THE Minister of Human Settlements Lindiwe Sisulu, like everyone else, is constrained in her actions and pronouncements by the requirements of the constitution. Laws and conduct inconsistent with the constitution are invalid. The question now at issue is whether Sisulu’s pronouncement that most people under 40 years of age should not expect a house from the state will stand up to constitutional scrutiny?
Certainly, the bill of rights does not promise a house to anyone of any age. Instead, it guarantees to all, of all ages, the right "to have access to adequate housing".
This right is not absolute. It is expressly subjected to the duty of the state to take reasonable measures "within its available resources, to achieve the progressive realisation of this right". The right can also be limited "only in terms of a law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom".
The phrase "access to adequate housing" has received judicial consideration by the Constitutional Court in the well-known leading case of Grootboom versus the government of SA, in which Justice Zak Yacoob found the following:
• Like all the other rights in chapter 2 of the constitution (which contains the bill of rights), section 26 must be construed in its context. The section has been carefully crafted. It contains three subsections. The first confers a general right of access to adequate housing. The second establishes and delimits the scope of the positive obligation imposed on the state to promote access to adequate housing and has three key elements. The state is obliged: (a) to take reasonable legislative and other measures; (b) within its available resources; (c) to achieve the progressive realisation of this right. These elements are discussed later. The third subsection provides protection against arbitrary evictions.
• Interpreting a right in its context requires the consideration of two types of context. On the one hand, rights must be understood in their contextual setting. This will require a consideration of chapter 2 and the constitution as a whole. On the other hand, rights must also be understood in their social and historical context.
• Our constitution entrenches civil and political rights and social and economic rights. All the rights in our bill of rights are interrelated and mutually supporting. There can be no doubt that human dignity, freedom and equality, the foundational values of our society, are denied those who have no food, clothing or shelter. Affording socioeconomic rights to all people therefore enables them to enjoy the other rights enshrined in chapter 2. The realisation of these rights is also key to the advancement of race and gender equality and the evolution of a society in which men and women are equally able to achieve their full potential.
• The right of access to adequate housing cannot be seen in isolation. There is a close relationship between it and the other socioeconomic rights. Socioeconomic rights must all be read together in the setting of the constitution as a whole. The state is obliged to take positive action to meet the needs of those living in extreme conditions of poverty, homelessness or intolerable housing. Their interconnectedness needs to be taken into account in interpreting the socioeconomic rights and, in particular, in determining whether the state has met its obligations in terms of them.
• Rights also need to be interpreted and understood in their social and historical context. The right to be free from unfair discrimination, for example, must be understood against our legacy of deep social inequality. The context in which the bill of rights is to be interpreted was described by Judge Arthur Chaskalson in the case Soobramoney versus the Minister of Health.
Justice Yacoob then quoted Judge Chaskalson: "We live in a society in which there are great disparities in wealth. Millions of people are living in deplorable conditions and in great poverty. There is a high level of unemployment, inadequate social security and many do not have access to clean water or to adequate health services. These conditions already existed when the constitution was adopted and a commitment to address them and to transform our society into one in which there will be human dignity, freedom and equality lies at the heart of our new constitutional order. For as long as these conditions continue to exist, that aspiration will have a hollow ring."
The court went on to require of the state that it foster conditions that enable people to gain access to land on an equitable basis, but stressed that this did not oblige the state to go beyond its available resources or to realise these rights immediately. Nevertheless, the state must give effect to these rights and, in appropriate circumstances, the courts can and must enforce the obligation to provide access to adequate housing. The question is always whether the measures taken by the state to realise the rights afforded by section 26 are reasonable.
It is highly unlikely that the courts are going to find that the utterances of Sisulu, which deprive most under forties of their right to access to adequate housing, are constitutionally valid.
The minister would do well to pause to consider whether the measures presently in place are in fact doing anything to achieve the progressive realisation of the right to access to adequate housing by using available resources in a manner that achieves this worthy constitutional goal.
According to the National Development Plan, the backlog of housing units is about 2.1-million and the cost of addressing it is estimated at R300bn, a sum which the state clearly does not have readily available. The General Household Survey shows that about 7-million people are informally housed in SA today. This implies that most of them do not have access to adequate housing. Many shacks are dark and dismal, rat-infested and prone to fires in summer and floods in winter if they are situated in the Western Cape. The fire and flood season is different in the north of the country, but the effects are the same. Intolerably poor living conditions, with inadequate sanitation and overcrowding are the lot of too many people in SA.
Instead of casting aside the under-40 group, Sisulu should be giving consideration to innovative designs and methods of adequate housing for everyone. This does not necessarily mean an RDP house for all, but if the bill of rights means anything, it means that nobody should be deprived of access to adequate housing for a moment longer than is necessary, given the available resources of the state and its duty to progressively realise the right to access to adequate housing.
The notion of transition housing has previously been suggested. It is aimed at affording the inadequately housed a measure of dignity pending their own or the state’s ability to comply with the provisions of section 26 of the bill of rights. That transition housing is preferable to informal housing is beyond question. Transition housing is in fact "adequate housing" and it costs a mere fraction of an RDP house. Many more people can be accommodated in a much shorter time if the authorities simply throw their weight behind the rolling out of various forms of transition housing as soon as possible.
It is simply not sustainable to persist in expecting so many people to live for so long in such intolerable conditions as exist in the informal settlements around the urban fringes of the country. Transition housing is a constitutionally compliant solution to the problem the minister seeks to solve by requiring most people under 40 to solve it themselves. She should champion transition housing.
• Paul Hoffman SC is a director of the Institute for Accountability.
- BDLive
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