Challenge to failure of governments to provide adequate housing under s.26 (right to adequate housing) and s.28 (Children’s right to shelter) of the South African Constitution; Failure of housing programme to address needs of those in desperate situations; Reasonable measures and allocation of resources; Whether there is a right to minimum shelter; Minimum core content of right to housing; Extent of judicial deference to government policy choice; Appropriate remedy.
The decision had a major impact on housing policy in South Africa. Most municipalities put in place a “Grootboom allocation” in their budgets to address the needs of those in desperate need. The applicants were provided with basic amenities as a result of a settlement reached prior to the hearing of the case by the Constitutional Court, but the results of the decision for the community have been disappointing. Further legal action was taken to enforce the remedy against the local government.
This is probably the most cited ESC rights case, laying the foundation for subsequent successful ESC rights claims in South Africa and elsewhere. The Court lays the foundation for the justiciability of the obligation to progressively realize ESC rights, which the Court will review on the basis of the “reasonableness” test, and exercise deference, where appropriate, at the stage of remedy. The ruling places the adjudication of ESC rights within a familiar framework to courts in all jurisdictions and modifies the rationality review standard adopted in the earlier Soobramoney case.
Human Rights Commission of South Africa Community Law Centre Legal Resources Centre