Nokotyana and others v. Ekurhuleni Municipality 2010 (4) BCLR 312 (CC)
This case involves an application for the provision of basic services in informal settlements. It covers a range of issues, including, the nature of the right of access to adequate housing (section 26 of the Constitution); Right to water and sanitation (section 27 of the Constitution); and the requirement that all constitutional obligations must be performed diligently and without delay.
The applicants, occupiers of the Harry Gwala informal settlement, argued for the provision of certain interim basic services in their settlement, pending a decision on whether the settlement was to be upgraded on site or relocated to formal housing (whereupon such services would be provided permanently). They relied primarily on sections 26 and 27 of the Constitution and chapters 12 (emergency housing situations) and 13 (upgrading of informal settlements) of the National Housing Code. The applicants argued that the right of access to adequate housing in section 26 must include basic sanitation and electricity, and that the right to housing should have a minimum core content, as provided for in international law.
The High Court ordered the municipality to provide potable water and refuse collection services and dismissed claims to toilets and high-mast lighting. Before the matter reached the Constitutional Court, the municipality adopted a new policy whereby every informal settlement would be provided with 1 chemical toilet per 10 households. The occupiers claimed before the Constitutional Court that expecting 10 households to share 1 toilet compromised the occupiers’ dignity, and that they should be given 1 or 2 toilets per household.
The Court held that neither Chapter 12 nor 13 was relevant to the case (there was no emergency and no decision to upgrade the settlement had been taken). It also found that as the applicants had not challenged the failure of Chapters 12 and 13 (promulgated to give effect to the right to housing under the Constitution) to provide for their situation, they could not therefore directly rely on the Constitution. However, the Court found that the delay in the decision whether to upgrade the settlement to a township was unacceptable. As long as the status of the settlement was in limbo, little could be done to improve conditions. Such delay violated the requirement of reasonableness imposed on the government with regard to access to housing [section 26(2) of the Constitution] and the requirement that all constitutional obligations be performed diligently and without delay [Section 237 of the Constitution]. A decision was required to be taken within 14 months.
The 14-month Court granted time period within which a decision needed to be taken as to whether there will be on site upgrading extended only to 20th January 2011. . The Provincial Housing Department said in February 2011 that a decision on whether there will be an in situ upgrade would be made by June 2011. Since Friday, February 4, 2011, high mast lightings have been installed in the Harry Gwala informal settlement, although it was not ordered by the judgment. In 2012, more than a year after the judgment deadline, the community received the municipality’s proposed ‘in situ upgrading’ plan. The residents were unhappy with this plan which includes demolition of all existing homes and spaces. In response, the residents, worked with experts, to develop an alternative plan based on the existing conditions in the community and to adequately address the needs of all residents. The community is presently in engaging with the National, Provincial, and Municipal Departments of Housing/Human Settlement to negotiate development of the settlement.
Landless People’s Movement
The decision is an example of the Court giving effect to socio-economic rights by identifying pre-existing government policy and requiring its prompt implementation, rather than shaping the nature of the right itself. The case illustrates the Court’s unwillingness to exercise its power to assess policy, although the framing of the occupier’s case limited the Court’s ability to do this. Particularly following the Court’s decision in Mazibuko (2009), it seems unlikely the Court will address questions of the type the applicants put before them, such as how many toilets per household are reasonable and whether VIPs or chemical toilets are most suitable. This case also demonstrates the importance of cases that are brought to court being properly conceived and structured.
(Updated August 2015)