LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

Reconciling corrective and distributive forms of justice 123
phases of a single social process of trying to give meaning to our public
values. Rights operate in the realm of abstraction; remedies in the
world of practical reality. In Fiss’s opinion, a right is a particularised
and authoritative declaration of meaning; it can exist without a
remedy. Fiss views a remedy as an effort of the court to give meaning
to a public value in practice. A remedy is more specific, more
concrete and more coercive than the mere declaration of a right; it
constitutes the actualisation of the right. 100
In some cases, the considerations bearing on what remedies are
available may be different from the principles that determine the
existence of liability. 101 Remedies from this perspective are
conceptualised as being pragmatic, discretionary and political. 102
This approach to remedies is in accord with the concept of interestbalancing,
which requires that remedial effectiveness for the victims
is only one of the considerations; other social interests are also
relevant. 103
The theories that de-link right and remedy have been particularly
attractive in litigation challenging systemic violations arising from
organisational or institutional behaviour. It has been submitted that
the character of litigation challenging systemic violations precludes
the possibility of deducing the remedy for the violation from the
right. 104 This is because in litigation of this nature, it may be hard to
establish concrete responsibility for a violation. And even more
pertinent is the fact that remedial burdens may be borne by persons
not party to the litigation. It is from these two perspectives, as based
on the theories of corrective and distributive justice, that the
relationship between rights and remedies should be discussed.
Scholars such as Gewirtz perceive remedies as having an impact
on the content of the rights themselves. For this reason, it is
submitted that rights and remedies cannot be looked at separately:
‘[T]here is a permeable wall between rights and remedies.’ 105
100 Fiss (n 99 above) 52.
101 Wells & Eaton (n 53 above) xviii xx.
102
Cooper-Stephenson (n 17 above) 5.
103 Gewirtz (n 75 above) 183 adds that under rights maximising, an incompletely
effective remedy is acceptable only if a more effective remedy is impossible to
achieve. In his opinion, under interest balancing, an imperfect remedy is also
permissible when a more effective remedy is deemed too costly to interests other
than those of the victims.
104
See Sturm (n 31 above) 1390.
105 Gewirtz (n 75 above) 678-679.