'Meaningful engagement' in the realisation of socio-economic rights : the South African experience

• Author: Lilian Chenwi
• Pages: 128-156
• Date: 01 January 2011
• DOI: 10.10520/EJC153212
• Published date: 01 January 2011

‘Meaningful engagement’ in the

realisation of socio-economic rights: The

South African experience

Lilian Chenwi

*

1Introduction

One of the key concerns, evidenced from South Africa’s socio-economic rights

jurisprudence, that has impacted negatively on the realisation of socio-economic

rights in the country, especially at grass roots level, has been the inability or limited

opportunities for participation of, and reasonable engagement with, a majority of the

population in decision making processes of government and in the provision of

services. More often than not, government officials have assimilated the Apartheid

system where decisions are made in a centralised bureaucracy without involving

local people. This is despite the Constitution’s contemplation of a participatory

democracy that is accountable, transparent, responsive and open and makes

provision for the participation of society in decision-making processes. In 2009, the

South African Department of Cooperative Governance and Traditional Affairs

initiated a national assessment of local government to determine the extent of

problems in relation to service delivery. Some of the problems identified included a

break-down of local democracy, poor communication and accountability

relationships with communities, weak community participation, and community

alienation caused by insufficient attention to ‘bottom-up’ planning and consultative

processes.

1

In addition, based on research conducted in an informal settlement in

Cape Town, South Africa, Lemanski attributes the failures of both government and

market interventions to address local level poverty largely to the exclusion of poor

people from projects and planning.

2

In addition, Williams writes that community

*

Associate Professor of Law, University of the Witwatersrand. I would like to acknowledge the

Community Law Centre, where I was previously based when this article was written.

1

Department of Cooperative Governance and Traditional Affairs State of Local Government in South

Africa: Overview Report (2009) 4, 72 and 73.

2

Lemanski ‘Houses without community: Problems of community (in)capacity in Cape Town, South

Africa’ (2008) 20 Environment and Urbanization 393 at 393.

‘Meaningful engagement’ in the realisation of socio-economic rights 129

participation in post-apartheid South Africa is largely spectator politics with

communities becoming endorsers of pre-designed planning programmes.

3

There

is, therefore, a need to promote the effective participation of communities in the

service delivery processes of government in line with the tenets of participatory

democracy. This should be promoted not just as a legal requirement or a means to

an end, but as something more substantial – as a fundamental right,

4

an important

component of South Africa’s democracy (explained subsequently), and as an

important notion in relation to the upliftment and empowerment of the poor.

Meaningful engagement is thus an important development in the South African

Constitutional Court’s approach to enforcing socio-economic rights and fostering

effective participation in service provision. It has featured prominently in recent

decisions of South African courts – the Constitutional Court in particular – as a

process through which substantive entitlements can be defined and implemented

for specific groups of people. Broadly speaking, as explained elsewhere,

meaningful engagement occurs when communities or individuals and the

government talk and listen to each other, in order to achieve certain objectives. The

objective of any engagement is context sensitive. Put differently, meaningful

engagement requires the state to pay particular attention to its constitutional

responsibilities when it develops policies and programmes and in the provision of

services, and to effectively seek and consider the views of beneficiaries. It is thus

a neutral space where people and the state can discuss and shape options and

solutions to difficult issues.

5

Meaningful engagement is more democratic and more

flexible and responsive to the practical concerns that socio-economic rights raise.

By providing individuals and communities with an opportunity to influence the

development and implementation of socio-economic policies and programmes,

meaningful engagement would ensure that they are active stakeholders rather than

just passive recipients of socio-economic goods and services.

In order to understand what meaningful engagement is and is not, the

concept needs to be distinguished from other concepts such as participation,

consultation and mediation. Though it is, at first glance, similar to these concepts,

meaningful engagement as developed by the Constitutional Court goes beyond

mere participation, consultation or the right to be heard.

Generally speaking, engagement and participation are both processes

through which individuals and communities influence policy-making, priority

3

Williams ‘Community participation: Lessons from post-apartheid South Africa’ (2006) 27 Policy

Studies 197 at 197.

4

The right of participation is implicit in the South African Constitution, as it is derived from various

constitutional provisions that speak to participation. See, eg, s 152 and s 195 of the Constitution.

Also, constitutional rights such as freedom of expression, access to information and just

administrative action are important to enable, support and strengthen participation.

5

Chenwi and Tissington Engaging meaningfully with government on socio-economic rights: A focus

on the right to housing (2010) 9.