Abstract

Based on a critical analysis of relevant case law and desk-based comprehensive legal research, this article examines the judicial enforcement of the right to adequate housing against local government in South Africa. The article focuses on how courts hold local government accountable in fulfilling the right measured against the baseline factors outlined in General Comment 4 of the United Nations Committee on Economic, Social and Cultural Rights. The factors that determine whether a certain form of shelter amounts to ‘adequate housing’ encompass seven integral components: security of tenure; availability of services, materials, facilities and infrastructure; affordability; habitability; accessibility; location; and cultural adequacy. General Comment 4 specifically expounds on the right to adequate housing as enshrined in article 11 of the International Covenant on Economic, Social and Cultural Rights. South Africa is a state party to ICESCR. Domestically, the right to access adequate housing, as guaranteed by section 26(1) of the Constitution of the Republic of South Africa, 1996, imposes a legally binding duty on the state. These duties are varyingly shared by the three spheres of government: the national, provincial, and local governments. However, Schedule 4A of the Constitution allocates the functional area of housing as a ‘concurrent competency’ of the national and provincial governments. Subject to the prerequisite for competently administering national housing programmes, local government may ultimately be assigned to fulfil housing functions and powers by the national and provincial governments. Nonetheless, with an overstretched fiscus, municipalities are hesitant to assume housing delivery roles. Key findings reveal that numerous court cases bind municipalities by assigning to them increased rights-based responsibilities that they may not be adequately equipped or empowered to implement. Thus, despite courts not explicitly referencing General Comment 4, judicial enforcement of the right is consistent with the baseline factors.