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Occupiers of 51 Olivia Road & Others v City of Johannesburg & Others Case CCT 24/07 [2008]

Facts

This case concerned an appeal by more than 400 occupiers of two buildings in the inner city of Johannesburg (the occupiers) against a decision of the Supreme Court of Appeal (SCA). The occupiers challenged the correctness of the decision and order of the SCA authorising their eviction, by the City of Johannesburg (the City), on the grounds that the buildings they occupied were unsafe and unhealthy. Central to the case are the provisions of the National Building Regulations and Standard Act 103 of 1977 (NBRA), empowering local officials to issue a notice to occupiers to vacate premises when they deem it necessary for for health and safety reasons (section 12(4)(b)). And failure to comply with such notice is a criminal offence for which the offender can be fined up to R100 for each day of non-complaince (section 12(6)).

The Constitutional Court (CC) delivered its judgment on 19 February 2008. The judgment of the CC was delivered against the backdrop of the ‘engagement order’ issued by the Court on 30 August 2007, after hearing the case.

The engagement order

The CC asked the two parties to engage with each other - have a face-to-face interaction - with the view to finding a mutually beneficial solution to the dispute. The parties reached an agreement, which was endorsed by the CC on 5 November 2007. There were two aspects to the agreement:

  1. Interim measures to improve the conditions in the two buildings pending relocation to an alternative accommodation. This included the installation of chemical toilets, the cleaning and sanitation of the buildings, the delivery of refuse bags, and the installation of fire extinguishers. And the alternative accommodation would consist of, at least, security against eviction, access to sanitation, and access to electricity for heating, lighting and cooking.
  2. A permanent housing plan: The occupiers would occupy the alternative accommodation pending the provision of permanent housing solutions that will be developed in consultation with them.
    As stated in the CC’s judgment, the parties are required to continue with the engagement process and can approach the courts if it becomes necessary.

The judgment

The CC held that it is essential for a municipality to engage meaningfully with the affected people before evicting them from their homes if the eviction would render them homeless. According to the CC, this duty is in line with the constitutional obligations of municipalities to provide services to communities in a sustainable manner (section 152(1)(b)), promote social and economic development (section 152(1)(c)), encourage the involvement of communities and community organisations in matters of local government, and respect, protect, promote and fulfil the rights in the Bill of Rights (section 7(2)).

The CC further held that the duty of the City to engage with people who may be rendered homeless after eviction is also grounded in section 26(2) of the Constitution, which requires the City to act in a reasonable manner within its available resources. According to the CC, reasonable conduct includes the reasonableness of every step taken in the provision of adequate housing. The CC held that every homeless person is in need of housing and this means that every step taken in relation to a potentially homeless person must also be reasonable if it is to comply with section 26(2).

The CC also held that the constitutional value of openness applies to the engagement process. That in any eviction proceedings at the instance of a municipality, the provision of a complete and accurate account of the process of engagement including at least the reasonable efforts of the municipality within that process would ordinarily be essential. That absence of any engagement or the unreasonable response of a municipality in the engagement process would ordinarily be a weighty consideration against the granting of an eviction order. Meaningful engagement, the CC held, has to be tailored to the particular circumstances of each situation – “the larger the number of people potentially to be affected by eviction, the greater the need for structured, consistent and careful engagement”.

The CC found that, in this case, it was common cause that there had been no meaningful engagement between the occupiers and the City. For this reason, the CC held that the SCA should not have granted the eviction order. The CC was, however, satisfied that the engagement agreement, which it approved on 5 November 2007, showed that there had been meaningful engagement between the occupiers and the City, and the measures agreed upon showed that the City’s response to the engagement process was reasonable.

The second issue that the CC decided on was whether the City was obliged to take into account the availability of suitable alternative accommodation or land for the occupiers prior to issuing notices to vacate. The CC observed that though the SCA had concluded that the right to act under section 12(4)(b) and the right to have access to adequate housing are not reciprocal and that the former is neither dependant nor conditional on the latter, this did not mean it was neither appropriate nor necessary for a decision-maker to consider at all the availability of suitable accommodation or land when making a section 12(4)(b) decision. That any suggestion that the availability of alternative accommodation need not be considered carries the implication that whether a person or family is rendered homeless after an eviction consequent upon a section 12(4)(b) decision is irrelevant to the decision itself. It held that this reasoning denotes a false premise that there is no relationship between section 12(4)(b) and 26(2) even if the person is rendered homeless by the decision.

Accordingly, the CC found that the SCA was incorrect in its conclusion that the failure of the City to consider the availability of suitable accommodation or land for the occupiers in the process of making a section 12(4)(b) was not objectionable. It held that the City must take into account the possibility of the homelessness of any resident that results from a section 12(4)(b) eviction in the process of making the decision as to whether or not to proceed with the eviction.

The third issue the court dealt with in its judgement was the constitutionality of section 12(6) of the NBRA. The CC found the section to be at odds with 26(3) of the Constitution. Section 26(3) authorises any person to remain in their homes absent a court order obtained after considering all the relevant circumstances. If allowed to stand, the CC held, section 12(4)(b) would render section 26(3) weak, offering little protection if people could be compelled to leave their homes by the exertion of the pressure of the criminal sanction without a court order.

The CC, however, held that it would not be just and equitable to strike down section 12(6), as it is appropriate to encourage people to leave unsafe and unhealthy buildings in compliance with a court order for their eviction. A criminal sanction provided an additional incentive to leave unsafe and unhealthy buildings and reduces the need for forced eviction at the instance of the State. According to the CC, a reading-in order providing for the criminal sanction only after a court order for eviction has already been made would be appropriate.


President of the Republic of South Africa and Others v Modderklip Boerdery (Pty) Ltd and Others CCT 20/04

Housing - right to have access to housing; land - right to property; right to have access to courts - rule of law

Facts

A group of about 400 people had moved onto private land owned by Modderklip Boerdery (Pty) Ltd owing to the overcrowding and shortage of land in the nearby Daveyton and Chris Hani informal settlement. On 12 April 2001, the Johannesburg High Court ordered an eviction against them. The occupiers failed to vacate within the two months period given by the court. Meanwhile, their numbers continued to increase. At the time the matter was heard in the Transvaal Provincial Division (TPD), it was estimated that they were 40 000 occupiers on the land.

In the TPD, the landowner attempted to get state assistance for the execution of the eviction order. Eviction by that time was estimated to cost of about R2.2 million, as it would require the services of private contractors. The landowner was unwilling to spend this amount. The TPD ruled that the State was in breach of its obligation to the landowner and of its constitutional obligations to the unlawful occupiers' rights of access to adequate housing. As such, it ordered the State to devise a comprehensive plan that would end the occupation of the land.

The State appealed against this decision to the Supreme Court of Appeal (SCA). The SCA held that the state, by failing to provide land for the occupiers, infringed the rights of Modderklip as provided in s7(2), 9(1) and (2), and 25(1). The rights of occupiers to have access to adequate housing in s26(1) of the Constitution had also been infringed. The SCA ordered that the landowner was entitled to payment of damages by the Department of Agriculture and Land Affairs in respect of the occupied land, and directed that these damages be calculated in terms of section 12(1) of the Expropriation Act 63 of 1975. As for the occupiers, the SCA ordered that they were entitled to stay on the land until alternative land was made available to them.

The state appealed against the SCA decision to the Constitutional Court and made two key contentions: Firstly, that Modderklip's right to property and the occupiers' rights to have access to adequate housing had been breached. Secondly, that Modderklip was not entitled to the relief it claimed because it had neglected to apply for an urgent eviction order timeously (in other words, that Modderklip was to blame for the problem). They also raised the question of whether or not section 25(1) [the property clause] has the horizontal application (i.e. if it can be invoked to govern relations between private parties).

The Decision

  1. The Court did not find it necessary to make conclusions on any of the above contentions by made by the State.
  2. It found that it was unreasonable for a private entity such as Modderklip to be forced to bare the burden which is on the state of providing the occupiers with accommodation. Modderklip would have not met the stringent requirements for an urgent eviction order in terms of section 5 of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (1998). The Court found Modderklip's claim was based on the fact that it had been deprived the right of ownership of the land. Its conduct of trying to involve the state was "prudent and reasonable in the circumstances" and accordingly cannot be blamed.
  3. The Court found that, by failing to do anything to stop the occupation of land and assist in enforcing the eviction order, the State infringed Modderklip's right to an effective remedy as required by the rule of law and entrenched in section 34 of the Constitution.
  4. The Court also found it unnecessary to decide whether or not a court can order the expropriation of property. It stated however that, given the circumstances of this case, the award of compensation made by the SCA was the most appropriate remedy. Accordingly, it held that should the state wish to expropriate the land on Modderklip's farm, the sum of compensation must be calculated in accordance with the Expropriation Act.

 

The Court set aside the order of the Supreme Court of Appeal and replaced it with an order declaring that

  1. By failing to provide an appropriate mechanism to give effect to the eviction order, the state violated the right of Modderklip Boerdery to access to courts (s34) read with the principle of the rule of law in section 1(c) of the Constitution.
  2. Modderklip is entitled to payment of compensation by the Department of Agriculture and Land Affairs in respect of the occupied land, and that the compensation must be calculated in terms of the Expropriation Act.
  3. The residents are entitled to occupy the land until alternative land is made available to them by the state or the provincial or local authority that the landowner.

PE Municipality v Various Occupiers Case CCT 53/03

This case was first heard as an eviction application in the South Eastern Cape Local Division of the High Court. The applicant in this matter was the Port Elizabeth Municipality in whose jurisdiction the alleged unlawful occupation took place.

Facts of the Case

This case was first heard as an eviction application in the South Eastern Cape Local Division of the High Court. The applicant in this matter was the Port Elizabeth Municipality in whose jurisdiction the alleged unlawful occupation took place.

The eviction application was sought against 68 people (including 23 children) who had occupied private, undeveloped land within the Municipality's jurisdiction. The application was based on section 6 of The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE), which states that 'an organ of State may institute proceedings for the eviction of an unlawful occupier within its area of jurisdiction'.

At the time of the application the respondents had been living on the land for periods ranging from two to eight years. Most of them had moved onto the land after being evicted from land that they had previously occupied. The respondents indicated their willingness to vacate the property, provided that they were given suitable alternative land to which they could move. They however rejected a proposal made by the Municipality that they move to a place called Walmer Township. They did so on the basis that amongst other negative considerations, no form of security of tenure had been provided and that they would subsequently be liable for further eviction if they relocated to the identified land.

The Municipality argued that while it was cognisant of its constitutional obligations to provide housing, it could not be seen to give the occupiers preferential treatment by providing them with alternate land. To do so, it was argued, would disrupt the existing housing programme currently in place, and would effectively amount to 'queue-jumping' by the occupiers. The High Court therefore granted the application for eviction on the basis that it saw no reason why the eviction order should not be granted. The respondents successfully appealed this order to the Supreme Court of Appeal (SCA).

The SCA in its judgment, held that the occupiers were not seeking preferential treatment. They were in fact not asking that housing be made available to them at the expense of other people on the housing waiting list, but only that alternate land be identified for their occupation, where they could enjoy a degree of security of tenure.

The Municipality appealed this decision to the Constitutional Court on the basis that it is not constitutionally bound to provide alternative accommodation or land when it seeks the eviction of unlawful occupiers.

The Decision of the Constitutional Court:

  1. The Court recognised the complexities involved in balancing the constitutional rights of landowners and unlawful occupiers. In the context of the history of unfair eviction procedures in the past, the Court held that in reaching a 'just and equitable decision' in eviction cases, the provisions of both section 26 of the Bill of Rights and the PIE Act must be interpreted within its constitutional framework and the rehabilitative and reformative purpose of these provisions.
  2. The need for dealing with homelessness in a sensitive and orderly manner was emphasised.
  3. It furthermore held that in eviction proceedings, municipalities must show equal accountability to occupiers and landowners. The Court held however that municipalities, unlike private landowners, have particular duties in terms of section 26 of the Constitution. These duties have a bearing on considerations of whether it is 'just and equitable' to make an eviction order in terms of section 6 of PIE.
  4. The 'relevant circumstances' to be taken into account include: 'the circumstances of the occupation of the land'; 'the period of unlawful occupation'; and 'the availability of suitable accommodation or land';
  5. The Court found however that the relevant circumstances identified in section 6 of PIE, is not an exhaustive list. It held that 'justice and equity' would take into account factors like the extent to which negotiations had taken place to reach an equitable solution. Given the special nature of the competing circumstances involved in section 6 applications, the Court held that 'it would not ordinarily be just and equitable to order eviction if proper discussions and or mediation at not been attempted.
  6. In this particular case, given the length of occupation of the land, the fact that no steps had been taken to address the problem before launching the application, and that the land was not needed for immediate use by either the landowner or the municipality, the Court found that it was not 'just and equitable' to evict the occupiers.
  7. The application of leave to appeal the SCA order therefore failed and the municipality was ordered to pay the costs of the respondents.

 


Khosa and Others v Minister of Social Development and Others; Mahlaule and Others v Minister of Social Development and Others (CCT 13/03 and 14/03)

Social assistance - right of everyone; Children's rights; Socio-economic rights - reasonableness; Equality - unfair discrimination.

Facts of the case

This case arose out of two cases instituted in the High Court in which the applicants, who were Mozambican citizens with permanent residence status in South Africa, challenged the provisions of the Social Assistance Act. This was to the extent that it reserved the right to social assistance to South African citizens. The applicants also consisted of children who, but for their citizenship status, would have qualified for the child-support grant. The challenge was based on section 27(1)(c) of the constitution, which guarantees to "everyone" the right to social assistance and section 9, which prohibits an unfair discrimination. In the High Court respondents did not file replies and the court made findings on the basis of the applications. In both cases the High Court found the provisions complained about to be unconstitutional and struck them down. In addition to this the court made orders that would not only ensure that the applicants were allowed access to the grants and even receive arrears, but would also allow persons in applicants' position access to the grants.

Decision of the Constitutional Court

  1. The court began with recognition that the applicants were indigent persons who found themselves in dire circumstances, which necessitated the expeditious disposition of the case. The court focused its attention not only on the applicants, but also on persons in a position similar to that of the applicants and for this reason it rejected a proposal of a settlement by the state, which would benefit the applicants. The court stated that the impact of the settlement would have been too limited and would not resolve the unconstitutionality of the impugned provisions and the impact that they would have on the broader groups of permanent residents who would qualify in all other aspects of social grants.
  2. The state argued that citizenship was criterion for social benefits in almost all developed countries, that the state has an obligation toward its own citizens first, yet the inclusion of non-citizens would constrain the resources of the state. It further contended that permanent residents had the option of applying for naturalisation after five years, which would accord them citizenship and automatic access to the social grants. The court rejected these arguments. It held that if the constitution properly interpreted provides that permanent residents need not be citizens to have access to social grants, the state could not deny that right merely on the ground of naturalisation, which was not even an automatic thing.
  3. The court outlined the position of permanent residents as not being different from that of citizens. These are persons who reside legally in the country and may have done do so for a considerable length of time and like citizens they have made the country their home. Though the court appreciated as legitimate concerns, the financial burdens that would accrue, it held that there was no clear evidence to show what the additional cost would be. But the court engaged in detail with the budgetary implications. It found that the government had projected an increase of the budget on social assistance, with or without the inclusion of persons in applicants' position. The court was convinced that the cost of including permanent residents in the system would be only a small proportion of the total cost. On the right to equality, the court found in favour of the applicants, holding that section 27(1) vests the right to social security in "everyone". It held that the applicants qualify as a vulnerable group whose human dignity would be affected by the exclusion and which the court was convinced outweighed financial considerations. The state had not proved that this was a justifiable limitation under section 36.

 


Daniels v Campbell NO and Others (CCT 40/03)

Equality - unfair discrimination - religion - culture - marital status; Legislative interpretation - meaning of "spouse"; Succession - muslim spouses.

This summary is taken from the Press Summary issued by the Constitutional Court after handing down judgment

The applicant, Mrs Daniels, was married to her now deceased husband according to Muslim rites in 1977. The marriage was not solemnised under the civil law by a marriage officer. When her husband died intestate in 1994, the low-income house in which they lived was transferred to the deceased estate. The applicant, who sold goods from the front of her house to supplement her income as a domestic worker, had contributed substantially towards the house, including its purchase price.

The respondents are the executors of the estate, and some interested family members. The applicant was told that she could not inherit from the estate because, her marriage not being recognised as valid in terms of the law, she did not qualify as a "surviving spouse" in terms of either the Maintenance of Surviving Spouses Act or the Intestate Succession Act. The Cape High Court held that "spouse" could only be applied to persons married according to South African law. The High Court found that this interpretation violated the applicant's rights to practise her religious and cultural beliefs, and ordered that words be "read-in" to the Intestate Succession Act and the Maintenance of Surviving Spouses Act to give her the relief she sought.

On appeal to the Constitutional Court, Sachs J held that the word "spouse" in its ordinary meaning includes parties to a Muslim marriage. Accordingly, it was not necessary to read-in words into the Acts. The constitutional values of equality, tolerance and respect for diversity point strongly in favour of giving "spouse" a broad and inclusive construction, especially when it corresponds with the ordinary meaning of the word. The value of non-sexism is foundational to our Constitution and requires a hard look at the reality of the lives that women have been compelled to lead by law and legally-backed social practices. The objective of the Acts was to ensure that widows would receive at least a child's share instead of their being precariously dependent on family benevolence. There seems to be no reason why the equitable principles underlying the statutes should not apply as tellingly in the case of Muslim widows as they do to widows whose marriages have been formally solemnised under the Marriage Act.

In a concurring judgment, Ngcobo J noted that old order legislation was previously construed in the context of a legal order that did not respect human dignity and equality and freedom of all people. Ngcobo J discussed previous cases that were decided during the old order that refused to recognize a marriage by Muslim rites. He held that the new constitutional order rejects the values upon which these decisions were based and affirms equal worth and equality of all South Africans. Ngcobo J held that the Constitution demands a change in the legal norms and the values of our society. This change is reflected in a number of statutes which now expressly recognize Muslim marriages for the purposes of the rights they vest in spouses. In his view, the word "spouse" in the statutes under consideration must be construed to reflect this change.

All the members of the Court, except for Moseneke and Madala JJ, concurred in the judgments of Sachs and Ngcobo JJ respectively.

Moseneke J held, with Madala J concurring, that the word "spouse" has a specific and settled meaning in our law, and must refer to a party married in accordance with the provisions of the Marriage Act. This precludes parties who have not complied with the formalities of that Act from being regarded as spouses in the context of other legislation. He found support for this reasoning in the cases of Coalition for Gay and Lesbian Equality and Satchwell, which, although decided during the constitutional era, give "spouse" a narrow meaning.

He held further that the exclusion of people married under Muslim rites from the protection of the Acts in question is clearly a remnant from the apartheid era, and unjustifiably discriminatory. He therefore found this to be unconstitutional, and suggests a remedy of reading appropriate words into the Acts.


Minister of Health and Others vs. Treatment Action Campaign and Others 2002 (5) SA 721 (CC), 2002 10 BCLR 1033

Children's rights - basic health care services; Health rights - access to health care; Socio-economic rights - minimum core obligations; Women's rights - reproductive health.

Facts

This case related to a challenge brought by the Treatment Action Campaign, Dr Haroon Saloojee and the Children's Rights Centre, to the government's policy on the prevention of mother-to-child transmission of HIV. As part of efforts aimed at combating the disease, the government devised a programme for the prevention of mother to child transmission of HIV at birth using the antiretroviral drug, nevirapine. According to the programme, use of Nevirapine was permissible at limited number of pilot sites, two per province, with the result that only about 10% of all births in the public sector could benefit from the policy. Doctors in the public sector outside the pilot sites were precluded from prescribing the drug for their patients.

The Constitutional Court considered two key issues on appeal by the government against the decision of the High Court. The first was whether the government was justified in refusing to make Nevirapine available to pregnant women living with HIV and who give birth in public health facilities outside the research sites where it is medically indicated. The second issue was whether the government was legally obliged to implement and set out clear time frames for a national programme to prevent mother to child transmission of HIV, including voluntary counselling and testing, antiretroviral therapy, and the option of using formula milk for feeding.

The Decision

  1. According to the Constitutional Court, the pertinent question in the case was whether the applicants (TAC and its allies) had shown that "the measures adopted by the government to provide access to health care services for HIV-positive mothers and their new born babies fall short of its obligations under the Constitution." (para 25)
  2. The Court approved its earlier decision in Grootboom that, at the very least, the state and all other entities and persons are enjoined to "desist from preventing or impairing the right of access to adequate housing". (para 46) This negative obligation was held equally applicable to the right of access to health care services, including reproductive health care. It was therefore held that the policy violated the negative obligation implicit in the right of access to health care services in so far as it confined the use of nevirapine to research and training sites.
  3. The Court affirmed its earlier opinion in Grootboom and refused to endorse the arguments of the amici curiae in the case that sections 26 or 27 imposed minimum core obligations on the government to ensure essential basic services to vulnerable individuals. According to the Court, the rights recognised under both sections 26 and 27 do not oblige the state "to go beyond available resources or to realise these rights immediately". (para 32) The formulation of these rights, it was held, envisaged a much more focused and restrained role for the courts that centred on whether state duties met the constitutional standard of reasonableness. The issue of minimum core obligations standard was regarded as possibly relevant to the reasonableness test.
  4. The Court endorsed the reasonableness test adopted by Grootboom and considered whether the policy on the prevention of mother-to-child transmission satisfied this test. The Court conceded that it was legitimate to research the efficacy, safety, and possible resistance to Nevirapine, as a prelude to a comprehensive programme for mother to child transmission of HIV. However, it took the view that these reasons could not justify the indefinite postponement of a national programme until conception of the best programme. It could also not justify delaying a comprehensive programme until completion of the research. The policy, it was further held, impacted seriously on a significant group of HIV-positive mothers and children who did not have access to the research sites. Because of their poverty, they were effectively denied access to "a simple, cheap and potentially life-saving medical intervention". (para 73) It was therefore held that the policy was unreasonable in that it was inflexible and failed to take into account the needs of a particularly vulnerable group.
  5. Furthermore, the Court acknowledged that provision of a single dose of Nevirapine to a mother and her child to prevent transmission of HIV is essential as far as children are concerned. The needs of children, according to the Court, are "most urgent" and "their inability to have access to Nevirapine profoundly affects their ability to enjoy all rights to which they are entitled". (para 78) While conceding that "the primary obligation to provide basic health services no doubt rests on those parents who can afford to pay for such services", it emphasised that this holding does not mean that the state incurs no obligation in relation to children under the care of their parents or families. (para 77) Thus, the state is obliged to ensure that children are accorded the protection contemplated by section 28 "that arises when the implementation of the right to parental or family care is lacking." (para 79). According the Court, indigent mothers and their children are in the main dependent upon the state to make health care services available to them.
  6. As regards remedial powers, the Court stated that where a breach of any right has taken place, including a socio-economic right, a court is under a duty to ensure that effective relief is granted. The nature of the right infringed and the nature of the infringement will provide guidance as to the appropriate relief in a particular case. Where necessary this may include both issuing of a mandamus and the exercise of supervisory jurisdiction.

In conclusion, the court made a declaration that the policy was unconstitutional in the manner summarised above. The Court did not follow the supervisory order made by the High Court, but issued a number of mandatory orders. Thus, the government was ordered "without delay" to remove the restrictions on, and permit and facilitate the use of Nevirapine where this is medically indicated. Furthermore, it was ordered to make provision for the training of counsellors in the public sector, and to take reasonable measures to extend testing and counselling facilities throughout the public health sector to facilitate and expedite the use of nevirapine for the purposes of reducing the risk of mother-to-child transmission of HIV.

However, no decision was made on the provision of formula milk as an alternative to breast-feeding for lack of sufficient evidence to support an order for its provision at state's expense.


Minister of Public Works and Others vs. Kyalami Ridge Environmental Association and Others 2001 (7) BCLR 652 (CC)

Housing - right to have access to housing; Land - right to property, rights of ownership

Facts

Severe floods displaced people in Alexandra Township. The government sought to come to the aid of these people by establishing a transit camp on a state-owned land as a temporary measure. The people would move to permanent housing when such became available and the camp would be demolished. The plan was made without discussions with residents near the area. An action was thus brought by a residents' association asking the High Court to restrain the Minister of Public Works and the contractor from establishing and constructing the camp. It was argued on behalf of the association that the government's action in this regard was not supported by legislation. It was also contended that the setting up of the camps contravened a town planning scheme, land and environmental legislation, and since it had been undertaken without hearing local residents.

The High Court found in favour of the Association and granted the interim interdict. The government appealed to the Constitutional Court.

The Decision

  1. The national government had the responsibility in terms of section 26(2) of the Constitution to ensure that laws, policies, programmes and strategies were adequate to meet the state's obligation to provide access to adequate housing. Referring to Grootboom, this obligation, it was held, included the need to facilitate access to temporary relief for people who were living in intolerable conditions and for people who were in crisis due to such natural disasters as floods and fires, or because their homes were under threat of demolition. It was therefore held that the decision by government to establish a temporary camp was lawful as it was intended to give effect to its constitutional obligations.
  2. As an owner of property, the government is entitled to enjoy all the rights attaching to the property, including the right to erect buildings thereon. A decision to assert such right in fulfilment of its constitutional obligations was held to be lawful.
  3. None of the enactments relied on by the residents' association was designed for or appropriate to the provision of relief to flood victims. These pieces of legislation did not exclude or limit the government's common law power available to make its land available to flood victims pursuant to its constitutional duty to provide them with access to housing.

 


Government of the Republic of South Africa and Others vs. Grootboom (Grootboom) 2001 (1) SA 46 (CC), 2000 (11) BCLR 1169 (CC)

Children's rights - basic shelter; Evictions - right not to be evicted without court order; Housing rights- access to adequate housing; Socio-economic rights - minimum core obligations.

Facts

The applicants, including a number of children, had moved onto private land from an informal settlement owing to the "appalling conditions" in which they were living. They were evicted from the private land that they were unlawfully occupying. Following the eviction, they camped on a sports field in the area. However, they could not erect adequate shelters as most of their building materials had been destroyed. They applied to the Cape High Court for an order requiring the government to provide them with adequate basic shelter or housing until they obtained permanent accommodation. The order was granted pursuant to section 28(1)(c) of the Constitution, which guarantees the right of children to, among other things, shelter.

On appeal by all three spheres of government (national, provincial and local) to the Constitutional Court, the South African Human Rights Commission and the Community Law Centre (University of the Western Cape) intervened as amici curiae in the case. Although the parties to the case focused their arguments on section 28(1)(c) (the right of every child to shelter), the amici broadened the issues to include a consideration of section 26 of the Constitution, which provides for the right of access to housing. They essentially argued that all members of the community, including adults without children, were entitled to shelter because of the minimum core obligation incurred by the State in terms of section 26.

The Decision

  1. According to the Constitutional Court, the question was not whether socio-economic rights were justiciable under the Constitution, "but how to enforce them in a given case." This could not be decided in abstract, but would have to be "carefully explored on a case-by-case basis." (para 20)
  2. The Court held that the state had an obligation to ensure, at the very least, that the eviction was executed humanely. The fact that the eviction was carried out a day earlier and that the possessions and building materials of the respondents were destroyed and burnt amounted to a breach of the negative obligation embodied in the right of access to adequate housing recognised under section 26(1) of the Constitution.
  3. Housing "entails more than bricks and mortar". It requires available land, appropriate services such as the provision of water and the removal of sewage and the financing of all of these, including the building of the house itself. For a person to have "access to" adequate housing all of these conditions must be met: "there must be land, there must be services, there must be a dwelling." (para 33)
  4. A right of access to adequate housing also suggests that it is not only the state who is responsible for the provision of housing, "but that other agents within our society, including individuals themselves, must be enabled by legislative and other measures to provide housing." The state's duty is to "create the conditions for access to adequate housing for people at all economic levels of our society." (para 35)
  5. The Court rejected the contention that section 26(1) created a minimum core obligation to provide basic shelter enforceable immediately upon demand. It held that section 26(1) should be read together with subsection 2, which enjoins the state to realise this right progressively within available resources.
  6. Thus, in any challenge based on section 26 in which it is argued that the state has failed to meet the positive obligations imposed upon it by section 26(2), "the question will be whether the legislative and other measures taken by the state are reasonable." The Court emphasised that it would not enquire "whether other more desirable or favourable measures could have been adopted, or whether public money could have been better spent". (para 41) The housing programme must include measures that are reasonable both in their conception and in implementation.
  7. A given measure will pass the reasonableness test if it is comprehensive and well coordinated; is capable of facilitating the right in question albeit on a progressive basis; is balanced, flexible and does not exclude a significant segment of society; and responds to the urgent needs of those in desperate circumstances.
  8. The Court interpreted the phrase "progressive realisation" in section 26(2) to impose a duty on the state to progressively facilitate the accessibility of housing by examining legal, administrative, operational and financial hurdles and, where possible, lowering these over time. Housing should be made accessible "not only to a larger number of people but to a wider range of people as time progresses." (para 45)
  9. The phrase "within available resources" was interpreted to mean 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 resources". (para 46) According to the Court, section 26 "does not expect more than is achievable within (the state's) available resources". (para 46)
  10. In the present case, it was held that, although the programme satisfied all the other requirements of the reasonableness test, it was nevertheless unreasonable in that "no provision was made for relief to the categories of people in desperate need". The state was therefore found to be in violation of section 26(2) of the Constitution. Accordingly, a declaratory order was made requiring the government to act to meet the obligations imposed on it by section 26(2), which included the obligation to devise, fund, implement and supervise measures aimed at providing relief to those in desperate need.
  11. The Court found no violation of the right of children to shelter in terms of s 28(1)(c), contrary to the High Courts decision, holding that that the State incurs an immediate obligation to provide shelter only in respect of those children who are removed from their families. The primary duty to fulfil the children's socio-economic rights in section 28(1)(c) rests on the parents or family and only, failing such care, on the State. As children in this case were under the care of their parents or families, the Court did not grant any relief based on section 28(1)(c).

However, the court emphasised that this did not mean that the state incurred no obligation to children who were being cared for by their families. The state must provide the legal and administrative infrastructure necessary to ensure that children are accorded the protection contemplated by section 28.

In addition, the state is required to fulfil its obligations to 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. These sections require the state to provide this access through "on a programmatic and coordinated basis, subject to available resources."


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

Health care - right of access to health care services - right not to be refused emergency medical treatment

Facts

The applicant, a 41 year old and unemployed man, was suffering from chronic renal failure resulting from diabetes. This condition was irreversible. His life could only be prolonged by an on-going dialysis treatment. He approached a state hospital for this treatment but the hospital refused him admission to its renal unit following a set policy. According to the policy, the primary requirement for this treatment was eligibility for a kidney transplant. The treatment could be administered until a donor was found and the transplant completed. Furthermore, to be eligible for a kidney transplant, a patient has to be free from other "significant" diseases. The Appellant failed to satisfy the requirements for a kidney transplant as he was suffering from other serious diseases such as heart disease. This refusal prompted the applicant to ask for a court order directing the hospital to provide him with on-going dialysis treatment, and restraining the provincial Minister of health from refusing him admission to the renal unit of the hospital.

The High Court dismissed the application. Thereupon, he appealed to the Constitutional Court, arguing that patients who suffered from terminal illnesses and required treatment to prolong their lives were entitled to be provided with such treatment by the State pursuant to section 27(3), which guarantees the right to of everyone not to be denied emergency treatment. Reliance was also placed on section 11, which guarantees the right to life.

The Decision

  1. According to Constitutional Court, "the right to medical treatment does not have to be inferred from the nature of the State established by the Constitution or from the right to life which it guarantees". (Para 19) This right is dealt with directly under section 27.
  2. The right not to be refused emergency medical treatment under section 27(3) of the Constitution was interpreted to mean that the State is under an obligation not to deny a person remedial treatment that is necessary and available to forestall harm in the case of a sudden catastrophe or emergency. It did not extend to the provision of ongoing treatment of chronic illness for prolonging life. To hold otherwise, "it would make it substantially more difficult for the state to fulfil its primary obligations under sections 27(1) and (2) to provide health care services to 'everyone' within its available resources". (para 19).
  3. The Court then considered the applicability of section 27(1)(a) read with (2) of the Constitution. This provision gives everyone the right of access to health care services, including reproduction health care. This obligation is qualified in that the State is required to take "reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right."
  4. The Court found that all renal units were stretched in terms of resources. There were more people suffering from renal failure than there were dialysis machines to treat them. The Court indicated that "it would be slow to interfere with rational decisions taken in good faith by political organs and medical authorities whose responsibility it is to deal with such matters". (para 29) It took the view that the guidelines drawn up by the hospital authorities for determining patients who qualified for dialysis treatment were reasonable. It was not shown that these guidelines had been applied irrationally or unfairly in the present case. Thus, the Court refused to order the provision of the treatment arguing that the guidelines had the advantage of allocating scarce resources rationally to ensure that a greater number of patients are cured than would be the case if the dialysis machines were used to keep alive persons with chronic renal failure.
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