Socio-Economic Rights: The Second Stage

In a post last week, I argued that the South African Constitutional Court’s first stage of socio-economic rights decisions threaded a needle by enforcing such rights, yet accommodating separation of powers concerns. This new post discusses the second of the Court’s three stages. In this second stage, the Constitutional Court also dealt with several cases in which homeless people were evicted from land where they were “squatting.” Yet in these cases, the Court eventually ordered any municipalities seeking eviction to participate in “meaningful engagement” with the vulnerable community, and ensure that reasonable alternative circumstances were provided. Moreover, the Court essentially encouraged the squatters to return if the government was intransigent. This created a strong incentive for the municipality to treat the “squatters” with dignity. One such case was Occupiers of 51 Olivia Road & Others v. City of Johannesburg, CCT 24/07 (2008). What’s legally innovative about the “meaningful engagement” approach is that it is a kind of forced alternative dispute resolution, in a structural class action type context.