Engagement's possibilities and limits as a socioeconomic rights remedy.

• Published date: 22 September 2010
• Author: Ray, Brian
• Date: 22 September 2010

TABLE OF CONTENTS
                I. INTRODUCTION
                II. THE ENGAGEMENT CASES
                 A. Olivia Road: A Successful Engagement
                 B. Mamba: A Failed Engagement
                 C. Joe Slovo: Refining Engagement
                III. TOWARDS POLITICAL ENGAGEMENT
                 A. Litigation Engagement
                 B. Political Engagement
                IV. CONCLUSION
                

I. INTRODUCTION

In February 2009, the Constitutional Court of South Africa (the "Court") developed an innovative remedy in housing rights cases that it termed "engagement." (1) In its most basic form, engagement requires municipalities to use negotiation or mediation when it becomes clear that the adoption of a new policy will require evicting residents. (2) But the Court's description of engagement envisions much broader application and imposes potentially far-reaching obligations on municipalities and other levels of government. At the same time, engagement offers a potentially powerful tool to civil society organizations active in socioeconomic rights issues.

Since first developing engagement in Olivia Road, (3) the Court has used the remedy in only a handful of cases. (4) In one case, the Court unsuccessfully attempted to use engagement to resolve an urgent dispute over the timeframe and terms for closing camps that housed refugees of the xenophobic violence that wrecked South Africa in May 2008. (5) In a second case, the Court used engagement to give residents some measure of control over the implementation (6) of what one commentator called "the largest judicially sanctioned eviction of a community in [South Africa's] post-apartheid period." (7) These two cases, together with Olivia Road, offer important lessons for understanding both the untapped potential of engagement as well as its limits.

This Article first analyzes the Court's three engagement decisions. It then divides engagement into two different categories--litigation engagement and political engagement--and offers suggestions for transforming the process into a more effective remedy in each category. Drawing on the work of Charles Epp, this Article argues that political engagement, if structured correctly, offers the greatest potential as an effective mechanism for enforcing socioeconomic rights. Realization of that potential will require a sustained commitment by civil society organizations active in socioeconomic rights issues and a shift from using engagement as a litigation tactic to using it as a tool for political advocacy.

II. THE ENGAGEMENT CASES

A. Olivia Road: A Successful Engagement

Olivia Road began as a series of emergency applications in the Witwatersrand High Courts by the City of Johannesburg to evict over three hundred people from six properties in inner-city Johannesburg. (9) The City sought these evictions as part of a broader regeneration strategy, one aspect of which was the identification, clearance, and ultimate redevelopment of over two hundred "bad" buildings--with some 67,000 occupants--in the inner-city district. (10)

Several civil society groups and NGOs coordinated the residents' challenge to these evictions with tremendous initial success. (11) The High Court rejected the City's eviction application and issued a broad order holding that the City had violated section 26 of the Constitution, the fight to access to adequate housing, by pursuing these evictions without a plan to house the evicted residents. (12) The court also enjoined the City from seeking to evict the residents, and ordered it to develop a plan for housing the litigants and other residents, as required by Gov 't of S. Afr. v. Grootboom, the court's first housing rights decision. (13) But, on appeal, the intermediate appellate court, the Supreme Court of Appeal ("SCA"), reversed the High Court's order and held that the evictions were constitutionally permissible and triggered only a very limited responsibility by the City to relocate the displaced residents. (14)

The residents appealed the SCA's order to the Constitutional Court, which accepted the application in May 2007. (15) The Court heard oral argument on August 28, 2007, and two days later issued its first "engagement" order requiring the parties 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." (16) The Court also ordered the parties to file affidavits with the Court approximately one month later, reporting the results of the negotiations. (17)

After engaging over several months, the parties eventually reached a partial settlement that largely granted the residents the terms they had sought and won at the High Court, and also incorporated provisions for broader change in the City's inner-city housing policy. (18) Among other things, the City agreed to cease its eviction attempts and to take specific measures to make the existing buildings safer and more habitable by cleaning the buildings and providing sanitation services, access to water, and functioning toilets. (19) Before relocating the residents from the buildings designated for redevelopment, the City agreed to refurbish several other buildings in innercity Johannesburg and to provide essential services at reasonable cost.z° Finally, the City agreed to continue to engage on longer-term solutions to the housing crisis. (21)

The parties returned to the Court seeking not only approval of the specific terms of the settlement, but also a decision on the larger issue central to the case: whether the City had a plan that complied with Grootboom's requirements. (22) While the settlement largely remedied the concerns of individual residents, the Grootboom issue was key to whether the litigation would have effect beyond these specific individuals. At this point, both sides viewed the settlement as important but subsidiary to the plan issue, and many expected the Court to use this decision as an opportunity to clarify and possibly expand the substantive requirements of section 26 as it had done in a very tentative manner in Grootboom. (23) The City argued that a plan it had developed as the litigation progressed was adequate, and the Court should approve it. (24) The residents argued that the City failed to consult them or others on the plan and that the Court should order further briefing on the issue. (25)

To the surprise of both sides, in its final opinion and order issued several weeks later, the Court refused to address the Grootboom issue. (26) Instead, the Court formalized the engagement process that resulted in the settlement in this case into a constitutional requirement for all future cases where eviction is a possibility. The Court first located engagement within several constitutional provisions, including the state's obligation to "encourage the involvement of communities and community organizations in local government," as well as the rights to human dignity and life. (27) The Court then described in more specific terms what engagement should entail.

First, the Court re-emphasized that engagement is part of the broader reasonableness requirement it had established in Grootboom and that reasonableness may in some situations require "mak[ing] permanent housing available and, in others, ... provid[ing] no housing at all. The possibilities between these extremes are almost endless." (28)

Second, in most cases, and in particular where a large-scale program is involved, engagement cannot be "ad hoc." (29) This means that whenever government begins a long-term planning process like the City of Johannesburg's redevelopment project, the entity responsible must build engagement into that process from the outset. Long-term engagement of this type will require a cadre of "competent sensitive council workers skilled in engagement." (30) In other words, key bureaucratic and administrative structures must incorporate engagement and engagement training. The government has an obligation to use those resources to engage well before litigation is even a possibility.

Third, the Court acknowledged the vulnerability of citizens facing evictions and their need for skilled representation. (31) To deal with this power imbalance, the Court specifically recognized that civil society groups have a constitutional role to play: "Civil society organizations that support the peoples' claims should preferably facilitate the engagement process in every possible way." (32)

Finally, the Court required the government to develop and maintain a public record of each engagement so that courts could later review not only the outcome but also the engagement process. (33) Emphasizing that "secrecy is counter-productive to the process of engagement," the Court stated "the provision of a complete and accurate account of the process of engagement including at least the reasonable efforts of the municipality with that process would ordinarily be essential." (34) Courts are then empowered to review "[w]hether there had been meaningful engagement between a city and the resident about to be rendered homeless." (35) The Court emphasized that failure to meaningfully engage can by itself--irrespective of the substantive merits of the policy requiring eviction--be the basis for a court to deny an eviction request: "The absence of engagement or the unreasonable response of a municipality in the engagement process would ordinarily be a weighty consideration against the grant of an eviction order." (36)

Olivia Road represents the high watermark for engagement to date. Although real engagement occurred extremely late in the process--literally after the parties had left the courthouse--it nonetheless was highly effective in obtaining substantial relief with genuine commitment to the remedy from both sides. As discussed in Part III, below, the procedural posture of the case, in particular the High Court's injunction, played an important role in the effectiveness of engagement in this case.

The...