Download the file - United Nations Rule of Law

Policy responses to tenure insecurity155Box 6.26 Security of tenure case law in South AfricaIn terms of national-level judicial approaches to the question ofsecurity of tenure, three recent court cases in South Africa standout.In Grootboom, the first case under the South AfricanConstitution to address the complex questions of forced eviction,relocation and security of tenure, the Constitutional Courtasserted in 2001 that:1 The state is required to take reasonable legislativeand other measures. Legislative measures bythemselves are not likely to constitute constitutionalcompliance. Mere legislation is not enough.The state is obliged to act to achieve the intendedresult, and the legislative measures will invariablyhave to be supported by appropriate, well-directedpolicies and programmes implemented by theexecutive.These policies and programmes must bereasonable both in their conception and theirimplementation.The formulation of a programmeis only the first stage in meeting the state’s obligations.Theprogramme must also be reasonablyimplemented.An otherwise reasonable programmethat is not implemented reasonably will not constitutecompliance with the state’s obligations.2 In determining whether a set of measures isreasonable, it will be necessary to consider housingproblems in their social, economic and historicalcontext and to consider the capacity of institutionsresponsible for implementing the programme.Theprogramme must be balanced and flexible andmake appropriate provision for attention tohousing crises and to short-, medium- and longtermneeds.A programme that excludes asignificant segment of society cannot be said to bereasonable. Conditions do not remain static andtherefore the programme will require continuousreview.3 Effective implementation requires at leastadequate budgetary support by national government.This,in turn, requires recognition of theobligation to meet immediate needs in the nationwidehousing programme. Recognition of suchneeds in the nationwide housing programmerequires it to plan, budget and monitor the fulfilmentof immediate needs and the management ofcrises.This must ensure that a significant numberof desperate people in need are afforded relief,though not all of them need receive it immediately.Such planning, too, will require proper cooperationbetween the different spheres of government.In what has been described as a win–win case, in Modderklip (in2004), the Supreme Court of Appeal held that the state hadbreached its constitutional obligations to both the landowner andthe unlawful occupiers by failing to provide alternative land to theoccupiers upon eviction. The court thus consolidated the protectionextended to vulnerable occupiers in the Grootboom case bystipulating that they were entitled to remain on the land until alternativeaccommodation was made available to them.In the Port Elizabeth Municipality case, the South AfricanConstitutional Court (in 2005) ruled that:It is not only the dignity of the poor that is assailedwhen homeless people are driven from pillar to post ina desperate quest for a place where they and theirfamilies can rest their heads. Our society, as a whole, isdemeaned when state action intensifies rather thanmitigates their marginalization.The integrity of therights-based vision of the constitution is punctured whengovernmental action augments rather than reducesdenial of the claims of the desperately poor to the basicelements of a decent existence. Hence the need forspecial judicial control of a process that is both sociallystressful and potentially conflicutal (para 18)Section 6(3) [of the Prevention of IllegalEviction 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 placeto go to is something to which regard must be had, notan inflexible requirement.There is therefore no unqualifiedconstitutional duty on local authorities to ensurethat in no circumstances should a home be destroyedunless alternative accommodation or land is madeavailable. In general terms, however, a court should bereluctant to grant an eviction against relatively settledoccupiers unless it is satisfied that a reasonable alternativeis available, even if only as an interim measurepending ultimate access to housing in the formalhousing programme. (para 28)and (in section 25(5)) requires that ‘the state must takereasonable legislative and other measures, within itsavailable resources, to foster conditions which enablecitizens to gain access to land on an equitable basis’;• section 25(6), which provides that ‘A person or communitywhose tenure of land is legally insecure as a resultof past racially discriminatory laws or practices isentitled, to the extent provided by an Act of Parliament,either to tenure which is legally secure or to comparableredress.’Furthermore, and responding to the fact that many millionsof South Africans had been forcibly removed from theirhomes during the apartheid period, section 26 of the constitutionnow provides that:1 Everyone has the right to have access toadequate housing.2 The state must take reasonable legislativeand other measures, within its availableresources, to achieve the progressive