Struggle for the Constitutional Right

Section 26 of the South African Bill of Rights confers on all South Africans the right to access to adequate housing.

Logo of the Human Rights Commission

Section 184 of the South African Constitution established the Human Rights Commission (HRC), the mandate of which is to:

a) promote respect for human rights and a culture of human rights;
b) promote the protection, development and attainment of human rights; and
c) monitor and assess the observance of human rights in South Africa.

Many communities in South Africa include the marginalised black working classes. This is true of Stellenbosch. They have protested – and are still protesting – what they perceive to be violation of their right to adequate housing. One of their recourses is to register a complaint to the HRC that their right to adequate housing has been violated.
A local Stellenbosch community organisation, based in Idas Valley, recently requested the HRC to investigate alleged violation of the right of their community to adequate housing. They invited the HRC to send representatives to a meeting. The parties held the meeting at the VKG Church in Rustenburg Road, Idas Valley, on 09 October 2020. The purpose of the meeting was to explain to the HRC the violation of their communities’ right to adequate housing. And also to hear from the HRC about their mandate. And what the HRC might do to take the communities’ grievances to the appropriate authorities.

Stellenbosch Transparency attended this meeting. We interviewed the HRC representative, Mr Eugene Raphalale, to clarify the HRC’s role and how it could respond to the claim raised by the community.

Interview – HRC and Right to Housing

Paul Hendler

Okay, so, my name is Paul Hendler from Stellenbosch Transparency. You are Eugene Raphalane from the Human Rights Commission in Cape Town. It’s the 9th of October. We are at the church in Idas Valley where you met a group of people organized by the Stellenbosch United Action Group, right? So I wanted to just put six clarifying questions to you. Which we would publish as I explained about clarifying what your mandates are and how you see the purpose of this meeting.

HRC’s responsibilities

So the first question that I wanted to ask is what is the HRC’s responsibility to communities? For example, do you simply write a report based on you know, and meeting, on what people said, or are you expected to do more, and does the HRC have leverage over parties that are violating communities’ human rights?

Eugene Raphalane

Well, basically if you look at the section 184 of the constitution it breaks down the mandate of the Human Rights Commission and it stipulates that, you see we are expected as the Human Rights Commission to ensure protection of rights. We have to to educate the public about their human rights, and we are also expected to monitor the observance of human rights in South Africa. So basically today we were invited to this meeting to come and explain the mandate, break it down to the community.

Paul Hendler

Sorry, you are actually referring to the section 184 of the Constitution.

Eugene Raphalane

So basically Chapter 9 explains what we are expected to do as the Human Rights Commission and like I decided to break it down. That’s what we did when we started with the meeting. So people are well conversant, they understand the mandate of the Human Rights Commission. So one of the challenges that we have is people tend to send all complaints pertaining to human rights (in inverted commas) to us. When some, for example, are supposed to be sent to your public protector or the IPID (Independent Police Investigation Directorate). So every time we receive a complaint we assess and make a determination if it falls within our jurisdiction.

HRC’s authority

Paul Hendler

Okay. What authority does the Human Rights Commission have?

Eugene Raphalane

I’m not sure if I understand the question.

Paul Hendler

Authority to act and to get its recommendations enforced.

Eugene Raphalane

We seek redress if there are any alleged human rights violations. Yes, we investigate and our findings will determine our course of action in certain instances. For example, we take matters to to the Equality Court in certain cases, we’ll resolve matters amicably between parties involved. Certain cases are issues of service delivery. We write to the relevant parties in government.

Paul Hendler

Okay, is it within the HRC’s mandate to make an assessment of a situation of human rights violations that it has been notified about? It sounds like it is, you’re not just a post box.

Eugene Raphalane

No, by law we are compelled to investigate every alleged human rights violation. So if you say that my rights have been violated, we have to investigate.

HRC’s assessments

Paul Hendler

And assess, make an assessment of whether it’s true or not.

Eugene Raphalane

But that’s what the investigation entails. Because that’s why I was saying earlier that some people don’t understand what a violation is. Not every admin action amounts to a human rights violation. Sometimes even inaction. If someone fails to act when they were supposed to act, it could amount to a human rights violation.

Paul Hendler

Right okay. Then I wanted to ask specifically about this meeting as far as the HRC’s concerned, what results would you aim to get following this meeting?

Eugene Raphalane

You see, I think for us the meeting was just a platform for us to to listen to the people to hear what the issues are. We’ve received a complaint already prior to this meeting regarding housing in the area, access to housing under section 26. But we were also informed that there were other issues. So I was just to come and listen. And I mean if you are aware that you are in lockdown, that there are restrictions and as a result people can’t come to our offices. This is one of the ways of us trying to take the office to the communities. And thus being accessible.

Enforcing HRC’s findings

Paul Hendler

Ok, and then the final question, what recourse does the Human Rights Commission have should the Stellenbosch Municipality or any other official or private body ignore its recommendations?

Eugene Raphalane

I I think it’s fair for us not to pre-empt the outcome of whatever complaint that we’ve received here. So it’s only fair for us to say we’ve received complaints and we are going to investigate because we have a complaints handling procedure that we have at the Human Rights Commission. I mean, you know, even in court everyone is deemed to be innocent until proven otherwise.

Paul Hendler

I was asking the question more in principle. If you make an assessment, and you make a recommendation?

Eugene Raphalane

Our recommendations are binding, if that’s what you are asking.

Paul Hendler

They are binding. They are like a court order effectively.

Eugene Raphalane

In inverted commas.

Paul Hendler

Okay. Okay, and if they are ignored, then they are binding but if they get ignored then what happens?

Eugene Raphalane

Well, we go to court and make it a court order.

Paul Hendler

Make it a court order. Ok. Fine. Thank you very much for your time.

HRC’s intergovernmental relationships

Eugene Raphalane

But I mean fortunately for us as the Human Rights Commission. I mean we work with various government departments across the province and fortunately in most cases the parties that we engage with, are more compliant than non compliant per se, but cooperative especially in this province. But obviously, you know that in every sphere of government there will be some issues here and there. But we try to deal with the bottlenecks. And of course I mean you know that the constitution is the supreme law of the country. So we use the Constitution to seek redress for people ensuring that we protect section chapter 2 of The Constitution.

Paul Hendler

Sure okay. Well, thank you very much.

Adequate Housing?

The Bill of Rights says that “The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right.”

Is the state doing enough to achieve the realisation of this right? How you answer this question depends on the meaning that you assign to the following words, “reasonable”, “available resources” and “progressive”.

There are a plethora of housing laws, regulations and programmes. This is not good enough for hundreds of thousands of informal settlement dwellers and backyard tenants. They think it unreasonable to wait a lifetime for a bricks-and-mortar house.

The state says that it has limited revenue, a small tax base. It claims it can’t raise tax rates on that base further. This underlies government’s recent decision not to build free BNG housing units for household heads under the age of 40. Critics argue that the state can create money directly through public banks.

The ANC government thinks that since 1994 it has done reasonably well, delivering millions of RDP/BNG housing units. But most units are marginally located. Many are of relatively poor quality. And they have not integrated housing into an industrial programme that addresses unemployment.

Defining ‘adequate housing’

To understand the issue better we need to define the meaning of the words “access” and “adequacy”. These appear in the Bill of Rights. Builders constructed a large proportion of RDP/BNG units poorly. We also need to reflect on the meaning of the word “quality”.

The Studies in Poverty and Inequality Institute (SPII) assessed the status of the Right to Housing in a 2017 report.

The report developed definitions of “”access”, “adequacy” and “quality”. It did so to clarify the meaning of the right to access adequate housing.

They define Access as “physical and economic access to housing. And the accessibility and affordability of housing from the perspective of the lowest income deciles and the low to middle-income housing market.”

The report describes Adequacy as “access to basic services including water, sanitation and electricity, and tenure security. As well as the adequacy of the house itself in terms of meeting basic norms and standards.”

Quality means “impact of housing on one’s quality of life”. We link this to the geographical and spatial location of one’s housing. Whether one has work, a reasonable income and material wealth is an example of this. Another example is the inequality gap is closing between the ‘haves’ and the ‘have nots’

We explore these issues further in a separate blog post on Adequate Housing.