Category Archives: Geoff Budlender

M&G: Olivia Road case shows how courts can help deepen democracy

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Olivia Road case shows how courts can help deepen democracy

At the heart of our constitutional order is what Etienne Mureinik famously referred to as “the culture of justification”. This is an inherently democratising culture, because those who exercise power have to justify it to those who are affected, in part through the mechanism of the courts.

But there is also a downside to the role of the courts. When we first debated the inclusion of social and economic rights in the Constitution, some expressed concern that this would divert political energy and activism into the depoliticised context of the courts. The concern was that the courts would become the site of struggle, and democratic energy would be demobilised.

There is indeed a real danger in what has been described as the “judicialisation” of politics. One of the best-known dicta of Gary Bellow, a great radical lawyer, was that the worst thing a lawyer can do is to take an issue that could be won by political organisation and win it in the courts.

We have certainly seen an increasing judicialisation of our politics. Litigation on social and economic rights remains limited, but other political issues are increasingly finding their way to the courts. That seems to be the result of a number of factors.

First, it is a result of the perceived inaccessibility and lack of responsiveness of the political system and the institutions of formal democracy. When those processes and institutions do not work, people look elsewhere.

Second, it is encouraged and facilitated by the fact that the government sometimes seems to take poor advice on these matters, and to litigate the cases ineffectively, with the result that some rather doubtful challenges acquire a real prospect of success in the courts.

Third, the rate of success is surprisingly high for another reason. Judges live in the real world. They read newspapers, watch television, engage with the chattering classes, and notice what is happening around them. When other institutions of democracy fail to respond to matters such as corruption, the courts have a tendency to move to fill the vacuum. I think this is part of the animating spirit behind the judgments in cases such as Glenister and the Mail & Guardian’s case against the previous public protector.

The challenge to all of us, inside and outside the legal arena, is how the courts can enhance democratic practice rather than be a mechanism for the depoliticisation of what are fundamentally political issues.

That is not an easy question. It has troubled progressive people in many places. I suspect it is one in which we South Africans may be able to take a lead, as we have on other politico-legal and constitutional questions. We need to open our eyes and minds to how courts have functioned in other societies (India and Columbia strike me as particularly interesting examples) and find ways of using the courts to open up and deepen our democracy.

So how can they do that? A very important insight was provided by the 2008 Olivia Road case. About 400 people lived in two buildings in the inner city of Johannesburg. The buildings were unsafe and unhealthy. The City of Johannesburg ordered the occupiers to vacate the buildings.

The occupiers did not dispute that the buildings were unhealthy and unsafe. They said, however, that the remedy was to address the poor conditions in the buildings, or to find them another place, within reasonable distance, that they could safely occupy. They said that if they were evicted to the outer fringes of the city they would no longer be able to sustain themselves. The city said it could not find them a place in the inner city.

The matter came before the Constitutional Court. After hearing extensive argument, the court made a decision that surprised many. Instead of deciding in favour of either party, it issued an order requiring the city and the occupiers to “engage with each other meaningfully, and as soon as it is possible for them to do so, 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”.

The parties were required to file affidavits by a specified date, reporting on the results of the engagement. The court said account would be taken of these affidavits in the preparation of the judgment.

One could be forgiven for being sceptical about such an order. But the result was remarkable. The parties engaged with each other on these matters. The occupiers were fortunate to be well represented. Both sides knew they had to engage seriously, for two reasons. First, it had been clear at the hearing that neither side enjoyed a decisive advantage in the argument and the outcome was thus uncertain. Second, they knew the court was looking over their shoulder: their conduct in the engagement would be reported to the court.

The parties did reach an agreement. The buildings would be made safer and more habitable on an interim basis. The city undertook to provide all occupiers with alternative accommodation in identified and well-located buildings. The agreement defined the nature and standard of the accommodation to be provided, and determined how rent would be calculated. It obliged all occupiers to move into alternative accommodation by a specified date. It stipulated that the alternative accommodation was provided “pending the provision of suitable housing solutions” being developed “in consultation” with the occupiers.

An apparently intractable dispute had been resolved. Each party had made concessions. The ultimate outcome was respectful of the rights of the occupiers.

How was this result arrived at? It seems to me the litigation and the court’s order for meaningful engagement fundamentally restructured the relationship between the occupiers and the city. Previously, the occupiers had been supplicants for largesse. All they could do was appeal to the goodwill and good intentions of the city. The relationship was fundamentally unequal, and the outcome was predictable.

The court order changed that. It reconfigured the existing power relationship in a manner consistent with our transformative Constitution: it recognised the occupiers as people who had rights, rather than as supplicants for largesse. That transformation of power relations made it possible to resolve the dispute in line with the Constitution.

Was that democratic? Was it consistent with the declaration that “the people shall govern”? It could be argued that the city council had been democratically elected, that (in the words of President Jacob Zuma earlier this month) they had “a mandate given by the people in a popular vote”, and that it was for them to decide what to do. On this reading, the court interfered with representative democracy.

The answer to any such complaint is given by former chief justice Sandile Ngcobo. One of the fundamental principles of our Constitution is that of participatory democracy, which “is of special importance to those who are relatively disempowered in a country like ours where great disparities of wealth and influence exist”.

In other words, what the litigation and the order of the court did was to open up the process of participation in our democracy. People who were powerless became powerful, because they were the holders of rights and were treated accordingly. They became citizens, not subjects.

The courts, accountability and participatory democracy

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The courts, accountability and participatory democracy
13 October 2010
Writing Rights

Salt River: Irene Grootboom brought the first successful socio-economic rights case to the Constitutional Court. The case tested the Court. We had adopted a Constitution which deliberately included social and economic rights, in recognition of the fact that full democracy is more than the right to vote: it also implies social justice, in the form of access to the basic necessities of life which enable us to lead our lives with dignity, and to achieve our full potential as human beings.

Quite obviously, the first job of the courts is to enforce the Constitution and the rights which it contains. A person whose home has been destroyed and who has nowhere she can legally live, has no access to housing and is denied one of the most fundamental necessities of life. A court cannot fold its arms and say that this is bad luck, it is the consequence of apartheid, and one day things may change. The question is not whether the court should do something. Rather, it is what the court should do.

Judges often find this a difficult question. They point out that where there is a large-scale failure to meet the needs and rights of people, one of the questions which has to be answered is “who first?” If you cannot serve everyone at the same time, whose needs should enjoy priority? And there are questions of “how much?” If the right is a right of access to adequate housing, or to education, what quality of housing or education has to be provided before it meets the constitutional standard? How do you assess that when giving more to one may mean giving less to another?

The Grootboom case showed that this is not the first question. The first question is whether there has been a breach of constitutional rights. If there has been a breach, the first duty of the courts is to say so. This is important in itself. It vindicates the complainant, it puts the government on the spot for its failures, and it educates and informs us about our rights and obligations.

The Court declared that the failure of the government to create a programme for emergency relief for those who are in a desperate situation is a breach of the Constitution. The Constitution requires that the government’s housing programme must be reasonable. It is not reasonable to say to someone who is homeless that she must wait, homeless, to be provided with a full house in twenty years’ time.

But having done that, the questions remain: “who first?”, and “how much?” Courts which are faced with these questions usually give two answers.

The first is that the court is not competent to answer those questions. The only people before the court are the complainants and the government: other homeless people, who also have claims, are not there, and are not able to place their facts and their demands before the court. The judges are limited to the information which is placed before them in the case – they cannot rely on any other source of information. And the judges have no skill in formulating housing policy. They do not know what is practically achievable, and how to achieve it.

The second answer which is given is that these decisions should be made by people who are democratically accountable for their decisions. No-one votes for a judge, and a judge who gives a bad decision cannot be voted out of office. These decisions, it is said, should be made by those who are democratically accountable.

There is truth in both of these answers. However, neither of them is a complete answer.

In the first place, the question whether Ms Grootboom should receive a house, or whether the children in mud schools in the Transkei should receive a decent school building, is in truth never the subject of an electoral process. We vote twice every five years, and it is an all or nothing vote. You cannot say I support the ruling party, and I vote for it, but I vote against its policy on emergency housing, or its policy about funding allocations to schools. To suggest that these decisions are subject to a democratically accountable process is rather overstating it. You have to ask yourself the simple question: when did anyone vote against the provision of emergency housing for homeless people? Which party said that children should continue to learn in mud schools in the Transkei, and who voted for that policy?

The claim that government is democratically accountable for these decisions is therefore something of a fiction. We do not vote for these details, and we are never given the opportunity to do so.

Secondly, most of these decisions are not taken by elected office bearers. In the Grootboom case, the government had never made a decision not to provide emergency housing – there was simply a gap in the policy. The housing policy was constructed by officials and experts, and perhaps approved by the Minister. It was never considered by a democratically accountable deliberative body. Similarly, the decisions on what funding to allocate to school buildings are not made by a democratically elected Parliament. They are made by officials and senior politicians, sitting in an office. They are the people who allocate resources. They do the best they can, behind closed doors. They usually do not have to account publicly for those decisions.

Judges sit in public. They have to listen to argument, and they have to give reasons for their decisions. This is a strong form of accountability. I have sat as an acting judge, and I have worked as a government official. I can truthfully say that the pressures of accountability which I felt as a judge were greater than in respect of most of the decisions which I had to take as the head of a government department.

So the argument about non-accountability of judges has to be taken with a pinch of salt. It is true that they are not elected, but it is also true that they have far more direct accountability than many of the people who make the decisions which affect people in their daily lives.

There are, however, valid questions about the competence of judges to make decisions about competing claims to the allocation of resources. I would certainly not want to live in a country run by the judges.

What, then, should judges do when they find a breach of rights, but it is not possible or appropriate for them to decide the detail of the remedy? The key to this is to promote accountability. The principle of accountability for the exercise of power is fundamental to our Constitution.

The first thing the courts can do once they have found a breach, is order the government publicly to state what it has done to remedy the breach, what it will do in future, and when it will do it. This creates the opportunity for the public to hold the government accountable. If the government’s programme is inadequate, it creates the space for public debate and campaigning, for mobilisation and organisation, which will seek to compel the government to do better. The people are given the information which enables them to hold their public representatives to account.

And when the government says what it will do in the future, it creates a benchmark against which its conduct can be tested. If it fails to meet that benchmark, and cannot justify its failure, it may find itself back in court, or it may find itself in the court of public opinion, having to justify its actions to the people. Again, participation and democracy are deepened.

The second thing the court can do is require the government to report to it on its plans, and on the implementation of those plans, so that the court can judge whether this satisfies the constitutional standard. This is sometimes referred to as a structural interdict. The government is given the space to decide how best to give effect to the right, and the court is then asked to decide whether what the government has chosen to do, meets the requirements of the Constitution. This enables the courts to avoid having to decide questions which are beyond its competence, while ensuring that what is done does in fact meets the constitutional standard.

The third thing the Courts can do is make an order which promotes participation and accountability “on the ground”.

For example, the Constitutional Court has held that a municipality which wants to evict people has to “meaningfully engage” with them before bringing any proceedings for eviction. The Olivia Road case showed how this can work. In that case, some hundreds of people were living in the inner city in Johannesburg in truly dreadful privately owned buildings. The buildings were unsafe – there was a high risk of fire, and there were very real health dangers.

The City applied to court to have the people evicted. The people said that they would not go, because they needed to be in the inner city where they earned a modest income – there was nowhere else for them to go, and they would rather stay in those buildings, with all of those risks, than be consigned to the outer darkness of the urban fringes, where they would starve.

What was the Court to do? Was it to order the eviction, knowing that this would likely cause terribly suffering and hardship, or should it allow the people to stay where they are, knowing that this too was likely to cause great suffering and hardship?

The Court did neither. It ordered the parties first to “meaningfully engage” with each other on the solution to this problem, and then to report back to the Court. Now, for the first time, the City had to deal with the residents as equals. Both sides knew that they would have to go back to Court and explain themselves. Both knew that if they acted unreasonably, there was a risk that the Court would make an order against them. The previous inequality between the all-powerful City and the powerless residents was suddenly changed.

The result was remarkable. The City agreed to make some immediate improvements to the buildings, to limit the risk of fire and health hazards. It found other buildings in the City to which the residents could move, once they had been renovated. The residents agreed to leave their homes. They agreed to pay rent if they were able to do so. An apparently intractable situation had been resolved.

What the Court had done, was promote democratic accountability. It made the City account to the residents for its actions, and justify and explain them, and if necessary justify and explain them to the Court. It transformed the residents from people pleading for government largesse, into the holders of rights who were in a position to negotiate with the government because they held rights. That, of course, is the very purpose of rights: it is to transform and regulate power relations.

Fourteen years after the adoption of our final Constitution, deep inequality and poverty continue to mock our efforts to build a democracy based on social justice. The Constitutional Court has shown that there are ways in which the courts can help us to achieve our highest goals by broadening and deepening democratic participation, and promoting the accountability of power.

* Advocate Geoff Budlender – Second Irene Grootboom Memorial Lecture (2010) in Salt River, 11 October 2010)