LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

Introduction 13
placed on general writings on the subject of constitutional
remedies. 63 This is in addition to writings on specific remedies such as
declarations, damages and injunctions. 64 This book is aimed at filling
some of the gaps identified in the literature above.
1.4 Outline of this book
This book is divided into five chapters, excluding this introductory
chapter and the conclusion. The book could be divided broadly into
two parts: Part 1 (chapters 2 and 3) deals with objections to the
judicial enforcement of socio-economic rights and the nature of the
obligations they engender. In chapter two it is argued that socioeconomic
rights are as justiciable as civil and political rights. This
chapter also illustrates the fact that, like civil and political rights,
socio-economic rights engender negative obligations. It is also argued
that civil and political rights also require resources to realise. The
chapter, however, acknowledges that socio-economic rights may
require more resources to realise because in most cases violations are
in the form of failure to adopt affirmative measures. Chapter three
discusses the institutional based objections to the judicial
enforcement of socio-economic rights as based on the doctrine of
separation of powers, democracy and the technical competence of
the courts to adjudicate socio-economic rights. It is submitted that
the institutional competence objections are based on a misconception
of the notion of democracy and the doctrine of separation of powers.
Democracy means more than majoritarian democracy and yet the
courts are entitled to intervene in social justice matters in case of
default on the part of other organs of state.
Part 2 (chapters 4, 5 and 6) deals with theoretical and
philosophical foundations of judicial remedies and discusses the
appropriateness of specific remedies. This part also analyses the
63 See J Berryman The law of equitable remedies (2000); A Burrows Remedies for
torts and breaches of contract (1994); Roach (n 42 above); P Schuck Suing
government: Citizen remedies for official wrongs (1983); G Treitel Remedies for
breach of contract: A comparative account (1989); D Walker The law of civil
remedies in Scotland, (1974); R Zakrzewski Remedies reclassified (2005); Cooper-
Stephenson (n 44 above); Gewirtz (n 44 above); D Levinson ‘Rights essentialism
and remedial equilibration’ (1999) 99 Columbia Law Review 857; Shane (n 38
above); C Sunstein ‘Suing government: Citizen remedies for official wrongs. By
Peter Schuck’ Book review (1983) 92 Yale Law Journal 749.
64 E Borchand Declaratory judgments (1941); O Fiss The Civil rights interdict (1978);
J Cassels ‘An inconvenient balance: The injunction as a Charter remedy’ in
Berryman (n 44 above) 272; Chayes (n 44 above) 1979; T Eisenberg & S Yeazell
‘The ordinary and the extraordinary in institutional litigation’ (1980) 93 Harvard
Law Review 465; Fletcher (n 24 above); Note: ‘Implementation problems of
institutional reform litigation’ (1998) 91 Harvard Law Review 428; M Pilkington
‘Damages as a remedy for infringement of the Canadian Charter of Rights and
Freedoms’ (1984) Canadian Bar Review 517; and Special Project ‘The remedial
process in institutional reform litigation’ (1978) Columbia Law Review 784.