The recent judgment of the South African Constitutional Court in Schubart Park Residents Associationhas again demonstrated the flexible nature of meaningful engagement. ’Meaningful engagement‘ requires government to engage meaningfully with citizens and was first used as a remedy in Olivia Road, where the City of Johannesburg sought to evict over 400 occupiers from unsafe buildings. The Court issued an interim order, requiring the City and the occupiers to ‘engage with each other meaningfully … in an effort to resolve the differences and difficulties aired in this application in the light of the values of the Constitution, the constitutional and statutory duties of the municipality and the rights and duties of the citizens concerned’. The outcome of the engagement was a detailed agreement that included measures to render the buildings safer and more habitable and to provide alternative accommodation for the occupiers in the Johannesburg inner-city. Meaningful engagement has subsequently been used mainly in eviction cases.
However, in Schubart Park, residents had been dispossessed of their homes in circumstances of urgency. The Court held that the High Court’s dismissal of the residents’ application for restoration of occupation could not replace an order for eviction as required by section 26(3) of the South African Constitution and that the residents were entitled to occupation of their homes as soon as reasonably possible. Several pronouncements by the Court recognised that meaningful engagement could potentially apply to a range of cases beyond eviction. The Court recognised that many provisions in the Constitution ‘require the substantive involvement and engagement of people in decisions that may affect their lives’. What is more, the Court held that the right to dignity entitled the occupiers to be treated as equals in the engagement process and that engagement could be ordered in terms of section 38 of the Constitution, which empowers a court to grant ‘appropriate relief’. Meaningful engagement on this conception is thus not only rooted in section 26(2) of the Constitution, which provides that the State must take reasonable measures to progressively realise the right of access to adequate housing.
The widened scope of application for meaningful engagement is to be welcomed, but how can this notion be conceptualised to expand its scope optimally? One possible conceptualisation entails the recognition that administrative law’s requirement for procedural fairness can be substantively developed to incorporate meaningful engagement. This will allow meaningful engagement to be applied in eviction and other cases where administrative justice is required. Reasonableness review in socio-economic rights adjudication ‑ whereby courts determine whether government policies, laws and actions aimed at progressively realising socio-economic rights are reasonable ‑ has been widely criticised as constituting a weak, administrative-law model of review that fails to engage with the substantive content of socio-economic rights or to recognise immediately enforceable claims to these rights. In 2003, Danie Brand termed this the ‘proceduralisation’ of socio-economic rights jurisprudence. Meaningful engagement, which avoids the substantive interpretation and enforcement of rights by largely deferring to the outcome of engagement between the litigating parties, has likewise been criticised as constituting a further step in this deferential retreat into proceduralisation.
A positive conception of meaningful engagement as substance-infused procedural fairness can serve to counter criticism in this regard by situating it within the sphere of administrative law rather than within reasonableness review ‑ thus not watering down reasonableness review any further. Recognising it as ancillary to reasonableness review can avert the danger that this procedural requirement will replace the need for substantive interpretation of socio-economic rights. Meaningful engagement conceived of as the evolution of administrative law’s procedural fairness, on the one hand, and substantive interpretation of socio-economic rights, on the other hand, can thus co-exist to form a collaborative partnership.This synergy would result in the content of the socio-economic right determining the intensity of engagement rather than presenting an either/or choice where the content of the right is subsumed by administrative-law like, procedural considerations. Indeed, as meaningful engagement/substantive procedural fairness and reasonableness review can operate in tandem, a place for the substantive interpretation of socio-economic rights will be preserved. A positive conceptualisation of meaningful engagement as substance-infused procedural fairness may serve administrative justice and socio-economic rights better than a negative conceptualisation of meaningful engagement as yet another instance of the proceduralisation of socio-economic rights.
Shanelle is a junior visiting academic at the University of Oxford and a doctoral candidate and member of the Socio-Economic Rights and Administrative Justice research group at Stellenbosch University, South Africa. Her research visit to Oxford was made possible by an Oppenheimer Memorial Trust scholarship.