The case Government of the Republic of South Africa versus Grootboom is a landmark case in international jurisprudence, marking the first time in any nation that a constitutional court enforced the constitutionality of a socio-economic right, giving legitimacy to the so called second-generation of citizen rights (Williams 2005). For South Africa, Grootboom delimited the obligations of the South African government to fulfill the right to adequate housing as guaranteed in the South African constitution, and it also set an international precedent for other governments to deliver socio-economic rights enshrined in their own constitutions. The ingenuity of the Grootboom ruling was to consider the circumstances of different segments of the population in light of the right to adequate housing, with a particular focus on individuals in dire need. The South African government had a robust (but oversubscribed) housing program that provided several hundred thousand units per year in place at the time of the ruling, but the Constitutional court saw in it one major shortcoming: the program was merely equitable and they demanded one that was just. The court did not interpret the right to adequate housing as an obligation of the state to provide housing for everyone, but “requir[ed] special deliberative attention [of the State] to those whose minimal needs are not being met” (Sunstein 2001, 1).
Socio-economic rights such as the right to housing, the right to food and clothing, and the right to education were widely considered judicially unenforceable prior to Grootboom because of “democratic prerogatives and the limited nature of public resources.” First, socioeconomic rights are inherently vague and lacked juridical precedent. For example, if a government guarantees the right to adequate housing, what does “adequate housing” mean? Is it shelter alone? Shelter and access to water? Shelter, water, electricity and sewer services? Or does it include all of these in a community with access to job opportunities as well? How a country defines this for itself has wide implications. Second, socio-economic rights are “positive” rights as opposed to civil-political rights which are “negative” rights, the difference being that positive rights oblige others to act whereas negative rights require others to restrain themselves from acting. For example, the right to healthcare is a positive right. The state or other healthcare providers must take some action to fulfill this right. The right to freedom of speech is a negative right. Here, the obligation of both the state and citizens is to do nothing to impede the expression of anyone else. Positive rights generally have resource implications—they require the provision of a good or a service—whereas negative rights have far fewer.  Finally, opponents of socio-economic rights have argued that the judiciary has no place to enforce social justice in a representative democracy (Mbazira 2009), since that should be the purview of the legislative branch.
The 2013 Egyptian draft Constitution includes several socio-economic rights, including the right to adequate housing. Constitutions themselves are normative documents: they spell out what a nation aspires to be rather than what a nation is presently, they serve as a criterion against which to measure the performance of the government, and they give citizens recourse against governments that fail to fulfill their constitutional obligations. The South African Court’s common-sense approach to enforcing these socio-economic rights may prove immanently useful for civil society organizations, community groups, and other advocates in Egypt to enforce their rights that will ultimately be guaranteed in the forthcoming constitution.
The South African constitution is considered one of the most progressive and transformative constitutions in the world (Sunstein 2001), enumerating dozens of distinct rights over 32 sections in its Bill of Rights (Chapter 2). The Constitution was created to “recognize the injustices” and “heal the divisions” of the apartheid regime and “establish a society based on democratic values, social justice, and fundamental human rights,” (South African Constitution, Preamble) that the legacy of apartheid be buried, never to return. The transition from apartheid to democracy was a negotiated process that began in 1990 and resulted in free elections and an interim constitution in 1994. Under this interim constitution, the Constitutional Assembly drafted the final constitution, enacted in early 1997, through a measured, open, and inclusive process with full public participation, taking more than two and half years to complete (Sarkin 1999).
The SA constitution includes several socio-economic rights, among which is the right to housing. The sections relevant to the Grootboom case are quoted here in full.
Irene Grootboom was one of 4,000 residents living in Wallacedene, an informal settlement outside of Cape Town, in 1998 (Wickeri 2004). The living conditions in the settlement were appalling and its residents were desperately poor. The settlement lacked running water, sewer, and garbage collection services. Just five percent of the inhabitants had electricity. Twenty-five percent of the inhabitants had no income, and more than two-thirds lived on less than R500 (US$70) per month. There was no electricity or a sewer system and all of its residents were very poor. Many residents were on the municipal waiting list for affordable housing; some had been waiting as long as seven years (Grootboom 2000).
About 900 people, including more than 500 children, settled on nearby vacant land that the government had earmarked for future development of low-income housing. Three months after they settled, they received an eviction order from the government. The community refused to move, saying they had no place to go and their previous homes had been occupied by others. On May 18, 1999, the government forcibly removed the community, razed their homes, and destroyed their personal belongings. With nowhere else to go, the displaced community settled on a nearby playing field (Grootboom 2004).
The community filed a suit against all three levels of the government (municipal, state, and national) with the Cape of Good Hope High Court to provide adequate temporary shelter or housing until they could find permanent homes as well as adequate basic nutrition, healthcare, and social services as guaranteed by the South African constitution. The High Court ruled that the government was not in violation of Section 26 of the Constitution (right to access to adequate housing) citing the state’s limited resources and their efforts to implement a housing program, but instead ruled in favor of the community on the grounds of Section 28(a)(c)—that every child has the unequivocal right to shelter regardless of state resources; where parents could not provide for their children, the state must step in (Grootboom 2000).
The case ultimately made it to the Constitutional Court of South Africa (CC), where the decision of the High Court was overturned. The CC found that citizens do not have the right to claim shelter immediately on demand under any provision of the constitution. The State’s obligation to fulfill the right of access to adequate housing does not have to be met through direct provision of shelter to those without it, but in accordance with section 26(2) of the constitution, through “reasonable legislative and other measures, within its available resources.” The CC lauded the accomplishments of the national and provincial housing programs, but found that they ignored the short-term needs of the very poor in the interests of medium and long-term objectives. “A programme that excludes a significant segment of society cannot be said to be reasonable” (Grootboom 2000, 34). A “reasonable” program must make provisions to provide relief to those individuals living in intolerable or crises situations, such as those in Wallacedene (Grootboom 2000).
The CC’s ruling is unique in that it differentiates between those who can afford to acquire adequate housing and those who cannot, which Sunstein calls “a novel approach to socioeconomic rights…[using] sensible priority setting, with particular attention to the plight of those who are the neediest” (Sunstein 2001, 8). For those who can afford to pay, the state’s obligation lies in providing access to housing stock and implementing enabling legislation to make finance more accessible and changing master plans and zoning ordinances to allow for the construction of homes. For those who cannot afford to pay,
[t]he state’s obligation … depends on context, and may differ from province to province, from city to city, from rural to urban areas and from person to person. Some may need access to land and no more; some may need access to land and building materials; some may need access to finance; some may need access to services such as water, sewage, electricity and roads. What might be appropriate in a rural area where people live together in communities engaging in subsistence farming may not be appropriate in an urban area where people are looking for employment and a place to live (emphasis added, Grootboom 2000, 30).
The issue of adequate housing must be approached on a case-by-case basis and it is the state’s obligation to provide a program that is flexible enough to respond to these needs.
The CC’s judgment was novel in another aspect: it tied socioeconomic rights—traditionally seen as unenforceable by the judiciary—with political and civil rights (Sunstein 2001).
There can be no doubt that human dignity, freedom and equality, the foundational values of our society, are denied those who have no food, clothing or shelter. Affording socio-economic rights to all people therefore enables them to enjoy the other rights enshrined in [the Constitution] (Grootboom 2000, 19).
The right to housing was first mentioned in the Egyptian constitution in the 2012 constitution Article 67 and was further elaborated on in Articles 63 and 78 in the 2013 draft constitution prepared during the transitional government that took power in July 2013 after mass demonstrations ousted ex-President Morsi. Read The Right to Adequate Housing for an analysis of the constitutional articles related to housing in both constitutions.
How will the Egyptian government handle this responsibility given the extent of Egypt’s affordable housing crisis? To start, there is a shortage of between 1.0 and 1.5 million housing units and a growing demand of about 300,000 units per year (“Egypt: Housing a Priority” 2012), while approximately 3.7 million housing units are either vacant or closed (World Bank and USAID 2008, 2), 2 million of which are in Cairo alone (Piferro 2009, 23). The heavy regulations on the rental market which discourage renting-out property paired with a mortgage lending market that serves only upper class citizens pushes low and middle-class citizens to find housing through extra-legal means (El Kafrawy 2012). The Ministry of Local Development and the Ministry of Housing reported recently that there are 5 million unlicensed buildings nationwide (“Official: Egypt has 5 million” 2013), pointing to the way in which the informal building economy has accommodated the overwhelming demand for housing.
Egypt has a long history of housing policies and programs intended to create housing opportunities for the public. Gamal Abdul Nasser (1952-1970) set a goal of extending basic services to all Egyptians, nationalized the housing development and building materials industries, and implemented strict rent control laws and anti-eviction policies that were intended to equalize the housing market. However, these policies led to the withdrawal of the private sector from the rental housing market at a time when demand was increasing due to the heavy rural to urban migration (El Kafrawy 2012).
Anwar Sadat (1970-1981) reversed many of Nasser’s socialist policies through the Infitah, opening Egypt to foreign investment, and abandoned the goal of extending basic services to all Egyptians. His administration also instituted a national housing plan that called for the creation of new urban centers on state-owned desert land. These new urban centers, or desert cities, were intended to serve as growth poles to attract both investment and new residents away from the traditional urban centers in the Nile Valley and Delta. The Egyptian authorities ultimately established seventeen new communities through this program (investment in these areas continues to this day) (El Kafrawy 2012), but these desert cities did little to alleviate the housing crises in the traditional urban centers (Sims 2010).
Hosni Mubarak (1981-2011) continued Sadat’s initiatives during his rule, privatizing many national corporations, reducing subsidies and price controls, and expanding the role of the private sector throughout the economy (El Kafrawy 2012), though rent controls were left in place. The private sector reform expanded the upper end of the housing market, but did little to benefit the low and middle-income market, worsening the shortage of affordable homes and increasing the demand for informal homes. The housing initiatives under Mubarak were largely production driven, such that between 1983 and 2008, the government built 36 percent of all formal housing in the country at a cost of LE26.4 billion, most of which were built in the peripheral, desert cities. In 2005, the Egyptian government launched the National Housing program (NHP) which was designed initially to provide 500,000 homes by 2011, but later reformed to provide 500,000 housing “solutions” over the same time period, thus giving the government flexibility in achieving their goal. They introduced rental and self-build housing options, provided housing subsidies, and promoted private sector production of low and middle income housing (World Bank and USAID 2008).
Irene Grootboom died in 2008; penniless and homeless, still waiting for a decent home for herself and her family. It is indeed tragic that the namesake of the first case enforcing a state’s obligation to fulfill a socio-economic right would herself die before she attained that right, but Irene Grootboom was just one woman among millions of others living in deplorable conditions in nations that guarantee a right to housing. Today, millions of South Africans still live in circumstances similar to Irene Grootboom in Wallacedene 15 years ago. However, the ruling did provide a powerful tool for communities under threat of eviction to fight for their rights and constituted the first building block of an expanding right-to-housing law. It was the beginning of a juridical precedent that had been absent from the enforcement of socio-economic rights (Wickeri 2004). The South African government also implemented an emergency housing assistance program as mandated by Grootboom which “aims to be a responsive, flexible and rapid programme to address homelessness, hazardous living conditions, and temporary or permanent relocation of vulnerable households or communities” through on-site assistance, relocation assistance, formal housing repairs or reconstruction (Implementation of Emergency Housing 2012).
Egypt’s own Informal Settlements Development Facility (ISDF), created by Presidential decree after the Deweka disaster in October of 2008, targets the government’s housing efforts toward “unsafe areas.” Informal settlements are classified on a scale of 1 to 4, ranging from settlements such as the Muqatam area in Manshiet Nasser where residents’ lives are endangered due to the instability of the land (Grade 1) to settlements with insecure tenure on as state-owner or waqf land (Grade 4). Like the Grootboom ruling, this program looks at different segments of the population to serve the neediest first yet the ISDF does not make its classification scheme or priorities easily accessible to the public. How the Egyptian government’s housing program will evolve or how the right to housing will be expressed in the forthcoming constitution remains to be seen.
The circumstance of Irene Grootboom’s death also reminds us of both the limits of the judiciary and the difficulty of enforcing socio-economic rights: the cost, the politics, and the scale of implementation often appear prohibitive. Left on their own, governments will often move slowly and act reluctantly. Social movements, such as Abahlali baseMjondolo, or the Durban Shack Dwellers Movement in South Africa, have been active in persuading the government to fulfill their obligations to housing or any other right guaranteed in the Constitution.
If the new constitution includes the right to housing or any socio-economic right, can we reasonably expect the Egyptian Constitution Court to enforce those rights as the Constitutional Court of South Africa did? Probably not. Not without the clear demands of the Egyptian people.
Amnesty International. 2012. “Egypt’s new constitution limits fundamental freedoms and ignores the rights of women.” News. 30 November. (Accessed 15 April 2013)
Constitutional Court of South Africa. 2000. Government of the Republic of South Africa and Others versus Irene Grootboom and Others. (11) BCLR, 1169 (CC). (Accessed 16 April 2013)
“Egypt: Housing a Priority.” 2012. Oxford Business Group. October 1. (Accessed 15 April 2013)
“Implementation of Emergency Housing.” 2012. Housing Development Agency. Johannesburg, South Africa. (Accessed 5 July 2013)
Joubert, Pearlie. 2008. “Grootboom dies homeless and penniless.” Mail & Guardian. August 8. (Accessed 5 July 2013)
Mbazira, Christopher. 2009. Litigating Socio-economic Rights in South Africa; A Choice Between Corrective and Distributive Justice. Pretoria, South Africa: Pretoria University Law Press.
“Official: Egypt has 5 million unlicensed buildings nationwide.” 2013. Al Masry Al Youm, published on Egypt Independent in English. 14 April. (Accessed 15 April 2013)
Piferro, Elena. 2009. “Beyond Rules and Regulations: The Growth of Informal Cairo.” Cairo’s Informal Areas: Between Urban Challenges and Hidden Potentials. Cities Alliance. (Accessed April 8, 2013)
Sunstein, Cass R. 2001. Social and Economic Rights? Lessons from South Africa. John M. Olin Law and Economics Working Paper No. 124.
Wickeri, Elisabeth. 2004. Grootboom’s Legacy: Security the Right to Access to Adequate Housing in South Africa? Center for Human Rights and Global Justice Working Paper. Economic, Social, and Cultural Rights Series, No. 5. New York University Law School.
Williams, John J. 2005. “The Grootboom case and the constitutional right to housing: the politics of planning in post-apartheid South Africa.” In Volume 1: Inclusive Citizenship: Meanings and Expressions, ed Naila Kabeer of the Claiming Citizenship Series: Rights, Participation and Accountability, Ed. John Gaventa. New York: Zed Books.
World Bank and U.S. Agency for International Development (USAID). 2008. A Framework for Housing Policy Reform in Urban Areas in Egypt: Developing a Well Functioning Housing System and Strengthening the National Housing Program. As part of the Technical Assistance for Policy Reform Program.
 The major costs of negative rights are usually those associated with enforcement. Freedom of expression not only requires the state and individuals not to interfere with citizens’ expression, but it also obliges the state to protect citizens from others’ violating their right of expression typically through a police force and legal system. The right to trade first requires individuals not to interfere with the business affairs of others’, but also requires contracts law, a functioning court system, and government regulation.
 Sayigh (2012) calls them “semi-public” given the extent to which current or former members of the military control the interests of these corporations.
Feature Image: Constitutional Court of South Africa. Credits: HBarrison/Flickr (CC BY-SA 2.0)
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