Legal Commentary

As I have written earlier on this blog, the South African Constitutional Court has issued probably the world's most significant cases enforcing socio-economic rights.  In my first post, I described how the South African Constitutional Court in 2000 ruled that the government had a constitutional obligation to develop a policy to protect the homeless, rather than abandon them.  There were, however, some problems with the Court's remedy and with its implemention.  My second post showed how the Court in Treatment Action Campaign saved thousands of lives by ordering the government to provide a pill to HIV infected pregnant women that prevented the transmission of HIV to the fetus.

In a recent case called Occupiers of 51 Olivia Road, the Constitutional Court added another bow to its arrow.  The Court addressed the city of Johannesburg's effort to evict 400 men, women, and children from two devastated buildings. (Recall that there are hundreds of thousands of homeless in South Africa because of Apartheid's racist travel, work, and other restrictions) The city did not, however, propose alternative accommodations.  The Court eventually ordered the city of Johannesburg to "meaningfully engage" with the representatives of the "squatters" to negotiate a mutually agreeable solution.  The Court explained that the city had to act in good faith, and take seriously the constitutionally significant housing problems faced by the squatters.  The Court therefore evened the dispute resolution playing field, in terms of the power imbalance between the municipality and the impoverished.  

Eventually, Johannesburg found alternative accomodations for these individuals, and it could proceed with city "regeneration."  By requiring the city's representatives to truly listen and respond to the plight of these often ignored individuals, the Court developed a procedural mechanism for resolving the dispute without imposing its own substantive remedy.  The decision has great significance for further South African cases and for other international contexts. In my next posts, I will address a major theme in my new book -- the relevance of these socio-economic rights and other cases to American constitutional jurisprudence.