LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

South Africa: Distributive or corrective justice 155
award should be accompanied by directions to such bodies to use the
damages in stepping up their activities in the affected area. 129
Such damages, it is contended, ‘would not be determined or
calculated by the extent of the infringement or suffering of the victim
but by the cost of deterrence’. 130 This would require evidence on the
likely contribution of the award in ending the infringement. This could
be based on the nature of the identified organisation and the intended
outcomes of its activities. This is in addition to the funding needs of
such an organisation. There should be proof that the organisation is
engaged in activities aimed at ending the violation. This is in addition
to evidence that the funds arising from the damages award will be
used for activities that advance the object of ending the violation.
The organisation receiving the award may be required by the court to
report on how the monies are being used in preventing future
infringements. 131
In socio-economic rights litigation, preventive damages would
serve a good purpose when directed at causes that advance provision
of the denied goods and services to society as a whole, without
targeting specific individuals. Consider, for instance, a case of a
violation of the right of access to adequate housing. Substantial
preventive damages could be directed towards organisations that
assist homeless people to get access to housing, or those that provide
humanitarian assistance to the victims of disaster. This is in addition
to organisations that engage in advocacy and research activities
aimed at promoting the rights. In awarding such damages, however,
care should be taken to ensure that it does not interfere with the
budgetary plans of government, which may lead to delay in delivering
socio-economic services. Nonetheless, where the damages are welldirected
and properly applied, they will go a long way in enhancing
the delivery of socio-economic goods and services.
5.3.2 Declarations
Nature and purpose of declarations
A declaratory order is a legal statement of the legal relationship
129 Varney (n 127 above) 343. Varney has submitted that such awards would be
appropriate in cases where independent bodies have joined the complaint as
amici curiae and where they set out the details of the proposed relief. However,
in my opinion, the organisation to which the award is made need not have been
amicus curiae in the case. It could be one that is suggested either by the parties
or appointed by the court, and one which has agreed to use the award to realise
the above objective.
130
Varney (n 127 above) 343.
131 Varney (n 127 above) 344.