LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

Reconciling corrective and distributive forms of justice 127
liability, such as the effectiveness and practicability of various
remedial options. 124
4.3.1 Synchronisation of the rights and remedies debate
While one may be inclined toward the view that rights and remedies
are two different notions, it is, in my view, impossible to understand
remedies without understanding the constitutional rights
themselves. 125 Though rights and remedies may be kept separate, it
is not true that they are governed by fundamentally different
considerations. ‘Fundamentally different’ is too extreme in my
opinion. It is submitted that the first objective of any court
adjudicating constitutional rights should be to craft remedies that
realise the right in full. However, there could be circumstances where
the remedial approach that realises the rights fully adversely affects
other legitimate interests, imposes burdens that are impossible to
discharge, or undermines the right(s) in the long run. In such
circumstances the court is justified to consider the issue of the most
appropriate remedy separately from the right in issue. 126 The court
should confront the practicalities on the ground and assess their
impact on the remedy. 127 The prevailing circumstances, if not
considered, may have the potential of undermining or even making it
impossible to implement the selected remedy. 128 This is very
important as it is one of the factors that define what is meant by an
124 Sturm (n 31 above) 1364. Sturm submits further that the court cannot simply rely
upon the processes used to generate a liability decision to formulate a structural
remedy, because the trial on the merits does not provide a sufficient legal or
factual basis for adopting a particular remedy.
125
Wells & Eaton (n 53 above) xix.
126 In Milliken v Bradley 433 US 267 (1977), eg, the United States Supreme Court
observed that the nature of remedies is determined by the nature and scope of
the constitutional violation; the remedy must therefore be related to the
condition alleged to offend the Constitution. According to the Court, the decree
must be designed as nearly as possible to restore the victim to the condition they
would have occupied in the absence of the wrong. But the courts must take into
account the interests of the state and local authorities in managing their own
affairs, consistent with the Constitution (281).
127
According to Shelton (n 12 above) 53, the question of possible non-compliance,
eg, is very important; it may be necessary for the ideal to adjust to the reality of
popular opposition to the legal rule.
128
Cooper-Stephenson (n 17 above) 2 3 has submitted that an analysis of the law of
remedies which accommodates the practicalities of implementation contributes
to the understanding of the very nature of law. He contends that the taxonomy of
remedies should move from a realistic appraisal of the defendant target of the
remedy, through a purposive analysis of the goal of the remedy, to matters of
legal principle and procedural regulation, and back to implementation
considerations involving a realistic analysis of remedial functioning. Schucks has
described as the ‘pure rights’ conception an approach that concentrates on the
role of the court in identifying individual rights while downplaying their
implementation. Schucks describes this approach as unrealistic and naïve. See
Sunstein (n 87 above) 754.