n South African Law Journal - Negotiating social change in the shadow of the law
|Article Title||Negotiating social change in the shadow of the law|
|© Publisher:||Juta Law Publishing|
|Journal||South African Law Journal|
|Affiliations||1 University of Cambridge, UK|
|Publication Date||Jan 2012|
|Pages||248 - 273|
Two models of democratic participation in the enforcement of socio-economic rights and the right to equality have emerged in South Africa. The first is that of 'meaningful engagement', which has been developed by the Constitutional Court in a series of cases mainly concerning housing evictions. The second model is the statutory duty of employers under the Employment Equity Act 55 of 1998 to take reasonable steps to 'consult and reach agreement' with trade union representatives on employment equity plans. This proceduralisation of rights is due to several causes: the institutional incompetence of courts to determine the substance of indeterminate socio-economic rights; the conflict in a market economy with the protection of private property; and the limits of law as an instrument of social change. The article examines the emerging principles of court-directed 'meaningful engagement' and assesses their strengths and weaknesses. The failure of the 'command and control' model of administrative enforcement under the Employment Equity Act is discussed in the light of the modern theory and practice of 'reflexive regulation'. The article concludes with a comparison of the two models and an assessment of their implications for transformative obligations, deliberative democracy and the regulatory state.
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