LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

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5 6 7 SOUTH AFRICA: DISTRIBUTIVE OR CORRECTIVE 131 JUSTICE? 5.1 Introduction 131 5.2 The 1996 Constitution and distributive justice 132 5.3 ‘Appropriate, just and equitable relief’ 137 5.3.1 Purpose of damages - distributive or distributive 142 justice 5.3.2 Declarations 155 5.4 Conclusion 162 THE STRUCTURAL INTERDICT: NATURE, ROLE AND 165 APPROPRIATENESS 6.1 Introduction 165 6.2 The interdict as a constitutional remedy 166 6.2.1 Types of interdicts and appropriateness in 169 socio-economic rights litigation 6.3 Nature, functions and models of the structural 176 interdict 6.3.1 The unusual features of the structural interdict 180 6.3.2 Models of the structural interdict 183 6.4 Arguments for and against the structural interdict 192 6.4.1 Separation of powers-type arguments 192 6.4.2 Corrective justice-type arguments 195 6.5 South Africa: Which way 198 6.5.1 The approach of the High Court 199 6.5.2 The approach of the Constitutional Court 204 6.6 Norms and principles for the structural interdict 212 6.6.1 Utilisation as a remedy of last resort in graduated 213 manner 6.6.2 Participation 215 6.6.3 Impartiality and judicial independence 217 6.6.4 Reasoned decision making 220 6.6.5 Remedy that complies with substantive norms 221 6.6.6 Flexibility, monitoring and supervision 221 6.7 Conclusion 223 CONCLUSION 227 7.1 Influence of the normative nature of rights on 228 remedies 7.2 Overcoming separation of powers-based objections 233 7.3 Appropriate, just and equitable remedies: Role of 236 form of justice 7.4 Concluding remarks 238 TABLES OF STATUTES 240 TABLE OF CASES 241 TABLE OF INTERNATIONAL TREATIES AND 248 DOCUMENTS BIBLIOGRAPHY 250 iv
PREFACE As an international LLM Student, I was fascinated by the Bill of Rights in the 1996 Constitution of South Africa. The inclusion in the Bill of Rights of socio-economic rights as justiciable is one of the most outstanding features of the instrument. More fascinating is the position of the South African Constitutional Court and the approach it has adopted in giving meaning to the rights in the Constitution and its determination to ensure that the country breaks away from the legacy of racial discrimination and unconstitutional governance. It is against this background that I picked interest in studying the South Africa constitutional system and jurisprudence in depth. When the time came for me to register for my PhD at the University of the Western Cape, the subject of remedies for socio-economic rights, widely perceived as ineffective, stood out as a novel area of research. This book is therefore deduced from my PhD thesis titled ‘Enforcing the economic, social and cultural rights in the South African Constitution as justiciable individual rights: The role of judicial remedies’ completed at the University of the Western Cape under the supervision of Professor Pierre De Vos. The Constitutional Court has handed down a number of novel decisions in socio-economic rights cases. The Soobramoney, Grootboom and Treatment Action Campaign cases all stand out. These cases have heralded a new paradigm in looking at issues around the realisation of socio-economic rights. As a matter of fact, however, legal scholars adoring the socio-economic rights jurisprudence are usually disappointed by the high levels of poverty prevalent in South Africa. The perception immediately created is that the jurisprudence is defective. Indeed, a number of academic scholars have criticised the jurisprudence, mainly on the basis of the Constitutional Court’s reluctance to apply the notion of minimum core obligations, but also on the basis of the fact that the Court has issued very weak remedies. In spite of the criticisms, there has not been any serious study of the practical and philosophical factors which dictate the types and impact of remedies the courts grant in socio-economic rights litigation. My PhD research was directed at filling this gap, by undertaking an in-depth study of the nature of the judicial remedies issued in constitutional litigation in general, and socio-economic rights litigation in particular. One of my conclusions is that we cannot understand the nature of judicial remedies courts grant without understanding the philosophical factors influencing these remedies defined, amongst others, by the mode of justice to which the courts are inclined. The choice of justice between corrective and distributive justice is determined by the context in which legal standards and norms are enforced. The South African context dictates resort to distributive justice because of the high levels of poverty and the immeasurable backlogs in this regard. This is in addition to the pressures on the public purse. This explains why remedies for socioeconomic rights litigation have avoided conferring individual rights on v
Page 1 and 2: LITIGATING SOCIO-ECONOMIC RIGHTS IN
Page 3: TABLE OF CONTENTS PREFACE ACKNOWLED
Page 7 and 8: ACKNOWLEDGMENTS I would like to exp
Page 9 and 10: CHAPTER 1 INTRODUCTION The inclusio
Page 11 and 12: Introduction 3 lay the foundation f
Page 13 and 14: Introduction 5 positive obligations
Page 15 and 16: Introduction 7 been very careful no
Page 17 and 18: Introduction 9 justice theory takes
Page 19 and 20: Introduction 11 jurisdictions. Many
Page 21 and 22: Introduction 13 placed on general w
Page 23 and 24: CHAPTER 2 THE LEGAL NATURE OF SOCIO
Page 25 and 26: Legal nature of socio-economic righ
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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
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188 Chapter 6 Nonetheless, the open
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190 Chapter 6 because of the qualit
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192 Chapter 6 result in a relief ac
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194 Chapter 6 Nonetheless, it shoul
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196 Chapter 6 Nova Scotia. 154 The
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198 Chapter 6 Additionally, such co
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200 Chapter 6 dealing with … righ
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202 Chapter 6 Management and Treatm
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204 Chapter 6 the most appropriate
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206 Chapter 6 for the structural in
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208 Chapter 6 have not obtained the
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210 Chapter 6 further enabled the C
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212 Chapter 6 enforcement of the co
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214 Chapter 6 aimed at procuring th
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216 Chapter 6 spheres of government
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218 Chapter 6 independence in struc
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220 Chapter 6 6.6.4 Reasoned decisi
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222 Chapter 6 justified if the reme
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224 Chapter 6 This could be followe
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CHAPTER 7 CONCLUSION Although the S
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Conclusions and recommendations 229
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TABLE OF CASES African Commission o
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Table of cases 243 City Council of
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Table of cases 245 Permanent Secret
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Table of cases 247 Marbury v Madiso
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Table of international treaties and
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Bibliography 251 Brand, D & Heyns,
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Bibliography 253 Locke, J (1967) Tw
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Bibliography 255 Zakrzewski, R (200
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Bibliography 257 Rendering justice
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Bibliography 259 Sachs, A ‘The ju
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Bibliography 261 Corbett, M ‘Repr
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Bibliography 263 Gready, P & Kgalem
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Bibliography 265 Moore, B ‘Commun
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Bibliography 267 Schwarzschild, M
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Bibliography 269 Water Delivery in
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Bibliography 271 Garret, B Structur
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Bibliography 273 Kanyeihamba, G ‘
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