LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

138 Chapter 5
rights have been violated in order to put him or her in the position he
or she would have been in but for the violation. It could also mean a
remedy that focuses on all interests implicated by the case and
balances these interests against those of the individual plaintiff in the
case. 42
As seen in chapter four, 43 because of the bipolar nature of the
theory of corrective justice, the burdens imposed by a remedy on
third parties are not a factor to consider when choosing remedies. 44
In contrast, distributive justice pays attention to the interests of not
only the parties but also of third parties. The remedy should also be
intended not only for the benefit of the plaintiff but for other
similarly situated persons. This is in addition to protecting the
interests of society at large.
It is on the basis of the above that the Constitutional Court has
taken cognisance of the fact that when constitutional rights are
violated, though the victim may be an individual, society as a whole
is injured. 45 If any remedies are to be obtained for such a violation,
they should be aimed at vindicating not only the victim but also
advancing the interests of society as a whole. 46 Even where an
individual victim is clearly identifiable, any subsequent remedy is
likely to have an impact on other persons and on society at large. 47
It is for this reason that the notion of distributive justice requires that
courts be considerate not only to the interests of the parties, but also
the interests of society at large. 48 It is on the basis of this that the
Constitutional Court has adopted an approach that spreads the
benefits of constitutional litigation beyond the parties in a particular
case. This explains why, for instance, the Constitutional Court has on
some occasions rejected proposed out-of-court settlements between
42
K Roach Constitutional remedies in Canada (1994) 3-4.
43 Sec 4.2.1 above.
44 Roach (n 42 above) 3-21.
45
In the Hoffman case (n 3 above), the Constitutional Court observed that fairness
requires a consideration of the interests of all those who might be affected by the
order. According to the Court, in the context of employment, this will require a
consideration not only of the interests of the prospective employee, but also the
interests of the employer and that in other cases, the interests of the community
may have to be taken into consideration. Para 43.
46
Roach (n 42 above) 3-30.
47 D Shelton Remedies in international human rights law (1999) 52. Shelton submits
that actions against the state test the reasonableness of the state’s activity in its
context, the need to protect society, and the fairness of allowing the victim’s
damage not to go without redress. See also J Cassels ‘An inconvenient balance:
The injunction as a Charter remedy’ in J Berryman (ed) Remedies, issues and
perspectives (1991) 290.
48 I Currie & J de Waal The new constitutional and administrative law (2001) 195.