The systemic violation of section 26(1) : an appeal for structural relief by the judiciary

• Author: S. Viljoen
• DOI: 10.10520/EJC197705
• Published date: 01 January 2015
• Date: 01 January 2015
• Pages: 42-70

The systemic violation of section 26(1): An

appeal for structural relief by the judiciary*

Dr S Viljoen**

Abstract

In 2014, a year supposedly marked to celebrate twenty years of democracy and

the transformation of our housing regim e from one being grossly discriminatory to a

welfare-orientated legal system that functions under the auspices of the rights and values

entrenched in the Constitution the poorest households in South Africa remain subject to

not only intolerable housing conditions, but also unlawful state evictions. The housing

jurisprudence has developed certain indicators of the state’s constitutional obligations and

these indicators constitute the courts’ conception of its expectations of the state in complex

housing disputes that generally concern homelessness/landlessness. However, recent

state actions taken in contravention of section 26 indicate the systemic violation of the right

to the extent that it is deprived of all meaning.

With the required cognisance of the courts’ inherent competencies, concerns for

separation of powers boundaries and an inclination to maintain a high level of deference

in polycentric matters with economic and social consequences for the community, the

courts are obliged to hold government accountable and vindicate the violation of

fundamental rights. A form of reparation is therefore required that is able to address these

violations in a systemic manner, without usurping the functions of the executive. Structural

relief is apt in such instances, provided that it is structured in a specific manner to address

immediate and long-term housing needs in a way consistent with other constitutional

provisions and the underlying values of the Constitution. A once-off form of relief is

inappropriate to counter the systemic violation of the right of access to adequate housing.

On the other hand, a structural interdict is different to the extent that it can consist of

different remedial phases over which the court retains jurisdiction to ensure that the state

complies with its section 26(2) obligations. Throu ghout th is process of supervision the

court should encourage a dialogue between the different stakeholders and assist with

predeterminations of the kinds of governmental actions that would be unreasonable,

procedurally unfair and generally in contravention of the Constitution.

I would like to thank Prof AJ van der Walt and Dr G Muller for insightful and valuable feedback on

*

this article, it is much appreciated. I would als o like to thank the unanimous referee for useful

comments and suggestions, remaining erro rs are my own.

BComm (Law) LLB LLD.

**

The systemic violation of section 26(1) 43

1 Introduction

In 2014, a year supposedly marked to celebrate twenty years of democracy and

the transformation of our housing regime from one being grossly discriminatory

to a welfare-orientated legal system that functions under the auspices of the

rights and values entrenched in the Constitution of the Republic of South Africa,

1996 (‘Constitution’) the poorest households in South Africa remain subject to not

only intolerable housing conditions, but also unlawful state evictions. In numerous

cases the facts confirm that the state continuously acts in contravention of the

constitutional housing provision. It does so by conducting evictions in a

procedurally unjust manner – ignoring section 26(3) of the Constitution and the

Prevention of Illegal Eviction From and Unlawful Occupation of Land Act (‘PIE’)

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– and without consideration for the plight of the poor with regard to their

substantive right to housing post-eviction. Measures to assist the landless

subsequent to eviction are generally absent, which creates immediate and long-

term problems for private landowners and the state as landowner since evictees

need living-space, af ter all. The housing jurisprudence has developed certain

indicators of the state’s obligations in terms of section 26(2), which provides

insight regarding the content of section 26(1). Read together, these indicators

constitute the courts’ conception of its expectations of the state in complex

housing disputes that generally concern homelessness/landlessness. However,

the case law indicates that the state is often relu ctant to adhere to the courts’

expectations in relation to both its duties and the rights of the vulnerable. In

consequence, I argue that recent state actions taken in contravention of section

26 indicate the systemic violation of the right (that is, a relentless infringement of

the right, in all its incidents) to the extent that it is deprived of all meaning.

With the required cognisance of the courts’ inherent competencies, concerns

for separation of powers boundaries and an inclination to maintain a high level of

deference in polycentric matters with economic and social consequences for the

community, the courts are obliged to hold government accountable and vindicate

the violation of fundamental rights. A form of reparation is therefore required that

is able to address these violations in a system ic manner, without usurping the

functions of the executive. I argue that structural relief is apt in such instances,

provided that it is structured in a specific manner to address immediate and long-

term housing needs in a way consistent with other constitutional pr ovisions and

the underlying values of the Constitution. A once-off form of relief is inappropriate

to counter the systemic violation of the right of access to adequate housing. O n

the other hand, a structural interdict is different to the extent that it can consist of

different remedial phases over which the court retains jurisdiction to ensure that

19 of 1998.

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