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Government of the Republic of South Africa and Others v Grootboom and Others (CCT11/00) [2000] ZACC 19; 2001 (1) SA 46; 2000 (11) BCLR 1169; (4 October 2000)
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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT
11/00
THE GOVERNMENT OF THE REPUBLIC
OF SOUTH AFRICA First
Appellant
THE PREMIER OF THE PROVINCE OF THE
WESTERN CAPE Second
Appellant
CAPE METROPOLITAN COUNCIL Third Appellant
OOSTENBERG
MUNICIPALITY Fourth Appellant
versus
IRENE GROOTBOOM
AND
OTHERS Respondents
Heard on : 11 May 2000
Decided on : 4
October 2000
JUDGMENT
YACOOB J:
A. Introduction
| [1] | The
people of South Africa are committed to the attainment of social justice and the
improvement of the quality of life for everyone.
The Preamble to our
Constitution records this commitment. The Constitution declares the founding
values of our society to be “[h]uman
dignity, the achievement of equality
and the advancement of human rights and
freedoms.”[1] This case
grapples with the realisation of these aspirations for it concerns the
state’s constitutional obligations in relation
to housing: a
constitutional issue of fundamental importance to the development of South
Africa’s new constitutional order. |
| [2] | The issues here remind us of
the intolerable conditions under which many of our people are still living. The
respondents are but
a fraction of them. It is also a reminder that unless the
plight of these communities is alleviated, people may be tempted to take
the law
into their own hands in order to escape these conditions. The case brings home
the harsh reality that the Constitution’s
promise of dignity and equality
for all remains for many a distant dream. People should not be impelled by
intolerable living conditions
to resort to land invasions. Self-help of this
kind cannot be tolerated, for the unavailability of land suitable for housing
development
is a key factor in the fight against the country’s housing
shortage. |
| [3] | The group of people with
whom we are concerned in these proceedings lived in appalling conditions,
decided to move out and illegally
occupied someone else’s land. They were
evicted and left homeless. The root cause of their problems is the intolerable
conditions
under which they were living while waiting in the queue for their
turn to be allocated low-cost housing. They are the people whose
constitutional
rights have to be determined in this case. |
| [4] | Mrs Irene Grootboom and the
other respondents[2] were rendered
homeless as a result of their eviction from their informal homes situated on
private land earmarked for formal low-cost
housing. They applied to the Cape of
Good Hope High Court (the High Court) for an order requiring government to
provide them with
adequate basic shelter or housing until they obtained
permanent accommodation and were granted certain
relief.[3] The appellants were
ordered to provide the respondents who were children and their parents with
shelter. The judgment provisionally
concluded that “tents, portable
latrines and a regular supply of water (albeit transported) would constitute the
bare minimum.”[4] The appellants
who represent all spheres of government responsible for
housing[5] challenge the correctness
of that order. |
| [5] | At the hearing of this
matter an offer was made by the appellants to ameliorate the immediate crisis
situation in which the respondents
were living. The offer was accepted by the
respondents. This meant that the matter was not as urgent as it otherwise would
have
been. However some four months after argument, the respondents made an
urgent application to this Court in which they revealed that
the appellants had
failed to comply with the terms of their offer. That application was set down
for 21 September 2000. On that
day the Court, after communication with the
parties, crafted an order putting the municipality on terms to provide certain
rudimentary
services. |
| [6] | The cause of the acute
housing shortage lies in apartheid. A central feature of that policy was a
system of influx control that sought
to limit African occupation of urban
areas.[6] Influx control was
rigorously enforced in the Western Cape, where government policy favoured the
exclusion of African people in
order to accord preference to the coloured
community: a policy adopted in 1954 and referred to as the “coloured
labour preference
policy.” In consequence, the provision of family
housing for African people in the Cape Peninsula was frozen in 1962. This
freeze was extended to other urban areas in the Western Cape in 1968. Despite
the harsh application of influx control in the Western
Cape, African people
continued to move to the area in search of jobs. Colonial dispossession and a
rigidly enforced racial distribution
of land in the rural areas had dislocated
the rural economy and rendered sustainable and independent African farming
increasingly
precarious. Given the absence of formal housing, large numbers of
people moved into informal settlements throughout the Cape peninsula.
The cycle
of the apartheid era, therefore, was one of untenable restrictions on the
movement of African people into urban areas,
the inexorable tide of the rural
poor to the cities, inadequate housing, resultant overcrowding, mushrooming
squatter settlements,
constant harassment by officials and intermittent forced
removals.[7] The legacy of influx
control in the Western Cape is the acute housing shortage that exists there now.
Although the precise extent
is uncertain, the shortage stood at more than 100
000 units in the Cape Metro at the time of the inception of the interim
Constitution
in 1994. Hundreds of thousands of people in need of housing
occupied rudimentary informal settlements providing for minimal shelter,
but
little else. |
| [7] | Mrs Grootboom and most of
the other respondents previously lived in an informal squatter settlement called
Wallacedene. It lies on
the edge of the municipal area of Oostenberg, which in
turn is on the eastern fringe of the Cape Metro. The conditions under which
most of the residents of Wallacedene lived were lamentable. A quarter of the
households of Wallacedene had no income at all, and
more than two thirds earned
less than R500 per month.[8] About
half the population were children; all lived in shacks. They had no water,
sewage or refuse removal services and only 5%
of the shacks had electricity.
The area is partly waterlogged and lies dangerously close to a main
thoroughfare. Mrs Grootboom
lived with her family and her sister’s family
in a shack about twenty metres square. |
| [8] | Many had applied for
subsidised low-cost housing from the municipality and had been on the waiting
list for as long as seven years.
Despite numerous enquiries from the
municipality no definite answer was given. Clearly it was going to be a long
wait. Faced with
the prospect of remaining in intolerable conditions
indefinitely, the respondents began to move out of Wallacedene at the end of
September 1998. They put up their shacks and shelters on vacant land that was
privately owned and had been earmarked for low-cost
housing. They called the
land “New Rust.” |
| [9] | They did not have the
consent of the owner and on 8 December 1998 he obtained an ejectment order
against them in the magistrates’
court. The order was served on the
occupants but they remained in occupation beyond the date by which they had been
ordered to vacate.
Mrs Grootboom says they had nowhere else to go: their former
sites in Wallacedene had been filled by others. The eviction proceedings
were
renewed in March 1999. The respondents’ attorneys in this case were
appointed by the magistrate to represent them on
the return day of the
provisional order of eviction. Negotiations resulted in the grant of an order
requiring the occupants to vacate
New Rust and authorising the sheriff to evict
them and to dismantle and remove any of their structures remaining on the land
on 19
May 1999. The magistrate also directed that the parties and the
municipality mediate to identify alternative land for the permanent
or temporary
occupation of the New Rust residents. |
| [10] | The municipality had not
been party to the proceedings but it had engaged attorneys to monitor them on
its behalf. It is not clear
whether the municipality was a party to the
settlement and the agreement to mediate. Nor is it clear whether the eviction
was in
accordance with the provisions of the Prevention of Illegal Eviction from
and Unlawful Occupation of Land Act, 19 of
1998.[9] The validity of the eviction
order has never been challenged and must be accepted as correct. However, no
mediation took place
and on 18 May 1999, at the beginning of the cold, windy and
rainy Cape winter, the respondents were forcibly evicted at the
municipality’s
expense. This was done prematurely and inhumanely:
reminiscent of apartheid-style evictions. The respondents’ homes were
bulldozed and burnt and their possessions destroyed. Many of the residents who
were not there could not even salvage their personal
belongings. |
| [11] | The respondents went and
sheltered on the Wallacedene sports field under such temporary structures as
they could muster. Within a
week the winter rains started and the plastic
sheeting they had erected afforded scant protection. The next day the
respondents’
attorney wrote to the municipality describing the intolerable
conditions under which his clients were living and demanded that the
municipality meet its constitutional obligations and provide temporary
accommodation to the respondents. The respondents were not
satisfied with the
response of the municipality[10] and
launched an urgent application in the High Court on 31 May 1999. As indicated
above, the High Court granted relief to the respondents
and the appellants now
appeal against that relief. |
| [12] | In the remainder of this
judgment, I first outline the reasoning adopted in the High Court judgment.
Consideration is then given
to the right of access to adequate housing in
section 26 of the Constitution and the proper approach to be adopted to the
application
of that section. This is followed by evaluation of the housing
programme adopted by the state in the light of the obligations imposed
upon it
by section 26. The respondents’ claim in terms of the rights of children
in section 28 of the Constitution is thereafter
considered. Finally, the
respondents’ arguments concerning the conduct of the appellants towards
them will be examined. |
B. The case in the High
Court
| [13] | Mrs
Grootboom and the other respondents applied for an order directing the
appellants forthwith to provide: |
(i) adequate basic temporary shelter or housing to the respondents and their
children pending their obtaining permanent accommodation;
(ii) or basic nutrition, shelter, healthcare and social services to the
respondents who are
children.[11]
The
respondents based their claim on two constitutional provisions. First, on
section 26 of the Constitution which provides that
everyone has the right of
access to adequate housing. Section 26(2) imposes an obligation upon the state
to take reasonable legislative
and other measures to ensure the progressive
realisation of this right within its available resources. The section is fully
considered
later in this judgment. The second basis for their claim was section
28(1)(c) of the Constitution which provides that children have
the right to
shelter.
| [14] | After conducting an
inspection in loco, Josman AJ ordered that, pending the final
determination of the application, temporary accommodation be provided for those
of the
respondents who were children and for one parent of each child who
required supervision. Appellants furnished comprehensive answering
affidavits
to demonstrate that the state housing programme complied with their
constitutional obligations. On the return day, the
matter came before two
judges. The High Court judgment consists of two separate parts. The first,
under the heading “Housing”
considered the claim in terms of section
26 of the Constitution. On this part of the claim the High Court
concluded: |
“In short [appellants] are faced with a massive shortage in available
housing and an extremely constrained budget. Furthermore
in terms of the
pressing demands and scarce resources [appellants] had implemented a housing
programme in an attempt to maximise
available resources to redress the housing
shortage. For this reason it could not be said that [appellants] had not taken
reasonable
legislative and other measures within its available resources to
achieve the progressive realisation of the right to have access
to adequate
housing.”[12]
The
court rejected an argument that the right of access to adequate housing under
section 26 included a minimum core entitlement to
shelter in terms of which the
state was obliged to provide some form of shelter pending implementation of the
programme to provide
adequate housing. This submission was based on the
provisions of certain international instruments that are discussed
later.[13]
| [15] | The second part of the
judgment addressed the claim of the children for shelter in terms of section
28(1)(c). The court reasoned
that the parents bore the primary obligation to
provide shelter for their children, but that section 28(1)(c) imposed an
obligation
on the state to provide that shelter if parents could not. It went
on to say that the shelter to be provided according to this obligation
was a
significantly more rudimentary form of protection from the elements than is
provided by a house and falls short of adequate
housing. The court concluded
that: |
“an order which enforces a child’s right to shelter should take
account of the need of the child to be accompanied by
his or her parent. Such
an approach would be in accordance with the spirit and purport of section 28 as
a whole.”
| [16] | In the result the court
ordered as follows: |
“(2) It is declared, in terms of section 28 of the Constitution
that;
(a) the applicant children are entitled to be provided with shelter by the
appropriate organ or department of state;
(b) the applicant parents are entitled to be accommodated with their children in
the aforegoing shelter; and
(c) the appropriate organ or department of state is obliged to provide the
applicant children, and their accompanying parents, with
such shelter until such
time as the parents are able to shelter their own
children;
(3) The several respondents are directed to present under oath a report or
reports to this Court as to the implementation of paragraph
(2) above within a
period of three months from the date of this order;
(4) The applicants shall have a period of one month, after presentation of the
aforegoing report, to deliver their commentary thereon
under oath;
(5) The respondents shall have a further period of two weeks to deliver their
replies under oath to the applicants’ commentary;
(6) There will be no order as to costs of these proceedings up to the date of
this judgment;
(7) The case is postponed to a date to be fixed by the Registrar for
consideration and determination of the aforesaid report, commentary
and
replies;
(8) The order of Josman AJ dated 4 June 1999 will remain in force until such
time as the further proceedings contemplated by the
preceding paragraph have
been
completed.”[14]
C. Argument in this
Court
| [17] | After
the application for leave to appeal had been granted by this Court but before
argument had been filed by any of the parties,
the Human Rights Commission and
the Community Law Centre of the University of the Western Cape applied to be
admitted as amici curiae. That application was granted and the
amici were permitted to present written and oral argument. Mr Budlender of
the Legal Resources Centre submitted written argument and appeared
on behalf of
the amici at the hearing. We are grateful to him, the Human Rights
Commission and the Community Law Centre for a detailed, helpful and creative
approach to the difficult and sensitive issues involved in this
case. |
| [18] | Written argument submitted
on behalf of the appellants and the respondents concentrated on the meaning and
import of the shelter component
and the obligations imposed upon the state by
section 28(1)(c). The written argument filed on behalf of the amici
sought to broaden the issues by contending that all the respondents, including
those of the adult respondents without children, were
entitled to shelter by
reason of the minimum core obligation incurred by the state in terms of section
26 of the Constitution. It
was further contended on behalf of the amici
that the children’s right to shelter had been included in section 28(1)(c)
to place the right of children to this minimum core
beyond doubt.
Respondents’ counsel filed further written contentions in which they
supported and adopted these submissions.
No objection was taken to the issues
having been thus broadened. |
D. The relevant constitutional provisions and their
justiciability
| [19] | The
key constitutional provisions at issue in this case are section 26 and section
28(1)(c). Section 26 provides: |
“(1) Everyone has the right to have access to adequate housing.
(2) The state must take reasonable legislative and other measures, within its
available resources, to achieve the progressive realisation
of this right.
(3) No one may be evicted from their home, or have their home demolished,
without an order of court made after considering all the
relevant circumstances.
No legislation may permit arbitrary
evictions.”
Section 28(1)(c)
provides:
“(1) Every child has the right -
. . .
(c) to basic nutrition, shelter, basic health care services and social
services”.
These rights need
to be considered in the context of the cluster of socio-economic rights
enshrined in the Constitution. They entrench
the right of access to
land,[15] to adequate housing and to
health care, food, water and social
security.[16] They also protect the
rights of the child[17] and the
right to education.[18]
| [20] | While the justiciability of
socio-economic rights has been the subject of considerable jurisprudential and
political debate,[19] the issue of
whether socio-economic rights are justiciable at all in South Africa has been
put beyond question by the text of our
Constitution as construed in the
Certification judgment.[20] During
the certification proceedings before this Court, it was contended that they were
not justiciable and should therefore not
have been included in the text of the
new Constitution. In response to this argument, this Court
held: |
“[T]hese rights are, at least to some extent, justiciable. As we have
stated in the previous paragraph, many of the civil
and political rights
entrenched in the [constitutional text before this Court for certification in
that case] will give rise to similar
budgetary implications without compromising
their justiciability. The fact that socio-economic rights will almost
inevitably give
rise to such implications does not seem to us to be a bar to
their justiciability. At the very minimum, socio-economic rights can
be
negatively protected from improper
invasion.”
Socio-economic rights are expressly included
in the Bill of Rights; they cannot be said to exist on paper only. Section 7(2)
of the
Constitution requires the state “to respect, protect, promote and
fulfil the rights in the Bill of Rights” and the courts
are
constitutionally bound to ensure that they are protected and fulfilled. The
question is therefore not whether socio-economic
rights are justiciable under
our Constitution, but how to enforce them in a given
case.[21] This is a very difficult
issue which must be carefully explored on a case-by-case basis. To address the
challenge raised in the
present case, it is necessary first to consider the
terms and context of the relevant constitutional provisions and their
application
to the circumstances of this case. Although the judgment of the
High Court in favour of the appellants was based on the right to
shelter
(section 28(1)(c) of the Constitution), it is appropriate to consider the
provisions of section 26 first so as to facilitate
a contextual evaluation of
section 28(1)(c).
E. Obligations imposed upon the state by section 26
i) Approach to
interpretation
| [21] | Like
all the other rights in Chapter 2 of the Constitution (which contains the Bill
of Rights), section 26 must be construed in its
context. The section has been
carefully crafted. It contains three subsections. The first confers a general
right of access to
adequate housing. The second establishes and delimits the
scope of the positive obligation imposed upon the state to promote access
to
adequate housing and has three key elements. The state is obliged: (a) to take
reasonable legislative and other measures; (b)
within its available resources;
(c) to achieve the progressive realisation of this right. These elements are
discussed later. The
third subsection provides protection against arbitrary
evictions. |
| [22] | Interpreting a right in its
context requires the consideration of two types of context. On the one hand,
rights must be understood
in their textual setting. This will require a
consideration of Chapter 2 and the Constitution as a whole. On the other hand,
rights
must also be understood in their social and historical
context. |
| [23] | Our Constitution entrenches
both civil and political rights and social and economic rights. All the rights
in our Bill of Rights
are inter-related and mutually supporting. 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
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. |
| [24] | The right of access to
adequate housing cannot be seen in isolation. There is a close relationship
between it and the other socio-economic
rights. Socio-economic rights must all
be read together in the setting of the Constitution as a whole. The state is
obliged to
take positive action to meet the needs of those living in extreme
conditions of poverty, homelessness or intolerable housing. Their
interconnectedness needs to be taken into account in interpreting the
socio-economic rights, and, in particular, in determining whether
the state has
met its obligations in terms of them. |
| [25] | Rights also need to be
interpreted and understood in their social and historical context. The right to
be free from unfair discrimination,
for example, must be understood against our
legacy of deep social
inequality.[22] The context in
which the Bill of Rights is to be interpreted was described by Chaskalson P in
Soobramoney:[23] |
“We live in a society in which there are great disparities in wealth.
Millions of people are living in deplorable conditions
and in great poverty.
There is a high level of unemployment, inadequate social security, and many do
not have access to clean water
or to adequate health services. These conditions
already existed when the Constitution was adopted and a commitment to address
them,
and to transform our society into one in which there will be human
dignity, freedom and equality, lies at the heart of our new constitutional
order. For as long as these conditions continue to exist that aspiration will
have a hollow
ring.”[24]
ii) The relevant international law and its
impact
| [26] | During
argument, considerable weight was attached to the value of international law in
interpreting section 26 of our Constitution.
Section 39 of the
Constitution[25] obliges a court to
consider international law as a tool to interpretation of the Bill of Rights.
In Makwanyane[26] Chaskalson
P, in the context of section 35(1) of the interim
Constitution,[27]
said: |
“. . . public international law would include non-binding as well as
binding law. They may both be used under the section
as tools of
interpretation. International agreements and customary international law
accordingly provide a framework within which
[the Bill of Rights] can be
evaluated and understood, and for that purpose, decisions of tribunals dealing
with comparable instruments,
such as the United Nations Committee on Human
Rights, the Inter-American Commission on Human Rights, the Inter-American Court
of
Human Rights, the European Commission on Human Rights, and the European Court
of Human Rights, and, in appropriate cases, reports
of specialised agencies such
as the International Labour Organisation, may provide guidance as to the correct
interpretation of particular
provisions of [the Bill of
Rights].”(Footnotes omitted)
The relevant international
law can be a guide to interpretation but the weight to be attached to any
particular principle or rule
of international law will vary. However, where the
relevant principle of international law binds South
Africa,[28] it may be directly
applicable.
| [27] | The amici submitted
that the International Covenant on Economic, Social and Cultural Rights (the
Covenant)[29] is of significance in
understanding the positive obligations created by the socio-economic rights in
the Constitution. Article 11.1
of the Covenant
provides: |
“The States Parties to the present Covenant recognize the right of
everyone to an adequate standard of living for himself and
his family, including
adequate food, clothing and housing, and to the continuous improvement of living
conditions. The States Parties
will take appropriate steps to ensure the
realization of this right, recognizing to this effect the essential importance
of international
co-operation based on free
consent.”
This Article must be read with Article 2.1
which provides:
“Each State Party to the present Covenant undertakes to take steps,
individually and through international assistance and co-operation,
especially
economic and technical, to the maximum of its available resources, with a view
to achieving progressively the full realization
of the rights recognized in the
present Covenant by all appropriate means, including particularly the adoption
of legislative measures.”
| [28] | The differences between the
relevant provisions of the Covenant and our Constitution are significant in
determining the extent to
which the provisions of the Covenant may be a guide to
an interpretation of section 26. These differences, in so far as they relate
to
housing, are: |
(a) The Covenant provides for a right to adequate housing while section
26 provides for the right of access to adequate housing.
(b) The Covenant obliges states parties to take appropriate steps which
must include legislation while the Constitution obliges the South African state
to take reasonable legislative and other
measures.
| [29] | The obligations undertaken
by states parties to the Covenant are monitored by the United Nations Committee
on Economic, Social and
Cultural Rights (the
committee).[30] The amici
relied on the relevant general comments issued by the committee concerning
the interpretation and application of the Covenant, and
argued that these
general comments constitute a significant guide to the interpretation of section
26. In particular they argued
that in interpreting this section, we should
adopt an approach similar to that taken by the committee in paragraph 10 of
general
comment 3 issued in 1990, in which the committee found that
socio-economic rights contain a minimum core: |
“10. On the basis of the extensive experience gained by the Committee, as
well as by the body that preceded it, over a period
of more than a decade of
examining States parties’ reports the Committee is of the view that
minimum core obligation to ensure
the satisfaction of, at the very least,
minimum essential levels of each of the rights is incumbent upon every State
party. Thus,
for example, a State party in which any significant number of
individuals is deprived of essential foodstuffs, of essential primary
health
care, of basic shelter and housing, or of the most basic forms of education, is
prima facie, failing to discharge its obligations under the Covenant. If
the Covenant were to be read in such a way as not to establish such
a minimum
core obligation, it would be largely deprived of its raison d’etre. By
the same token, it must be noted that any
assessment as to whether a State has
discharged its minimum core obligation must also take account of resource
constraints applying
within the country concerned. Article 2(1) obligates each
State party to take the necessary steps “to the maximum of its available
resources”. In order for a State party to be able to attribute its
failure to meet at least its minimum core obligations to
a lack of available
resources it must demonstrate that every effort has been made to use all
resources that are at its disposition
in an effort to satisfy, as a matter of
priority, those minimum obligations.”
| [30] | It is clear from this
extract that the committee considers that every state party is bound to fulfil a
minimum core obligation by
ensuring the satisfaction of a minimum essential
level of the socio-economic rights, including the right to adequate housing.
Accordingly,
a state in which a significant number of individuals is deprived of
basic shelter and housing is regarded as prima facie in breach of its
obligations under the Covenant. A state party must demonstrate that every
effort has been made to use all the resources
at its disposal to satisfy the
minimum core of the right. However, it is to be noted that the general comment
does not specify precisely
what that minimum core
is. |
| [31] | The concept of minimum core
obligation was developed by the committee to describe the minimum expected of a
state in order to comply
with its obligation under the Covenant. It is the
floor beneath which the conduct of the state must not drop if there is to be
compliance
with the obligation. Each right has a “minimum essential
level” that must be satisfied by the states parties. The committee
developed this concept based on “extensive experience gained by [it] . . .
over a period of more than a decade of examining
States parties’
reports.” The general comment is based on reports furnished by the
reporting states and the general
comment is therefore largely descriptive of how
the states have complied with their obligations under the Covenant. The
committee
has also used the general comment “as a means of developing a
common understanding of the norms by establishing a prescriptive
definition.”[31] Minimum core
obligation is determined generally by having regard to the needs of the most
vulnerable group that is entitled to the
protection of the right in question.
It is in this context that the concept of minimum core obligation must be
understood in international
law. |
| [32] | It is not possible to
determine the minimum threshold for the progressive realisation of the right of
access to adequate housing without
first identifying the needs and opportunities
for the enjoyment of such a right. These will vary according to factors such as
income,
unemployment, availability of land and poverty. The differences between
city and rural communities will also determine the needs
and opportunities for
the enjoyment of this right. Variations ultimately depend on the economic and
social history and circumstances
of a country. All this illustrates the
complexity of the task of determining a minimum core obligation for the
progressive realisation
of the right of access to adequate housing without
having the requisite information on the needs and the opportunities for the
enjoyment
of this right. The committee developed the concept of minimum core
over many years of examining reports by reporting states. This
Court does not
have comparable information. |
| [33] | The determination of a
minimum core in the context of “the right to have access to adequate
housing” presents difficult
questions. This is so because the needs in
the context of access to adequate housing are diverse: there are those who need
land;
others need both land and houses; yet others need financial assistance.
There are difficult questions relating to the definition
of minimum core in the
context of a right to have access to adequate housing, in particular whether the
minimum core obligation should
be defined generally or with regard to specific
groups of people. As will appear from the discussion below, the real question
in
terms of our Constitution is whether the measures taken by the state to
realise the right afforded by section 26 are reasonable.
There may be cases
where it may be possible and appropriate to have regard to the content of a
minimum core obligation to determine
whether the measures taken by the state are
reasonable. However, even if it were appropriate to do so, it could not be done
unless
sufficient information is placed before a court to enable it to determine
the minimum core in any given context. In this case, we
do not have sufficient
information to determine what would comprise the minimum core obligation in the
context of our Constitution.
It is not in any event necessary to decide whether
it is appropriate for a court to determine in the first instance the minimum
core content of a right. |
iii) Analysis of section
26
| [34] | I
consider the meaning and scope of section 26 in its context. Its provisions are
repeated for convenience: |
“(1) Everyone has the right to have access to adequate housing.
(2) The state must take reasonable legislative and other measures, within its
available resources, to achieve the progressive realisation
of this right.
(3) No one may be evicted from their home, or have their home demolished,
without an order of court made after considering all the
relevant circumstances.
No legislation may permit arbitrary
evictions.”
Subsections (1) and (2) are
related and must be read together. Subsection (1) aims at delineating the scope
of the right. It is
a right of everyone including children. Although the
subsection does not expressly say so, there is, at the very least, a negative
obligation placed upon the state and all other entities and persons to desist
from preventing or impairing the right of access to
adequate
housing.[32] The negative right is
further spelt out in subsection (3) which prohibits arbitrary evictions. Access
to housing could also be
promoted if steps are taken to make the rural areas of
our country more viable so as to limit the inexorable migration of people
from
rural to urban areas in search of jobs.
| [35] | The right delineated in
section 26(1) is a right of “access to adequate housing” as distinct
from the right to adequate
housing encapsulated in the Covenant. This
difference is significant. It recognises that housing entails more than bricks
and mortar.
It requires available land, appropriate services such as the
provision of water and the removal of sewage and the financing of all
of these,
including the building of the house itself. For a person to have access to
adequate housing all of these conditions need
to be met: there must be land,
there must be services, there must be a dwelling. Access to land for the
purpose of housing is therefore
included in the right of access to adequate
housing in section 26. A right of access to adequate housing also suggests that
it is
not only the state who is responsible for the provision of houses, but
that other agents within our society, including individuals
themselves, must be
enabled by legislative and other measures to provide housing. The state must
create the conditions for access
to adequate housing for people at all economic
levels of our society. State policy dealing with housing must therefore take
account
of different economic levels in our
society. |
| [36] | In this regard, there is a
difference between the position of those who can afford to pay for housing, even
if it is only basic though
adequate housing, and those who cannot. For those
who can afford to pay for adequate housing, the state’s primary obligation
lies in unlocking the system, providing access to housing stock and a
legislative framework to facilitate self-built houses through
planning laws and
access to finance. Issues of development and social welfare are raised in
respect of those who cannot afford to
provide themselves with housing. State
policy needs to address both these groups. 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. |
| [37] | The state’s
obligation to provide access to adequate housing depends on context, and may
differ from province to province, from
city to city, from rural to urban areas
and from person to person. Some may need access to land and no more; some may
need access
to land and building materials; some may need access to finance;
some may need access to services such as water, sewage, electricity
and roads.
What might be appropriate in a rural area where people live together in
communities engaging in subsistence farming may
not be appropriate in an urban
area where people are looking for employment and a place to
live. |
| [38] | Subsection (2) speaks to
the positive obligation imposed upon the state. It requires the state to devise
a comprehensive and workable
plan to meet its obligations in terms of the
subsection. However subsection (2) also makes it clear that the obligation
imposed
upon the state is not an absolute or unqualified one. The extent of the
state’s obligation is defined by three key elements
that are considered
separately: (a) the obligation to “take reasonable legislative and other
measures”; (b) “to
achieve the progressive realisation” of the
right; and (c) “within available
resources.” |
Reasonable legislative and
other measures
| [39] | What constitutes reasonable
legislative and other measures must be determined in the light of the fact that
the Constitution creates
different spheres of government: national government,
provincial government and local
government.[33] The last of these
may, as it does in this case, comprise two
tiers.[34] The Constitution
allocates powers and functions amongst these different spheres emphasising their
obligation to co-operate with
one another in carrying out their constitutional
tasks. In the case of housing, it is a function shared by both national and
provincial
government.[35] Local
governments have an important obligation to ensure that services are provided in
a sustainable manner to the communities they
govern.[36] A reasonable programme
therefore must clearly allocate responsibilities and tasks to the different
spheres of government and ensure
that the appropriate financial and human
resources are available. |
| [40] | Thus, a co-ordinated state
housing programme must be a comprehensive one determined by all three spheres of
government in consultation
with each other as contemplated by Chapter 3 of the
Constitution. It may also require framework legislation at national level, a
matter we need not consider further in this case as there is national framework
legislation in place. Each sphere of government
must accept responsibility for
the implementation of particular parts of the programme but the national sphere
of government must
assume responsibility for ensuring that laws, policies,
programmes and strategies are adequate to meet the state’s section
26
obligations. In particular, the national framework, if there is one, must be
designed so that these obligations can be met.
It should be emphasised that
national government bears an important responsibility in relation to the
allocation of national revenue
to the provinces and local government on an
equitable basis.[37] Furthermore,
national and provincial government must ensure that executive obligations
imposed by the housing legislation are
met.[38] |
| [41] | The measures must establish
a coherent public housing programme directed towards the progressive realisation
of the right of access
to adequate housing within the state’s available
means. The programme must be capable of facilitating the realisation of the
right. The precise contours and content of the measures to be adopted are
primarily a matter for the legislature and the executive.
They must, however,
ensure that the measures they adopt are reasonable. In any challenge based on
section 26 in which it is argued
that the state has failed to meet the positive
obligations imposed upon it by section 26(2), the question will be whether the
legislative
and other measures taken by the state are reasonable. A court
considering reasonableness will not enquire whether other more desirable
or
favourable measures could have been adopted, or whether public money could have
been better spent. The question would be whether
the measures that have been
adopted are reasonable. It is necessary to recognise that a wide range of
possible measures could be
adopted by the state to meet its obligations. Many
of these would meet the requirement of reasonableness. Once it is shown that
the measures do so, this requirement is met. |
| [42] | The state
is required to take reasonable legislative and other measures.
Legislative measures by themselves are not likely to constitute constitutional
compliance. Mere legislation is
not enough. The state is obliged to act to
achieve the intended result, and the legislative measures will invariably have
to be
supported by appropriate, well-directed policies and programmes
implemented by the executive. These policies and programmes must
be reasonable
both in their conception and their implementation. The formulation of a
programme is only the first stage in meeting
the state’s obligations. The
programme must also be reasonably implemented. An otherwise reasonable
programme that is not
implemented reasonably will not constitute compliance with
the state’s obligations. |
| [43] | In determining whether a
set of measures is reasonable, it will be necessary to consider housing problems
in their social, economic
and historical context and to consider the capacity of
institutions responsible for implementing the programme. The programme must
be
balanced and flexible and make appropriate provision for attention to housing
crises and to short, medium and long term needs.
A programme that excludes a
significant segment of society cannot be said to be reasonable. Conditions do
not remain static and
therefore the programme will require continuous
review. |
| [44] | Reasonableness must also be
understood in the context of the Bill of Rights as a whole. The right of access
to adequate housing is
entrenched because we value human beings and want to
ensure that they are afforded their basic human needs. A society must seek
to
ensure that the basic necessities of life are provided to all if it is to be a
society based on human dignity, freedom and equality.
To 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. It may not
be sufficient to meet the test of reasonableness to show that the
measures are
capable of achieving a statistical advance in the realisation of the right.
Furthermore, the Constitution requires
that everyone must be treated with care
and concern. If the measures, though statistically successful, fail to respond
to the needs
of those most desperate, they may not pass the
test. |
Progressive realisation of the
right
| [45] | The extent and content of
the obligation consist in what must be achieved, that is, “the progressive
realisation of this right.”
It links subsections (1) and (2) by making it
quite clear that the right referred to is the right of access to adequate
housing.
The term “progressive realisation” shows that it was
contemplated that the right could not be realised immediately.
But the goal of
the Constitution is that the basic needs of all in our society be effectively
met and the requirement of progressive
realisation means that the state must
take steps to achieve this goal. It means that accessibility should be
progressively facilitated:
legal, administrative, operational and financial
hurdles should be examined and, where possible, lowered over time. Housing must
be made more accessible not only to a larger number of people but to a wider
range of people as time progresses. The phrase is taken
from international law
and Article 2.1 of the Covenant in
particular.[39] The committee has
helpfully analysed this requirement in the context of housing as
follows: |
“Nevertheless, the fact that realization over time, or in other words
progressively, is foreseen under the Covenant should
not be misinterpreted as
depriving the obligation of all meaningful content. It is on the one hand a
necessary flexibility device,
reflecting the realities of the real world and the
difficulties involved for any country in ensuring full realization of economic,
social and cultural rights. On the other hand, the phrase must be read in the
light of the overall objective, indeed the raison d’être, of
the Covenant which is to establish clear obligations for States parties in
respect of the full realization of the rights in question.
It thus imposes an
obligation to move as expeditiously and effectively as possible towards that
goal. Moreover, any deliberately
retrogressive measures in that regard would
require the most careful consideration and would need to be fully justified by
reference
to the totality of the rights provided for in the Covenant and in the
context of the full use of the maximum available
resources.”[40]
Although
the committee’s analysis is intended to explain the scope of states
parties’ obligations under the Covenant,
it is also helpful in plumbing
the meaning of “progressive realisation” in the context of our
Constitution. The meaning
ascribed to the phrase is in harmony with the context
in which the phrase is used in our Constitution and there is no reason not
to
accept that it bears the same meaning in the Constitution as in the document
from which it was so clearly derived.
Within available
resources
| [46] | The third defining aspect
of the obligation to take the requisite measures is that the obligation does not
require the state to do
more than its available resources permit. This means
that both the content of the obligation in relation to the rate at which it
is
achieved as well as the reasonableness of the measures employed to achieve the
result are governed by the availability of resources.
Section 26 does not
expect more of the state than is achievable within its available resources. As
Chaskalson P said in
Soobramoney:[41] |
“What is apparent from these provisions is that the obligations imposed on
the State by ss 26 and 27 in regard to access to
housing, health care, food,
water, and social security are dependent upon the resources available for such
purposes, and that the
corresponding rights themselves are limited by reason of
the lack of resources. Given this lack of resources and the significant
demands
on them that have already been referred to, an unqualified obligation to meet
these needs would not presently be capable
of being
fulfilled.”
There is a balance between goal and means.
The measures must be calculated to attain the goal expeditiously and effectively
but the
availability of resources is an important factor in determining what is
reasonable.
F. Description and evaluation of the state housing
programme
| [47] | In
support of their contention that they had complied with the obligation imposed
upon them by section 26, the appellants placed evidence
before this Court of the
legislative and other measures they had adopted. There is in place both
national and provincial legislation
concerned with
housing.[42] It was explained that
in 1994 the state inherited fragmented housing arrangements which involved
thirteen statutory housing funds,
seven ministries and housing departments, more
than twenty subsidy systems and more than sixty national and regional
parastatals
operating on a racial basis. These have been rationalised. The
national Housing Act provides a framework which establishes the
responsibilities
and functions of each sphere of government with regard to housing. The
responsibility for implementation is generally
given to the provinces.
Provinces in turn have assigned certain implementation functions to local
government structures in many
cases. All spheres of government are intimately
involved in housing delivery and the budget allocated by national government
appears
to be substantial. There is a single housing policy and a subsidy
system that targets low-income earners regardless of race. The
White Paper on
Housing aims to stabilise the housing environment, establish institutional
arrangements, protect consumers, rationalise
institutional capacity within a
sustainable long-term framework, facilitate the speedy release and servicing of
land and co-ordinate
and integrate the public sector investment in housing. In
addition, various schemes are in place involving public/private partnerships
aimed at ensuring that housing provision is effectively
financed. |
| [48] | “Housing
development” is defined in section 1 of the Housing Act
as: |
“the establishment and maintenance of habitable, stable and sustainable
public and private residential environments to ensure
viable households and
communities in areas allowing convenient access to economic opportunities, and
to health, educational and social
amenities in which all citizens and permanent
residents of the Republic will, on a progressive basis, have access
to—
(a) permanent residential structures with secure tenure, ensuring internal and
external privacy and providing adequate protection
against the elements; and
(b) potable water, adequate sanitary facilities and domestic energy supply . .
.”
“Housing development
project” is defined as “any plan to undertake housing development as
contemplated in any national
housing programme.”
| [49] | Section 2(1) of the Act
sets out the general principles binding on national, provincial and local
spheres of government. I set out
those principles are that material to the
determination of this case. All levels of government
must: |
“(a) give priority to the needs of the poor in respect of housing
development;
(b) consult meaningfully with individuals and communities affected by housing
development;
(c) ensure that housing
development—
(i) provides as wide a choice of housing and tenure options as is reasonably
possible;
(ii) is economically, fiscally, socially and financially affordable and
sustainable;
(iii) is based on integrated development planning; and
(iv) is administered in a transparent, accountable and equitable manner, and
upholds the practice of good
governance;
. . .
(e) promote—
(i) education and consumer protection in respect of housing development;
(ii) conditions in which everyone meets their obligations in respect of housing
development;
(iii) the establishment, development and maintenance of socially and
economically viable communities and of safe and healthy living
conditions to
ensure the elimination and prevention of slums and slum
conditions;
. . .
(ix) the provision of community and recreational facilities in residential
areas;
(f) take due cognisance of the impact of housing development on the
environment;
. . .
(h) in the administration of any matter relating to housing
development—
(i) respect, protect, promote and fulfil the rights in the Bill of Rights in
Chapter 2 of the Constitution;
(ii) observe and adhere to the principles of co-operative government and
intergovernmental relations referred to in section 41 (1)
of the Constitution;
and
(iii) comply with all other applicable provisions of the
Constitution.”
| [50] | Over and above these
general principles, the Act sets out the functions of the national, provincial
and local government in relation
to housing. The functions of national
government are set out in section 3 of the
Act.[43] The function of provincial
governments are set out in section 7 of the
Act[44] and the functions of
municipalities are set out in section 9 of the
Act.[45] The responsibilities of
local government in the Cape Metro, and in particular the relationship between
metropolitan government on
the one hand and municipal government on the other,
have been regulated by an agreement entered into between the Cape Metro and the
municipalities within its
jurisdiction.[46] |
| [51] | It emerges from the general
principles read together with the functions of national, provincial and local
government that the concept
of housing development as defined is central to the
Act. Housing development, as defined, seeks to provide citizens and permanent
residents with access to permanent residential structures with secure tenure
ensuring internal and external privacy and to provide
adequate protection
against the elements. What is more, it endeavours to ensure convenient access
to economic opportunities and
to health, educational and social amenities. All
the policy documents before the Court are postulated on the need for housing
development
as defined. This is the central thrust of the housing development
policy. |
| [52] | The definition of housing
development as well as the general principles that are set out do not
contemplate the provision of housing
that falls short of the definition of
housing development in the Act. In other words there is no express provision to
facilitate
access to temporary relief for people who have no access to land, no
roof over their heads, for people who are living in intolerable
conditions and
for people who are in crisis because of natural disasters such as floods and
fires, or because their homes are under
threat of demolition. These are people
in desperate need. Their immediate need can be met by relief short of housing
which fulfils
the requisite standards of durability, habitability and stability
encompassed by the definition of housing development in the
Act. |
| [53] | What has been done in
execution of this programme is a major achievement. Large sums of money have
been spent and a significant number
of houses has been
built.[47] Considerable thought,
energy, resources and expertise have been and continue to be devoted to the
process of effective housing delivery.
It is a programme that is aimed at
achieving the progressive realisation of the right of access to adequate
housing. |
| [54] | A question that
nevertheless must be answered is whether the measures adopted are reasonable
within the meaning of section 26 of the
Constitution. Allocation of
responsibilities and functions has been coherently and comprehensively
addressed. The programme is
not haphazard but represents a systematic response
to a pressing social need. It takes account of the housing shortage in South
Africa by seeking to build a large number of homes for those in need of better
housing. The programme applies throughout South Africa
and although there have
been difficulties of implementation in some areas, the evidence suggests that
the state is actively seeking
to combat these
difficulties. |
| [55] | Legislative measures have
been taken at both the national and provincial levels. As we have seen, at the
national level the Housing
Act sets out the general principles applicable to
housing development, defines the functions of the three spheres of government
and
addresses the financing of housing development. It thus provides a
legislative framework within which the delivery of houses is
to take place
nationally. At the provincial level there is the Western Cape Housing
Development Act, 1999. This statute also sets
out the general principles
applicable to housing development; the role of the provincial government; the
role of local government;
and other matters relating to housing development.
Thus, like the Housing Act, this statute provides a legislative framework within
which housing development at provincial level will take place. All of the
measures described form part of the nationwide housing
programme. |
| [56] | This Court must decide
whether the nationwide housing programme is sufficiently flexible to respond to
those in desperate need in
our society and to cater appropriately for immediate
and short-term requirements. This must be done in the context of the scope
of
the housing problem that must be addressed. This case is concerned with the
situation in the Cape Metro and the municipality
and the circumstances that
prevailed there are therefore presented. |
| [57] | The housing shortage in the
Cape Metro is acute. About 206 000 housing units are required and up to 25 000
housing opportunities
are required in Oostenberg itself. Shack counts in the
Cape Metro in general and in the area of the municipality in particular reveal
an inordinate problem. 28 300 shacks were counted in the Cape Metro in January
1993. This number had grown to 59 854 in 1996 and
to 72 140 by 1998. Shacks in
this area increased by 111 percent during the period 1993 to 1996 and by 21
percent from then until
1998. There were 2121 shacks in the area of the
municipality in 1993, 5701 (an increase of 168 percent) in 1996 and 7546 (an
increase
of 32 percent) in 1998. These are the results of a study commissioned
by the Cape Metro. |
| [58] | The study concludes that
the municipality “is the most critical local authority in terms of
informal settlement shack growth
at this point in time”, this despite the
fact that, according to an affidavit by a representative of the municipality, 10
577
houses had been completed by 1997. The scope of the problem is perhaps most
sharply illustrated by this: about 22 000 houses are
built in the Western Cape
each year while demand grows at a rate of 20 000 family units per year. The
backlog is therefore likely
to be reduced, resources permitting and, on the
basis of the figures in this study, only by 2 000 houses a
year. |
| [59] | The housing situation is
desperate. The problem is compounded by rampant unemployment and poverty. As
was pointed out earlier in
this judgment, a quarter of the households in
Wallacedene had no income at all, and more than two-thirds earned less than
R500-00
per month during 1997. As stated above, many of the families living in
Wallacedene are living in intolerable conditions. In some
cases, their shacks
are permanently flooded during the winter rains, others are severely overcrowded
and some are perilously close
to busy roads. There is no suggestion that
Wallacedene is unusual in this respect. It is these conditions which ultimately
forced
the respondents to leave their homes
there. |
| [60] | The Cape Metro has realised
that this desperate situation requires government action that is different in
nature from that encompassed
by the housing development policy described earlier
in this judgment. It drafted a programme (the Cape Metro land programme) in
June 1999, some months after the respondents had been evicted. It
wrote: |
“From the above, it is seen that there is a complete mismatch between
demand and supply in the housing sector, resulting in
a crisis in housing
delivery.
However, the existing housing situation cannot just be accepted, as there are
many families living in crisis conditions, or alternatively,
there are
situations in the [Cape Metro] where local authorities need to undertake legal
proceedings (evictions) in order to administer
and implement housing projects.
A new housing programme needed [sic] to cater for the crisis housing conditions
in the [Cape Metro].
The proposed programme is called an ‘Accelerated
Managed Land Settlement Programme’.”
Later in the
document, the programme is briefly described as follows:
“The Accelerated Managed Land Settlement Programme (AMSLP) can therefore
be described as the rapid release of land for families
in crisis, with the
progressive provision of services.
This programme should benefit those families in situations of crisis. The
programme does not offer any benefits to queue jumpers,
as it is the
Metropolitan Local Council who determines when the progressive upgrading of
services will be taken.
The Accelerated Managed Land Settlement Programme (AMSLP) includes the
identification and purchase of land, planning, identification
of the
beneficiaries, township approval, pegging of the erven, construction of basic
services, resettlement and the transfer of land
to the
beneficiaries.”
We were informed by counsel during the
hearing that although this programme was not in force at the time these
proceedings were commenced,
it has now been adopted and is being
implemented.
| [61] | The Cape Metro land
programme was formulated by the Cape Metro specifically “to assist the
metropolitan local councils to manage
the settlement of families in
crisis.” Important features of this programme are its recognition of (i)
the absence of provision
for people living in crisis conditions; (ii) the
unacceptability of having families living in crisis conditions; (iii) the
consequent
risk of land invasions; and (iv) the gap between the supply and
demand of housing resulting in a delivery crisis. Crucially, the
programme
acknowledges that its beneficiaries are families who are to be evicted, those
who are in a crisis situation in an existing
area such as in a flood-line,
families located on strategic land and families from backyard shacks or on the
waiting list who are
in crisis situations. Its primary objective is the rapid
release of land for these families in crisis, with services to be upgraded
progressively. |
| [62] | In devising its programme
the Cape Metro said the following: |
“Local government, by virtue of the powers and functions granted to it by
national and provincial legislation and policy, needs
to initiate, facilitate
and develop housing projects. Part of this role is also the identification of
vacant land for housing.
There are currently a few programmes that are
available to finance housing projects, for example, the project-linked subsidy,
institutional
subsidy and CMIP. None of these programmes deal directly with
crisis situations in the housing field. The Accelerated Managed Land
Settlement
Programme (AMLSP) can therefore be described as the rapid release of land for
families in crisis, with the progressive
provision of
services.”
| [63] | Section 26 requires that
the legislative and other measures adopted by the state are reasonable. To
determine whether the nationwide
housing programme as applied in the Cape Metro
is reasonable within the meaning the section, one must consider whether the
absence
of a component catering for those in desperate need is reasonable in the
circumstances. It is common cause that, except for the
Cape Metro land
programme, there is no provision in the nationwide housing programme as applied
within the Cape Metro for people
in desperate
need. |
| [64] | Counsel for the appellants
supported the nationwide housing programme and resisted the notion that
provision of relief for people
in desperate need was appropriate in it. Counsel
also submitted that section 26 did not require the provision of this relief.
Indeed,
the contention was that provision for people in desperate need would
detract significantly from integrated housing development as
defined in the Act.
The housing development policy as set out in the Act is in itself laudable. It
has medium and long term objectives
that cannot be criticised. But the question
is whether a housing programme that leaves out of account the immediate
amelioration
of the circumstances of those in crisis can meet the test of
reasonableness established by the section. |
| [65] | The absence of this
component may have been acceptable if the nationwide housing programme would
result in affordable houses for most
people within a reasonably short time.
However the scale of the problem is such that this simply cannot happen. Each
individual
housing project could be expected to take years and the provision of
houses for all in the area of the municipality and in the Cape
Metro is likely
to take a long time indeed. The desperate will be consigned to their fate for
the foreseeable future unless some
temporary measures exist as an integral part
of the nationwide housing programme. Housing authorities are understandably
unable
to say when housing will become available to these desperate people. The
result is that people in desperate need are left without
any form of assistance
with no end in sight. Not only are the immediate crises not met. The
consequent pressure on existing settlements
inevitably results in land invasions
by the desperate thereby frustrating the attainment of the medium and long term
objectives of
the nationwide housing programme. That is one of the main reasons
why the Cape Metro land programme was adopted. |
| [66] | The national government
bears the overall responsibility for ensuring that the state complies with the
obligations imposed upon it
by section 26. The nationwide housing programme
falls short of obligations imposed upon national government to the extent that
it
fails to recognise that the state must provide for relief for those in
desperate need. They are not to be ignored in the interests
of an overall
programme focussed on medium and long-term objectives. It is essential that a
reasonable part of the national housing
budget be devoted to this, but the
precise allocation is for national government to decide in the first
instance. |
| [67] | This case is concerned with
the Cape Metro and the municipality. The former has realised that this need has
not been fulfilled and
has put in place its land programme in an effort to
fulfil it. This programme, on the face of it, meets the obligation which the
state has towards people in the position of the respondents in the Cape Metro.
Indeed, the amicus accepted that this programme “would cater
precisely for the needs of people such as the respondents, and, in an
appropriate
and sustainable manner.” However, as with legislative
measures, the existence of the programme is a starting point only.
What remains
is the implementation of the programme by taking all reasonable steps that are
necessary to initiate and sustain it.
And it must be implemented with due
regard to the urgency of the situations it is intended to
address. |
| [68] | Effective implementation
requires at least adequate budgetary support by national government. This, in
turn, requires recognition
of the obligation to meet immediate needs in the
nationwide housing programme. Recognition of such needs in the nationwide
housing
programme requires it to plan, budget and monitor the fulfilment of
immediate needs and the management of crises. This must ensure
that a
significant number of desperate people in need are afforded relief, though not
all of them need receive it immediately. Such
planning too will require proper
co-operation between the different spheres of
government. |
| [69] | In conclusion it has been
established in this case that as of the date of the launch of this application,
the state was not meeting
the obligation imposed upon it by section 26(2) of the
Constitution in the area of the Cape Metro. In particular, the programmes
adopted by the state fell short of the requirements of section 26(2) in that no
provision was made for relief to the categories of
people in desperate need
identified earlier. I come later to the order that should flow from this
conclusion. |
G. Section 28(1)(c) and the right to
shelter
| [70] | The
judgment of the High Court amounts to this: (a) section 28(1)(c) obliges the
state to provide rudimentary shelter to children
and their parents on demand if
parents are unable to shelter their children; (b) this obligation exists
independently of and in addition
to the obligation to take reasonable
legislative and other measures in terms of section 26; and (c) the state is
bound to provide
this rudimentary shelter irrespective of the availability of
resources. On this reasoning, parents with their children have two
distinct
rights: the right of access to adequate housing in terms of section 26 as well
as a right to claim shelter on demand in
terms of section
28(1)(c). |
| [71] | This reasoning produces an
anomalous result. People who have children have a direct and enforceable right
to housing under section
28(1)(c), while others who have none or whose children
are adult are not entitled to housing under that section, no matter how old,
disabled or otherwise deserving they may be. The carefully constructed
constitutional scheme for progressive realisation of socio-economic
rights would
make little sense if it could be trumped in every case by the rights of children
to get shelter from the state on demand.
Moreover, there is an obvious danger.
Children could become stepping stones to housing for their parents instead of
being valued
for who they are. |
| [72] | The respondents and the
amici in supporting the judgment of the High Court draw a distinction
between housing on the one hand and shelter on the other. They contend
that
shelter is an attenuated form of housing and that the state is obliged to
provide shelter to all children on demand. The respondents
and the amici
emphasise that the right of children to shelter is unqualified and that, the
“reasonable measures” qualification embodied
in sections 25(5) 26,
27 and 29 are markedly absent in relation to section 28(1)(c). The appellants
disagree and criticise the respondents’
definition of shelter on the basis
that it conceives shelter in terms that limit it to a material object. They
contend that shelter
is more than just that, but define it as an institution
constructed by the state in which children are housed away from their
parents. |
| [73] | I cannot accept that the
Constitution draws any real distinction between housing on the one hand and
shelter on the other, and that
shelter is a rudimentary form of housing.
Housing and shelter are related concepts and one of the aims of housing is to
provide
physical shelter. But shelter is not a commodity separate from housing.
There is no doubt that all shelter represents protection
from the elements and
possibly even from danger. There are a range of ways in which shelter may be
constituted: shelter may be ineffective
or rudimentary at the one extreme and
very effective and even ideal at the other. The concept of shelter in section
28(1)(c) is
not qualified by any requirement that it should be
“basic” shelter. It follows that the Constitution does not limit
the concept of shelter to basic shelter alone. The concept of shelter in
section 28 (1)(c) embraces shelter in all its manifestations.
However, it does
not follow that the Constitution obliges the state to provide shelter at the
most effective or the most rudimentary
level to children in the company of their
parents. |
| [74] | The obligation created by
section 28(1)(c) can properly be ascertained only in the context of the rights
and, in particular, the obligations
created by sections 25(5), 26 and 27 of the
Constitution.[48] Each of these
sections expressly obliges the state to take reasonable legislative and other
measures, within its available resources,
to achieve the rights with which they
are concerned.[49] Section 28(1)(c)
creates the right of children to basic nutrition, shelter, basic health care
services and social services. There
is an evident overlap between the rights
created by sections 26 and 27 and those conferred on children by section 28.
Apart from
this overlap, the section 26 and 27 rights are conferred on everyone
including children while section 28, on its face, accords rights
to children
alone. This overlap is not consistent with the notion that section 28(1)(c)
creates separate and independent rights
for children and their
parents. |
| [75] | The extent of the state
obligation must also be interpreted in the light of the international
obligations binding upon South Africa.
The United Nations Convention on the
Rights of the Child, ratified by South Africa in 1995, seeks to impose
obligations upon state
parties to ensure that the rights of children in their
countries are properly protected. Section 28 is one of the mechanisms to
meet
these obligations. It requires the state to take steps to ensure that
children’s rights are observed. In the first instance,
the state does so
by ensuring that there are legal obligations to compel parents to fulfil their
responsibilities in relation to
their children. Hence, legislation and the
common law impose obligations upon parents to care for their children. The
state reinforces
the observance of these obligations by the use of civil and
criminal law as well as social welfare
programmes. |
| [76] | Section 28(1)(c) must be
read in this context. Subsections 28(1)(b) and (c)
provide: |
“Every child has the right —
(b) to family care or parental care, or to appropriate alternative care when
removed from the family environment;
(c) to basic nutrition, shelter, basic health care services and social
services”.
They must be read together.
They ensure that children are properly cared for by their parents or families,
and that they receive
appropriate alternative care in the absence of parental or
family care. The section encapsulates the conception of the scope of
care that
children should receive in our society. Subsection (1)(b) defines those
responsible for giving care while subsection (1)(c)
lists various aspects of the
care entitlement.
| [77] | It follows from subsection
1(b) that the Constitution contemplates that a child has the right to parental
or family care in the first
place, and the right to alternative appropriate care
only where that is lacking. Through legislation and the common law, the
obligation
to provide shelter in subsection (1)(c) is imposed primarily on the
parents or family and only alternatively on the state. The state
thus incurs
the obligation to provide shelter to those children, for example, who are
removed from their families. It follows that
section 28(1)(c) does not create
any primary state obligation to provide shelter on demand to parents and their
children if children
are being cared for by their parents or
families. |
| [78] | This does not mean,
however, that the state incurs no obligation in relation to children who are
being cared for by their parents
or families. In the first place, the state
must provide the legal and administrative infrastructure necessary to ensure
that children
are accorded the protection contemplated by section 28. This
obligation would normally be fulfilled by passing laws and creating
enforcement
mechanisms for the maintenance of children, their protection from maltreatment,
abuse, neglect or degradation,[50]
and the prevention of other forms of abuse of children mentioned in section 28.
In addition, the state is required to fulfil its
obligations to provide families
with access to land in terms of section 25, access to adequate housing in terms
of section 26 as
well as access to health care, food, water and social security
in terms of section 27. It follows from this judgment that sections
25 and 27
require the state to provide access on a programmatic and coordinated basis,
subject to available resources. One of the
ways in which the state would meet
its section 27 obligations would be through a social welfare programme providing
maintenance grants
and other material assistance to families in need in defined
circumstances. |
| [79] | It was not contended that
the children who are respondents in this case should be provided with shelter
apart from their parents.
Those of the respondents in this case who are
children are being cared for by their parents; they are not in the care of the
state,
in any alternative care, or abandoned. In the circumstances of this
case, therefore, there was no obligation upon the state to provide
shelter to
those of the respondents who were children and, through them, their parents in
terms of section 28(1)(c). The High Court
therefore erred in making the order
it did on the basis of this section. |
H. Evaluation of the conduct of the appellants towards the
respondents
| [80] | The
final section of this judgment is concerned with whether the respondents are
entitled to some relief in the form of temporary
housing because of their
special circumstances and because of the appellants’ conduct towards them.
This matter was raised
in argument, and although not fully aired on the papers,
it is appropriate to consider it. At first blush, the respondents’
position was so acute and untenable when the High Court heard the case that
simple humanity called for some form of immediate and
urgent relief. They had
left Wallacedene because of their intolerable circumstances, had been evicted in
a way that left a great
deal to be desired and, as a result, lived in desperate
sub-human conditions on the Wallacedene soccer field or in the Wallacedene
community hall. But we must also remember that the respondents are not alone in
their desperation; hundreds of thousands (possibly
millions) of South Africans
live in appalling conditions throughout our
country. |
| [81] | Although the conditions in
which the respondents lived in Wallacedene were admittedly intolerable and
although it is difficult to
level any criticism against them for leaving the
Wallacedene shack settlement, it is a painful reality that their circumstances
were
no worse than those of thousands of other people, including young children,
who remained at Wallacedene. It cannot be said, on the
evidence before us, that
the respondents moved out of the Wallacedene settlement and occupied the land
earmarked for low-cost housing
development as a deliberate strategy to gain
preference in the allocation of housing resources over thousands of other people
who
remained in intolerable conditions and who were also in urgent need of
housing relief. It must be borne in mind however, that the
effect of any order
that constitutes a special dispensation for the respondents on account of their
extraordinary circumstances is
to accord that
preference. |
| [82] | All levels of government
must ensure that the housing programme is reasonably and appropriately
implemented in the light of all the
provisions in the Constitution. All
implementation mechanisms, and all state action in relation to housing falls to
be assessed
against the requirements of section 26 of the Constitution. Every
step at every level of government must be consistent with the
constitutional
obligation to take reasonable measures to provide adequate
housing. |
| [83] | But section 26 is not the
only provision relevant to a decision as to whether state action at any
particular level of government is
reasonable and consistent with the
Constitution. The proposition that rights are interrelated and are all equally
important is not
merely a theoretical postulate. The concept has immense human
and practical significance in a society founded on human dignity,
equality and
freedom. It is fundamental to an evaluation of the reasonableness of state
action that account be taken of the inherent
dignity of human beings. The
Constitution will be worth infinitely less than its paper if the reasonableness
of state action concerned
with housing is determined without regard to the
fundamental constitutional value of human dignity. Section 26, read in the
context
of the Bill of Rights as a whole, must mean that the respondents have a
right to reasonable action by the state in all circumstances
and with particular
regard to human dignity. In short, I emphasise that human beings are required
to be treated as human beings.
This is the backdrop against which the conduct
of the respondents towards the appellants must be
seen. |
| [84] | The national legislature
recognises this. In the course of stating the general principles binding on all
levels of government, the
Housing Act provides that in the administration of any
matter relating to housing development, all levels of government must respect,
protect, promote and fulfil the rights in Chapter 2 of the
Constitution.[51] In addition,
section 2(1)(b) obliges all levels of government to consult meaningfully with
individuals and communities affected
by housing development. Moreover, section
9(1)(e) obliges municipalities to promote the resolution of conflict arising in
the housing
development process. |
| [85] | Consideration is now given
to whether the state action (or inaction) in relation to the respondents met the
required constitutional
standard. It is a central feature of this judgment that
the housing shortage in the area of the Cape Metro in general and Oostenberg
in
particular had reached crisis proportions. Wallacedene was obviously bursting
and it was probable that people in desperation
were going to find it difficult
to resist the temptation to move out of the shack settlement onto unoccupied
land in an effort to
improve their position. This is what the respondents
apparently did. |
| [86] | Whether the conduct of Mrs
Grootboom and the other respondents constituted a land invasion was disputed on
the papers. There was
no suggestion however that the respondents’
circumstances before their move to New Rust was anything but desperate. There is
nothing in the papers to indicate any plan by the municipality to deal with the
occupation of vacant land if it occurred. If there
had been such a plan the
appellants might well have acted differently. |
| [87] | The respondents began to
move onto the New Rust Land during September 1998 and the number of people on
this land continued to grow
relentlessly. I would have expected officials of
the municipality responsible for housing to engage with these people as soon as
they became aware of the occupation. I would also have thought that some effort
would have been made by the municipality to resolve
the difficulty on a
case-by-case basis after an investigation of their circumstances before the
matter got out of hand. The municipality
did nothing and the settlement grew by
leaps and bounds. |
| [88] | There is, however, no
dispute that the municipality funded the eviction of the respondents. The
magistrate who ordered the ejectment
of the respondents directed a process of
mediation in which the municipality was to be involved to identify some
alternative land
for the occupation for the New Rust residents. Although the
reason for this is unclear from the papers, it is evident that no effective
mediation took place. The state had an obligation to ensure, at the very least,
that the eviction was humanely executed. However,
the eviction was reminiscent
of the past and inconsistent with the values of the Constitution. The
respondents were evicted a day
early and to make matters worse, their
possessions and building materials were not merely removed, but destroyed and
burnt. I have
already said that the provisions of section 26(1) of the
Constitution burdens the state with at least a negative obligation in relation
to housing. The manner in which the eviction was carried out resulted in a
breach of this obligation. |
| [89] | In these circumstances, the
municipality’s response to the letter of the respondents’ attorney
left much to be desired.
It will be recalled that the letter stated that
discussions were being held with officials from the Provincial Administration in
order to find an amicable solution to the problem. There is no evidence that
the respondents were ever informed of the outcome of
these discussions. The
application was then opposed and argued on the basis that none of the appellants
either individually or jointly
could do anything at all to alleviate the
problem. The Cape Metro, the Western Cape government and the national
government were
joined in the proceedings and would all have been aware of the
respondents’ plight. |
| [90] | In all these circumstances,
the state may well have been in breach of its constitutional obligations. It
may also be that the conduct
of the municipality was inconsistent with the
provisions of the Prevention of Illegal Eviction from and Unlawful Occupation of
Land
Act. In addition, the municipality may have failed to meet the obligations
imposed by the provisions of sections 2(1)(b), 2(1)(h)(i)
and 9(1)(e) of the
Housing Act. However no argument was addressed to this Court on these matters
and we are not in a position to
consider them
further. |
| [91] | At the hearing in this
Court, counsel for the national and Western Cape government, tendered a
statement indicating that the respondents
had, on that very day, been offered
some alternative accommodation, not in fulfilment of any accepted constitutional
obligation,
but in the interests of humanity and pragmatism. Counsel for the
respondents accepted the offer on their behalf. We were subsequently
furnished
with a copy of the arrangement which read as
follows: |
“1. The Department of Planning, Local Government and Housing (Western Cape
Province) undertakes in conjunction with the Oostenberg
Municipality to provide
temporary accommodation to the respondents on the Wallacedene Sportsfield until
they can be housed in terms
of the housing programmes available to the local
authority, and in particular the Accelerated Land Managed Settlement
Programme.
2. The ‘temporary accommodation’ comprises: a marked off site;
provision for temporary structures intended to be waterproof;
basic sanitation,
water and refuse services.
3. The implementation of such measures is to be discussed with the Wallacedene
community and the respondents.”
Although, as
indicated earlier, the special position of the respondents was aired during
argument, the relief claimed by them was
always grounded only in sections 26 and
28 of the Constitution and not on the breach of any statute (such as the
Prevention of Illegal
Evictions Act, or the Housing Act), the common law or any
other provision of the Constitution. Accordingly, it is inappropriate
for this
Court to order any relief on grounds other than sections 26 or 28 of the
Constitution.
| [92] | This judgment must not be
understood as approving any practice of land invasion for the purpose of
coercing a state structure into
providing housing on a preferential basis to
those who participate in any exercise of this kind. Land invasion is inimical
to the
systematic provision of adequate housing on a planned basis. It may well
be that the decision of a state structure, faced with the
difficulty of repeated
land invasions, not to provide housing in response to those invasions, would be
reasonable. Reasonableness
must be determined on the facts of each
case. |
I. Summary and
conclusion
| [93] | This
case shows the desperation of hundreds of thousands of people living in
deplorable conditions throughout the country. The Constitution
obliges the
state to act positively to ameliorate these conditions. The obligation is to
provide access to housing, health-care,
sufficient food and water, and social
security to those unable to support themselves and their dependants. The state
must also foster
conditions to enable citizens to gain access to land on an
equitable basis. Those in need have a corresponding right to demand that
this
be done. |
| [94] | I am conscious that it is
an extremely difficult task for the state to meet these obligations in the
conditions that prevail in our
country. This is recognised by the Constitution
which expressly provides that the state is not obliged to go beyond available
resources
or to realise these rights immediately. I stress however, that
despite all these qualifications, these are rights, and the Constitution
obliges
the state to give effect to them. This is an obligation that courts can, and in
appropriate circumstances, must enforce. |
| [95] | Neither section 26 nor
section 28 entitles the respondents to claim shelter or housing immediately upon
demand. The High Court order
ought therefore not to have been made. However,
section 26 does oblige the state to devise and implement a coherent,
co-ordinated
programme designed to meet its section 26 obligations. The
programme that has been adopted and was in force in the Cape Metro at
the time
that this application was brought, fell short of the obligations imposed upon
the state by section 26(2) in that it failed
to provide for any form of relief
to those desperately in need of access to
housing. |
| [96] | In the light of the
conclusions I have reached, it is necessary and appropriate to make a
declaratory order. The order requires the
state to act to meet the obligation
imposed upon it by section 26(2) of the Constitution. This includes the
obligation to devise,
fund, implement and supervise measures to provide relief
to those in desperate need. |
| [97] | The Human Rights Commission
is an amicus in this case. Section 184 (1) (c) of the Constitution
places a duty on the Commission to “monitor and assess the observance
of
human rights in the Republic.” Subsections (2) (a) and (b) give the
Commission the power: |
“(a) to investigate and to report on the observance of human rights;
(b) to take steps to secure appropriate redress where human right have been
violated.”
Counsel for the Commission indicated during
argument that the Commission had the duty and was prepared to monitor and report
on the
compliance by the state of its section 26 obligations. In the
circumstances, the Commission will monitor and, if necessary, report
in terms of
these powers on the efforts made by the state to comply with its section 26
obligations in accordance with this judgment.
| [98] | There will be no order as
to costs. |
J. The
Order
| [99] | The
following order is made: |
1. The appeal is allowed in part.
2. The order of the Cape of Good Hope High Court is set aside and the following
is substituted for it:
It is declared
that:
(a) Section 26(2) of the Constitution requires the state to devise and implement
within its available resources a comprehensive and
coordinated programme
progressively to realise the right of access to adequate housing.
(b) The programme must include reasonable measures such as, but not necessarily
limited to, those contemplated in the Accelerated
Managed Land Settlement
Programme, to provide relief for people who have no access to land, no roof over
their heads, and who are
living in intolerable conditions or crisis
situations.
(c) As at the date of the launch of this application, the state housing
programme in the area of the Cape Metropolitan Council fell
short of compliance
with the requirements in paragraph (b), in that it failed to make reasonable
provision within its available resources
for people in the Cape Metropolitan
area with no access to land, no roof over their heads, and who were living in
intolerable conditions
or crisis
situations.
3. There is no order as to
costs.
Chaskalson P, Langa DP, Goldstone
J, Kriegler J, Madala J, Mokgoro J, Ngcobo J, O’Regan J, Sachs J and
Cameron AJ concur in
the judgment of Yacoob J.
For the first and second appellants: JJ Gauntlett SC, A Schippers and N Bawa
instructed by the State Attorney, Cape Town.
For the third and fourth appellants: JC Heunis SC and JW Olivier instructed
by De Klerk & Van Gend for the third appellant and
Marais Muller for the
fourth appellant.
For the respondents: P Hodes SC, I Jamie and A Musikanth instructed by
Apollos Smith & Associates.
Attorney for the amici curiae: GM Budlender instructed by the Legal
Resources Centre.
[1] See section 1(a) of the
Constitution.
[2] The respondents are 510 children
and 390 adults. Mrs Irene Grootboom, the first respondent, brought the
application before the High
Court on behalf of all the respondents.
[3] The judgment of Davis J in which
Comrie J concurred is reported as Grootboom v Oostenberg Municipality and
Others 2000 (3) BCLR 277 (C).
[4] Id at 293A.
[5] The first appellant is the
Government of the Republic of South Africa (the national government); the second
is the Premier of the
Province of the Western Cape representing the Western Cape
Provincial Government (the Western Cape government); the third appellant,
the
Cape Metropolitan Council (the Cape Metro) is the supervisory tier of local
government in the area; and the fourth appellant
is the Oostenberg Municipality
(the municipality) which is a further tier of local government. All the
appellants are organs of
government.
[6] The background to this policy was
set out fully in the majority judgment of this court in Ex Parte Western Cape
Provincial Government and Others: In Re DVB Behuising (Pty) Ltd v North West
Provincial Government and Another 2000 (4) BCLR 347 (CC) paras 41-47.
[7] In 1985 when the coloured labour
preference policy was finally abolished, it became possible for African people
to acquire 99-year
leasehold tenure in the Western Cape (this form of tenure had
been established in the rest of the country in 1978). The following
year the
government abandoned its policy of influx control in its entirety.
[8] The figures appear from a needs
assessment of the Wallacedene community compiled in December 1997 on behalf of
the municipality.
[9] Section 4(6)
provides:
“If an unlawful occupier has occupied the land in question for less than
six months at the time when the proceedings are initiated,
a court may grant an
order for eviction if it is of the opinion that it is just and equitable to do
so, after considering all the
relevant circumstances, including the rights and
needs of the elderly, children, disabled persons and households headed by
women.”
Section 4(7) provides:
“If an unlawful occupier has occupied the land in question for more than
six months at the time when the proceedings are initiated,
a court may grant an
order for eviction if it is of the opinion that it is just and equitable to do
so, after considering all the
relevant circumstances, including, except where
the land is sold in a sale of execution pursuant to a mortgage, whether land has
been made available or can reasonably be made available by a municipality or
other organ of state or another land owner for the relocation
of the unlawful
occupier, and including the rights and needs of the elderly, children, disabled
persons and households headed by
women.”
[10] The municipality responded on
27 May 1999 stating that it had supplied food and shelter at the Wallacedene
Community Hall to the
respondents and that it was approaching Western Cape
government for assistance to resolve the problem. The respondents, however,
considered that the Community Hall provided inadequate shelter as it could only
house 80 people.
[11] Above n 3 at 280F-G.
[12] Above n 3 at 285A-B.
[13] The International Covenant on
Economic, Social and Cultural Rights, and the general comments issued by the
United Nations Committee
on Social and Economic Rights.
[14] Above n 3 at 293H-294C.
[15] Section 25(5)
provides:
“The state must take reasonable legislative and other measures, within its
available resources, to foster conditions which
enable citizens to gain access
to land on an equitable basis.”
[16] Section 27
provides:
“(1) Everyone has the right to have access
to—
(a) health care services,
including reproductive health care;
(b) sufficient food and water; and
(c) social security, including, if they are unable to support themselves and
their dependants, appropriate social assistance.
(2) The state must take reasonable legislative and other measures, within its
available resources, to achieve the progressive realisation
of each of these
rights.
(3) No one may be refused emergency medical
treatment.”
[17] Section 28
provides:
“(1) Every child has the
right—
(a) to a name and a
nationality from birth;
(b) to family care or parental care, or to appropriate alternative care when
removed from the family environment;
(c) to basic nutrition, shelter, basic health care services and social
services;
(d) to be protected from maltreatment, neglect, abuse or degradation;
(e) to be protected from exploitative labour practices;
(f) not to be required or permitted to perform work or provide services
that—
(i) are inappropriate for a person of that child’s age; or
(ii) place at risk the child’s well-being, education, physical or
mental health or spiritual, moral or social development;
(g) not to be detained except as a matter of last resort, in which case, in
addition to the rights the child enjoys under sections
12 and 35, the child may
be detained only for the shortest appropriate period of time, and has the right
to be—
(i) kept separately from detained person over the age of 18 years; and
(ii) treated in a manner, and kept in conditions, that take account of the
child’s age;
(h) to have a legal practitioner assigned to the child by the state, and at
state expense, in civil proceedings affecting the child,
if substantial
injustice would otherwise result; and
(i) not to be used directly in armed conflict, and to be protected in times
of armed conflict.
(2) A child’s best interests are of paramount importance in every matter
concerning the child.
(3) In this section “child” means a person under the age of 18
years.”
[18] Section 29(1)
provides:
“(1) Everyone has the
right—
(a) to a basic education,
including adult basic education, and
(b) to further education, which the state, through reasonable measures, must
make progressively available and accessible.
(2) Everyone has the right to receive education in the official language or
languages of their choice in public education institutions
where that education
is reasonably practicable. In order to ensure the effective access to, and
implementation of, this right, the
state must consider all reasonable
educational alternatives, including single medium institutions, taking into
account—
(a) equity;
(b) practicability; and
(c) the need to redress the results of past racially discriminatory laws and
practices.
(3) Everyone has the right to establish and maintain, at their own expense,
independent educational institutions
that—
(a) do not discriminate on
the basis of race;
(b) are registered with the state; and
(c) maintain standards that are of no inferior to standards at comparable
public educational institutions.”
[19] Haysom
“Constitutionalism, Majoritarian Democracy and Socio-Economic
Rights” (1992) 8 SA Journal of Human Rights at 451; Mureinik
“Beyond a Charter of Luxuries: Economic Rights in the Constitution”
(1992) 8 SA Journal of Human Rights at 464; Davis “The Case Against
the Inclusion of Socio-Economic Demands in a Bill of Rights Except as Directive
Principles”
(1992) 8 SA Journal of Human Rights at 475; Liebenberg
“Social and Economic Rights: A Critical Challenge” in Liebenberg
(ed) The Constitution of South Africa from a Gender Perspective (The
Community Law Centre at the University of the Western Cape in association with
David Philip Publishers, Cape Town 1995) at 79;
Corder et al A Charter
For Social Justice: A contribution to the South African Bill of Rights debate
(University of Cape Town, Cape Town 1992) at 18; Scott and Macklem
“Constitutional Ropes of Sand or Justiciable Guarantees?
Social Rights in
a New South African Constitution” (1992) 141 University of Pennsylvania
Law Review at 1; De Villiers “Social and Economic Rights” in van
Wyk, Dugard, De Villiers and Davis (eds) Rights and Constitutionalism: The
New South African Legal Order (Juta, Cape Town, 1994) at 599; South African
Law Commission Final Report on Group and Human Rights (Project 58,
October 1994) at 179.
[20] Ex Parte Chairperson of the
Constitutional Assembly: In Re Certification of the Constitution of the Republic
of South Africa, 1996
1996 (4) SA 744; 1996 (10) BCLR 1253 (CC) at para
78.
[21] Section 38 of the Constitution
empowers the Court to grant appropriate relief for the infringement of any right
entrenched in the
Bill of Rights.
[22] See, for example, Brink v
Kitshoff NO 1996 (4) SA 197 (CC); 1996 (6) BCLR 752 (CC); Prinsloo v Van
der Linde and Another 1997 (3) SA 1012 (CC); 1997 (6) BCLR 759 (CC). For an
application of this type of contextual interpretation, see also S v
Makwanyane and Another 1995 (3) SA 391 (CC), 1995 (6) BCLR 665 (CC);
Shabalala and Others v Attorney-General, Transvaal and Another 1996 (1) SA 725 (CC); 1995 (12) BCLR 1593 (CC).
[23] Soobramoney v Minister of
Health, KwaZulu-Natal 1998 (1) SA 765 (CC); 1997 (12) BCLR 1696 (CC) at para
8.
[24] See also the comments of
Mahomed DP in Azanian Peoples Organisation (AZAPO) and Others v President of
the Republic of South Africa and Others 1996 (4) SA 671 (CC); 1996 (8) BCLR 1015 (CC) at para 43, albeit in a different context.
[25] Section 39 of the Constitution
provides:
“(1) When interpreting the Bill of Rights, a court, tribunal or forum
-
(a) must promote the values that
underlie and open and democratic society based on human dignity, equality and
freedom;
(b) must consider international law; and
(c) may consider foreign law.
(2) When interpreting any legislation, and when developing the common law or
customary law, every court, tribunal or forum must promote
the spirit, purport
and objects of the Bill of Rights.
(3) The Bill of Rights does not deny the existence of any other rights or
freedoms that are recognised or conferred by common law,
customary law or
legislation, to the extent that they are consistent with the
Bill.”
[26] S v Makwanyane and Another
above n 22 at para 35.
[27] Section 35(1) of the interim
Constitution provides:
“In interpreting the provisions of this Chapter a court of law shall
promote the values which underlie an open and democratic
society based on
freedom and equality and shall, where applicable, have regard to public
international law applicable to the protection
of the rights entrenched in this
Chapter, and may have regard to comparable foreign case
law.”
[28] See sections 231-235 of the
Constitution which regulate the application of international law in detail.
[29] The Covenant was signed by
South Africa on 3 October 1994 but has as yet not been ratified.
[30] The committee consists of
eighteen independent experts. Its purpose is to assist the United Nations
Economic and Social Council
to carry out its responsibilities relating to the
implementation of the Covenant. See Craven The International Covenant on
Economic, Social and Cultural Rights (Clarendon, Oxford 1995) at 1 and
42.
[31] Id at 91.
[32] See, in this regard, the
Certification judgment, above para 20.
[33] See Chapter 3 of the
Constitution.
[34] See sections 155(1)(b) and (c)
of the Constitution as well as section 7(1)(b), read with sections 10B and 10C,
of the Local Government
Transition Act, 209 of 1993.
[35] See schedule 4 of the
Constitution.
[36] See section 152(1)(b), read
with sections 152(2) and 153(a).
[37] See section 214 of the
Constitution, and, in particular, sections 214(2)(d) and (f).
[38] See sections 100, 139 and
155(7) of the Constitution.
[39] The text of Article 2.1 appears
at para 27 above.
[40] Para 9 of general comment 3,
1990.
[41] See n 23 above at para 11.
[42] Examples of important
legislation in this field include the Housing Act, 107 of 1997; the Housing
Consumers Protection Measures Act,
95 of 1998; the Prevention of Illegal
Eviction from and Unlawful Occupation of Land Act, 19 of 1998; the Development
Facilitation
Act, 67 of 1995; and the Western Cape Housing Development Act, 6 of
1999.
[43] Section 3
provides:
“(1) The national government acting through the Minister must, after
consultation with every MEC and the national organisation
representing
municipalities as contemplated in section 163 (a) of the Constitution, establish
and facilitate a sustainable national
housing development process.
(2) For the purposes of subsection (1) the Minister
must—
(a) determine national
policy, including national norms and standards, in respect of housing
development;
(b) set broad national housing delivery goals and facilitate the setting of
provincial and, where appropriate, local government housing
delivery goals in
support thereof;
(c) monitor the performance of the national government and, in co-operation
with every MEC, the performance of provincial and local
governments against
housing delivery goals and budgetary goals;
(d) assist provinces to develop the administrative capacity required for the
effective exercise of their powers and performance of
their duties in respect of
housing development;
(e) support and strengthen the capacity of municipalities to manage their own
affairs, to exercise their powers and perform their
duties in respect of housing
development;
(f) promote consultation on matters regarding housing development between the
national government and representatives of—
(i) civil society;
(ii) the sectors and subsectors supplying or financing housing goods or
services;
(iii) provincial and local governments; and
(iv) any other stakeholder in housing development;
(g) promote effective communication in respect of housing development.
(3) For the purposes of subsection (2) (a) 'national norms and standards'
includes norms and standards in respect of permanent residential
structures, but
are not limited thereto.
(4) For the purposes of performing the duties imposed by subsections (1) and (2)
the Minister may—
(a) establish a
national institutional and funding framework for housing development;
(b) negotiate for the national apportionment of the state budget for housing
development;
(c) prepare and maintain a multi-year national plan in respect of housing
development;
(d) allocate funds for national housing programmes to provincial governments,
including funds for national housing programmes administered
by municipalities
in terms of section 10;
(e) allocate funds for national facilitative programmes for housing
development;
(f) obtain funds for land acquisition, infrastructure development, housing
provision and end-user finance;
(g) institute and finance national housing programmes;
(h) establish and finance national institutions for the purposes of housing
development, and supervise the execution of their mandate;
(i) evaluate the performance of the housing sector against set goals and
equitableness and effectiveness requirements; and
(j) take any steps reasonably necessary to—
(i) create an environment conducive to enabling provincial and local
governments, the private sector, communities and individuals
to achieve their
respective goals in respect of housing development; and
(ii) promote the effective functioning of the housing market.
. . .”
[44] Section 7
provides:
“(1) Every provincial government must, after consultation with the
provincial organisations representing municipalities as
contemplated in section
163 (a) of the Constitution, do everything in its power to promote and
facilitate the provision of adequate
housing in its province within the
framework of national housing policy.
(2) For the purposes of subsection (1) every provincial government
must—
(a) determine provincial
policy in respect of housing development;
(b) promote the adoption of provincial legislation to ensure effective
housing delivery;
(c) take all reasonable and necessary steps to support and strengthen the
capacity of municipalities to effectively exercise their
powers and perform
their duties in respect of housing development;
(d) co-ordinate housing development in the province;
(e) take all reasonable and necessary steps to support municipalities in the
exercise of their powers and the performance of their
duties in respect of
housing development;
(f) when a municipality cannot or does not perform a duty imposed by this
Act, intervene by taking any appropriate steps in accordance
with section 139 of
the Constitution to ensure the performance of such duty; and
(g) prepare and maintain a multi-year plan in respect of the execution in the
province of every national housing programme and every
provincial housing
programme, which is consistent with national housing policy and section 3 (2)
(b), in accordance with the guidelines
that the Minister approves for the
financing of such a plan with money from the Fund.
. . .”
[45] Section 9
provides:
“(1) Every municipality must, as part of the municipality's process of
integrated development planning, take all reasonable
and necessary steps within
the framework of national and provincial housing legislation and policy
to—
(a) ensure that—
(i) the inhabitants of its area of jurisdiction have access to adequate
housing on a progressive basis;
(ii) conditions not conducive to the health and safety of the inhabitants of
its area of jurisdiction are prevented or removed;
(iii) services in respect of water, sanitation, electricity, roads,
stormwater drainage and transport are provided in a manner which
is economically
efficient;
(b) set housing delivery goals in respect of its area of jurisdiction;
(c)
