LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

South Africa: Distributive or corrective justice 145
level to deter future infringement; 81 as submitted above. If damages
are minimal and ‘affordable’ to certain actors, it may fall within their
accepted cost-benefit analysis.
Weaknesses with the deterrence (distributive) effect of damages
There are, however, a number of weaknesses in the deterrence effect
as based on the concept of law and economics. First, sometimes
damages are not calculated on the basis of the gains that the violator
may derive from the infringements. This is because, in some cases it
may be impossible to express the gains in monetary terms. This makes
it hard to calculate, with precision, the amount of damages that
outweigh the benefits to be derived from the violation. The damages
awarded may therefore be less than what would lead to deterrence or
may be overly excessive. In the same line, when government infringes
rights, for instance, it may not view the benefits of such infringement
in monetary terms. Yet the political gains derived may in the
government’s opinion outweigh any damages likely to arise from a
finding of a violation. The government may therefore be prepared to
embark on such conduct irrespective of the possibility of damages
being awarded against it.
Secondly, there is always no guarantee that the award of damages
against the defendant will deter other potential defendants. 82
Persons engaging, or intending to engage, in similar conduct may be
much wealthier or deriving much more in terms of gains than the
defendant. They may therefore not suffer as a result of an award of
damages if caught. This is in addition to the conviction on the part of
such other violators that they will never be caught or dragged to
court. Indeed, the greatest deterrent is the likelihood that offenders
will be apprehended, convicted and punished. 83 If the offenders do
not anticipate being caught and convicted, they will not be deterred
by damages awarded against defendants who have been caught and
convicted. Additionally, whether or not the possibility of being
dragged to court is high is also dependent on the character and status
of the victims of the violation. Poor, uneducated and vulnerable
victims may not have the capacity to sue the wrongdoers for damages.
Persons violating the rights of such victims will therefore continue to
do so with impunity as they will not anticipate any conviction or
apprehension.
Another weakness of awarding damages is that it offers only
general deterrence because it leaves it to the government
81 Shelton (n 47 above) 41.
82 J Park ‘The constitutional tort action as individual remedy’ (2003) 38 Harvard
Civil Rights-Civil Liberties Review 393 400.
83 Per Chaskalson CJ in the Makwanyane case (n 30 above) para 122.