ISSN: 1996-2126
Affiliations: Associate Professor, School of Law, University of the Witwatersrand
Source: South African Journal on Human Rights, Volume 29 Issue 3, 2013, p. 651 – 665
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ISSN: 1996-2126
Affiliations: Researcher at the South African Institute for Advanced Constitutional, Public, Human Rights and International Law (SAIFAC), a Centre of the University of Johannesburg
Source: South African Journal on Human Rights, Volume 29 Issue 3, 2013, p. 615 – 650
In Africa, sanitation remains one of the most important developmental challenges that is not adequately addressed. In many countries, though sanitation is fundamental to human well-being, there is no recognition in the Constitution of a fundamental right to basic sanitation. Legislation and policies often govern the area and the question arises as to whether this offers sufficient protection for the interests involved. This article calls for an express constitutionalisation of the right to sanitation. This call is based first on the importance of the right; second, on the need to do justice to the historical context in many countries (with a particular focus on South Africa); third, for reasons related to a better enforcement of the right; and, fourth, because the prospect for successful monitoring by non-judicial bodies is enhanced. However, the article also recognises that it is unwise to meddle with the Bill of Rights of an existing constitution so to insert the right to sanitation expressly. In such situations, the right to sanitation can be recognised efficiently through developing the content of other rights that are expressly recognised. The article considers the link between the right to sanitation and a range of rights comprising the rights to housing, health, food, water, environment, education, freedom and security of persons, privacy and the right to life. The article concludes that sanitation deserves express recognition in constitutions, especially in countries undergoing constitutional reforms or adopting a new constitution.
ISSN: 1996-2126
Affiliations: Researcher, South African Institute for Advanced Constitutional, Public, Human Rights, and International Law (SAIFAC), a Centre of the University of Johannesburg
Source: South African Journal on Human Rights, Volume 29 Issue 3, 2013, p. 591 – 614
The extent to which non-state actors play a role in the realisation of socio-economic rights is a contentious issue. In South Africa, and in the context of housing rights, the Constitutional Court has, in part, employed the negative obligation of the s 26(1) right of access to adequate housing to define the role of non-state actors. Although the central feature of the negative obligation is to inhibit state and non-state actors from interfering with another’s housing resource, the negative obligation’s impact is far more complex. The court has utilised the three components of the negative obligation, namely the state’s duty to respect, the state’s duty to protect, and the non-state actor’s duty to respect to regulate the relations of non-state actors. First, the state’s duties require the establishment of a legal framework that allows for the judicial evaluation of competing private rights; and, second, the non-state actor’s duty, if it finds application, permits the courts to impose positive or financial obligations on non-state actors. This framework reveals that non-state actors are limited duty bearers and role-players in the realisation of another’s housing right.
ISSN: 1996-2126
Affiliations: Senior Lecturer, Department of Public, Constitutional and International Law, University of South Africa (UNISA)
Source: South African Journal on Human Rights, Volume 29 Issue 3, 2013, p. 571 – 590
Tenure status is one of the core elements in the poverty cycle and insecurity of tenure exacerbates poverty. Policy-makers and the legislature should respond to this component of the poverty cycle through the introduction of secure housing options in order to ensure that all individuals can actively participate in society and live autonomous, dignified lives. In a number of jurisdictions, including Germany, the United States and England, legislatures have responded to the plight of the poor during emergency housing (and economic) conditions by introducing social housing sectors as part of the landlord-tenant framework. Key components of social housing is that it is a statutory mechanism that introduces affordable, secure housing options for the poor, which is provided by independent, private institutions and requires continuous state administration since the whole sector is state-driven. The South African social housing sector, which forms part of the landlord-tenant framework, is founded in the Social Housing Act. The operation and aims of the Act (and the current social housing sector, in general) requires critical analyses from a comparative law perspective. Innovative social housing options in the landlord-tenant framework are essential in contributing to the improvement of secure tenure rights for poor households and consequential eradication of poverty. Nevertheless, a paradigm shift regarding the contemporary use of rental housing to provide substantive tenure rights for poor tenants on private property is necessary at both public and private levels in order to, not only engage with this form of housing, but also identify plausible situations where it can be imposed.
ISSN: 1996-2126
Affiliations: Lecturer, Faculty of Law, Rhodes University; Professor and HF Oppenheimer Chair in Human Rights Law, Faculty of Law, Stellenbosch University
Source: South African Journal on Human Rights, Volume 29 Issue 3, 2013, p. 554 – 570
There are circumstances in which it is essential to join a party because of the interest that party has in the matter. The underlying principle is that interested parties should be afforded an opportunity to be heard in matters in which it has a direct and substantial interest. Applications for the eviction of unlawful occupiers from private land in terms of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE) has been framed in a particular manner since 2004 that created a ‘stalemate’ between the rights of private owners and the rights of unlawful occupiers. The only way to move beyond the stalemate is to join the municipality in whose jurisdiction the land falls. However, the high courts, in a series of six reported judgments, have not adopted a uniform approach in their reasoning for this joinder. They have relied on a combination of arguments founded on the cumulative force of the notice requirement in s 4(2) of PIE, the requirement to attempt mediation in s 7(1) of PIE, and finally, the constitutional and statutory obligations of municipalities. The overall impact of this reasoning is not convincing. This article revisits the legal framework that the Supreme Court of Appeal and the Constitutional Court have employed in the five judgments it handed down on the issue of joinder in PIE eviction cases. In so doing this article identities more clearly the constitutive requirements for necessary joinder within a constitutional matrix. The directness of the interest will be explored with reference to the statutory obligations that flow from the Housing Act 107 of 1997 and the Local Government: Municipal Systems Act 32 of 2000. The substantial nature of the interest will be explored with reference to the filing of reports flowing from the joinder.
ISSN: 1996-2126
Affiliations: Postdoctoral Fellow, South African Research Chair in Property Law, Stellenbosch University
Source: South African Journal on Human Rights, Volume 29 Issue 3, 2013, p. 536 – 553
The sale in execution of immovable residential property amounts to a deprivation of property in terms of s 25(1) of the Constitution. Since no law may permit arbitrary deprivation of property, it is necessary to ensure that the law of mortgage foreclosure also avoids this unconstitutional result. The principle is that a deprivation of property will be arbitrary if there is ‘no sufficient reason’ for such an interference with a debtor’s property. If residential property is sold in execution despite the fact that there are alternative ways to achieve the mortgagee’s purpose (namely, debt enforcement), the resultant deprivation will be arbitrary, since there is no sufficient nexus between the purpose of the deprivation and the effect that it has on the individual debtor. The need to scrutinise mortgage foreclosures on a case-by-case basis is especially important in the poverty and justice context, since the forced sale of and eventual eviction from the home will often cause or exacerbate the debtor’s socio-economic hardship. Based on the subsidiarity principles, it is argued that the requirements of s 25(1) can be fulfilled through the correct interpretation and application of the National Credit Act’s debt relief mechanisms — especially debt rearrangement — to the degree that they serve as viable alternatives to sales in execution.