LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

South Africa: Distributive or corrective justice 153
protected and also averted a danger of violation of the occupier’s
right of access to housing. At the same time, the award was in the
interest of the government. Government was saved the burden of
having to provide 40 000 people with immediate alternative
accommodation. Indeed, the SCA described its order as an aversion of
a social problem: ‘The immediate social problem is solved while the
medium and long-term problems can be solved as and when the state
can afford it.’ 118
The outcome of this case was a win-win solution for all the parties
involved. The Court managed to balance the competing proprietary
rights of a landowner and the socio-economic rights of unlawful
occupiers in the context of evictions. 119 The order in this case has
been described as reflecting a quintessentially post-1994 perspective
on eviction: ‘The applicant is entitled to implementation of his
eviction order but, for it to be carried out, provision has to be made
for the future accommodation of the unlawful occupiers.’ 120 The case
is important also because it shows how the determination of the most
appropriate remedy is highly dependent on the context and
circumstances of a particular case. Where the rights of a number of
people, including applicants and respondents, have been violated,
practical considerations may dictate a win-win situation for all the
parties involved. This requires the court to be very creative and to
develop existing public and private law remedies to protect the
infringed rights. 121
Exhausting the full potential of damages
As seen above, 122 the Constitutional Court has been cognisant of the
fact that damages awards may deplete the already strapped state
resources. In socio-economic rights terms, for instance, damages may
be fatal because they direct monies that would have been used for the
common good into the pockets of the very few who make it to court.
Rather than place money in the pockets of individuals, it may be wise
to adopt remedies with broader social benefits, such as interdicts. 123
I do subscribe to the submission that when funds are limited, it may
make more sense to require that any available money be used directly
to improve the conditions which caused the problems and which may
potentially continue to give rise to future wrongs. This approach is
preferable to repaying a particular victim who has had the resources
118
As above.
119 A Christmas ‘Property rights of landowners vs socio-economic rights of occupiers’
(2004) 5 ESR Review 13.
120
Van der Walt (n 19 above) 150.
121 For a detailed discussion of this case, see also A Pillay ‘Access to land and
housing’ (2007) 3 International Journal of Constitutional Law 544.
122
Sec 5.3.1.
123 Shelton (n 47 above) 79.