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316 Chapter 13
a fairly weak interpretation of the right and a weak remedy. In
Grootboom 124 and TAC, 125 the weak remedy was partly attributable to the
actual or perceived shift in state policy prior to the order being handed
down, rendering a more forceful remedy unnecessary. It is only in
Khosa 126 that a direct, positive obligation is imposed upon the state.
More recently, the Constitutional Court has used the notion of
meaningful engagement in its adjudication of evictions cases. In Olivia
Road, 127 the Court failed to engage with the ‘hard’ issues, preferring instead
to refer the matter back to the parties to attempt to sort out the dispute
between themselves. In doing so, the Court failed to engage with the
substance of the attack on the constitutionality of the City’s housing policy
and retreated to a consideration of procedural fairness. Similarly, in Joe
Slovo, 128 the Court ordered a massive eviction, even where the state had
failed to engage meaningfully with those affected by its decision. In a
context where the Constitution guarantees that no one will be evicted from
a home without a court order made after considering all relevant
circumstances, this failure is regrettable.
It is suggested that the concept of meaningful engagement, while
rendering explicit an obligation to consult with those affected by
administrative action, masks a further retreat by the Court in its differential
treatment of socio-economic rights. The reasonableness test developed in
Grootboom, 129 at its minimum, was an administrative law reasonableness
review. 130 Joe Slovo marks a preoccupation with procedural fairness, in an
assessment of whether the eviction was just and equitable; at the same time
the ‘laudable’ aims of a misconceived development were used to trump
those very procedural fairness rights.
4 Conclusion
This article ends with some reflections regarding the use which this
discussion of constitutional deference may have for an analysis of socioeconomic
rights adjudication. First, the principle of constitutional
deference creates a framework within which to understand and critique the
rhetoric of deference employed by the courts; second, it provides a
perspective to understand what the courts are doing even when they do not
use the language of deference; third, it allows for analysis of judicial
124 Grootboom (n 117 above) para 99.
125
TAC (n 104 above) paras 117 - 122.
126 Khosa (n 123 above).
127 Occupiers of 51 Olivia Road, Berea Township, and 197 Main Street, Johannesburg v City of
Johannesburg 2008 3 SA 208 (CC) para 34.
128 Residents of Joe Slovo Community, Western Cape v Thubelisha Homes 2010 3 SA 454 (CC) para 7
order 16.
129
Grootboom (n 117 above).
130 C Sunstein Designing democracy: What constitutions do (2001) 234.