LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

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238 Chapter 7 of affairs. As seen in chapter three, 35 it is incumbent upon the government to put in place measures that enable it to enhance the level of resources at its disposal. This means that the rights may be enforced as individual entitlements as soon as resources needed for this purpose become available. Ancillary to this is the fact that, while the non-provision of a minimum core may be justified in the present context on the basis of limited resources, this does not mean that the concept be discarded completely. It should be incumbent upon the government to provide everyone with a minimum level of goods and services as soon as resources for this purpose become available. 7.4 Concluding remarks While much has been written on the subject of the judicial enforcement of socio-economic rights in South Africa, no research has focused on a comprehensive examination of the subject of remedies as this study has done. This study has engaged the description and analysis of the factors that courts consider, or should consider, when deciding to grant certain remedies. This analysis is intended to give a proper foundation for any critique of the appropriateness of judicial remedies in constitutional litigation generally and socio-economic rights litigation in particular. It is contended that, while socioeconomic rights are as justiciable as civil and political rights, they have characteristics that make their enforcement much more controversial. Generally, they require far more affirmative action and resources, and the remedies resulting from a violation of these rights are distributive in nature. It is upon this basis that the theoretical foundations of judicial remedies have been discussed. Great emphasis has been laid on the effect of the form of justice that the courts choose to pursue. The study has shown that the nature and objectives of remedies arising from corrective justice are quite different from those that arise from distributive justice. It has been demonstrated that any critique of judicial remedies without an understanding of the form of justice that one considers ideal is a parochial and arid exercise. It is on this basis that the appropriateness of the different remedies available in constitutional litigation, such as declarations, damages and injunctions, has been analysed. This book has also been able to examine in detail the most controversial of the remedies, the structural interdict. As a result thereof, the study has formulated guiding norms and principles that may be used by the courts when considering this form of relief. These norms and principles should not only guide the courts in deciding whether the structural interdict is appropriate, but also indicate its 35 Sec 3.2.4.
Conclusions and recommendations 239 use in a particular case. It should be used as of necessity, and, when used, it should be flexible and graduated. This is in addition to ensuring the widest participation of all stakeholders, ensuring reasoned decision making, developing the substantive norms, and maintaining independence and impartiality.
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LITIGATING SOCIO-ECONOMIC RIGHTS IN
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TABLE OF CONTENTS PREFACE ACKNOWLED
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PREFACE As an international LLM Stu
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ACKNOWLEDGMENTS I would like to exp
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CHAPTER 1 INTRODUCTION The inclusio
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Introduction 3 lay the foundation f
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Introduction 5 positive obligations
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Introduction 7 been very careful no
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Introduction 9 justice theory takes
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Introduction 11 jurisdictions. Many
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Introduction 13 placed on general w
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CHAPTER 2 THE LEGAL NATURE OF SOCIO
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Legal nature of socio-economic righ
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54 Chapter 3 appropriate means. Sim
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56 Chapter 3 which he refers to as
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58 Chapter 3 dialysis treatment to
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60 Chapter 3 Though it is not withi
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62 Chapter 3 number of rights in IC
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64 Chapter 3 within the prevalent c
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66 Chapter 3 the state cannot affor
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68 Chapter 3 refusal to impose an a
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70 Chapter 3 cases in which the cou
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72 Chapter 3 enjoy all rights there
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74 Chapter 3 formalistic and abstra
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76 Chapter 3 behind the protection
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78 Chapter 3 been able to determine
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80 Chapter 3 27(1) are to have ‘a
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82 Chapter 3 by the political organ
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84 Chapter 3 The subsection must be
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86 Chapter 3 dealing with sections
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88 Chapter 3 arising from the exclu
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90 Chapter 3 justifiable in an open
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92 Chapter 3 The phrase ‘within a
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94 Chapter 3 increase the levels of
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96 Chapter 3 to withdraw from its r
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98 Chapter 3 The problem with the C
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100 Chapter 3 All that the courts w
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102 Chapter 3 justify its failure t
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104 Chapter 4 These theories of jus
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106 Chapter 4 perceives the law as
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108 Chapter 4 difference whether a
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110 Chapter 4 Traditionally, the vi
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112 Chapter 4 the wellbeing of all
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114 Chapter 4 that may be short of
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116 Chapter 4 the victim's needs sh
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118 Chapter 4 doing so appears to d
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120 Chapter 4 by its results. Those
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122 Chapter 4 government that bears
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124 Chapter 4 On the basis of the a
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126 Chapter 4 realise that concept.
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128 Chapter 4 ‘appropriate, just
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130 Chapter 4 It is at this point t
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132 Chapter 5 of the defendant too
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134 Chapter 5 enforcement of these
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136 Chapter 5 courts are constituti
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138 Chapter 5 rights have been viol
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140 Chapter 5 the law is ‘restora
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142 Chapter 5 unfit for cabin work,
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144 Chapter 5 measured by the yards
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146 Chapter 5 (defendant) to determ
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148 Chapter 5 has left open the pos
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150 Chapter 5 without the need for
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152 Chapter 5 demolishing their sha
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154 Chapter 5 and power to bring an
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156 Chapter 5 between the parties.
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158 Chapter 5 such as those where t
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160 Chapter 5 is in circumstances w
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162 Chapter 5 concluded that it was
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164 Chapter 5 because of the immens
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166 Chapter 6 Constitutional Court
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168 Chapter 6 actually committed or
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170 Chapter 6 unlawful conduct. In
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172 Chapter 6 is not prepared to ab
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174 Chapter 6 (d) that the applican
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176 Chapter 6 difficulties aired in
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178 Chapter 6 It is because of thes
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180 Chapter 6 which forced the cour
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182 Chapter 6 institutions whose re
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184 Chapter 6 acceptable to all the
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186 Chapter 6 down the normative st
Page 196 and 197: 188 Chapter 6 Nonetheless, the open
Page 198 and 199: 190 Chapter 6 because of the qualit
Page 200 and 201: 192 Chapter 6 result in a relief ac
Page 202 and 203: 194 Chapter 6 Nonetheless, it shoul
Page 204 and 205: 196 Chapter 6 Nova Scotia. 154 The
Page 206 and 207: 198 Chapter 6 Additionally, such co
Page 208 and 209: 200 Chapter 6 dealing with … righ
Page 210 and 211: 202 Chapter 6 Management and Treatm
Page 212 and 213: 204 Chapter 6 the most appropriate
Page 214 and 215: 206 Chapter 6 for the structural in
Page 216 and 217: 208 Chapter 6 have not obtained the
Page 218 and 219: 210 Chapter 6 further enabled the C
Page 220 and 221: 212 Chapter 6 enforcement of the co
Page 222 and 223: 214 Chapter 6 aimed at procuring th
Page 224 and 225: 216 Chapter 6 spheres of government
Page 226 and 227: 218 Chapter 6 independence in struc
Page 228 and 229: 220 Chapter 6 6.6.4 Reasoned decisi
Page 230 and 231: 222 Chapter 6 justified if the reme
Page 232 and 233: 224 Chapter 6 This could be followe
Page 235 and 236: CHAPTER 7 CONCLUSION Although the S
Page 237 and 238: Conclusions and recommendations 229
Page 245: Conclusions and recommendations 237
Page 249 and 250: TABLE OF CASES African Commission o
Page 251 and 252: Table of cases 243 City Council of
Page 253 and 254: Table of cases 245 Permanent Secret
Page 255 and 256: Table of cases 247 Marbury v Madiso
Page 257 and 258: Table of international treaties and
Page 259 and 260: Bibliography 251 Brand, D & Heyns,
Page 261 and 262: Bibliography 253 Locke, J (1967) Tw
Page 263 and 264: Bibliography 255 Zakrzewski, R (200
Page 265 and 266: Bibliography 257 Rendering justice
Page 267 and 268: Bibliography 259 Sachs, A ‘The ju
Page 269 and 270: Bibliography 261 Corbett, M ‘Repr
Page 271 and 272: Bibliography 263 Gready, P & Kgalem
Page 273 and 274: Bibliography 265 Moore, B ‘Commun
Page 275 and 276: Bibliography 267 Schwarzschild, M
Page 277 and 278: Bibliography 269 Water Delivery in
Page 279 and 280: Bibliography 271 Garret, B Structur
Page 281: Bibliography 273 Kanyeihamba, G ‘
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LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

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