1

Administrative Law – A tool for Social Justice and

Transformative Constitutionalism. The implications of
Melani v City of Johannesburg
Nelsie Siboza*

1 Introduction

The Constitution of the Republic of South Africa, 19961 holds substantive and
progressive aspirations2 which ultimately advance for social justice.

One of the substantive and progressive aspirations that the Constitution holds is to
realize the right of access to adequate housing. The applicants in Melani v City of
Johannesburg3 are approximately 10 000 poor people living in households in Slovo
Park.4 They have been residing in Slovo Park for a number of years and have been
living in deplorable health and safety conditions.5 Legislative and policy framework,6

* Nelsie Kaitlyn Mercy Siboza. Third year LL.B student at the University of Pretoria.
Deputy Chief Justice of the 2017 Constitutional Tribunal of the University of Pretoria.
This essay was submitted as requirement for the module Public Law 310. Thank you to
Ms Mary-Ann Gettliffe for your feedback and assistance in writing this essay. All errors
are my own.
1
The Constitution of the Republic of South Africa, 1996.
2
Klare ‘Legal culture and transformative constitutionalism’ 1998 (14) SAJHR 188.
3
Melani v City of Johannesburg (unreported, referred to as [2016] ZAGPJHC 55, 22
March 2016).
4
Melani (note 3 above) para 3.
5
Melani (note 3 above) para 3.
6
Section 9(a)(i) of the National Housing Act 107 of 1997 requires the City to take all
reasonable steps within the framework of national and provincial housing legislation and
policy to ensure that the inhabitants of its area have access to adequate housing on a
progressive basis. Accordingly, the Housing Act requires the Minister to determine
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which binds the City and the MEC to realize the right to adequate housing,7 prescribes a
wide range of procedures, plans and fundamental instruments which are designed to
facilitate the delivery of adequate housing to people who are in need of it, such as the
residents of Slovo Park.8

The main issue of contestation in this case is whether the decision taken by the City to
relocate the residents of Slovo Park to Unaville is lawful and fair.9

Social justice can be given many definitions but, for purposes of this case note, the
definition of social justice is constrained to be the eradication of poverty and the
realization of the constitutional fundamental right of access to adequate housing, which
aids in the eradication of poverty, and thus advances social justice.10

The question therefore is whether the court’s reasoning and its manner thereof is
substantive as opposed to formalistic and, furthermore, whether the court furthered
transformative constitutionalism, and consequentially, advanced social justice.

2 Transformative Constitutionalism and Administrative law

The Constitution’s transformative mandate entails a commitment to ‘social

transformation’ through ‘substantive adjudication,’11 particularly in cases such as the
Melani case, which concerns the right of access to adequate housing.12 This

national housing policy by approving projects which are consistent with it and the City
to implement national housing policy.
7
Melani (note 3 above) para 6.
8
Melani (note 3 above) para 6.
9
Melani (note 3 above) para 24.
10
Section 26(1) of the Constitution.
11
Murcott ‘A future for the doctrine of substantive legitimate expectation?’ The implications
of Kwazulu-Natal Joint Liaison Committee v MEC for Education, Kwazulu Natal.’ 2015
(18)1 PER 3143.
12
Melani (note 3 above) para 3.
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transformative mandate is achievable by means of transformative adjudication 13 which

requires an evolved, updated and politicized account of the rule of law,14 as opposed to
the rigidity of formalism.15

The Court in the Melani case reasoned that the City’s failure to apply the Upgrading of
Informal Settlements Policy (the UISP) is unreasonable and unlawful. The decision by
the City to relocate the residents of Slovo Park was taken outside the legislative and
policy framework intended to apply to informal settlements such as Slovo Park.16
Furthermore, the Court found the City’s actions to be unreasonable because it deprived
the residents’ right to just administrative action, procedurally, and substantively,
deprived the residents’ right of access to adequate housing in terms of section 26(1) of
the Constitution.17

The Court here has acknowledged the interconnectedness of rights.18 These rights are
the right to just administrative action19 and the right of access to adequate housing.
These two rights are not pigeon-holed20 and treated as mutually exclusive but, instead,
the Court is using the right to just administrative action to advance for the right of
access to adequate housing and therefore advancing social justice.

The doctrine of legitimate expectation entails that a reasonable expectation, based on a

well-established practice or an express promise by an administrator acting lawfully,
gives rise to legal protection when the practice or promise is clear, unambiguous and

13
Moseneke ‘Fourth Bram. Fischer Memorial Lecture: Transformative Adjudication’ 2002
(18) SAJHR 310.
14
Klare 1998 SAJHR (note 2 above) 188.
15
Murcott 2015 PER (note 11 above) 3143.
16
Melani (note 3 above) para 42.
17
Melani (note 3 above) para 42.
18
Hoexter ‘Clearing the intersection? Administrative law and Labour law in the
Constitutional Court’ 2008 (1) CCR 228.
19
Section 33 of the Constitution.
20
Hoexter 2008 CCR (note 18 above) 228.
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unqualified.21 Furthermore, the legal protection afforded usually takes the form of
ordering that a fair procedure be followed before a decision is made in respect of the
expected conduct.22

The legitimate expectation of the residents of Slovo Park in the Melani case is the City’s
obligated conduct to follow the procedures stipulated in the Upgrading of Informal
Settlement Policy (the UISP) regarding the upgrading of Slovo Park. The City’s failure to
take a decision to act in terms of the UISP is unlawful due to the fact that the City is in
breach of the applicable statutory framework for the upgrading of informal settlements.23
At the time this application was launched, the City had neither refused to apply the UISP
nor agreed to do so – the only decision the City had taken is to relocate the residents to
Unaville, stating that this is suitable for development.24 The UISP makes it clear that
relocation of informal settlements should be the exception and not the rule. It also states
that relocation must take place at a location as close as possible to the existing
settlement and within the context of community approved strategies.25

3 Transformative constitutionalism, adjudication and social justice

As a result of South Africa’s past institutionalized and legitimized racism,26 poverty

eradication forms an integral part of the conception of South Africa’s post-apartheid
constitutionalism.27 It is indisputable that the right of access to adequate housing aids in
the eradication of poverty and thus furthers social justice28. Our Constitution evinces a

21
Murcott 2015 PER (note 11 above) 3136.
22
Murcott 2015 PER (note 11 above) 3136.
23
Melani (note 3 above) para 14.
24
Melani (note 3 above) para 11.
25
Melani (note 3 above) para 35.
26
S v Makwanyane 1995 (3) SA 391 para 262.
27
Sibanda ‘Not purpose-made! Transformative Constitutionalism, post-independence
constitutionalism and the struggle to eradicate poverty’ 2011 (3) STELL LR 483.
28
Soobramoney v Minister of Health (KwaZulu-Natal) 1998 1 SA 765 (CC) para 8.
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deep concern for the material inequality closely associated with past exclusion and
poverty that is manifested by the lack of proper housing.29 The residents of Slovo Park
are a clear example of the unchanged living conditions for many black citizens to whom
apartheid’s multiple legacies continue to be a living and lived reality.30 The question thus
is whether the Court in this case adopted a transformative and progressive approach in
its interpretation in aiding poverty eradication and thus advancing social justice and
transformative adjudication or whether it succumbed to a formalistic approach.

Transformative constitutionalism involves the eradication of systematic forms of

domination and material disadvantage based on race, gender, class and other forms of
inequality.31 Adopting a transformative approach entails both socio and economic
change32 thus echoing both Klare’s and Langa’s call for a change in legal culture. In
essence it further encapsulates Moseneke’s ideal of transformative adjudication33 as it
promotes a thorough engagement with the Constitution and its progressive and social
aspirations.34 It is the complete departure from conservative legal culture35 which also
involves a change in legal education by changing the mindset of legal scholars and
legal practitioners; not just simply changing the laws.36

The Court in the Melani case further found the City’s conduct to be subject to a
reasonableness criterion.37 The reasonableness criterion echoes the justification

29
Residents of Joe Slovo Community, Western Cape v Thubelisha Homes 2010 (3) SA
454 (CC) para 142.
30
Sibanda 2011 STELL LR (note 27 above) 485.
31
Langa ‘Transformative Constitutionalism’ 2006 (3) STELL LR 352.
32
Sibanda 2011 STELL LR (note 27 above) 485.
33
Moseneke 2008 SAJHR (note 13 above) 312.
34
Hoexter ‘Judicial policy revisited: Transformative adjudication in administrative law’
(2008) 24 SAJHR 286.
35
Langa 2006 STELL LR (note 31 above) 356.
36
Langa 2006 STELL LR (note 31 above) 356.
37
Melani (note 3 above) para 44.
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principle that all arms of government are expected to adhere to.38 When assessing
whether the Government is meeting its obligations to act reasonably under section 26(2)
of the Constitution, the measure it adopts must be comprehensive, coherent, inclusive,
balanced, flexible, transparent and properly conceived and properly implemented. The
Court further states that they must be tailored to the particular context (as opposed to a
mere formal application) in which they apply, as what may be appropriate in a rural area
may not be appropriate in an urban setting.39 The Court found the City’s unilateral
decision to relocate only qualifying beneficiaries to Unaville to be unreasonable and not
inclusive.40 The Court further found that this decision completely contradicted the
established constitutional jurisprudence regarding the need for engagement in instances
where the right to adequate housing is concerned.41 It is clear that the Court not only
takes the legislative and policy frameworks of the UISP into account but also takes the
substantive surrounding circumstances into consideration. One of the substantive
surrounding circumstances includes the fact that the residents had been told for a
period of more than 20 years that their households will be upgraded.42 Based on the
procedural requirements set out in the UISP as well as the surrounding circumstances
of this matter, the Court’s order that the City’s refusal or failure to apply the UISP is to
be reviewed and set aside is a substantively informed order.43

4 Conclusion

The Court in the Melani case grasped the ideal of transformative adjudication by not just
merely applying the UISP formalistically but the Court also conscientiously took account
of the political and social surrounding circumstances of this case and therefore
eloquently displayed transformative constitutionalism and furthered social justice by
38
Hoexter 2008 SAJHR (note 34 above) 283.
39
Melani (note 3 above) para 44.
40
Melani (note 3 above) para 45.
41
Melani (note 3 above) para 47.
42
Melani (note 3 above) para 48.
43
Melani (note 3 above) para 49.
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making the right of access to adequate housing realizable, aiding in the eradication of
poverty and, consequentially, advancing the constitutional and progressive aspiration
that is social justice.

[1745 words]
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BIBLIOGRAPHY

Literature

Hoexter 2008 CCR

Hoexter C ‘Clearing the intersection? Administrative law and Labour law in the

Constitutional Court’ 2008 (1) CCR 209-234

Hoexter 2008 SAJHR

Hoexter C ‘Judicial policy revisited: Transformative adjudication in administrative law’

(2008) 24 SAJHR 281-288

Klare 1998 SAJHR

Klare K ‘Legal culture and transformative constitutionalism’ 1998 (14) SAJHR 146-188

Langa 2006 STELL LR

Langa P ‘Transformative Constitutionalism’ 2006 (3) STELL LR 352-360

Moseneke 2008 SAJHR

Moseneke D ‘Fourth Bram. Fischer Memorial Lecture: Transformative Adjudication’

2002 (18) SAJHR 310-313

Murcott 2015 PER

Murcott M ‘A future for the doctrine of substantive legitimate expectation?’ The

implications of Kwazulu-Natal Joint Liaison Committee v MEC for Education, Kwazulu
Natal.’ 2015 (18)1 PER 3133-3154
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Sibanda 2011 STELL LR

Sibanda S ‘Not purpose-made! Transformative Constitutionalism, post-independence

constitutionalism and the struggle to eradicate poverty’ 2011 (3) STELL LR 482-500

CASE LAW

Melani v City of Johannesburg (unreported, referred to as [2016] ZAGPJHC 55, 22

March 2016)

Residents of Joe Slovo Community, Western Cape v Thubelisha Homes 2010 (3) SA
454 (CC) para 142

S v Makwanyane 1995 (3) SA 391 para 262

Soobramoney v Minister of Health (KwaZulu-Natal) 1998 1 SA 765 (CC) para 8

LEGISLATION

Constitution of the Republic of South Africa, 1996

The National Housing Act 107 of 1997

LIST OF ABBREIVIATIONS

CCR Constitutional Court Review

PER Potchefstroom Electronic Journal

UISP Upgrading of Informal Settlements Policy

SAJHR South African Journal on Human Rights

STELL LR Stellenbosch Law Review