Government of the Republic of South Africa and Others v Grootboom and Others

Mrs Irene Grootboom and 899 other respondents (510 children and 390 adults) lived in appalling conditions in an informal squatter settlement called Wallacedene in the Oostenberg Municipality, Cape Metropolitan area. About a quarter of households had no income, and more than two-thirds earned less than R500 per month. They had no water, sewage, refuse removal, and only 5% had electricity. Many had been on a waiting list for subsidized low-cost housing for up to seven years. Facing indefinite intolerable conditions, the respondents moved in September 1998 onto privately owned vacant land (called "New Rust") earmarked for formal low-cost housing development. They occupied the land without consent. The landowner obtained an eviction order in December 1998. On 18 May 1999, during winter, the respondents were forcibly evicted at the municipality's expense; their shacks were bulldozed and burnt, and possessions destroyed. They sheltered on the Wallacedene sports field under temporary structures. When winter rains began, they brought an urgent application to the Cape High Court on 31 May 1999 for an order requiring government to provide adequate basic shelter or housing until they obtained permanent accommodation.

• Whether section 26 of the Constitution (the right of access to adequate housing) imposes an obligation on the state to provide immediate shelter to those in desperate need
• Whether section 26(2) requires the state to devise and implement a reasonable housing programme within available resources
• Whether the state housing programme was reasonable and complied with section 26(2) obligations
• Whether section 28(1)(c) (children's right to shelter) creates an independent and direct obligation on the state to provide shelter to children and their parents on demand
• What constitutes 'reasonable legislative and other measures' within the meaning of section 26(2)
• Whether the concept of 'minimum core obligation' in international law should be applied to interpret section 26
• Whether the state's housing programme adequately provided for people in crisis or desperate need

The appeal was allowed in part. The Cape High Court order was set aside. The Constitutional Court declared that: (a) Section 26(2) requires the state to devise and implement within available resources a comprehensive and coordinated programme progressively to realize the right of access to adequate housing; (b) The programme must include reasonable measures to provide relief for people with no access to land, no roof over their heads, and living in intolerable conditions or crisis situations; (c) As at the date of launch of the application, the state housing programme in the Cape Metropolitan area failed to comply with these requirements. The Human Rights Commission was to monitor and report on the state's compliance with its section 26 obligations. There was no order as to costs.

The binding legal principles established are: (1) Socio-economic rights in the Constitution are justiciable and enforceable by courts. (2) Section 26(2) imposes an obligation on the state to take reasonable legislative and other measures, within available resources, to achieve the progressive realization of the right of access to adequate housing. (3) Reasonableness under section 26(2) requires: (a) a comprehensive and coordinated programme involving all three spheres of government; (b) the programme must be capable of facilitating realization of the right; (c) it must be balanced and flexible, addressing short, medium and long-term needs; (d) it must make appropriate provision for attention to housing crises and for those in desperate need; (e) a programme that excludes a significant segment of society cannot be reasonable; (f) measures must be evaluated with regard to human dignity and the degree and extent of denial of the right. (4) Progressive realization means the state must take steps to achieve the goal of meeting basic needs, making access progressively more available to more people over time, moving as expeditiously and effectively as possible. (5) A housing programme that fails to provide any relief for people in desperate need, with no access to land, no shelter, and living in intolerable conditions or crisis situations, is unreasonable and fails to meet the state's section 26(2) obligations. (6) Section 28(1)(c) must be read with section 28(1)(b) and in the context of sections 26 and 27; it does not create an independent, unqualified obligation on the state to provide shelter on demand to children being cared for by their parents.

The Court made several important non-binding observations: (1) While international law, including the International Covenant on Economic, Social and Cultural Rights and general comments by the UN Committee on Economic, Social and Cultural Rights, may guide interpretation, the weight depends on context, and differences between international instruments and the Constitution are significant. (2) The concept of minimum core obligation developed in international law was not adopted as the test under section 26, as the Court lacked sufficient information to determine minimum core content, and reasonableness is the appropriate test, though minimum core may be relevant in assessing reasonableness in some cases. (3) The right of access to adequate housing in section 26(1) includes access to land for housing purposes and recognizes that not only the state but other agents in society must be enabled to provide housing. (4) The state's obligation differs depending on whether people can afford housing; for those who can, the obligation is to unlock systems and provide access and a legislative framework; for the poor, issues of development and social welfare arise. (5) Human dignity is fundamental to evaluating reasonableness of state action concerning housing. (6) All state action at every level must be consistent with section 26; evictions must be humanely executed. (7) Land invasions are inimical to systematic planned housing provision, and a state decision not to provide preferential housing in response to land invasions may be reasonable depending on the facts. (8) The Housing Act provisions requiring consultation with affected communities and promotion of conflict resolution in housing development are important. (9) The eviction of the respondents was reminiscent of apartheid-era evictions and inconsistent with constitutional values.

Grootboom is a landmark decision in South African constitutional law and globally significant in the jurisprudence of socio-economic rights. It established that socio-economic rights are justiciable and enforceable. The judgment set out the test for evaluating whether the state has fulfilled its obligations under section 26: whether the legislative and other measures adopted are reasonable. Reasonableness requires a comprehensive, coherent, coordinated programme that is balanced and flexible, responds to short, medium and long-term needs, makes provision for those in desperate need, and is implemented with regard to human dignity. The judgment clarified that section 26 creates an obligation of progressive realization within available resources, not an obligation to provide housing on demand. It rejected the application of a rigid minimum core obligation approach in South African law, while recognizing that a reasonable programme cannot ignore those most desperately in need. The case illustrates the court's approach to enforcing socio-economic rights through declaratory orders and monitoring mechanisms, respecting separation of powers while holding government accountable. It remains the foundational case on the right to housing and the interpretation of socio-economic rights in South Africa.