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)
Section 152 (1) says that one of the duties of local government is to ensure the provision of services to communities in a sustainable manner; ….to promote a safe and healthy environment.
Informal settlement example: Government has a duty to ensure that basic services are provided to communities to promote sustainable development and a safe and healthy environment.
Section 153 (a) says that local government must give priority to the basic needs of the community
Informal settlement example: This is an important provision for informal settlements, as it means municipalities must prioritise the provision of basic services amongst all the other the things that local government does. It specifically makes reference to ‘basic needs’ which is not defined in the Constitution but the Constitutional Court has read sections 152 and 153 of the Constitution together with provisions contained in other legislation and described how there is a public law “right to basic municipal services” that includes water, sanitation, electricity, and refuse removal.
Another piece of legislation that is important when it comes the provision of basic services is The Municipal Systems Act number 32 of 2000.
- Section 73(1) of this Act states that a municipality must “(a) give priority to the basic needs of the local community …. [and] (c) ensure that all members of the local community have access to at least the minimum level of basic municipal services.”
- This Act defines “basic municipal services” to mean “a municipal service that is necessary to ensure an acceptable and reasonble quality of life and, if not provided, would endanger public health or safety or the environment.”
- Section 73(2) says that these municipal services must be:
- equitable and accessible;
- provided in a manner that is conducive to ….the improvement of standards of quality over time;
- financially sustainable;
- environmentally sustainable; and
- regularly reviewed with a view to upgrading, extension and improvement.