Left Out in the Cold? Crafting Constitutional Remedies for the Poorest of the Poor

Abstract

It is clear that the superior courts in South Africa have wide powers to fashion remedies. The socio-economic rights debate should now shift from the justiciability of the rights to crafting appropriate remedies for their infringement. There is reason to be critical of the relief granted in the Constitutional Court’s socio-economic jurisprudence. Litigants in cases such as Grootboom and Treatment Action Campaign have not received the shelter or drugs awarded in the judgments. To remedy this, the Constitutional Court should be concerned with remedies that assist in realising socio-economic rights and therefore primarily with affirmative remedies including declarations, damages, reading-in, mandatory interdicts and structural interdicts. Of these, constitutional damages and structural interdicts are particularly suitable as remedies that would increase government accountability. High Court judges are becoming increasingly adventurous in their choice of remedy and the Constitutional Court should follow suit. There is a positive new tendency on the part of the courts to move from ordering the friendly ‘soft’ remedy of a declarator to the unfriendlier ‘hard’ remedy of a structural interdict. An additional possibility, raised in the Eastern Cape High Court decision of Kate v MEC for Welfare, is to hold government officials in contempt of court for failing to obey court orders.