RRLLB81 ASSIGNMENT SEMESTER 1

RRLLB81 ASSIGNMENT SEMESTER 1 1 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