LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

228 Chapter 7
7.1 Influence of the normative nature of the rights on
remedies
The difficulties that courts face in devising remedies for socioeconomic
rights violations should be studied in relation to the
normative nature of these rights. Some scholars, as seen in chapter
four, 2 submit that rights and remedies must be kept separate, as the
considerations in determining the nature of the two differ. In my
opinion, however, rights and remedies are not two fundamentally
different notions that have to be determined independently of each
other. In developing appropriate, equitable and just remedies, the
rights intended to be protected must constantly be had in mind. It is
therefore not possible to study or critique remedies for socioeconomic
rights violations without understanding the normative
nature of these rights and the obligations they engender.
There is no doubt that, just like civil and political rights, socioeconomic
rights are justiciable. Both categories of rights engender
both positive and negative obligations and have budgetary
implications. 3 In spite of this, as seen in chapter two, 4 it cannot be
denied that the enforcement of socio-economic rights poses more
difficulties in comparison to the enforcement of civil and political
rights. 5 This is especially so as regards the enforcement of the positive
obligations that socio-economic rights engender. These positive
obligations call for substantial resources to realise, and give rise to
separation of powers based concerns. Additionally, socio-economic
needs also require to be prioritised since the available resources may
not be adequate to meet all the needs. 6
The fundamentally positive nature of socio-economic rights
explains why the courts have not been as robust in finding remedies
for these rights as they have been with regard to civil and political
rights. 7 Civil and political rights are believed to require less positive
2 Sec 4.3. See O Fiss ‘Foreword: The forms of justice’ (1979) 93 Harvard Law
Review 1; F Sager ‘Fair measure: The legal status of underenforced constitutional
norms’ (1978) 91 Harvard Law Review 1212; and D Walker The law of civil
remedies in Scotland (1974).
3 Ch two sec 2.3.
4
Sec 2.2.
5 See also F Coomans ‘Some introductory remarks on the justiciability of economic
and social rights in a comparative constitutional context’ in F Coomans (ed)
Justiciability of economic and social rights: Experiences from domestic systems
(2006) 2.
6 A Sachs ‘The judicial enforcement of socio-economic rights: The Grootboom case’
in J Peris & S Kristian (eds) Democratising development: The politics of socioeconomic
rights in South Africa (2005) 144.
7 See P de Vos ‘Pious wishes or directly enforceable rights?: Social and economic
rights in South Africa’s 1996 Constitution’ (1997) South African Journal on Human
Rights 67 71.