Global Report on Human Settlements 2007 - PoA-ISS

Policy responses to tenure insecurity
155
Box 6.26 Security of tenure case law in South Africa
In terms of national-level judicial approaches to the question of
security of tenure, three recent court cases in South Africa stand
out.
In Grootboom, the first case under the South African
Constitution to address the complex questions of forced eviction,
relocation and security of tenure, the Constitutional Court
asserted in 2001 that:
1 The state is required to take reasonable legislative
and other measures. Legislative measures by
themselves are not likely to constitute constitutional
compliance. Mere legislation is not enough.
The state is obliged to act to achieve the intended
result, and the legislative measures will invariably
have to be supported by appropriate, well-directed
policies and programmes implemented by the
executive.These policies and programmes must be
reasonable both in their conception and their
implementation.The formulation of a programme
is only the first stage in meeting the state’s obligations.The
programme must also be reasonably
implemented.An otherwise reasonable programme
that is not implemented reasonably will not constitute
compliance with the state’s obligations.
2 In determining whether a set of measures is
reasonable, it will be necessary to consider housing
problems in their social, economic and historical
context and to consider the capacity of institutions
responsible for implementing the programme.The
programme must be balanced and flexible and
make appropriate provision for attention to
housing crises and to short-, medium- and longterm
needs.A programme that excludes a
significant segment of society cannot be said to be
reasonable. Conditions do not remain static and
therefore the programme will require continuous
review.
3 Effective implementation requires at least
adequate budgetary support by national government.This,
in turn, requires recognition of the
obligation to meet immediate needs in the nationwide
housing programme. Recognition of such
needs in the nationwide housing programme
requires it to plan, budget and monitor the fulfilment
of immediate needs and the management of
crises.This must ensure that a significant number
of desperate people in need are afforded relief,
though not all of them need receive it immediately.
Such planning, too, will require proper cooperation
between the different spheres of government.
In what has been described as a win–win case, in Modderklip (in
2004), the Supreme Court of Appeal held that the state had
breached its constitutional obligations to both the landowner and
the unlawful occupiers by failing to provide alternative land to the
occupiers upon eviction. The court thus consolidated the protection
extended to vulnerable occupiers in the Grootboom case by
stipulating that they were entitled to remain on the land until alternative
accommodation was made available to them.
In the Port Elizabeth Municipality case, the South African
Constitutional Court (in 2005) ruled that:
It is not only the dignity of the poor that is assailed
when homeless people are driven from pillar to post in
a desperate quest for a place where they and their
families can rest their heads. Our society, as a whole, is
demeaned when state action intensifies rather than
mitigates their marginalization.The integrity of the
rights-based vision of the constitution is punctured when
governmental action augments rather than reduces
denial of the claims of the desperately poor to the basic
elements of a decent existence. Hence the need for
special judicial control of a process that is both socially
stressful and potentially conflicutal (para 18)
Section 6(3) [of the Prevention of Illegal
Eviction from and Unlawful Occupation of Land Act,
which gives effect to sec 26(3) of the constitution]
states that the availability of a suitable alternative place
to go to is something to which regard must be had, not
an inflexible requirement.There is therefore no unqualified
constitutional duty on local authorities to ensure
that in no circumstances should a home be destroyed
unless alternative accommodation or land is made
available. In general terms, however, a court should be
reluctant to grant an eviction against relatively settled
occupiers unless it is satisfied that a reasonable alternative
is available, even if only as an interim measure
pending ultimate access to housing in the formal
housing programme. (para 28)
and (in section 25(5)) requires that ‘the state must take
reasonable legislative and other measures, within its
available resources, to foster conditions which enable
citizens to gain access to land on an equitable basis’;
• section 25(6), which provides that ‘A person or community
whose tenure of land is legally insecure as a result
of past racially discriminatory laws or practices is
entitled, to the extent provided by an Act of Parliament,
either to tenure which is legally secure or to comparable
redress.’
Furthermore, and responding to the fact that many millions
of South Africans had been forcibly removed from their
homes during the apartheid period, section 26 of the constitution
now provides that:
1 Everyone has the right to have access to
adequate housing.
2 The state must take reasonable legislative
and other measures, within its available
resources, to achieve the progressive