Grootboom and the right to housing: A (Virtual) Comparative Conversation between students at UNSW and Oxford
Students from the University of New South Wales (UNSW) and the University of Oxford recently demonstrated the potential of a virtual classroom as a medium for facilitating debate and comparative analysis of human rights issues.
Students from UNSW created a short video entitled “An Australian Grootboom: What Would It Look Like, and How Would It Change Our Democracy?” which was then screened to Oxford students during a Comparative Human Rights class. Their formal response to the video, as well as the informal class discussion which followed, was filmed and fed back into discussions among the students at UNSW.
The video prepared by UNSW featured the landmark decision of Republic of South Africa v Grootboom 2000 (1) SA 46 (CC) as a springboard for debate about whether the right to housing ought to be a constitutionally enshrined and protected right. In Grootboom, the Constitutional Court held that section 26 of the South African Constitution imposes a positive obligation on the state to implement, within its available resources, a comprehensive and co-ordinated housing programme directed towards the progressive realisation of the right of access to adequate housing. Such a policy must include reasonable measures to provide relief for the desperate needs of those living in intolerable conditions or crisis situations.
The students from UNSW provided a valuable insight into housing legislation in New South Wales and the particular challenges facing the public housing system in metropolitan Sydney, drawing attention to the disconnect between the aims of the housing policy and the reality of life for residents living in council housing in the inner city. The UNSW students then considered what implications a Grootboom-style ruling based on the standard of reasonableness would hold for a hypothetical right to adequate housing.
In their response to the UNSW video, the Oxford students focused on the value of having an entrenched right to housing and the appropriate role of courts in the adjudication of socio-economic rights. They characterised the right to housing with reference to the spectrum of relevant factual scenarios in which the right is at stake –from tenancy and lawful eviction, to emergency housing and the right to a house with security of tenure. It was noted that a very thin understanding of the right will focus on negative duties which flow from the right, such as the duty not to unlawfully evict individuals. On the other hand, a thicker conception of the right will identify a broad range of duties, both positive and negative, which attach to the right. These include the types of positive obligations identified in Grootboom, such as the obligation to provide emergency housing for people in crisis situations.
The Oxford students suggested that the role of the broader constitutional and political context in shaping the institutional realisation of rights invites a comparative analysis of the adjudication of the right to housing. For instance, one student used the example of “bedroom tax” in the UK to point out the kinds of problems that may arise in the absence of a justiciable right to housing. Another considered how entrenchment in Kenya has promoted the centrality of the right to housing in political decision-making and public consciousness.
Having made an argument in favour of a constitutionally enshrined and protected right to housing, the Oxford students finally considered the appropriate role for courts in the adjudication of socio-economic rights. In answer to concerns raised in the UNSW video about the democratic legitimacy of courts engaging in what is sometimes described as polycentric decision-making, the Oxford students relied on the South African constitutional context to argue that entrenchment fosters what Mureinik has called a “culture of justification” and thus enhances the democratic nature of socio-economic rights adjudication. By requiring the government to justify its decisions with persuasive reasons, entrenchment ensures the centrality of human rights in political discourse and increases the accountability and transparency of decision-making. Finally, the remedy of “meaningful engagement”, which the South African Constitutional Court has fashioned in housing cases since Grootboom, was discussed as an example of how a court’s creative and context-sensitive remedial response to violations of the right to housing can help deflect concerns about the anti-democratic nature of socio-economic rights adjudication.