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 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.
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)
Landless People’s Movement