LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

CHAPTER
5
SOUTH AFRICA: DISTRIBUTIVE
OR CORRECTIVE JUSTICE?
5.1 Introduction
This chapter discusses the impact that the notions of both the
corrective and distributive justice have had on South Africa’s
approach to constitutional remedies. 1 The South African courts have
sought to focus their remedies beyond the individual litigant and to
grant remedies that advance constitutional rights as extending
collective or group benefits. Though vindication and compensation of
the victim has been acknowledged as a fundamental objective of
constitutional litigation, it is not the only objective that is to be
achieved. The interest that society has in the protection of the rights
in the Constitution, and the protection of the values of an open and
democratic society based on equality, freedom and human dignity,
too are precepts that the courts wish to advance. The courts have also
considered the impact of proposed remedies on the defendant and
how the relationship between the defendant and the plaintiff would
be affected.
To protect the constitutional values, the courts have, in some
cases, awarded plaintiffs relief in circumstances where they may have
not deserved it. 2 The Constitutional Court has in some cases been
inclined towards putting victims of constitutional violations in the
position they would have been in had the violation not occurred. But
in the same cases, the interests of the community and the interests
1 Parts of this chapter are reproduced in The South African Law Journal. See C
Mbazira ‘“Appropriate, just and equitable relief” in socio-economic rights
litigation: The tension between corrective and distributive forms of justice’
(2008) 8 South African Law Journal 64.
2
In Police and Prisons Civil Rights Union and Others v Minister of Correctional
Services and Others Case 603/05 (unreported), the High Court showed a
determination to protect the rights in the Constitution even if this would benefit
litigants that had themselves been found guilty of disregarding the Constitution.
Plasket J stated that, although the applicants had displayed a lack of respect for,
and undermined, the Constitution and its democratic processes and institutions,
he considered it necessary, in order to vindicate the Constitution, to grant the
bulk of the relief sought (paras 82 & 83).
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