The Courts’ Obligation to Provide Housing: Seeking Solutions Post-

Grootboom

A Research Proposal presented in Comic Sans MS by John Seth

This proposal is the story...of a journey...

• My Initial Research Method : “The SCA’s Response to the State’s Obligation to Provide Housing”

(1) Analysis of the Grootboom Judgment - content of the S 26 right and the “reasonableness” and “progressive

realisation” directives

(2) The impact of this directive upon later decisions, most notably: Blue Moonlight Properties 39 (Pty) Ltd v Occupiers of Saratoga

Avenue and Another 2009 (1) SA 470 (W) Ekurhuleni Metropolitan Municipality v Dada NO and Others 2009

(4) SA 463 (SCA)

(3) Review of the State’s current National Housing Policy

(4) Assessing the viability of judicial alternatives, chiefly in the form of structural interdicts

(1) The Grootboom Case

Two Key Questions were posed in this case:

(a)Whether or not the state’s legislative and policy framework with regard to the right to housing was reasonable

(b)Whether the state’s policy met the threshold of “progressive realisation of the right” as contemplated in S 26(2)

Grootboom (Contd.)

Broad Conclusions

• Reasonableness A reasonable housing programme was seen as one which

was both balanced and flexible, making provision for short, medium and long-term goals

A reasonable program would also be one which did not exclude a significant sector of society

However, no discernible content insofar as prescribing the details of a reasonable housing program...

“A court considering reasonableness will not enquire

whether other more desirable or favourable measures

could have been adopted, or whether public money

could have been better spent. The question would be

whether the measures that have been adopted are

reasonable.”

Grootboom, per Yacoob J at [41]

Broad Conclusions Contd

• Progressive Realisation

Accessibility needs to be progressively facilitated Legal, administrative, and financial hurdles should be

examined and, where possible, lowered Again, a broadly framed interpretation, avoiding any overly

prescriptive elements with regard to the state’s policy

Phase 2: The response of the courts

Blue Moonlight Properties 39 (Pty) Ltd v Occupiers of

Saratoga Avenue and Another 2009 (1) SA 470 (W)

Ekurhuleni Metropolitan Municipality v Dada NO and

Others 2009 (4) SA 463 (SCA)

Blue Moonlight Properties

• Case involved eviction of unlawful occupants in terms of PIE

• - Applicant brought eviction action ito PIE with regard to 92 unlawful occupiers in a building located in the centre of Johannesburg

• - In terms of PIE, the municipality were obliged to furnish a report with regard to alternative arrangements and emergency housing provided for unlawful occupants soon to be evicted in terms of PIE

• - As they were dealing with over 300 notices in terms of unlawful occupation, the City filed a general report published every 6 months

Blue Moonlight Properties

• The contents of the “general” report were held by the court to have been “generally” unhelpful

• Furthermore the report specifically excluded the possibility of emergency shelter being made available for evicted persons in terms of PIE:

“the scale of the task facing the City the City cannot for the time being make any of its emergency shelters available for any persons evicted from property by way of PIE .“

* Naturally, this was held to be in clear breach of the City’s Constitutional duties as borne out in Grootboom, as well as the provisions of the Housing Act

Blue Moonlight Properties

...Now for the really interesting part:

• The court saw fit to impose a structural interdict against the City, ordering that they report on the measures taken to provide alternative emergency housing after a 4 week period

• The interdict was justified on two grounds:(1) structural interdicts being held appropriate in Fose v

Minister of Safety and Security(2) the order itself was general enough in its application

so as to allow the City latitude in the design and implementation of the emergency measures

The Reverse Approach: Ekurhuleni Municipality

This case involved an appeal from the JHB High Court in which Cassim AJ took a seemingly “robust approach” in enforcing the state’s obligation to provide alternative land

- Unlawful occupants had moved on to a piece of private land, as the conditions in their neighbouring squatter camp had rendered the land uninhabitable

- Application was made by the occupants for an interdict in terms of which the municipality were to report back to the court within three months of the order with details of implementation of an emergency housing plan

- Similar fashion to Blue Moonlight, voluminous reports outlining the broader housing plan were presented to the courts

The Reverse Approach: Ekurhuleni Municipality

- Cassim AJ’s response:

    'Now if I were to make an order that (the municipality has) to buy the property, will Gauteng then make the moneys available? . . . Ja, well we can apply for the, to make money available.

    But look, if you said there is an order of the judge of the high court, we D need R250 000,00 they must make the money available? . . . They must make the money available ja.'

- - transcript from the proceedings

The Reverse Approach: Ekurhuleni Municipality

- Eventual order forced municipality to purchase the

land within a prescribed time period of 30 days

- Furthermore that they make provision for emergency

housing and essential services to be provided within

the same time-frame

The Reverse Approach: Ekurhuleni Municipality

• The SCA expressly overruled the judgment, citing a

lack of acknowledgement of judicial deference in terms

of the separation of powers and a misreading of the

state’s obligations in terms of “progressive realisation”

as envisaged in Grootboom and that the relief granted

fell foul of the S 38 “appropriate relief” provision of the

Constitution

Where does this leave us?

Initially...Discussing the tensions between state

and judicial policy on a national scale and making a tentative case for the use of structural interdicts with regard to housing policy

However, there are largescale constitutional implications...

New Direction

• Having conducted my research, the central focus now turns towards the court’s approach to “progressive realisation” and an investigation as to whether the principle has found any favour or holds any relevance to judicial decisions regarding housing rights.

Bibliography

Blue Moonlight Properties 39 (Pty) Ltd v Occupiers of Saratoga Avenue and Another 2009 (1) SA 470 (W)

Ekurhuleni Metropolitan Municipality v Dada NO and Others 2009 (4) SA 463 (SCA)

Government of Republic of South Africa and Others v Grootboom and Others 2000 (11) BCLR 1169 (CC)