LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

128 Chapter 4
‘appropriate, just and equitable relief’. 129 A remedy that is
impossible to implement, however beautifully crafted, does not
answer to the needs of an ‘appropriate, just and equitable’ remedy.
This, though, does not mean that the right disappears completely
from consideration; instead, the right has to be kept in mind by the
court. The remedy and enforcement procedures chosen by the court
must be those that lead to the realisation of the right, if not in the
short run, at least in the long run.
The process above should not be viewed as a way of limiting a
right; rather it is a process of ascertaining the best way of enjoying
the right in the prevailing circumstances. This exercise therefore
differs from the process of limiting rights as envisaged by section 36
of the Constitution. 130 Limitation of the right once proclaimed, on the
one hand, devalues the right to the extent of the limitation. In
contrast, interest balancing may be preceded by a full recognition of
the rights followed by what is seemingly a weak remedy. The weak
remedy may be the best way of recognising the right in the
circumstances. 131 As is submitted above, 132 the school desegregation
cases provide a good example of how weak remedies may actually be
intended to protect the rights themselves. However, as already
stated, this is not to suggest that the remedies will not in any way
impact on the nature of the right. 133 This, though, may be
circumstantial and arise on a case-by-case basis. Yet the impact,
though negative, is always considered the best way of enjoying the
right in the circumstances.
Furthermore, one could argue that there is no need for the courts
to adopt one line of thought, either believing in a causal relationship
129
In Modder East Squatters v Modderklip Boerdery; v President of the Republic of
South Africa v Modderklip Boerdery 2004 8 BCLR 821 (SCA) (Modderklip case No
1), while quoting the dicta of Justice Kriegler in the Fose case (n 90 above) para
94, Harms JA noted that courts should not be overawed by practical problems,
they should attempt to synchronise the real world with the ideal construct of a
constitutional world and mould an order that will provide effective relief (para
42).
130 See ch three sec 3.2 for a detailed discussion of the sec 36 approach.
131 On the meaning of weak remedies and their usefulness, see generally M Tushnet
‘Enforcing socio-economic rights: Lessons from South Africa’ (2005) 6 ESR Review
2 and M Tushnet ‘Social welfare rights and the forms of judicial review’ (2004) 82
Texas Law Review 1895.
132
Sec 4.2.2.
133 In this respect, one would agree with Cassels (n 108 above) 288 291 that remedial
definition is inextricably interwoven with substantive definition and maintaining
flexibility at both levels allows the courts to take a far more subtle approach to
its task. Cassels contends that the assumption that interest balancing can be fully
accommodated when defining the right, and that, once defined, the rights must
be fully vindicated, is misconceived. In his opinion, this would undermine the
need to approach constitutional rights issues with the necessary delicacy and
subtlety. One understands Cassels to mean that the process of balancing the
interests that delicacy may demand should be continued to the level of selecting
an appropriate remedy.