LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

126 Chapter 4
realise that concept. Likewise, it is possible to remain faithful to an [sic]
historical understanding of the concept embodied in a constitutional
norm and yet, over time, to revise drastically the conception through
which it enjoys enforcement. But in any of these circumstances, the
concept governs the conception, for the very purpose of the conception
is the realisation or understanding of the concept. From this
observation it follows that a valid conception should ‘exhaust’ its
parent concept. 119
Though situations are envisioned in which people may disagree on the
remedies accompanying violations of a right, it is contended that all
the remedies will be intended to realise the right, which is the
purpose of the remedies. Remedial theory should, therefore, be
developed with the right(s) it protects in mind. 120
In contrast, judges are urged not attempt to deduce remedies
from the nature of the violation, but rather to fashion them to achieve
compliance with the Constitution in the future. 121 Courts can invoke
the breadth of their remedial powers to justify ordering remedies that
respond to harms and conditions that may not be casually connected
to proven violations, and also to balance all interests affected by the
remedy. 122 It has, for instance, been submitted that ‘[f]actors not
considered in determining liability play an important role in
formulating the public law injunction’. 123 It is therefore important
that both the consequences of the wrongful conduct and the steps
necessary to remedy them are mediated through a complex set of
formal and informal relationships that may be irrelevant to
establishing the legal violation but critical to the development of a
remedy adequate to eliminate that violation. This is because the task
of correcting the defendants' wrongful conduct raises factual and
normative issues that do not arise in the course of determining
119
Sager (n 99 above) 1213 (my emphasis). One could submit that this explains why
people may agree on the need for the protection and advancement of people’s
socio-economic wellbeing and yet disagree on whether or not this should be done
through justiciable rights enforceable through the judicial process.
120 In Sanderson v Attorney-General, Eastern Cape 1998 2 SA 38 (CC); 1997 12 BCLR
1675 (EZ) Kriegler J stated that ‘our flexibility in providing remedies may affect
our understanding of rights’ (para 27). In their comment on this case, Currie & De
Waal (n 85 above) 192 contend that when the courts have wide remedial
discretion to fashion an appropriate remedy, they will be less likely be deterred
from finding a violation than would be the case if their discretion is narrow. While
Currie & De Waal immediately suggest that deciding on a remedy requires a much
more pragmatic approach than that adopted in any other stages of bill of rights
litigation, they mention that many relevant factors at the remedial stage are also
relevant at other stages of the litigation.
121 See Walker (n 99 above) 4.
122
Roach (n 9 above) 3-2 to 3-3.
123 Roach (n 18 above) 888.