Conceptualising "meaningful engagement" as a deliberative democratic partnership

Muller, Gustav (2011-09)

CITATION: Muller, G. 2011. Conceptualising "meaningful engagement" as a deliberative democratic partnership. Stellenbosch Law Review = Stellenbosch Regstydskrif 22(3):742-758.

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Nearly four years ago the Constitutional Court created the concept of "meaningful engagement" in Occupiers of Olivia Road, Berea Township, and 197 Main Street, Johannesburg v City of Johannesburg 2008 3 SA 208 (CC). The Constitutional Court described meaningful engagement as a "two-way process" in which a local authority and those that stand to be evicted would talk to each other meaningfully in order to achieve certain objectives. This article questions whether, and to what extent, there is an intersection or duplication between meaningful engagement, in terms of section 26(2) of the Constitution of the Republic of South Africa, 1996, and procedural fairness, in terms of section 33(1) of the Constitution and sections 3 and 4 of the Promotion of Administrative Justice Act 3 of 2000 ('PAJA'). It is argued that meaningful engagement cannot be synonymous with procedural fairness because the definition of "administrative action" in section 1 of PAJA would limit the application of meaningful engagement by excluding executive action from its ambit. Furthermore, both the envisaged nature and duration of engagement ensures that meaningful engagement transcends procedural fairness. It is therefore argued that meaningful engagement should rather be construed as a deliberative democratic partnership between local government and unlawful occupiers. This partnership demands that all the parties, including legal representatives and NGO's, involved in evictions should re-appreciate their respective roles. Finally, it is posited that meaningful engagement is a welcome addition to South African law because it has the potential of fostering increased understanding and appreciation by unlawful occupiers of the limitations of government while simultaneously enabling government to respond to the plight of the unlawful occupiers with sympathetic care and concern.

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