Conceptualising “Meaningful Engagement” as a Deliberative Democratic Partnership

• Jurisdiction: South Africa
• Author: Gustav Muller
• Citation: (2011) 22 Stell LR 742
• Date: 16 August 2019
• Pages: 742-758
• Published date: 16 August 2019

742

CONCEPTUALISING “MEANINGFUL

ENGAGEMENT” AS A DELIBERATIVE

DEMOCRATIC PARTNERSHIP

Gustav Muller

LLB LLD (Stellenbosch)

Project Manager, Law and Poverty Project, Department of Public Law, Stellenbosch

University*

1 Introduction

Nearly four years ago the Constitutional Cou rt introduced a new concept

into the law of evictions. Aft er heari ng oral arg ument in Occupiers of 51

Olivia Road, Berea Township, and 197 Main Street, Johannesburg v City of

Johannesburg1 (“Occupie rs of 51 Olivia Road”) the Constitutional Court

issued an inter im order2 that directed the parties “to engage with each

other me aningfully”.3 In this case the City of Johan nesburg sought to evict

approximately 400 people f rom six buildi ngs in ter ms of the re bylaws of

the City, sect ion 20 of the Hea lth Act 63 of 1977 and section 12(4)(b) of the

National Building Regulations and Building Standards Act 103 of 1977. The

occupiers opposed the application because an eviction and relocation to an

informal settleme nt on the outskirt s of the city would destroy their livelihood

strategies that depended on being able to conduct i nformal trading, domestic

work and recycling in the inne r city of Johannesburg.

The Court explained that t he purp ose of this engagement order was to

determine whether the values of the Constitution of the Re public of South

Africa, 1996 (“the Constit ution”), the constitutional and st atutory obligations

of the City, and the r ights of the applicant s could direct the par ties to resolve

the di spute of the application amicably.4 The engagement between the

parties also had to determine whether the plight of the applicants would be

alleviated if the dangerous and ailing buildings that they occupied could be

* I would like to thank the Overar ching Strat egic Research and Outre ach Project on Combating Poverty,

Homelessness and Socio-E conomic Vulne rability un der the Co nstitution fo r financi al support I would

like to thank Prof Sandra Lieb enberg (HF Oppenheime r Chair in Human Rig hts Law) and P rof AJ van

der Walt (South Afr ican Resea rch Chair in Pro perty L aw) for thei r comment s on ea rlier dra fts of this

text wh ich forms part of my LLD diss ertation entitled “The Im pact of Section 26 of t he Constit ution

on t he Eviction of Squatters in South Af rican Law” I would als o like to t hank Prof Geo Quinot for

actively engaging wit h me about meaningful engageme nt over the past four years and the anonymous peer

reviewers for the ir helpful commen ts on the article

1 2008 3 SA 208 (CC)

2 The inter im order was is sued on 30-08-2007 Occupiers of 51 O livia Road , Berea Township, an d 197

Main Street , Johannesburg v City of Johann esburg (Interim Or der 30 August 20 07) (CCT 24/07) ZACC

(30-08-2007) Constitution al Court of South Af rica

PDF> (accessed 17-11-2011) (“ Interim Orde r”)

3 Order 1

4 Order 1

(2011) 22 Stell LR 742

© Juta and Company (Pty) Ltd

upgraded.5 Furt hermore, the interim order directed the parties to report back

to the Court on the results of the engagement between them.6 This engagement

process resulted in the parties reaching an agreement7 on t he i nterim measures

that the City would ta ke to improve the livi ng conditions on the prop erties8

and t he status of the Cit y’s eviction application against the occupiers.9 The

Court subsequently endor sed this agreement.10

Five months later, the Cour t, in its judgment explaine d that a municipality

would be acting in a manner that was generally at odds with the spirit and

purpose of a range of constitut ional obligations if it evicted people from

their homes without rst meaningf ully e ngaging with them.11 The Court

explicitly linked meaningfu l engagement with the obligation to ta ke reasonable

legislative and other measures within its available resources to provide access

to adequate hou sing.12 T he Court afrmed its interpretive approach to the

right of acce ss to adequate housing by also lin king the obligation to engage with

the rig ht to human dignity13 and the right to life.14 Finally, the Court li nked

meaningfu l engagement with the obligations that municipalities have to strive

towards the provision of services in a sustainable manner;15 t he promotion

of social and economic development;16 and the involvement of communities

and community org anisations in the affairs of local government.17

The Court makes it plain in these reasons for the engagement order that

homelessness a s a result of eviction is still a very real possibility for many

people. Local authorities should therefore engage with these people b efore any

decision is ta ken on the formulation a nd implementation of a housing policy

or programme that w ill inevitably lead to their eviction and relocation.

The Court proceeded to dene meaningful engagement as “a two-way

process” in which a local author ity and those t hat stand to b e evicted would

5 Order 2

6 Order 3

7 The parties reached the ag reement on 29-10-2007 Occupiers of 51 Olivia Road, Berea Townsh ip, and 197

Main St reet, Johan nesburg v City of Johannesbur g (Agreement 29 O ctober 2007) (CCT 24/07) ZACC

(29-10-2007) (“Agreement”)

8 Cl 11 1

9 Cl 11 2

10 The order was iss ued on 05-11-2007 Occu piers of 51 Olivia Road, Berea Township, a nd 197 Main Street,

Johannesbu rg v City of Johannesburg (Order 5 November 2007) (CCT 24/07) ZACC (05-11-2007)

constitut ionalcourt org za/Archimages/11584 PDF> (accessed 17-11-2011)

11 Occupie rs of 51 Olivia Road, Berea Township, and 197 Main Street, Johannesburg v City of Johannesburg

2008 3 SA 208 (CC) para 16 S ee s 19 of the Lo cal Governme nt: Municipal St ructure s Act 117 of 1998;

ss 16(1) and 17 of the Local Government: Mun icipal Systems Act 32 of 200 0 See fu rther the UN

Committe e on Economic, S ocial and Cultura l Rights General Comment No 4: T he Right to Adequ ate

Housing (1991) UN Doc E/1992/23 paras 8, 12; U N Committee on Ec onomic, Social and Cult ural Rights

General Comment No 7: The Rig ht to Ade quate Housi ng: Forced Ev ictions (1997) UN Doc E/1998/22

paras 13, 15

12 S 26(2) of the Constitu tion; s 9(1)(a)(i) of the Housing Act 107 of 1997

13 S 10 of the Constitu tion provides that “[e]ver yone has inherent d ignity and the r ight to have their dig nity

respected and prote cted” See Gov ernment of the Republi c of South Africa v Grootboom 2001 1 SA 46

(CC) para 83; S Liebenberg “The Value of Human Dignity in Inte rpreting Socio-E conomic Rights” (2005)

21 SAJHR 1 1-31

14 S 11 of the Constitut ion provides that “[e]veryon e has the right to life”

15 S 152(1)(b) of the Constitution

16 S 152(1)(c)

17 S 152(1)(e)

CONCEPTUALISING “MEANINGFUL ENGAGEMENT” 743

© Juta and Company (Pty) Ltd