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Principles and standards Archives: Reasonableness

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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Diau v. Botswana Building Society

Year: 2003 (Date of Decision: 19 December, 2003)

Forum, Country: Industrial/Labour Courts; Botswana

Standards, Rights: Non-discrimination and equal protection of the law; Reasonableness; Human dignity; Right to decent work

Summary Background: The applicant employee challenged the lawfulness and constitutionality of the respondent employer’s termination of her employment contract. The applicant contended that her refusal to undergo an HIV/AIDS test was “unreasonable” and in violation of sections 3, 7(1), 9(1) and 15(2) of the Botswana Constitution, and that the six month imposed probationary period of work exceeded the requisite three months permitted for “unskilled workers” as per section 20(1) of the Employment Act. The Court determined the applicant had in fact been an “unskilled worker” and affirmed the unlawfulness of the termination of the contract past the three-month probationary period. The imposition of the HIV test and subsequent termination was held to be in violation of the right to dignity and liberty.

Holding: The Court addressed the issue of whether the respondent’s termination of the employment contract shortly after the employee’s refusal to take an HIV test amounted to unfair discrimination, violation of privacy, dignity and liberty. While the reasons for termination were not expressly confirmed by the respondent, the Court took the view that the applicant’s dismissal without valid reason was clearly linked to her refusal to submit to an HIV test.

The Court noted that while Botswana does not provide binding legislation governing issues of HIV/AIDS and the workplace, the National AIDS Policy is consistent with the World Health Organization, SADC Code of Good Practice on HIV/AIDS and Employment (1997), HIV/AIDS and Human Rights: International Guidelines, United Nations (1998) and ILO guidelines on HIV/AIDS in the workplace, which encourage voluntary testing and denounce compulsory employment testing in determining one’s fitness to work [p. 12, para. D].

The Court acknowledged the stigmatization perpetuated by such mandatory measures and the “grossly unreasonable and unjust” consequences of employment terminated following a finding of an HIV positive result. The Court recalled the South African case of Hoffman v. South African Airways (2002), in which an individual successfully completed a four stage interview process and medical examination for a cabin attendant position, yet whose report was marked “unsuitable ” following an HIV positive test result [p. 13, para. D].

The Court went on to assess the specific violations of constitutional rights alleged by the applicant.

The right to privacy

Section 9(1) of the Constitution – Prohibits unauthorized search of the person, yet in this case no actual invasion took place as the applicant refused to submit to a test. Thus the right to privacy was not violated.

The right to non-discrimination

Section 15 of the Constitution – The Court referred to the contention that the applicant’s refusal to submit to an HIV test was due to a suspicion that she was likely to be HIV positive. While it could thus be inferred that the respondent terminated the contract on the “suspicion or perceived HIV positive status of the applicant,” there is no evidence to support that the applicant was in fact suspected to be HIV/AIDS positive. The respondent’s conduct thus could not be discriminatory, as no evidence demonstrated dismissal on the grounds of this suspicion.

Notably, the Court affirmed that the list of unconstitutional grounds of discrimination is not exhaustive, and that the ground of HIV status or perceived HIV status would be considered to be an unlisted ground under section 15(3) of the Botswana Constitution. Additionally, the Court noted that the principle of equality does not prohibit treating people differently, but rather “people in the same position should be treated the same,” free from irrational or unjustifiable discrimination [p. 18 at para. D].

The right to dignity

Section 7(1) of the Constitution – Quoting Ngcobo J in Hoffman v. South African Airways (2002), the Court noted that “Society’s response to (people living with HIV) has forced many of them not to reveal their HIV status for fear of prejudice. This has in turn deprived them of the help they would otherwise have received. People who are living with AIDS are one of the most vulnerable groups in society (and) the impact of discrimination on HIV positive people is devastating.” [p. 18 para. E].

The Court concluded the respondent’s conduct was inhumane and degrading, as he imposed upon the applicant the choice between protecting her employment by undergoing the test and simultaneously violating her right to privacy and bodily integrity, or insisting upon this right and losing her employment. This infringement of the right to dignity was found to be “demeaning, undignified, degrading and disrespectful to the intrinsic worth of human beings.” [p. 18 para. H].

The right to liberty

Section 3(a) of the Constitution- ‘Liberty’ was understood by the Court to include the right of individuals to make inherently private choices, free from irrational and unjustified interference by others. These involve those inherently personal matters that “go to the core of what it means to enjoy individual dignity and independence” [p. 20, para. A]. On the facts, the Court deemed that the choice to take an HIV test was fundamentally personal and relating to individual autonomy, and thus the respond ent’s imposition of an HIV/AIDS test coupled with the employee’s dismissal infringed the applicant’s right to liberty.

Additional Comments: The Court noted that “even the remotest suspicion of being HIV/AIDS positive can breed intense prejudice, ostracization and stigmatization” [p.18, para. H], highlighting the necessity to analyse such cases with particular scrutiny.

Link to Full Case: Diau v. Botswana Building Society, 2003 (2) BLR 409(IC), Industrial Court, Gaborone, Case No. IC No 50 of 2003, available at

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Park West Management Corp. v. Mitchell, 391 N.E.2d 1288 (N.Y. 1978)

Year: 1978 (Date of Decision: 2 May, 1978)

Forum, Country: Appellate Division of the Supreme Court of New York, United States of America

Standards, Rights: Reasonableness; Right to adequate housing; Right to health

SummaryBackground: This case involves the property law right of the “implied warranty of habitability”, which guarantees a tenant a liveable home environment. The landlord is responsible for the upkeep and maintenance of a property, and cannot allow for conditions that would affect the health and safety of the tenant. In this case, tenants of this building withheld their rent to protest the interruption of extensive garbage removal and janitorial services which affected the health and safety of the tenants. The janitorial staff had gone on strike, causing many services and amenities to stop. This caused the building to turn into an environment where rats, roaches and other vermin flourished. Routine maintenance was not completed and trash incinerators were wired shut.

Holding: The Court determined that anything detrimental to life, health, and safety is considered a breach of the warranty of habitability and violates a tenant’s rights as guaranteed by the housing code. The ruling described a residential lease as a sale of shelter and needs to encompass services, which render the premises suitable for which they are leased. While the premises need not be perfect, they must not perpetuate conditions that can adversely affect the tenant’s health and safety [p. 1294-95]. Further, the overarching test for determining whether a property is liveable is based on a reasonable person standard. If a reasonable person would not find a place habitable, then the implied warranty of habitability has been breached [p. 1295].

This would also be a violation of the Right to Housing.

Additional Comments: Damages should be awarded through a balancing test in which the fact finder must weight the severity of the violation, the duration of the conditions, and the steps taken by the landlord to remedy the situation. In this case, the judge awarded 10 per cent deduction on the rent due to the severity of the conditions and the meagre attempts by the landlord to remedy the situation [p. 1295].

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