LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

South Africa: Distributive or corrective justice 157
Declaratory orders provide the government with adequate
guidance about the standards that ought to be maintained to comply
with the constitution. They are therefore very useful in those cases
where the violation of rights arises from mere inattentiveness to the
constitutional standards, sometimes on the pretext of (or actual) lack
of clarity. Clarity of the legal standards will expose any violation that
may have occurred thereby compelling government to fix it. 141
Declarations have also proved very effective in cases where a
violation has not yet occurred but there is a threat of it occurring.
This is especially so in cases where the threat of infringement arises
from uncertainty about the law. 142 The litigant need not prove that a
right has been violated, and there is no need to prove that actual
harm has been suffered as a consequence. 143 All that a litigant has to
prove is that his or her fear is not hypothetical but is based on a
reasonable apprehension of harm. It is also not necessary to
demonstrate who exactly would suffer as a result of the violation: ‘As
long as there is reason to believe that the declaration could prevent
future … violation, the court should consider issuing declaratory
relief.’ 144
It is important to note, however, that while declaratory relief
should not be prescriptive as regards the options that are available to
the state in remedying the violation, it should be crafted in a manner
that clarifies all the legal uncertainties. Where the obligation to
remedy the violation falls on more than one person, it is important
that what has to be done by every person to remedy the violation be
detailed in clear and certain terms. This is very important in contexts
141 See K Roach & G Budlender ‘Mandatory relief and supervisory jurisdiction: When
is it appropriate, just and equitable’ (2005) 122 South African Law Journal 346.
142 It may not be an effective remedy where the violation has already taken place
and injury suffered. However, a declaration is also appropriate to past violations
where there is no longer a feasible remedy available. In President of RSA v Hugo
1998 2 SA 363 (CC); 1997 6 BCLR 708 (CC), Kriegler J dissented from the
majority’s conclusion that the pardon of convicted mothers and not fathers did
not amount to unfair discrimination. The only remedy he considered appropriate
was a declaration. There would indeed have been no other remedy because the
pardon could not be reversed. Neither could the President be ordered to release
fathers too, as this is a discretionary remedy. See I Currie & J de Waal The Bill of
Rights handbook (2005) 214. However, such a declaration becomes most relevant
in those cases where, though the violation has occurred, there is a likelihood of it
occurring and victimising other people. Roach (n 42 above) 12-11 uses the
Canadian case of Howard v Stony Mountain [1984] 2 FC 642 (CA) to back this
submission. In this case, a declaration that inmates were entitled to legal
representation during disciplinary hearings was made. This was despite the fact
that the prisoner had already been convicted of a disciplinary offence and had
served his sentence. The declaration was deemed useful to prevent disputes in
the future. Applying this to Kriegler’s decision, it could be submitted that, unless
the President was given guidance, it was likely that he would exercise his powers
of pardon in a discriminatory manner in future, to the prejudice of certain
sections of society.
See schedules 4 & 5 of the Constitution
143
Roach (n 42 above) 12-5.
144 Roach (n 42 above) 12-8.