LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

CHAPTER
7
CONCLUSION
Although the South African Constitution protects socio-economic
rights as justiciable, their enforcement is still controversial. This is
evident in defining the nature of the obligations these rights
engender, and in finding and implementing relief to remedy their
violation. I have demonstrated in this book the sources of some of
these controversies, which include the normative (real and perceived)
nature of socio-economic rights. In addition, there is the separation
of powers-based concern. 1 Normatively, the realisation of socioeconomic
rights requires far more resources and yet, procedurally,
the courts may not have the institutional capacity to deal with some
of the issues to which the enforcement of these rights gives rise.
These factors explain not only the approach of the South African
courts in interpreting the obligations engendered by these rights, but
also in determining the remedies that follow their violation. However,
other than the nature of the rights, the approach of the courts, and
particularly that of the Constitutional Court, also has been influenced
by the notion of justice to which the courts are inclined. The
Constitutional Court has inclined more towards the theory of
distributive justice as opposed to corrective justice.
The purpose of this chapter is to draw conclusions emerging from
the discussions of the factors as identified above. It also makes
recommendations on how best the socio-economic rights in the
Constitution can be enforced, and appropriate remedies found for
their violation. The chapter is divided into three sections. The first
section draws conclusions on the way the normative nature of the
rights has influenced the remedies for their violation. The second
section draws conclusions on the impact of separation of powers
based concerns and how these could be overcome. The last section
discusses the influence of the theories of justice in defining
‘appropriate, just and equitable relief’.
1 Ch two.
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