Transcript The Courts’ Obligation to Provide Housing: Seeking

The Courts’ Obligation to Provide
Housing: Seeking Solutions PostGrootboom
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:
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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
•
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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
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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
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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
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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:
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(1)
(2)
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:
structural interdicts being held appropriate in Fose v
Minister of Safety and Security
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
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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)