Constitutional Court Review
Eviction, procedural authority, socio-economic rights, separation-of-powers, constitutional law
In December 2011 four of the Constitutional Court’s five socio-economic rights cases turned on evictions.2 The Court decided three eviction-related cases in the 2012 term and two more in 2013.3 For a Court that averages fewer than 30 decisions per term 10 decisions in less than two and a half years is an extraordinary level of attention devoted to a single area of constitutional law.4 Does this sustained attention to eviction cases harbinger a significant development in the Court’s approach to the right to housing in FC s 26 and to socio-economic rights more generally? The cases provide some evidence of this possibility. One rough but important metric is the result and most of these decisions justifiably can be characterised as pro-poor.5 In several cases,the Court exercised a stronger institutional role that echoes its promising early interventions in Government of the Republic of South Africa v Grootboom, Treatment Action Campaign v Minister of Health (No 2) and Khosa and Others v Minister of Social Development and Others. 6 The Court also established important principles that could have far-reaching effects in future eviction cases and might apply outside that context. For these reasons, the newer cases mark a shift away from the deferential role the Court adopted previously in Mazibuko v City of Johannesburg. 7 In several other respects, however, these cases reflect the more conservative features of the Court’s general approach to adjudicating socio-economic rights and the persistence of the separation-of-powers and institutional-competence concerns that cabin the exercise of its powers.
This article explores the tension between these two aspects of this string of decisions. On the one hand the evidence of a stronger judicial role represents a long-standing and genuine commitment to find ways to make the socio-economic rights provisions do the very difficult work of addressing the deep inequalities that the new democratic order deliberately left in place. The pro-poor outcomes and several remarkable doctrinal advances in these decisions show a court working in creative ways to fashion a jurisprudence that aspires to fulfill that promise. In spite of the clear advances these cases make, the separation-of-powers and institutional-competence concerns that have frequently operated to limit the Court’s role in its socio-economic rights decisions continue to feature prominently. These concerns generally have pushed the Court to avoid interpreting these provisions in ways that set clear and wide-reaching precedents that might have potentially significant redistributive effects.
Brian Ray, Evictions, Aspiration and Avoidance, 5 Const. Ct. Rev. 173 (2014).