LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

164 Chapter 5
because of the immense amounts of resources required to match the
dynamic standards of human development. It would, therefore, be
unrealistic to apply the ethos of corrective justice to socio-economic
rights by demanding that successful litigants be put immediately in
the position they would have been in but for the violation.
In South Africa, the inclination towards the theory of distributive
justice is also reflected in the Constitutional Court’s reluctance to
award constitutional damages. Although damages present themselves
as an attractive remedy to vindicate constitutional violations, they
suffer from a number of defects. Damages paid to an individual will
deprive the state of resources that would have been used to provide
services for the general good of society as a whole. Consider a case
where damages are paid to an individual after a finding that his
housing rights have been violated. An order awarding compensatory
damages would in effect require that enough be made available to
build a house for that individual and punitive damages would take
large amounts from the state in order to deter future violations of the
same kind. These funds may be taken from an already existing general
housing budget, thereby creating a deficit. This deficit, if substantial,
will cripple the housing programme and delay the provision of housing
to all members of society in need of it. 183
Declaratory relief very well presents itself as appropriate in some
circumstances and may promote distributive justice. Its strength lies
in its deferential nature, which gives the state latitude to choose
what it considers to be the most appropriate way of undoing a
constitutional violation. This is very important in those cases where
there are various equally effective ways of undoing a violation. 184 The
court would very well save itself from the agonising task of having to
make choice, which may sometimes require extra-legal
considerations. However, as this chapter has demonstrated, the
declaration is only effective if the government is committed to the
rule of law and accords court orders the respect they deserve. The
South African government is yet to prove itself as matching such a
description. Recalcitrance towards court orders has been detected in
a number of cases, which makes the declaration an inappropriate
remedy in those cases. One should, therefore, explore the
appropriateness of other remedies such as the interdict, as discussed
in the next chapter.
183
According to Pilkington (n 125 above) 540, rather than award damages in class
actions, in which damages may be hard to assess for every individual, a court
might think it appropriate to direct the expenditure of public funds to
restructuring the institution so that future infringements will be avoided.
184 See Eldridge case [1997] 3 SCR 624, 151 D.L.R. (4th) 577 para 96.