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Countries-ESCR litigation Archives: South Africa

City of Johannesburg Metropolitan Municipality v. Blue Moonlight Properties 39 (Pty) Ltd and Another, CCT 37/11 [2011] ZACC 33

Year: 2011 (Date of Decision: 1 December, 2011)

Forum, Country: Constitutional Court; South Africa

Standards, Rights: Reasonableness; Right to adequate housing

Summary Background: The case raised the issue of occupiers of 7 Saratoga Avenue – a community of 86 poor people living in a disused industrial property in Berea, Johannesburg. In 2006, they were sued for eviction by the owner of the property. The question submitted for the decision of the court was whether the occupiers must be evicted to allow the owner to exercise their rights regarding the property and, if so, whether their eviction gave rise to the obligation of the City to provide them with accommodation, even if they were evicted from a private estate and not from public land. In the case, the question of the resources of the City was also raised.

Holding: The Court accordingly upheld the order of the Supreme Court of Appeal [SCA] by ordering the eviction of the occupiers 14 days after the City was ordered to provide those occupiers who were in need with temporary accommodation. This was to ensure that they would not be rendered homeless because of the eviction. The Court found that the City had a “duty to plan and budget proactively for situations like that of the Occupiers” [para. 67] and that its lack of resources was the product of its incorrect understanding of the relevant legislation. Furthermore, the Court upheld the finding of the SCA that the City was not able to show that it was incapable of meeting the needs of the Occupiers. The Court further stated that “[t]he City provided information relating specifically to its housing budget, but did not provide information relating to its budget situation in general. We do not know exactly what the City’s overall financial position is. This Court’s determination of the reasonableness of measures within available resources cannot be restricted by budgetary and other decisions that may well have resulted from a mistaken understanding of constitutional or statutory obligations. In other words, it is not good enough for the City to state that it has not budgeted for something, if it should indeed have planned and budgeted for it in the fulfilment of its obligations” [para. 74].

Additional Comments: The Occupiers submitted that ‘it would not be just and equitable to grant an eviction order, if the order would result in homelessness’ [para. 32]. As for the City, it contended that the eviction was sought at the instance of the owner of the property, and noted that it cannot be “held responsible for providing accommodation to all people who are evicted by private landowners” [para. 32].

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Western Cape Forum for Intellectual Disability v. Government of the Republic of South Africa, Government of the Province of Western Cape, Case no: 18678/2007

Year: 2010 (Date of Decision: 11 November, 2010)

Forum, Country: High Court; South Africa

Standards, Rights: Reasonableness; Non-discrimination and equal protection of the law; Human dignity; Negligence; Right to education; Persons with disabilities

SummaryBackground: This case concerned the rights of severely and profoundly intellectually disabled children in the Western Cape and allegations that their educational needs were not being adequately met by the South African national and Western Cape Governments. Children with such disabilities were unable to receive care except at limited places in centres run by NGOs, which were insufficient in number. Children who could not obtain access to these centres received no education at all. It was contended that State educational provisions made for these children were very much reduced as compared to other children and any provisions made were inadequate to cater to the educational needs of the affected children.

Holding: The Court held that the respondents (the South African and West Cape Governments) had failed to take reasonable measures to make provision for the educational needs of severely and profoundly intellectually disabled children in the Western Cape, in breach of the rights of children to a basic education, protection from neglect or degradation, equality, human dignity [para. 52 (1)].

On the right to education, the Court found that the State had violated this right, both in respect of the positive dimension of the right, by failing to provide the affected children with a basic education and also in respect of the negative dimension of the right, by not admitting the children concerned to special or other schools [para. 45]. The Court found no justification for this violation. The State failed to establish that their policies were reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom [para. 42].

The Court additionally held that the children’s rights to dignity had been violated as the discrimination they have faced had in effect caused them to be marginalized and ignored [para. 46]. The failure to provide the children with education placed them at the risk of neglect, as it meant that they often had to be educated by parents who did not have the skills to do so and are already under strain. The inability of the children to develop to their own potential, however limited that may be, is a form of degradation. This unjustifiably violated their right of protection from neglect and degradation [paras. 46 and 47].

In light of these findings, the judgement required the State to take reasonable measures (including interim steps) to ensure access to education for every child in the Western Cape who was severely and profoundly intellectually disabled, provide necessary funds for special care centres and transportation of the children to these centres and to develop a plan of action to remedy the aforementioned violations [para. 52].

Additional Comments: The national Government chose not to appeal this decision.

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Joseph v. City of Johannesburg, Case CCT 43/09

Year: 2009 (Date of Decision: 9 October, 2009)

Forum, Country: Constitutional Court; South Africa

Standards, Rights: Procedural fairness; Human dignity; Right to adequate housing

Summary Background: In this case, the applicants sought a declaration regarding their entitlement to notice before municipal agencies terminated their power supply. Although the applicants who were tenants had regularly paid the owner of their building their electricity bills as part of the rent, the owner had run up arrears, due to which the City of Johannesburg’s electricity service provider, City Power, discontinued supply, giving notice to the owner, but not the tenants with whom City Power has no contractual relationship. The applicants lived without electricity for around one year, as they could not afford to move.

Holding: In this case, violation of human dignity was argued as the termination of electricity supply constituted a retrogressive measure violating the negative obligation to respect the right to adequate housing protected under the Constitution; however the case was primarily decided on the basis of the procedural fairness principle [paras. 2 and 32].

The Court held that electricity is one of the most important basic municipal services and that municipalities have constitutional and statutory obligations to provide electricity to the residents in their area as a matter of public duty [paras. 34-40]. The Court thus affirmed that the applicants were entitled to receive this service as a public law right [para. 40].

The Court further held that the government was required to act in a manner that is responsive, respectful and in conformity with procedural fairness when fulfilling its constitutional and statutory obligations [para. 46]. The Court outlined the importance of procedural fairness in the following terms: “Procedural fairness … is concerned with giving people an opportunity to participate in dignity and worth of the participants, but is also likely to improve the quality and rationality of administrative decision-making and to enhance its legitimacy” [para. 42]. Accordingly, the Court decided that in depriving the tenants of a service they were receiving as a matter of right, City Power was obliged to afford them procedural fairness before taking a decision which would materially and adversely affect that right [para. 47]. The Court found that procedural fairness in this case included adequate notice (containing all relevant information) at least 14 days before disconnection [para. 61]. Implied in the affording of such notice is that users of the municipal service may approach the City, within the notice period, to challenge the proposed termination or to tender arrangements to pay off arrears [para. 63]. The order also declared that, to the extent the electricity by-laws permit the termination of electricity supply “without notice”, these by-laws are unconstitutional.

In addition the discontinuation of electricity supply to the applicant’s residence was found to be unlawful and the City was ordered to reconnect the building immediately [para. 78].

Additional Comments: This case addresses the State’s duty to respect ESC rights.

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Lindiwe Mazibuko & Others v. City of Johannesburg & Others, Case CCT 39/09, [2009] ZACC 28

Year: 2009 (Date of Decision: 8 October, 2009)

Forum,Country: Constitutional Court; South Africa

Standards, Rights: Reasonableness; Rights to water and sanitation

Summary Background: This case considers the lawfulness of a project the City of Johannesburg piloted in Phiri in early 2004 that involved re-laying water pipes to improve water supply and reduce water losses, and installing pre-paid meters to charge consumers for use of water in excess of the six kiloliters per household monthly free basic water allowance.

Holding: The Court held that the right of access to adequate water protected under the Constitution did not require the State to provide upon demand every person with sufficient water, but rather required the State to take reasonable legislative and other measures to realize achievement of the right within available resources [para. 50].

In the Court’s estimation, the free basic water policy established by the City of Johannesburg, which charged consumers for use of water in excess of the free basic water allowance of six kiloliters, fell within the bounds of reasonableness [para. 9]. In elaborating on the reasonableness test and delineating the court’s role as regards the State’s positive obligations, the decision states, “the positive obligations imposed upon government by the social and economic rights in our Constitution will be enforced by courts in at least the following ways. If government takes no steps to realize the rights, the courts will require government to take steps. If government’s adopted measures are unreasonable, the courts will similarly require that they be reviewed so as to meet the constitutional standard of reasonableness…. Finally, the obligation of progressive realization imposes a duty upon government continually to review its policies to ensure that the achievement of the right is progressively realized” [para. 67]. The Court affirmed the democratic value of litigation on social and economic rights. It noted that the applicants’ case required the City to account comprehensively for the policies it has adopted and establish that they are reasonable [paras. 160-163].

On the issue of minimum core protection of the right to water, the Constitutional Court concluded, in contrast to the High Court and the Supreme Court of Appeal, that it is not appropriate for a court to give a quantified content to what constitutes “sufficient water”, as this is a matter best addressed in the first place by the government [paras. 56 and 61-68].

Additional Comments: This case reflects a deferential approach by the Court and in particular, a reluctance to interfere in matters it deems as falling within the executive and legislative spheres.

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Residents of the Joe Slovo Community, Western Cape v. Thubelisha Homes and others, 2010 (3) SA 454 (CC)

Year: 2009 (Date of Decision: 10 June, 2009)

Forum, Country: Constitutional Court; South Africa

Standards, Rights: Reasonableness; Right to adequate housing; Right to an adequate standard of living

Summary Background: Around 20,000 occupiers of the Joe Slovo informal settlement in Cape Town appealed an order for their eviction. The order was issued by the High Court on the basis of a petition from government agencies and a housing company developing low-income housing at the site. The housing company pledged temporary accommodation, but did not guarantee any permanent housing to the occupiers.

Holding: The Constitutional Court analyzed the evictions in question against the reasonableness standard, referenced precedents in this area of review, such as the Grootboom case, and held that while there might have been more meaningful engagement with the residents who were established as “unlawful occupiers”, overall the eviction action was reasonable [paras. 6, and 115-118]. Given that the eviction was sought for the purpose of developing low cost housing with safe and healthy conditions as a step to progressively realizing the right of housing for those living in extreme conditions of poverty, homelessness or intolerable housing, as well as that the respondents had since assented to a significant allocation of the new development for the present occupiers to account for their dire housing needs, the judgement considered that the government had acted in a reasonable manner in seeking to promote the human right to housing [paras. 138, 139, 172-175, 228 and 234]. However, as regards the eviction, the court order stipulated, based on a suggestion by the respondents, that adequate alternative temporary accommodation meeting court-specified standards had to be provided [para. 10] and the occupiers’ expectation that 70 percent of the houses in the new development would be allocated to them had to be fulfilled if they qualified for the housing [paras. 5 and 400].

The Court further mandated that there must be individual engagement with householders before their move, including on the timetable for the move and other issues, for instance, assistance with moving their possessions, and the provision of transport facilities to schools, health facilities and places of work. Additionally, the Court specified that the accommodation had to be ensured at the point of eviction [paras. 5 and 400].

Additional Comments: In this case, the standard of reasonableness review is difficult to evaluate, as the emphasis of the Court is on achieving consensus between the two parties, rather than scrutinizing the State policy for compliance with its housing right obligations under the Constitution. It becomes clear when looking at the various case law invoking the reasonableness test as a standard of review, that it “allows the court considerable freedom when assessing the constitutionality of State action”. (Kirsty McLean, Constitutional Deference, Courts and Socio-economic Rights in South Africa, p. 173). The emphasis on the need to comply with certain procedural protections before any eviction can take place (and the reference in this context to General Comment 7 of the CESCR) [paras. 236 and 237] highlights the State’s duty to respect the right to housing while the focus of the State’s long term plan to progressively realize the human right to housing elevates the State’s duty to fulfil the right.

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