Importance Of Progressive Realisation In South Africa

Section 26(2) in the South African Constitution states1:

“Everyone has the right to have access to adequate housing.

The state must 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.”

Progressive realisation refers to steps to improve access to socio-economic rights over a period of time.2 The Government has taken steps towards the progressive realisation of the right to have access to adequate housing, the steps adopted by the government cannot be said to be reasonable.

The state has to ensure everyone has a basic level of housing. The right to adequate housing holds a central place within the international human rights system. It is of central importance for the enjoyment of all economic, social and cultural rights. The right to adequate housing therefore clearly expresses the principle of interdependency of rights. The right to adequate housing was first recognised, as a component of the right to an adequate standard of living, in the Universal Declaration of Human Rights of 1948 (UDHR)

The right to adequate housing, as stated by the African Commission, refers to “the right of every person to gain and sustain a safe and secure home and community in which to live in peace and dignity”, which “includes access to natural and common resources, safe drinking water, energy for cooking, heating, cooling and lighting, sanitation and washing facilities, means of food storage, refuse disposal, site drainage and emergency services”.

While the African Charter does not expressly refer to the principle of progressive realisation this concept is widely accepted in the interpretation of economic, social and cultural rights and has been implied into the Charter. States parties are therefore under a continuing duty to move as expeditiously and effectively as possible towards the full realisation of economic, social and cultural

The Grootboom case and the 2002 case of Minister of Health and Others v Treatment Action Campaign and Others (TAC case) also help explain the meaning of the terms “progressive realisation” and “availability of resources”. They also define the ‘reasonableness test’ for measuring the State’s compliance with its duties in relation to socio-economic rights. Grootboom has become a landmark socio-economic rights case in South Africa, as well as internationally, and was the first significant case brought before the Constitutional Court in terms of section 26 of the Constitution. The case began with the eviction of 900 people from a piece of privately-owned land, including the main applicant in the case, Irene Grootboom. After the eviction, the affected parties built makeshift shelters situated in the Oostenberg Municipality in the Western Cape. The group appointed an attorney to write to the municipality demanding temporary shelter during a period of bad weather. The attorney argued that section 26 of the Constitution obliged the municipality to comply with the request. When the municipality refused to provide temporary shelter, the community launched an urgent application in the Cape High Court to force the state to take action. The High Court, locating the state’s obligations in the child’s right to shelter in section 28 of the Constitution, ordered the