LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

Reconciling corrective and distributive forms of justice 129
between rights and remedies or in rights and remedies as two
different phenomena. The line that the court follows should be
shaped by the circumstances of each case and the demands of justice
in that particular case. The court should apply relationship theories,
not as two separate concepts from which it must choose one, but as
two points at the opposite ends of a sliding scale. The position of the
court on this sliding scale should be determined by the demands of
every case. The discussion in chapter six will show that in structural
reform litigation, for instance, the demands of justice have always
required that the courts incline more toward the side of the scale
which disentangles rights from remedies. The context within which
the Constitution is enforced therefore matters. 134
4.4 Conclusion
This chapter has laid down the theoretical foundation for
understanding how the philosophy of justice to which a court is
inclined influences its approach to granting remedies. What is clear
from this discussion is that it is important for courts to appreciate that
practical considerations play a role in deciding the notion of justice
to which a court should incline. The notion of corrective justice is
presented as an attractive way of doing justice for the benefit of
persons whose rights have been infringed. This is done by putting such
persons in the position they would have been in but for the violation.
However, restoring the position of the victim may in some cases
present practical problems. It may, for instance, impose burdens on
third parties to the litigation or impose unfairly high costs on the
defendant. This is in addition to having a negative impact on the
public interest.
Sticking to corrective justice will also make the realisation of the
rights dependant on a person’s capacity to access courts and enforce
their rights. In other words, justice will be a preserve of those with
‘the sharpest elbows’. However, this is problematic: Not so many
people, because of poverty and ignorance, have the capacity to
access courts This is in addition to the potential of opening the
floodgates and overburdening the courts arising from the impression
that rights can only be realised through judicial processes.
134 The Constitutional Court has adopted a contextual approach to interpretation of
the Constitution. The Court has, amongst others, used the historical and textual
context to give meaning to the rights in the Bill of Rights. See Brink v Kitshoff NO
1996 2 SA 197 (CC) para 40; and S v Makwanyane 1995 3 SA (CC) paras 17-18. The
content of the rights and the obligations they engender are, amongst others,
dictated by the context leading to the adoption of the Constitution. This is in
addition to the socio-economic and political context in which they are enforced.
Yet every right has to be read in the context of other rights and provisions of the
Constitution. See Government of the Republic of South Africa and Others v
Grootboom and Others 2000 11 BCLR 1169 (CC) para 83.