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
YACOOB J
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.
1
See section 1(a) of the Constitution.
2
YACOOB J
[4] Mrs Irene Grootboom and the other respondents2
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
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).
3
YACOOB J
transported) would constitute the bare minimum."4
The appellants who represent all spheres of
government responsible for housing5
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.
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.
4
YACOOB J
[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
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
5
YACOOB J
providing for minimal shelter, but little else.
in its entirety.
6
YACOOB J
[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."
8
The figures appear from a needs assessment of the Wallacedene community compiled in December 1997 on
behalf of the municipality.
7
YACOOB J
[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
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:
8
"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
YACOOB J
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 municipality10
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.
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.
9
YACOOB J
[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
11
Above n 3 at 280F-G.
10
YACOOB J
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
12
Above n 3 at 285A-B.
11
YACOOB J
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;
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.
12
YACOOB J
(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
14
Above n 3 at 293H-294C.
13
YACOOB J
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."
14
Section 28(1)(c) provides:
YACOOB J
"(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 child17
and the right to education.18
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;
15
(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--
YACOOB J
(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."
16
YACOOB J
[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
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.
17
YACOOB J
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
Section 38 of the Constitution empowers the Court to grant appropriate relief for the infringement of any
right entrenched in the Bill of Rights.
18
YACOOB J
[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
19
YACOOB J
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
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.
20
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,
YACOOB J
ii) The relevant international law and its impact
albeit in a different context.
21
YACOOB J
[26] During argument, considerable weight was attached to the value of international law in
interpreting section 26 of our Constitution. Section 39 of the Constitution25
obliges a court to
consider international law as a tool to interpretation of the Bill of Rights. In Makwanyane26
Chaskalson P, in the context of section 35(1) of the interim Constitution,27
said:
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."
22
YACOOB J
". . . 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."
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.
23
YACOOB J
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
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.
24
YACOOB J
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
25
YACOOB J
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
31
Id at 91.
26
YACOOB J
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
27
YACOOB J
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
32
See, in this regard, the Certification judgment, above para 20.
28
YACOOB J
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
29
YACOOB J
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
30
YACOOB J
[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.
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).
31
YACOOB J
[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
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.
32
YACOOB J
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
33
YACOOB J
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
34
YACOOB J
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:
39
The text of Article 2.1 appears at para 27 above.
35
YACOOB J
"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'tre, 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
40
Para 9 of general comment 3, 1990.
36
YACOOB J
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
41
See n 23 above at para 11.
37
YACOOB J
[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.
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.
38
YACOOB J
[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--
39
(i) education and consumer protection in respect of housing development;
YACOOB J
(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
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;
40
(b) set broad national housing delivery goals and facilitate the setting of
YACOOB J
7 of the Act44
and the functions of municipalities are set out in section 9 of the Act.45
The
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.
. . ."
41
44
Section 7 provides:
YACOOB J
"(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) identify and designate land for housing development;
(d) create and maintain a public environment conducive to housing
development which is financially and socially viable;
(e) promote the resolution of conflicts arising in the housing development
process;
(f) initiate plan, co-ordinate, facilitate, promote and enable appropriate
housing development in its area of jurisdiction;
(g) provide bulk engineering services, and revenue generating services in
so far as such services are not provided by specialist utility suppliers;
and
(h) plan and manage land use and development.
42
(2) (a) Any municipality may participate in a national housing programme in
YACOOB J
accordance with the rules applicable to such programme by-
(i) promoting a housing development project by a developer;
(ii) subject to paragraph (b), acting as developer in respect of the
planning and execution of a housing development project on
the basis of full pricing for cost and risk;
(iii) entering into a joint venture contract with a developer in
respect of a housing development project;
(iv) establishing a separate business entity to execute a housing
development project;
43
YACOOB J
(v) administering any national housing programme in respect of
its area of jurisdiction in accordance with section 10;
(vi) facilitating and supporting the participation of other role
players in the housing development process.
(b) If a municipality has been accredited under section 10 (2) to
administer national housing programmes in terms of which a housing
development project is being planned and executed, such municipality
may not act as developer, unless such project has been approved by
the relevant provincial housing development board.
(3) (a) A municipality may by notice in the Provincial Gazette expropriate
any land required by it for the purposes of housing development in
terms of any national housing programme, if--
(i) it is unable to purchase the land on reasonable terms through
negotiation with the owner thereof;
(ii) it has obtained the permission of the MEC to expropriate
such land before the notice of expropriation is published in
the Provincial Gazette; and
(iii) such notice of expropriation is published within six months
44
YACOOB J
responsibilities of local government in the Cape Metro, and in particular the relationship between
of the date on which the permission of the MEC was
granted.
(b) Sections 1, 6 to 15 and 18 to 23 of the Expropriation Act, 1975 (Act
No 63 of 1975), apply, with the changes required by the context, in
respect of the expropriation of land by a municipality in terms of
paragraph (a), and any reference in any of those sections--
(i) to the "Minister" and the "State" must be construed as a
reference to the chief executive officer of the relevant
municipality and the relevant municipality, respectively;
(ii) to "section 2" must be construed as a reference to this
subsection; and
(iii) to "this Act" must be construed as a reference to this Act."
45
YACOOB J
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
46
The agreement is entitled "Agreement in respect of the allocation of powers, duties and functions entered
into between Cape Metropolitan Council and The Metropolitan Local Councils of Cape Town, Eastern,
Heidelberg, Northern, Southern, Tygerberg." This agreement was entered into on 30 September 1996 in
accordance with the provisions of the Cape Metropolitan Further Enactment, the Cape Metropolitan
Negotiating Forum Agreement and the Local Government Transition Act.
46
YACOOB J
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
47
Some 362 160 houses were built or under construction between March 1994 and September 1997, while an
overall total of some 637 190 subsidies had been allocated for projects in various stages of planning or
development by October 1997.
47
YACOOB J
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
48
YACOOB J
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.
49
YACOOB J
[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."
50
YACOOB J
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."
51
YACOOB J
[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
52
YACOOB J
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
53
YACOOB J
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
54
YACOOB J
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.
55
YACOOB J
[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
48
These sections are set out in para 19 of this judgment.
49
Section 25(5) mandates the state to foster conditions which enables citizens to gain land on an equitable
basis; section 26(2) is concerned with the right to access to adequate housing; section 27(2) with the right to
access to health care services, sufficient food and water and social security including appropriate social
assistance if people are unable to support themselves and their dependants.
56
YACOOB J
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
57
YACOOB J
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
50
See section 28(1)(d).
58
YACOOB J
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
59
YACOOB J
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
60
YACOOB J
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
61
51
See section 2(1)(h)(i).
YACOOB J
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.
62
YACOOB J
[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
63
YACOOB J
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."
64
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
YACOOB J
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,
65
YACOOB J
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
66
YACOOB J
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
67
YACOOB J
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.
68
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.
69