Toward effective social and economic rights adjudication: The role of meaningful engagement

Abstract

In the 2008 Olivia Road case, dealing with housing rights, the South African Constitutional Court handed down an interim order designed to ensure that the parties " engaged with each other meaningfully on certain issues." Many of the issues between the parties were resolved through this engagement. And concerns about the constitutional and institutional limits of the judicial role were addressed by the fact that the state was a cocreator of the agreement. But in the more recent Joe Slovo decision, the Court ordered eviction in the context of a seriously flawed governmental approach to engagement with the affected community. In this article, I argue that meaningful engagement may be viewed as a tangible expression of a deliberative version of judicial review and that it is potentially a very useful means of implementing social and economic rights while preserving the democratic legitimacy of legislative bodies. However, the South African cases also raise a number of concerns to be borne in mind by those attempting to use meaningful engagement to drive social and economic rights adjudication forward. © The Author 2012. Oxford University Press and New York University School of Law. All rights reserved.