LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

142 Chapter 5
unfit for cabin work, this was no justification for discrimination
against all HIV-positive people. 67 The Court considered instatement
to be the most appropriate relief in the case of a prospective
employee who had been denied employment on the basis of
unconstitutional grounds. 68 The Court considered instatement to be
an expression of the general rule that where a wrong has been
committed, the aggrieved person should, as a general matter and as
far as is possible, be placed in the same position the person would
have been but for the wrong suffered. 69
However, the Court was quick to add that the remedy would have
wider application beyond the individual victim and would only be
granted where practicable. 70 It observed that instatement would
serve a general deterrent role as it strikes effectively at unfair
discrimination. This is because ‘[i]t sends a message that under our
Constitution discrimination will not be tolerated and thus ensures
future compliance’. 71 It could, for example, be argued that large
corporations may have been willing to pay extensive financial
compensation in lieu of employing HIV/AIDS-positive persons.
The approach in the Hoffman case shows that courts should not be
dismissive of an individualised remedy in its entirety if there is
evidence that it would have wide implications by, for instance,
promoting deterrence. This is because deterrence forestalls future
violations of the rights, which benefits society as a whole. However,
this does not mean that the court should completely disregard the
impact that individual remedies, such as damages, may have on other
legitimate interests.
5.3.1 Purpose of damages — distributive or corrective justice?
The awarding of damages is the oldest kind of remedy recognised and
enforced by the common law to redress legal wrongs. Their award,
especially as compensatory damages, has for a long time been used to
promote the notion of corrective justice. Compensatory damages
serve the objectives of corrective justice by making the victim of a
violation ‘whole’ again. This is by putting the victim, as much is
possible, in the position that he or she would have been in but for the
violation. 72 Compensatory damages may be awarded either as
67 Para 30.
68
Para 50.
69 Para 50.
70 Para 53.
71
Para 52.
72 M Wells & T Eaton Constitutional remedies: A reference book for the United
States Constitution (2002) 170. In this respect, the awarding of damages presents
itself as backward-looking. It focuses on past events, mainly the harm that has
been suffered and the extent of the defendant’s contribution in liability terms.