LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

Legal nature of socio-economic rights 47
inspired litigation and policy revision in the area of housing rights. 157
The Constitutional Court’s ruling that the government’s housing policy
was unreasonable for failure to provide for the needs of those in
desperate need prompted government to, for instance, adopt an
emergency housing policy. 158 When such policies are adopted, they
will have wide application and benefit all people in situations similar
to that of the litigant(s). This, as will be seen in chapter four, is the
essence of the notion of distributive justice which is presented as the
best response to polycentric tasks in the enforcement of socioeconomic
rights. 159
Fuller’s theory is also deficient to the extent that it does not
develop a remedial theory. Fuller does not extend his analysis to the
determination of the kinds of remedies that may be suitable in what
he considers proper forms of adjudication. This omission is, however,
deliberate; it naturally arises from the relationship that Fuller and
other theorists like him assign to rights and remedies. As is
demonstrated in chapter four, 160 a sizeable number of scholars
believe that rights and remedies are closely related. 161 This is
because the latter are deduced from the former. In this relationship,
since the remedy comes logically from the right, there is no need to
develop an independent remedial theory. The purpose of the remedy
is one of addressing the right that has been violated.
It is demonstrated in chapter four that this theory uses the notion
of corrective justice as its basis. The corrective justice theory
emphasises the fact that remedies are granted against a defendant
157 See President of the Republic of South Africa and Others v Modderklip Boerdery
(Pty) Ltd and Others 2005 8 BCLR 786 (CC); Port Elizabeth Municipality v Various
Occupiers Case 2005 1 SA 217 (CC).; City of Cape Town v Neville Rudolph and
Others 2003 11 BCLR 1236 (C); Jaftha v Schoeman and Others; Van Rooyen v
Stoltz and Others [2003] 3 All SA 690 (C); and City of Johannesburg v Rand
Properties (Pty) Ltd and Others 2006 6 BCLR 728 (W).
158
National Department of Housing, Part 3: National Housing Programme: Housing
Assistance in Emergency Circumstances April 2004; sourced at http://
www.housing.gov.za/Content/ legislation_policies/ _Emergency%20%20Housing%
20Policy.pdf (accessed 29 November 2005). The policy acknowledges the fact that
it has been adopted as a direct response to the Constitutional Court’s ruling that
the existing programme was unreasonable (see 5). See also Centre for Study of
Social Policy (CSSP)’s report, New roles for old adversaries: The challenge of using
litigation to achieve system reform (January 1998), available at http://
www.cssp.org/uploadFiles/New_for-old_adversaries.pdf> (accessed 30 November
2005). This report notes that a judicial decree can spotlight the worst abuses and
galvanise public attention, thereby producing short-term gains in funding for
more services. The report contends further that class action litigation can serve
to spark and sustain real institutional change in deeply troubled jurisdictions. It
can force agencies to acknowledge the magnitude of the problem and pay
attention to resolving it (3).
159
Sec 4.2.2.
160 Sec 4.3.
161 See P Gewirtz ‘Remedies and resistance’ (1983) 92 Yale Law Journal 585; Cooper-
Stephenson (n 20 above) 6; Cassels (n 80 above) 288; and D Levinson ‘Rights
essentialism and remedial equilibration’ (1999) 99 Columbia Law Review 857.