Section 26 Explained: The Right to Housing and the Reasonableness Test

Section 26 protects the right to housing — one of the most important socio-economic rights in post-apartheid South Africa. Millions live in informal settlements and inadequate housing. Section 26 requires the state to address this.

The Text of Section 26

Section 26(1): The Right to Housing

"Everyone has the right to have access to adequate housing."

Section 26(2): The State's Obligation

"The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right."

Section 26(3): Protection Against Eviction

"No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions."

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What Does Section 26 Guarantee?

"Access to Adequate Housing"

Key phrase: "Access to" — not "housing itself"

What this means:

• The state must create conditions that enable people to access housing
• The state does not have to provide a house to everyone immediately
• The state must implement reasonable programs to progressively realize the right

"Adequate housing" includes:

• Shelter (a roof over your head)
• Basic services (water, sanitation, electricity)
• Security of tenure (protection from arbitrary eviction)
• Location (reasonable access to work, schools, healthcare)

From Grootboom (2000):
"The state is not obliged to go beyond its available resources or to realise these rights immediately."

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The Reasonableness Test: Government of RSA v Grootboom (2000)

The landmark case on Section 26 is Grootboom.

The Facts

• Irene Grootboom and 899 others lived in appalling conditions (shacks on waterlogged land, no water, sanitation, or electricity)
• They were evicted and became homeless
• They challenged the state's housing program

The Issue

Does the state's housing program comply with Section 26?

The Holding

The state's program was unreasonable because it failed to provide for people in desperate need with no access to shelter.

The Reasonableness Test

The Constitutional Court developed a reasonableness test to assess whether the state is meeting its Section 26(2) obligations.

A reasonable housing program must:

1. Be Comprehensive and Coherent

The program must address all aspects of the housing crisis (emergency, short-term, long-term needs).

In Grootboom: The state's program focused on long-term housing but ignored people in immediate crisis (like Grootboom, who were homeless).

2. Be Balanced and Flexible

The program must balance competing demands (urban vs rural, different income groups, different housing needs).

3. Make Appropriate Provision for Those in Desperate Need

The program must include emergency relief for people in crisis.

This was the fatal flaw in Grootboom. The program had no provision for people with nowhere to live.

4. Be Transparent and Involve Meaningful Engagement

The state must consult with affected communities and be transparent about its plans.

5. Allocate Adequate Resources and Be Implemented

The state must allocate sufficient budget and actually implement the program (not just plan it).

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Progressive Realisation

Section 26(2): "The state must... achieve the progressive realisation of this right."

What is "Progressive Realisation"?

The state does not have to provide housing to everyone immediately.

Instead:

• The state must take reasonable steps toward full realization
• The state must show progress over time
• The state cannot go backward (retrogression is not allowed)

But: The state cannot ignore people in crisis while working toward long-term goals.

From Grootboom:
"A program that excludes a significant segment of society cannot be said to be reasonable."

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Within Available Resources

Section 26(2): "The state must take reasonable measures, within its available resources..."

What does this mean?

The state is not required to do the impossible. Resource constraints are acknowledged.

But:

• The state must allocate adequate resources to housing
• Budget constraints do not excuse total inaction
• The state must prioritize vulnerable groups

From Grootboom:
"It is necessary to recognise that a wide range of possible measures could be adopted... Many of these would meet the requirement of reasonableness."

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Section 26(3): Protection Against Eviction

"No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances."

What this protects:

You cannot be evicted without:

1. A court order
2. The court considering all relevant circumstances

"Relevant circumstances" include:

• Whether the occupier has alternative accommodation
• The vulnerability of the occupier (children, elderly, disabled)
• The impact of eviction on dignity and health
• The availability of state assistance

Key Legislation

Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE), 1998

PIE gives effect to Section 26(3) by:

• Requiring a court order for all evictions
• Requiring the court to consider whether the eviction is just and equitable
• Requiring the state to provide alternative accommodation in certain cases

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Landmark Cases on Section 26

Government of RSA v Grootboom (2000)

Issue: Is the state's housing program reasonable?

Holding: No. The program failed to provide for people in desperate need.

Principle: The reasonableness test — programs must be comprehensive, balanced, and include emergency relief.

Significance: Established the framework for enforcing socio-economic rights.

Port Elizabeth Municipality v Various Occupiers (2005)

Issue: Can the municipality evict unlawful occupiers without providing alternative accommodation?

Holding: Eviction without considering the occupiers' circumstances (including lack of alternative accommodation) violates Section 26(3).

Principle: Courts must engage in meaningful engagement — the state must negotiate with occupiers before seeking eviction.

Residents of Joe Slovo Community v Thubelisha Homes (2010)

Issue: Can the state evict residents to build new housing on the same land?

Holding: Eviction is lawful if:

• The state provides temporary accommodation during the building process
• The evictees will receive new housing on the same land
• There is meaningful engagement with the community

Principle: Section 26(3) does not prohibit all evictions, but they must be just and equitable.

Occupiers of 51 Olivia Road v City of Johannesburg (2008)

Issue: Can the city evict occupiers of a building it deems unsafe?

Holding: The city must engage meaningfully with occupiers to find a solution. Eviction is a last resort.

Principle: Meaningful engagement is mandatory before eviction.

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Positive vs Negative Obligations

Negative Obligation (Section 26(3))

The state must not evict people arbitrarily.

This is directly enforceable. Courts can stop unlawful evictions immediately.

Positive Obligation (Section 26(1) & (2))

The state must take steps to provide access to housing.

This is enforced via the reasonableness test. Courts assess whether the state's program is reasonable, but they do not order specific housing projects.

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Why Not Just Give Everyone a House?

Practical constraints:

• Cost: Providing housing for millions is extremely expensive
• Capacity: The state lacks the resources and infrastructure to build houses for everyone immediately
• Complexity: Housing programs must address land tenure, basic services, urban planning, etc.

Constitutional design:

• Section 26(2) acknowledges resource constraints
• The reasonableness test gives the state flexibility in how to implement housing programs
• Courts are reluctant to micromanage government policy

From Grootboom:
"The courts are ill-suited to adjudicate upon issues where court orders could have multiple social and economic consequences."

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Criticism of the Reasonableness Test

Strengths:

• Flexible (allows the state to adapt policies)
• Realistic (acknowledges resource constraints)
• Encourages dialogue between courts and government

Weaknesses:

• Weak enforcement — Courts can declare a program unreasonable, but cannot force the state to build houses
• No minimum core — The court in Grootboom declined to define a minimum level of housing the state must provide
• Slow progress — Despite Grootboom, millions still live in inadequate housing 20+ years later

Irene Grootboom herself died in 2008, still living in a shack.

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Practical Application: How to Use Section 26

Step 1: Identify the Right

Is the issue about:

• Access to housing (Section 26(1) & (2))?
• Eviction (Section 26(3))?

Step 2: Has the Right Been Infringed?

For Section 26(1) & (2): Apply the reasonableness test:

• Is the state's program comprehensive, coherent, balanced?
• Does it provide for those in desperate need?
• Is it transparent and implemented with adequate resources?

For Section 26(3):

• Was there a court order?
• Did the court consider all relevant circumstances (alternative accommodation, vulnerability, etc.)?

Step 3: Remedies

For Section 26(1) & (2):

• Declaratory order (court declares the program unreasonable and orders the state to fix it)
• Structural interdict (ongoing court supervision)

For Section 26(3):

• Stop the eviction (if unlawful)
• Order meaningful engagement (state must negotiate with occupiers)

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Common Exam Issues

Issue 1: Access to Housing ≠ A House

Section 26(1) guarantees access to housing, not immediate provision of a house.

Issue 2: Reasonableness is Context-Specific

A program that is reasonable in one city may be unreasonable in another. Courts assess specific facts.

Issue 3: Emergency Relief is Mandatory

Grootboom established that some provision must be made for people in desperate, immediate need. A program with no emergency component is unreasonable.

Issue 4: Eviction Requires a Court Order

Always. Even if someone is occupying land unlawfully, they cannot be evicted without a court order (Section 26(3)).

Issue 5: Meaningful Engagement is Mandatory

Before evicting, the state must negotiate with occupiers to explore alternatives.

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📚 Study Tips: Mastering Section 26

1. Know Grootboom Inside Out

This is the Section 26 case. Know:

• The facts (homeless families with children)
• The reasonableness test (5 elements)
• The holding (program unreasonable because no emergency relief)

2. Memorize the Reasonableness Test

Mnemonic: "CBTRI" (Comprehensive, Balanced, Those in need, Transparent, Resources/Implementation)

1. Comprehensive and coherent
2. Balanced and flexible
3. Those in desperate need (provision for them)
4. Transparent and meaningful engagement
5. Resources and Implementation

3. Link to Section 7(2)

Section 7(2) requires the state to respect, protect, promote, and fulfil rights. Section 26(2) is the fulfilment obligation in action.

4. Understand Progressive Realisation

• Not immediate provision
• Is reasonable steps over time
• Includes emergency relief for those in crisis

5. Know PIE (Prevention of Illegal Eviction Act)

PIE gives effect to Section 26(3). Know that evictions require:

• Court order
• Consideration of relevant circumstances
• Just and equitable outcome

6. Compare Grootboom and Mazibuko

• Grootboom → State's program unreasonable (no emergency relief)
• Mazibuko → State's program reasonable (balanced, within resources)

Lesson: Reasonableness depends on the specific facts.

7. Link to Dignity

Adequate housing is essential for dignity (Section 10). Courts emphasize that living in intolerable conditions undermines human dignity.

8. Practice Application

For every Section 26 question:

1. Which subsection? (26(1)/(2) or 26(3)?)
2. Apply the reasonableness test (if 26(1)/(2)) or eviction requirements (if 26(3))
3. Consider remedies (declaratory order, structural interdict, stop eviction)

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