LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

236 Chapter 7
they grant bring benefits to a wide section of people in need of such
benefits and not just to the litigants in court. It is only possible for a
court to do this if it inclines more towards the notion of distributive
justice and less towards the notion of corrective justice, as discussed
below.
7.3 Appropriate, just and equitable remedies: Role of form
of justice
The notions of corrective and distributive justice provide an
important theoretical framework that could be used to assess the
kinds of remedies granted by the courts. The remedies that are
granted by a court inclined towards the notion of corrective justice
will differ from those granted by a court inclined towards distributive
justice. However, the appropriateness of each of these remedies will
depend on the perspective from which one assesses them. To those
who view socio-economic rights, for instance, as establishing
individual entitlements, corrective justice-based remedies will be the
most appropriate. In contrast, those who view these rights as
establishing collective entitlements will consider distributive justicebased
remedies as the most appropriate. The question that ought to
be answered before one examines the remedies granted in respect of
socio-economic rights, however, is whether it is ideal to enforce these
rights, either as individual or collective rights.
I have demonstrated in this book that socio-economic rights
cannot be enforced outside the social and economic context in which
they are protected. 30 The majority of South Africans are poor and in
dire need of socio-economic goods and services, but, as observed in
chapter two, 31 these goods and services require a great deal of
resources to realise. Yet the state may not have all the resources
required to provide every individual with the goods and services he or
she needs even at a very basic level. This is something that the
Constitution acknowledges by requiring the progressive realisation of
socio-economic rights within the available resources. 32 In this
context, it is only reasonable that the rights be enforced as collective
rather than as individual ones, because this is what the socioeconomic
context dictates. The realisation of collective rights
requires careful redistribution of resources in order to benefit all in
need of them. Redistribution of this nature is most appropriately
30
See ch five sec 5.2. See also P de Vos ‘Grootboom, the right of access to housing
and substantive equality as contextual fairness’ (2001) 17 South African Journal
on Human Rights 258 262.
31
Sec 2.3.1.1.
32 Secs 26(2) & 27(1).