LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

8 Chapter 1
legislature and the executive in a democracy. 39 According to the
Court:
[A] consideration a court must keep in mind, is the principle of the
separation of powers and, flowing therefrom, the deference it owes to
the legislature in devising a remedy for a breach of the Constitution in
any particular case. It is not possible to formulate in general terms what
such deference must embrace, for this depends on the facts and
circumstances of each case. In essence, however, it involves restraint by
the courts in not trespassing onto that part of the legislative field which
has been reserved by the Constitution, and for good reason, to the
legislature. 40
The need to defer to the other organs of state explains why the Court
has rejected remedies such as the structural injunction. In Minister of
Health and Others v Treatment Action Campaign (TAC case), for
instance, the Court declined to grant a structural interdict because,
in its opinion, ‘the government has always respected and executed
orders of this Court’ and that there was ‘no reason to believe that it
will not do so’. 41
1.1 Influence of corrective and distributive forms of justice
In this book, the author posits that in addition to the nature of socioeconomic
rights and the doctrine of separation of powers, the
Constitutional Court’s approach could be explained by the notion of
justice to which the Court is inclined. In broad terms, the different
remedial approaches adopted by the courts have been directed either
by corrective or distributive forms of justice. The theory of corrective
justice is based on the notion that victims be put in the position they
would have been in but for the violation of their rights. 42 The
corrective justice theory, based on the philosophy of libertarianism,
is not concerned with the impact of the remedy on third parties and
other interests. Its only objective is to restore the position of the
victim. The distributive justice theory, on the other hand, represents
that domain of justice concerned with the distribution of benefits and
burdens among members of a given group. 43 Unlike the libertarianbased
corrective justice, distributive justice is based on the
philosophy of utilitarianism. A court inclined toward the distributive
39 Minister of Health and Others v Treatment Action Campaign 2002 5 SA 721 (CC)
(TAC case) para 137.
40
National Coalition for Gay and Lesbian Equality and Others v Minister of Home
Affairs and Others 2000 1 BCLR 39 (CC) para 66. See also Van Rooyen and Others v
S and Others 2002 8 BCLR 810 (CC) para 48.
41
Para 129.
42 See ch four sec 4.2.1. See also M Modak-Truran ‘Corrective justice and the revival
of judicial virtue’ (2000) 12 Yale Journal of Law & Humanities 250; and K Roach
Constitutional remedies in Canada (1994) 3-17.
43 See ch four sec 4.2.2.