The South African constitution is brief and to the point when it comes to the right to housing. It guarantees everyone the right to have “access to adequate housing”. The state is enjoined to “take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right.”

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.

The state is obliged to “respect, protect, promote and fulfil” the right to access to housing, along with the other rights guaranteed to all in the Bill of Rights. Among these are the right to human dignity, to equality and to have property rights protected.

One of the major means of promoting the achievement of equality is to provide adequate housing. Previously disadvantaged people are able, once adequately housed, to spend time improving their lot in life via the education system, vocational training, working in the informal or formal sectors of the economy and participating fully in the sporting, cultural and religious life of their communities. Those who are not adequately housed have difficulty in all spheres, much of their energy is consumed with their striving to be properly housed. Some even organise themselves around the issue of inadequate housing and protest volubly about the failure of the state to afford them access to adequate housing.

One of the early activists for housing was Irene Grootboom of Wallacedene. She had been evicted from her informal dwelling on private land earmarked for formal low-cost housing. She asked the courts to order the authorities to provide her with adequate basic shelter or housing until she obtained permanent accommodation. Although Ms Grootboom died before receiving permanent accommodation, her case has served as the template for interpreting socio-economics rights and their enforcement via the law.

The Constitutional Court noted the positive obligations placed upon the state to ameliorate the plight of the hundreds of thousands of people living in deplorable conditions around the country. These include access to housing, healthcare, sufficient food and water and also social security for those who are unable to support themselves and their dependents. All of the rights in the Bill of Rights are, so the Court held, interrelated and mutually supporting. Dignity, freedom and equality are denied to all without food, clothing and shelter. It is the duty of the state to foster conditions in which citizens are enabled to gain access to land on an equitable basis, but this does not oblige the state to go beyond its available resources or to realise these rights immediately. Nevertheless, the state must give effect to these rights and, when there are appropriate circumstances, the courts can and must enforce the right to access to adequate housing. Regard is had to the reasonableness of the measures taken to realise the right to access to housing.

Hangberg is part of Hout Bay, that part nearest its harbour. Many of those resident in Hangberg are dependent for their livelihoods upon the fishing industry based in the harbour, and are accordingly resistant to the notion that they should move to legal informal housing in Blikkiesdorp in Delft because they are at present illegally and inadequately housed in informal structures erected in a firebreak on SAN Parks controlled land abutting the Hangberg housing scheme. Some 53 families are involved and all attempts on the part of the authorities to engage with them have thus far proved fruitless. The Premier was given a particularly hostile reception when she tried to address a community meeting and the process of demolishing unoccupied illegal structures in the Hangberg area has been marked by violent demonstrations, injuries and politicking.

The court proceedings for the eviction of the illegal occupants have been postponed to November and the parties have been encouraged to engage with each other sensibly, and with the assistance of a mediator, to ascertain whether a mutually acceptable solution to the problem can be negotiated.

Devising a reasonable solution via media is no easy task. The authorities are concerned that the encroachment of the illegal informal structure on the firebreak which protects the Sentinel mountain against the spread of fires on its flanks, will give rise to an unacceptably high risk of fire. A fire which starts on the Sentinel in a strong south easter has the potential to devastate not only those who have informally built in the firebreak, but the entire Hangberg community. The illegally housed residents are concerned that their breadwinners will lose their jobs if they are obliged to trek to and from Delft every working day. They have secured a toehold in a sought after area, and they are not inclined to release what they have without a struggle. Care must be taken not to set a precedent that has unfortunate and unsustainable ramifications for other illegally housed communities.

Sustainability has to be the watchword in the deliberations with the mediator. The unhappy truth is that the rate at which the population of the greater Cape Town area has been expanding in recent years is exceedingly difficult to sustain. Incomers from the Eastern Cape, who often keep their perfectly adequate homes there, crowd the informal settlements that spring up mushroom like overnight, and they then seek employment or the benefits of a more functional social security system than that to which they were accustomed in their towns and villages of origin. The influx of persons from other countries in Africa is not to be underestimated, nor is the natural growth of the established communities living in Cape Town. Coping with the combined effects of these trends is an undeniably difficult task. The freedom of movement of those who choose Cape Town as their new home has to be respected. The finite limits of space, services and accommodation legally available also have to be taken into account.

As the legal protection of property rights must be added to these burdens upon the authorities, it is plain to see that there is no easy solution to the problems of inadequate and illegal informal housing in Cape Town. The Constitution is clear on its approach to property rights: no one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property.

However, the fact that illegal structures are erected on land that is illegally appropriated by those responsible for informal settlement development, does not derogate from the obligation of the state to afford “access to adequate housing” to all.

The mediator who has been passed this hot potato will have to summon the wisdom of Solomon to come up with a solution that is acceptable to all.

Paul Hoffman SC
19 October, 2010.