Economic and Social Rights Review
emergency housing, homelessness, evictions, constitutional law, south africa, private property
The case was one of the first applying the Constitutional Court’s holding in City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd and Another, (2) BCLR 150 (CC) (1 December 2011) (Blue Moonlight) that municipalities have an independent obligation to plan and budget for the emergency accommodation needs of people evicted from private property. The City also was the defendant in that case, and so its repeated failures to accommodate the occupants in Hlophe demonstrated a broader failure to implement the planning, budget and policy requirements that flowed from Blue Moonlight. Judge Satchwell recognised this and issued a complex order that attempts to grapple, at a systemic level, with the root causes of the City’s general inability to fulfil its obligations under section 26. In this short comment I’ll use the case and this innovative order to argue that the systemic approach it reflects is an appropriate expansion of a more intrusive procedural role for courts to enforce the social rights provisions. I’ll argue further that the meaningful engagement requirement that was first applied in Occupiers of 51 Olivia Road, Berea Township and 197 Main Street Johannesburg v City of Johannesburg and Others, 2008 (5) BCLR 475 (CC) (19 February 2008) (Olivia Road) provides both a doctrinal framework and an institutional mechanism for that expansion. Courts applying engagement have thus far failed to fully exploit this procedural authority. Judge Satchwell’s order shows that courts can and should seek to identify the root causes of government’s failure to fulfil its obligations under section 26 and other rights. But she, too, missed the opportunity to take the next step by invoking the procedural authority that engagement creates to craft and manage a process that directly addresses the bureaucratic and administrative failures her questions aim to identify.
Brian Ray, Courts, capacity and engagement: Lessons from Hlophe v City of Johannesburg 14 ESR Review 3 (2013).