These constitutional court cases are based on the constitution of South Africa. There are a number of clauses in the constitution which lead the constitutional court to make these judgements.
SECTION 9 (1) says that everyone is equal before the law and has the right to equal protection and benefit of the law. (2) Equality includes the full and equal enjoyment of all rights and freedoms.
Informal settlements example: We cannot have situations where some people benefit from having access to toilets where others don’t.
SECTION 10 says that everyone has inherent dignity and the right to have their dignity respected and protected.
Informal settlements example: We cannot continue to have people living in undignified situations where they have to defecate in the bush.
SECTION 24 says that everyone has the right to an environment that is not harmful to their health or wellbeing, and through reasonable legislative and other measures, the right to an environment that prevents pollution while still promoting justifiable economic and social development.
Informal settlements example: People can’t live in situations where their health is compromised by being exposed to faeces and other pollutants in the air, water and soil.
SECTION 25 (5) says that the state must take reasonable legislative and other measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis. SUB-SECTION (6) goes on to say that a person or community whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to tenure which is legally secure or to comparable redress. SUB SECTION (9) says that Parliament must enact the legislation referred to in SUB-SECTION (6).
Informal settlements example: Government must have a programme like the upgrading of informal settlement programme and use it to help people get land in a fair way. Government must also find ways to increase tenure security over time.
SECTION 26 (1) says that everyone has the right to have access to adequate housing and SUB-SECTION (2) says that the state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right.
Informal settlements example: The constitution realises that it is unlikely that government will have enough money to make sure everyone has adequate housing all at once so it says that government can work in a progressive, phased and step by step basis to achieve adequate housing. In informal settlements this step by step – or incremental – process which involves starting to provide basic water, sanitation and other services and then over time improve the quality of these services and look to help people get adequate housing.
SECTION 26 (3) says that 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.
Informal settlement example: Government must follow law (like following the procedures found in the Prevention of Illegal Eviction from and unlawful occupation of Land Act, no. 19 of 1998.) when it comes to removing people from an informal settlement.
SECTION 27 (1) (B) says that everyone has the right to have access to sufficient water; and SUB-SECTION (2) says that the state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right.
Informal settlement example: Government must use what resources it has to ensure that people have at least some basic minimum level of water and then over time, in a progressive, phased and step by step basis, incrementally improve the quality and level of access.
An often overlooked clause in the constitution that is relevant for informal settlements SECTION 28 (1) (C) which says that every child has the right to shelter. It is interesting to note that the word shelter and not housing is used, and that this clause is bound by the requirement to provide such shelter on a progressive basis within available resources.
Informal settlement example: Government must make sure that shelter is provided to households with children (defined in the constitution to be people under the age of 18 years).