LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

102 Chapter 3
justify its failure to allocate more resources towards realisation of the
rights or its failure to appropriate monies towards a commissioned
programme. This approach places the duty of justification on the
state and gives the courts an entry point to determine whether the
state has indeed justified its actions with regard to resources. If not
satisfied, the courts will be able to grant relief which compels the
state either to allocate more resources towards realisation of the
rights or to use the available resources more efficiently. The Khosa
case provides an indication of the Constitutional Court’s preparedness
to move in this direction, but it remains to be seen how the Court is
going to apply the Khosa approach in future cases.
This chapter has discussed the Constitutional Court’s approach to
the primary theory, which is the nature of the obligations engendered
by socio-economic rights. It is now safe to move to the secondary
theory, which is the nature of the remedies that may be provided by
violation of socio-economic rights. The discussion of the approach of
the Court in this respect, however, will be guided by two theories:
corrective and distributive justice. These two theories of justice have
had a very big impact on the nature of judicial remedies in the areas
of both public and private law. The theories are discussed in the next
chapter.