The role of public participation viewed in the context of adjudicating socio-economic rights

• Author: Itumeleng Clarence Tshoose
• DOI: 10.10520/EJC-1033db5f0e
• Published date: 01 August 2017
• Date: 01 August 2017
• Record Number: sapr1_v32_n1_2_a17
• Pages: 1-18

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https://doi.org/10.25159/2522-6800/3560

ISSN 2522-6800 (Online) ISSN 2219-6412 (Print)

© Unisa Press 2017

Southern African Public Law

https://upjournals.co.za/index.php/SAPL/index

Volume 32 | Number 1 and 2 | 2017 | pp.1–18

ARTICLE

The Role of Public Participation Viewed in the Context of

Adjudicating Socio-economic Rights

Itumeleng Clarence Tshoose*

Associate Professor in the Department of Mercantile Law

University of South Africa

Email:tshooci@unisa.ac.za

ABSTRACT

This article examines how the courts have applied and interpreted the principles of public

participation in the context of adjudicating socio-economic rights. In this light, this article

adds to the contributions paying tribute to Justice Ngcobo in the following ways. First, it

examines the role of public participation viewed in the context of adjudicating socio-economic

rights. Secondly, it reects on the jurisprudence of the South African courts with regard to

the application and interpretation of the principles of public participation in the course of

adjudicating socio-economic rights. Thirdly, it examines the dynamics of public participation,

and then revisits the strategies for achieving it.

Keywords: public participation; socio-economic rights; poverty; adjudication; public involve-

ment.

* My appreciation goes to the anonymous reviewers of this article for their valuable comments; the

remaining errors are my own.

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Tshoose The Role of Public Participation

Introduction

One of the fundamental characteristics of the Constitution1 is the inclusion of economic

and social rights.2 In addition, section 7(2) of the Constitution mandates the State to

respect, protect, promote and full these rights. Furthermore, courts, tribunals and

forums are entrusted with the obligation in terms of section 39(2) to promote the spirit,

purport and objects of the Bill of Rights when interpreting any legislation. In the context

of socio-economic rights, the courts may hand down judgments that have major policy

implications without giving large sections of the population who may be aected by

the decision the opportunity to be heard.3 One of the major features of adjudication is

to develop interpretations of rights that are responsive to the lived experiences of those

aected by a particular social and economic issue.4 At the same time,

[t]hroughout the process of making binding decisions, citizens ought to have adequate

opportunity, and an equal opportunity, for expressing their preferences as to the nal outcome.

They must have adequate and equal opportunities for placing questions on the agenda and for

expressing reasons for endorsing one outcome rather than another.5

South Africa’s democracy is founded on principles of accountable governance

and public participation. Public participation plays a key role insofar as monitoring

government performance, strengthening public accountability, and driving service-

delivery improvement are concerned. Ngcobo J succinctly captured the very essence of

public participation when he stated:

[o]ne of the purposes of the public participation … is to aord people the opportunity to express

their views on [matters] that will impact on [their] socio-economic conditions.6

Kapindu argues that socio-economic rights are empowerment rights as they allow

socially vulnerable and marginalised individuals and groups to use the legal process in

order to obtain the satisfaction of their essential socio-economic needs.7 He further notes

that socio-economic rights empower people who are subject to the jurisdiction of a State

1 The Constitution of the Republic of South Africa, 1996 (‘the Constitution’).

2 Section 27(1) of the Constitution provides that everyone has the right to have access to healthcare

services, sucient food and water, and social security—including, if they are unable to support

themselves and their dependants—appropriate social assistance. Similarly, s 26(1) provides that

everyone has the right to have access to adequate housing.

3 Sandra Liebenberg, ‘Participatory Approaches to Socio-economic Rights Adjudication: Tentative

Lessons from South African Evictions Law’ (2014) 32(4) Nordic J of Human Rights 316.

4 ibid.

5 Robert Dahl, Democracy and its Critics (Yale University Press 1989) 109.

6 Fuel Retailers Association of Southern Africa v Director-General: Environmental Management,

Department of Agriculture, Conservation and Environment, Mpumalanga Province & Others 2007

(10) BCLR 1059 (CC) para 76.

7 Redson Kapindu, ‘Courts and the Enforcement of Socio-economic Rights in Malawi: Jurisprudential

Trends, Challenges and Opportunities’ (2013) 13 African Human Rights LJ 126.