Grootboom, the Right of Access to Housing and Substantive Equality as Contextual Fairness Focus on Grootboom 17 South African Journal on Human Rights 2001

17 S. Afr. J. on Hum. Rts. 258 (2001)
Grootboom, the Right of Access to Housing and Substantive Equality as Contextual Fairness

handle is hein.journals/soafjhr17 and id is 276 raw text is: GROOTBOOM, THE RIGHT OF
ACCESS TO HOUSING AND
SUBSTANTIVE EQUALITY AS
CONTEXTUAL FAIRNESS
PIERRE DE VOS*
ABSTRACT
This article explores the relationship between social and economic rights and the right
to equality through an analysis of the decision in Government of the Republic of South
Africa v Grootboom 2001 (1) SA 46 (CC). Arguing that the transformative vision of the
1996 South African Constitution is one that is committed to remedying social and
economic inequality, the article explores how the right of access to housing and the
right to equality are interrelated and mutually supportive in pursuit of this goal.
I INTRODUCTION
If, as the old maxim has it, hard cases make bad law, then the decision in
Government of the Republic of South Africa v Grootboom1 demonstrates
that easy cases can produce (relatively) good law. At first blush, the claim
that this was an 'easy' case for the justices of the Constitutional Court to
decide might appear strange or even counterintuitive. After all, the exact
nature of the duties engendered by the social and economic rights
contained in South Africa's 1996 Bill of Rights, and the role of the courts
in enforcing those duties, have been highly controversial and contested.2
Moreover, in Soobramoney v Minister of Health, KwaZulu-Natal 3 the
first case in which the Constitutional Court was called upon to consider
the scope and content of the duties engendered by the social and
economic rights -the Constitutional Court declined to engage in any
* Associate Professor, Faculty of Law, University of the Western Cape.
1 2001 (1) SA 46 (CC).
2 See, generally, N Haysom 'Constitutionalism, Majoritarian Democracy and Socio-Economic
Rights' (1992) 8 SAJHR 451; E Mureinik 'Beyond a Charter of Luxuries: Economic Rights in
the Constitution' (1992) 8 SAJHR 464; D Davis 'The Case Against the Inclusion of Socio-
Economic Demands in a Bill of Rights Except as Directive Principles' (1992) 8 SAJHR 475;
B de Villiers 'Social and Economic Rights' in D Van Wyk, J Dugard, B De Villiers & D Davis
Rights and Constitutionalism: the New South African Legal Order (1994) 599; S Liebenberg 'The
International Covenant on Economic, Social and Cultural Rights and its Implications for South
Africa' (1995) 11 SAJHR 359; P de Vos 'The Economic and Social Rights of Children and
South Africa's Constitution' (1995) 10 SA Public Law 233; and P de Vos 'Pious Wishes of
Directly Enforceable Human Rights? Social and Economic Rights in South Africa's
Constitution' (1997) 13 SAJHR 67.
3 1998 (1) SA 765 (CC).

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