Before the 2010 FIFA World Cup in South Africa, thousands of people in major cities were forced off the streets to hide the scale of poverty. The impact on the poor and homeless raised issues familiar to Justice Dennis Davis, who has played a key role in protecting human rights in post-apartheid South Africa.
In 1998 Justice Dennis Davis presided over the landmark Grootboom case, which changed the way citizens in South Africa could exercise their fundamental right to housing. A decade on, he is still struck by the circumstances by which it came before the courts.
"The parties consisted of a group of squatters who had been evicted from land. After being evicted, they had their shacks bulldozed and burnt and their possessions destroyed and were now being housed in the changing rooms of a local football club – hardly a satisfactory situation," says Justice Davis.
The eviction prompted the evictees, led by Irene Grootboom, to seek assistance from legal activists and NGOs to use their case to test the enforceability of their constitutional right to housing. Given the manner in which the case had been brought, the judges found in their favour.
"We introduced a concept of the structural interdict so as to maintain the supervision of the court over the conduct of the local authorities who were mandated to provide them with shelter," says Justice Davis, who has expertise in public law, legal theory, competition law and tax.
"The Constitutional Court did not agree with the legal basis of our finding but did confirm the essential features of the order. From this case onward, a concept of reasonableness was introduced as a test to adjudicate claims to social and economic rights in South Africa – that is, courts test whether government policies are reasonable, which, in turn, is based on the idea that the poorest of the poor should be dealt with as a first priority."
While Irene Grootboom died without ever having been given a house, the case was a key achievement for the South African human rights movement.
Despite constitutional developments since the Grootboom case, Justice Davis says there are a multitude of issues that still need to be addressed in South Africa – a nation still trying to develop its own constitutional democracy.
"One issue that is particularly relevant will be the development of freedom of expression in light of a Bill before Parliament dealing with official secrets. Whether social and economic rights can be successfully litigated in the light of recent conservative decisions of the Constitutional Court, and in the context of an increasingly integrated digital age will raise its own challenges for the government and its constitutional values.
"Another issue, he says, is ensuring that the judiciary reflects the demography of the country.
"The judiciary is an important facet in the legal system, which has become the site of political struggle as parties seek to vindicate a range of rights which are contained in our extremely ambitious constitutional text," says Justice Davis.
"The composition of the judiciary has increasingly and correctly begun to reflect the demography of the country. This is an important step in promoting a coherent human rights order, particularly on an international front."
One of the most respected figures of the South African judiciary, Justice Davis is visiting Melbourne Law School in October to teach the subject 'What is it that judges do?' as part of the Melbourne Law Masters program.