Participatory Approaches to Socio-Economic Rights Adjudication: Tentative Lessons from South African Evictions Law

Abstract

This article explores the potential of participatory modes of adjudicating socio-economic rights to mitigate the democratic and distributive deficits of adjudication, particularly in the context of the structural reforms required to fulfil the positive duties imposed by these rights. It traces a particular application of a participatory model of adjudication through the doctrine and remedy of meaningful engagement which has emerged in the context of South African evictions law. The benefits of meaningful engagement in advancing direct participation by communities and organisations in the processes of socio-economic rights realisation are considered. However, attention is also drawn to the ways in which engagement orders can limit participatory systemic reforms that advance the normative goals of these rights. The article is intended as a contribution to the broader global debate on models of participatory adjudication in the context of socio-economic rights.

Keywords:

• Socio-economic Rights
• Participatory Models of Adjudication
• Meaningful Engagement
• South African Evictions Law

Acknowledgements

I thank the participants in the seminar on Challenges in Integrating Human Rights and Development convened by the Åbo Akademi Institute for Human Rights, Finland on 25–26 November 2013, for valuable comments on earlier drafts of this article. Helpful comments were also received from Gustav Muller and two anonymous referees. This article is based on research supported by the National Research Foundation. Any opinions or conclusions herein are those of the author and the NRF does not accept any liability in regard thereto.

Notes

¹ There has been a trend towards incorporating socio-economic rights in the wave of new constitutions drafted in Africa, South America and Eastern Europe. In a number of jurisdictions in established democracies, courts are gradually becoming more assertive in protecting people's material needs, relying on constitutionally recognised directive principles of state policy or expansive interpretations of traditional civil and political rights. International and regional human rights treaties protecting economic, social and cultural rights have also witnessed their supervisory bodies playing a more robust oversight role in relation to social rights, or the creation of new individual communication procedures, culminating in the landmark adoption and subsequent entry into force of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights on 5 May 2013 (General Assembly Resolution A/RES/63/117, 10 December 2008). For academic analyses of these trends under various national and international law jurisdictions, see R Gargarella, P Domingo and T Roux (eds) Courts and Social Transformation in New Democracies (Ashgate, Aldershot, 2006); M Langford, Social Rights Jurisprudence: Emerging Trends in International and Comparative Law (Cambridge University Press, Cambridge, 2008); V Gauri and DM Brinks (eds) Courting Social Justice: Judicial Enforcement of Social and Economic Rights in the Developing World (Cambridge University Press, Cambridge, 2008).

² The centrality of “active, free and meaningful” individual and collective participation in development is underscored in various articles of the UN Declaration on the Right to Development (General Assembly A/RES/41/128, 4 December 1986): see articles 1 and 2. For a historical overview of conceptions of participation in development, see S Hickey and G Mohan, “Towards Participation as Transformation: Critical Themes and Challenges”, in S Hickey and G Mohan (eds), Participation from Tyranny to Transformation (Zed Books, London, 2004), 3–24.

³ A leading sceptical account from the perspective of the United States of the ability of courts and litigation to catalyse social change is GN Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? (University of Chicago Press, Chicago, 1991). For a sophisticated analyses of the factors affecting the ability of courts to play a meaningful role in social transformation across a range of jurisdictions, see S Gloppen “Courts and Social Transformation: An Analytical Framework”, in R Gargarella, P Domingo and T Roux (eds) Courts and Social Transformation in New Democracies (Ashgate, Aldershot, 2006), 35–57.

⁴ The Constitution of the Republic of South Africa, 1996, chapter 2 (hereafter “the Constitution”).

⁵ See generally S Liebenberg, Socio-Economic Rights: Adjudication Under a Transformative Constitution (Juta & Co, Cape Town, 2010); M Langford, B Cousins, J Dugard and T Madlingozi, Socio-Economic Rights in South Africa: Symbols or Substance? (Cambridge University Press, Cambridge, 2014).

⁶ For recent evaluations of these constraints and their implications, see P O'Connell, Vindicating Socio-Economic Rights: International Standards and Comparative Experiences (Routledge, Abingdon, 2012), 1–20; J King, Judging Social Rights (Cambridge University Press, Cambridge, 2012), 119–286.

⁷ See, for example, Velásquez Rodríguez Case, Judgment of 29 July 1988, Inter-Am.Ct.H.R. (Ser C) No. 4, paras 174–75 (State of Honduras held to a reasonableness and due diligence standard to prevent, investigate, identify, punish and compensate for human rights violations arising from forced disappearances).

⁸ See, for example, the range of cases decided in terms of the rights to equality and non-discrimination in a number of jurisdictions: Schachter v Canada (1992) 2 SCR 679 (extension of parental benefits accorded to adoptive parents to natural parents); Eldridge v British Columbia (Attorney General) (1997) 3 SCR 624 (suspended declaratory order that deaf patients entitled to the provision of sign language interpreters in the publicly funded health insurance system); National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (2) SA 1 (CC) (reading in order extending immigration benefits accorded to married couples to couples in permanent same sex relationships); Minister of Home Affairs v Fourie 2006 (1) SA 524 (CC) (requiring the status and benefits of marriage to be extended to same sex couples).

⁹ On the rise and forms of the modern welfare state and its associated social entitlement programmes, see generally G Esping-Andersen, The Three Worlds of Welfare Capitalism (Princeton University Press, Princeton, 1990); F-X Kaufmann, European Foundations of the Welfare State (Berghahn Books, New York, Oxford, 2012); CR Sunstein, The Second Bill of Rights: FDR's Unfinished Revolution and Why We Need it More than Ever (Basic Books, New York, 2004); K Rittich “Social Rights and Social Policy: Transformations on the International Landscape”, in D Barak-Erez and AM Gross (eds), Exploring Social Rights: Between Theory and Practice (Hart Publishing, Oxford and Portland, Oregon, 2007), 107.

¹⁰ See generally M Pieterse, “Beyond the Welfare State: Globalisation of Neo-Liberal Culture and the Constitutional Protection of Social and Economic Rights in South Africa”, (2003) 13 Stellenbosch LR 3–28; P O'Connell “The Death of Social Rights”, (2011) 74 Modern Law Rev 532–52; A Nolan (ed), Economic and Social Rights after the Global Economic Crisis (Cambridge University Press, Cambridge, forthcoming 2014); D Harvey, A Brief History of Neoliberalism (Oxford University Press, Oxford, 2005), 64–86; A Greig, D Hulme and M Turner, Challenging Global Inequality: Development Theory and Practice in the 21st Century (Palgrave MacMillan, Basingstoke, 2007), 100–28.

¹¹ Applying the conceptual apparatus of the UN Committee on Economic, Social and Cultural Rights, the expansive interpretation of socio-economic rights is broadly analogous to the obligation to “achieve progressively the full realization” of the rights recognised in the International Covenant on Economic, Social and Cultural Rights (993 UNTS 3, 16 December 1966). This obligation extends beyond the core obligation to ensure “minimum essential levels” of the relevant rights. General Comment No 3 (Fifth session, 1990) The nature of states parties obligations (art 2(1) of the Covenant) UN Doc. E/1991/23 paras 9–10. The expansive interpretation also resonates with the obligations of the state to eliminate systemic discrimination and advance the achievement of substantive equality. See General Comment No 20 (Forty-second session, 2009) Non-discrimination in economic, social and cultural rights (art 2(2) of the Covenant), UN Doc. E/C.12/GC/20, paras 8–9 and 39.

¹² For the classic description of the problem of polycentricity in adjudication, see L Fuller, “The Forms and Limits of Adjudication”, (1978) 92 Harvard LR 353–409. For responses in the context of socio-economic rights adjudication, see S Liebenberg, Socio-Economic Rights: Adjudication Under a Transformative Constitution (Juta & Co, Cape Town, 2010), 71–75; J King, Judging Social Rights (Cambridge University Press, Cambridge, 2012), 189–210.

¹³ O Ferraz, “Harming the Poor through Social Rights Litigation”, (2010–2011) 89 Texas LR 1643–68; KG Young and J Lemaitre, “The Comparative Fortunes of the Right to Health: Two Tales of Justiciability in Colombia and South Africa”, (2013) 26 Harvard Human Rights J 179–216; HA García, “Distribution of Resources Led by Courts: A Few Words of Caution”, in H Alviar García, K Klare, LA Williams (eds), Social and Economic Rights in Theory and Practice: Critical Inquiries (Routledge, Abingdon 2015), 67–84. However, at least some of the distortions arising from the social rights litigation documented in this literature arise from the particular nature of the writ of protection (tutela or amparo) proceedings in the relevant South American jurisdictions. The individualised, inter partes effect of these procedures does not make it easy for a court to consider the systemic impact of the litigation on groups not represented before the court. The Colombian Constitutional Court has developed various devices to address systemic issues, for example, through “unification judgments” (consolidating a large number of tutelas dealing with the same complaint) and the development of the doctrine of an unconstitutional state of affairs (estado de cosas inconstitucional). See generally on these developments, M Sepúlveda, “Colombia: The Constitutional Court's Role in Addressing Social Injustice”, in M Langford, Social Rights Jurisprudence: Emerging Trends in International and Comparative Law (Cambridge University Press, Cambridge, 2008), 144–62, 146–149.

¹⁴ On the constraints of an institutional conception of democracy in socio-economic rights litigation, see D Brand, “Judicial Deference and Democracy in Socio-economic Rights Cases in South Africa”, in S Liebenberg and G Quinot (eds), Law and Poverty: Perspectives from South Africa and Beyond (Juta & Co, Cape Town, 2012), 172–96.

¹⁵ RA Dahl Democracy and its Critics (Yale University Press, New Haven, 1989), 109. See also his critique of the concept of the guardianship model for making binding decisions on the citizenry (at 65–79).

¹⁶ TH Marshall, “Citizenship and Social Class”, in Class, Citizenship and Social Development (University of Chicago Press, Chicago, 1963), 106 cited by K Rittich “Social Rights and Social Policy: Transformations on the International Landscape”, in D Barak-Erez and AM Gross (eds), Exploring Social Rights: Between Theory and Practice (Hart Publishing, Oxford, 2007), 133.

¹⁷ D Brand, “The ‘Politics of Need Interpretation’ and the Adjudication of Socio-economic Rights Claims in South Africa”, in AJ Van Der Walt (ed), Theories of Social and Economic Justice (Sun Press, Stellenbosch, 2005), 17–36 at 24.

¹⁸ On the development of public interest litigation in the context of Indian Constitutional law, see S Muralidhar, “India: The Expectations and Challenges of Judicial Enforcement of Social Rights”, in M Langford (ed), Social Rights Jurisprudence: Emerging Trends in International and Comparative Law (Cambridge University Press, Cambridge, 2008), 102–24, at 106–9. The South African courts have routinely required the joinder of local authorities to eviction applications brought by private landowners against unlawful occupiers to enable the authorities to facilitate a context-sensitive resolution of the conflict between property and housing rights. See G Muller and S Liebenberg, “Developing the Law of Joinder in the Context of Evictions of People from their Homes”, (2013) 29 SA J on Human Rights 554–70.

¹⁹ See, for example, the linkages between reasonableness, human dignity and the meeting of urgent human needs drawn by the Constitutional Court in Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC), para 44 (hereafter “Grootboom”); Minister of Health v Treatment Action Campaign (no 2) 2002 (5) SA 721, paras 72–78 (hereafter “Treatment Action Campaign”).

²⁰ Soobramoney v Minister of Health, Kwa-Zulu Natal 1998 (1) SA 765 (CC), paras 30–31; Mazibuko v City of Johannesburg 2010 (4) SA 1 (CC), paras 7, 48–68, 87–89.

²¹ Grootboom 2001 (1) SA 46 (CC), paras 45–46; Treatment Action Campaign, paras 115–121; Khosa v Minister of Social Development; Mahlaule v Minister of Social Development 2004 (6) SA 505 (CC), paras 58–62.

²² On dialogic review, see generally K Roach, “Dialogic Judicial Review and its Critics”, (2004) 23 Supreme Court LR 49–104; C Bateup, “The Dialogic Promise: Assessing the Normative Potential of Theories of Constitutional Dialogue”, (2006) 71 Brooklyn LR 1109–80; R Dixon, “Creating Dialogue about Socio-economic Rights: Strong-Form versus Weak Form-Judicial Review Revisited”, (2007) 5 I.CON 391–418.

²³ On structural injunctions in the context of the US school desegregation litigation, see M Tushnet, Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative Constitutional Law (Princeton University Press, Princeton, 2008), 254–56; On the continuing mandamus in Indian constitutional law, see S Parmer and N Wahi, “India: Citizens, Courts and the Right to Health: Between Promise and Progress?”, in AE Yamin and S Gloppen (eds), Litigating Health Rights: Can Courts Bring More Justice to Health? (Harvard University Press, Cambridge, MA, 2011), 155–89, at 172–74. Finally, for an assessment of structural interdicts in the context of socio-economic rights litigation in South African, see C Mbazira, Litigating Socio-economic Rights: A Choice Between Corrective and Distributive Justice (Pretoria University Law Press, Pretoria, 2009), 165–225; S Liebenberg, Socio-Economic Rights: Adjudication Under a Transformative Constitution (Juta & Co, Cape Town, 2010), 424–438.

²⁴ See M Dorf and C Sabel, “A Constitution of Democratic Experimentalism”, (1998) 98 Columbia LR 267–473; C Sabel and W Simon, “Destabilization Rights: How Public Law Litigation Succeeds”, (2004) 117 Harv LR 1016–1101; O Gerstenberg, “Negative/Positive Constitutionalism, ‘Fair Balance’ and the Problem of Justiciability”, (2012) 10 I. CON 904–25; K Young, Constituting Economic and Social Rights (Oxford University Press, Oxford, 2012), 256–87.

²⁵ See generally B Ray “Demosprudence in Comparative Perspective”, (2011) 47 Stan. J. Int. Law 111–73.

²⁶ For accounts of such broad participatory processes in social rights adjudication in the South American context, see: N Angel-Cabo and DL Parmo, “Latin American Social Constitutionalism: Courts and Popular Participation”, in HA García, K Klare, LA Williams (eds), Social and Economic Rights in Theory and Practice: Critical Inquiries (Routledge, Abingdon, 2015), 85–104; R Gargarella, “Deliberative Democracy, Dialogic Justice and the Promise of Social and Economic Rights”, H Alviar García, K Klare, LA Williams (eds), Social and Economic Rights in Theory and Practice: Critical Inquiries (Routledge, Abingdon, 2015), 105–120.

²⁷ Section 25. See generally AJ van der Walt, Constitutional Property Law (3rd edition, Juta & Co, Cape Town, 2011); JM Pienaar, Land Reform (Juta & Co, Cape Town, 2014).

²⁸ Section 26 of the Constitution reads as follows:

1. Everyone has the right to have access to adequate housing;

2. The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right.

3. No one may be evicted from their home, or have their home demolished, without an order of court made after considering all relevant circumstances. No legislation may permit arbitrary evictions.

²⁹ A number of authors have noted the complex set of interventions required to redress the legacy of apartheid housing policy and planning. See, for example M Huchzermeyer, Unlawful Occupation: Informal Settlements and Urban Policy in South Africa and Brazil (Africa World Press, Trenton, 2004); JM Pienaar, “The Housing Crisis in South Africa: Will the Plethora of Housing Policies and Legislation have a Positive Impact?”, (2002) 17 SA Public Law 336–70; S Berrisford, “Unravelling Apartheid Spatial Planning Legislation in South Africa”, (2011) 22 Urban Forum 247–63.

³⁰ See M Strauss and S Liebenberg, “Contested Spaces: Housing Rights and Evictions Law in Post-Apartheid South Africa”, (2014) 13 Planning Theory, 428–48.

³¹ See, for example, E Riedel, “Economic, Social and Cultural Rights”, in C Krause and M Scheinin (eds), International Protection of Human Rights: A Textbook (2nd revised ed, Åbo Akademi Institute for Human Rights, Turku/Åbo, 2012), 131–52 at 135.

³² The duty to make short-term provision for those in urgent housing need was established in the Grootboom case, and laid the foundations for the subsequent evolution of the principle that alternative temporary accommodation should generally be made available by state authorities to those facing homelessness as a result of an eviction. This principle also applies where a private party brings an eviction application: City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 2012 (2) SA 104 (CC).

³³ 2005 (1) SA 217 (CC).

³⁴ PIE was enacted by the post-apartheid government to give effect to section 26 of the Constitution. On PIE and the jurisprudence interpreting it, see generally S Liebenberg, Socio-Economic Rights: Adjudication Under a Transformative Constitution (Juta & Co, Cape Town, 2010), 268–93.

³⁵ PE Municipality 2005 (1) SA 217 (CC), para 39.

³⁶ PE Municipality 2005 (1) SA 217 (CC), para 39.

³⁷ PE Municipality 2005 (1) SA 217 (CC), para 30.

³⁸ PE Municipality 2005 (1) SA 217 (CC), para 45.

³⁹ PE Municipality 2005 (1) SA 217 (CC), paras 30–38.

⁴⁰ PE Municipality 2005 (1) SA 217 (CC), para 59.

⁴¹ 2008 (3) SA 208 (CC).

⁴² See Report of the Centre for Housing Rights and Evictions (COHRE), “Any Room for the Poor? Forced Evictions in Johannesburg, South Africa (8 March 2005)”,available at http://www.escr-net.org/usr_doc/COHRE_Johannesburg_FFM_high_res.pdf (accessed 13 September 2014).

⁴³ City of Johannesburg v Rand Properties (Pty) Ltd and Others 2007 (1) SA 78 (W).

⁴⁴ City of Johannesburg v Rand Properties (Pty) Ltd and Others 2007 (6) SA 404 (SCA).

⁴⁵ Olivia Road 2008 (3) SA 208 (CC), para 5.

⁴⁶ Olivia Road 2008 (3) SA 208 (CC).

⁴⁷ Settlement agreement between City of Johannesburg and the Occupiers of 51 Olivia Road, Berea Township and 197 Main Street, Johannesburg dated 29 October 2007. See the summary in the Olivia Road judgment (2008 (3) SA 208 (CC)), paras 25–26. For an account of the engagement process by the lawyer for the residents, see S Wilson, “Planning for Inclusion in South Africa: The State's Duty to Prevent Homelessness and the Potential of ‘Meaningful Engagement’”, (2011) 22 Urban Forum 265–82.

⁴⁸ As noted by the Court: “Every homeless person is in need of housing and this means that every step take in relation to a potentially homeless person must also be reasonable if it is to comply with section 26(2)” (Olivia Road 2008 (3) SA 208 (CC), para 17).

⁴⁹ Olivia Road 2008 (3) SA 208 (CC), para 21.

⁵⁰ Olivia Road 2008 (3) SA 208 (CC), para 14.

⁵¹ Olivia Road 2008 (3) SA 208 (CC), para 19.

⁵² Olivia Road 2008 (3) SA 208 (CC), para 20.

⁵³ Olivia Road 2008 (3) SA 208 (CC), para 15.

⁵⁴ Olivia Road 2008 (3) SA 208 (CC), para 20.

⁵⁵ Olivia Road 2008 (3) SA 208 (CC), para 21.

⁵⁶ Olivia Road 2008 (3) SA 208 (CC), para 30.

⁵⁷ Olivia Road 2008 (3) SA 208 (CC), para 30.

⁵⁸ Olivia Road 2008 (3) SA 208 (CC), para 39.

⁵⁹ Olivia Road 2008 (3) SA 208 (CC), paras 42–43.

⁶⁰ Olivia Road 2008 (3) SA 208 (CC), para 44.

⁶¹ Olivia Road 2008 (3) SA 208 (CC), paras 47–54.

⁶² Olivia Road 2008 (3) SA 208 (CC), paras 32–36.

⁶³ 2010 (3) SA 454 (CC).

⁶⁴ Residents of Joe Slovo Community, Western Cape v Thubelisha Homes 2011 (7) BCLR 723 (CC) (“Joe Slovo II”).

⁶⁵ For general criticisms of the Court's judgment in this regard, see K McLean, “Meaningful Engagement: One Step Forward or Two Back?” (2010) 3 Constitutional Court Rev 223–42; L Chenwi, “‘Meaningful Engagement’ in the Realisation of Socio-economic Rights: The South African Experience” (2011) 26 Southern African Public Law 128–56, at 146–147.

⁶⁶ Joe Slovo I 2010 (3) SA 454 (CC), para 378 (footnotes omitted). See also para 247 (per Ngcobo, J).

⁶⁷ 2010 (3) SA 454 (CC), paras 379–384 (per Sachs, J).

⁶⁸ See, for example, 2010 (3) SA 454 (CC), para 117 (per Yacoob, J); para 296 (per O'Regan, J).

⁶⁹ 2010 (2) BCLR 99 (CC).

⁷⁰ 2010 (2) BCLR 99 (CC), para 122.

⁷¹ 2010 (2) BCLR 99 (CC), paras 113–115.

⁷² 2013(1) SA 323 (CC).

⁷³ The terms of the tender are set out in full in the Schubart Park judgment, 2013(1) SA 323 (CC), para 12. This order had been endorsed by the High Court in a legal challenge brought by the residents to their eviction.

⁷⁴ 2013(1) SA 323 (CC), para 50.

⁷⁵ 2013(1) SA 323 (CC), paras 46–50.

⁷⁶ See G Muller, “Conceptualising ‘Meaningful Engagement’ as a Deliberative Democratic Partnership”, (2011) 22 Stell LR 742–58, at 753–56. In this regard, Muller draws on Sherry Arnstein's “ladder of citizen participation” developed in S Arnstein, “A Ladder of Citizen Participation”, (1969) 35 J of the American Institute for Planners 216–24.

⁷⁷ See, for example, the factors developed by the UN Committee on Economic, Social and Cultural Rights in determining what constitutes “adequate” housing in terms of article 11(1) of the International Covenant on Economic, Social and Cultural Rights: General Comment No 4 (Sixth session, 1991) “The Right to Adequate Housing”, UN doc. E/1992/23, para 8.

⁷⁸ A Cornwell, “Spaces for Transformation? Reflections on Issues of Power and Difference in Participation in Development”, in S Hickey and G Mohan, “Towards Participation as Transformation: Critical Themes and Challenges”, in S Hickey and G Mohan (eds), Participation from Tyranny to Transformation (Zed Books, London, 2004), 75–91; S Liebenberg and K Young, “Adjudicating Social and Economic Rights: Can Democratic Experimentalism Help?”, in H Alviar García, K Klare, LA Williams (eds), Social and Economic Rights in Theory and Practice: Critical Inquiries (Routledge, Abingdon, 2015), 237–57.

⁷⁹ For an extended critique of this managerial model of judicial oversight, see R Sandler and D Schoenbrod, Democracy by Decree: What Happens When Courts Run Government (Yale University Press, New Haven, 2003).