Dying for a House
The Government of the Republic of South Africa v Grootboom (2000)
What is the state’s obligation to care for the homeless?
Irene Grootboom was part of a desperately poor community in the Wallacedene informal settlement consisting of 390 adults and 510 children. Following their eviction from their Wallacedene area – which had been earmarked for low-cost housing and which they were told they were illegally occupying – the community settled on a dusty sports field during a cold and rainy Cape winter.
Grootboom was among the more vulnerable members of this community as she was a single woman with young children who were now left without shelter. The community, including Grootboom, applied to the High Court for an order to compel the government to provide them with adequate basic shelter or housing until they obtained permanent accommodation.
Everybody was scared to go forward. I decided to go forward because we were poor and wanted a place to live.
Path to the Constitutional Court
Grootboom and her community launched a court action in the High Court where they asked the government to provide them with adequate and sufficient basic nutrition, shelter, healthcare services, and social services to them and their children. The High Court made a temporary order to the government to make temporary accommodation available to the community, free of charge in the Wallacedene Community Hall until the matter between the parties was resolved.
The High Court later found that the government was faced with a massive shortage in available housing and had an extremely constrained budget. Also, in terms of the pressing demands and scarce resources, the government had implemented a housing programme in an attempt to maximise available resources to redress the housing shortage. For this reason, it could not be said that the government had not taken reasonable legislative and other measures within its available resources to achieve the progressive realisation of the right to access adequate housing.
The High Court also found that children are entitled to be provided with shelter by the government, and parents are entitled to be accommodated with their children at the allocated shelter. The government disagreed with the decision, and thus challenged it directly in the Constitutional Court.
Some of the Arguments
Irene Grootboom and Community
Grootboom and her community argued that they had the right to access to adequate housing in terms of section 26 of the Constitution and that their children in terms of section 28 of the Constitution have the right to basic shelter. The Human Rights Commission and the Community Law Centre of the University of the Western Cape contended that Grootboom and her community were entitled to shelter by reason of a minimum core obligation that they claim the government has in terms of the Constitution. They also argued that the children’s right to shelter had been included in section 28(1)(c) of the Constitution to place the right of children to this minimum core beyond doubt.
Government of the Republic of South Africa
The government contended that it was faced with a massive shortage in available housing and an extremely constrained budget. Furthermore, in terms of the pressing demands and scarce resources, they had implemented a housing programme in an attempt to maximise available resources to redress the housing shortage. For this reason, it could not be said that it had not taken reasonable legislative and other measures within its available resources to achieve the progressive realisation of the right to have access to adequate housing.
What did the Constitutional Court decide?
The Court found in favour of Grootboom. It held that the state was obliged to take action to meet the needs of those living in extreme conditions of poverty, homelessness, or intolerable housing.
The Justices had to decide whether the state programme was within the limits of reasonableness. They found that the parts of the government’s plans that were not reasonable were the remedies that the state provided for people in extremely desperate situations. The Court ordered the state to provide a form of emergency shelter pending the members of the community eventually getting houses through the state housing programme.
The Court agreed that the government’s existing housing policies and their implementation did not meet the obligations set out in section 26 of the Bill of Rights, and declared that the government had breached its obligation to devise and implement, within its available resources, a comprehensive and coordinated programme to progressively realise the right of access to adequate housing.
The Court ordered the state to implement a scheme that was consistent with the Constitution. The new scheme should provide temporary shelter and facilities for the destitute group and other people who have no access to land, no roof over their heads, and who are living in intolerable conditions or in crisis situations.
The Constitution obliges the state to act positively to ameliorate these conditions. The obligation is to provide access to housing, healthcare, sufficient food and water, and social security to those unable to support themselves and their dependents. The state must also foster conditions to enable citizens to gain access to land on an equitable basis.
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 need to be met.
Impact and Significance
The Court order provided no immediate individual relief to the Grootboom community although both the national and the Western Cape governments had agreed to provide certain forms of relief to the applicants. The case raised several issues concerning the role of the Court and the difficulties in enforcing socio-economic rights. The government argued that the judiciary, as an unelected body, lacks legitimacy to determine the distribution of government resources. This has become a common response by the government to the Court’s involvement in socio-economic cases. Although Grootboom won the appeal, eight years after the judgment was handed down she had still not been allocated a home and died penniless whilst still living in a shack.
When it rains water seeps through every crevice. I try to repair it, but I can’t do much. I was supposed to get a house but I’m still in a shack with my sister-in-law and her three children. They keep promising us. I’m sick and tired of the whole thing.
But the judgment was nonetheless significant. It is now recognised as providing the foundation for the Court’s socio-economic jurisprudence. Its real and symbolic effects have received international acclaim. The Court’s reasoning in this case became useful in the Court’s later groundbreaking judgment on HIV/AIDS drugs.
This case is the first building block in creating a jurisprudence of socio-economic rights.
The Grootboom case led to the enactment of Chapter 12 of the National Housing Code that requires national, provincial, and municipal governments to plan for and act where people are in desperate need.
The Code itself calls Grootboom a ‘landmark judgment’. The clear implication is that without Grootboom’s rights-directed litigation, and without the Court’s declaratory order, the country’s housing programme would have continued to omit provision for the emergency needs of the poorest and most vulnerable.
It has become a leading case in the world because of judicial compassion. The function of the law is to convert misfortune into justice. The case became the foundational case on the theme of separation of powers with judges not trying to make up for the failures of government but to uphold fundamental rights.
The following cases have built on the legacy of the Grootboom case:
Port Elizabeth Municipality v Various Occupiers (2004). The case concerned the fate of 68 people, including 23 children, who had been unlawfully occupying some vacant, unused and private land in the jurisdiction of the municipality of Port Elizabeth. At the insistence of the landowners and a large number of concerned locals, the municipality applied for their eviction. It fell to the courts to decide whether the eviction could go ahead under the circumstances. The Constitutional Court found that the eviction could not go ahead. The Court referred to the judiciary’s ‘new task’, namely, to manage “the counter positioning of conventional rights of ownership against the new, equally relevant, right not to be arbitrarily deprived of a home, without creating hierarchies of privilege”.
City of Johannesburg v Blue Moonlight Properties (2011). The Constitutional Court held that the Housing Code requires the local government to make emergency provision not only for those whom its own relocations and evictions would render homeless, but also for those evicted by private landlords. This decision is expected to have a very significant impact on allocation of resources to the poorest urban households.
Debate in the Grootboom case kept the judges around the table for hours. The heart of the debate was the use of the word ‘reasonable’. The case has been studied in great detail around the world.