LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

146 Chapter 5
(defendant) to determine how to eradicate the violation. General
deterrent remedies of this nature are appropriate when society is not
concerned with the exact steps government will take to comply with
its obligations. 84 However, where the public is concerned with the
exact steps that have to be undertaken to implement and realise the
rights, damages will be of limited use. The public may be interested
in seeing the government adopt practical steps and measures, in
affirmative terms, to end the violation. It could sometimes be through
such measures that real assurance of the violation not re-occurring is
obtained. Also, an award of compensatory damages, consistent with
the principles of corrective justice, is directed at past events. The
award does not address the threat of existing and ongoing violations
posed, for instance, by a delinquent state institution. 85
An award of compensatory damages may also be limited as relief
for the violation of socio-economic rights. This is because of the
diffuse and amorphous nature of socio-economic rights claims. 86
Socio-economic rights litigation seldom involves individualised claims.
Instead, it is always undertaken in the interest of communities and
groups of people. 87 This applies to litigation arising either from
negative but most especially positive violations. The litigants usually
take action to enforce a benefit that is not directed at them alone but
at a multitude of people. In this kind of litigation, it may be
impossible to identify all the individual victims and to determine the
harm that they have suffered as a result of the positive infringement
84
Roach (n 42 above) 3-29.
85 W Trengove ‘Judicial remedies for violations of socio-economic rights’ (1999) 1
ESR Review 8.
86
Trengove (n 85 above) 9.
87 In the case of People’s Union for Democratic Rights and Others v Union of India
and Others (1982) 3 SCC 235, the Indian Supreme Court underscored the special
character of public interest litigation brought for the benefit of the poor.
Bhagwati J observed that public interest litigation as a strategic arm of the legal
aid movement is intended to bring justice within the reach of the poor masses,
who constitute the low visibility area of humanity. According to the Court, this
form of litigation is a totally different kind of litigation from the ordinary
traditional litigation which is essentially of an adversary character where there is
a dispute between two litigating parties, one making a claim or seeking relief
against the other and that other opposing such claim or resisting such relief. The
Court viewed public interests litigation as brought before the court, not for the
purpose of enforcing the right of one individual against another as happens in the
case of ordinary litigation, but it is intended to promote and vindicate public
interest which demands that violations of constitutional or legal rights of large
numbers of people who are poor, ignorant or in a socially or economically
disadvantaged position, should not go unnoticed or without redress (240).