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.
A community of squatters, evicted from an informal settlement in Wallacedene had set up minimal shelters of plastic and other materials at a sports centre adjacent to Wallacedene community centre. They lacked basic sanitation or electricity. The group brought an action under sections 26(the right of access to adequate housing) and 28 (children’s right to basic shelter) of the South African Constitution for action by various levels of government. The High Court, relying on the principles of judicial deference outlined by the Constitutional Court in the Soobramoney case, found that the respondents had taken “reasonable measures within available resources to achieve the progressive realisation of the right to have access to adequate housing” – as required by s. 26(2) of the Constitution. However, because the right of children to shelter in article 28 was not subject to available resources, the High Court held that the applicants were entitled to be provided with basic shelter. On appeal to the Constitutional Court the Court found no violation of s. 28 but found instead a violation of the right to adequate housing in s.26. The Court held that article 26 obliges the state to devise and implement a coherent, co-ordinated housing programme and that in failing to provide for those in most desperate need the government had failed to take reasonable measures to progressively realize the right to housing. The Court ordered that the various governments “devise, fund, implement and supervise measures to provide relief to those in desperate need.” The South African Human Rights Commission agreed to monitor and if necessary report on the governments’ implementation of this order.
Keywords: Government of the Republic of South Africa. & Ors v Grootboom & Ors 2000 (11) BCLR 1169, Children, Right
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
