The Systemic Violation of Section 26(1): An Appeal for Structural Relief by the Judiciary

Abstract

In 2014, a year supposedly marked to celebrate twenty years of democracy and the transformation of our housing regime from one being grossly discriminatory to a welfare-orientated legal system that functions under the auspices of the rights and values entrenched in the Constitution the poorest households in South Africa remain subject to not only intolerable housing conditions, but also unlawful state evictions. The housing jurisprudence has developed certain indicators of the state’s constitutional obligations and these indicators constitute the courts’ conception of its expectations of the state in complex housing disputes that generally concern homelessness/landlessness. However, recent state actions taken in contravention of section 26 indicate the systemic violation of the right to the extent that it is deprived of all meaning. With the required cognisance of the courts’ inherent competencies, concerns for separation of powers boundaries and an inclination to maintain a high level of deference in polycentric matters with economic and social consequences for the community, the courts are obliged to hold government accountable and vindicate the violation of fundamental rights. A form of reparation is therefore required that is able to address these violations in a systemic manner, without usurping the functions of the executive. Structural relief is apt in such instances, provided that it is structured in a specific manner to address immediate and long-term housing needs in a way consistent with other constitutional provisions and the underlying values of the Constitution. A once-off form of relief is inappropriate to counter the systemic violation of the right of access to adequate housing.

On the other hand, a structural interdict is different to the extent that it can consist of different remedial phases over which the court retains jurisdiction to ensure that the state complies with its section 26(2) obligations. Throughout this process of supervision the court should encourage a dialogue between the different stakeholders and assist with predeterminations of the kinds of governmental actions that would be unreasonable, procedurally unfair and generally in contravention of the Constitution.