On 18 May 1999, bulldozers arrived on a farm called New Rust, outside Wallacedene in the Western Cape, and began demolishing the homes of its unlawful occupiers. These demolitions were to give rise to the most prominent Constitutional Court judgment on housing in post-apartheid South Africa.
The judgment was authored by Justice Zak Yacoob, a fan of Charles Dickens, with the input of the Constitutional Court bench. It recalls that day “at the beginning of the cold, windy and rainy Cape winter” when “the respondents were forcibly evicted at the municipality’s expense. This was done prematurely and inhumanely: reminiscent of apartheid-style evictions. The respondents’ homes were bulldozed and burnt and their possessions destroyed. Many of the residents who were there could not even salvage their personal belongings.”
The 20th anniversary of the judgment fell on 4 October this year, in the midst of the Covid-19 pandemic during which evictions and demolitions have continued nationwide.
The story of Irene Grootboom is an archetypal tale of post-apartheid South Africa. Grootboom, who was born in 1969, lived with her family and neighbours in a shack settlement on the eastern periphery of Cape Town with little access to water, sewerage or electricity. The settlement was on an expanse of land called Uitkyk, which translates as Outlook. Throughout the 1980s, residents resisted eviction by the landowners, through the sheriff.
In the early 1990s, the residents obtained the right to settle on the land with the help of attorney Wallace Mgoqi from public interest law firm the Legal Resources Centre. He later became the provincial land claims commissioner and city manager of Cape Town. The area was renamed Wallacedene, after Mgoqi.
The residents of Wallacedene, including Grootboom, were later put on a waiting list for government housing. In September 1998, they decided they could wait no more. In an act of anger and desperation, 390 adults and 510 children occupied private land intended for low-cost housing.
In December 1998, the landowners, Cape Town-based development company Jonhass Properties, obtained an eviction order in the magistrates’ court, where lawyer Julius Apollos was appointed to represent the community. At the end of May 1999, Jonhass Properties drove the occupiers from the land. The residents, Grootboom among them, camped on a nearby sports field.
Grootboom was a community leader at the time, along with Lucky Gwaza – who later became an ANC councillor for Wallacedene – and Mawethu Sila. Sila recalled the day of the eviction: “They just demolished everything. All of your stuff, you just lose. You don’t have anything, you don’t know what to do, you don’t know where to go, you don’t know where to start, you don’t know where you are going to sleep because what you are calling your home was demolished … It was so difficult and so painful to see elderly people crying, children. It was so painful.”
After the eviction, their attorney lodged an urgent application with the high court against the Oostenberg Municipality, along with the wider Cape Metropolitan Council and provincial and national government, asking for temporary shelter for all evictees and basic support, including food and healthcare, for the evicted children.
Grootboom became the most well-known leader and, as the first applicant, her name became synonymous with the case. According to Sila, this was because Grootboom could speak Afrikaans and isiXhosa, so she could communicate effectively with all the New Rust residents, African and those classified as coloured during apartheid. Grootboom could engage members across the diverse community, as well as mediate with lawyers.
The case turned on two constitutional requirements. First, Section 26, which assures protection against arbitrary eviction and the progressive realisation of access to housing for everyone. Second, Section 28, which guarantees the right of children to shelter. The high court granted temporary relief to children and a single parent, but denied the right to the general community as a constitutional requirement. The state appealed even this limited ruling and the case went to the Constitutional Court.
It was becoming apparent that the stakes of the case were high, and that its outcome would have implications for many more than just Grootboom and her neighbours. Apollos and advocate Peter Hodes represented the residents, and the Human Rights Commission and Community Law Centre at the University of the Western Cape were admitted as amici curiae, or friends of the court. Legal Resources Centre attorneys Steve Kahanovitz and Geoff Budlender were also part of the legal team for the amici, and Budlender presented their case in court.
“It was clear that it was a very important case, because it was the first test in which an attempt was made in terms of getting an order in terms of the positive obligations of the state to provide access to housing,” Budlender said. “It’s been foundational for much of the housing litigation that followed, because it’s a quite unusually detailed analysis of the content of the right. The court was very, very aware what it said was going to have a long-lasting impact.”
The judgment was to lay the basis for constitutional law, and the terrain of legal and political struggles over evictions for the next two decades. Yacoob’s life story was tied up in the drafting of the Constitution and hence the genesis of the Grootboom judgment.
Blindness as a form of power
Born in 1948, Yacoob grew up in Verulam, an Indian township on the outskirts of Durban. Yacoob was blind from the age of 16 months as a result of contracting meningitis. He remembers himself as a confident child without much of a sense of disability. His father was an imam who decided that the young Zak was to learn the Koran by heart. He was a student at a school for blind children at the edge of town, with 23 other students, where he learned Braille and soon became an avid reader.
When he went to University College, Durban (later the University of KwaZulu-Natal), he became an atheist and, as he put it, a “rampant communist”. With his sharp intellect, he had other students lining up to read to him. Among the books he listened to were the works of Karl Marx and Herbert Marcuse. It was there that he met his lifelong friend Pravin Gordhan, who went on to become the minister of finance in democratic South Africa.
Under Gordhan’s mentorship, Yacoob joined a branch of the ANC underground in which Gordhan was the commander. His role was primarily money laundering. “I made sure money got into the country and was properly distributed.” Because he was the only blind person in the underground, they looked after him “like gold”. His blindness allowed him to operate without arousing the suspicion of the apartheid security police. It became a form of power.
As a lawyer, Yacoob faced difficulties early on. Many firms turned him down when he applied to do his articles because he was blind, he would later learn. So instead, he became an advocate and worked in various fields – insolvency, commercial, insurance and accident claims – alongside pro bono work for organisations secretly affiliated with the ANC.
He was a prolific housing activist, motivated by a concern for socioeconomic injustice but also as a front for ANC work. He and his comrades formed the Durban Housing Action Committee, with Gordhan as the chairperson. He travelled widely in this role, often visiting black townships in secret late at night.
In the late 1980s, it became more likely that the ANC was going to be at the negotiating table with the apartheid government, led at that time by FW de Klerk. In 1988, two years before apartheid was formally ended, the ANC told some of the lawyers within its ranks, Yacoob included, that they were going to have to study constitutional law. During those years of intense tumult and violence in the country, Yacoob helped pen the Constitutional Principles, which served as the basis for an interim Constitution.
After Nelson Mandela became South Africa’s first democratic president in 1994, a Constitutional Committee chaired by Cyril Ramaphosa was created to draft and review the final Constitution. The committee had more than 50 members, mostly political appointments, from the parties involved in the negotiated transition to democracy. Yacoob was on a panel of six constitutional experts. He was appointed as a Constitutional Court judge by Mandela in 1998.
South Africa’s Constitution is deemed one of the most progressive in the world. It enshrines not only negative liberties – those that ensure freedom from external restraint, such as freedom of movement and speech – but also cherishes legally enforceable positive liberties that give people the ability to fulfil their potential, such as the right to education, housing and health. Moreover, it enshrines the latter not only for “citizens” but for “everyone”, including migrants. It is apt that it was penned in part by a stylus in Braille, as was the Grootboom judgment.
The dignity of human beings
The Grootboom judgment turned on the issue that, although there were national housing programmes, there was no national housing programme for people in “desperate need” or emergency situations. It found, therefore, that the state was not fulfilling its constitutional obligations in this regard. “Section 26 [Everyone has the right of access to adequate housing] does oblige the state to devise and implement a coherent, coordinated programme designed to meet its Section 26 obligations,” says the judgment.
The court ordered the state to meet these obligations, which included “the obligation to devise, fund, implement and supervise measures to provide relief to those in desperate need”, including to “provide relief for people who have no access to land, no roof over their heads, and who are living in intolerable or crisis conditions”. More than this, the judgment made it clear that the matter was not merely about providing housing or shelter, but that it required the state to protect “the inherent dignity of human beings”.
For Grootboom and her neighbours, the judgment found that the Cape Metropolitan Council had “failed to make reasonable provision within its available resources for people in the Cape Metropolitan area with no access to land, no roof over their heads, and who were living in intolerable conditions or crisis situations” and that it was required to do so.
One of Yacoob’s co-judges, Richard Goldstone, observed that the Grootboom judgment was “the first building block in creating a jurisprudence of socioeconomic rights”. However, the judgment has also been widely misconstrued.
“Many people don’t appreciate this about the Grootboom case,” said Yacoob, who is now retired. “It was about temporary housing for that community, and the temporary housing case was actually settled between the government and the community concerned on the second day on which we heard argument … We decided to hear the case despite the fact that the issue was settled between the parties because, as a court, we wanted to do something about making social and economic rights more meaningful.”
The case was close to Yacoob’s heart and he visited Wallacedene in the wake of the judgment. It was “a terrible and sad experience, and it drew attention to how difficult things are in the country,” he said.
Yacoob is proud of the judgment but also dispirited, reflecting 20 years on, by its consequences. “It is a very sad day, this 20 years from Grootboom,” he said. “Grootboom was a judgment which gave opportunity and gave guidance to government to comply with its housing obligations. Grootboom was drafted on the assumption that we had a bona fide government, a government composed of people who would be aware of their public responsibility, a government who would have sympathy for poor people, a government who at every level understands the suffering of people with lack of housing, who understand the suffering of people in poverty, and will do what they can to fix it.
“Grootboom has failed not because of Grootboom [the judgment], but because we could never have foreseen and could do nothing about the corruption, greed, selfishness and lack of attention to poor people that we have witnessed on the part of government up to now. I am ashamed.”
‘A deeply ironic outcome’
Yacoob’s sentiments resonate with many housing activists and lawyers engaged in contemporary struggles in the wake of Grootboom.
The tragedy of Irene Grootboom dying “penniless and houseless” in 2008, as the Mail & Guardian newspaper reported, has become an oft-repeated refrain. The tragedy is real, but understanding Grootboom as “homeless” obscures some of the profundity and paradoxes of her life and of the case.
Grootboom and her neighbours were allocated temporary relief through the provision of building materials and a patch of land on which to build homes, and basic services. This was the immediate goal of their legal case. However, as Budlender – who in the wake of the judgment represented the community directly – recalls, the municipality used the judgment to argue that they were now obligated to serve those most in need. Grootboom and her neighbours were no longer the most desperate. “It was a deeply ironic outcome,” Budlender recalls, “but there was some truth to it.” So those involved in the case were put on a housing waiting list.
Budlender reiterates that the case was actually focused on the provision of emergency housing, which Grootboom and others in the case received. But “it did raise the question of what is the meaning of the progressive realisation of the right”, he said. Reflecting on the 20 years since the judgment, he said the case has helped put a “brake on evictions” but not stopped them, and the limited expansion of emergency housing has had “little bite” in increasing the provision of permanent housing.
Grootboom and others were assigned to phase four of a 10-phase development plan. “She was a friendly person,” said Sila. “Wherever she’s around, people would laugh … Irene was this type of person that it was not about herself, it was about the community she lived in. It’s a pity that when she lost her life, the house was not yet built. The house was built after.”
According to Sila, he and most of the others in the case had finally received state housing by 2011. A street adjacent to the settlement is named Grootboom.
Grootboom died in her self-built shack on the temporary relocation site. It is perhaps misleading to characterise her as homeless. To do so would be to deny that self-built shacks, in spite of harsh living conditions, could be considered homes. Legally, the community was protected from homelessness, though there remains no clear legal definition of a home in South Africa.
Grootboom’s tragedy speaks to what has become a recurrent phenomenon in the post-judgment era: frequently temporary accommodation sites become, in the absence of permanent or affordable accommodation, long term or de facto permanent.
The Grootboom case has had a wide-ranging effect on housing policy and constitutional jurisprudence, even though the dilemmas it raised have not been resolved.
“The first thing to recognise is that it was the beginning of our housing jurisprudence, and it came up quite strongly that the court expected the state to deal with people who are destitute urgently,” said Socio-Economic Rights Institute of South Africa executive director Nomzamo Zondo.
These responses included the Emergency Housing Programme of the National Housing Code in 2004, to provide temporary accommodation to evictees. They also influenced the introduction of The Upgrading of Informal Settlements Programme, which is oriented towards improving conditions in existing shack settlements. But these policy responses have had limited effect, according to Zondo.
“The difficulty has been the refusal of the state to implement those programmes and a lack of commitment to ensuring that the conditions that brought the Wallacedene people to the court are not repeated,” she said.
Zondo was an attorney on one of the most high-profile cases relating to temporary emergency accommodation – Nomsa Ellen Dladla vs City of Johannesburg Metropolitan Municipality – the judgment for which was given in December 2017. The case was a continuation from a previous Constitutional Court case known as Blue Moonlight, relating to the relocation of the unlawful occupiers of an abandoned furniture factory in Saratoga Avenue in Johannesburg’s central business district.
Johann van der Westhuizen authored the judgment for the Blue Moonlight case in 2011, which was named after the evicting company. His judgment was a direct elaboration of Grootboom, making clear that municipalities were obliged to provide temporary emergency accommodation even if the evictors were private developers, and that evictions could not occur until this was in place.
However, the case ended up splitting the residents between temporary emergency accommodation sites, with those unable to pay any rent ending up in a homeless shelter where there were daily lockouts. The granddaughter of Dladla, a street trader, was taken from her custody and returned only three years later.
Nonkosi Zoliswa Mhlantla, the judge in the case, ruled that “just because the shelter does not constitute a home in the everyday, colloquial sense of the term does not mean that the applicants are not entitled to the protection of fundamental constitutional rights”. She found the rules at the shelter to be “cruel, condescending and degrading”, and ordered them permanently suspended. The Dladla judgement, an elaboration of Grootboom, made clear that temporary emergency accommodation had to conform to the basic requirements of human dignity.
Yet like Grootboom, Dladla and her neighbours, unable to afford accommodation amid the rising prices of inner-city Johannesburg and in spite of the City’s commitments to expand low-cost housing, have been in temporary emergency accommodation for years.
According to Zondo, while ANC and DA administrations have pushed for the removal of unlawful occupiers, “the City has moved very slowly in meeting its obligations to provide for evictees with very few TEA [temporary emergency accommodation] facilities being made available by the City of Johannesburg.”
Evictions and relocations in the Western Cape reflect similar dynamics. Prior to the 2010 Fifa World Cup, displaced residents were put in the temporary relocation area of Blikkiesdorp on the outskirts of Cape Town, where conditions were dire.
“When a judgment is given, what happens, the state has access to all resources, they do minimum requirements for that judgment,” said Ashraf Cassiem, a former leader of the Western Cape Anti-Eviction Campaign, which undertook militant direct action against evictions from the early 2000s, including in Blikkiesdorp. “They don’t fulfil the judgment in its spirit, they fulfil it in its bare necessities … That’s what TRA [temporary relocation area] is, the bare necessities. They are not covering the issues that are brought up in court. [Grootboom] was such good judgment, but there was no momentum to build on it and carry it … As much as things change, they’re just the same. There are more creative means to evict people now than in the past.”
Mpho Raboeane, an attorney at not-for-profit trust Ndifuna Ukwazi, confirmed that ways are being found to circumvent eviction laws. Ndifuna Ukwazi is campaigning with organisations such as Reclaim the City for inner-city land in Cape Town to be used for low-cost accommodation. Ndifuna Ukwazi has opposed the gentrification of the city that has been driving out longstanding communities in areas like Woodstock and Salt River, along with publicly owned land being sold to private developers rather than used for low-cost housing.
According to Raboeane, protections against evictions and the precedent set by Grootboom have been violated repeatedly this year. “What we saw increasingly was, even with a legislative moratorium on evictions, the effect of it still being nullified both by private parties and by the government itself, by local authorities and municipalities, and this was especially pronounced in the informal settlement context,” she said.
At the Empolweni shack settlement in Khayelitsha on 9 April, the City’s anti-land invasion unit destroyed homes with no warning or court order. The Legal Resources Centre, representing 49 displaced households, argued the case and the court found the evictions to be unlawful.
According to Raboeane, there have been numerous similar evictions during the Covid-19 lockdown, with the City and private developers trying to find ways to circumvent legal processes. In doing so, they have risked the health of those evicted. “No one should be evicted into homelessness in light of this pandemic, and yet there has been no alternative accommodation provided, especially because of the health risks of being outside and exposed.” Raboeane points to recurrent attempts to evade constitutional law by using common law solutions such as interdicts, even in cases where residents have already occupied land for some time. However, these issues are symptomatic.
“It all stems from a monumental inability to actually address the root problem, which is what Grootboom was about as well, which is the immense need by the public, by a large number of people, to get access to adequate housing,” said Raboeane. “So, unfortunately, the issue of Grootboom in this instance has not been honoured in the way we’ve hoped. It has entrenched significant socioeconomic rights for people, but the realisation of those rights certainly [tells] a different story. The promise of Grootboom continues to ring hollow.”
Cycle of dispossession
This year, Wallacedene has witnessed a spate of unlawful occupations, evictions and clashes between occupiers and the police. Sila still lives there. “It’s a shame that in this day and age, evictions are still taking place … We have won a case, but there are evictions still taking place in Wallacedene,” he said. Those involved in the Grootboom case now have permanent housing, but the cycle of dispossession has been renewed.
Every day, Sila passes the house that Grootboom would have inhabited – members of her family live there now – and the street named after her. “You see, for her, everything was accomplished so that people could get a piece of land that belongs to them. She was happy with that. The only thing she wanted now is that people would then get a proper structure, so that the case would be accomplished.”
Grootboom gave her last interview to Francis Hweshe for the Cape Argus newspaper just days before she died in late July 2008. Her family has not revealed the cause of her death. She told Hweshe that she was proud of the judgment but frustrated. “I was supposed to get a house a while back but I’m still in a shack, which I share with my sister-in-law and her three children. They keep promising us … I’m sick and tired of the whole thing … When it rains, water seeps through every crevice and the thing is submerged in water. I try to repair it, but I can’t do much.”
Twenty years after the Grootboom judgment, Yacoob’s words still ring true. “The case brings home the harsh reality that the Constitution’s promise of dignity and equality for all remains for many a distant dream.” Perhaps Grootboom did not die homeless, but like the judgment that took her name – and the constitutional project itself – her life was shadowed by an uncompleted plan, a house unbuilt.
Correction, 6 October 2020: This article incorrectly stated that Yacoob authored the judgment for the Blue Moonlight case in 2011.