LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

Reconciling corrective and distributive forms of justice 115
implicated by the case must be considered and the impact of the
remedy on them assessed.
Due to the need to avoid repetition of the same conduct,
distributive justice allows remedies to focus on the future and on the
needs of the community as a whole. This should be contrasted with
corrective justice, which is backward looking and focuses on the
individual claimant in order to address past wrongs. It is true that the
process of administering distributive justice may begin with a
pronouncement on the legal consequences of past actions. However,
unlike the backward-looking liability rules of corrective justice,
distributive justice will use such past actions as a basis to determine
future actions. 60 In this setting, the role of the court is not to
determine where fault lies; it is to develop a plan that fairly and
effectively realises the rights not only at the time of the case but in
future as well. 61 The court will identify the needs that have to be
addressed, and select remedies in response to them. This is important
because remedies based on needs are more directly relevant to the
future of those who have been wronged in the past. 62
The remedy guaranteed will not necessarily be one that flows
from the wrong. It must be a remedy that satisfies all the interests
concerned. The emphasis is not on correction of the wrong; complete
correction may be ignored for the sake of addressing other interests.
Both corrective and distributive forms of justice demand that where
a state agency is found to have violated constitutional rights, the
violation must be stopped. However, where distributive justice differs
from corrective justice is that it will insist on full correction of the
violation ‘absent special circumstances’. 63 ‘Special circumstances’
means those circumstances which may impact on the remedy. This
may, for instance, include the costs associated with the
implementation of the remedy. 64 Special circumstances also include
factors that may affect interests other than those of the parties in the
court case. Such other interests have to be balanced against those of
the parties. Balancing of these interests may not be possible where a
judge insists on full correction of the wrong. This is because once a
violation has been found, remedial options should not be constrained
by the corrective requirements of causation and restoration as all of
60 See Chayes (n 3 above) 1294.
61
Sturm (n 31 above) 1393.
62 Roach (n 18 above) 864.
63 M Wells & T Eaton Constitutional remedies: A reference book for the United
States Constitution (2002) xxv.
64 Wells & Eaton (n 53 above) xxv give the example of an injunction that would be
especially disruptive to legitimate state goals as in the case of an employee who
is fired and whose reinstatement would produce turmoil in the office. The
injunction would be denied in that case.