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ESTRATTO DOCUMENTO

YACOOB J

“Nevertheless, the fact that realization over time, or in other words progressively, is

foreseen under the Covenant should not be misinterpreted as depriving the obligation of

all meaningful content. It is on the one hand a necessary flexibility device, reflecting the

realities of the real world and the difficulties involved for any country in ensuring full

realization of economic, social and cultural rights. On the other hand, the phrase must be

read in the light of the overall objective, indeed the raison d’être, of the Covenant which

is to establish clear obligations for States parties in respect of the full realization of the

rights in question. It thus imposes an obligation to move as expeditiously and effectively

as possible towards that goal. Moreover, any deliberately retrogressive measures in that

regard would require the most careful consideration and would need to be fully justified

by reference to the totality of the rights provided for in the Covenant and in the context

40

of the full use of the maximum available resources.”

Although the committee’s analysis is intended to explain the scope of states parties’

obligations under the Covenant, it is also helpful in plumbing the meaning of “progressive

realisation” in the context of our Constitution. The meaning ascribed to the phrase is in

harmony with the context in which the phrase is used in our Constitution and there is no

reason not to accept that it bears the same meaning in the Constitution as in the document

from which it was so clearly derived.

Within available resources

[46] The third defining aspect of the obligation to take the requisite measures is that the

obligation does not require the state to do more than its available resources permit. This means

that both the content of the obligation in relation to the rate at which it is achieved as well as the

reasonableness of the measures employed to achieve the result are governed by the availability of

40 Para 9 of general comment 3, 1990. 36 YACOOB J

resources. Section 26 does not expect more of the state than is achievable within its available

41

resources. As Chaskalson P said in Soobramoney:

“What is apparent from these provisions is that the obligations imposed on the State by

ss 26 and 27 in regard to access to housing, health care, food, water, and social security

are dependent upon the resources available for such purposes, and that the corresponding

rights themselves are limited by reason of the lack of resources. Given this lack of

resources and the significant demands on them that have already been referred to, an

unqualified obligation to meet these needs would not presently be capable of being

fulfilled.”

There is a balance between goal and means. The measures must be calculated to attain the

goal expeditiously and effectively but the availability of resources is an important factor

in determining what is reasonable.

F. Description and evaluation of the state housing programme

41 See n 23 above at para 11. 37 YACOOB J

[47] In support of their contention that they had complied with the obligation imposed upon

them by section 26, the appellants placed evidence before this Court of the legislative and other

measures they had adopted. There is in place both national and provincial legislation concerned

42 It was explained that in 1994 the state inherited fragmented housing

with housing.

arrangements which involved thirteen statutory housing funds, seven ministries and housing

departments, more than twenty subsidy systems and more than sixty national and regional

parastatals operating on a racial basis. These have been rationalised. The national Housing Act

provides a framework which establishes the responsibilities and functions of each sphere of

government with regard to housing. The responsibility for implementation is generally given to

the provinces. Provinces in turn have assigned certain implementation functions to local

government structures in many cases. All spheres of government are intimately involved in

housing delivery and the budget allocated by national government appears to be substantial.

There is a single housing policy and a subsidy system that targets low-income earners regardless

of race. The White Paper on Housing aims to stabilise the housing environment, establish

institutional arrangements, protect consumers, rationalise institutional capacity within a

sustainable long-term framework, facilitate the speedy release and servicing of land and co-

ordinate and integrate the public sector investment in housing. In addition, various schemes are

in place involving public/private partnerships aimed at ensuring that housing provision is

effectively financed.

42 Examples of important legislation in this field include the Housing Act, 107 of 1997; the Housing

Consumers Protection Measures Act, 95 of 1998; the Prevention of Illegal Eviction from and Unlawful

Occupation of Land Act, 19 of 1998; the Development Facilitation Act, 67 of 1995; and the Western Cape

Housing Development Act, 6 of 1999. 38 YACOOB J

[48] “Housing development” is defined in section 1 of the Housing Act as:

“the establishment and maintenance of habitable, stable and sustainable public and

private residential environments to ensure viable households and communities in areas

allowing convenient access to economic opportunities, and to health, educational and

social amenities in which all citizens and permanent residents of the Republic will, on a

progressive basis, have access to—

(a) permanent residential structures with secure tenure, ensuring internal and

external privacy and providing adequate protection against the elements; and

(b) potable water, adequate sanitary facilities and domestic energy supply . . .”

“Housing development project” is defined as “any plan to undertake housing development

as contemplated in any national housing programme.”

[49] Section 2(1) of the Act sets out the general principles binding on national, provincial and

local spheres of government. I set out those principles are that material to the determination of

this case. All levels of government must:

“(a) give priority to the needs of the poor in respect of housing development;

(b) consult meaningfully with individuals and communities affected by housing

development;

(c) ensure that housing development—

(i) provides as wide a choice of housing and tenure options as is reasonably

possible;

(ii) is economically, fiscally, socially and financially affordable and

sustainable;

(iii) is based on integrated development planning; and

(iv) is administered in a transparent, accountable and equitable manner, and

upholds the practice of good governance;

. . .

(e) promote—

(i) education and consumer protection in respect of housing development;

39 YACOOB J

(ii) conditions in which everyone meets their obligations in respect of

housing development;

(iii) the establishment, development and maintenance of socially and

economically viable communities and of safe and healthy living

conditions to ensure the elimination and prevention of slums and slum

conditions;

. . .

(ix) the provision of community and recreational facilities in residential

areas;

(f) take due cognisance of the impact of housing development on the environment;

. . .

(h) in the administration of any matter relating to housing development—

(i) respect, protect, promote and fulfil the rights in the Bill of Rights in

Chapter 2 of the Constitution;

(ii) observe and adhere to the principles of co-operative government and

intergovernmental relations referred to in section 41 (1) of the

Constitution; and

(iii) comply with all other applicable provisions of the Constitution.”

[50] Over and above these general principles, the Act sets out the functions of the national,

provincial and local government in relation to housing. The functions of national government

43

are set out in section 3 of the Act. The function of provincial governments are set out in section

43 Section 3 provides:

“(1) The national government acting through the Minister must, after consultation

with every MEC and the national organisation representing municipalities as

contemplated in section 163 (a) of the Constitution, establish and facilitate a

sustainable national housing development process.

(2) For the purposes of subsection (1) the Minister must—

(a) determine national policy, including national norms and standards, in

respect of housing development;

(b) set broad national housing delivery goals and facilitate the setting of

40 YACOOB J

44 45

7 of the Act and the functions of municipalities are set out in section 9 of the Act. The

provincial and, where appropriate, local government housing delivery

goals in support thereof;

(c) monitor the performance of the national government and, in

co-operation with every MEC, the performance of provincial and local

governments against housing delivery goals and budgetary goals;

(d) assist provinces to develop the administrative capacity required for the

effective exercise of their powers and performance of their duties in

respect of housing development;

(e) support and strengthen the capacity of municipalities to manage their

own affairs, to exercise their powers and perform their duties in

respect of housing development;

(f) promote consultation on matters regarding housing development

between the national government and representatives of—

(i) civil society;

(ii) the sectors and subsectors supplying or financing housing

goods or services;

(iii) provincial and local governments; and

(iv) any other stakeholder in housing development;

(g) promote effective communication in respect of housing development.

(3) For the purposes of subsection (2) (a) 'national norms and standards' includes

norms and standards in respect of permanent residential structures, but are not

limited thereto.

(4) For the purposes of performing the duties imposed by subsections (1) and (2)

the Minister may—

(a) establish a national institutional and funding framework for housing

development;

(b) negotiate for the national apportionment of the state budget for

housing development;

(c) prepare and maintain a multi-year national plan in respect of housing

development;

(d) allocate funds for national housing programmes to provincial

governments, including funds for national housing programmes

administered by municipalities in terms of section 10;

(e) allocate funds for national facilitative programmes for housing

development;

(f) obtain funds for land acquisition, infrastructure development, housing

provision and end-user finance;

(g) institute and finance national housing programmes;

(h) establish and finance national institutions for the purposes of housing

development, and supervise the execution of their mandate;

(i) evaluate the performance of the housing sector against set goals and

equitableness and effectiveness requirements; and

(j) take any steps reasonably necessary to—

(i) create an environment conducive to enabling provincial and

local governments, the private sector, communities and

individuals to achieve their respective goals in respect of

housing development; and

(ii) promote the effective functioning of the housing market.

. . .”

44 Section 7 provides: 41 YACOOB J

“(1) Every provincial government must, after consultation with the provincial

organisations representing municipalities as contemplated in section 163 (a) of

the Constitution, do everything in its power to promote and facilitate the

provision of adequate housing in its province within the framework of national

housing policy.

(2) For the purposes of subsection (1) every provincial government must—

(a) determine provincial policy in respect of housing development;

(b) promote the adoption of provincial legislation to ensure effective

housing delivery;

(c) take all reasonable and necessary steps to support and strengthen the

capacity of municipalities to effectively exercise their powers and

perform their duties in respect of housing development;

(d) co-ordinate housing development in the province;

(e) take all reasonable and necessary steps to support municipalities in the

exercise of their powers and the performance of their duties in respect

of housing development;

(f) when a municipality cannot or does not perform a duty imposed by

this Act, intervene by taking any appropriate steps in accordance with

section 139 of the Constitution to ensure the performance of such

duty; and

(g) prepare and maintain a multi-year plan in respect of the execution in

the province of every national housing programme and every

provincial housing programme, which is consistent with national

housing policy and section 3 (2) (b), in accordance with the guidelines

that the Minister approves for the financing of such a plan with money

from the Fund.

. . .”

45 Section 9 provides:

“(1) Every municipality must, as part of the municipality's process of integrated

development planning, take all reasonable and necessary steps within the

framework of national and provincial housing legislation and policy to—

(a) ensure that—

(i) the inhabitants of its area of jurisdiction have access to

adequate housing on a progressive basis;

(ii) conditions not conducive to the health and safety of the

inhabitants of its area of jurisdiction are prevented or

removed;

(iii) services in respect of water, sanitation, electricity, roads,

stormwater drainage and transport are provided in a manner

which is economically efficient;

(b) set housing delivery goals in respect of its area of jurisdiction;

(c) identify and designate land for housing development;

(d) create and maintain a public environment conducive to housing

development which is financially and socially viable;

(e) promote the resolution of conflicts arising in the housing development

process;

(f) initiate plan, co-ordinate, facilitate, promote and enable appropriate

housing development in its area of jurisdiction;

(g) provide bulk engineering services, and revenue generating services in

so far as such services are not provided by specialist utility suppliers;

and

(h) plan and manage land use and development.

(2) (a) Any municipality may participate in a national housing programme in

42 YACOOB J

accordance with the rules applicable to such programme by-

(i) promoting a housing development project by a developer;

(ii) subject to paragraph (b), acting as developer in respect of the

planning and execution of a housing development project on

the basis of full pricing for cost and risk;

(iii) entering into a joint venture contract with a developer in

respect of a housing development project;

(iv) establishing a separate business entity to execute a housing

development project;

43 YACOOB J

(v) administering any national housing programme in respect of

its area of jurisdiction in accordance with section 10;

(vi) facilitating and supporting the participation of other role

players in the housing development process.

(b) If a municipality has been accredited under section 10 (2) to

administer national housing programmes in terms of which a housing

development project is being planned and executed, such municipality

may not act as developer, unless such project has been approved by

the relevant provincial housing development board.

(3) (a) A municipality may by notice in the Provincial Gazette expropriate

any land required by it for the purposes of housing development in

terms of any national housing programme, if—

(i) it is unable to purchase the land on reasonable terms through

negotiation with the owner thereof;

(ii) it has obtained the permission of the MEC to expropriate

such land before the notice of expropriation is published in

the Provincial Gazette; and

(iii) such notice of expropriation is published within six months

44 YACOOB J

responsibilities of local government in the Cape Metro, and in particular the relationship between

of the date on which the permission of the MEC was

granted.

(b) Sections 1, 6 to 15 and 18 to 23 of the Expropriation Act, 1975 (Act

No 63 of 1975), apply, with the changes required by the context, in

respect of the expropriation of land by a municipality in terms of

paragraph (a), and any reference in any of those sections—

(i) to the “Minister” and the “State” must be construed as a

reference to the chief executive officer of the relevant

municipality and the relevant municipality, respectively;

(ii) to “section 2” must be construed as a reference to this

subsection; and

(iii) to “this Act” must be construed as a reference to this Act.”

45 YACOOB J

metropolitan government on the one hand and municipal government on the other, have been

regulated by an agreement entered into between the Cape Metro and the municipalities within its

46

jurisdiction.

[51] It emerges from the general principles read together with the functions of national,

provincial and local government that the concept of housing development as defined is central to

the Act. Housing development, as defined, seeks to provide citizens and permanent residents

with access to permanent residential structures with secure tenure ensuring internal and external

privacy and to provide adequate protection against the elements. What is more, it endeavours to

ensure convenient access to economic opportunities and to health, educational and social

amenities. All the policy documents before the Court are postulated on the need for housing

development as defined. This is the central thrust of the housing development policy.

[52] The definition of housing development as well as the general principles that are set out do

not contemplate the provision of housing that falls short of the definition of housing development

46 The agreement is entitled “Agreement in respect of the allocation of powers, duties and functions entered

into between Cape Metropolitan Council and The Metropolitan Local Councils of Cape Town, Eastern,

Heidelberg, Northern, Southern, Tygerberg.” This agreement was entered into on 30 September 1996 in

accordance with the provisions of the Cape Metropolitan Further Enactment, the Cape Metropolitan

Negotiating Forum Agreement and the Local Government Transition Act.

46 YACOOB J

in the Act. In other words there is no express provision to facilitate access to temporary relief for

people who have no access to land, no roof over their heads, for people who are living in

intolerable conditions and for people who are in crisis because of natural disasters such as floods

and fires, or because their homes are under threat of demolition. These are people in desperate

need. Their immediate need can be met by relief short of housing which fulfils the requisite

standards of durability, habitability and stability encompassed by the definition of housing

development in the Act.

[53] What has been done in execution of this programme is a major achievement. Large sums

47 Considerable

of money have been spent and a significant number of houses has been built.

thought, energy, resources and expertise have been and continue to be devoted to the process of

effective housing delivery. It is a programme that is aimed at achieving the progressive

realisation of the right of access to adequate housing.

[54] A question that nevertheless must be answered is whether the measures adopted are

reasonable within the meaning of section 26 of the Constitution. Allocation of responsibilities

and functions has been coherently and comprehensively addressed. The programme is not

haphazard but represents a systematic response to a pressing social need. It takes account of the

housing shortage in South Africa by seeking to build a large number of homes for those in need

of better housing. The programme applies throughout South Africa and although there have been

47 Some 362 160 houses were built or under construction between March 1994 and September 1997, while an

overall total of some 637 190 subsidies had been allocated for projects in various stages of planning or

development by October 1997. 47 YACOOB J

difficulties of implementation in some areas, the evidence suggests that the state is actively

seeking to combat these difficulties.

[55] Legislative measures have been taken at both the national and provincial levels. As we

have seen, at the national level the Housing Act sets out the general principles applicable to

housing development, defines the functions of the three spheres of government and addresses the

financing of housing development. It thus provides a legislative framework within which the

delivery of houses is to take place nationally. At the provincial level there is the Western Cape

Housing Development Act, 1999. This statute also sets out the general principles applicable to

housing development; the role of the provincial government; the role of local government; and

other matters relating to housing development. Thus, like the Housing Act, this statute provides

a legislative framework within which housing development at provincial level will take place.

All of the measures described form part of the nationwide housing programme.

[56] This Court must decide whether the nationwide housing programme is sufficiently

flexible to respond to those in desperate need in our society and to cater appropriately for

immediate and short-term requirements. This must be done in the context of the scope of the

housing problem that must be addressed. This case is concerned with the situation in the Cape

Metro and the municipality and the circumstances that prevailed there are therefore presented.

[57] The housing shortage in the Cape Metro is acute. About 206 000 housing units are

required and up to 25 000 housing opportunities are required in Oostenberg itself. Shack counts

in the Cape Metro in general and in the area of the municipality in particular reveal an inordinate

48 YACOOB J

problem. 28 300 shacks were counted in the Cape Metro in January 1993. This number had

grown to 59 854 in 1996 and to 72 140 by 1998. Shacks in this area increased by 111 percent

during the period 1993 to 1996 and by 21 percent from then until 1998. There were 2121 shacks

in the area of the municipality in 1993, 5701 (an increase of 168 percent) in 1996 and 7546 (an

increase of 32 percent) in 1998. These are the results of a study commissioned by the Cape

Metro.

[58] The study concludes that the municipality “is the most critical local authority in terms of

informal settlement shack growth at this point in time”, this despite the fact that, according to an

affidavit by a representative of the municipality, 10 577 houses had been completed by 1997.

The scope of the problem is perhaps most sharply illustrated by this: about 22 000 houses are

built in the Western Cape each year while demand grows at a rate of 20 000 family units per

year. The backlog is therefore likely to be reduced, resources permitting and, on the basis of the

figures in this study, only by 2 000 houses a year.

[59] The housing situation is desperate. The problem is compounded by rampant

unemployment and poverty. As was pointed out earlier in this judgment, a quarter of the

households in Wallacedene had no income at all, and more than two-thirds earned less than

R500-00 per month during 1997. As stated above, many of the families living in Wallacedene

are living in intolerable conditions. In some cases, their shacks are permanently flooded during

the winter rains, others are severely overcrowded and some are perilously close to busy roads.

There is no suggestion that Wallacedene is unusual in this respect. It is these conditions which

ultimately forced the respondents to leave their homes there.

49 YACOOB J

[60] The Cape Metro has realised that this desperate situation requires government action that

is different in nature from that encompassed by the housing development policy described earlier

in this judgment. It drafted a programme (the Cape Metro land programme) in June 1999, some

months after the respondents had been evicted. It wrote:

“From the above, it is seen that there is a complete mismatch between demand and

supply in the housing sector, resulting in a crisis in housing delivery.

However, the existing housing situation cannot just be accepted, as there are many

families living in crisis conditions, or alternatively, there are situations in the [Cape

Metro] where local authorities need to undertake legal proceedings (evictions) in order to

administer and implement housing projects. A new housing programme needed [sic] to

cater for the crisis housing conditions in the [Cape Metro]. The proposed programme is

called an ‘Accelerated Managed Land Settlement Programme’.”

Later in the document, the programme is briefly described as follows:

“The Accelerated Managed Land Settlement Programme (AMSLP) can therefore be

described as the rapid release of land for families in crisis, with the progressive provision

of services.

This programme should benefit those families in situations of crisis. The programme

does not offer any benefits to queue jumpers, as it is the Metropolitan Local Council who

determines when the progressive upgrading of services will be taken.

The Accelerated Managed Land Settlement Programme (AMSLP) includes the

identification and purchase of land, planning, identification of the beneficiaries, township

approval, pegging of the erven, construction of basic services, resettlement and the

transfer of land to the beneficiaries.” 50 YACOOB J

We were informed by counsel during the hearing that although this programme was not in

force at the time these proceedings were commenced, it has now been adopted and is

being implemented.

[61] The Cape Metro land programme was formulated by the Cape Metro specifically “to

assist the metropolitan local councils to manage the settlement of families in crisis.” Important

features of this programme are its recognition of (i) the absence of provision for people living in

crisis conditions; (ii) the unacceptability of having families living in crisis conditions; (iii) the

consequent risk of land invasions; and (iv) the gap between the supply and demand of housing

resulting in a delivery crisis. Crucially, the programme acknowledges that its beneficiaries are

families who are to be evicted, those who are in a crisis situation in an existing area such as in a

flood-line, families located on strategic land and families from backyard shacks or on the waiting

list who are in crisis situations. Its primary objective is the rapid release of land for these

families in crisis, with services to be upgraded progressively.

[62] In devising its programme the Cape Metro said the following:

“Local government, by virtue of the powers and functions granted to it by national and

provincial legislation and policy, needs to initiate, facilitate and develop housing

projects. Part of this role is also the identification of vacant land for housing. There are

currently a few programmes that are available to finance housing projects, for example,

the project-linked subsidy, institutional subsidy and CMIP. None of these programmes

deal directly with crisis situations in the housing field. The Accelerated Managed Land

Settlement Programme (AMLSP) can therefore be described as the rapid release of land

for families in crisis, with the progressive provision of services.”

51 YACOOB J

[63] Section 26 requires that the legislative and other measures adopted by the state are

reasonable. To determine whether the nationwide housing programme as applied in the Cape

Metro is reasonable within the meaning the section, one must consider whether the absence of a

component catering for those in desperate need is reasonable in the circumstances. It is common

cause that, except for the Cape Metro land programme, there is no provision in the nationwide

housing programme as applied within the Cape Metro for people in desperate need.

[64] Counsel for the appellants supported the nationwide housing programme and resisted the

notion that provision of relief for people in desperate need was appropriate in it. Counsel also

submitted that section 26 did not require the provision of this relief. Indeed, the contention was

that provision for people in desperate need would detract significantly from integrated housing

development as defined in the Act. The housing development policy as set out in the Act is in

itself laudable. It has medium and long term objectives that cannot be criticised. But the

question is whether a housing programme that leaves out of account the immediate amelioration

of the circumstances of those in crisis can meet the test of reasonableness established by the

section.

[65] The absence of this component may have been acceptable if the nationwide housing

programme would result in affordable houses for most people within a reasonably short time.

However the scale of the problem is such that this simply cannot happen. Each individual

housing project could be expected to take years and the provision of houses for all in the area of

the municipality and in the Cape Metro is likely to take a long time indeed. The desperate will

be consigned to their fate for the foreseeable future unless some temporary measures exist as an

52 YACOOB J

integral part of the nationwide housing programme. Housing authorities are understandably

unable to say when housing will become available to these desperate people. The result is that

people in desperate need are left without any form of assistance with no end in sight. Not only

are the immediate crises not met. The consequent pressure on existing settlements inevitably

results in land invasions by the desperate thereby frustrating the attainment of the medium and

long term objectives of the nationwide housing programme. That is one of the main reasons why

the Cape Metro land programme was adopted.

[66] The national government bears the overall responsibility for ensuring that the state

complies with the obligations imposed upon it by section 26. The nationwide housing

programme falls short of obligations imposed upon national government to the extent that it fails

to recognise that the state must provide for relief for those in desperate need. They are not to be

ignored in the interests of an overall programme focussed on medium and long-term objectives.

It is essential that a reasonable part of the national housing budget be devoted to this, but the

precise allocation is for national government to decide in the first instance.

[67] This case is concerned with the Cape Metro and the municipality. The former has

realised that this need has not been fulfilled and has put in place its land programme in an effort

to fulfil it. This programme, on the face of it, meets the obligation which the state has towards

people in the position of the respondents in the Cape Metro. Indeed, the amicus accepted that

this programme “would cater precisely for the needs of people such as the respondents, and, in

an appropriate and sustainable manner.” However, as with legislative measures, the existence of

the programme is a starting point only. What remains is the implementation of the programme

53 YACOOB J

by taking all reasonable steps that are necessary to initiate and sustain it. And it must be

implemented with due regard to the urgency of the situations it is intended to address.

[68] Effective implementation requires at least adequate budgetary support by national

government. This, in turn, requires recognition of the obligation to meet immediate needs in the

nationwide housing programme. Recognition of such needs in the nationwide housing

programme requires it to plan, budget and monitor the fulfilment of immediate needs and the

management of crises. This must ensure that a significant number of desperate people in need

are afforded relief, though not all of them need receive it immediately. Such planning too will

require proper co-operation between the different spheres of government.

[69] In conclusion it has been established in this case that as of the date of the launch of this

application, the state was not meeting the obligation imposed upon it by section 26(2) of the

Constitution in the area of the Cape Metro. In particular, the programmes adopted by the state

fell short of the requirements of section 26(2) in that no provision was made for relief to the

categories of people in desperate need identified earlier. I come later to the order that should

flow from this conclusion.

G. Section 28(1)(c) and the right to shelter

[70] The judgment of the High Court amounts to this: (a) section 28(1)(c) obliges the state to

provide rudimentary shelter to children and their parents on demand if parents are unable to

shelter their children; (b) this obligation exists independently of and in addition to the obligation

to take reasonable legislative and other measures in terms of section 26; and (c) the state is

54 YACOOB J

bound to provide this rudimentary shelter irrespective of the availability of resources. On this

reasoning, parents with their children have two distinct rights: the right of access to adequate

housing in terms of section 26 as well as a right to claim shelter on demand in terms of section

28(1)(c).

[71] This reasoning produces an anomalous result. People who have children have a direct

and enforceable right to housing under section 28(1)(c), while others who have none or whose

children are adult are not entitled to housing under that section, no matter how old, disabled or

otherwise deserving they may be. The carefully constructed constitutional scheme for

progressive realisation of socio-economic rights would make little sense if it could be trumped in

every case by the rights of children to get shelter from the state on demand. Moreover, there is

an obvious danger. Children could become stepping stones to housing for their parents instead

of being valued for who they are.

[72] The respondents and the amici in supporting the judgment of the High Court draw a

distinction between housing on the one hand and shelter on the other. They contend that shelter

is an attenuated form of housing and that the state is obliged to provide shelter to all children on

demand. The respondents and the amici emphasise that the right of children to shelter is

unqualified and that, the “reasonable measures” qualification embodied in sections 25(5) 26, 27

and 29 are markedly absent in relation to section 28(1)(c). The appellants disagree and criticise

the respondents’ definition of shelter on the basis that it conceives shelter in terms that limit it to

a material object. They contend that shelter is more than just that, but define it as an institution

constructed by the state in which children are housed away from their parents.

55 YACOOB J

[73] I cannot accept that the Constitution draws any real distinction between housing on the

one hand and shelter on the other, and that shelter is a rudimentary form of housing. Housing

and shelter are related concepts and one of the aims of housing is to provide physical shelter.

But shelter is not a commodity separate from housing. There is no doubt that all shelter

represents protection from the elements and possibly even from danger. There are a range of

ways in which shelter may be constituted: shelter may be ineffective or rudimentary at the one

extreme and very effective and even ideal at the other. The concept of shelter in section 28(1)(c)

is not qualified by any requirement that it should be “basic” shelter. It follows that the

Constitution does not limit the concept of shelter to basic shelter alone. The concept of shelter in

section 28 (1)(c) embraces shelter in all its manifestations. However, it does not follow that the

Constitution obliges the state to provide shelter at the most effective or the most rudimentary

level to children in the company of their parents.

[74] The obligation created by section 28(1)(c) can properly be ascertained only in the context

of the rights and, in particular, the obligations created by sections 25(5), 26 and 27 of the

48 Each of these sections expressly obliges the state to take reasonable legislative

Constitution.

and other measures, within its available resources, to achieve the rights with which they are

49

concerned. Section 28(1)(c) creates the right of children to basic nutrition, shelter, basic health

48 These sections are set out in para 19 of this judgment.

49 Section 25(5) mandates the state to foster conditions which enables citizens to gain land on an equitable

basis; section 26(2) is concerned with the right to access to adequate housing; section 27(2) with the right to

access to health care services, sufficient food and water and social security including appropriate social

assistance if people are unable to support themselves and their dependants.

56 YACOOB J

care services and social services. There is an evident overlap between the rights created by

sections 26 and 27 and those conferred on children by section 28. Apart from this overlap, the

section 26 and 27 rights are conferred on everyone including children while section 28, on its

face, accords rights to children alone. This overlap is not consistent with the notion that section

28(1)(c) creates separate and independent rights for children and their parents.

[75] The extent of the state obligation must also be interpreted in the light of the international

obligations binding upon South Africa. The United Nations Convention on the Rights of the

Child, ratified by South Africa in 1995, seeks to impose obligations upon state parties to ensure

that the rights of children in their countries are properly protected. Section 28 is one of the

mechanisms to meet these obligations. It requires the state to take steps to ensure that children’s

rights are observed. In the first instance, the state does so by ensuring that there are legal

obligations to compel parents to fulfil their responsibilities in relation to their children. Hence,

legislation and the common law impose obligations upon parents to care for their children. The

state reinforces the observance of these obligations by the use of civil and criminal law as well as

social welfare programmes.

[76] Section 28(1)(c) must be read in this context. Subsections 28(1)(b) and (c) provide:

“Every child has the right —

(b) to family care or parental care, or to appropriate alternative care when removed

from the family environment;

(c) to basic nutrition, shelter, basic health care services and social services”.

They must be read together. They ensure that children are properly cared for by their

57 YACOOB J

parents or families, and that they receive appropriate alternative care in the absence of

parental or family care. The section encapsulates the conception of the scope of care that

children should receive in our society. Subsection (1)(b) defines those responsible for

giving care while subsection (1)(c) lists various aspects of the care entitlement.

[77] It follows from subsection 1(b) that the Constitution contemplates that a child has the

right to parental or family care in the first place, and the right to alternative appropriate care only

where that is lacking. Through legislation and the common law, the obligation to provide shelter

in subsection (1)(c) is imposed primarily on the parents or family and only alternatively on the

state. The state thus incurs the obligation to provide shelter to those children, for example, who

are removed from their families. It follows that section 28(1)(c) does not create any primary

state obligation to provide shelter on demand to parents and their children if children are being

cared for by their parents or families.

[78] This does not mean, however, that the state incurs no obligation in relation to children

who are being cared for by their parents or families. In the first place, the state must provide the

legal and administrative infrastructure necessary to ensure that children are accorded the

protection contemplated by section 28. This obligation would normally be fulfilled by passing

laws and creating enforcement mechanisms for the maintenance of children, their protection

50 and the prevention of other forms of abuse of

from maltreatment, abuse, neglect or degradation,

children mentioned in section 28. In addition, the state is required to fulfil its obligations to

50 See section 28(1)(d). 58 YACOOB J

provide families with access to land in terms of section 25, access to adequate housing in terms

of section 26 as well as access to health care, food, water and social security in terms of section

27. It follows from this judgment that sections 25 and 27 require the state to provide access on a

programmatic and coordinated basis, subject to available resources. One of the ways in which

the state would meet its section 27 obligations would be through a social welfare programme

providing maintenance grants and other material assistance to families in need in defined

circumstances.

[79] It was not contended that the children who are respondents in this case should be

provided with shelter apart from their parents. Those of the respondents in this case who are

children are being cared for by their parents; they are not in the care of the state, in any

alternative care, or abandoned. In the circumstances of this case, therefore, there was no

obligation upon the state to provide shelter to those of the respondents who were children and,

through them, their parents in terms of section 28(1)(c). The High Court therefore erred in

making the order it did on the basis of this section.

H. Evaluation of the conduct of the appellants towards the respondents

[80] The final section of this judgment is concerned with whether the respondents are entitled

to some relief in the form of temporary housing because of their special circumstances and

because of the appellants’ conduct towards them. This matter was raised in argument, and

although not fully aired on the papers, it is appropriate to consider it. At first blush, the

respondents’ position was so acute and untenable when the High Court heard the case that simple

humanity called for some form of immediate and urgent relief. They had left Wallacedene

59 YACOOB J

because of their intolerable circumstances, had been evicted in a way that left a great deal to be

desired and, as a result, lived in desperate sub-human conditions on the Wallacedene soccer field

or in the Wallacedene community hall. But we must also remember that the respondents are not

alone in their desperation; hundreds of thousands (possibly millions) of South Africans live in

appalling conditions throughout our country.

[81] Although the conditions in which the respondents lived in Wallacedene were admittedly

intolerable and although it is difficult to level any criticism against them for leaving the

Wallacedene shack settlement, it is a painful reality that their circumstances were no worse than

those of thousands of other people, including young children, who remained at Wallacedene. It

cannot be said, on the evidence before us, that the respondents moved out of the Wallacedene

settlement and occupied the land earmarked for low-cost housing development as a deliberate

strategy to gain preference in the allocation of housing resources over thousands of other people

who remained in intolerable conditions and who were also in urgent need of housing relief. It

must be borne in mind however, that the effect of any order that constitutes a special

dispensation for the respondents on account of their extraordinary circumstances is to accord that

preference.

[82] All levels of government must ensure that the housing programme is reasonably and

appropriately implemented in the light of all the provisions in the Constitution. All

implementation mechanisms, and all state action in relation to housing falls to be assessed

against the requirements of section 26 of the Constitution. Every step at every level of

government must be consistent with the constitutional obligation to take reasonable measures to

60 YACOOB J

provide adequate housing.

[83] But section 26 is not the only provision relevant to a decision as to whether state action at

any particular level of government is reasonable and consistent with the Constitution. The

proposition that rights are interrelated and are all equally important is not merely a theoretical

postulate. The concept has immense human and practical significance in a society founded on

human dignity, equality and freedom. It is fundamental to an evaluation of the reasonableness of

state action that account be taken of the inherent dignity of human beings. The Constitution will

be worth infinitely less than its paper if the reasonableness of state action concerned with

housing is determined without regard to the fundamental constitutional value of human dignity.

Section 26, read in the context of the Bill of Rights as a whole, must mean that the respondents

have a right to reasonable action by the state in all circumstances and with particular regard to

human dignity. In short, I emphasise that human beings are required to be treated as human

beings. This is the backdrop against which the conduct of the respondents towards the appellants

must be seen.

[84] The national legislature recognises this. In the course of stating the general principles

binding on all levels of government, the Housing Act provides that in the administration of any

matter relating to housing development, all levels of government must respect, protect, promote

51 In addition, section 2(1)(b) obliges all

and fulfil the rights in Chapter 2 of the Constitution.

levels of government to consult meaningfully with individuals and communities affected by

housing development. Moreover, section 9(1)(e) obliges municipalities to promote the

51 See section 2(1)(h)(i). 61 YACOOB J

resolution of conflict arising in the housing development process.

[85] Consideration is now given to whether the state action (or inaction) in relation to the

respondents met the required constitutional standard. It is a central feature of this judgment that

the housing shortage in the area of the Cape Metro in general and Oostenberg in particular had

reached crisis proportions. Wallacedene was obviously bursting and it was probable that people

in desperation were going to find it difficult to resist the temptation to move out of the shack

settlement onto unoccupied land in an effort to improve their position. This is what the

respondents apparently did.

[86] Whether the conduct of Mrs Grootboom and the other respondents constituted a land

invasion was disputed on the papers. There was no suggestion however that the respondents’

circumstances before their move to New Rust was anything but desperate. There is nothing in the

papers to indicate any plan by the municipality to deal with the occupation of vacant land if it

occurred. If there had been such a plan the appellants might well have acted differently.

[87] The respondents began to move onto the New Rust Land during September 1998 and the

number of people on this land continued to grow relentlessly. I would have expected officials of

the municipality responsible for housing to engage with these people as soon as they became

aware of the occupation. I would also have thought that some effort would have been made by

the municipality to resolve the difficulty on a case-by-case basis after an investigation of their

circumstances before the matter got out of hand. The municipality did nothing and the

settlement grew by leaps and bounds. 62 YACOOB J

[88] There is, however, no dispute that the municipality funded the eviction of the

respondents. The magistrate who ordered the ejectment of the respondents directed a process of

mediation in which the municipality was to be involved to identify some alternative land for the

occupation for the New Rust residents. Although the reason for this is unclear from the papers, it

is evident that no effective mediation took place. The state had an obligation to ensure, at the

very least, that the eviction was humanely executed. However, the eviction was reminiscent of

the past and inconsistent with the values of the Constitution. The respondents were evicted a day

early and to make matters worse, their possessions and building materials were not merely

removed, but destroyed and burnt. I have already said that the provisions of section 26(1) of the

Constitution burdens the state with at least a negative obligation in relation to housing. The

manner in which the eviction was carried out resulted in a breach of this obligation.

[89] In these circumstances, the municipality’s response to the letter of the respondents’

attorney left much to be desired. It will be recalled that the letter stated that discussions were

being held with officials from the Provincial Administration in order to find an amicable solution

to the problem. There is no evidence that the respondents were ever informed of the outcome of

these discussions. The application was then opposed and argued on the basis that none of the

appellants either individually or jointly could do anything at all to alleviate the problem. The

Cape Metro, the Western Cape government and the national government were joined in the

proceedings and would all have been aware of the respondents’ plight.

[90] In all these circumstances, the state may well have been in breach of its constitutional

63 YACOOB J

obligations. It may also be that the conduct of the municipality was inconsistent with the

provisions of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act. In

addition, the municipality may have failed to meet the obligations imposed by the provisions of

sections 2(1)(b), 2(1)(h)(i) and 9(1)(e) of the Housing Act. However no argument was addressed

to this Court on these matters and we are not in a position to consider them further.

[91] At the hearing in this Court, counsel for the national and Western Cape government,

tendered a statement indicating that the respondents had, on that very day, been offered some

alternative accommodation, not in fulfilment of any accepted constitutional obligation, but in the

interests of humanity and pragmatism. Counsel for the respondents accepted the offer on their

behalf. We were subsequently furnished with a copy of the arrangement which read as follows:

“1. The Department of Planning, Local Government and Housing (Western Cape

Province) undertakes in conjunction with the Oostenberg Municipality to

provide temporary accommodation to the respondents on the Wallacedene

Sportsfield until they can be housed in terms of the housing programmes

available to the local authority, and in particular the Accelerated Land Managed

Settlement Programme.

2. The ‘temporary accommodation’ comprises: a marked off site; provision for

temporary structures intended to be waterproof; basic sanitation, water and

refuse services.

3. The implementation of such measures is to be discussed with the Wallacedene

community and the respondents.”

Although, as indicated earlier, the special position of the respondents was aired during

argument, the relief claimed by them was always grounded only in sections 26 and 28 of

the Constitution and not on the breach of any statute (such as the Prevention of Illegal

Evictions Act, or the Housing Act), the common law or any other provision of the

64 YACOOB J

Constitution. Accordingly, it is inappropriate for this Court to order any relief on grounds

other than sections 26 or 28 of the Constitution.

[92] This judgment must not be understood as approving any practice of land invasion for the

purpose of coercing a state structure into providing housing on a preferential basis to those who

participate in any exercise of this kind. Land invasion is inimical to the systematic provision of

adequate housing on a planned basis. It may well be that the decision of a state structure, faced

with the difficulty of repeated land invasions, not to provide housing in response to those

invasions, would be reasonable. Reasonableness must be determined on the facts of each case.

I. Summary and conclusion

[93] This case shows the desperation of hundreds of thousands of people living in deplorable

conditions throughout the country. The Constitution obliges the state to act positively to

ameliorate these conditions. The obligation is to provide access to housing, health-care,

sufficient food and water, and social security to those unable to support themselves and their

dependants. The state must also foster conditions to enable citizens to gain access to land on an

equitable basis. Those in need have a corresponding right to demand that this be done.

[94] I am conscious that it is an extremely difficult task for the state to meet these obligations

in the conditions that prevail in our country. This is recognised by the Constitution which

expressly provides that the state is not obliged to go beyond available resources or to realise

these rights immediately. I stress however, that despite all these qualifications, these are rights,

and the Constitution obliges the state to give effect to them. This is an obligation that courts can,

65 YACOOB J

and in appropriate circumstances, must enforce.

[95] Neither section 26 nor section 28 entitles the respondents to claim shelter or housing

immediately upon demand. The High Court order ought therefore not to have been made.

However, section 26 does oblige the state to devise and implement a coherent, co-ordinated

programme designed to meet its section 26 obligations. The programme that has been adopted

and was in force in the Cape Metro at the time that this application was brought, fell short of the

obligations imposed upon the state by section 26(2) in that it failed to provide for any form of

relief to those desperately in need of access to housing.

[96] In the light of the conclusions I have reached, it is necessary and appropriate to make a

declaratory order. The order requires the state to act to meet the obligation imposed upon it by

section 26(2) of the Constitution. This includes the obligation to devise, fund, implement and

supervise measures to provide relief to those in desperate need.

[97] The Human Rights Commission is an amicus in this case. Section 184 (1) (c) of the

Constitution places a duty on the Commission to “monitor and assess the observance of human

rights in the Republic.” Subsections (2) (a) and (b) give the Commission the power:

“(a) to investigate and to report on the observance of human rights;

(b) to take steps to secure appropriate redress where human right have been violated.”

Counsel for the Commission indicated during argument that the Commission had the duty

and was prepared to monitor and report on the compliance by the state of its section 26

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DESCRIZIONE DISPENSA

La dispensa fa riferimento alle lezioni di Diritto Costituzionale Italiano e Comparato, tenute dalla Prof. ssa Lucia Scaffardi nell'anno accademico 2008.
Il documento riporta il testo in inglese del caso 11/00 che sottopone alla Corte Costituzionale sudafricana il problema degli alloggi nel Paese. Si segnale la discrepanza tra il diritto garantito a tutti i cittadini dalla Costituzione a una casa dignitosa e la realtà in cui sono pochissimi quelli che la possiedono.


DETTAGLI
Corso di laurea: Corso di laurea magistrale in giurisprudenza (a ciclo unico)
SSD:
Università: Parma - Unipr
A.A.: 2008-2009

I contenuti di questa pagina costituiscono rielaborazioni personali del Publisher Atreyu di informazioni apprese con la frequenza delle lezioni di Diritto Costituzionale Italiano e Comparato e studio autonomo di eventuali libri di riferimento in preparazione dell'esame finale o della tesi. Non devono intendersi come materiale ufficiale dell'università Parma - Unipr o del prof Scaffardi Lucia.

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