The International Impact of 'Government of the Republic of South Africa v Grootboom'

Introduction

South Africa has an avowed commitment to remedying past injustices through transformative constitutionalism. One of the vehicles of transformative constitutionalism, South African courts have held that they “have a particular responsibility” to engage in remedial innovation that ensures effectiveness and vindication of constitutional commitments through transformative adjudication. This engenders the possibility of several judgments shaping South African constitutional jurisprudence on discrete points of law and being conceptually considered ‘landmark judgments’ in those areas.

This symposium focuses on landmark judgments that have influenced constitutional reasoning outside their legal order. My contribution analyses Government of the Republic of South Africa v Grootboom [2000] ZACC 19 for the following reasons: first, South Africa has been recognised as “unparalleled in international constitutional jurisprudence” in including explicitly justiciable socio-economic rights in its Constitution, amidst a decades-old debate on their justiciability in other constitutional democracies. It is only fitting that this contribution focuses on one of the early decisions of the Constitutional Court that responds directly to these debates, locating the transformative potential of justiciable socio-economic rights squarely within comparative constitutional law.

In addition to influencing housing policy in South Africa, a SAFLII search indicates that Grootboom has been locally cited on approximately 62 separate occasions by the Constitutional Court, 25 separate occasions by the Supreme Court of Appeals, and 114 separate occasions by High Courts across the country. Internationally, the decision has been cited by courts in Australia, England and Wales, India, Namibia, New Zealand as well as regional courts including the European Court of Human Rights. As Katherine G Young documents, as of 2021, the “canonical” decision has also been the subject of several teaching texts, casebooks, edited collections, and journal articles. I myself was introduced to the case early in my undergraduate law degree at one of India’s top law schools in Amita Dhanda’s Law and Poverty course.

This piece is not about the on-ground impact of the Grootboom decision in South Africa or elsewhere. Rather, it highlights the jurisgenerative possibilities created by Grootboom in dialogue with other domestic jurisdictions as well as in international law. It centrally counters David Landau’s 2012 claim that “Grootboom forms a strange one-case canon, critically important in academic theory but un-influential in practice.” Although Landau has updated his initial view, placing Grootboom in dialogue with comparable cases from other jurisdictions, it remains important to counter the initial claim and demonstrate the impact that Grootboom has had on law-making outside of South Africa.

I first set out the facts, and a short summary of the judgment. Then, I discuss how Grootboom influenced the drafting of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (OPICESCR). In doing so, I demonstrate the influence the decision has had outside its legal order.

The Case

The case was brought by 900 former residents of Wallacedene, an informal settlement in the Western Cape. Five hundred and ten plaintiffs were children. Wallacedene’s conditions were deplorable – there was no water, sanitation or refuse removal services and only 5% of the shacks had electricity. Several plaintiffs had been on the waiting list for low-cost housing for years. The municipality’s inertia in remedying these conditions forced the plaintiffs to relocate their shacks and shelters to a privately owned vacant plot, earmarked for low-cost housing. The owner of the plot obtained an eviction order from the magistrate’s court. The municipality evicted the plaintiffs by bulldozing and burning their homes and destroying their possessions in mid-winter. The plaintiffs consequently sheltered on the Wallacedene sports field, where rains destroyed their temporary shelters. An urgent application to compel the municipality to fulfil its constitutional obligations and provide alternative accommodation to the plaintiffs was filed with the Western Cape High Court. The application was successful, but the State appealed against the judgment at the Constitutional Court.

The Constitutional Court held that the State fell short of its obligations under s 26 (the right to have access to adequate housing). The Court adopted the following reasoning. First, it contextualised the facts of the case as being exacerbated by entrenched apartheid-era discriminatory housing policies. After setting out the High Court’s decision and arguments advanced before it, the Court proceeded to identify the right to have access to adequate housing (s 26) and children’s rights (s 28) as relevant constitutional provisions. After a note on the justiciability of socio-economic rights, the Court discussed the role of international law in constructing the relevant rights in the Bill of Rights. In a set of paragraphs that has generated much academic debate, the Court concluded that it did not have sufficient information before it to determine the ‘minimum core’ of the right to have access to adequate housing.

The Court then set out the positive and negative obligations flowing from s 26. It emphasised the contextual nature of these obligations with respect to groups experiencing different forms of disadvantage across economic levels of society. Section 26(2) reads as follows: “The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right.” The Court went on to interpret the three underlined aspects of the obligation in s 26(2). First, it evaluated existing housing policy (legislative measures) and other State action and inaction (other measures) against the “reasonableness” standard explicit in s 26(2). It found that these measures were unreasonable as they excluded the most vulnerable from accessing housing. Second, it discussed the meaning of “progressive realisation” by drawing on the work of the UN Committee on Economic Social and Cultural Rights. Third, it highlighted the qualification “within available resources” as a crucial limiting factor in respect of the obligation imposed on the State. Further, while recognising an overlap between s 26 and s 28, the Court held that s 28 was not independently at issue in this case. Finally, regarding the relief sought by the plaintiffs, the Court notably did not order individualised relief on the basis that several other people across the country were in a similar predicament and a declaratory order was therefore more appropriate. The Court, however, noted that the State had offered alternative accommodation to the plaintiffs on the day of the hearing. The form of relief has also generated debate in the literature.

Grootboom’s “Reasonableness” Review

Grootboom was one of the earliest socio-economic rights cases before the Constitutional Court. The Court, therefore, was acutely aware of the separation of powers concern surrounding justiciability. In response to this concern, the Court clarified that “a court considering reasonableness will not enquire whether other more desirable or favourable measures could have been adopted, or whether public money could have been better spent” (emphasis added). Rather, the appropriate question for the Court is “whether the measures that have been adopted [by organs of State] are reasonable.” This leaves open a “wide range of possible measures” that the State could have adopted to fulfil its obligations, many of which would pass the reasonableness test. The State is charged with demonstrating that its measures are reasonable. The elements of the reasonableness test as set out in Grootboom are as follows (all quotes are from the judgment).

Reasonable measures are those that “allocate responsibilities and tasks to the different spheres of government and ensure that the appropriate financial and human resources are available”. Under s 26, “the national sphere of government must assume responsibility for ensuring that laws, policies, programmes and strategies are adequate to meet the state’s obligations.” This includes equitable budgetary allocations to national, provincial, and local government, and the fulfilment of executive obligations. Importantly, the measures must be “capable” of realising the right. The implementation of these measures must also meet the reasonableness test. The Court explains that institutional capacity as well as economic, social, and historical context are key factors in determining reasonableness. The measures must be “coherent”, constantly reviewed and “balanced and flexible”. Finally, reasonableness must be understood compatibly with the Bill of Rights and the values of human dignity, freedom and equality. To that end, the Court held that “those whose needs are the most urgent and whose ability to enjoy all rights therefore is most in peril, must not be ignored by the measures aimed at achieving realisation of the right.” Post-Grootboom, reasonableness review has been developed further by South African courts, the legislature, and scholarship to include both procedural and substantive elements.

The Optional Protocol to the International Covenant on Economic, Social and Cultural Rights

In 2008, the UN General Assembly adopted the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (OPICESCR). This instrument sets out a complaints mechanism for individuals and groups to approach the Committee on Economic, Social and Cultural Rights (CESCR) for rights violations by State parties to the International Covenant on Economic, Social (ICESCR). This blog post focuses on the drafting of art 8(4) of the OPICESCR. The text reads: “When examining communications under the present Protocol, the Committee shall consider the reasonableness of the steps taken by the State Party in accordance with part II of the Covenant. In doing so, the Committee shall bear in mind that the State Party may adopt a range of possible policy measures for the implementation of the rights set forth in the Covenant.” (emphasis added)

In Sandra Liebenberg and Bruce Porter’s record of the drafting process, the debates on justiciability loom large. Several States argued for a lower standard of review that would defer to States’ domestic policy choices. One such proposal was to include the standard “margin of appreciation” or “margin of discretion”, which after much discussion, was jettisoned on the basis that it could “seriously affect access to justice for victims of violations of ESC rights and promote the type of judicial acquiescence to ESC rights violations that the Optional Protocol was intended to correct”. On the penultimate day, Canada and the US along with other States, attempted to reintroduce this standard which, they argued, was key to their support for the draft. In response, Lillian Chenwi drew delegates’ attention to the Grootboom decision – particularly the paragraph stating that “[i]t is necessary to recognise that a wide range of possible measures could be adopted by the State to meet its obligations. Many of these would meet the requirement of reasonableness.” This formed the basis for the inclusion of the second sentence of art 8(4) and as Porter records “the intention behind the new wording was to acknowledge that there could be different policies that are compliant with Covenant obligations, and that it would therefore be left to States, and not to the Committee, to make those policy choices”. The draft was then passed as it currently reads.

Bruce Porter notes that “the standard of reasonableness around which consensus was reached was heavily influenced by the Grootboom ruling.” Ultimately, the substantive reasonableness standard in art 8(4) “considers not simply the State’s justification of its policies based on competing needs or limits on resources but, more fundamentally, whether the steps taken by the State would allow the realisation of the rights at stake in the particular socioeconomic and historical context in a manner that provides full participatory rights and recognises the dignity and rights of those whose claims are at issue.” This, as Sandra Liebenberg points out, utilises almost identical language to the various aspects of reasonableness review developed in Grootboom.

Grootboom remains a constitutional landmark decision that has influenced law-making outside the South African legal sphere. Although South Africa has not ratified the OPICESCR, its jurisprudence has played a significant role in its framing. This blog post has also demonstrated the mutually constitutive relationship between international and domestic law, and in doing so serves as a reminder that domestic constitutional actors can and do play a significant role in international law-making and standard setting.

Sanya Samtani is a postdoctoral research fellow at the SARCHI Chair for International and Constitutional Law, University of Pretoria

Suggested citation: Sanya Samtani, “Government of the Republic of South Africa v Grootboom”, IACL-AIDC Blog (7 June 2022) https://blog-iacl-aidc.org/globallandmarkjudgments/2022/6/7/the-international-impact-of-government-of-the-republic-of-south-africa-v-grootboom.