LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

Conclusions and recommendations 229
action than socio-economic rights. 8 Expressed in terms of a sliding
scale reflecting positive and negative dimensions, one would conclude
that both categories of rights fit on this scale. The difference,
however, is that socio-economic rights slide more towards the
positive dimension side of the scale. At the very least one could
conclude that the majority of cases contesting these rights touch on
their positive aspects. In contrast, civil and political rights slide more
towards the negative side. 9
It should be noted that courts are more comfortable enjoining
states by prohibiting certain conduct than by requiring that positive
action be taken. 10 Enforcing negative obligations is believed to result
in less interference in the spheres of the other organs of state, 11 and
the questions raised when enforcing negative obligations are not as
complicated as those raised in the case of positive obligations. The
budgetary implications of enforcing positive obligations are, for
instance, far more severe than those of enforcing negative
obligations. 12 This explains why the courts have readily used prohibitive
remedies, such as the prohibitory injunction, and been
reluctant to use such positive remedies as the mandatory or structural
injunctions.
However, in some contexts the enforcement of negative
obligations in socio-economic rights terms may be as complicated as
enforcing positive obligations. It is also true that enforcing negative
obligations may require substantial resources. A prohibitory
injunction, for instance, proscribing an eviction without alternative
accommodation, may require government to spend money on
providing alternative accommodation. This is in addition to paying
compensation for the continued use of private land from which an
eviction cannot occur without alternative accommodation. 13 Another
example relates to the enforcement of the section 9 negative right
not to be unfairly discriminated against. In some cases a finding that
8 See V Abramovich ‘Courses of action in economic, social and cultural rights:
Instruments and allies’ (2005) 2 181 183.
9 See M Sepúlveda The nature of the obligations under the International Covenant
on Economic, Social and Cultural Rights (2003) 125; see also Abramovich (n 8
above) 186-187.
10 J Berryman The law of equitable remedies (2000) 40. See also K Cooper-
Stephenson ‘Principle and pragmatism in the law of remedies’ in J Berryman
Remedies, issues and perspectives (1991) 35; and D Horowitz The courts and
social policy (1977) 19.
11 D Brand ‘Introduction to socio-economic rights in the South African Constitution’
in D Brand & C Heyns (eds) Socio-economic rights in South Africa (2005) 26.
12 P Lenta ‘Judicial restraint and overreach’ (2004) 20 South Africa Journal on
Human Rights 544 567. See also M Wells & T Eaton Constitutional remedies: A
reference book for the United States Constitution (2002) xxv.
13 See Modder East Squatters v Modderklip Boerdery v President of Republic of
South Africa v Modderklip Boerdery 2004 8 BCLR 821 (SCA); and Modderklip
Boerdery (Pty) Ltd and Others v President of RSA and Another 2005 8 BCLR 786
(CC).