Court/Judicial body: Constitutional Court
Date: October 4, 2000 CRC
Provisions: Convention on the Rights of the Child (general reference)
Other international provisions: International Covenant on Economic, Social and Cultural Rights ( Article 2: Progressive realization of rights; Article11: Standard of living).
Domestic provisions: Constitution of South Africa (Section 7: State duty and the Bill of Rights, Section 25: Equitable land rights, Section 26: Right to housing, Section 28: Children’s rights; Section 39: International law)
Background: 390 adults and 510 children were living in poor conditions in an informal squatter settlement where they had no water, sewage or refuse removal services. When they left this settlement behind to live in shacks and shelters on privately-owned vacant land that had been earmarked for low-cost housing, the owner obtained an order to evict them. Their homes were bulldozed and burnt and their possessions were destroyed. After demanding temporary accommodation from the municipal government without success, the squatters asked the High Court to order the government to provide them with adequate basic temporary shelter or housing until they could obtain permanent housing, or basic shelter. Under the South African Constitution, the High Court found that the government was obligated to provide shelter to children if their parents could not, and that – where this was the case – the children’s parents were end to accompany. The government appealed this decision to the Constitutional Court.
Issue and resolution:Shelter; standard of living. The Court concluded that the national housing program did not live up to the government’s obligations under the Constitution because it did not provide relief for those in situations of desperate need. The Court did not, however, require that the government provide shelter upon request to children or their parents.
Court reasoning: Because the squatters’ housing problem would not be resolved within a reasonably short time and the national housing program did not offer temporary accommodation, the Court concluded that the program violated the squatters’ right to housing under Section 26 of the Constitution. The Court cautioned that a government program cannot ignore the immediate needs of those in desperate situations in order to focus on medium and long-term goals, and stated that the housing program must include reasonable measures to provide relief for “people who have no access to land, no roof over their heads, and who are living in intolerable conditions or crisis situations.” The Court emphasized that civil, political, social and economic rights in the Constitution are all interrelated and mutually supporting, and that affording socio-economic rights to people enables them to enjoy their other rights.
With respect to children’s right to social services under Section 28 of the Constitution, the Court found that because children have a right to parental or family care, their right to “appropriate alternative care” from the government applies only where family or parental care is lacking. This means that the obligation to provide housing rests primarily with parents where children are in their care, and with the government where children have, for example, been removed from the home. The government does still have an obligation to ensure that children are protected within family care, however, which it does by passing laws and setting up enforcement mechanisms to ensure that children are protected from maltreatment. Notably, the Court analyzed the state’s obligations in light of international obligations binding upon South Africa, including the Convention on the Rights of the Child.
Excerpt citing CRC and other relevant human rights  The extent of the state obligation must also be interpreted in the light of the international obligations binding upon South Africa. The United Nations Convention on the Rights of the Child, ratified by South Africa in 1995, seeks to impose obligations upon state parties to ensure that the rights of children in their are properly protected. Section 28 is one of the mechanisms to meet these obligations. It requires the state to take steps to ensure that children’s rights are observed. In the first instance, the state does so by ensuring that there are legal obligations to compel parents to fulfil their responsibilities in relation to their children. Hence, legislation and the common law impose obligations upon parents to care for their children. The state reinforces the observance of these obligations by the use of civil and criminal law as well as social welfare programmes.
Follow up: After the judgment, R200,000 (US$28,000) was made available to the community from which zinc sheets, windows and doors were purchased. Although the Court’s order required some on-going supervision of the improvement of the community, as of 2004, the municipality had neglected to carry out that aspect of the order. As a result, the deplorable conditions and lack of security for the community continued. In 2004, a national housing program focused on providing relief for persons in crisis situations was adopted as a new chapter of the National Housing Code. The policy takes as its starting point the obligations imposed on the government in Grootboom: “Events, such as . . . the landmark judgment of the Constitutional Court in the  Grootboom case, led [to] . . . the development of a National Housing Programme to expedite action in order to relieve the plight of persons in emergency situations with exceptional housing needs.” The objectives listed in the chapter emphasize the creation of an appropriate framework, proactive planning with regard to the provision of land, and a streamlined development and implementation process. Although the program is limited to those who are in desperate need owing to situations “beyond their control,” the definition covers persons in situations of “exceptional housing need . . . that can reasonably be addressed” who are evicted or threatened with eviction, whose homes were demolished or threatened with demolition, or who are displaced or threatened with imminent displacement. The program states that the only eligibility requirement is that the persons in desperate need are not in a situation to help themselves. In 2009, the government established a Housing Development Agency (HDA). The HDA was established to work with provinces, municipalities and private sector developers to double the country’s housing delivery rate. By the end of the March 2009, South Africa was projected to have built 2.8 million houses since 1994, providing shelter to more than 13.5-million people. Over 1.2-million of the houses were built from 2004 onwards.
CRIN comments: CRIN believes that this decision is somewhat consistent with the CRC. Under Article 27 of the Convention, children have the right to an adequate standard of living for physical, mental, spiritual, moral and social development. While it is true that parents or other carers have the primary responsibility to meet this right within their abilities and means, States are also obligated to assist those caring for children who are in need, particularly with regard to nutrition, clothing and housing. In this case, although the Court did find a violation of the right to housing under the national Constitution, the Court would also have been wise to note the South African government’s obligation under the CRC to assist families who are unable to provide their children with housing or any other necessities for an adequate standard or living.
Citation: 2001 (1) SA 46 (CC); ILDC 285 (ZA 2000)
Link to Full Judgment: http://www.saflii.org/za/cases/ZACC/2000/19.html