LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

Legal nature of socio-economic rights 19
or mandatory injunctions. This is because such negative remedies do
not draw the courts into the controversies generated by ordering
government to undertake affirmative action. 19
It is therefore true that an order enjoining an activity by requiring
the state to desist from doing something is seen as less complicated
when compared to one enjoining affirmative action requiring the
state to do or undo something. 20 This means that the wholesome
acceptance of socio-economic rights as engendering only positive
obligations risks these rights being labelled highly intrusive and as
instruments that facilitate interference in the way government is run.
However, negative violations may also attract positive remedies in
certain circumstances and so may positive obligations demand
negative remedies. 21
It is also true that sometimes negative remedies may be as
intrusive as positive remedies, and yet, in some situations, positive
remedies may not be intrusive. 22 Forbidding government action by
way of a negative injunction may intrusively constrain government
action in the same way as a mandatory injunction. Consider, for
instance, an order that stops government from building a road on
somebody’s land. If the government thinks the road a necessity, it will
have to engage in positive action by getting alternative land and
planning for the road on that land. Alternatively, government may
have to pay compensation in order to expropriate the land, which in
itself is affirmative action.
Socio-economic rights also engender negative obligations and civil
and political rights engender positive obligations as well. 23 The
obligations under ICCPR are not restricted to state abstinence but also
extend to the obligation of the state to undertake specific activities
19 See ch six sec 6.2.
20
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.
21 K Roach Constitutional remedies in Canada (1994) 3-9. See also Berryman (n 20
above) 40.
22
Roach (n 21 above) 3-10 gives the example of damages, which are considered to
be a positive remedy, yet there is a contention that they are intrusive (3-12).
23 See Rail Commuters Action Group and Others v Transnet Ltd t/a Metrorail 2005 4
BCLR 301 (CC) paras 70-71. See also M Sepúlveda The nature of the obligations
under the International Covenant on Economic, Social and Cultural Rights (2003)
125-126; and D Davis ‘Adjudicating the socio-economic rights in the South African
Constitution: Towards “deference lite”?’ (2006) 22 South African Journal on
Human Rights 305.