experts to assess its feasibility and viability in achieving the immediate and long-term goals. If satisfied with the remedial plan, the court may endorse its contents. A court order should then be drawn up setting out the plan, appropriate enforcement mechanisms and a system for monitoring performance on an ongoing basis, while also providing that the court retains oversight. This means that the final court order should contain specific consequences for non-compliance by certain individuals with the measures set out, as was done in Kenton and Black Sash. Maintaining supervision and having enforcement mechanisms in place will deter non-compliance with the order.

The remedy proposed can thus be seen as a two phased specific structural interdict. First, the court orders the parties to develop their remedial plan through a process that mimics mediation. Secondly, when the remedial plan is brought back to court, a court order is made that mimics a structural interdict usually used to remedy structural socio-economic rights violations (because most service delivery failures lead to a violation of these rights). The court then retains oversight but may appoint an agent to help fulfil this function, such as an independent expert, National Treasury or the auditor-general.

Combining mediation and a structural interdict would address most concerns involving the separation of powers. Furthermore, courts may not be equipped to deal with most service delivery issues because of their polycentric nature, because they are often accompanied by issues of municipal budgets, human skills availability and other issues that do not directly involve questions of law. It should be emphasized that not all municipalities that fail to provide services do so on purpose; often, many underlying causes must be addressed to restore the municipality to a position where it can provide services. The inclusion of experts and other stakeholders, such as the provincial departments responsible for local government and treasury or municipal managers from successful municipalities, may offer valuable expertise in these areas. As a bonus, such a process would strengthen cooperative governance.