Local residents challenged the establishment of an emergency housing camp in their neighborhood as contrary to zoning laws; obligation of government to realize right of access to adequate housing; powers of government to make decision regarding transit camp on state land; resident’s rights to administrative justice; court must take account of housing rights of flood victims.
The South African government decided to establish a transit camp on the grounds of the Leeuwkop Prison (state-owned land) for Alexandra Township flood victims. It was intended that the occupants would then move to permanent housing when it became available. The plan was apparently made without consultation with the residents in the area and a residents’ association, Kyalami Ridge Environmental Association (KREA), requested that the relevant minister suspend operations. Upon rejection of this request, KREA sued and the High Court found that the contemplated facilities were of a permanent nature and held that the government had not complied with zoning, township development and environmental protection laws. The Constitutional Court reversed the High Court’s decision after an appeal hearing, where a representative of the flood victims made an intervention. Citing the Grootboom case [cross-link] the Court held that the governments constitutional obligations with respect to the right to housing “included the need to facilitate access to temporary relief for people who had no access to land, no roof over their heads, for people who were living in intolerable conditions and for people who were in crisis because of natural disasters such as floods and fires, or because their home was under threat of demolition.” The Court found that there was no law that prevented the government from taking the decision to establish the temporary camp but that some laws may possibly affect the implementation of the programme. The residents also complained of lack of consultation, a decline in property values and possible environmental hazards, but the Court held that there had been no violation of constitutional rights to administrative justice since, ‘Although the interests of the Kyalami residents may be affected this case concerns not only their interests, but also the interest of the flood victims”.
Awaiting advice from the intervenors.
The decision empowered the government to provide relief for victims of disaster and was therefore a ‘victory’ for housing rights since the government successfully defended its obligation to provide adequate shelter for vulnerable residents. Sandra Liebenberg notes though that the principle of the decision can also have negative consequences for social rights: ‘Naturally, such legislative and executive conduct will be liable to challenge if there is a breach of other provisions of the Bill of Rights (e.g. the right to just administrative action) despite its pro-poor objectives.’ She cites a later case where legislation to make medicines more affordable was struck down for non-compliance with the principles of administrative justice. (See reference to Liebenberg article below).
Intervenor Constitutional Litigation Unit, Legal Resources Centre 7th floor Gandhi Square 25 Rissik Street, JOHANNESBURG, 2001 PO Box 9495, Johannesburg, 2000 Tel: +27 (0)11 836-9831, 403-0902 Fax: +27 (0)11 836-8680 Docex: 278
