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Abstract
The South African Constitutional Court was established in 1994 to herald a decisive break from the authoritarian apartheid legal order with its largely complicit, overwhelmingly executive-minded and status quo-oriented judiciary. There can be no doubt the court was designed to oversee a project of radical constitutional transformation that included the aims of advancing socio-economic equality and entrenching a new culture of judicial review and justification of power. Against this backdrop this article analyses the judgments in the six socio-economic rights cases that have been through the High Courts, the Supreme Court of Appeal and the Constitutional Court to examine the extent to which the Constitutional Court has acted as South Africa’s guiding judicial agent for social change, in the sense both of whether it has pursued the most transformative option in any given case, as well as whether the judgments of the Constitutional Court have been more transformative than those of the Supreme Court of Appeal and/or the High Courts. Using a methodology engaged by scholars exploring the role of courts in new democracies, which seeks to understand the variables that condition the social transformation performance of new courts and especially those with strong authoritarian legacies that are striving with new progressive legal agendas, the article draws some conclusions regarding the interplay between legal design and social composition of the judiciary that might resonate beyond the South African context.
Acknowledgements
I am grateful for comments on a draft of this article from anonymous reviewers, as well as from participants (and the hosts, Professors Conrado Hubner Mendes and Virgilio Afonso da Silva) at a guest lecture I gave at the Faculty of Law, University of São Paulo on 31 May 2016.
Disclosure statement
No potential conflict of interest was reported by the author.
Note on contributor
Jackie Dugard is an associate professor at the School of Law, University of the Witwatersrand. Jackie is an editor of the South African Journal on Human Rights and is a Global Fellow of the Centre on Law and Social Transformation at the University of Bergen, Norway.
Notes
1. Constitution of the Republic of South Africa Act 108 of 1996 (Constitution).
2. Karl Klare, ‘Legal Culture and Transformative Constitutionalism’, South African Journal on Human Rights 14 (1998): 146–88.
3. Etienne Mureinik, ‘A Bridge to Where? Introducing the Interim Bill of Rights’, South African Journal on Human Rights 10 (1994): 1–35 at 32.
4. Klare, ‘Legal Culture’, 150.
5. Roberto Gargarella, Theunis Roux, and Pilar Domingo, eds, Courts and Social Transformation in New Democracies: An Institutional Voice for the Poor? (Ashgate: Aldershot, 2006).
6. Theunis Roux, ‘Pro-poor Court, Anti-poor Outcomes: Explaining the Performance of the South African Land Claims Court’, South African Journal on Human Rights 20 (2004): 511–43. Apart from institutional indicators, Courts and Social Transformation scholars also explore indicators relating to access to courts (encompassing indicators of poor groups’ voices and resources). These indicators are not pursued here because, from the perspective of poor litigants, all three levels of court in South Africa experience the same access to justice issues of a very expensive private legal profession with some limited legal aid and public interest litigation support. One of the reasons there is hardly any differentiation on this indicator across the three judicial levels is that, although the Constitution formally allows for direct access to the CC, this is hardly ever granted by the CC (see for example: Jackie Dugard, ‘Closing the Doors of Justice: An Examination of the Constitutional Court’s Approach to Direct Access, 1995–2013’, South African Journal on Human Rights 31 (2015): 112–35). As such, this study is able to eliminate most of the variables that (according to the model) typically condition the social transformation performance of courts, and focus on the institutional indicators, starting with legal design.
7. Roux, ‘‘Pro-poor Court, Anti-poor Outcomes’, 513.
8. A relatively low standard is used for ‘plausibility’, evidenced largely by minority or appellate judgments, as well as legal scholarship.
9. Pro-status quo approaches towards socio-economic rights cases (especially housing rights cases), include judicial interpretations and interventions that entrench property owners’ rights and/or defer to the executive. Anti-status quo/pro-transformation approaches require upsetting these conservative legal tendencies in favour of historically disadvantaged groups.
10. During these years the CC heard 20 socio-economic rights cases, the majority coming via direct appeal from High Courts.
11. Subsequently renamed the Eastern Cape Local Division, Port Elizabeth.
12. Judge.
13. Port Elizabeth Municipality v. Various Occupiers of Erven 113 to 128 inclusive, Lorraine, Port Elizabeth and Others Case No: 1181/2000 (Port Elizabeth Municipality High Court), 11.
14. Ibid., para. 15 (order).
15. Deputy President.
16. Baartman v. Port Elizabeth Municipality [2003] ZASCA 99 (Port Elizabeth Municipality SCA) para. 21 (order).
17. Port Elizabeth Municipality v. Various Occupiers 2005 (1) SA 217 (CC) (1 October 2004) (Port Elizabeth CC) para. 61 (order).
18. Port Elizabeth Municipality High Court para. 5.
19. Ibid., para. 8.
20. Ibid., para. 13.
21. Section 26(3) of the Constitution provides: ‘No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances.’ The PIE Act was enacted to provide procedural and substantive content to this constitutional provision.
22. Port Elizabeth Municipality SCA paras 14 and 18; Port Elizabeth Municipality CC para. 28.
23. Port Elizabeth Municipality SCA para. 19; Port Elizabeth Municipality CC paras 17–18.
24. Section 6 of the PIE Act relates to evictions brought by the state.
25. Section 6(3) of the PIE Act reads: ‘In deciding whether it is just and equitable to grant an order for eviction, the court must have regard to – (a) the circumstances under which the unlawful occupier occupied the land and erected the building or structure; (b) the period the unlawful occupier and his or her family have resided on the land in question; and (c) the availability to the unlawful occupier of suitable alternative accommodation or land.’
26. Port Elizabeth Municipality SCA paras 7–8.
27. Port Elizabeth Municipality CC para. 28.
28. Khulekani Moyo, ‘Review of Implementation of Constitutional Court decisions on Socio-economic Rights’ (May 2013), report for the Foundation for Human Rights (FHR), Johannesburg, 23.
29. I have focused on the aspects of the judgments relating to the occupiers, as opposed to the private landowner, apart from where the interests of the two groups intersect.
30. Subsequently renamed Gauteng Local Division, Johannesburg.
31. Modderklip Boerdery (Pty) Ltd v. Modderklip East Squatters and Another 2001 (4) SA 385 (W) (Modderklip High Court eviction case), 396.
32. Modderlip Boerdery (Edms) Bpk. v. President van die Republiek van Suid-Afrika en Andere 2003 (6) BCLR 638 (T) (Modderklip High Court enforcement case).
33. Modder East Squatters and Another v. Modderklip Boerdery (Pty) Ltd; President of the Republic of South Africa and Others v. Modderklip Boerdery (Pty) Ltd [2004] (3) All SA 169 (SCA) (Modderklip SCA) para. 52(iii) (order).
34. Michael Bishop, ‘Remedies’, in Constitutional Law of South Africa, ed. Stuart Woolman and Michael Bishop, 2nd ed. (Cape Town: Juta, 2008), 9-i to 9–198 at 9–174.
35. President of the Republic of South Africa and Another v. Modderklip Boerdery (Pty) Ltd and Others 2005 (5) SA 3 (CC) (Modderklip CC) para. 68 (order).
36. Modderklip High Court eviction case, 390.
37. Ibid.
38. Ibid., 393.
39. Ibid.
40. Ibid., 395.
41. Ibid.
42. Government of the Republic of South Africa and Others v Grootboom and Others 2001 (1) SA 46 (CC) (Grootboom).
43. Modderklip SCA.
44. Ibid., para. 22.
45. Bishop, ‘Remedies’, 34.
46. Modderklip SCA para. 21.
47. Ibid., para. 31.
48. Stuart Wilson, ‘Breaking the Tie: Evictions, Homelessness and the New Normality’, South African Law Journal 126 (2009): 270–90.
49. Modderklip SCA paras 43–4.
50. M. Clark, ‘Evictions and Alternative Accommodation in South Africa: An Analysis of the Jurisprudence and Implications for Local Government’, Socio-Economic Rights Institute of South Africa (SERI) Research Report (November 2013), 12, http://www.seri-sa.org/images/Evictions_Jurisprudence_Nov13.pdf (accessed on 20 November 2015).
51. See Stuart Wilson, ‘Litigating Housing Rights in Johannesburg’s Inner City/; 2004–2008’, South African Journal on Human Rights 27 (2010): 127–51 at 134.
52. City of Johannesburg v. Rand Properties 2007 (1) SA 78 (W) (Olivia Road High Court) para. 64 (order).
53. City of Johannesburg v. Rand Properties (Pty) Ltd and Others 2007 (6) SA 417 (SCA) (Olivia Road SCA) para. 68.
54. Ibid., paras 76–7.
55. Occupiers of 51 Olivia Road, Berea Township, and 197 Main Street, Johannesburg v. City of Johannesburg and Others Case No: CCT 24/07 (Olivia Road CC interim order).
56. Occupiers of 51 Olivia Road, Berea Township, and 197 Main Street, Johannesburg v. City of Johannesburg and Others 2008 (3) SA 208 (CC) (Olivia Road CC) para. 54 (order).
57. Olivia Road High Court paras 28–30.
58. Ibid., paras 33–4.
59. Ibid., para. 63.
60. Brisley v. Drotsky 2002 (4) SA 1 (SCA) in which the SCA ruled (at paras 38 and 42) that where an eviction application is not undertaken via PIE a court must consider only legally relevant factors and does not have the wide discretion to consider all relevant circumstances (as cited in Olivia Road SCA para. 40).
61. Olivia Road SCA para. 45.
62. Ibid., paras 53–4.
63. Ibid., para. 78 (order).
64. Olivia Road CC para. 14.
65. Geoff Budlender, ‘People’s Power and the Courts’, South African Journal on Human Rights 27 (2011): 582–99 at 591.
66. See Lilian Chenwi, ‘Socio-Economic Gains and Losses: The South African Constitutional Court and Social Change’, Social Change 41 (2011): 427–44 at 435.
67. Olivia Road CC paras 18, 21 and 22.
68. Stuart Wilson and Jackie Dugard, ‘Constitutional Jurisprudence: The First and Second Waves’, in Socio-Economic Rights in South Africa: Symbols or Substance?, ed. Malcolm Langford, Ben Cousins, Jackie Dugard, and Tshepo Madlingozi (Cambridge: Cambridge University Press, 2014), 35–59 at 44.
69. Olivia Road CC para. 44.
70. Ibid., 47–51.
71. Previously called the Witwatersrand Local Division and subsequently renamed Gauteng Local Division, Johannesburg.
72. Blue Moonlight Properties v. Occupiers of Saratoga Avenue 2010 ZAGPJHC 3 (Blue Moonlight High Court).
73. Ibid., para. 196 (order).
74. Acting Judge.
75. City of Johannesburg Metropolitan Municipality v. Blue Moonlight Properties 39 (Pty) Ltd and Another 2011 (4) SA 337 (SCA) (Blue Moonlight SCA).
76. Ibid., paras 59–67.
77. Ibid., para. 77 (order).
78. City of Johannesburg Metropolitan Municipality v. Blue Moonlight Properties 39 (Pty) Ltd and Others 2012 (2) SA 104 (CC) (Blue Moonlight CC) para. 104.
79. Blue Moonlight HC para. 68; Blue Moonlight SCA paras 40 and 68; Blue Moonlight CC paras 45–6 and 57–74.
80. Blue Moonlight HC paras 144–55; Blue Moonlight SCA paras 57–67; and Blue Moonlight CC paras 89–95.
81. Blue Moonlight CC para. 104 (order).
82. Blue Moonlight HC para. 109.
83. Ibid., paras 93–7.
84. Blue Moonlight SCA para. 71.
85. Ibid.
86. Blue Moonlight CC para. 40.
87. Michael Dafel, ‘The Negative Obligations of the Housing Right: An Analysis of the Duties to Respect and Protect’, South African Journal on Human Rights 29 (2013): 591–614.
88. Jackie Dugard, ‘Beyond Blue Moonlight: The Implications of Judicial Avoidance in Relation to the Provision of Alternative Housing’, Constitutional Court Review 5 (2014): 265–79.
89. See Dladla and Others v. City of Johannesburg and Others 2014 (6) SA 516 (GJ) (22 August 2014) – a challenge to the nature of temporary accommodation provided by the City of Johannesburg in the wake of the Blue Moonlight CC decision – in which the Gauteng Local Division, Johannesburg found the City’s temporary shelters to be unconstitutional.
90. Dugard, ‘Beyond Blue Moonlight’.
91. A statutory tribunal established in terms of the Rental Housing Act 50 of 1999 (Rental Housing Act), empowered to adjudicate disputes between landowners and tenants (excluding evictions).
92. Gauteng Unfair Practices Regulations 2001 made in terms of the Rental Housing Act 50 of 1999 (Gauteng Unfair Practices Regulations).
93. At the High Court it was conceded by Aengus that the lease agreements of two of the tenants could not be terminated on notice.
94. Aengus Lifestyle Properties (Pty) Limited v. Maphango and Others South Gauteng High Court Case no: 09/22346 (Maphango High Court) para. 34.
95. Ibid., para. 41.
96. Ibid., para. 38.
97. This comprised 16 tenants who wanted to appeal the High Court’s decision that the landlord had validly terminated their leases, as well as the two tenants in whose cases the High Court found their leases were invalidly terminated but nonetheless ordered them to pay their own costs.
98. Maphango and Others v. Aengus Lifestyle Properties (Pty) Ltd [2011] (3) All SA 535 (SCA) (Maphango SCA) para. 38 (order).
99. Ibid., para. 34.
100. Ibid., para. 36.
101. One of the 18 SCA appellants subsequently died; and the two tenants who were pursuing only the costs order against them abandoned the appeal (so the costs issue was not taken forward in the CC).
102. There was a separate concurring judgment by Froneman J (supported by Yacoob J) supplementing some of the arguments. There was also a conservative dissenting judgment by Zondo AJ (concurred by Mogoeng CJ and Jaftha J), which found that the remedy ordered by Cameron J was inappropriate because, according to these judges, the applicants had not sufficiently argued the Rental Housing Act ground in their affidavits.
103. Maphango and Others v. Aengus Lifestyle Properties (Pty) Ltd and Another 2012 (3) SA 531 (CC) (Maphango CC) para. 70 (majority order).
104. Maphango High Court para. 16.
105. Reigate v. Union Manufacturing Co 1918 LT 479 para. 483.
106. Maphango High Court para. 17.
107. Ibid., para. 19.
108. Ibid., paras 25–6.
109. Ibid., para. 25.
110. Maphango SCA para. 7.
111. Ibid., paras 13–21.
112. Brisley v. Drotsky paras 21–5 and 93–5, as cited in Maphango SCA paras 22–5.
113. Maphango SCA para. 34.
114. Maphango CC para. 29.
115. Ibid., para. 51.
116. Ibid., para. 56.
117. Ibid., para. 52.
118. Ibid.
119. Ibid., para. 57.
120. Ibid., para. 68.
121. Jackie Dugard, Michael Clark, and Stuart Wilson, ‘Paper on the Development of the Common Law, Evictions and Lease’, unpublished HSRC paper (June 2014), 26–7.
122. Sandra Liebenberg, ‘Socio-economic Rights Beyond the Public-private Law Divide’, in Socio-Economic Rights in South Africa: Symbols or Substance?, ed. Malcolm Langford, Ben Cousins, Jackie Dugard, and Tshepo Madlingozi (Cambridge: Cambridge University Press, 2014), 63–91 at 88.
123. City of Johannesburg Metropolitan Municipality Water Services By-laws Gazette No. 179, Notice 835 of 2004 (21 May 2004) published in terms of section 13(a) of the Local Government: Municipal Systems Act 32 of 2000 (Water By-laws).
124. Section 4(3)(b) of the Water Services Act provides that procedures for the ‘limitation or discontinuation of water services must’ ‘provide for reasonable notice of intention to limit or discontinue water services and for an opportunity to make representations’.
125. It was common cause that in Phiri the average household size was 16 persons (per property). The lead applicant, Lindiwe Mazibuko’s household comprised 20 persons.
126. The applicants relied on the expert evidence of Peter Gleick, internationally acclaimed expert on water sufficiency, as well as United Nations Committee on Economic, Social and Cultural Rights (CESR) General Comment 15 on the right to water (2003): http://www1.umn.edu/humanrts/gencomm/escgencom15.htm, which, in relation to water sufficiency, quotes Peter Gleick.
127. Mazibuko and Others v. City of Johannesburg and Others [2008] 4 All SA 471 (W) (Mazibuko High Court) para. 183 (order).
128. City of Johannesburg and Others v. Mazibuko and Others 2009 (3) SA 592 (SCA) (Mazibuko SCA) para. 62 (order).
129. Mazibuko and Others v. City of Johannesburg and Others 2010 (4) SA 1 (CC) (Mazibuko CC) para. 171 (order).
130. Ibid., paras 94–7.
131. Ibid., paras 145–58.
132. Ibid., paras 106–14.
133. Ibid., paras 115–24.
134. Ibid., para. 131.
135. Mazibuko High Court para. 63.
136. Ibid., para. 107.
137. Ibid., paras 109, 110 and 112.
138. Ibid., para. 122.
139. Ibid., para. 82.
140. Ibid., para. 84.
141. Ibid., para. 93.
142. Ibid., para. 155.
143. Ibid., para. 94.
144. Ibid., para. 159.
145. Ibid., paras 92, 126, 168 and 169.
146. Ibid., paras 174–8.
147. Mazibuko SCA paras 103–24.
148. Jackie Dugard and Sandra Liebenberg, ‘Muddying the Waters: The Supreme Court of Appeal’s Judgment in the Mazibuko Case’, ESR Review 10, no. 1 (July 2009): 11–17.
149. For a comprehensive critique of the Mazibuko CC judgment see: Sandra Liebenberg, Socio-Economic Rights: Adjudication Under a Transformative Constitution (Cape Town: Juta, 2010), 466–80.
150. Permanent Secretary, Department of Welfare, Eastern Cape v. Ed-U College (PE) (Section 21) Inc. 2001 (2) SA 1 (CC) (interestingly, this was another O’Regan judgment).
151. Liebenberg, Socio-Economic Rights, 475.
152. Mazibuko CC para. 109.
153. Geo Quinot, ‘Substantive Reasoning in Administrative-Law Adjudication’, Constitutional Court Review 3 (2010): 111–39 at 128–9.
154. Mazibuko CC para. 120.
155. Liebenberg, Socio-Economic Rights, 473.
156. Wilson and Dugard, ‘Constitutional Jurisprudence’, 55.
157. Pierre de Vos, ‘Water is Life (but Life is Cheap)’, Constitutionally Speaking, 13 October 2009, http://constitutionallyspeaking.co.za/water-is-life-but-life-is-cheap (accessed 20 November 2015).
158. Ibid.
159. Mazibuko CC paras 152, 154 and 157.
160. City Council of Pretoria v. Walker 1998 (2) SA 363 (CC).
161. Liebenberg, Socio-Economic Rights, 478.
162. Mazibuko CC para. 157.
163. Ibid., para. 159.
164. De Vos, ‘Water is Life’.
165. Mazibuko CC para. 9.
166. Ibid., paras 9 and 93.
167. Liebenberg, Socio-Economic Rights, 467.
168. Ibid., 470.
169. Ibid., 469.
170. Lucy Williams, ‘The Role of Courts in the Quantitative-Implementation of Social and Economic Rights: A Comparative Study’, Constitutional Court Review 3 (2010): 141–99 at 196–7.
171. There is a high degree of overlap between race and period of appointment because black judges were appointed to the High Courts, SCA and CC only after 1994. To the extent that there is divergence between race and period of appointment, this relates only to white judges.
172. I have excluded Van der Riet AJ here since he was an acting judge, i.e. there was no appointment per se.
173. Harms J is the only judge in this study to have authored two judgments and there is a significant difference in the degree of transformativeness of the two judgments, with Modderklip scoring 1.5 but Olivia Road scoring 0.5. It is not clear why there would be such a difference in Harms’ approach to these two cases.
174. By virtue of the CC being a post-apartheid institution, all CC judges are post-1994 appointments so this variable is not applicable.
175. The sitting arrangement could arguably be regarded as a feature of legal design. I have analysed it here rather than under legal design because the operative effect of the collective arrangement seems to relate most directly to the social composition variable.
176. Sitting en banc means that all of the judges sit together to hear each case.
177. It is noteworthy that especially at the CC level there is a relatively high level of consensus decision-making. In the cases reviewed here all the SCA judgments and all but one of the CC judgments were consensus rulings (in the Maphango CC decision there was one dissenting judgment, from Zondo AJ).
178. Only one of the 18 judgments in this study was authored by a female judge – the Mazibuko CC decision.
179. Alfred Cockrell, ‘Rainbow Jurisprudence’, South African Law Journal 12 (1996): 1–35 at 3.