Housing in South Africa

This publication was originally written for Shared Interest, a U.S. NGO that serves as a catalyst for change in South Africa by providing access to credit for black people otherwise considered "unbankable." Since 1994, this social investment fund has helped create more than 12,000 small businesses, 18,000 jobs and 64,000 low-cost homes – benefiting 400,000 South Africans, 75 percent of them women. This paper presents the government policy and the debate about policy as the country seeks to meet the Millennium Development Goals including halving extreme poverty to halting the spread of HIV/AIDS.

A Decade of Democracy:

Housing, Services and Land in South Africa

By Richard Knight, March 19, 2004

“Any observer of an informal settlement in South Africa is likely to see the following: Rows and rows of shacks built of rusted metal and corrugated iron fixed together to form the shape of a housing structure. Plastic and cardboard are also used to reinforce these structures with an organic town planning of sorts giving it shape. Fires devour these settlements at the blink of an eye. Floodwaters swallow these weak-kneed structures without a fight. Suffocating smog from coal fires form a hazy cloud over these settlements. The extreme densities and lack of basic sanitation creates a breeding ground for the rapid spread of contagious and infectious diseases and the social problems that such environments foster. The informal settlement in South Africa is living testimony to apartheid created poverty.

Without hammering on the apartheid legacy, it is important that we look at the historical perspective to the rapid increase in the number of informal settlements in our province post 1994. What we are seeing today in South Africa, and Gauteng in particular, is rapid urbanization similar to that which took place in post World War 2 in other countries where there was no restriction on movement of people within their own countries. As you are all well aware, influx control effectively kept an artificial lid on population growth in the urban areas of our country. The abolishing of influx control saw large population shifts to urban areas of people seeking better opportunities. This, compounded by the fact that the apartheid regime had not built new housing stock since 1976, saw a burgeoning of informal settlements as in any rapidly urbanizing city. In Gauteng alone this resulted in a housing waiting list of five hundred thousand families. Present figures indicate that with the present migration from other provinces into Gauteng, and normal family formations, this figure is set to rise.”

Mr Paul Mashatile

Gauteng MEC for Housing

June 3. 2003

House completed or under construction since 1994-September 2003: 1,530,602	Number of homes still needed: 2 to 3 million
Number of people given shelter in the past 10 years: 7 - 8.5 million	Number of people still in need of adequate housing: 7.5 million people

· Population (October 2001): 44,819,778

· Growth rate: 2% per year

· Africans make up 79% of the population, whites 9.5%, Coloureds 8.9% and Indians/Asians 2.3%.

It has been ten years since the African National Congress won the first democratic election on a program of meeting the basic needs of the people including land, housing, water, electricity, telecommunications, transport, a clean and healthy environment, nutrition, health care and social welfare. One and a half million houses have been built and services have been extended to millions of people since 1994.

Despite this progress millions of people still live in shacks in squatter camps and back yards; an additional 2 to 3 million homes are required to meet their needs. This backlog is exacerbated by high chronic unemployment leaving millions of people unable to afford basic necessities. Many of those who do work are employed in the informal sector and their incomes are low. The HIV/AIDS pandemic, with 4.74 million South Africans infected, is adding to the development problem. Access to land and security of tenure in both urban and rural areas remain critical issues.

Apartheid's Legacy

Under apartheid, segregation was mandated by law. Blacks could not live in “white” areas but had to live in townships, on white farms (often as labor tenants) or in impoverished rural areas in the former homelands or Bantustans. Land dispossession under colonialism and apartheid resulted in whites owning the best land and millions of blacks being forcibly removed from their land and homes.[*]

“South Africa’s housing crisis originated in the overriding concern of the apartheid government to contain African settlement in the urban areas through the imposition, for example, of ‘influx control’ and the Group Areas legislation. In addition, government provided very little housing for the expanding urban population, especially after the 1960s. By the mid-1980s, these policies had resulted in a large housing backlog, massively overcrowded housing in the black townships, and the emergence of informal housing in both the backyards of existing township houses and in settlements both on the urban periphery of the cities and within the (former) ‘homeland’ boundaries at points closest to the cities.”[1]

Gauteng Department of Housing

From the 1960s very little new housing was built for urban Africans. As the Gauteng Department of Housing notes: “Africans were temporarily in the cities to serve in the mines and in industries and services located in white parts of town. Once their working life was over they were supposed to go ‘home’ to the rural areas.”[2] (See Appendix I for more on government housing policy under apartheid.) Blacks in urban areas lived in segregated townships in houses owned by that state.

The struggle against apartheid increased dramatically in townships across the country following the Soweto uprising in 1976. In 1983 the United Democratic Front was formed. As part of this struggle in the 1980s township residents organized rent and services payment boycotts. In July 1985 the government declared a State of Emergency.

In 1986 influx control and the legal restrictions on a black person’s right to own property in black urban areas were repealed. The change did not allow blacks to purchase homes outside the townships in areas designated for whites. But few township residents were able to exercise this new right because of technical problems and by the lack of commitment by white government officials.[3] Political resistance at the local level continued leading to an important victory in September 1990 when government agreed to the Greater Soweto Accord that resulted in the writing off of rent and service arrears and committed the government to the “transfer of houses to the people.”[4]

In 1990 South Africa entered in a period of struggle mixed with negotiation. Nelson Mandela and many other political prisoners were released and the African National Congress (ANC) and other political organizations were unbanned. In 1991 the Population Registration Act, Group Areas Act and Land Acts were repealed. In 1992 the National Housing Forum, a multi-party non-governmental negotiating body comprising 19 members from business, the community, government, development organizations and political parties outside the government at the time, was formed to negotiate a new housing policy. It was agreed in the National Housing Forum that a sustainable housing process was needed that would “enable all people to secure housing with secure tenure within a safe and healthy environment.”[5]

When the ANC led government came to power in 1994 there was only one formal brick house for every 43 Africans compared to one for every 3.5 whites. The urban backlog alone was estimated as at least 1.3 million units in 1994. Between 7.5 and 10 million people lived in informal housing such as shacks in squatter camps and back yards of black township houses.

Housing Policy

In the lead up to the 1994 election the African National Congress adopted the Reconstruction and Development Programme (RDP), an integrated socio-economic policy framework which is now the policy if the government. The RDP set a goal of 300,000 houses to be built a year with a minimum of one million low-cost houses to be constructed within five years. In December 1994 government issued a Housing White Paper that set out the framework of the national housing policy.

Adequate Housing - Law of the Land

The 1996 Constitution states that everyone “has the right to have access to adequate housing” and that the state “must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right.” Provincial legislatures and local government share responsibility with the national government for delivery of adequate housing. The Constitution also states “No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.”

In October 2000, the Constitutional Court made an important ruling in Government of RSA and others v Grootboom and others on the government's constitutional obligation to provide adequate housing for all and shelter for children. The case involved 510 children and 390 adults living in appalling circumstances in an informal settlement. The Court ruled that although they were not entitled to immediate shelter, the program of the Cape Metropolitan Council was constitutionally deficient because it failed to provide for any form of temporary relief to those in desperate need, with no roof over their heads, or living in crisis conditions The “Grootboom” case has set a precedent for the defense of other social and economic rights. (For a summary of this case see Appendix II.)

To implement its Constitutional mandate for housing development Parliament adopted the Housing Act of 1997. The Act legislated and extended the provisions set out in the Housing White Paper, clarified the responsibilities of national, provincial and municipal government and requires all three levels of government to give priority to the needs of the poor. Housing development is based on integrated development planning and provides as wide a choice of housing and tenure as possible.

“Housing policy has as one of its key cornerstones, the principle of labour intensive building methods and employment creation and/or sustaining existing employment opportunities. Fortunately, the nature of housing delivery projects is such that it has a relatively high labour component. Even more positive is the fact that the major part of the employment opportunities provided through housing projects is for semi-skilled or unskilled labourers.

“It is estimated that the approximately R3 billion which Government spends annually through its housing subsidy programme, sustains 45,000 direct employment opportunities in the building industry. Linked to this are about 43,000 indirect job opportunities in the building materials and component markets which the Government’s housing programme sustains.”

Department of Housing

As required by the Act, in 2002 the Minister of Housing issued the National Housing Code outlining national policy. Under the Act and Housing Code each level of government – national, provincial and municipal – has some responsibility for housing delivery. The national government determines national housing policy which must be adhered to by provincial and local governments. The national government also establishes and facilitates a sustainable national housing development process. Provincial governments have a responsibility to create an enabling environment within the province within the framework of national policy. Municipalities seek to ensure the right to adequate housing is realized by the development of housing, addressing the issue of land, services and infrastructure and creating an enabling environment for housing development within their area of jurisdiction.[6] The government's goal, as set out in the Housing Code, is the provision of 350,000 houses per annum until the housing backlog is overcome. Broad principles of housing policy include people centered delivery and partnerships; skills transfer and economic empowerment; fairness and equity; choice; quality and affordability; innovation; transparency, accountability and monitoring; and sustainability and fiscal affordability. (For excerpts of the National Housing Code see Appendix III.)

The initial focus was on quantity not quality. Some houses were so small and badly built that people joke that they are “so small you need to go outside to change your mind.” The Housing Consumer Protection Measurers Act of 1998 protects homeowners from inferior workmanship. Builders are responsible for design and material defects for three months, roof leaks for a year and structural defects for five years. In some areas emerging contractors are developing ways to build quality housing, and beginning to experiment with environmentally friendly and cost effective technology.

Housing Delivery

A considerable amount of housing has been delivered – by September 2003 more than 1.5 million houses were built or under construction and some R 26,426 billion has been allocated for housing delivery. Minister of Housing Brigitte Sylvia Mabandla noted recently: “To date the most commonly constructed housing projects have been single unit houses located largely on the urban periphery on sites provided by large developers. The majority of the houses built have been in urban or peri-urban areas where rates of urbanisation have been highest and the need for housing has been greatest.”[7] This represents an addition of 15.6% to the total national housing stock and that government-supported low income housing accounted for more than half of national housing production. Secure tenure and safe homes have been provided to between 7 and 8.5 million poor people.[8] More than half of all subsidies approved have gone to women.[9]

Subsidized Houses Completed or Under Construction April 1994–September 2003
Eastern Cape	205,548
Free State	94,658
Gauteng	363,968
KwaZulu-Natal	266,600
Limpopo	117,489
Mpumalanga	121,998
Northern Cape	32,136
North West	134,466
Western Cape	193,739
Total	1,530,602

The Housing Code notes “High levels of unemployment and relatively low average wage levels contribute to a major affordability problem in South Africa, and the ability to pay for housing is severely limited among most families in the country. Consequently, government has adopted a strategy to provide subsidy assistance to households who are unable to satisfy their housing needs independently.”

The delivery of 1.5 million houses has been achieved by the Housing Subsidy Scheme that provides a state grant to qualifying beneficiaries, with a combined household income less than R 3,500 per month, to acquire secure tenure, basic services and a top structure. Some the 2.3 million subsides have been approved.[10] As of April 1, 2002 all beneficiaries of housing subsidies, except the indigent, must contribute financially or in kind (sweat equity). Indigent beneficiaries, those who are aged, disabled and health stricken, receive a 100% subsidy. When a beneficiary elects to have a contractor-built house the minimum contribution is R 2,479 which must be paid upfront.[11] The minimum cost for a subsidized house is R 25,579 ($3,666) including R 10,579 ($1,515) for the cost of a stand and R 15,000 ($2,147) for a 30m² (323 square feet) house. The rate of the subsidies varies according to income.

Subsidy Qualifications

· household income is not more than R3500 per month

· South African citizen or permanent resident

· legally competent to contract (over 21 years of age and of sound mind)

· married, co-habitating or single with dependents

· acquiring a home for the first time

· has not received a subsidy previously

Note: a number of exceptions to the above criteria apply

There are a number of different types of subsidies including:

· Individual subsidies to enable beneficiaries to acquire ownership of serviced stands and enter into house building contracts, or to purchase existing improved residential properties which are not part of approved housing subsidy projects.

· Project linked subsidies to enable a qualifying household to access a complete residential unit, which is developed within an approved project linked housing subsidy project for ownership by the beneficiary.

· Institutional subsidies for qualified institutions to enable them to create affordable housing stock for persons who qualify for housing subsidies. The subsidy is paid to approved institutions to provide subsidized housing on deed of sale, rental or rent to buy options, on condition that the beneficiaries may not be compelled to pay the full purchase price and take transfer within the first four years of receipt of the subsidy.

· Rural subsidies for beneficiaries who have uncontested informal tenure rights on state-owned land governed by traditional authorities.

· People’s Housing Process subsidies enable beneficiaries build or organize the building of their own homes and their contribution is sweat equity as opposed to hiring a contractor.

· Consolidation to afford previous beneficiaries of serviced stands, financed by the previous housing dispensation, the opportunity to acquire houses.

Housing Subsidy Rates As of April 2003
Category of Beneficiary	Monthly Household Income	Subsidy	Contribution
Qualifying beneficiaries: (Excluding Indigent Groups)	R0 to R1,500 ($0 - $215)	R23,100 ($3,307)	R2,479 ($355)
	R1,501 to R2,500 ($215 - $358)	R14,200 ($2,033)	R2,479 ($355) + Shortfall
	R2,501 to R3,500 ($358 - $501)	R7,800 ($1,117)	R2,479 ($355) + Shortfall
Indigent: Aged, Disabled & Health stricken	R0 to R800 ($0 - $115)	R25,580 ($3,662)	None
Institutional	R0 to R3,500 ($0 - $501)	R23,100 ($3,307)	Institution must add capital
Rural and Peoples Housing Process	R0 to R1,500 ($0 - $215)	R23,100 ($3,307)	None
	R1,501 to R2,500 ($215 - $358)	R14,200 ($2,033)	Shortfall
	R2,501 to R3,500 ($358 - $501)	R7,800 ($1,117)	Shortfall
Consolidation	R0 to R1,500 ($0 - $215)	R12,521 ($1,793)	R2,479 ($355)
Rand to dollar exchange rate used is the average monthly average August through December 2003 average. $1 = R0.143164

The 2005-2006 People’s Budget, drawn up by COSATU, SANGOCO and SACC, recognizes these achievements but notes a number of problems with the housing subsidy program. To get the full subsidy a household must have an income of R1,500 or less. “Government has failed to raise the minimum income to be eligible for a housing subsidy, despite inflation,” notes the People’s Budget. “Since this amount was first set in the mid-1990s, the real value of this income has fallen by half.” [12] Still, a large number of people qualify. Some 63% of all those employed earn R2500 a month or less, including 89% of those employed in the informal sector.

“Since 1994, the government has delivered close to 1.5 million houses. Still, much of the new housing is far from city centres and employment opportunities, small in size and sometimes poor in quality. In part, this reflects deep cuts in the housing budget in the late 1990s, during the GEAR era, which have still not been overcome.”

People’s Budget 2005-2006

Financing for those who get a partial subsidy or get no subsidy because they earn more than R3,500 per month is a problem. Commenting on the problem the People’s Budget says: “Families earning R1500 to R3500 a month get only a partial subsidy, since they were expected to get housing bonds as well. Banks are reluctant to lend to families earning less than R6000 a month. Anyone buying a house in a township is also likely to be denied a bond [mortgage].”[†] The 1994 White Paper estimated that at least 70% of South Africa’s population is unable to afford finance and a further 10 % to 15% is only able to afford limited finance, most likely from nontraditional lenders. Nontraditional lenders include loan sharks who charge up to 600% interest on an annualized basis. Moreover, even those black South Africans who are able to afford loans are frequently denied credit as a result of enduring discriminatory practices inherited from South Africa’s apartheid past.

The Home Loan and Mortgage Disclosure Act of 2000, similar to the Home Mortgage Disclosure Act in the U.S., encourages banks to grant home loans and requires banks disclose annual financial statements so that their lending practices can be monitored. The government is working with financial institutions to address this problem the Department of Housing is currently drafting the Community Reinvestment Bill aimed at increasing access to finance by poor communities. This initiative has been delayed as the industry moves to implement the Financial Services Charter.

It is official policy that houses should be built in a way that also builds communities. As stated in the Housing Code the government seeks “the establishment and maintenance of habitable, stable and sustainable public and private residential environments to ensure viable households and communities in areas allowing convenient access to economic opportunities, and to health, educational and social amenities.” Houses built should have “secure tenure, ensuring internal and external privacy and providing adequate protection against the elements.” But the People’s Budget notes that “the amount of subsidy for each family is too low to provide decent housing near economic centres, where residents could more easily find work.”

In addition to the building of houses the government has undertaken several other steps to improve housing. This includes:

“Despite the efforts of Government, the poorest of South African households earn less than 10% of the total income earned by all South Africans, and the richest 10% earn more than half of the total income. With this, access to finance still remains the greatest challenge to low cost housing development.”

Department of Housing

· Public Sector Hostels Redevelopment Program: Under apartheid hostel were built to provide temporary accommodation migrant workers in urban centers. These “temporary” workers were supposed to return to their homes in the Bantustans. Some hotels were built by the private sector, for example on the mines; others were “built by government and managed by municipalities to provide communal, dormitory-type accommodation, often along ethnic or language lines. They were often located on isolated parcels of land, usually adjacent to existing black townships or close to industrial and mining areas.” The hostels are being redeveloped into accommodation for a mix of single people and families. The National Housing Code estimated 182 hotels were eligible for upgrading under this program.[13]

· Discount Benefit Scheme to promote home ownership: This program had its origins in the Greater Soweto Accord. Under apartheid, Africans were not allowed to own their homes in urban areas but lived in state-owned houses. This scheme transfers state-owned properties in former black townships and former Group Areas to their rightful owners, many of whom have lived in these properties for many years. It also includes 622,000 serviced sites (excluding sites delivered with the Independent Development Trust capital subsidy financing) delivered in terms of the pre-1994 administration. More than 480,000 households have had housing assets transferred to them under this scheme.[14]

· Promotion of Rental Housing: Rental housing outside of the former black townships is a relatively new option for the historically disadvantaged.[‡] To ensure that more houses are provided for rental purposes and to regulate the behavior of unscrupulous landlord to they do not charge exorbitant rents the Rental Housing Act of 1999. The Act provides for dispute mediation between landlord and tenants and outlaws the evicting of long-standing tenants from their homes with mediation.

A Moving Target

Despite this impressive record, the housing backlog has not been eliminated. Population growth and rapid urbanization have combined to increase the need for housing and the growth of squatter camps. Between 1996 and 2001 South Africa population grew from 40.5 million to 44.8 million, a 10.4% increase. In 1996, 53.7% of the population was urbanized; by 2001 it was 57.5%. Urbanization has resulted in the decline in number of people per household from 4.5 in 1996 to 3.8 in 2001. As a result the number of households increased 23.7% from 9.1 million to 11.2 million.[§] Thus the government finds itself having to provide far more houses that it originally projected.[15]

Households – Type of Dwelling
	1996	2001
Formal	57.5%	63.8%
Informal	16.0%	16.4%
Traditional	18.2%	14.8%
Backyard (not shack)	6.9%	4.8%
Other	1.4%	0.3%

On the positive side, the percent of households in formal housing increased from 57.5% in 1996 to 63.8% in 2001. On the negative side, the percent of households in informal housing remained the same and the actual number increased by 26.4%. Urbanization is reflected in the decline of households in traditional dwelling such as a hut made from traditional materials from 18.2% to 14.8%.

A growing number or people live in informal housing such as shacks in squatter camps. The number of such households in these informal settlements grew by 31% from something over 1 million in 1996 to nearly 1.4 million in 2001. African households account for 97% of all those living in such households. Because of urbanization 33% of all such households are located in Gauteng. The Housing White Paper estimated that approximately 150,000 new households per annum house themselves in this way.[16] Many of these are the result of land “invasions.” People living in squatter camps do not have secure tenure and occasionally are forcibly evicted. This lack of secure tenure makes it difficult to provide housing subsidies or services. Addressing the issue of people living in informal settlements the Minister of Housing stated in February 2004 “[W]e are committed to improving the lives of our people in informal settlements. We will be developing a national strategy in this regard. Our programme will seek to meet the millennium development goals and make a significant contribution to the reduction of 100 million slum dwellers worldwide by 2015/ 2020.”

Number of Households Living in Informal Dwellings
	1996	2001
Informal dwelling/shack, NOT in backyard, e.g. in an informal/squatter settlement	1,049,686	1,376,706
Informal dwelling/shack, in backyard	403,329	459 526

The number of households living in an informal dwelling/shack in a back yard has also increased from 403,328 to 459,526.

Estimates of Housing Needed

African households make up 96% of those living in informal housing in squatter camps and back yards. With an average household size of Africans of 3.9 persons, this suggests more that seven million people live in such inadequate housing. If one adds traditional dwellings, which are often inadequate, that would add another 1,654,787 households in need of housing. Thus between 1.8 million and 3.4 million proper dwelling units are needed not taking into account population growth or further urbanization. This calculation is similar to that of the former Minister of Housing Sankie Mthembi-Mahanyele who estimated in June 2001 that about 7.5 million people still needed to be provided with adequate housing and the between 2 and 3 million houses had to be built to meet this need.[17]

The Department of Housing estimated in 1997 that the housing backlog was 2.2 million units and because of population growth, this figure grows by about 204 000 every year. The province of Gauteng, which includes Johannesburg and Soweto, illustrates this problem. Gauteng is home to 19.7% of South Africa’s population, and, because of people moving into the province, the population has been growing at twice the national average. The Gauteng Department of Housing notes that the estimated housing provincial backlog of 401,100 units understates the actual need. “Since the extent of the backlog depends on an eligibility criterion that has remained the same over the last eight years – R 3,500 income for households that do not own a house – an alternative measure might be the number of households, regardless of their incomes, who lack adequate housing. In terms of the 1996 census, this number is about 561 000 households, 25% of the province’s total.”[18] By October 2001 the number of households living in informal housing in Gauteng had risen to 634,160.

“Low rates of formal housing delivery coupled with high rates of new household formation have resulted in a massive growth in the number of people housed in squatter housing. .. This form of housing remains the prevalent means through which urban households are accessing shelter in South Africa at present. It is estimated that approximately 150,000 new households per annum house themselves in this way. The recent rapid increase in the number of land invasions is a further indication of this.”

Housing White Paper

The government has also noted the lack of available housing stock in the R60,000 to R100,000 ($8,590-$14,316) range. Such housing is not subsidized but needs to be privately financed.

The National House Code aimed to increase housing delivery on a sustainable basis to a peak level of 350,000 units per annum until the housing backlog is overcome. This goal is subject to fiscal affordability and in the last three years delivery has averaged less than 200,000 houses a year. Originally the expectation was that housing would constitute 5% of the national budget but in 2001/2 it was 1.4%.[19]

“With some households reprioritising their expenditure in favour of medical costs etc it would be difficult for households to pay the required financial contribution of R2479 to access the housing subsidy scheme. The Peoples Housing Process may only provide limited alternatives, as many of these households may be too sick to provide sweat equity on projects.”

“The projections for child headed households are alarming. Although this phenomenon is not always directly a housing issue, it does impact greatly on the implementation of the housing programme especially when it comes to transfer of property and in social housing projects. Currently through the Law of Succession, children are able to inherit a house from their deceased parents. The difficulty arises however when relatives may move in and assume de facto ownership of the house.”

HIV/AIDS Framework Document,

Department of Housing, February 2002

Impact of HIV/AIDS

Some 4.8 million people in South Africa are infected with HIV/AIDS. In February 2003 the Department of Housing issued an HIV/AIDS Framework document. The Framework document was based on a survey conducted in all provinces. The study notes that HIV/AIDS is resulting in an increasing number of households headed by children and that by 2010 there will be 1.2 million orphans. The study concludes “These households will definitely be more vulnerable to poverty and could eventually be homeless. In addition this study also advocated the need to develop institutional housing models to address the housing needs of orphans.”[20]

People with HIV/AIDS have a harder time obtaining financing for houses both because lending institutions are hesitant to make loans and because their incomes will be lower. People will spend more on health care and thus will be able to spend less on housing and many will not be able to afford their contribution needed to obtain a housing subsidy. Women and children are particularly vulnerable – not only to infection but in security of tenure. While children have succession rights, “women and children are displaced from their homes by unscrupulous relatives once the husband or parents have died or where child headed households are evicted due to their inability to pay for services.” If the beneficiary dies before taking possession the surviving family tenure will be tenuous. A study conducted by the Human Services Research Council found that people living in urban informal settlements had a higher rate of infection due to the transient nature of such housing. “To ensure that the housing programme is responding to the housing needs of persons living with HIV/AIDS it is important that the Department continues to prioritise the development of these areas,” concluded the Framework Document.

The government’s roll out of anti-retroviral drugs could mitigate the problem of HIV/AIDS. But additional measures are still urgently needed to increase access to housing for families living with the virus so that they do not loose their shelter should the head of household become sick or die. One example is the Housing for HIV program formed by the Home Loan Guarantee Company and Shared Interest.

Services

During the 1999 election campaign the ANC promised to provide free electricity and water to the poorest households. In 2002 this became the official policy when the government announced plans for free basic electricity and free basic water. Under the Constitution it is the responsibility of municipalities “to ensure the provision of services to communities in a sustainable manner.”

Water

The RDP set the goal of the provision of water clean water to every person from a point no more than 200 meters (219 yards) from their dwelling. As of October 2001, 72% of households who had access to piped water in their dwelling, on site, or within 200 meters. An addition 12.4% had access to piped water more than 200 meters away. The government estimates that potable water has been extended to 9 million people.[21]

Households with Access to Piped Water – October 2001
In Dwelling	32.3%
In Yard	29.0%
Community Water Stand
· Less than 200 meters	10.7%
· More than 200 meters	12.4%

Under the government’s Free Basic Water program, households receive a basic free water allowance of 6,000 liters (1,585 U.S. gallons) per month. This amount is based on the World Health Organization’s standard of 25 liters (6.6 gallons) per person per day and allows for a household of eight. About 87% of municipalities participate in this program that reaches approximately 29.4 million people, representing 63% of the population.[22] This is about 49.4% of poor households defined as those earning less than R 1,000 ($143) per month. There are regional differences – in the Free State and Gauteng 97% and 96% of the population is served respectively compared to 34% in the Eastern Cape.[23]

Implementing free basic water is the responsibility of municipalities. They can choose to provide a smaller or larger amount and provide it to all residents or only those below a certain level of income. The standard of “poor” varies but one often used is a household with an income of R800 ($114.50) a month or less. Many people with piped water in their homes or yards have pre-paid water meters that are programmed to provide the basic amount free. After the basic amount is used up people have to pay. If people are unable or forget to pay the water is cut off.

Some 5 to 7 million people still do not have access to clean and convenient source of water. The government’s goal is to eliminate this backlog by 2008.[24] Many of those without access to piped water and free basic water are those who live in informal housing in squatter camps or rural areas that lack the necessary infrastructure. A new draft White Paper on Water Services notes: “The provision of services to people living on land without permission of the owner of the land poses a challenge to water services authorities. Water services authorities should seek to address the security of tenure issues expeditiously. In the interim, basic water services (including basic sanitation services) should be provided.”[25]

Electricity

In 1994 only 40% of the population had access to electricity. Between 1995 and 2002 electricity connections were made to some 3,375,298 households. By October 2001 some 69.7% of households used electricity for lighting.[26] The government estimates it will take at least ten years before the existing backlog approaches 100% and longer because of the growth rate of households.

Many of these connections are for a special kind of pre-paid meter. The fact that many people find electricity too expensive is reflected in the fact that only 51.4% of households used electricity for cooking and 49% for heating. Paraffin, coal or wood was used by 44.7% percent of households for cooking and 45.8% for heating. Many households face at least temporary cut-offs because they could not afford to pay. In 2001 the electricity company Eskom claimed that Soweto residents owed R922 million.[27] A Soweto Electricity Crisis Committee was formed to fight cut-offs and many houses were illegally reconnected by residents. Eskom claims that the cutoffs worked and that the payment rate in Soweto has improved.

Access to Infrastructure
	Percentage of Households
Electricity for	1996	2001
· Lighting	57.7%	69.7%
· Cooking	47.1%	51.4%
· Heating	44.5%	49.0%
Piped Water	79.8%	84.4%
Flush or chemical toilet	50.5%	53.8%
Refuse removal at least weekly	52.2%	55.4%
Telephone in dwelling or cellular phone	29%	42%

In 2002 the government announced plans to provide free basic electricity to poor households. The program is behind that of water and its phased introduction began in July 2003. Several pilot projects were launched in 2002. The monthly allotment of free basic electricity is 50 kWh per month. Households will pay for any consumption over the set free basic service level. Those household with pre-paid meters will be provided with a non-interchangeable voucher or token loaded with free basic units per month. When the free units have been used up, the consumer will need to buy additional units at the prevailing approved rates.[28] Implementation will be most problematic in informal settlements and rural areas not connected to the power grid. Like water, implementation is the responsibility of municipalities who can choose to provide a different amount and limit the provision of free basic electricity to those under a certain income.

Land

The land area of South Africa is 1,219,090 square kilometers (470,693 square miles). The nine provinces vary in size from the Northern Cape (361,830 sq. km.) to Gauteng (17,010 sq. km.). Terrain varies from plateau, savanna, desert, mountains, and coastal plains. Only about 13% of the land is suitable for commercial agriculture.

Africans were dispossessed from their land during the colonial and apartheid era beginning shortly after the first settlers arrived at the Cape in 1652. The Native Land Act of 1913 made right to own, rent or sharecrop on land dependent on race. Africans could not purchase or lease land from whites outside of the reserves (which later became the Bantustans), then about 8% of South Africa’s land area. The Native Trust and Land Act of 1936 increased the reserves to about 13% of the land area.[29] Under the Native Trust and Land Act Africans were denied the right to purchase land even in the reserves and could only utilize communal land administered by government-appointed tribal authorities. Africans who owned land outside the reserves prior to 1913 were initially exempted. The result was the creation of “black spots” of farming communities in white areas. Over 600,000 people were subjected to forced removal from black spots, primarily from the 1950s though the 1980s. This resulted in virtually all commercial farms outside the homelands being in the hands of white farmers. This has changed little since 1994. Africans, Coloureds and Indian/Asians in the urban areas had to live in segregated townships. Many people today do not have secure tenure.[30]

Urban Areas

As already noted, population growth and rapid urbanization has resulted in a growing number of people living in informal squatter settlements. Gauteng is the most urbanized province, with 97% of the population living in urban areas, followed by Western Cape (88.9%).[31] As the 1997 Land White Paper notes:

“Many people were prevented by apartheid from acquiring access to urban land. They found themselves kept out of, or removed from, urban areas in terms of the pass laws, or were prevented by racially discriminatory legislation from acquiring legal occupation of well-located land. The backlog caused by all of these restrictions has created a large and unsatisfied need for secure access to well-located urban land. One consequence of this is land invasion and other forms of irregular occupation of land.” [32]

Rural Areas

The 1997 Land White Paper estimated that there are about 1.2 million farm worker households in South Africa, many of whose housing is tied to employment. Other sources estimate there are six million farm-dwellers (farm workers and their families) and between 40,000 and 160,000 labor tenant families.[33] Generally they constitute the poorest and lest secure in the country. Those not working on commercial farms generally live on overcrowded communal areas in the former homelands and suffer insecure tenure due to lack of title and conflicting claims to land.

“Landlessness and land invasions are a stark reality in South Africa. Delays in the release of land and slow delivery of housing programmes have exacerbated the problem, as have unrealistic expectations, and a lack of information, particularly with regard to the time it takes to transfer land. This has led to urban land invasions and subsequent evictions by local and provincial authorities and ongoing legal disputes. In rural areas, the eviction of farm workers and labour tenants has resulted in a swelling of the numbers of landless and destitute people, and invasions of public or privately owned land often follow. State land has been invaded in some areas where there is no proper supervision or control.”

Land White Paper

Land Invasions

There have been land invasions in both urban and rural areas. People are desperate for a place to live and create informal settlements of shacks as discussed above. Some of this land is privately owned, some state owned.

The 1997 Land White Paper notes: “Government, while strongly discouraging land invasions, does not believe that the only solution lies in evictions, which are often a route towards confrontation and civil disturbance.” Evictions should only be a last resort after all other solutions have been explored. The White Paper further states “From both a cost perspective, and from the need to minimise conflict and stabilise communities, it is preferable, that where it is possible and appropriate, in situ upgrading of tenure and regularisation of land rights is seen as a solution to land invasions.” The Gauteng Department of Housing notes “Currently, the housing program in Gauteng is adversely affected by the emerging problem of land invasion. Municipalities do not seem to have adequate capacity to manage problems of invasions and construction of illegal structures. This results in the proliferation and densification of informal settlements that impede new developments, since informal settlements usually get prioritised for upgrading.”[34] Many of these informal settlements are not on land suitable for housing delivery.

Land Reform

The government’s land reform policy is based on the RDP. As outlined in the 1997 Land White Paper it has three legs. Land Redistribution aims to provide the disadvantaged and the poor with access to land for residential and productive purposes. Land Restitution covers cases of forced removals which took place after 1913. Land Tenure Reform seeks to improve security of tenure and to accommodate diverse forms of land tenure, including types of communal tenure. Both land redistribution and resettlement has been based on a “willing buyer, willing seller” model which, critics note, has limited the type, location and size of landholdings made available.[35]

Redistribution

The focus of land redistribution is on rural areas and “is intended to redress the racial imbalance in land holding in South Africa, create livelihoods for the rural poor and develop the agricultural sector.”[36] Commercial agricultural land still remains overwhelming white-owned. By contrast, some 70% of the rural population lives below the poverty line. Wages of farm workers on commercial farms account for some 39% of rural incomes.[37] The RDP set the goal of redistributing 30% of agricultural land in the first five years of democracy. The date to achieve this has now been changed to 2015.

Between 1994 and the end of 1992, some 1,480,835 hectares had been transferred through land redistribution to 130,453 households. This represents about 1.2% of South Africa’s total land area but presumably a larger percent of the 13% of the land that is suitable for crop production. The Land Redistribution for Agricultural Development (LRAD) program may well speed up the process, with some 260,000 hectares transferred under this program between August 2001 and December 2002. [38]

“The government’s redistribution policy has undergone a number of shifts since 1994. From 1995 to 1999, it was implemented largely by means of the Settlement/Land Acquisition Grant (SLAG), which provided a modest grant to poor people, usually in groups, to purchase land on the open market. In August 2001 the Department of Land Affairs (DLA) launched a revised programme, Land Redistribution for Agricultural Development (LRAD). LRAD has been promoted by the DLA as the flagship programme through which it will pursue the objectives of land redistribution. The broad aim of the programme is to provide support to black South Africans over the age of 18 years who wish to farm on any scale, though statements from the DLA and the Ministry of Agriculture and Land Affairs have made it clear that LRAD is primarily intended to create a class of black commercial farmers, the so-called ‘emerging black farmers’.”[39]

Programme for Land and Agrarian Studies

Up until 1999 the government’s land redistribution program was carried out through Settlement/Land Acquisition Grant (SLAG) which provided grants to poor people to purchase land. In 2001 the government launched the LRAD program designed to reduce rural poverty by providing grants to black South Africans to access land specifically for agricultural purposes.

LRAD grants may be used to purchase land or to acquire a lease option for commercial agricultural purposes and to obtain fixed assets, equipment that improves the value of the land and production inputs for the development of the land that is acquired. To qualify a an individual or group must be an African, Coloured or Indian South African citizen, 18 years or older, willing to live and work on or near the farm, and participate in a training program. A contribution must also be made by those who receive a grant which can be in kind (sweat equity with a value of up to the value of R 5,000), cash, livestock, equipment and machinery relevant to the agricultural enterprise.[40]

Restitution

More than 3.5 million people were forcibly removed between 1960 and 1983. Removals consisted of various categories, such as black spot removals, removal of labor tenants and homeland consolidation.[41] Urban removals came under the Group Areas Act (1951) and the Urban Areas Act (1923). Rural removals came under the Land Acts of 1913 and Development Trust and Land Act (1936) and Prevention of Illegal Squatting Act (1951).

“A person or community dispossessed of property after 19 June 1913 as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to restitution of that property or to equitable redress.”

Constitution of the Republic

of South Africa, 1996

The right to restitution of land rights by a person or community dispossessed of property after June 19, 1913 was established in both the 1993 interim Constitution and the current Constitution. This can be achieved either by restitution of property or by equitable redress.[42] But the Constitutions also guarantee both the rights of current land owners.

To carry out its Constitutional requirement in 1994 Parliament passed the Restitution of Land Rights Act. Under the Act those dispossessed, or their decedents, were eligible to submit claims. All claims needed to be lodged before December 31, 1998. The Act established a Commission on the Restitution of Land Rights (CRLR). A Land Claims Court was set up in 1996 to investigate the merits approve claims; grant restitution; mediate and settle disputes arising from such claims disputes and to draw up reports with regard to unsettled claims for submission as evidence before a court of law. However the process of handling claims proved to be very slow – only seven claims had been settled by the end of March 1998. As a result in 1999 the Restitution of Land Rights Act was amended to allow shift from a judicial process to an administrative approach. The Minister of Land Affairs was granted powers to settle claims on the basis of agreement between the various parties.

A total of 68,878 claims have been filed, about 80% of which are urban land claims involving some 300,000 potential beneficiaries.[43] The 20% rural claims represent some 3.6 million people. Generally urban claims represent households and rural claims communities. Claims can be settled in a variety of ways including restoration of the land from which claimants were dispossessed; provision of alternative land; payment of compensation; alternative relief including a combination of the above-mentioned, sharing of the land, or budgetary assistance such as services and infrastructure development; or priority access to state resources with regard to housing and land development programs. A Claims Validation project concluded that, prima fascia, 96% of claim are valid with the other 4% needing additional investigation.

Between 1995 and December 31, 2003 a total of 46,727 claims have been settled. Of those settled, about 88% represent urban claims. Initially urban claims had an unofficial priority but in 2002 the Minister of Land called for rural claims to receive priority.[44] Of urban claims, 35% were settled by land restoration, 59% by financial compensation and 6% by an alternative remedy. Of rural claims, 45% were settled by land restoration and 55% by financial compensation. Total land restored was 810,292 hectares (2,129 sq. miles) at a cost of R 992,931,869. This represents about 0.66% of South Africa’s total land area.

All claims are supposed to be settled by the end of 2005. The rate of settlement has increased significantly. Between April and the end of December 2003, some 9,380 were settled representing 20% of all claims settled and 34% of land restored since 1994.

Settled Restitution Claims 1995 – December 2003
Claims Settled	46,727	Land Cost	R992,931,869 ($140,400,566)
Households Benefited	112,472	Financial Compensation	R1,595,601,761 ($225,618,089)
Number of Beneficiaries	590,880	Restitution Discretionary Grant	R1,603,397,916 ($226,720,465)
Land restored	810,292 hectares (2,129 sq. miles)	Settlement and Planning Grant	R2,596,329,785 ($367,121,031)
		Solatum	R6,414,000 ($906,939)
Restitution Discretionary Grants assist restitution beneficiaries to manage, secure their restored/compensatory land and/or to relocate to the land. Settlement Planning Grants assist poor communities to plan for settlement on, use and development of land including the use of planners and other professionals to assist applicants in preparing projects and settlement plans and to mobilize the necessary resources.

Much of the land restored has been in rural areas in three provinces. Of the total land restored 30% has been in Mpumalanga, 29% in the Northern Cape and 16% in KwaZulu-Natal. The Northern Cape, with 29.7% of the land area of South Africa but just 1.8% of the population, is largely rural and semi-arid. Claims settled in the Northern Cape benefited just 5% of the individuals and 4% of the households who benefited nationally. In contrast just 0.4% of all land restored has been in Gauteng, the home of 19.7% of the population but with just 1.4% of the land area. The cost per hectare to purchase this land in Gauteng was more than seven times the national average and nearly thirty times the cost in Northern Cape. But Gauteng accounts for 21% of all financial compensation paid.

Tenure Reform

Tenure reform is the least developed area of land reform. The main achievement has been the enactment of laws to create statutory rights including the Extension of Security of Tenure Act of 1997 and the Land Reform (Labour Tenants) Act of 1996. These acts “protect the tenure of people living farms, prohibit arbitrary eviction and provide a means by which farms dwellers can secure long-term rights to land.”[45]

The Communal Land Rights Act was passed by Parliament in February 2004. The objective of the act is to provide greater security of tenure to those living on communal land in the former homelands. People living on the communal land would have their tenure rights fully recognized in law and by dead. The bill has been criticized for reinforcing the power of traditional leaders who have historically excluded women from communal land holdings. Likhapa Mbatha of the Centre for Applied Legal Studies commented: “Women are most likely to be prejudiced by a once-off transfer of rights with no appeal or dispute-breaking mechanism. Overall, the Bill is likely to reinforce the status quo by confirming rights where they are, rather than overhauling existing unequal power relations.” The National Land Committee has condemned the bill saying heralded the end of democracy for rural South Africans. The government claims that the bill recognizes, protects and enforces the rights of women as well as other vulnerable people.[46]

A Ways to Go

The pace of both land redistribution and restoration has improved significantly in the past two years. The initial slow beginning to the land report program has been attributed to insufficient funding, weak institutions, reliance on a market-led model and low political priority.[47] The number of restitution claims settled has greatly increased but many observers question whether all claims will be settled by the target date of the end of 2005. Funding for both restitution and redistribution has increased. However, if the goal is to be reached of transferring 30% of South Africa’s commercial agricultural land to black people by 2015 and providing land with secure tenure for settlement in the urban areas, the rate will have to be rapidly increased. Moreover access to land is only the first step toward self-sufficiency, which also requires access to capital and technical assistance to land commercially viable projects.

Conclusion

The struggle against apartheid was not just against repressive laws but for a government and an economic system that would look after the needs of all the country’s people. Since the installation of democracy a decade ago South Africa has made great strides in proving housing and basic services such as electricity and water to the people of South Africa.

The delivery of 1.5 million houses means that a larger percent of the population now lives in formal houses. The lives of millions have been improved. But the government has not achieved its goal of 350,000 houses per year and the number of people living in inadequate, informal houses such as shacks has actually increased. Unless the rate of production accelerates, population growth and urbanization will combine to increase the need for housing at a rate as fast as or faster than it is being built.

The housing subsidy scheme is aimed at the poorest of the poor, yet the income level has not been changed from R 3,500 per month or less, meaning one has to be poorer in real terms today then a decade ago to qualify for a subsidy. HIV/AIDS is compounded the problem as people spend their income on healthcare rather than housing, although this may be mitigated by the plan to provide anti-retroviral medications.

Progress has also been made in services. Free basic water is now widely available and free basic electricity is now becoming available. But it will be at least a decade before these services are available to all.

Land reform is also making more rapid progress. The rate of settlement of land restitution claims has increased although many of these cases have been settled not with land but with financial compensation. Land redistribution has also increased. Land reform has the potential to increase rural incomes. But the goal of transferring 15% of commercial farmland to blacks by 2015 will not be achieved at the current rate. Land tenure reform and security of tenure remain a problem.

Millions of people are better off now than in 1994. But the challenges remain great. In the long term, meeting people’s need for adequate housing and basic services requires not just government programs but economic strategies, partnerships and growth that reduce unemployment and bridge that gap between the rich and poor.

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Richard Knight is a New York City based consultant on Africa, human rights and economic justice. He previously worked at the American Committee on Africa/The Africa Fund. His web site is www.richardknight.com.

Sources: Much of the information here comes from national and provincial government web sites including those of the Statistics South Africa, the Government Communication and Information System (GCIS), the Land Claims Court and the national departments of Housing, Land Affairs, Minerals and Energy, and Water Affairs. Provincial and municipal web sites especially that of the Gauteng Department of Housing. .I have also relied on material published by the Program for Land and Agrarian Studies at the University of the Western Cape, the People’s Budget, the National Land Committee and the Legal Resources Centre. Other sources are cited. I have occasionally used sentences or phases without footing each or placing them in quotes, especially in descriptions based on government web sites.

Statistics: Statistics in this paper come from a variety of sources that may not always agree. Some are estimates or based on surveys. In some cases there are not strictly comparable statistics for different time periods. In general, statistics have only been used if they are believed to provide and accurate, if not exact, view of the situation.

Spelling: In quotes from South African text and titles South African spelling is used. In other places U.S. spelling has been used.

Appendix I

Gauteng Housing Policy and Program Review

prepared by Professor Richard Tomlinson,

Department of Housing, Gauteng Provincial Government, 2002

Excerpts

Prior to the election of the National Party in 1948, urban segregation mimicked the colonial city by reserving the more attractive, healthy and proximate parts of town for whites. Africans were forced to the urban periphery, to live in poorly serviced townships or in informal settlements largely devoid of services. After 1948, under apartheid, most well located Indian, coloured and the few “close in” African and mixed suburbs (like Sophiatown) were flattened and their residents forcibly ejected to the urban periphery. The notorious apartheid city was the result – the hollowed-out urban form, with low-density, high-income white suburbs close to the city centre and large black, low-income, often impoverished, sprawling settlements on the urban periphery.

Until the 1980s, despite the existence of a large, urban African population, the underlying philosophy was that Africans were temporarily in the cities to serve in the mines and in industries and services located in white parts of town. Once their working life was over they were supposed to go “home” to the rural areas.

Following on this logic, there were numerous prohibitions on black business and on economic development in the townships. Blacks were welcome to start businesses, but in their rural “homelands”. In the cities their occupations were prescribed. The upshot was that economic activity was forcibly located in white parts of town and created a tax base there.

With residential segregation went a housing delivery system that subsidised low-income whites and to a lesser degree after 1983 especially, coloureds and Indians, and relegated the black majority to either homelessness or rental status with no security of tenure, as well as extreme overcrowding arising out of shortages of accommodation. The severe housing shortages are reflected in the high incidence of backyard shacks and squatter settlements, and the impermanence induced by urbanisation restrictions and insecure tenure led to poor quality housing.

The layout of public sector townships, the only form of urban housing allowed to black families (as opposed to hostels for single workers) involved a sprawling low-built density layout. Not only was this layout particularly inefficient and costly for service delivery, so too was the location on the urban periphery.

The impact on black household incomes was disastrous. First, black household incomes and the ability to pay for housing and services were and still are diminished as a result of being forced to the urban periphery and being located in low built density townships. At the beginning of the 1990s, black workers were paying 9–11% of their household income on transport. This amount is twice the international average and as much as they were paying on housing. Second, unemployed, spatially isolated, household members are removed from knowledge of informal sector opportunities or day-labour opportunities, or find the cost of investing in getting to employment centres too risky when set against the possibility of not finding a job. Third, the sprawling layout of the townships diminishes small business opportunities (when these became allowed) as a result of dispersing the market over great distances. With the lifting of barriers to black small enterprise, we have seen a relocation of enterprises from the townships to, say, the Johannesburg city centre.

The impact on black expenditure on housing was perverse. Urban black households spend only 8–10% of their incomes on housing, whereas white households (nowadays probably more correctly, middle-class households), by contrast, allocate between 18–22% of their budgets for housing. The discrepancy in spending and saving for housing between blacks and whites is striking since elsewhere in the world it has been observed that low income households tend to allocate a higher proportion of their budget toward housing than do higher income households.

This can be explained by the black history of impermanence, subsidised public rental housing that created a false impression of reasonable housing expenditure and the peripheral location of low-income housing, which diminishes its market value. This has led to housing being relatively undervalued by the black community, with little sense that housing represents a secure store of value or a vehicle for the accumulation of wealth. This also led to the failure to develop a viable property market in the townships and what nowadays is referred to as a normalised housing market. The current problems of transferring ownership, upgrading property rights, sustaining the formal property market and promoting payments for rates and services can all be traced back to the approach to property rights in former black townships and, to a lesser extent, in the former Own Affairs areas.

Surprisingly, the municipal services provided in the old townships constructed by the Johannesburg City Council were provided with a full services level, and Johannesburg has markedly smaller services backlogs than the national average. However, informal settlements are poorly serviced. A by-product of the full services level in most townships is that many households are unable to afford the levels of service consumption arising from a full services level, resulting in a structural imbalance that bedevils municipal attempts to obtain payment for services consumption.”

Full report available at http://www.gpghousing.org.za/Docs/9.%20Executive%20Summary.pdf.

Appendix II

Government of RSA and others v Grootboom and others

Summary

This case raises the state's obligations under section 26 of the Constitution, which gives everyone the right of access to adequate housing, and section 28(1)(c), which affords children the right to shelter. It concerns questions about the enforceability of social and economic rights.

Mrs Grootboom was one of a group of 510 children and 390 adults living in appalling circumstances in Wallacedene informal settlement. They then illegally occupied nearby land earmarked for low-cost housing but were forcibly evicted: their shacks were bulldozed and burnt and their possessions destroyed. Their places in Wallacedene had been filled and in desperation they settled on its sports field and in an adjacent community hall.

The Cape of Good Hope High Court found that the children and, through them, their parents were entitled to shelter under section 28(1)(c) and ordered the national and provincial governments as well as the Cape Metropolitan Council and the Oostenberg Municipality, immediately to provide them with tents, portable latrines and a regular supply of water by way of minimal shelter. This decision formed the basis for the appeal to the Constitutional Court.

The Human Rights Commission and the Community Law Centre of the University of the Western Cape were admitted as amici curiae in the appeal.

At the hearing on 11 May 2000, the Grootboom community accepted an offer by the state to relieve the crisis in which they were living. By 21 September the state had not implemented its offer and an urgent application was launched in this Court. On that date, after communication with the parties, the Court made an order putting the municipality on terms to provide certain rudimentary services.

In a unanimous decision, written by Justice Yacoob, it was noted that the Constitution obliges the state to act positively to ameliorate the plight of the hundreds of thousands of people living in deplorable conditions throughout the country. It must provide access to housing, health-care, sufficient food and water, and social security to those unable to support themselves and their dependants. The Court stressed that all the rights in the Bill of Rights are inter-related and mutually supporting. Realising socio-economic rights enables people to enjoy the other rights in the Bill of Rights and is the key to the advancement of race and gender equality and the evolution of a society in which men and women are equally able to achieve their full potential. Human dignity, freedom and equality are denied to those without food, clothing or shelter. The right of access to adequate housing can thus not be seen in isolation. The state must also foster conditions that enable citizens to gain access to land on an equitable basis. But the Constitution recognises that this is an extremely difficult task in the prevailing conditions and does not oblige the state to go beyond its available resources or to realise these rights immediately. Nevertheless, the state must give effect to these rights and, in appropriate circumstances, the courts can and must enforce these obligations. The question is always whether the measures taken by the state to realise the rights afforded by section 26 are reasonable. To be reasonable, measures cannot leave out of account the degree and extent of the denial of the right they endeavour to realise. Those whose needs are the most urgent and whose ability to enjoy all rights is most in peril must not be ignored. If the measures, though statistically successful, fail to make provision for responding to the needs of those most desperate, they may not pass the test of reasonableness.

The Court emphasised that neither section 26 nor section 28(1)(c) gave any of the respondents the right to claim shelter immediately. However, the programme in force in the area of the Cape Metropolitan Council at the time the application was launched fell short of the obligations imposed upon the state by section 26. Although the overall housing programme implemented by the State since 1994 had resulted in a significant number of homes being built, it failed to provide for any form of temporary relief to those in desperate need, with no roof over their heads, or living in crisis conditions. Their immediate need could be met by relief short of housing which fulfils the requisite standards of durability, habitability and stability.

After the case had been started in the High Court, an Accelerated Managed Land Settlement Programme had been introduced by the Cape Metropolitan Council to fulfil this need. This programme needs to be effectively implemented. The Court stressed that the judgment should not be understood as approving any practice of land invasion for the purpose of coercing a state structure into providing housing on a preferential basis to those who participate in any exercise of this kind.

The Court issued a declaratory order which required the state to devise and implement a programme that included measures to provide relief for those desperate people who had not been catered for in the state programme applicable in the Cape Metropolitan area before the Accelerated Managed Land Settlement Programme had been introduced.

This summary is from the web site of the Constitutional Court www.concourt.gov.za

Appendix III

South Africa's National Housing Code

Excerpts

Government’s overall approach to the housing challenge is aimed at mobilising and harnessing the combined resources, efforts and initiative of communities, the private sector, and the State. This approach has been adopted against the backdrop of severe market and societal abnormalities associated with the policies and political turbulence of the pre-democratic era.

The goal within both urban and rural areas is to improve the quality of living of all South Africans. The emphasis of our efforts must be on the poor and those who have been previously disadvantaged. To meet this goal in a manner that is viable and sustainable, we understand that we need to undertake a range of interventions. These interventions then underpin our policy and strategy…as contained in the Urban and Rural Development Frameworks.

Government’s goal is, subject to fiscal affordability, to increase housing delivery on a sustainable basis to a peak level of 350 000 units per annum until the housing backlog is overcome. It is expected that this process may take several years. Realisation of the goal relies on government ensuring that its implementation systems in all three spheres of government can accommodate the budget allocation and delivery programme.

In South Africa, in addition to the abstract productivity benefits listed above, housing investment has a positive income effect, creating new opportunities for earnings by low-income groups. In some townships, backyard shacks are often built solely for rental accommodation, while extra space in formal housing units is also rented out. Rental income is then used to repay the mortgage or non-traditional loan on the house. In addition to rent, housing is also used as a location for a variety of small enterprises – from spaza shops to hair salons. The income from these enterprises constitutes a direct return on the household’s initial investment.

Our vision is further reiterated in both the Urban and Rural Development frameworks. In each of these documents, the environment within which a house is situated is recognised as being equally as important as the house itself in satisfying the needs and requirements of the occupants. Ultimately, the housing process must make a positive contribution to a non-racial, non-sexist, democratic and integrated society.

[*] The term black in this paper is used to describe all those not classified as white. In terms of the use of racial classifications the following from Statistics South Africa should be born in mind: “Population group describes the racial classification of a particular group of South African citizens. The previous government used legislation to impose this type of classification, to divide the South African population into distinct groupings on which to base apartheid policies. For quite a different reason it remains important for Stats SA to continue to use this classification wherever possible. It clearly indicates the effects of discrimination of the past, and permits monitoring of policies to alleviate discrimination. Note that, in the past, population group was based on a legal definition, but it is now based on self-perceptions and self-classification. An African/black person is someone who classifies him/herself as such. The same applies to a coloured, Indian/Asian or white person.”

[‡] All the former black townships are now incorporated into a municipality.

[§] The number of households excludes those living in collective living quarters including hostels, hotels and institutions. Just less than 1.5 million people lived in such housing.