Government of the Republic of South Africa and Others v Grootboom and Others

• Jurisdiction: South Africa
• Judge: Chaskalson P, Langa DP, Goldstone J, Kriegler J, Madala J, Mokgoro J, Ngcobo J, O'Regan J, Yacoob J, Sachs J, Cameron AJ
• Judgment Date: 04 October 2000
• Docket Number: CCT 11/2000
• Hearing Date: 11 May 2000
• Counsel: J J Gauntlett SC (with him A Schippers and N Bawa) for the first and second appellants. J C Heunis SC (with him J W Olivier) for the third and fourth appellants. P B Hodes SC (with him I Jamie and A J Musikanth) for the respondents. G M Budlender (attorney) for the amici curiae.
• Court: Constitutional Court

Yacoob J:

A. Introduction

[1] The people of South Africa are committed to the attainment of social justice and the improvement of the quality of life B for everyone. The preamble to our Constitution records this commitment. The Constitution declares the founding values of our society to be '(h)uman dignity, the achievement of equality and the advancement of human rights and freedoms'. [1] This case grapples with the realisation of these aspirations for it concerns the State's C constitutional obligations in relation to housing: a constitutional issue of fundamental importance to the development of South Africa's new constitutional order.

[2] The issues here remind us of the intolerable conditions under which many of our people are still living. The respondents are but a fraction of them. It is also a reminder that, unless the D plight of these communities is alleviated, people may be tempted to take the law into their own hands in order to escape these conditions. The case brings home the harsh reality that the Constitution's promise of dignity and equality for all remains for many a distant dream. People should not be impelled by intolerable living conditions to E resort to land invasions. Self-help of this kind cannot be tolerated, for the unavailability of land suitable for housing development is a key factor in the fight against the country's housing shortage.

[3] The group of people with whom we are concerned in these F proceedings lived in appalling conditions, decided to move out and illegally occupied someone else's land. They were evicted and left homeless. The root cause of their problems is the intolerable conditions under which they were living while waiting in the queue for their turn to be allocated low-cost housing. They are the people whose constitutional rights have to be determined in this case. G

[4] Mrs Irene Grootboom and the other respondents [2] were rendered homeless as a result of their eviction from their informal homes situated on private land earmarked for formal low-cost housing. They applied to the Cape of Good Hope High Court (the High Court) for an order requiring government to H provide them with adequate basic shelter or housing until they obtained permanent accommodation and were granted certain relief. [3] The appellants were ordered to provide the respondents who were children and their parents with shelter. The I

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judgment provisionally concluded that 'tents, portable latrines and a regular supply of water (albeit transported) would constitute the A bare minimum'. [4] The appellants who represent all spheres of government responsible for housing [5] challenge the correctness of that order.

[5] At the hearing of this matter an offer was made by the appellants to ameliorate the immediate crisis situation in which the respondents were living. The offer was accepted by the respondents. B This meant that the matter was not as urgent as it otherwise would have been. However, some four months after argument, the respondents made an urgent application to this Court in which they revealed that the appellants had failed to comply with the terms of their offer. That application was set down for 21 September 2000. On that day the C Court, after communication with the parties, crafted an order putting the municipality on terms to provide certain rudimentary services.

[6] The cause of the acute housing shortage lies in apartheid. A central feature of that policy was a system of influx control that sought to limit African occupation of urban D areas. [6] Influx control was rigorously enforced in the Western Cape, where government policy favoured the exclusion of African people in order to accord preference to the coloured community: a policy adopted in 1954 and referred to as the 'coloured labour preference policy'. In consequence, the provision of family housing for African people in the Cape Peninsula was frozen in 1962. This E freeze was extended to other urban areas in the Western Cape in 1968. Despite the harsh application of influx control in the Western Cape, African people continued to move to the area in search of jobs. Colonial dispossession and a rigidly enforced racial distribution of land in the rural areas had dislocated the rural economy and rendered F sustainable and independent African farming increasingly precarious. Given the absence of formal housing, large numbers of people moved into informal settlements throughout the Cape Peninsula. The cycle of the apartheid era, therefore, was one of untenable restrictions on the movement of African people into urban areas, the inexorable tide of the G rural poor to the cities, inadequate housing, resultant overcrowding, mushrooming squatter settlements, constant harassment by officials and intermittent forced removals. [7] The legacy of influx control in the Western Cape is the acute housing shortage that exists there now.

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Although the precise extent is uncertain, the shortage stood at more than 100 000 units in the Cape Metro at the A time of the inception of the Constitution of the Republic of South Africa Act 200 of 1993 (interim Constitution) in 1994. Hundreds of thousands of people in need of housing occupied rudimentary informal settlements providing for minimal shelter, but little else. B

[7] Mrs Grootboom and most of the other respondents previously lived in an informal squatter settlement called Wallacedene. It lies on the edge of the municipal area of Oostenberg, which in turn is on the eastern fringe of the Cape Metro. The conditions under which most of the residents of Wallacedene lived were lamentable. A quarter of the households of Wallacedene had no income at all, and more than C two thirds earned less than R500 per month. [8] About half the population were children; all lived in shacks. They had no water, sewage or refuse removal services and only 5% of the shacks had electricity. The area is partly waterlogged and lies dangerously close to a main thoroughfare. Mrs Grootboom lived with her family and her sister's family in a shack about 20 metres square. D

[8] Many had applied for subsidised low-cost housing from the municipality and had been on the waiting list for as long as seven years. Despite numerous enquiries from the municipality no definite answer was given. Clearly it was going to be a long wait. Faced with the prospect of remaining in intolerable conditions indefinitely, the E respondents began to move out of Wallacedene at the end of September 1998. They put up their shacks and shelters on vacant land that was privately owned and had been earmarked for low-cost housing. They called the land 'New Rust'. F

[9] They did not have the consent of the owner and on 8 December 1998 he obtained an ejectment order against them in the magistrate's court. The order was served on the occupants but they remained in occupation beyond the date by which they had been ordered to vacate. Mrs Grootboom says they had nowhere else to go: their former sites in Wallacedene had been filled by others. The eviction G proceedings were renewed in March 1999. The respondents' attorneys in this case were appointed by the magistrate to represent them on the return day of the provisional order of eviction. Negotiations resulted in the grant of an order requiring the occupants to vacate New Rust and authorising the sheriff to evict them and to dismantle and remove any of their structures remaining on the land on 19 May 1999. The H magistrate also directed that the parties and the municipality mediate to identify alternative land for the permanent or temporary occupation of the New Rust residents.

[10] The municipality had not been party to the proceedings but it had engaged attorneys to monitor them on its behalf. It is not clear whether I

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the municipality was a party to the settlement and the agreement to mediate. Nor is it clear whether the eviction was in A accordance with the provisions of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998. [9] The validity of the eviction order has never been challenged and must be accepted as correct. However, no mediation took place and on 18 May 1999, at the beginning of the cold, windy and rainy Cape winter, the respondents were forcibly B evicted at the municipality's expense. This was done prematurely and inhumanely: reminiscent of apartheid-style evictions. The respondents' homes were bulldozed and burnt and their possessions destroyed. Many of the residents who were not there could not even salvage their personal belongings. C

[11] The respondents went and sheltered on the Wallacedene sports field under such temporary structures as they could muster. Within a week the winter rains started and the plastic sheeting they had erected afforded scant protection. The next day the respondents' attorney wrote to the municipality describing the intolerable D conditions under which his clients were living and demanded that the municipality meet its constitutional obligations and provide temporary accommodation to the respondents. The respondents were not satisfied with the response of the municipality [10] and launched an urgent application in the High Court on 31 May 1999. As indicated above, the High Court granted relief to the respondents and the appellants E now appeal against that relief.

[12] In the remainder of this judgment, I first outline the reasoning adopted in the High Court judgment. Consideration is then given to the right of access to adequate housing in s 26 of the Constitution and the proper approach to be adopted to the application of that section. This is followed by evaluation of the housing program F adopted by the State in the light of the obligations imposed upon it by s 26. The respondents' claim in terms of the rights of children in s 28 of the...