Grootboom v Oostenberg Municipality and others
Name of Case
Grootboom v Oostenberg Municipality and others
Progressive realisation, positive right, housing, accessibility, availability, budgetary limitations not relevant, South Africa, Consitutional law, national level, discrimination
Constitutional Court of South Africa
Case CCT 11/00; 4 October 2000
Irene Grootboom initially lived in an informal squatter settlement in severe poverty, without any basic services such as water, sewage or refuse removal. The area is partly waterlogged and lies dangerously close to a main thoroughfare. Many local residents had been on a waiting list for low-income housing for a long-time.
Eventually, a group of about 900 people, including Irene Grootboom, began to move onto adjacent, vacant, privately-owned land that had been ear-marked for low-cost housing. The private landowner obtained an eviction order and the sheriff was ordered to dismantle and remove any structures remaining on the land. The magistrate granting the order said that the community and the municipality should negotiate in order to identify alternative land for the community to occupy on a temporary or permanent basis.
The evicted community now had nowhere to go. Since they had lost their former sites in the squatter settlement, they moved onto a nearby sports field and tried to erect temporary structures.
With legal assistance, the community formally notified the council of the
situation and demanded that the council meet its constitutional obligation to provide
temporary accommodation. No satisfactory response was received from the council
under the name of ‘Irene Grootboom and 900 others’ - launched an urgent
application in the Cape High Court.
The applicants alleged that the council had breached the following sections of the South African Constitution:
Section 26 which provides that everyone has a right of access to adequate housing. It obliges the State to take reasonable measures, within its available resources, to make sure that this right is realised progressively.
Section 28(1)(c) states that children have a right to shelter.
The Court suggested that budgetary limitations are not relevant to the construction to be placed on the right of a child to have shelter in terms of section 28(1)(c) of the Constitution. The right is thus unconditional.
Judge Yacoob stated:
at paragraph 93. 'The Constitution obliges the State to act positively to ameliorate these conditions…..social security to those unable to support themselves and their dependants.'
at 94. 'these are obligations and the constitution obliges the State to give effect to them. This is an obligation that the Courts can, and in appropriate circumstances, must enforce.'
at 45. 'The fact that [the Constitution requires] realisation over time, or in other words progressively ... should not be misinterpreted as depriving the obligation of all meaningful content. It is on the one hand a necessary flexibility device, reflecting the realities of the real world and the difficulties involved for any country in ensuring full realization of economic, social and cultural rights. On the other hand, the phrase must be read in the light of the overall objective ... which is to establish clear obligations for State parties in respect of the full realisation of the rights in question. It thus imposes an obligation to move as expeditiously and effectively as possible towards that goal.’
The Constitutional Court affirmed that national government bears the overall responsibility for ensuring that the State complies with its section 26 obligations. It further found that:
• the current housing programme fell short of the state obligation to provide relief to people in desperate need. It said that a reasonable part of the national housing budget should be devoted to providing such relief. If this was not done, the state’s housing programme could not be considered reasonable under section 26(2).
• the State’s direct obligation would apply primarily when children were removed from their families, orphaned or abandoned.
The Constitutional Court also recognised the close relationship between the right to equality and socio-economic rights, including housing rights. It noted that the realisation of socio-economic rights is key to the advancement of equality and the development of a society in which both men and women are equally able to fulfil their potential.
See DH and Others v Czech Republic where a breach of the right to education and of anti-discrimination provisions were alleged.
An effective way of bringing cases relating to socio-economic rights such as the right to housing (or education) is by linking them, as the Court did in this case, with the right to equality i.e. non-dicrimination (a concept courts are much more happy to rule on). See section on discrimination on the website and the discrimination sections of cases.
The court made such a decision even when the right was subject to progressive realisation. The right to adult and children’s education in the South African Constitution is not. Therefore, in relation to the non-provision of primary level education, it is arguable that a court should not consider budgetary limitations as an valid excuse.
Note. It is important to check what limitations such as allowing for ‘progressive realisation’ of the right are included in a section of law/constitution relating to the right to education.
Since the Court did not feel compelled to undergo a limitations inquiry for a weak positive right in Grootboom, it follows that it would also not limit the right to basic education, a strong positive right, even if the costs incurred were high.