LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

Conclusions and recommendations 237
realised through litigation that is guided by the ethos of distributive
justice.
It is on the basis of the above that the appropriateness of
remedies for socio-economic rights violations should be assessed. The
success or failure of a remedy should not be assessed solely on the
basis of its impact on the litigants such as the Grootboom community.
This is so because it is important that in dealing with socio-economic
claims the courts should consider the interests of persons other than
the litigant(s). It is also important for the courts to appreciate the
fact that providing for the socio-economic needs of an individual or
groups of individuals may have repercussions for similarly situated
persons. 33 The remedies that the courts grant therefore should be
aimed at maximising the socio-economic benefits implicated by the
case for the benefit of all similarly situated persons. In this context,
it may be impossible to put the victims of a violation in the position
they would have been in but for the violation as demanded by those
who support corrective justice.
The Grootboom case has been used by many commentators to
demonstrate the weaknesses of the remedies granted by the
Constitutional Court in socio-economic rights litigation. 34 It has been
argued that the situation of the Grootboom community has not
changed dramatically even with judgment in their favour. However,
this case could also be used to demonstrate the distributive benefits
that socio-economic rights litigation can bring about. The case has set
standards to be used to assess the reasonableness of government
conduct, and has resulted in programmes and policies that advance
the socio-economic rights of all in need as presented by the context.
Although the case has not resulted in a dramatic improvement of the
conditions of the Grootboom community, it has resulted in benefits
for a wide range of poor and vulnerable people.
Nonetheless, the fact that the socio-economic context dictates
that socio-economic rights can only be realised as collective rights
should not be interpreted to mean that the rights cannot result in
individual entitlements. The ultimate outcome of any programme for
the realisation of these rights should aim at maximisation of individual
wellbeing, if not in the short run at least in the long run. The socioeconomic
context as characterised, amongst others, by inadequacy of
resources should not be viewed as a permanent and unalterable state
33 See Sachs (n 6 above) 144.
34 See M Swart ‘Left out in the cold? Grafting constitutional remedies for the
poorest of the poor’ (2005) 21 South African Journal on Human Rights 215; K
Pillay ‘Implementation of Grootboom: Implications for the enforcement of socioeconomic
rights’ (2002) 2 Law, Democracy and Development 225; and D Davis
‘Adjudicating the socio-economic rights in the South African Constitution:
Towards “deference lite”?’ (2006) 22 South African Journal on Human Rights 301.