LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

CHAPTER
4
RECONCILING CORRECTIVE AND
DISTRIBUTIVE FORMS OF JUSTICE
AND THEIR IMPACT ON
REMEDY SELECTION
4.1 Introduction
Chapters two and three have demonstrated that in construing the
obligations engendered by the socio-economic rights in the South
African Constitution, the Constitutional Court has, among others,
been influenced first by the doctrine of separation of powers.
Secondly, the Court has been influenced by concerns regarding its
institutional competence to adjudicate social justice matters and to
consider issues related to resource allocation. In addition to the above
considerations, however, the Court has also implicitly been
influenced by the form of justice that it is inclined toward. This has
greatly impacted on the kinds of remedies that the Court has granted
which, by their nature, have guaranteed socio-economic rights as
collective rather than individual rights. This is because the Court is
inclined toward distributive justice as opposed to corrective justice.
The purpose of this chapter is to set out a theoretical platform for
an understanding of how different notions of justice influence the
remedies that courts grant. The two theories of justice to be
discussed here derive from the philosophies of corrective and
distributive forms of justice. The corrective justice philosophy
demands that victims be put in the position they would have been in
but for the violation of their rights. On the other hand, the
distributive justice philosophy is based on a recognition of the
constraints of putting victims in the position they would have been in
had the violation not occurred. The distributive justice philosophy
does not focus solely on the interests of the victim. A court basing its
decision on distributive justice will decline to put the victim in the
position he or she would have been in but for the violation if this
would have a negative impact on other legitimate interests. 1
1
K Roach ‘The limits of corrective justice and the potential of equity in
constitutional remedies’ (1991) 33 Arizona Law Review 859 859.
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