Browsing by Author "Muller, Gustav"

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    Conceptualising "meaningful engagement" as a deliberative democratic partnership
    (Juta Law Publishing, 2011-09) Muller, Gustav
    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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    The impact of Section 26 of the Constitution on the eviction of squatters in South African law
    (Stellenbosch : Stellenbosch University, 2011-12) Muller, Gustav; Liebenberg, Sandra; Van der Walt, A. J.; Stellenbosch University. Faculty of Law. Dept.of Public Law.
    ENGLISH ABSTRACT: This dissertation considers the housing rights of unlawful occupiers in the post-1994 constitutional dispensation. Section 26 of the Constitution of the Republic of South Africa, 1996 affords everyone a right of access to adequate housing. This provision is a decisive break with the apartheid past, where forced eviction banished black people to the periphery of society. The central hypothesis of this dissertation is that the Constitution envisages the creation of a society that is committed to large-scale transformation. This dissertation posits that it is impossible to realise the full transformative potential of section 26 of the Constitution in the absence of an independent and substantive understanding of what it means to have access to adequate housing. This dissertation traverses legal theory as well as the common law of evictions, constitutional law and international law. A consciously interdisciplinary approach is adopted in seeking to develop the content of section 26 of the Constitution, drawing on literature from social and political science. This dissertation develops an organising framework for giving substantive content to section 26(1) of the Constitution with reference to the International Covenant on Economic, Social and Cultural Rights; the Convention for the Protection of Human Rights and Fundamental Freedoms; the Revised European Social Charter, the American Convention on Human Rights and the African Charter on Human and Peoples’ Rights. This dissertation shows that the adjudication of eviction disputes has moved away from a position under the common law where Courts had no discretion to refuse eviction orders based on the personal circumstances of the squatters. The adjudication of the eviction of unlawful occupiers now requires a context-sensitive analysis that seeks to find concrete and case-specific solutions. These solutions are achieved by considering what would be just and equitable for both the land owner and the unlawful occupiers. This dissertation also shows that the government has a markedly different role to fulfil in post-apartheid evictions through the necessary joinder of local authorities to eviction proceedings, meaningful engagement with unlawful occupiers and the provision of alternative accommodation in terms of its constitutional and statutory obligations.