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A closer look at the right to have access to
adequate housing for inhabitants of
informal settlements post Grootboom*
Clarence Tshoose**
Abstract
In South Africa informal settlement dwellers are faced with a myriad of socio-economic
problems, which relate, amongst others, to living standards, access to basic services, and
suitable housing. Notwithstanding these problems, the Constitution affords everyone the
right to have access to adequate housing. It also makes it obligatory for the state ‘to take
reasonable legislative and other measures, within its available resources, to achieve the
progressive realisation of this right’. In light of the above, this article examines the
constitutional obligation on the state to provide informal settlement dwellers the right of
access to adequate housing. It explores some of the landmark cases that have shaped the
jurisprudence of the right to have access to adequate housing in South Africa post the
ground-breaking Constitutional Court’s Grootboom decision.
1 Introduction
In South Africa informal settlement dwellers are faced with a myriad of socio-
economic problems, which relates, amongst others, to living standards, access
to basic services, and suitable housing. Notwithstanding these problems, the
1
Constitution affords everyone the right to have access to adequate housing. The
2
Constitution also requires the state to take reasonable legislative and other
This article is based on a paper presented at the Unisa College of Law Social Security Flagship
*
community engagement seminar titled ‘Land and housing: Prospects and challenges' Burgers Park
Hotel, Pretoria, South Africa,18-19 September 2014. The comments received during the
presentation of this paper are hereby acknowledged. I should also like to thank anonymous
reviewers for their suggestions and comments.
LLB, LLM (North West University). Senior Lecturer, College of Law, (Unisa).
**
Richards et al ‘Measuring quality of life in informal settlements in South Africa’ (2007) Social
1
Indicators Research 386 available at http://www.jstor.org/stable/pdfplus/20734430.pdf (accessed
2014-05-05).
Section 26(1) of the Constitution of the Republic of South Africa, 1996 (hereafter the Constitution).
2
A closer look at the right to have access to adequate housing 95
measures, within its available resources, to achieve the progressive realisation
of this right. Lecke asserts that the right to have access to housing encapsulates
3
the following issues: housing that is secure, accessible, and affordable, including
provision of basic infrastructure (for example water, sanitation, drainage, health
care and transportation) and secure tenure for squatters.4
In Government of the Republic of South Africa v Grootboom, the
5
Constitutional Court made it clear that housing entails more than bricks and
mortar. The court noted that it requires available land, appropriate services such
as the provision of water, the removal of sewage and the financing of all of these,
including the building of the house itself. According to the court for a person to
have access to adequate housing all of these conditions must be met.6
Against this background this article examines the constitutional obligation on
the state to provide to the inhabitants of informal settlements the right of ‘access
to adequate housing’. It explores some of the landmark cases that have shaped
7
the jurisprudence of the right to have access to housing in South Africa. Finally
it notes that more work is required in order to realise the right to housing for
inhabitants of informal settlements.
2 The right to have access to adequate housing
under the South African Constitution
The South African Constitution in section 26 provides that ‘everyone has the right
to have access to adequate housing’. Furthermore the Constitution makes it
8
obligatory for the state ‘to take reasonable legislative and other measures, within
its available resources, to achieve the progressive realisation of this right’.9
Tushnet states that it would be more useful to avoid rights-talk altogether and
focus instead on the real experiences that trigger rights claims in the first place.
He further opines that:
People need food and shelter right now, and demanding that those needs be
satisfied – whether or not satisfying them can today persuasively be characterised
as enforcing a right – strikes me as more likely to succeed than claiming that
existing rights to food and shelter must be enforced.10
Section 26(2) of the Constitution.
3
Lecke ‘The UN Committee on Economic, Social and Cultural Rights and the Right to Adequate
4
Housing: Towards an appropriate approach’ (1989) Human Rights Quarterly 531.
2001 1 SA 46 (CC) para 35 (Grootboom).
5
Grootboom (n 5) para 33.
6
Id para 35.
7
Section 26(1) of the Constitution.
8
Section 26(2) of the Constitution.
9
Tushnet ‘An essay on rights’ (1984) 62 Texas LR 1363-1364.
10
96 (2015) 30 SAPL
It is argued in this article that inhabitants of informal settlements have limited
resources, and that their living standards, access to housing, basic services and,
personal health are the factors that hinder them from enjoying the quality of life
as promised by the Constitution. This finds consonance, with Bilchitz’s
11
argument, that if fundamental rights are to mean anything at all, they must
guarantee to individuals the prerequisites for living a life of value.12
The right to have access to housing enshrined in the Constitution imposes
a positive duty on the state to endeavour to provide access to housing for
inhabitants living in informal settlements in South Africa. This requires specific
attention, as a matter of priority, to the question of those who are homeless. They
cannot be told to wait in a queue, homeless, for twenty-one years. The
government must have a very compelling case in order to justify leaving people
without shelter, and without a place where they can legally call home.
In order to protect the homeless people, under these circumstances the court
might postpone making a final order, and perhaps give interim relief such as a
stay of any eviction for a period to enable the programme to reach the people
affected. In Port Elizabeth Municipality v Various Occupiers, the Supreme Court
13
of Appeal set aside the order of eviction granted by the High Court, and agreed
14
with the respondents that the applicant (Port Elizabeth Local Municipality) was
under an obligation to provide alternative accommodation to unlawful occupiers.15
The Municipality applied to the Constitutional Court for leave to appeal against the
decision of the Supreme Court of Appeal and to have the eviction order restored.
The Municipality sought a ruling that it was not constitutionally obliged to find
alternative accommodation for the unlawful occupiers. Justice Sachs argued that
in cases where there is a conflict between section 25 (dealing with property rights)
and section 26 (concerned with housing rights) of the Constitution, these
16
sections must be read together in order to find a fair and equitable outcome. It
17
is clear from this case that the court has made a sterling effort to protect the
housing needs of the homeless and vulnerable. According to the court ‘it is not
For a detailed discussion on this issue, see Richards et al (n 1) 375-387; Huchzermeyer ‘The new
11
instrument for upgrading informal settlements in South Africa: Contributions and constraints’ in
Huchzermeyer and Karam (eds) Informal settlements: A perpetual challenge? (2006) 41-61; Moller
‘Quality of life in South Africa: The first ten years of democracy’ (2007) 1-10 available at
eprints.ru.ac.za/pdf (accessed 2011-05-04).
Bilchitz Poverty and fundamental rights: The justification and enforcement of socio-economic
12
rights (2007) 6-46.
Port Elizabeth Municipality v Various Occupiers 2004 12 BCLR 1268 (CC) (Port Elizabeth
13
Municipality).
Id para 4.
14
Id para 5.
15
Id paras 19-23.
16
Id paras 27-37.
17
A closer look at the right to have access to adequate housing 97
only the dignity of the poor that is assailed when homeless people are driven from
pillar to post in a desperate quest for a place where they and their families can
rest their heads’. The court went further to state that ‘the integrity of the rights-
18
based vision of the Constitution is punctured when governmental action augments
rather than reduces denial of the claims of the desperately poor to the basic
elements of a decent existence’.19
In addition, the Constitutional Court in Grootboom held that the government
had failed to appreciate that its national programme did not provide a short-term
solution for the people in dire need of access to adequate housing in this
context. It misconstrued its constitutional obligations, and as a result failed even
20
to attempt to meet the needs and constitutional rights of the respondents.
Furthermore, the Constitution protects the rights of all people in our country
and affirms the democratic values of human dignity, equality and freedom. It also
requires the state to respect, protect, promote and fulfil the rights in the Bill of
Rights. It is argued that South Africa’s track record on the protection of civil and
21
political rights is good, but the delivery and enforcement of the social and
economic rights guaranteed in the Constitution has been slower and less
effective. Similarly, the compliance of court orders by the government leaves
22
much to be desired, this is exacerbated by a shortage of financial resources.
23 24
Id para 18.
18
Ibid.
19
Grootboom (n 5) paras 52 and 64.
20
Section 7 of the Constitution. Koch in her article questions whether the tripartite typology, to
21
respect, protect and fulfil, really is a helpful analytical tool in the on-going debate on the justiciability
of economic, social and cultural rights. Koch admits that the tripartite typology has contributed to
a better understanding of the normative character of the two sets of rights by pointing out that both
encompass a spectrum of legal obligations going from the ‘negative’ to the ‘positive’. In that way
the typology has functioned as a bridge builder between the two sets of rights and thereby
confirmed the long tradition of considering all human rights as indivisible, interrelated, and
interdependent. For a detailed discussion on this matter see Koch ‘Dichotomies, trichotomies or
waves of duties’ (2005) 5 Human Rights LR 82-103.
Bilchitz (n12). For further discussion on housing rights litigation, see Langford et al Socio-
22
economic rights in South Africa: Symbols or substance (2014) 187-225.
Madzodzo v Minister of Basic Education 2014 3 SA 441 (ECM) (Madzodzo); Somyani v MEC for
23
Welfare, Eastern Cape unreported case no 597/2002 (SECLD); Ngxuza v Permanent Secretary,
Department of Welfare, Eastern Cape 2001 (3) SA 609 (E) 615H-I; Jayiya v MEC for Welfare,
Eastern Cape 2001 2 SA 609 (E). The disregard of court orders by the state has been clearly shown
in the following cases, Government of the Republic of South Africa v Grootboom (n 5); Minister of
Health v Treatment Action Campaign 2002 5 SA 721 (CC) (Treatment Action Campaign). There are
exceptional cases where the government has shown some degree of compliance with court orders
as is evident in the following cases: Occupiers of 51 Olivia Road, Berea Township, and 197 Main
Street, Johannesburg v City of Johannesburg 2008 3 SA 208 (CC) (Olivia Road); Abahlali
baseMjondolo Movement SA v Premier, KwaZulu-Natal 2009 3 SA 245 (D); Mazibuko v City of
Johannesburg 2013 6 SA 249 (CC) (Mazibuko); Jaftha v Schoeman; Van Rooyen v Stoltz 2005 2
SA 140 (CC), 2005 (1) BCLR 78 (CC) (Jaftha); President of RSA v Modderklip Boerdery (Pty) Ltd
98 (2015) 30 SAPL
Some commentators point to the lack of effective enforcement mechanisms,25
others to the weak form of judicial enforcement and cautious court orders,
26 27
whilst others contend that an inherent feature of public interest litigation is its
inability to effect political change. The challenges are further compounded by
28
the fact that South African society is deeply scarred by its history of apartheid and
colonialism, which ensured the deep inequalities that still persist, especially
regarding land. The Grootboom judgment shows that social and economic rights
29
are about the duty on government to attend, as a matter of priority, to the basic
needs of the poorest. Therefore, the Constitution requires that courts hold
government accountable in respect of their focus on and attention to critical
issues affecting our communities and societies at large. Thus we need the
Constitution and the courts to call government’s attention to the need for a
coherent and rational plan of action in respect of the right of access to housing. It
30
is submitted that the right of access to housing cannot be interpreted in isolation,
as there is a close correlation between it and other socio-economic rights. These
rights are interrelated, interdependent and mutually supportive. As pointed out in
the Grootboom judgment, all socio-economic rights must be read together in the
31
context of the Constitution as a whole and their interconnectedness needs to be
taken into account in interpreting a specific socio-economic right, and in
determining whether the state has met its obligations in terms of that right. In the
court’s opinion:
There can be no doubt that human dignity, freedom and equality, the foundational
values of our society, are denied those who have no food, clothing or shelter.
Affording socio-economic rights to all people therefore enables them to enjoy the
other rights enshrined in Chapter 2. The realisation of these rights is also key to
2005 8 BCLR 786 (CC) (Modderklip Boerdery).
De Beer and Vettori ‘The enforcement of socio-economic rights’ (2007) 3 Potchefstroom Electronic
24
Journal (PER) 2-9.
Mbazira ‘Non-implementation of court orders in socio-economic rights litigation in South Africa’
25
(2008) Economic and Social Rights Review 2-7.
Tushnet ‘Enforcing socio-economic rights: Lessons from South Africa’ (2005) Economic and
26
Social Rights Review 2-5.
Pieterse ‘Eating socio-economic rights: The usefulness of rights talk in alleviating social hardship
27
revisited’ (2007) Human Rights Quarterly 796-822.
Madlingozi ‘Post-apartheid social movements and the quest for the elusive new South Africa’
28
(2007) SA J of Law and Society 77-98.
Van Wyk Planning law (2012) 16; Dixon et al ‘Discourse and the politics of space in South Africa:
29
The squatter crisis’ (1994) Discourse and Society 277-292.
If the government has a coherent and rational plan of action, the courts will be slow to interfere.
30
For example, if the government had said, ‘we do have a priority programme for people in this
position, and this is how far we can reach. We cannot help these people today, but we will do so
tomorrow’, it would probably have met the constitutional requirements.
Grootboom (n 5) para 24.
31
A closer look at the right to have access to adequate housing 99
the advancement of race and gender equality and the evolution of a society in
which men and women are equally able to achieve their full potential.32
Fulfilling the right to have access to adequate housing for informal settlement
residents could have an impact on the extent to which or the way in which the
other rights have to be met. The Constitutional Court further remarked that:
The poor are particularly vulnerable and their needs require special attention. It
is in this context that the relationship between sections 26 and 27 and the other
socio-economic rights is most apparent. If under section 27 the state has in place
programmes to provide adequate social assistance to those who are otherwise
unable to support themselves and their dependants that would be relevant to the
state’s obligations in respect of other socio-economic rights.33
The provision of housing to informal settlement residents may therefore enable
them to have access to other socio-economic benefits, such as land, health care,
food and water. It will also help such people to realise their rights to human dignity,
equality and freedom. The right of access to housing can therefore be viewed
broadly as guaranteeing the material conditions for an adequate standard of living.
It serves to protect human beings from the life-threatening and degrading conditions
of poverty and material insecurity.34
3 The socio-economic conditions faced by the
inhabitants of informal settlements post-
Grootboom
It is trite that the Constitutional Court case of Government of the Republic of
South Africa v Grootboom is the locus classicus when dealing with claims based
on the right to housing. The court stated that ‘[s]ection 26(2) of the Constitution
requires the state to devise and implement within its available resources a
comprehensive and coordinated programme to progressively realise the right of
access to adequate housing’.35
The Grootboom decision gained international recognition as it placed
emphasis on the justiciability of socio-economic rights, which brought a glimmer of
hope for those who are destitute and in dire need of housing. In light of this
Id para 23.
32
Id para 36.
33
García and Gruat ‘Social protection: A life cycle continuum investment for social justice, poverty
34
reduction and sustainable development’ (2003) International Labour Organisation (ILO), Geneva
22-23 available at http://www.ilo.org/public/english/protection/download/lifecycl/lifecycle.pdf
(accessed 2015-03-22).
Grootboom (n 5) para 99 (2) a.
35
100 (2015) 30 SAPL
decision, one would have thought that it may have had an impact on South Africa
as far as socio-economic rights are concerned, but this does not appear to have
been the case. It is estimated that the housing backlog is 2.1 million housing units,
affecting 12 million people living in informal settlements. There is an extreme
36
shortage of affordable housing for the poor in South Africa; about 1.8 million
households in the middle to lower income groups live in rented accommodation, as
opposed to about 5.2 million households that own property. Moreover, informal
37
settlements have mushroomed around cities as the state has failed to keep pace
with population growth. The housing backlog of about 1.5 million in 1994 has
burgeoned to 2.1 million as the population has grown by 13 million to 53 million.38
According to Statistics South Africa’s General Household Survey (GHS),39
18.9 per cent of South African households were living in ‘RDP’ or state subsidised
dwellings. The survey found that although the government has expanded access
to basic services, the public was dissatisfied about the quality of these services.
The proportion of people living in informal dwellings appears unchanged between
2002 and 2010 at 13 per cent. Statistics South Africa found that Gauteng had 22
per cent of informal dwellers, followed by North West with 19 per cent, whilst the
Western Cape had 17 per cent and Free State had 13 per cent of people living
in informal dwellings.
The other challenges faced by these households include poor environmental
quality of these settlements, which is exacerbated by the lack of basic services.40
Access to affordable land and housing is one of the main challenges facing policy
makers in South Africa. According to Statistics South Africa, as of mid-2009, 13.4 per
cent of households in South Africa lived in informal dwellings. There are over 2 700
informal settlements in the country, comprising approximately 1.2 million house-
holds. An estimated 4.4 to 5 million people lived in informal settlements in 2012.
41 42
South Africa Yearbook 2009/10 (Department of Human Settlement), 311; Tissington and Royston
36
‘Creating a better life for all through informal settlement upgrading’ available at http://www.afesis
.org.za/Sustainable-Settlements-Articles/creating-a-better-life-for-all (accessed 2014-08-28);
Nombembe ‘Shack dwellers mourn freedom’ The Times (2011-04-27) 5 available at http://www
.timeslive.co.za/local/2011/04/27/shack-dwellers-mourn-freedom (accessed 2011-04-28). The
South African government has come a long way in responding to the issue of the realisation of
socio-economic rights, but is still falling short of what is possible, and lacks the progress that has
been made by its neighbours and other countries in a similar standing.
Available at http://www.ngonewsafrica.org (accessed on 2014-08-28).
37
Brand and Cohen ‘Where the heart is: South Africa’s post-apartheid housing failure’ Mail &
38
Guardian (2013-08-02) available at http://mg.co.za/article/2013-08-02-where-the-heart-is-south-
africas-post-apartheid-housing-failure (accessed 2013-08-24).
Statistics South Africa General Household Survey (GHS) 5 May 2011.
39
See South Africa Yearbook (Department of Human Settlement) (2009/10) 311.
40
President Zuma ‘State of the nation address’ 10 February 2011 available at http://www
41
.thepresidency.gov.za/pebble.asp?relid=3503 (accessed 2015-01-25).
Van Wyk (n 29) 16-17.
42
A closer look at the right to have access to adequate housing 101
As part of the approach to enhance and speed up delivery of services, the
government initiated a number of programmes to deal with informal settlements.
For example, the Upgrading of Informal Settlements Programme (UISP) was
launched in collaboration with the national department of human settlements. This
initiative aims to address the housing backlog, including details on the norms and
standards to be followed when upgrading the informal settlements. The
implementation of the UISP has been slow and plagued by various obstacles,
which includes amongst others, lack of capacity at the local government level as
well as political will in upgrading informal settlements.43
This housing shortfall raises several fundamental questions relating to
government’s constitutional mandate to provide access to housing to the destitute
who reside in informal settlements in South Africa. The first question is whether
44
the government has devised measures of realising the right to housing for the
informal settlement inhabitants within a reasonable period. Secondly, whether
there have been any measures put in place by government to improve the living
conditions of informal settlement dwellers in South Africa. Before attempting to
answer these questions, I will examine the impact of Grootboom in the context of
the inhabitants of informal settlements.
4 The impact of Grootboom on informal settlement
dwellers
The Grootboom judgment had a major impact on the development of South
African constitutional jurisprudence, particularly on the enforcement of socio-
economic rights. In this regard the judgment has been hailed as a positive
precedent for the judicial enforcement of economic and social rights.45
Parker ‘Informal settlements: The challenge to upgrade’ (2014) available at http://thewrite
43
candidate.co.za/informal-settlements-challenge-upgrade/ (accessed 2015-01-25). In Nokotyana v
Ekurhuleni Metropolitan Municipality 2010 4 BCLR 312 (CC), a provincial government delayed
taking a decision on the application for upgrading the settlement for three years. In ruling that the
delay was unjustified and unacceptable, Van der Westhuizen held that the provincial government’s
actions complied neither with s 237 of the Constitution, nor with the requirement by s 26(2) of the
Constitution with regard to access to adequate housing.
The majority of the South African population lives in poverty with great structural inequalities. A
44
visit to any of the townships surrounding the cities confirms the fact that a large part of the
population is not experiencing their full right to have access to adequate housing, food, and water.
De Vos argues that this acute housing shortage lies, partly, in the apartheid policy of influx control,
which sought to limit African occupation of urban areas, see De Vos ‘The right to housing’ in Brand
and Heyns Socio-economic rights in South Africa (2005) 85-56. For a detailed discussion on the
historical context of urban forced evictions see Muller ‘The legal-historical context of urban forced
evictions in South Africa’ (2013) Fundamina 367-396.
Liebenberg ‘The implications of Grootboom for current social security policy in South Africa’ (2001)
45
17 SALJ 211-240.
102 (2015) 30 SAPL
Nonetheless, in the years following Grootboom, it has become apparent that the
court’s decision did little to change the status quo in South Africa with regard to
a right to basic shelter.
Scholars argue that, if there is a right to housing in South Africa, how could
Irene Grootboom have died ‘homeless and penniless’ in August 2008, more than
eight years after the court’s decision? However, this is not a fair question. A
46
fairer question to ask is whether the courts are ideally suited to lend content to
social rights and the standards of compliance that they impose? Similarly, in
47
cases of constitutional non-compliance, particularly where the fundamental rights
of vulnerable groups or categories of people had clearly been infringed, the courts
did not hesitate to intervene and to force government to review its existing
policies. The courts did this, not only indirectly through the granting of mandatory
orders, but also, at times, by directly ordering government to undertake a
48
particular policy review.49
For a detailed discussion on this issue see, Pillay ‘Implementing Grootboom: Supervision needed’
46
(2002) 3 (1) Economic Social Rights Review 1; Makhanya ‘A pity Grootboom will not be there to ask
about unfulfilled promises’ The Times (2008-08-09) available at http://www.thetimes.co.za
(accessed 2013-03-22); Joubert ‘Grootboom dies homeless and penniless’ Mail & Guardian (2008-
08-08) available at http://mg.co.za/article/2008-08-08-grootboom-dies-homeless-and-penniless
(accessed 2013-03-22); Mbazira ‘Non-implementation of court orders in socio-economic rights
litigation in South Africa’ (2008) 9 Economic and Social Rights Review 2-8; Dixon ‘Creating dialogue
about socio-economic rights: Strong-form versus weak form judicial review revisited’ (2007) 5
International Journal of Constitutional Law 395-416; De Vos ‘Water is life but life is cheap’ (2009)
1-4 available at writingrights.org/2010 (accessed 2011-05-09); See also Wesson ‘Grootboom and
beyond: Reassessing the socio-economic jurisprudence of the South African Constitutional Court’
(2004) 20 SAJHR 284-287.
Pieterse ‘Coming to terms with judicial enforcement of socio-economic rights’ (2004) 20 SAJHR
47
383-417; See also Bilchitz Poverty and fundamental rights: The justification and enforcement of
socio-economic rights (n 12) 135-176.
See for example the following judgments Khosa v The Minister of Social Development; Mahlaule
48
v The Minister of Social Development 2004 6 BCLR 569 (CC) 572H; Minister of Health v Treatment
Action Campaign (n 21); Madzodzo v Minister of Basic Education 2014 3 SA 441 (ECM), and Port
Elizabeth Municipality (n 13).
When reviewing socio-economic rights cases in South Africa, one is left with a distinct feeling that
49
non-enforcement is, but not always, the immediate and default position. Follow up litigation seems
to be a regular feature of almost all socio-economic rights cases, see Berger ‘Litigating for social
justice in post-apartheid South Africa: A focus on health and education’ in Gauri and Brinks (eds)
Courting social justice: Judicial enforcement of social and economic rights in the developing world
(2008) 38-99. There are cases that provide exception to the general rule of immediate non-
enforcement. In some recent cases, particularly on forced evictions, see for example Olivia Road
(n 23) and Modderklip Boerdery (n 23); the decisions and settlement orders have been
implemented in a very short space of time, often beyond the terms of the order. There are varying
levels of enforcement between the cases, for example, in some instances a period of three to five
years had elapsed since the judgment was delivered. Thus, it is not uncommon to find one part of
the order implemented and another not.
A closer look at the right to have access to adequate housing 103
It follows from the above that there is a specific constitutional focus on
addressing the plight of the most vulnerable and desperate in society. In
50
particular, where categories of people belonging to deprived and impoverished
communities are negatively affected, and the right infringed is fundamental to
their well-being (such as the right to have access to adequate housing), the
Constitutional Court appears to be willing to intervene. This is particularly true
51
where the said communities have been historically marginalised. In Treatment
52
Action Campaign the court again emphasised that:
[t]o be reasonable, measures cannot leave out of account the degree and extent
of the denial of the right they endeavour to realise. Those, whose needs are the
most urgent and whose ability to enjoy all rights therefore is most in peril, must not
be ignored by the measures aimed at achieving realisation of the right.53
Grootboom (n 5) paras 52 and 69, where the failure to make express provision to facilitate access
50
to temporary (housing) relief for people who have no access to land, no roof over their heads or
who live in intolerable conditions was found to fall short of the obligation set by section 26(2) of the
Constitution. See also Treatment Action Campaign judgment (n 23) para 135, where government
was ordered to remove the restrictions that prevent Nevirapine from being made available for the
purpose of reducing the risk of mother-to-child transmission of HIV at public hospitals and clinics
that are not research and training sites.
See Grootboom (n 5) and Jaftha (n 23). For a detailed discussion of the Jaftha judgment see
51
Liebenberg Socio-economic rights adjudication under a transformative Constitution (2010) 215-218.
The Grootboom and Jaftha judgments provide the most important examples of the judicial
enforcement of socio-economic rights in South Africa. Although scholars generally agree that the
approach taken by the court in the Grootboom judgment was cautious, they disagree as to how
much stronger the courts approach could have been without overtaxing judicial competence and
legitimacy. It is argued that the court decision in fact did little to change the status quo in South
Africa with regard to a right to basic shelter; see Pillay ‘Implementing Grootboom: Supervision
needed’ (2002) 13 Economic and Social Rights Review 13; Davis ‘Socio-economic rights in South
Africa: The record after ten years’ (2004) New Zealand J of Public and International Law 5. Quite
recently, there have been vigorous debates as to how much stronger the court’s approach could
have been, given the potential limits on judicial competence and legitimacy – see Bilchitz ‘Towards
a reasonable approach to the minimum core: Laying the foundations for future socio-economic
rights jurisprudence’ (2003) 19 SAJHR5-11; Chenwi ‘A new approach to remedies in socio-
economic rights adjudication: Occupiers of 51 Olivia Road v City of Johannesburg’ (2009) 2 CCR
371-393; For a criticism of the Mazibuko judgment see De Vos ‘Water is life: But life is cheap’
(2009) 1-4 available at writingrights.org/2010 (accessed 2013-05-10); Liebenberg Socio-economic
rights adjudication under a transformative Constitution (n 51) 146-206.
Grootboom (n 5) para 35. A statistical advance may not be enough and the needs that are most
52
urgent must be addressed; the state is not solely responsible for the provision of houses, but it may
be held responsible if no other provision has been made or exists.
Grootboom (n 5) para 44. It follows from this that regard must be had to the extent and impact of
53
historical disadvantage. Furthermore, particularly vulnerable groups may not be neglected. Finally,
basic human dignity must be seen to be accorded to everyone when a social security programme
is constructed and implemented.
104 (2015) 30 SAPL
In addition, with regard to the criterion of reasonableness, the Constitutional
54
Court held, inter alia, that this implies that (particularly with regard to the plight of
the vulnerable):
• the measures adopted by the state must be reasonable in both their
conception and their implementation;55
• a wide range of possible measures could be adopted of which many might
meet the requirement of reasonableness;56
• reasonableness must be assessed in the light of the context; and57
• this context is informed by factors such as:
Nthe vulnerable status of an affected category of people subject to the
infringement of a particular right such as the right of access to social
security, the extent and impact of historical disadvantage, the need to
ensure that the basic necessities of life are available to all, and the
importance of not neglecting particularly vulnerable groups,58
Nthe extent of the impairment and the impact thereof on an affected
category of people,59
Nthe purpose of social security, and
60
Nthe impact of the infringement or exclusion on other intersecting rights.61
The South African Constitution links the right to have access to housing to the availability of funds
54
and the realisation of this right over time. In the meantime, a number of low-income communities
have put their hopes in the courts to enforce the right to housing and to resolve housing related
issues, of which the Grootboom case has probably been the most prominent. For further reading
in this regard see De Vos ‘Grootboom: The right to access to housing and substantive equality as
contextual fairness’ (2001) 17(2) SAJHR 258-276; Steinberg ‘Can reasonableness protect the poor?
A review of South Africa’s socio-economic rights jurisprudence’ (2006) The South African Law
Journal 264-283.
Grootboom (n 5) para 42.
55
Khosa (n 48).
56
Ibid.
57
Grootboom (n 5) para 42.
58
Khosa (n 48).
59
Ibid. For further reading on the purpose of social security see, Mpedi ‘Charity begins – but does
60
not end – at home: Khosa v Minister of Social Development; Mahlaule v Minister of Social
Development 2004 6 BCLR 569 (CC)’ (2005) Obiter 178.
Ibid. For example, in Khosa the Court held that where the right to social assistance was conferred
61
by the Constitution on ‘everyone’ and permanent residents were denied access to this right, the
equality guarantee entrenched in s 9 of the Constitution was directly engaged (572J).
A closer look at the right to have access to adequate housing 105
The above-mentioned considerations show that the state's duty to realise the
right in question may differ according to the ability or inability of those affected to
realise the right themselves. For example, in Grootboom the Constitutional Court
held that where there is an ability to pay for adequate housing, the state’s primary
role is not that of a direct provider. Rather, the state is responsible for unlocking
the system and providing access to housing stock and a legislative framework
that facilitates self-built houses through planning laws and access to finance.62
For those who cannot afford to pay, issues of development and social
welfare are raised. This was forcefully stated in a subsequent judgment of
63
Minister of Public Works v Kyalami Ridge Environmental Association, in which
64
the Constitutional Court assumed that flood victims who had been left homeless
have a constitutional right to be provided with access to housing. The point here
65
is that state policy needs to address both those who indeed have the ability to
satisfy their own needs and those who do not. In this regard it should also be
recognised that the poor are particularly vulnerable and their needs therefore
require special attention.66
5 Improving the quality of life using constitutional
remedies
The courts, in particular the Constitutional Court, fulfil a crucial role in the
enforcement of fundamental rights. As far as appropriate remedies are
concerned, the courts are empowered, whenever they decide on any issue
67
Grootboom (n 5) para 36.
62
Ibid.
63
Minister of Public Works v Kyalami Ridge Environmental Association 2001 3 SA 1151 (CC).
64
Id para 28. In this matter, the court had to deal with the erection of temporary transit housing on
65
state land for the victims of floods that had occurred in the greater Johannesburg area. The court
concluded that this was an essential national project implemented in terms of a policy decision
taken by government that called for a co-ordinated effort by different spheres of government which
would require substantial funds out of the government coffers. The provision of relief to the victims
of natural disasters is an essential role of government in a democratic state, and government would
have failed in its duty to the victims of the floods if it had done nothing to assist them. There was
no legislation that made adequate provision for such a situation, and it cannot be said that in acting
as it did, government was avoiding a legislative framework prescribed by parliament for such
purposes. Nor can it be said that government was acting arbitrarily or otherwise in a manner
contrary to the rule of law. If regard is given to its constitutional obligations, to its rights as the owner
of the land, and to its executive power to implement policy decisions, its decision to establish a
temporary transit camp for the victims of the flooding was lawful, see para 52 of this case.
Minister of Public Works v Kyalami Ridge Environmental Association (n 64) para 52.
66
In the context of socio-economic rights, the effect of the remedial provisions of the Constitution
67
is to confer a wide discretion on the courts to fashion appropriate and innovative remedies to meet
the needs of the poor and the desolate. The impact of this wide remedial power is reinforced by the
jurisprudence developed by the Constitutional Court, which emphasises that in order for remedies
106 (2015) 30 SAPL
involving the interpretation, protection and enforcement of fundamental rights
contained in the Constitution, to make any order that is just and equitable and
68
may grant appropriate relief in this regard. Specific constitutional remedies
69
include orders of invalidity, the development of the common law to give effect
70
to the constitutional rights, and procedural remedies derived from some of the
71
substantive rights.72
In addition to the courts, there are also other institutions that are
constitutionally entrusted with the task of monitoring compliance with and enforcing
the constitutional fundamental rights. The South African Human Rights
73
Commission is mandated to, amongst other things, monitor and assess the
obligation of the state to progressively realise the rights in the Bill of Rights.
Theoretically, this appears to be a perfect system, but the lived experiences of the
poor and marginalised in South Africa would provide a different picture.74
The South African courts face the challenge of enforcing social and
economic rights, while at the same time showing an appropriate level of
to be ‘appropriate’ they must be effective see, Fose v Minister of Safety and Security 1997 3 SA 786
(CC).
Sections 172(b) and 167(7) of the Constitution.
68
Section 38 of the Constitution. In Fose v Minister of Safety and Security (n 67) para 19,
69
appropriate relief is described as follows. Appropriate relief will in essence be relief that is required
to protect and enforce the Constitution. Depending on the circumstances of each particular case
the relief may be a declaration of rights, an interdict, a mandamus or such other relief as may be
required to ensure that the rights enshrined in the Constitution are protected and enforced. If it is
necessary to do so, the courts may even have to fashion new remedies to secure the protection and
enforcement of these important rights.
Section 172(1)(a) of the Constitution.
70
Sections 173 and 8(3) of the Constitution.
71
Sections 32(1), 33(2), and 34 of the Constitution.
72
Civil society has also played a crucial role in the enforcement of socio-economic rights in South
73
Africa. There have been a number of cases where the role of civil society has been alluded to; see
for instance Nyathi v Member of the Executive Council for the Department of Health Gauteng 2008
5 SA 94 (CC). The Nyathi case suggests that strategies for enforcement need to look beyond civil
society mobilisation to deeper reforms. Secondly the degree of mobilisation of broader social
movements or attentiveness by NGOs may affect broader enforcement, but the role of Applicants
in enforcement should not be overlooked.
Ngang ‘Judicial enforcement of socio-economic rights in South Africa and separation of powers
74
objection: The obligation to take other measures’ (2014) 14 African HRLJ 673-674. One of the
major obstacles in developing monitoring tools has been the obtuse way in which state obligations
have been defined in international law. The consequence of such vague language within the rights
discourse has been criticised. This stems from the fact that there has been very little attempt by
international or national human rights institutions to add value to the content of the fulfilment and
enjoyment of human rights and to hold nation states accountable to their obligation. For example,
see De Vos’s criticism of the Mazibuko judgment, which he describes as ‘utterly unconvincing’ (n
46) 4.
A closer look at the right to have access to adequate housing 107
deference to the legislative and executive branches of government, which have
75
the mandate and capacity to make broad policy choices in this area. With regard
to the violation of socio-economic rights, the courts have over the years adopted
innovative and far-reaching remedies and principles to enable them to fulfil their
constitutional mandate. Bilchitz considers reasonableness, equality, and
76
minimum core as viable approaches to ensuring that socio-economic rights have
teeth. He illustrates the weaknesses of the reasonableness approach, by
77
arguing that this approach limits the scope for the normative development of
socio-economic rights.78
Chenwi notes that a minimum core approach involves identifying subsistence
levels in respect of each socio-economic right and insisting that the provision of
core goods and services enjoys immediate priority. According to her it
79
represents a floor of immediately enforceable entitlements from which
progressive realisation should proceed. One of the most important features of
80
the minimum core approach is that the obligation to ensure the satisfaction of, at
the very least, minimum essential levels of each of the rights is incumbent upon
the government to realise them.81
McLean ‘Constitutional deference, courts and socio-economic rights in South Africa’ (2009) 61-87
75
available at http://www.pulp.up.ac.za/pdf/2009_13/2009_13.pdf (accessed 2015-03-25).
See Liebenberg ‘From the crucible of the Eastern Cape: New legal tools for the poor’ (2015)
76
Speculum Juris 1-18 available at http://www.speculumjuris.co.za/files/pdf/SJ4214FPLiebenberg
_27Jan2015.pdf (accessed 2015-06-25).
Bilchitz ‘Towards a reasonable approach to the minimum core: Laying the foundations for future
77
socio-economic rights jurisprudence’ (2003) SAJHR 5-11.
Bilchitz (n 12) 135-176.
78
Chenwi ‘Unpacking progressive realisation, its relation to resources, minimum core and
79
reasonableness, and some methodological considerations for assessing compliance’ (2013) De
Jure 747-755. Although the courts in South Africa reject the minimum core approach, it is argued
in this study that research has revealed that conditional cash transfers improve the livelihoods of
the poor, enhance their skills, and support economic growth. See Ulriksen ‘How social security
policies and economic transformation affect poverty and inequality: Lessons for South Africa’ (2012)
Development Southern Africa 5-6; Dancey ‘Why payment systems matter to financial inclusion:
Examining the role of social cash transfers’ (2013) Journal of Payments Strategy and Systems 120-
121; Barrientos and De Jong ‘Reducing child poverty with cash transfers: A sure thing?’ (2006)
Development Policy Review 539-546.
See also Young ‘The minimum core of economic and social rights: A concept in search of content’
80
(2008) The Yale J of Int L 140-172. For further reading on the minimum core approach see Arendse
‘The obligation to provide free basic education in South Africa: An international law perspective’
(2011) PER 109-110.
For a detailed discussion on the minimum core approach see Chenwi (n 79) 747-755; See also
81
Simbo ‘The right to basic education, the South African Constitution and the Juma Musjid case: An
unqualified human right and a minimum core standard’ (2013) Law, Democracy and Development
489-500; Assefa ‘Defining the minimum core obligations – conundrums in international rights law
and lessons from the Constitutional Court of South Africa’ (2010) Mekelle University LJ 48-70.
108 (2015) 30 SAPL
At the same time the courts have shown reluctance to make policy decisions
that go against the government. With regard to remedies in cases where social
82
and economic rights are involved, the South African Constitutional Court has
developed an innovative remedy in housing rights jurisprudence that it termed
engagement. In its simplest form, engagement requires municipalities to use
83
negotiation or mediation when it becomes clear that the adoption of a new policy
will require evicting residents.
The concept of meaningful engagement as a remedy of accountability
provides a litmus test to determine whether the state has acted constitutionally.84
In Occupiers of 51 Olivia Road v City of Johannesburg, the Constitutional Court
85
delivered judgment against the backdrop of the engagement order. This case
concerned an appeal by more than 400 occupiers of two buildings in the inner city
of Johannesburg. The occupiers challenged the correctness of the decision and
the order of the Supreme Court of Appeal authorising their eviction by the City of
Johannesburg, on the grounds that the buildings they occupied were unsafe and
unhealthy.
In its judgment the court requested the two parties to engage with each other
with a view to finding a mutually beneficial solution to the dispute. The court also
held that it is essential for a municipality to engage meaningfully with the affected
people before evicting them from their homes if the eviction would render them
homeless. Furthermore, the Constitutional Court in its judgment encouraged the
involvement of communities and community organisations in matters of local
government, and enjoined them to respect, protect, promote and fulfil the rights
in the Bill of Rights. In addition, other methods which the courts have employed
86
to enforce socio-economic rights include structural interdicts. A structural interdict
is another useful tool in this respect. It is an injunctive remedy that requires the
party to whom it is directed, to report back to the court, within a specified period
in respect of the measures that have been taken to comply with the court’s
orders.87
The Constitutional Court has been criticised for its failure to impose structural
interdicts in cases involving social and economic rights, where the state action in
Wesson ‘Reasonableness in retreat? The judgment of the South African Constitutional Court in
82
Mazibuko v City of Johannesburg’ (2011) Human Rights Law Review 9-16.
Liebenberg (n 51) 410-423; Ray ‘Engagement’s possibilities and limits as socio-economic remedy’
83
(2010) Washington University Global Studies LR 399-424.
Ray ‘Occupiers of 51 Olivia Road v City of Johannesburg: Enforcing the right to adequate housing
84
through engagement’ (2008) Human Rights Law Review 703.
Olivia Road (n 23).
85
Section 7(2) of the Constitution.
86
For further reading in this regard see Pillay ‘South Africa: Access to land and housing’ (2010)
87
International J of Constitutional Law 554-556.
A closer look at the right to have access to adequate housing 109
response to Court orders is slow and inefficient. Currie and De Waal assert
88 89
that in the Treatment Action Campaign case, the Constitutional Court was again
urged to establish a core minimum content, this time for the right to health care.
Nevertheless, the court declined to do so, holding that the section 27 right was
implemented by the state taking reasonable measures progressively, and that the
court’s role was confined to ensuring that the legislative and other measures
taken by the state were reasonable. They further note that while such
determinations of reasonableness may in fact have budgetary implications, the
courts are in themselves directed at rearranging budgets.
Both Grootboom and Treatment Action Campaign emphasised the need for
government policy to be capable of being adapted to changing conditions. In
President of the Republic of South Africa v Modderklip Boerdery, there was
90
room for flexibility of this kind as the company had expressed a willingness to
negotiate the sale of the affected land. However, the relevant state officials were
unwilling to explore that route or any other.
Mbazira citing Pillay argues that the Grootboom judgment failed to live up
91
to the expectations of both the litigants and those who were hoping for a dramatic
change in government policy on housing. He further notes that a key contributing
factor to the lack of implementation of the judgment was the nature of the orders
handed down by the Court. He contends that because of the unclear formulation
of what was expected from the government, there was a clear lack of
understanding that the judgment required systemic changes to national, provincial
and local housing programmes to cater for people in desperate and crisis
situations.92
In the Modderklip judgment Langa ACJ emphasised that the courts have a
duty to mould an order that will provide effective relief to those affected by a
constitutional breach. The court further remarked that:
93
Constitutional remedies will differ by circumstance. The only appropriate relief
that, in the particular circumstances of the case, would appear to be justified is
that of ‘constitutional’ damages, for example, damages due to the breach of a
Davis ‘Socio-economic rights in South Africa: The record after ten years’ (2004) New Zealand
88
Journal of Public and International Law 51-66.
Currie and De Waal The Bill of Rights handbook (2013) 583-584.
89
President of the Republic of South Africa v Modderklip Boerdery 2004 6 SA 40 (SCA) 61.
90
Mbazira ‘You are the “weakest link” in realising socio-economic rights: Goodbye: Strategies for
91
effective implementation of court orders in South Africa’ (2008) Socio-economic Rights Project,
Community Law Centre, University of the Western Cape 20-39 available at https://docs.escr-net.
org/usr_doc/Mbazira,_Weakest_Link_in_Realising_Socio-Economic_Rights.pdf (accessed 2015-
07-01).
Mbazira (n 91) 21.
92
Modderklip Boerdery judgment (n 90) para 20.
93
110 (2015) 30 SAPL
constitutionally entrenched right. No other remedy is apparent. Return of the land
is not feasible. There is in any event no indication that the land, which was being
used for cultivating hay, was otherwise occupied by the lessees or inhabited by
anyone else. Ordering the State to pay damages to Modderklip has the advantage
that the Gabon occupiers can remain where they are while Modderklip will be
recompensed for that which it has lost and the State has gained by not having to
provide alternative land. The State may, obviously, expropriate the land, in which
event Modderklip will no longer suffer any loss and compensation will not be
payable (except for the past use of the land). A declaratory order to this effect
ought to do justice to the case. Modderklip will not receive more than what it has
lost, the State has already received value for what it has to pay and the immediate
social problem is solved while the medium and long term problems can be solved
as and when the state can afford it.94
It is submitted that in order to address the housing backlog and concomitant
socio-economic realities faced by inhabitants of informal settlements the following
cardinal points are important. First, the government ought to identify land which
is suitable for low cost housing. Secondly, government should provide the poor
with access to serviced land on which they can erect a temporary dwelling which,
over time, they can improve. This land needs to be reasonably close to basic
services including schools and transport to the main centres of employment.
Lastly, government ought to allocate land to those who use it for the benefit of the
community, not just the benefit of the few who currently own it. This includes the
land used by individuals and private companies for profit without any benefit to
the people.
In summation Davis contends that:
the sooner a clear principle of accountability to the key distributional commitments
enshrined in the Constitution is embraced (initially by the courts and then, via the
trialogue initiated through litigation, accepted by the other institutions of the state)
the less likely it is that the courts will become a site of political struggle, of a kind
that will yet again force them to adhere to the timidity of deference.95
6 Conclusion
In Grootboom the Constitutional Court stressed, within the context of the right to
have access to adequate housing, that effective implementation requires at least
adequate budgetary support by national government. It emphasised that it is
96
essential that a reasonable part of the national housing budget be devoted to
Id para 66.
94
Davis ‘Socio-economic rights in South Africa: The record after ten years’ (n 88) 66.
95
Grootboom (n 6) para 68.
96
A closer look at the right to have access to adequate housing 111
granting relief to those in desperate need, but that the precise allocation is for
national government to decide in the first instance. Guidelines drawn up in the
97
wake of budget constraints have to be reasonable.98
It is clear that section 26(1) requires state planning that is flexible enough to
adapt to changing social conditions. According to Pillay ‘this echoes the reasoning
in Minister of Health v Treatment Action Campaign, in which it was held that the
99
state’s policy regarding the provision of nevirapine, an antiretroviral drug to
prevent the mother-to-child transmission of HIV, was unreasonable and
inconsistent with the constitutional protection of the right to health care services,
because, among other things, it was too inflexible’.100
In the Madzodzo judgment, the court rejected the government’s interpretation
of the right to basic education as described in various policy documents as a right
to be progressively realised over time. Instead, the court reaffirmed the
developing jurisprudence on the right to basic education by saying that the state
must take all reasonable measures with immediate effect to realise the right.
My conclusion is then threefold: First, it is submitted that both the Grootboom and
Treatment Action Campaign judgments emphasised the need for government
policy to be adaptable to changing conditions, in particular, courts have a duty to
mould an order that will provide effective relief to those affected by a
constitutional breach. Secondly, the Grootboom judgment provides a critical
101
reference point for policy makers to gauge whether these policies have actually
complied with the Constitution, for example, the right to have access to housing,
especially insofar as it may have an impact on the lives of residents of informal
settlements. Thirdly, the Grootboom judgment provides a yardstick for
government to take the policies that are made seriously and to make sure that
these policies are respected and implemented. Finally, the ruling gives directions
in as far as what the government ought to do, for example, the government has
a duty to improve the lives of the residents of informal settlements who live in
appalling conditions. In a sense the Grootboom judgment attests that without
attaining the social and economic rights of the masses, the realisation of
individual liberty is a fruitless constitutional exercise.
Id para 66.
97
Soobramoney v Minister of Health, Kwazulu Natal 1998 1 SA 765 (CC) para 25.
98
Treatment Action Campaign (n 23).
99
Pillay (n 87) 551-552.
100
Treatment Action Campaign (n 23) para 102.
101
