LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

130 Chapter 4
It is at this point that the theory of distributive justice becomes
most relevant. The theory of distributive justice may be used to
engage a process of interest balancing which requires consideration of
interests other than those of the plaintiff. The distributive justice
theory is more flexible and bent towards a practical consideration of
the impact of the remedy. This theory of justice, as I submit in the
next chapter, is relevant to situations that require a re-distribution of
resources, as is the case in South Africa. The notion of distributive
justice places an individual as part of his community and whose
welfare is dependent on the welfare of everybody else. It is important
that this situation be reflected in the remedies that courts grant for
the infringement of rights.
However, this does not mean that corrective justice is completely
irrelevant. In respect of those cases which are discrete and where the
victims have suffered at the hands of identifiable government
officials, they should be put in the position they would have been in
but for the violation. For instance, it is submitted in chapter five that
under such circumstances, compensatory damages may become an
appropriate remedy. 135 This should be so especially in those cases
which do not give rise to structural problems that require structural
reform, as is discussed in chapter six.
It is also important for the courts to consider the remedies
differently from the relevant rights by separating the two processes.
This is because linking the remedies to rights determination may make
it hard for the courts to factor in the interests of third parties, if this
is considered to have a negative impact on the maximisation of the
right. This, however, does not mean that the right is completely
irrelevant at the remedy-determination stage. It has been submitted
in this chapter that a court’s first objective should be to maximise the
right. This should, however, be done only where the case is of such a
nature that maximising the right will not be at the cost of other
legitimate interests. In addition to this, it should be clear to the court
that the maximisation of the right will not create insurmountable
obstacles at the remedy implementation stage.
What remains to be seen is how the South African courts have
been influenced by the theories of both corrective and distributive
justice. This is what the next chapter sets out to investigate.
135 See ch five sec 5.3.1.