LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

162 Chapter 5
concluded that it was appropriate and just in the circumstances that
‘there be a declaration … coupled with a mandatory interdict to
implement the constitutional rights’. 170
In the South African context, the government’s response to court
orders in some cases brings it very close to fitting the description of a
recalcitrant government. 171 The recent decision regarding the rights
of prisoners to access anti-retroviral drugs presents clear evidence of
such recalcitrance. 172 While publicly proclaiming its willingness to
abide by court orders, 173 there was evidence of foot dragging on the
part of government in this case. This is irrespective of the fact that
the court applied the most intrusive relief in the form of the
structural interdict. This means that declaratory orders alone in this
case would have gone unnoticed. The government was keen to exploit
procedural, yet untenable legal technicalities, to delay the
implementation of the orders of court by filing appeals in a serial
manner. 174
5.4 Conclusion
The inclination by South African courts toward the notion of
distributive justice is an indication of the context in which the courts
enforce human rights. Constitutional provisions, including those on
socio-economic rights, cannot be construed outside the social,
economic and political context in which the Constitution operates.
The current South African context, characterised by high levels of
poverty and constrained state resources, makes it impossible to grant
everyone individual socio-economic goods and services on demand.
There are wide societal interests that have to be considered which
may dictate the negation of the individual interests of the litigant.
This is where distributive justice becomes very useful in the remedial
approach of the courts.
Criticisms of the failure of the remedies of the Constitutional
Court to extend individualised entitlements in socio-economic rights
170
662.
171 See South Africa justice sector and the rule of law, Report by AfriMAP and Open
Society Foundation for South Africa, sourced at http://www.soros.org/resources/
articles_publications/publications/sajustice_20060223/afrimapreport_20060223
.pdf (accessed 18 October 2006). This report discusses a number of cases where
government has, in a recalcitrant manner, declined to implement court orders
(29-31).
172 EN and Others v Government of RSA and Others 2007 1 BCLR 84 (D) (Westville
case). See ch six sec 6.4 for a detailed discussion of this case.
173
See, eg, G Stolley ‘Prisons dept reveals plan for Aids drugs’ Mail & Guardian 11
September 2006.
174 See ‘Westville ARV appeal a matter of principle’ Independent Online 26 August
2006, available at http://www.iol.co.za/index.php?set_id=1&click_id=125&art_
id=qw1156573982766B232 (accessed 2 March 2007).