LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

114 Chapter 4
that may be short of full correction. This is because ‘[t]he
disengagement of right and remedy in equity allows judges to provide
less than rectification demands’. 56 In addition, equity allows the
court to focus not only on the needs of the parties, but also to
consider third-party interests implicated by the case. While equity is
not explicitly part of South African law, its principles are implicitly
enforced by the courts through such principles as those that require
fairness.
Unlike the case with corrective justice, a judge dispensing
distributive justice will therefore rely on the breadth and flexibility
of the equitable remedial powers without careful attention to the
demands of causation and restoration. 57 Rather than be guided by
strict rules of procedure, and be bound by the existing causes of
action and remedies, distributive justice allows the court very wide
discretion to fashion causes of action and remedies as the needs of
justice demand. Distributive justice puts equity in its right place by
treating it as a primary source of law. Courts, for instance, are not
bound by the requirement that equitable remedies will only be
available where common law remedies are proven to be inadequate.
This has enabled the courts to embrace the full breadth of equity and
its benefits; it may be applied in adjusting and reconciling competing
claims and to enable the court go beyond the matters immediately
underlying its jurisdiction and grant whatever other relief may be
necessary under the circumstances. 58
Unlike corrective justice, distributive justice does not emphasise
liability but effects of one’s activities. Its multilateral nature compels
a court to ascertain how its remedial measures, irrespective of
whether or not liability has been declared, will impact on the
interests of other people. The backward-looking nature of corrective
justice, geared towards ascertaining liability, may not be suitable to
address current legal problems. Legal problems and disputes are no
longer bilateral. The world we live in now has complex and
interdependent interests, a reality which the courts must
acknowledge when they choose remedies. 59 All the interests
56
Roach (n 18 above) 860. Roach submits that the flexibility of equity provides
judges with an opportunity to address the present needs of plaintiffs and
defendants without concentrating on their past rights and wrongs as corrective
justice requires. In his opinion, courts have generally been reluctant to use the
language of needs to justify ‘enriched’ remedies, but they have used it to
recognise the necessity of granting delayed and imperfect remedies. Roach
submits further that the displacement of the dominance of the corrective theory
will encourage courts to develop remedies tied to victims’ needs as a
counterbalance to the inevitability that remedies cannot fully correct structural
wrongs but will often recognise society's needs for delayed or imperfect remedies
(864).
57 Roach (n 18 above) 859.
58
J Murphy in Porter v Warner Co 328 US 395 (1946) 398.
59 Roach (n 9 above) 3-19.