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

• Jurisdiction: South Africa
• Citation: 2001 (1) SA 46 (CC)

Government of the Republic of South Africa and Others v Grootboom and Others
2001 (1) SA 46 (CC)

2001 (1) SA p46

Citation	2001 (1) SA 46 (CC)
Case No	CCT 11/2000
Court	Constitutional Court
Judge	Chaskalson P, Langa DP, Goldstone J, Kriegler J, Madala J, Mokgoro J, Ngcobo J, O'Regan J, Yacoob J, Sachs J, Cameron AJ
Heard	May 11, 2000
Judgment	October 4, 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.

Flynote : Sleutelwoorde H

Constitutional law — Human rights — Right to housing in terms of s 26 of Constitution of the Republic of South Africa Act 108 of I 1996 — Respondents evicted from informal homes situated on private land earmarked for formal low-cost housing — Respondents applying to Court for order requiring government to provide them with adequate basic shelter or housing until they obtained permanent accommodation — State obliged to take J

2001 (1) SA p47

positive action to meet needs of those living in extreme conditions of poverty, homelessness or intolerable A housing — Real question in terms of Constitution whether measures taken by State to realise right afforded by s 26 reasonable — For person to have access to adequate housing there has to be provision of land, services and a dwelling — Right also suggesting that not only State responsible for provision of houses but that other agents within B society to be enabled by legislative and other measures to provide housing — State therefore to create conditions for access to adequate housing for people at all economic levels of society — Section 26 as a whole placing, at very least, a negative obligation upon State and all other entities and persons to desist from preventing or impairing right of access to adequate housing — Manner in which present eviction carried out resulting in breach of this obligation — Section 26(2) making it C clear that obligation imposed on State not absolute or unqualified — Extent of State's obligation defined by three key elements to be considered separately: (a) obligation to take reasonable legislative and other measures; (b) to achieve progressive realisation of right; and (c) within available resources — Court to enquire whether measures adopted to D comply therewith reasonable — Accepted that right contained in s 26 not immediately realisable — Evidence showing that at date of launch of application, State not meeting obligation imposed on it by s 26, in particular that programs adopted by State in relevant area falling short of requirements of s 26(2) to provide relief to categories of people in desperate need — People in need having corresponding right to E demand that State meet its obligations — Declaratory order issued that s 26(2) of Constitution requiring State to devise and implement comprehensive and co-ordinated program progressively to realise right of access to adequate housing, including obligation to devise, fund, implement and supervise measures to provide relief to those in F desperate need within available resources.

Constitutional law — Human rights — Right of children to shelter in terms of s 28 of Constitution of the Republic of South Africa Act 108 of 1996 — Respondents, some of whom children, evicted from informal homes situated on private land earmarked for formal low-cost housing — Respondents applying to Court for order requiring government G to provide them with adequate basic shelter or housing until they obtain permanent accommodation — Court a quo holding that State obliged in terms of s 28(1)(c) to provide rudimentary shelter to children and their parents on demand if parents unable to shelter children, that this obligation existing independently of and in addition to other measures in terms of s 26 of Constitution providing H access to adequate housing and that State to provide such rudimentary shelter irrespective of availability of resources — Section 28(1)(c) not creating rights for children and their parents independent and separate from those created by ss 26 and 27 of Constitution — Section 28 as whole ensuring children properly cared for by parents or families and that they received appropriate alternative I care in absence of family or parental care — Through legislation and common law, obligation to provide shelter in ss (1)(c) imposed primarily on parents or family and only alternatively on State — State not having primary obligation to provide shelter on demand to parents and their children if children being cared for by parents or families — State having to provide J

2001 (1) SA p48

legal and administrative infrastructure necessary to ensure that children accorded protection A contemplated by s 28 and its obligation in this regard normally fulfilled by passing of laws creating enforcement mechanisms for maintenance of children, their protection from maltreatment, abuse, neglect or degradation and other forms of abuse and in addition, providing families with access to land, adequate housing and services. B

Housing — Right to housing in terms of s 26 of Constitution of the Republic of South Africa Act 108 of 1996 — Respondents evicted from informal homes situated on private land earmarked for formal low-cost housing — Respondents applying to Court for order requiring government to provide them with adequate basic shelter or housing until they obtained permanent accommodation — State obliged to take positive action to meet needs of those living in extreme conditions of poverty, homelessness or intolerable housing — Real question in terms of Constitution whether measures taken by State to realise right afforded by s 26 reasonable — For person to have access to adequate housing there has to be provision of land, services and a dwelling — Right also suggesting that not only State responsible for provision of houses but that other agents within society to be enabled by legislative and other measures to provide housing — State therefore to create conditions for access to adequate housing for people at all economic levels of society — Section 26 as a whole placing, at very least, a negative obligation upon State and all other entities and persons to desist from preventing or impairing right of access to adequate housing — Manner in which present eviction carried out resulting in breach of this obligation — Section 26(2) making it clear that obligation imposed on State not absolute or unqualified — Extent of State's obligation defined by three key elements to be considered separately: (a) obligation to take reasonable legislative and other measures; (b) to achieve progressive realisation of right; and (c) within available resources — Court to enquire whether measures adopted to comply therewith reasonable — Accepted that right contained in s 26 not immediately realisable — Evidence showing that at date of launch of application, State not meeting obligation imposed on it by s 26, in particular that programs adopted by State in relevant area falling short of requirements of s 26(2) to provide relief to categories of people in desperate need — People in need having corresponding right to demand that State meet its obligations — Declaratory order issued that s 26(2) of Constitution requiring State to devise and implement comprehensive and co-ordinated program progressively to realise right of access to adequate housing, including obligation to devise, fund, implement and supervise measures to provide relief to those in desperate need within available resources.

Minor — Rights of — Right of children to shelter in terms of s 28 of Constitution of the Republic of South Africa Act 108 of 1996 — Respondents, some of whom children, evicted from informal homes situated on private land earmarked for formal low-cost housing — Respondents applying to Court for order requiring government to provide them with adequate basic shelter or housing until they obtain permanent accommodation — Court a quo holding that State obliged in terms of s 28(1)(c) to provide rudimentary shelter to children and their parents on demand if parents unable to shelter children, that this obligation existing independently of and in addition to other measures in terms of s 26 of Constitution providing access to adequate housing and that State to provide such rudimentary shelter irrespective of availability of resources — Section 28(1)(c) not creating rights for children and their parents independent and separate from those created by ss 26 and 27 of Constitution — Section 28 as whole ensuring children properly cared for by parents or families and that they received appropriate alternative care in absence of family or parental care — Through legislation and common law, obligation to provide shelter in ss (1)(c) imposed primarily on parents or family and only alternatively on State — State not having primary obligation to provide shelter on demand to parents and their children if children being cared for by parents or families — State having to provide legal and administrative infrastructure necessary to ensure that children accorded protection contemplated by s 28 and its obligation in this regard normally fulfilled by passing of laws creating enforcement mechanisms for maintenance of children, their protection from maltreatment, abuse, neglect or degradation and other forms of abuse and in addition, providing families with access to land, adequate housing and services.

Headnote : Kopnota

The respondents had been evicted from their informal homes situated on private land earmarked for formal low-cost housing. They applied to a High Court for an order requiring the government to provide them with adequate basic shelter or housing...