RRLLB81 - LLB Research Report ASSIGNMENT SEMESTER 1 2021. 1. SUMMARY
The Court in Grootboom used reasonableness as a yardstick to measurepolicy,
legislative and other measures adopted by government in order to achievetheprogressive realisation of the right of access to adequate housing. Reasonabl...
1. SUMMARY
The Court in Grootboom used reasonableness as a yardstick to measure policy,
legislative and other measures adopted by government in order to achieve the
progressive realisation of the right of access to adequate housing. Reasonableness in a
sense that the courts can require an explanation from the State of the measures chosen
to fulfil the right pertaining of access to adequate housing and all other economic and
social rights. The courts can also require the State to give an account of its progress in
implementing these measures. In short, the State has an obligation to justify the means
it chooses to fulfil its obligations to realise economic and social rights. The judgment
explained some of the key duties imposed on the State by the right of access to
adequate housing in section 26 of the Constitution. This ruling has helped to transform
evictions law in South Africa. But what do the Grootboom judgment and housing
legislation mean in practice for people facing eviction or demolition of their homes? Of
particular importance is section 26 (3) of the Constitution which reads: “No one may be
evicted from their homes, or have their homes demolished, without an order of court
made after considering all the relevant circumstances. No legislation may permit
arbitrary evictions.”1 This article explores the relevant principles applicable to evictions
in our constitutional era and examines the progress that has been made and some of
the key challenges that remain. Grootboom,2 found that the measures taken by the
State to provide housing were unreasonable because no provision was made for shelter
for homeless people. Such inaction on the part of the government was unreasonable
because it ignored the plight of the marginalised section of our society. However, the
obligation of the State towards the realisation of the rights pertaining to housing and
other social and economic rights is qualified, in that the measures to be taken by the
State must be within resources available to the State and must also be progressive in
the realisation of the rights.6 The qualification does not mean that the State must
detract from its constitutional obligation, but provide a basis for a determination of
whether the reasons the State may provide as the non-fulfilment of the rights are
rational and justifiable. Unfortunately, legislation dealing with unlawful occupation of
1
The Constitution of the Republic of South Africa, 1996 (Hereinafter The Constitution).
2
Ors v Grootboom & Ors 2000 (11) BCLR 1169. (CC).
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1
, land and evictions namely, The Prevention of Illegal Eviction from and Unlawful
Occupation of Land Act 19 of 1998 (PIE) is difficult to interpret and costly and time
consuming to implement.3
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