LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

14 Chapter 1
approach of the South Africa courts on the issue of remedies. Chapter
four discusses the nature of the obligations engendered by the socioeconomic
rights in the South African Constitution and the approach
the courts have taken in interpreting these rights. The chapter makes
suggestions regarding the manner in which the minimum core
obligations approach should have been applied by the Constitutional
Court and the reasonableness review approach made more effective.
Chapter four sets out the philosophical basis of remedies, defined,
amongst others, by the notions of corrective and distributive justice.
It is argued that the kinds of remedies a court will deem appropriate
are, among other factors, determined by the notion of justice which
the court intends to promote. It is illustrated that corrective justice
is individualistic, backward-looking, discreet and aimed at putting the
victim in the position they were in before the violation. On the other
hand, distributive justice has elements of communalism, is forwardlooking
and produces remedies with a broader perspective.
Chapter five illustrates the place of the South African courts with
regard to the notions of justice described in chapter four. It is
illustrated that the South African courts have inclined toward
distributive justice as dictated by the socio-economic circumstances
in which the Bill of Rights is enforced. The chapter illustrates the fact
that the South African Constitution is itself encrusted with ethos of
distributive justice as seen from the manner in which the socioeconomic
rights provisions are crafted. These provisions define the
rights and impose limitations that cut back on the potential to enjoy
the rights as individual rights; the rights are more programmatic than
immediately available to individuals.
Chapter six discusses the structural interdict, whose emergence
the author ascribes to the prominence of the notion of distributive
justice. This chapter reviews the approach of the South African courts
with regard to grant of the structural interdict, contrasting between
the High Courts and the Constitutional Court. The biggest contribution
of this chapter is its definition of a set of norms and principles that
could guide the courts in determining when a structural interdict is
appropriate.