Appropriate, just and equitable relief' in socio-economic rights litigation : the tension between corrective and distributive forms of justice

Abstract

This article makes the point that one cannot understand fully the nature of the remedies granted by the Constitutional Court in socio-economic rights litigation unless their theoretical basis as defined by the notions of corrective and distributive forms of justice is appreciated. The author uses the notion of distributive justice to argue that the social and economic context dictates that even seemingly individual socio-economic rights are to be enforced as collective rights in order to achieve a fair distribution of resources. What the Constitutional Court has therefore done is to focus its remedies beyond the individual litigant and to grant remedies that advance constitutional rights so as to extend collective / group benefits. Though vindication and compensation of the victim have been acknowledged as fundamental objectives of constitutional litigation, they do not represent the only objectives that are to be achieved. The interest that society has in the protection of the rights embodied in the Constitution, and the protection of the values of an open and democratic society based on equality, freedom and human dignity, too, are precepts that the Court has sought to advance.