LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

122 Chapter 4
government that bears the obligation that has been violated. This is
not possible where the court ignores the character of the defendant
and the nature of the obligations of that defendant.
4.3 Relationship between rights and remedies
The relationship of rights and remedies has been the subject of
controversy between scholars for quite some time. While some
scholars believe that rights and remedies are interlinked, others insist
that the two should be de-linked and considered separately. It is
worthwhile exploring this debate because of its impact on the kinds
of remedies that a court may grant and its relationship with the ethos
of justice. The relationship that different scholars ascribe to rights
and remedies has, amongst others, been determined by the notion of
justice to which they subscribe. Linkage between rights and remedies
makes sense from the perspective of the theory of corrective justice.
This is because remedies under this theory of justice are supposed to
restore the right in its entirety.
A judge who believes in the linkage between rights and remedies
will therefore restrict himself or herself to those remedies that
maximise the right and will not pay attention to considerations not
connected to the right, even if these impact on the implementation
of the remedy. This is the basis of the theory that the only reason
remedies exist is to serve to implement substantive rights, and that
the remedy should, as far as possible, serve to vindicate the right in
issue. 97 This approach is in accordance with the concept of rights
maximisation which requires that the only question that a court asks
after finding that there is a violation is one of which remedies will be
most effective to the victims. 98 Considerations such as the costs of
the remedy, unless they impact on the effectiveness of the remedy,
are irrelevant.
Distributive justice, on the other hand, supports the de-linking of
right and remedy. This is because this form of justice allows judges,
when choosing a remedy, to take into account factors that may not
necessarily relate to the nature or objects of the rights. This view is
supported by a number of scholars. 99 It is contended by some scholars
that rights are idealistic and can exist on their own. However, they
need to be transformed into reality by the use of remedies. It is for
this reason that Fiss submits that rights and remedies are but two
97 Cooper-Stephenson (n 17 above) 5.
98
See generally Gewirtz (n 75 above).
99 See O Fiss ‘Foreword: The forms of justice’ (1979) 93 Harvard Law Review 1; F
Sager ‘Fair measure: The legal status of underenforced constitutional norms’
(1978) 91 Harvard Law Review 1212; D Walker The law of civil remedies in
Scotland (1974); and Sturm (n 31 above).