Pretoria University Law Press (PULP)

PULP is an open-access publisher based at the Centre for Human Rights, University of Pretoria

Litigating Socio-Economic Rights in South Africa: A choice between corrective and distributive justice

Litigating Socio-Economic Rights in South Africa: A choice between corrective and distributive justice
by Christopher Mbazira
2009
ISBN: 978-0-9814124-7-4
Pages: viii 273
Print version: Available
Electronic version: Free PDF available

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About the publication

The South African Constitutional Court has handed down a number of prominent decisions in socio-economic rights cases. The doctrine and modes of legal analysis employed by the Court in these cases have drawn praise from across the world. At the same time, however, the Court has been criticised for the lack of immediate impact of its socio-economic rights decisions, most pertinently on the basis that it has issued weak remedies.

In this book, Christopher Mbazira investigates the nature of judicial remedies issued in constitutional litigation in general, and socio-economic rights litigation in particular, to assess this criticism. He argues that the Court’s choice for weaker, generalised remedies rather than strong, individualised remedies can be explained in light of a basic philosophical choice for distributive justice as a remedial guide – a choice that is dictated by the high levels and wide-spread nature of poverty in South Africa.

About the editor:

Christopher Mbazira is Associate Professor at Makerere University, Coordinator, Public Interest Law Clinic. Visting Professor Wits South Africa


Table of Contents

PREFACE
ACKNOWLEDGMENTS
ABOUT THE AUTHOR

INTRODUCTION
1.1 Influence of corrective and distributive forms of justice
1.2 Scope of this book
1.3 Work done in this field
1.4 Outline of this book

THE LEGAL NATURE OF SOCIO-ECONOMIC RIGHTS: ARE THEY CAPABLE OF JUDICIAL ENFORCEMENT
2.1 Introduction
2.2 Legitimacy-based objections
2.2.1 Human rights engender negative obligations
2.2.2 Universality of human rights
2.2.3 Absolutism and resources limitations
2.2.4 Vagueness of socio-economic rights
2.3 Institutional competence-based objections
2.3.1 Democracy, separation of powers and technical deficiency
2.3.2 Democracy and separation of powers overstated
2.3.3 The problem of polycentricity
2.4 Conclusion

TRANSLATING SOCIO-ECONOMIC RIGHTS TO FULLY-FLEDGED RIGHTS: THE SOUTH AFRICAN JURISPRUDENCE
3.1 Introduction
3.2 An appraisal of the Constitutional Court’s reasonableness review approach
3.2.1 Rejection of the minimum core obligations approach
3.2.2 Giving the rights normative content
3.2.3 Available resources and a justification inquiry
3.3 Conclusion

RECONCILING CORRECTIVE AND DISTRIBUTIVE FORMS OF JUSTICE AND THEIR IMPACT ON REMEDY SELECTION
4.1 Introduction
4.2 Corrective and distributive forms of justice distinguished
4.2.1 The ethos of corrective justice
4.2.2 The ethos of distributive justice
4.3 Relationship between rights and remedies
4.3.1 Synchronisation of the rights and remedies debate
4.4 Conclusion

SOUTH AFRICA: DISTRIBUTIVE OR CORRECTIVE JUSTICE?
5.1 Introduction
5.2 The 1996 Constitution and distributive justice
5.3 ‘Appropriate, just and equitable relief’
5.3.1 Purpose of damages - distributive or distributive justice
5.3.2 Declarations
5.4 Conclusion

THE STRUCTURAL INTERDICT: NATURE, ROLE AND APPROPRIATENESS
6.1 Introduction
6.2 The interdict as a constitutional remedy
6.2.1 Types of interdicts and appropriateness in socio-economic rights litigation
6.3 Nature, functions and models of the structural interdict
6.3.1 The unusual features of the structural interdict
6.3.2 Models of the structural interdict
6.4 Arguments for and against the structural interdict
6.4.1 Separation of powers-type arguments
6.4.2 Corrective justice-type arguments
6.5 South Africa: Which way
6.5.1 The approach of the High Court
6.5.2 The approach of the Constitutional Court
6.6 Norms and principles for the structural interdict
6.6.1 Utilisation as a remedy of last resort in graduated manner
6.6.2 Participation
6.6.3 Impartiality and judicial independence
6.6.4 Reasoned decision making
6.6.5 Remedy that complies with substantive norms
6.6.6 Flexibility, monitoring and supervision
6.7 Conclusion

CONCLUSION
7.1 Influence of the normative nature of rights on remedies
7.2 Overcoming separation of powers-based objections
7.3 Appropriate, just and equitable remedies: Role of form of justice
7.4 Concluding remarks
TABLES OF STATUTES
TABLE OF CASES
TABLE OF INTERNATIONAL TREATIES AND DOCUMENTS
BIBLIOGRAPHY


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