Meaningful engagement as a remedy for socio-economic rights in South Africa

South Africa’s 1996 Constitution is renowned for its inclusion of an expansive range of justiciable socio-economic rights. The South African Constitutional Court has taken different approaches in the way it reasons its decisions and constantly tries to find appropriate ways of giving effective remedies in cases of socio-economic rights claims. The early years of scholarship on socio-economic rights in South Africa were primarily devoted to the merits and demerits of the Court’s approach. The focus has been the Court’s approach to the interpretation of socio-economic rights, particularly the reasonableness standard of review for the positive obligations imposed upon government by these rights. However, the Constitutional Court has developed an innovative practice called meaningful engagement in cases relating to evictions and the right to access adequate housing. This approach recognizes that there is a variety of legitimate ways to ensure and implement socio-economic rights, and also promotes the participation of both government authorities and communities, as well as individual citizens, in the resolving of cases concerning violations of these rights. Rather than impose a decision on the parties, the Constitutional Court directs the parties to engage together in a process to ensure that they themselves, as a result of dialogue, reach a settlement that would lead to a more optimal outcome for both sides, and also to ensure the implementation of socio-economic rights. The meaningful engagement allows persons whose rights have been violated to take part in the process of making state decisions concerning their rights. The deliberations that take place as part of meaningful engagement play a key role in identifying existing problems and circumstances of the case concerning violations of socio-economic rights, which contributes to making more substantiated judicial decisions and also allows to resolve the issues of legitimacy of the Constitutional Court’s decisions and its institutional competence. Overall, the practice of the Constitutional Court illustrates the significance of the participatory and deliberative democracy principles in resolving disputes over violations of constitutional rights. The article examines the emergence of the requirement for meaningful engagement, analyses the case law of the Constitutional Court of South Africa, and considers the benefits and disadvantages of this requirement.