Written by Media for Justice
Monday, 17 May 2010 12:58
A film that investigates the case of the Grootboom community living around the sports field awaiting their promised housing.A gritty look at the squalor and poverty in an area in which 20 000 people crowd into a 2km radius with a broken down ablution block and very little service delivery.
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Transforming Informal Settlements - The Grootboom case.
Irene Grootboom initially lived in Wallacedene, an informal squatter settlement in the municipal area of Oostenberg. The residents of Wallacedene live in severe poverty, without any basic services such as water, sewage or refuse removal. It is partly waterlogged and lies dangerously close to a main thoroughfare. Many Wallacedene residents had long since placed their names on a waiting list for low-income housing. As time wore on, a group of about 900 people, including Irene Grootboom, began to move from Wallacedene onto adjacent, vacant, privately-owned land that had been ear-marked for low-cost housing. The private landowner obtained an eviction order and the sheriff was ordered to dismantle and remove any structures remaining on the land.
The magistrate granting the order said that the community and the municipality should negotiate in order to identify alternative land for the community to occupy on a temporary or permanent basis. The evicted community now had nowhere to go. Since they had lost their former sites in Wallacedene, they moved onto the Wallacedene sports field and tried to erect temporary structures. With legal assistance, the community formally notified the municipality of the situation and demanded that the municipality meet its constitutional obligation to provide temporary accommodation. Without a satisfactory response from the municipality, the community – under the name of ‘Irene Grootboom and 900 others’ - launched an urgent application in the Cape High Court. The Grootboom community based their case on two constitutional provisions:
• Section 26 of the Constitution provides that everyone has a right of access to adequate housing. It obliges the state to take reasonable measures, within its available resources, to make sure that this right is realised progressively.
• Section 28(1)(c) says that children have a right to shelter. The Cape High Court rejected the first argument. It said that government’s housing programme was reasonable and thus fulfilled the requirements of the Constitution. In terms of the second argument, the court said that parents are primarily responsible to provide shelter for their children. If, however, they are unable to do this, section 28(1)(c) places an obligation on the state to do so.
Further, the court found that the parents should be able to live with their children in the shelter as it was not in the best interests of children to be separated from their families. Government took the decision of the High Court on appeal to the Constitutional Court. The Constitutional Court affirmed that national government bears the overall responsibility for ensuring that the state complies with its section 26 obligations. It further found that:
• the current housing programme fell short of the state obligation to provide relief to people in desperate need. It said that a reasonable part of the national housing budget should be devoted to providing such relief. If this was not done, the state’s housing programme could not be considered reasonable for the purposes of section 26(2).
Section 26(2) of the Constitution obliges the state to take “reasonable legislative and other measures” to progressively realise the right of access to adequate housing. The terminology implies that, in addition to legislative measures, administrative, judicial, economic, social and educational measures must be taken. In Grootboom, the court indicated that the measures adopted must establish a coherent public housing programme, directed towards the progressive realisation of the right of access to adequate housing within the state’s available resources. The court noted that “legislative measures will invariably have to be supported by appropriate, well-directed policies and programmes implemented by the executive” (Para 42). Policies and programmes must thus be reasonable both in their conception and their implementation.
In interpreting the term ‘reasonable’, the court paid particular attention to the housing needs of those living in extreme conditions of poverty, homelessness or intolerable housing. It noted that a programme that excludes a significant segment of society cannot be said to be reasonable: “It may not be sufficient to meet the test of reasonableness to show that the measures are capable of achieving a statistical advance in the realisation of the right… If the measures, though statistically successful, fail to respond to the needs of those most desperate, they may not pass the test” (Para 44). This interpretation is clearly relevant in discussing women and housing given women’s disproportionate vulnerability to poverty.
• the state’s direct obligation would apply primarily when children were removed from their families, orphaned or abandoned.
The Constitutional Court also recognised the close relationship between the right to equality and socio-economic rights, including housing rights. It noted that the realisation of socio-economic rights is key to the advancement of equality and the development of a society in which both men and women are equally able to fulfill their potential (Para 23).