LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

154 Chapter 5
and power to bring and win a law suit. In the Fose case, the
Constitutional Court took note of the effect that resource scarcity has
on the selection of remedies. According to the Court, where there are
multifarious demands on the public purse and the machinery of
government that flow from the urgent need for economic and social
reform, it seems to be inappropriate to use these scarce resources to
pay punitive constitutional damages to plaintiffs who are readily
compensated for the injuries done to them with no real assurance
that such payment will have any deterrent or preventive effect. 124
It could be argued that the award of substantial punitive damages
against government may induce change. Nonetheless, as mentioned
above, it is also true that other remedies such as interdicts may lead
to such change without substantial cost on the part of the state. 125
This does not mean, though, that the award of damages should be
ruled out completely as means of redressing systemic violations. The
award of damages could still be used in creative ways that eliminate
systemic violations and lead to structural reforms.
There is therefore a need for the Constitutional Court to be more
creative and to explore the full potential of damages to advance the
notion of distributive justice. In socio-economic rights litigation it
may be possible for damages awards to be channelled to causes that
advance the realisation of these rights without necessarily putting
money in the pockets of individuals. 126 The Court has been urged to
explore the possibility of awarding what has been described as
preventive damages in order to counter widespread and persistent
violations. 127 Preventive damages are damages awards that should go
not to the individual victim, but to bodies carrying out activities
designed to deter future infringements of specific rights. 128 The
124 Fose case (n 99 above) para 72. See also K Cooper-Stephenson ‘Principle and
pragmatism in the law of remedies’ in Berryman (n 47 above) 32.
125
C Whitman ‘Constitutional torts’ (1980) 79 Michigan Law Review 5 50, as quoted
by M Pilkington ‘Damages as a remedy for infringement of the Canadian Charter of
Rights and Freedoms’ (1984) Canadian Bar Review 517 539. See also Rail
Commuters case (n 51 above) para 81.
126 See Trengrove (n 85 above).
127 H Varney ‘Forging new tools: A note on Fose v Minister of Safety and Security CCT
14/96’ (1998) 14 South African Journal on Human Rights 336 343.
128 Indeed, parliament has seen the relevance of this form of relief and made
provision for it as one of the remedies that could be granted under the Promotion
of Equality and Prevention of Unfair Discrimination Act 2000; see sec 21(2)(e) of
this Act.