Grootboom Case Summary PDF

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Surname and initials

Mahlathi PS

Student number Module

JJTV102 – Constitutional Law

Assessment

Government of the Republic of South Africa and Others v Grootboom and Others (CCT11/00) [2000] ZACC 19

Tut group leader Due date

20/09/2019

PS Mahlathi (LLB - Nelson Mandela University)

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Government of the Republic of South Africa and Others v Grootboom and Others (CCT11/00) [2000] ZACC 19

Facts This case involves Mrs Grootboom and others who had been living in an informal dwelling in appalling conditions. While waiting for government to build them low-cost housing, they invaded private land earmarked for building low-cost housing and were evicted as a result of this illegal occupation. They approached the Cape Good Hope High Court seeking relief for government to provide adequate housing while waiting for permanent accommodation basing their case on Constitutional provisions of section 26 and section 28. An order was made that state should provide immediate shelter to those respondents who were children and for one parent of each child who required supervision. The appellants representing all spheres of government took he matter on appeal, challenging the correctness of this order in Constitutional Court.

Legal issue/ question Does section 28 of the Constitution give people entitlement to immediate access to adequate housing under section 26 of the Constitution?

Legal analysis All rights in our Bill of Rights are inter-related and mutually supporting.1 The Constitutional Court considered the scope and meaning of section 26 of the Constitution in context. This section provides that everyone has a right to access adequate housing, the state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right, and that no one may be evicted from their home or have their home demolished without a court order after considering all relevant factors.2 The court held that this right applied to everyone, including children and there is a negative right placed upon the state and other entities or persons to refrain from preventing the right of access to adequate housing. It was further held that for a person to have access to adequate housing the following need to be met: there must be land, there must be services and there must be a dwelling, meaning that access to housing included the right to access to land, eradicating primary responsibility of the state. Individuals and other agents in society must be enabled by legislative and other measures to provide housing and the state must 1

Government of the Republic of South Africa and Others v Grootboom and Others (CCT11/00) [2000] ZACC 19. 2 S26 of the Constitution of the Republic of South Africa, 1996.

PS Mahlathi (LLB - Nelson Mandela University)

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create the conditions for access to adequate housing for people at all economic levels, and this would leave the poor as the most disadvantaged. It is in this context that the relationship between sections 26 and 27 of the Constitution and other socio-economic rights is most apparent, and if under section 27 the state has in place programmes to provide adequate social assistance to those who are otherwise disadvantaged, that would be relevant to the state’s obligations in respect of other socioeconomic rights.3 The state’s obligation therefore depends on context and various social circumstances. Section 26 speaks of a positive obligation imposed on the state but this is not an absolute obligation. The extent of the state’s obligation is defined by three elements and the element of reasonable legislative and other measures must be determined in light of the fact that the state has three spheres of government. In case of housing, the function is shared by national and provincial sphere and national government bears the responsibility in allocating national revenue to the provinces and local government on an equitable basis.4 Court held that measures adopted in realising the right in section 26 must be reasonable in concept and implementation and that a programme that excludes a significant segment of society will fail a reasonable programme. Reasonableness must also be understood in the context of the Bill of Rights as a whole, and those without food, shelter or clothing will be denied human dignity, freedom and equality. These values are entrenched in the Bill of Rights.5 With progressive realisation of right, the court gave an interpretation that it is not immediate but rather continuous, housing must be made more accessible not only to a larger number of people but to a wider range of people as time progresses.6 With regard to realising the right within available resources, court was of the opinion that 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 resources. In Soobramoney,7 it was held that there is great inequality in wealth in society which already existed before adoption of the Constitution. A commitment to address this and transform society lies in the heart of the Constitution and for as long as inequality continued to exist

3

2001 (1) SA 46. SS 214(2)(d) and (f) of the Constitution, 1996. 5 Government of the Republic of South Africa v Grootboom. 6 Government of the Republic of South Africa v Grootboom. 7 Soobramoney v Minister of Health (Kwazulu-Natal) (CCT32/97) [1997] ZACC 17. 4

PS Mahlathi (LLB - Nelson Mandela University)

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these aspirations will have a hollow ring. The Court concluded that availability of resources is an important factor to consider in determining what is reasonable. In support of appellant’s contention that they had complied with the obligation imposed upon them by section 26, they placed evidence before the Court of the legislative and other measures they had adopted. Section 2 of the Housing Act provides the functions of the national, provincial and local government in relation to housing.8 The functions of national government are set out in section 3 of the Act.9 The function of provincial governments is set out in section 7 of the Act and the functions of municipalities are set out in section 9 of the Act. In light of these sections, the court concluded that 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.10 Effective implementation requires at least adequate budgetary support by national government. This reasoning produces an inconsistent result. People who have children have a direct and enforceable right to housing under section 28(1)(c),11 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. Children could become stepping stones to housing for their parents instead of being valued for who they are and the High Court therefore erred in making the order it did on the basis of this section.

Conclusion The court concluded that neither section 26 and 28(1)(c) of the Constitution gave the respondents an immediate right to claim shelter and held that the state had to implement a programme that included measures to provide relief for those desperate people who had not been catered for. Table of Statutes Housing Act. The Constitution of the Republic, 1996.

8

Housing Act 107 of 1997. 107 of 1997. 10 Government of the Republic of South Africa v Grootboom. 11 S28 of the Constitution of the Republic of South Africa, 1996. 9

PS Mahlathi (LLB - Nelson Mandela University)

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