The Right to Housing in South Africa:: An Evolving Jurisprudence
Columbia Human Rights Law Review, Vol. 45, No. 3, pp. 816 - 845 (2014)
This Article focuses on recent South African constitutional and statutory jurisprudence regarding the right to housing, and attempts to analyze both its transformative possibilities and its doctrinal limitations. The South African Constitutional Court's housing rights jurisprudence is more developed than that regarding any other social and economic right contained in the South African Constitution, with eviction cases having been a particular focus of the Constitutional Court. I address three aspects of major recent South African cases relating to the right to housing: the concept of judicially required "meaningful engagement" between government entities and individuals threatened with eviction, the prohibition of unfair practices by landlords and tenants under the Rental Housing Act 50 of 1999, and developments in the concept of just and equitable eviction under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Housing Act 19 of 1998. In each context, I first describe the important ways in which this jurisprudence has benefited the poor and then present a critical perspective identifying both issues of concern and what might be called "unintended consequences." I conclude by arguing that while the universality and moral force of human rights discourse assists in giving meaning and content to housing rights by exposing the social construction of poverty and by shifting the focus from individual fault and dependency to society's responsibility, human rights discourse alone provides limited analytical assistance in addressing the difficult economic and institutional questions that must be faced in order to make housing rights a reality.