Chapter 1 - South African Human Rights Commission

3. Khosa and Others v Minister of Social Development and Others; Mahlaule and Another v Minister of Social
Development and Others 2004 (6) BCLR 569 (CC)
4. Lindiwe Mazibuko and Others v City of Johannesburg and Others 2009 ZACC 28, Case No CCT 39/09 (CC)
The Grootboom judgment 16 focused on the right of access to adequate housing of a group of extremely poor
people, 510 children and 390 adults, who were living in bad conditions 17 in an informal settlement in Wallacedene,
Cape Town. In a desperate attempt to ameliorate their living conditions, they moved onto vacant land that was
privately owned and earmarked for low-cost housing. Eviction proceedings were successfully instituted against
the community. The community then sought refuge on a sports eld with nothing but plastic sheeting to protect
them from the elements. They applied to the High Court for an order against all spheres of government to be
provided with temporary shelter or housing until they got permanent accommodation. They relied on the right
of access to adequate housing in section 26 (1) and the right of children to shelter in section 28 (1) (c) of the
Constitution. The Cape High Court found that there was only a violation of the right of children to shelter and
not the right to adequate housing, and hence the claim under section 26 (1) was rejected. The government then
appealed the decision to the Constitutional Court but the court found that the state was in breach of its obligation
in terms of section 26 on the basis of the reasonableness approach.
In the Grootboom judgment, the Constitutional Court developed a test for reasonableness as a guide to decide
whether the government’s programme met constitutional requirements. In paragraph 39 of the judgment, the court
held that a government programme: “must clearly allocate responsibilities and tasks to the different spheres of
government and ensure that the appropriate nancial and human resources are available”. The court further held
that “a co-ordinated state housing programme must be a comprehensive one determined by all three spheres of
government in consultation with each other as contemplated by Chapter 3 of the Constitution.” 18 The programme
must furthermore be coherent and capable of facilitating the realisation of the right 19 and passing legislation is not
suf cient to full the constitutional requirement of reasonableness.
“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 executives. These policies
and programmes must be reasonable in their conception and their implementation.” 20
Furthermore “the programme must be balanced and exible and make appropriate provision for attention to
housing crisis and to short, medium and long term needs. A programme that excludes a signi cant segment of
society cannot be said to be reasonable.” 21
Finally, the test caters for those most in need: “Those, whose needs are the most urgent and whose ability to enjoy
all rights therefore is most in peril, must not be ignored by the measures aimed at achieving realisation of the right.
It may not be suf cient to meet the test of reasonableness to show that the measures are capable of achieving a
statistical advance in the realisation of the right.” 22
The court held that the state had instituted an integrated housing development policy in which medium and long
term objectives cannot be criticised. However, it argued that the housing programme lacked any component
providing for those in desperate need. It therefore found that the absence of such a component was unreasonable
and therefore concluded that the nationwide housing programme fell short of the obligations imposed upon
national government. 23
The TAC case 24 pertained to the access to adequate health care. The Treatment Action Campaign (TAC)
challenged the limited nature of government measures introduced to prevent mother-to-child transmission of HIV
on two grounds. They argued:
16 Government of the Republic of South Africa and Others v Grootboom and Others 2000 (11) BCLR 1169 (CC).
17 They had no water, sewage, refuse removal and only 5% of the shacks had electricity.
18 Government of the Republic of South Africa (note 17 above) 40.
19 Ibid 41.
20 Ibid 42.
21 Ibid 43.
22 Ibid 44.
23 Jacobs, C. (note 14 above).
24 Minister of Health and Others v Treatment Action Campaign and Others 2002 (10) BCLR 1075 (CC).
10
7 th Report on Economic and Social Rights, South African Human Rights Commission, 2006–2009