Authored By: Kananelo Dimpho Mphuti
Case Citation and Basic Information
Case Name: Government of the Republic of South Africa and Others v Grootboom and Others
Citation: 2001 (1) SA 46 (CC); 2000 (11) BCLR 1169 (CC)
Court: Constitutional Court of South Africa
Date of Judgement: 04 October 2000
Judges: Chaskalson P, Langa DP, Goldstone J, Kriegler J, Madala J, Mokgoro J, Ngcobo J, O’Regan J, Sachs J, Yacoob J.
Judge Delivering the Judgement: Justice Yacoob.
Introduction
The Government of the Republic of South Africa and Others v Grootboom and Others is one of the most notable constitutional judgements in South African law. Grootboom covers the constitutional right of access to adequate housing under section 26 of the Constitution of the Republic of South Africa, 1996.[1] The Constitutional Court stated that it is not compulsory for the government to give every person in need for housing immediately however for this constitutional right to progressively realise, it must adopt and implement reasonable measures. The judgement recognized the reasonableness test in which it now rules all socio-economic rights litigation both within South Africa and internationally.[2]
III. Facts of the Case
Some 900 people, which included children and adults living in Wallacedene an informal settlement in Western Cape, these occupiers made structures made from plastic sheets and other salvaged materials. The village didn’t have basic services such as adequate housing, sanitation, electricity, clean running water and refuse removal. Life was hard especially for children, disabled people and elderly because of overcrowded and severe weather conditions. Most residents applied to low-cost formal housing, but they have been on the waiting list years without being helped.
Because of the delays and living conditions they occupied privately owned land that was set aside for low-cost housing development. This occupation was unlawful, so an eviction order was obtained by the landowner against the occupants under the Prevention of Illegal Eviction from Unlawful Occupation of Land Act 19 of 1998.[3] The homes of the occupiers were destroyed this resulted in most families becoming homeless and they later settled on a sports field without basic necessities and lived in plastic structure. The community, led by Ms Irene Grootboom, approached the Cape High Court on the basis of it’s constitutional right to have access to adequate housing arguing that the government failed to fulfil.
The government was in violation of section 26 and section 28(1)(c) of the constitution, it was ordered to provide temporarily shelter for the families by the High Court.[4] The government was not pleased with the High Court’s decision so decided to appeal straight to the Constitutional Court.
Legal Issues
The legal issues before the Constitutional Court were:
Whether section 26 of the constitution forces the government duty to ensure that homeless people are given houses or shelters immediately.[5]
Section 26(2) need the state to take reasonable legislative and other measures, within available resources and to achieve progressive realisation of the right. Whether state’s housing programme abide by this section.[6]
Whether parents or caregivers could rely on section 28(1)(c) of the Constitution, which guarantees every child the right to basic shelter.[7]
Whether the housing policy will be made unconstitutional because of the government’s failure to give temporary shelter for homeless people.
Arguments Presented
5.1 Petitioner / Appellant’s Arguments
The applicants argued that the government failed to fulfil it’s constitutional obligation by not giving homeless people shelter. The government acknowledged that section 26 forced constitutional obligations but argued that these obligations were certified by accessibility of resources and requirement of progressive realisation. Most important consideration has been given to long-term housing development than persons facing homelessness.
In respect to section 28 of the Constitution, the government argued that it is the parents and family’s responsibility to provide shelter. The government is responsible only when the child has no parental or family care.[8]
5.2 Respondent’s Argument
The government argued that there was restricted financial and administrative resources but acknowledged that section 26 forced constitutional obligations. They contended that if it wasn’t for the existence of government housing programme, no successful measures had been taken to help persons facing homelessness. They submitted that if the state fails to help people living in unbearable conditions, the constitutional right of adequate housing will be senseless. They argued that the government housing polices pay no attention to persons who urgently needs help immediately but focuses on long-term housing developments.
Section 28(1)(c) states that every child has constitutional right to basic shelter, as they can’t provide shelter for themselves and can’t separate them from their caregivers and families, their parents must be housed.[9] Contradicting emergency shelter threaten the values of dignity, equality and freedom and these important constitutional principles must be explained together with constitutional rights.
VI.Court’s Reasoning and Analysis
Justice Yacoob, writing for a unanimous Constitutional Court, pointed out that socio-economic rights under the Constitution are justiciable and enforceable. The Court turn down the argument that section 26 generated immediate right to housing upon request. However, section 26(2) demands the State to take reasonable legislative and other measures, within available resources, to progressively realise the right of access to adequate housing. The reasonableness test was developed by the Court which stated that government programmes must be comprehensive, coherent, balanced and help in need of long-term housing shortage and immediate shelter.[10]
The Court made these findings, the government housing programme was unsuccessful because the urgent need of housing for homeless persons, eviction and other emergency issues were not discussed. For a housing programme to be considered as constitutionally reasonable it must include persons who are vulnerable. The court stated that the children’s right under section 28 of the Constitution held that the primary duty for providing shelter is upon parents and caregivers, if they can’t succeed in doing so it’s the State’s responsibility to help through reasonable measures.
VII. Judgement and Ratio Decidendi
Judgement
The appeal was allowed by the Constitutional Court in part however it considerably affirmed the constitutional obligations of the State. Despite the fact that the measures in this case has been statistically successful, the failure of the state housing programme give temporary shelter to those in need, with no roof over their heads, or living in risky conditions, showed that the programme was not reasonable and failed to fulfil the state’s obligation to attain the progressive realisation of these rights.[11]
The Court gave out a declaratory order needed the state to device and implement a programme that had measures to help homeless people who aren’t accommodated by the state.[12]
Ratio Decidendi
The Court’s decision was that the state is found to contravene section 26(2) because it’s housing programme only cater for the long-term housing delivery but fails to use available resources for persons who desperately need shelter immediately. While section 28(1) request that child in need be given shelter with their parents or caregivers. The State’s programmes that fails with helping the society with basic needs are constitutionally unreasonable.
VIII. Critical Analysis
8.1 Significance of the Decision
The Grootboom judgement made socio-economic rights enforceable rather than aspirational policy objectives. The Constitutional Court established the reasonableness test which checks if the government measures comply with the constitutional obligations regarding housing, healthcare, social security and other socio-economic rights. This test has help in cases such as the Minister of Health V Treatment Action Campaign (No2) where the same reasoning was implemented by the court relating to access to healthcare services.[13] This case increased South Africa’s status for protection socio-economic rights.
8.2 Implications and Impact
The judgement had impact on housing policies by requiring emergency housing programs. This case is used in mostly in constitutional courts in cases that include socio-economic rights. The courts made government departments well informed of socio-economic policies that there can be a review when they failed to meet constitutional standards of reasonableness. Not only on housing but the Grootboom case had an effect on the clarification of other socio-economic rights by verifying that constitutional obligation need practical implementation rather than symbolic recognition.
8.3 Critical Evaluation
The Grootboom case is considered a landmark victory for constitutional rights. The strength of the resolution lies in it’s reasonableness standard, this gives the courts permission to access government action without assuming duty for policy-making. Many commentators argue that the remedy was too weak. This case accepted the importance of constitutional principles however some misfortunate societies in South Africa are still faced with homelessness and inadequate access to housing. This judgement remains one of the biggest when interpreting socio-economic rights within constitutional democracies.
Conclusion
The Constitutional Court’s decision in Government of the Republic of South Africa and Others v Grootboom and Others is a defining judgement in South African constitutional law which confirms that socio-economic rights are judicially enforceable and government programmes must be reasonable available to help those in need in case of emergencies at all times, and that section 26 is not bypassed by the right to shelter for children. We look at the relationship between section 26 and 28 of the constitution, the parents and caregivers have a primary duty to ensure that children have shelter however for families failing to fulfil that duty the State steps in. The children’s rights and socio-economic rights remains protected.
When courts are interpreting the State’s obligation under the Bill of Rights they are guided by this case. This case reminds one that constitutional victory without implementation is incomplete justice and the government is required to take reasonable and effective measures to protect human dignity, social justice and equality.
Reference(S):
Cases
Government of the Republic of South Africa and Others v Grootboom and Others 2001 (1) SA 46 (CC); 2000 (11) BCLR 1169 (CC).
Grootboom v Oostenberg Municipality and Others 2000 (3) BCLR 227 (C).
Minister of Health and Others v Treatment Action Campaign and Others (No 2) 2002 (5) SA 721 (CC).
Legislation
Constitutions of the Republic of South Africa, 1996.
Prevention of Illegal Eviction from Unlawful Occupation of Land Act 19 of 1998
Secondary Sources
Currie l and De Waal J, The Bill of Rights Handbook (6th edition, Juta 2013)
[1] Constitution of the Republic of South Africa, 1996, s 26.
[2] Government of the Republic of South Africa and Others v Grootboom and Others 2001 (1) SA 46 (CC).
[3] Prevention of Illegal Eviction from Unlawful Occupation of Land Act 19 of 1998.
[4] Grootboom v Oostenberg Municipality and Others 2000 (3) BCLR 227 (C)
[5] Constitution of the Republic of South Africa, 1996, s 26.
[6] Constitution of the Republic of South Africa, 1996, s 26(2).
[7] Constitution of the Republic of South Africa, 1996, s 28(1)(c).
[8] Constitution of the Republic of South Africa, 1996, s 28(1)(b).
[9] Constitution of Republic of South Africa, 1996, s 28(1)(c).
[10] Government of the Republic of South Africa and Others v Grootboom and Others 2001 (1) SA 46 (CC) paras 39-69.
[11] LAH3701, Study Guide, page 85.
[12] LAH3701, Study Guide, page 85.
[13] Minister of Health V Treatment Action Campaign (No2) 2002 (5) SA 721 (CC).
