Proposing a way to develop the substantive content of the right of access to adequate housing : an alternative to the reasonableness review model

• Author: Gustav Muller
• DOI: 10.10520/EJC197704
• Published date: 01 January 2015
• Date: 01 January 2015
• Pages: 71-93

Proposing a way to develop the

substantive content of the right of access to

adequate housing: An alternative to the

reasonableness review model

Gustav Muller*

Abstract

In this article an attempt is made to put forward a convincing case for giving substantive

content to the right of access to adequate housing and looks towards relevant international

law elaborations on the meaning of this right as contained in the International Convention

on Economic, Social and Cultural Rights (ICESCR). It does so while being aware of the

Constitutional Court’s prior rejection of an international law-based minimum core

interpretation of the right and opting, instead, for the so-called model of reasonableness

review. Given that the court has so expressly taken and stuck to this stance, it is argued

in the article that an international law-based substantive interpretation of the right is

possible – given that South Africa has recently ratified the ICESCR – and that it is

preferable given the shortfalls of the model of reasonableness review. The article further

highlights what difference the pref erred reading of section 26(1) would make as to how

courts ‘interpret’ reasonableness, that is, how courts review com pliance with section 26 at

present if ‘adequate’ housing is understood as having security of tenure and access to

basic municipal services; is affordable, habitable and accessible; is located in close

proximity to social facilities; and is culturally adequate,

1 Introduction

Section 26(1) of the Constitution of the Republic of South Africa, 1996 reads that

everyone has a right to access to adequate housing. Section 26(2) of the

Constitution adds that the state has a positive obligation to take reasonable

legislative and other measures to progressively realise the right within its available

LLD (Stell), Seni or Lecturer, Rhodes University, Grahamstown. This contribution is based on a

*

paper presented at the Land and Housing: Prospects and Challenges Conference, University of

South Africa, Burgers Park Hotel, Pretoria, 18-19 September 201 4.

72 (2015) 30 SAPL

resources. Section 26(3) of the Constitution rounds the housing clause off with

a never-again provision that af fords people the assur ance that they will not be

evicted from their homes or have their hom es demolished unless it occurs in

terms of a court order that was obtained after all relevant circumstances were

considered. In Government of the Republic of South Africa v Grootboom1

(Grootboom) the Constitutional Court adopted an interpretive approach to this

section that requires, on the one hand, sections 26(1) and (2) to be read together,

and on the other hand, sections 26(1) and (3) to be read together. In this

2

groundbreaking judgment the court explained that section 26(1) of the

Constitution amounted to ‘more than bricks and mortar’ because it required the

acquisition of land, the actual construction of a house and the provision of

municipal services. Sadly, in the fourteen years since the Grootboom judgment

3

the court ha s not engaged with what it considered to be ‘more than bricks and

mortar’. This lack of engag ement with the substantive content of section 26(1) of

the Constitution can be attributed to the interpretive approach that the court

adopted, particularly the strong reliance it places on the reasonableness of

measures that the government has adopted in terms of section 26(2) of the

Constitution. The res ult is that we have a limited and indirect understanding of

what the scope of the right in section 26(1) of the Constitution is against which the

reasonableness of the government’s measures must be tested. It is possible to

reach the same conclusion by looking at the other side of the interpretive

approach. I will, however, limit my argument to the former part of the interpret ive

approach.4

The aim of this article is to propose a way to develop the substantive content

of the right of access to adequate housing. My hypothesis is that it is important

to give substantive content to the right of acces s to adequate housing because

individuals and communities need to know what they can claim from government

in terms of this right. G iving substantive content to the right serves the dual

2001 1 SA 46 (CC).

1

Grootboom (n 1) para 34.

2

Id para 35.

3

The burgeoning eviction jurisprudence that has developed in terms of the Prevention of Illegal

4

Eviction and Unlawful Occupation of Land Act 19 of 1998 (PIE), which partially gives e ffect to

section 26(3) of the Constitution , has indirectly provided us with a fragmented picture of what a

substantive interpretation of the right of access to adequate housing might look like. However, I am

left unsatisfied with the indirect and incremental development in these judgments becaus e it only

reveals the fragmented picture of the substantive content of the right of access to adequate housing

if we string together the short and isolated dicta of the courts in those few judgments that do not

turn on technical provisions of PIE or are characterised by avoidance. As a thorough analysis of the

evictions jurisprudence in terms of PIE is beyond the scope of this article, I have intentionally limited

myself to the former part of the interpretative approach mentioned above and have included

references to some eviction cases that support my argument that follows in the second part of the

article.