LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

132 Chapter 5
of the defendant too have featured in what the Court has called ‘a
balancing process’. 3
This chapter is divided into two sections. The first section
illustrates the Constitution’s inclination towards the notion of
distributive justice. Distributive justice is implicit in the provisions of
the Constitution that protect what may be construed as rights
conferring collective benefits and the protection it accords to
collective values upon which South Africa is founded. The second
section illustrates the inclination of the South African courts,
especially the Constitutional Court, towards the notion of distributive
justice. This is reflected in the Court’s understanding of what it
considers to be ‘appropriate, just and equitable relief’. This section
discusses the different remedies that the courts have granted so far
and illustrates how these have been influenced by the notion of
distributive justice. However, the interdict is reserved for detailed
consideration in chapter six. This is due in part to its high potential to
promote the notion of distributive justice and also because of the
controversies surrounding this remedy. Chapter six proposes a set of
norms and principles that could be used to determine when the
structural interdict constitutes ‘appropriate, just and equitable
relief’ in any given context. 4
5.2 The 1996 Constitution and distributive justice
Though the South African Constitution does not, in express terms,
prescribe distributive justice, it is implicit in its provisions that this is
the ideal form of justice that is envisioned. In terms of social justice,
the Constitution is premised on the need to realise an orderly and fair
redistribution of resources. 5 The Constitution in this respect
demonstrates a commitment to the establishment of a society based,
amongst others, on social justice. 6 In addition to protecting individual
rights, the Constitution guarantees a number of socio-economic rights
directly linked to social justice. 7 While socio-economic rights have
elements that are capable of extending individual entitlements, they
also make provision for elements that can only be enjoyed in a group. 8
This is especially in respect of the positive elements of these rights
which compel government to undertake affirmative action to realise
3 See Hoffman v South African Airways 2000 11 BCLR 1211 (CC) (Hoffman case).
4 See ch six sec 6.6.
5
See D Davis ‘Adjudicating the socio-economic rights in the South African
Constitution: Towards “deference lite”?’ (2006) 22 South African Journal on
Human Rights 301 304.
6
Preamble.
7 See S Gloppen South Africa: The battle over the Constitution (1997) 58.
8 Examples include elements of such rights as a clean and healthy environment and
also benefits of such rights as housing and health that can be put in place for a
number of people or groups of people.