Residents of Joe Slovo Community v Thubelisha Homes and Others: The Two Faces of Engagement

Abstract

In its most recent housing-rights decision, Residents of Joe Slovo Community v. Thubelisha Homes and Others, the South African Constitutional Court approved the eviction of nearly 20,000 residents of an informal settlement north of Cape Town as part of a major redevelopment of the N2 Highway known as the ‘N2 Gateway Project’. The decision – with its echoes of the mass displacements of the apartheid era – disappointed housing-rights advocates who had hoped the Court would extend its landmark decision in Government of the Republic of South Africa v. Grootboom where it held that the City of Cape Town and other government entities failed to meet their obligations to ensure adequate access to housing as required by section 26 of the South African Constitution. In a partial victory for the residents, however, the Court imposed stringent conditions on the relocation process and deployed a substantially strengthened version of the engagement requirement it had first developed in an earlier eviction case, Occupiers of 51 Olivia Road, Berea Township and Others v. City of Johannesburg and Others. At its core a simple requirement that government consult with residents before evicting them, engagement offers a creative and flexible tool for advocates of socioeconomic rights to enforce these provisions through both political and legal channels. But the government’s failure to engage meaningfully earlier in the N2 Gateway planning process illustrates the risks inherent in engagement’s flexibility. Absent adequate court oversight, engagement can easily turn into nothing more than a requirement that government inform residents of its redevelopment plans. The Court in Joe Slovo recognized these two ‘faces’ of engagement and strengthened the remedy by adding components that increase the transparency of the process and enhance court control. This essay first describes the engagement remedy, briefly summarizes the key features of the Joe Slovo litigation and then analyzes the innovations that the Court introduced in its decision.