Authored By: Mahlohonolo
Boston City Campus
1. Case Citation and Basic Information
- Case: Government of the Republic of South Africa and Others v Grootboom and Others [2000] ZACC 19; 2001 (1) SA 46 (CC); 2000 (11) BCLR 1169 (CC).
- Court: Constitutional Court of South Africa
- Case number: CCT 11/00
- Heard: 11 May 2000
- Decided: 4 October 2000
- Judgment: Yacoob J
- Area of law: Constitutional law; socio-economic rights; right of access to adequate housing.
2. Introduction
Government of the Republic of South Africa and Others v Grootboom and Others is one of the most important decisions of the Constitutional Court of South Africa on the enforcement of socio-economic rights. Section 26 of the Constitution of the Republic of South Africa, 1996, gives everyone the right of access to adequate housing, and obliges the State to take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of that right.1
The case posed a difficult problem for the Constitutional Court: how can a court enforce a socio-economic right when the Constitution provides for it, but its implementation is constrained by the resources and competing priorities of government? In answering that question, the Court developed what is now known as the reasonableness approach to the interpretation of section 26. The question was not whether the respondents had an individual right to a particular house, but whether the State had adopted and implemented a reasonable housing programme.2
The significance of Grootboom therefore lies not only in the field of housing. The Court held that socio-economic rights are judicially enforceable and that government programmes designed to meet them must satisfy certain constitutional requirements.3 In doing so, the Court also sought to protect the institutional role of the legislature and the executive in allocating public resources.
The controversy surrounding the case arises from the fact that, although the Court acknowledged a judicially enforceable constitutional right, it did not define a minimum level of housing that the State must ensure for everyone. This article summarises the case and then considers that controversy in its critical analysis.
3. Facts of the Case
The respondents were a group of adults and children living in Wallacedene, Western Cape.4 Their living conditions were inadequate and they had been waiting for subsidised housing. Because they could not obtain adequate accommodation, they occupied private property. They built some shelters but were evicted through legal proceedings.5 This left them without adequate shelter.
The respondents approached the Cape Provincial Division of the High Court, seeking relief under sections 26 and 28 of the Constitution.6 They claimed that the State had violated its constitutional obligations regarding housing and that the children were entitled to basic shelter by virtue of section 28(1)(c).
The High Court ordered the State to provide basic shelter to the children and their parents. An appeal was then brought to the Constitutional Court.7
The Constitutional Court therefore had to decide not only whether the respondents were suffering severe deprivation, which could not be disputed, but also whether the Constitution placed an obligation on the State to do something about their situation.
4. Legal Issues
The primary constitutional questions before the Constitutional Court were as follows:
- Whether the State had fulfilled its positive obligations under section 26(2) by taking reasonable legislative and other measures, within available resources, aimed at progressively realising access to adequate housing.
- Whether the State’s housing programme was reasonable even though it made no provision for people who had no access to land, had no roof over their heads and lived in intolerable conditions.
- Whether section 28(1)(c) placed an additional duty on the State to provide shelter for children.
- What constitutional standard should apply when courts review government action taken to realise socio-economic rights.8
5. Arguments Presented
5.1 Respondents’ Arguments
The respondents maintained that the State’s housing programme did not meet the requirements of section 26 because it did not cater for people experiencing severe housing deprivation.9 They argued that a programme concerned mainly with long-term implementation could not be constitutionally adequate, since it left homeless people without assistance.
The respondents also relied on section 28(1)(c), which provides that every child has a right to basic nutrition, shelter, basic health care services and social services.10 They argued that this section obliged the State to provide shelter for the children in question.
5.2 Appellants’ Arguments
The government submitted that section 26 does not confer a direct individual right to housing.11 Section 26(2) only requires the State to take reasonable measures, within its available resources, towards the progressive realisation of access to adequate housing.12
The government added that housing is a difficult question of resource allocation and planning, better left to the legislative and executive branches than to the judiciary. The courts, it argued, should refrain from substituting their own housing policy for the one formulated by government.
In relation to section 28(1)(c), the government contended that the provision does not impose an independent and general obligation on the State to shelter children directly where parents or other caregivers are responsible for providing for them.
6. Court’s Reasoning and Analysis
The Court began by rejecting the notion that socio-economic rights are mere aspirations.13 The issue was not whether these rights are judicially enforceable, but how they are to be enforced in a constitutional context where government resources are constrained.
Section 26 must be read as a whole.14 Section 26(1) states the right of access to adequate housing, while section 26(2) places a positive duty on the State to take reasonable legislative and other measures, within available resources, towards progressive realisation. The Court said that this requirement obliges the State to formulate a workable programme, not merely to recognise that the right exists.
Reasonableness was the basic requirement.15 The Court held that it is for the legislature and the executive to determine the specific measures needed to realise the goals of section 26. Courts are not to decide whether another measure would have been more appropriate or whether the State’s resources should have been allocated differently. The Court’s task is to decide whether the measures the State has taken are reasonable.
This did not, however, excuse inaction by the State. The Court held that legislation alone was inadequate. Policies and programmes were required, and those programmes had to be reasonable in both design and implementation.16
The Court identified several features of a reasonable programme. It must be coherent, comprehensive, balanced and flexible. It must take into account the social, economic and historical conditions in which housing deprivation arises, as well as the capacity of the institutions implementing it. It must also meet the short-, medium- and long-term needs of the population and make provision for housing crises.17 Importantly, a programme could not be regarded as reasonable if it excluded a significant part of the population.
One of the most important parts of the Court’s reasoning was its clear rejection of a purely statistical reading of progressive realisation. A programme may increase the number of people who receive housing and still fall short of the Constitution if it ignores the most vulnerable people, who urgently need assistance.18 The Court stressed that people whose needs are most urgent, and who cannot enjoy their rights because they lack housing, cannot simply be excluded from the programme.
This reasoning links the right to adequate housing with the constitutional values of human dignity, equality and freedom.19 Housing is not to be treated merely as a commodity. The Court recognised that serious housing problems affect a person’s ability to live with dignity and to exercise other constitutional rights. The reasonableness of the measures must therefore be assessed by the consequences of the State’s policy for human rights.
The Court then considered whether it should determine the minimum core of the right to adequate housing.20 It decided not to do so. The Court observed that housing needs are diverse: some people need land, others need both land and housing, and some need financial assistance. Without sufficient information, the Court could not determine the minimum core in this case. It did, however, leave open the possibility that the minimum core may be relevant in a future case.
Finally, the Court concluded that the State’s programme violated the Constitution because it made no reasonable provision for people who lacked access to land, had no roof over their heads and were living in very difficult conditions.
The Court also considered section 28(1)(c) of the Constitution. It declined to follow the High Court’s interpretation of that provision, which would have meant that the State was obliged to provide shelter to children in these circumstances.21 Not all of the respondents’ constitutional arguments therefore succeeded.
7. Judgment and Ratio Decidendi
The appeal was partly upheld. The Constitutional Court set aside the High Court’s order and made a declaratory order in its place.22
The Court held that section 26(2) of the Constitution requires the State to devise and implement, within its available means, a comprehensive and coordinated programme to realise progressively the right of access to adequate housing.23 That programme must include reasonable measures to assist people who lack the means to secure housing for themselves and are left without land and a roof over their heads, living in crisis conditions.24 The Court further declared that the housing programme implemented in the Cape Metropolitan Council area did not comply with this constitutional obligation.25
The ratio decidendi therefore does not establish that everyone who lacks adequate housing is immediately entitled to a specific housing unit. It establishes that the State has a constitutional obligation to adopt and implement measures that progressively realise the right of access to adequate housing, and that those measures must be reasonably directed at helping people facing urgent housing deprivation.
The order is important because it shows what judicial enforcement of socio-economic rights looks like. The Court did not formulate an alternative housing programme, and it did not order the government to provide each respondent with a house. It found only that the State’s programme was deficient when measured against constitutional requirements.
8. Critical Analysis
The judgment’s main strength is that it gave socio-economic rights legal force without adopting a model of adjudication that would have made the courts the primary policy-makers in the field of public policy. In this way, the Court was institutionally careful but not passive. It respected the legislative and executive allocation of resources while making clear that those choices remain subject to the requirements of the Constitution.
Paragraph 44 is especially convincing in its treatment of disadvantaged people. Even a programme that succeeds in aggregate terms may fail the people whose situation is most desperate. The Government therefore cannot rely on housing-delivery statistics to conceal areas of extreme deprivation.
The reasonableness approach has, however, attracted considerable criticism from academics. According to David Bilchitz, it may fail to give socio-economic rights sufficiently determinate content, may divert judicial attention from pressing interests relating to deprivation, and may leave the foundation of judicial action insufficiently principled.26
This criticism highlights a fundamental flaw in Grootboom. Although the Court recognised the right of access to adequate housing, it focused mainly on evaluating the reasonableness of the programme rather than on determining what level of protection the right requires.
For this reason, the Court’s refusal to establish a minimum core is open to criticism. A minimum core approach could have provided a judicially enforceable floor below which government action could not fall, especially where people faced threats to their basic survival needs. Bilchitz’s work supports a more robust interpretation of socio-economic rights, because reasonableness alone is not enough.
There are, nevertheless, legitimate reasons for the Court’s prudence. Housing needs vary from person to person and are resource-intensive. People may need a combination of land, shelter, infrastructure or financial help. A minimum core formula could be too simplistic and could impose obligations without proper regard to the availability of the necessary resources and institutions. In this context, the Court had reason to refuse to create a universal housing entitlement without sufficient evidence of the facts before it.
Another criticism concerns judicial deference. The Court stated that “the courts will not inquire whether other methods were preferable or more cost-effective or whether any funds could have been used to greater advantage.”27 This safeguards the principle of separation of powers. Yet it raises the question of whether courts can meaningfully scrutinise alternative budget priorities and still protect the right in question.
The better defence of Grootboom is that constitutional adjudication does not require a choice between judicial deference and judicial control of public policy. Grootboom represents a middle way. Courts may insist on reasonable, coherent, inclusive and adequately implemented programmes without dictating how every administrative arrangement is to be made. The Government retains its policy discretion, but that discretion cannot be limitless.
Consequently, Grootboom should be seen as a case about constitutional accountability, not judicial allocation of housing. Its lasting principle is that the Government cannot fulfil its constitutional duties merely by adopting appropriate policies on paper. Those policies must work in such a way that they address actual deprivation and do not deny services to those most in need. The weakness of Grootboom is that it does not define the floor of the right in question; its strength is that it creates a working mechanism for challenging the Government’s actions.
9. Conclusion
Government of the Republic of South Africa and Others v Grootboom and Others remains one of the landmark cases on socio-economic rights in South Africa. In confirming that section 26 creates an enforceable constitutional obligation, the Court acknowledged that the progressive realisation of socio-economic rights must take place within available resources.28
The Court developed a “reasonableness” test, under which State action must be coherent, comprehensive, balanced and flexible.29 Importantly, programmes must respond to the needs of people in crisis and must not neglect those who are most deprived of socio-economic rights.
It would be wrong to conclude that Grootboom was a complete victory for the respondents. The Court ruled partly in favour of the State, allowing its appeal in part. Although it rejected the High Court’s interpretation of section 28(1)(c), it held the State housing programme to be constitutionally defective under section 26.30
Despite criticism of the Court’s failure to develop a minimum core and of its potentially deferential test, Grootboom still plays an important role in South Africa’s constitutional history. Through this case, socio-economic rights were transformed from abstract constitutional provisions into standards against which government action can be tested. That answers the question with which this article began: courts can enforce socio-economic rights under resource constraints, but only by holding the State to a standard of reasonable, inclusive and effective action.
Footnote(S):
1 Constitution of the Republic of South Africa, 1996 s 26(1)-(2).
2 Government of the Republic of the South Africa and Others v Grootboom and Others [2000] ZACC 19; 2001 (1) SA 46 paras 41-44 (‘Grootboom’).
3 Grootboom (n 2) paras 20-24, 41-44.
4 Grootboom (n 2) paras 4-7.
5 Grootboom (n 2) paras 5-7.
6 Grootboom (n 2) paras 10-14.
7 Grootboom (n 2) paras 15-18.
8 Grootboom (n 2) paras 20-24, 41.
9 Grootboom (n 2) paras 10-14, 20-24.
10 Grootboom (n 2) paras 10-14.
11 Grootboom (n 2) paras 20-24, 41.
12 Constitution of the Republic of South Africa 1996 s 26(2); Grootboom (n 2) paras 38-41.
13 Grootboom (n 2) para 20-24.
14 Grootboom (n 2) paras 21-24.
15 Grootboom (n 2) para 41.
16 Grootboom (n 2) para 42.
17 Grootboom (n 2) para 43.
18 Grootboom (n 2) para 44.
19 Grootboom (n 2) para 44, 83).
20 Grootboom (n 2) paras 33.
21 Grootboom (n 2) paras 74-83.
22 Grootboom (n 2) paras 99.
23 Grootboom (n 2) paras 99(2)(a).
24 Grootboom (n 2) paras 52-69, 99(2)(b)-(c).
25 Grootboom (n 2) paras 99(2)(b)-(c).
26 David Bilchitz, Poverty and Fundamental Rights: The Justification and Enforcement of Socio-economic Rights (OUP 2007) 135-177.
27 Grootboom (n 2) paras 41.
28 Grootboom (n 2) paras 20-24, 41.
29 Grootboom (n 2) paras 41-44.
30 Grootboom (n 2) paras 82-83, 99.
REFERENCE LIST
Cases
Government of the Republic of South Africa and Others v Grootboom and Others [2000] ZACC 19; 2001 (1) SA 46 (CC); 2000 (11) BCLR 1169 (CC).
Legislation
Constitution of the Republic of South Africa, 1996.
Secondary Sources
Bilchitz D, Poverty and Fundamental Rights: The Justification and Enforcement of Socio-economic Rights (OUP 2007).
