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1______________________________________________________________________________JUSTICIABILITY OF THE RIGHT TO HOUSING -THE SOUTH AFRICAN EXPERIENCEGEOFF BUDLENDERLegal Resources Centre, Cape TownEveryone has the right to have access to adequate housingThe state must take reasonable legislative and other measures, within its availableresources, to achieve the progressive realisation of this rightNo one may be evicted from their home, or have their home demolished, without an orderof court made after considering all of the relevant circumstances.No legislation may permitarbitrary evictions.Sec 26, Constitution of the Republic of South Africa, 1996The UN Committee on Economic, Social and Cultural Rights has adopted the analysis of a number ofcommentators, that human rights create three forms of state obligation: ‘The right to health, like all humanrights, imposes three types or levels of obligations on States parties: the obligations torespect,protectandfulfil’ the right.1Some commentators add a further element, namely the obligation to‘promote’the right.2The South African Constitutional Assembly explicitly adopted this formulation.Section 7(2) of theConstitution states that ‘The State must respect, protect, promote and fulfil the rights in the Bill of Rights’.1General Comment 14, E/C.12/2000/4 (The right to the highest attainable standard standard ofhealth), paragraph 332CravenThe International Covenant on Economic, Social and Cultural Rights(Clarendon, Oxford,1995) at 109.In this paper I examine how the right to housing is justiciable, using this typology as a convenient means ofanalysis.
2The leading South African case on the right to housing - in fact our landmark case on social and economicrights generally - isGovernment of the Republic of South Africa and others v Grootboom and others.3I will refer later to the case in more detail.At this stage, it may be helpful to set out the ConstitutionalCourt’s explanation of how the three parts of sec 26 of our Constitution are connected with each other.Section 26(1) delineates the general scope of the right: everyone has the right of access to adequatehousing.Section 26(2) speaks to the positive obligations imposed upon the state. And sec 26(3) spells outaspects of the negative right, by prohibiting arbitrary evictions.4This analysis is important because it explains that sec 26(1) creates a general right.The content of the rightis not limited to the duties in sec 26(2) or the prohibitions in sec 26(3): they are simply manifestations of thegeneral right set out in 26(1).To what extent, then, is the right to housing justiciable?The obligation to ‘respect’ the right to housingThe obligation to ‘respect’ the right, requires the state to refrain from interfering directly or indirectly with theenjoyment of the right.5In the words of the Constitutional Court,Although the subsection[sec 26(1)]does not expressly say so, there is, at the very least, anegative obligation placed upon the state and all other entities and persons to desist frompreventing or impairing the right of access to housing.’6The obligation to ‘respect’ a right is of particular significance where the individual already enjoys the right tosome extent, and there is a threat to remove it.

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