Government of the Republic of South Africa and Others v Irene Grootboom and Others (2000)

1. Case Title & Citation  

Full Name: Government of the Republic of South Africa and Others v Irene Grootboom and  Others (2000)  

Citation: 2000 (11) BCLR 1169 (CC); [2001] (1) SA 46 (CC)  

2. Court Name & Bench  

Court: Constitutional Court of South Africa  

Judges: Arthur Chaskalson (President of the Court)  

Pius Langa (Deputy President)  

Richard Goldstone  

Johann Kriegler  

Tholie Madala  

Yvonne Mokroro  

Sandile Ngcobo  

Kate O’Regan  

Albie Sachs  

Zak Yacoob (Author of the judgement)  

Edwin Cameron (Acting Judge)  

Bench Type: Full Bench of the Constitutional Court  

3. Date of judgement 

Date Delivered: 04 October 2000  

4. Parties Involved  

Appellants:  

Government of the Republic of South Africa (National Government)  

Premier of the Western Cape (Provincial Government)  

Cape Metropolitan Council (Regional Government)  

Oostenberg Municipality (Local Government)

Respondents: Irene Grootboom and 899 other adults and children were rendered homeless after eviction from  private land. 

5. Facts of the Case  

The individuals involved in this case had been living in extremely poor conditions and, in  desperation, relocated to privately owned land without permission. Following their eviction, they  were left without shelter. Their problem stemmed from the unbearable circumstances they  endured while waiting often for years for access to government-subsidized housing. Despite their  situation, they remain entitled to constitutional protections, which the court was called upon to  assess. Their homelessness was a direct consequence of being removed from informal dwellings  erected on land designated for future low-cost housing development1.  

The respondents approached the Cape of Good Hope High Court seeking an order compelling the  government to provide them with basic shelter or housing until they could access permanent  accommodation. The court granted partial relief, directing that the children and their parents be  provided with shelter. It suggested that, at a minimum, this should include tents, portable toilets,and a consistent water supply. The appellants representing national, provincial, and local  government contested the validity of this order2.  

Mrs Grootboom, along with most of the other respondents, had been residing in an informal  settlement known as Wallacedene. The conditions under which most of the residents of this area  lived were lamentable. One in four households in the township had no source of income at all,  while over two-thirds of the population survived on less than R500 per month. About half of the  population were children and all lived in shacks. They had no water, sewage removal services  and only 5% of the shacks had electricity. The area was partly waterlogged and lies dangerously  close to a main throughfare. Mrs Grootboom shared a modest shack of approximately twenty square meters with both her own family and her sister’s family3. 

Many respondents had applied for low-cost housing from the municipality and had been waiting  for a period of seven years. Despite several enquiries from the municipality no clear answer was  given to them. Clearly this was going to be an extraordinarily long wait. Because of staying in an intolerable condition for indefinite period, the respondents began to move out of this area at the  end of September 1998. They put up their shacks and shelters on unused private land that had  been designated for future low-cost housing development4. 

They did not have the consent of the owner, and the owner obtained an order against them in the  magistrates’ court to eject them. The occupants served the order, but they did not vacate land  until the date by which they had been ordered to vacate. As a result of negotiations, an order was  issued on 19 May 1999 requiring the occupants to leave the land and giving the sheriff the  authority to evict them and to dismantle and remove any structures they had left behind5. The  validity of eviction has never been challenged and was accepted as correct. The respondents’ homes were bulldozed and burnt down, and their possessions were destroyed. Many of the  residents who were not there could not even take their personal belongings6.  

6. Issues Raised  

• Whether the state had fulfilled its constitutional obligation imposed by section 26(2) to  take reasonable measures to provide access to adequate housing.  
• Whether section 28(1)(c) of the Constitution imposed an immediate obligation on the  state to provide shelter to children and, by implication their parents.  
• Whether the High Court was correct in ordering the state to provide temporary shelter for  the victims.  

7. Argument of the Parties  

Appellants (State):  

“In short, the appellants are faced with a massive shortage of available housing and extremely  constrained budget. In terms of the pressing demands and scarce resources, the appellants had  implemented a housing programme to maximise available resources to redress the housing  shortage”7.  

They claimed that section 28(1)(c) did not impose an immediate obligation on the state to  provide shelter to all children and their parents. They further claimed that children could become  steppingstones to housing for their parents instead of being valued for who they are.  

Respondents:  

The written argument filed on behalf of the amici sought to broaden the issues by contending that  all the respondents, including those of the adult respondents without children, were entitled to  shelter by reason of the minor core obligation incurred by the state in terms of section 26 of the  Constitution8.  

It was further contended on behalf of the amici that the children’s right to shelter had been  included in section 28(1)(c) to place the right of children to this minor core beyond doubt9.  

Relevant Statutes:  

Constitution of the Republic of South Africa,1996.  

Housing Act 107 of 1997.  

Case Laws:  

Soobramoney v Minister of Health, KwaZulu-Natal 1998 (1) SA 765 (CC); 1997 (12) BCLR  1696 (CC)  

S v Makwanyane and Another 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC)  

8. Judgement  

Court decision:  

The court emphasized that the state incurs an obligation to provide shelter for those children, for  example, who are removed from their families. It further emphasized that section 28(1)(c) does  not create any primary obligation to provide shelter on demand to parents and their children if  children are being cared for by their parents or families10. 

The court held that section 26 does oblige the state to devise and implement a coordinated  programme designed to meet its section 26 obligations. The programme that was adopted and was  in force in the Cape Metro at the time fell short of the obligations imposed upon the state by  section 26(2) in that it failed to provide any form of relief to those desperately in need of  housing11.  

The court held that 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 devise, fund, implement and supervise measures to provide relief to those in  desperate need12.  

Appeal:  

The appeal was allowed in part.  

Orders:  

The order of the Cape of Good Hope High Court was set aside, and the following was substituted  for it:  

It is declared that:  

1. a) Section 26(2) of the Constitution requires the state to devise and implement within its  available resources a comprehensive and coordinated programme progressively to realise  the right of access to adequate housing.  
2. b) The programme must include reasonable measures such as, but not limited to, those  contemplated in the Accelerated Managed Land Settlement Programme, to provide relief  for people who have no access to land, no roof over their heads, and who are living in  intolerable conditions or crisis situations.  
3. c) As at the date of the launch of this application, the state housing programme in the area of  the Cape Metropolitan Council fell short of compliance with the requirements in  paragraph (b), in that it failed to make reasonable provision within its available resources  for people in the Cape Metropolitan area with no access to land, no roof over their heads,  and who were living in intolerable conditions or crisis situations.  

        9. Legal Reasoning  

Court’s reasoning behind its decision:  

The court held that the right contained in section 26(1) is a right of access to adequate housing.  For a person to have access to adequate housing all these conditions need to be met, there must  be land, there must be services, there must be a dwelling13. Access to land for the purpose of  housing is therefore included in the right of access to adequate housing in section 26. The state  must create conditions for access to adequate housing for people at all economic levels of our  society. State policy dealing with housing must therefore take account of different economic  levels in our society14.  

Reasonableness must also be understood in the context of the Bill of Rights as a whole. The right  to access adequate housing is entrenched because we value human beings and want to ensure that  they are afforded to their basic human needs. A society must seek to ensure that the necessities of  life are provided to all if it is to be a society based on human dignity, freedom, and equality. To  

be reasonable, measures cannot leave out of account the degree and extent of the denial of the  right they endeavor to realise. Those whose needs are the most urgent and whose ability to enjoy  all rights therefore are most in peril, must not be ignored by the measures aimed at achieving  realization of the right15.  

Legal Principles:  

The court adopted reasonableness test in assessing whether the state’s housing programme has  met its constitutional obligations.  

The court affirmed that socio-economic rights are not immediately enforceable in full but must  be progressively realized.  

The court confirmed that socio-economic rights are enforceable under the South African  Constitution.  

Precedents cited:  

Ex Parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of  the Republic of South Africa, 1996 (4) SA 744 (CC); 1996 (10) BCLR 1253 (CC)  

Soobramoney v Minister of Health, KwaZulu-Natal 1998 (1) SA 765 (CC); 1997 (12) BCLR  1696 (CC)  

Ex Parte Western Cape Provincial Government: In re DVB Behuising (Pty) Ltd v Northwest  

Provincial Government 2001 (1) SA 500 (CC); 2000 (4) BCLR 347 (CC) International  Law References:  

International Covenant on Economic, Social and Cultural Rights (ICESR)  General Comments of UN Committee on Economic, Social and Cultural Rights 

      10. Conclusion 

The Grootboom case stand as a landmark in the South African constitutional jurisprudence,  particularly in socio-economic rights. It is affirmed that the right to access adequate housing  under section 26 of the Constitution imposes a positive duty on the state to take reasonable  legislative and policy measures, within available resources, to progressively realise this right.  The judgement distinguished between section 26 and section 28(1)(1) by affirming that although  children possess a constitutional right to shelter, this entitlement does not automatically apply to  parents except in situations where they are no longer in the care of their families. The court’s  insistence on reasonableness test for the determination of the state’s compliance with socio economic rights has become a cornerstone of constitutional analysis in similar cases. 

This case shows how the South African legal system has transformed from the apartheid regime.  It demonstrates how courts can hold the state accountable without going beyond the separation of  powers, by requiring reasonable and inclusive policy design, rather than specifying certain  outcomes. 

Reference(S):

1 2000 11 BCLR 1169 (CC); 2001 1 SA 46 (CC) para-3.

2 2000 11 BCLR 1169 (CC); 2001 1 SA 46 (CC) para-4. 

3Ibid para-7. 

4Ibid Para-8. 

5Ibid Para-9.

6 2000 11 BCLR 1169 (CC); 2001 1 SA 46 (CC) Ibid Para-10. 

7 para-14. 

8Ibid para-18.

9 2000 11 BCLR 1169 (CC); 2001 1 SA 46 (CC) para-18. 

10 Ibid para-77. 

11 Ibid para-95.

12 2000 11 BCLR 1169 (CC); 2001 1 SA 46 (CC) para-96.

13 2000 11 BCLR 1169 (CC); 2001 1 SA 46 (CC) Ibid para-35. 

14 Ibid para-35. 

15 Ibid para-44.