This is an appeal against the judgment of the High Court dismissing an application by the appellants for a declaratory order and consequential relief pertaining to various fundamental rights, in particular, the right of children to shelter.
The application was dismissed with no order as to costs.
The first appellant is an association of homeless people with public interest in the right to housing. The second and sixth appellants are members of the first appellant and brought the application a quo on behalf of their minor children, i.e. the third, fourth, fifth, seventh and eighth appellants. For ease of reference, the association, its members, and their minor children will all be collectively referred to as “the appellants”.
The first respondent is the Minister of Local Government and National Housing, responsible for housing and the administration of local authorities. The second respondent is Zvimba Rural District Council, the local authority wherein a peri-urban area called Haydon Farm is located. The third respondent is a housing development contractor which acquired the right to develop the said farm. The fourth respondent is the Ministry of Lands, Land Reform and Rural Resettlement which was cited as the acquiring authority of the farm.
It is common cause that the appellants settled on Haydon Farm in the year 2000, constructed permanent houses, and commenced farming activities on the farm. In 2005, the fourth respondent acquired the farm and designated it as urban land under the jurisdiction of the first respondent. Part of the land was allocated to the City of Harare and certain other parts to the second and third respondents.
A low density suburb is currently sprouting on the farm.
The appellants' residential structures were demolished in 2005. They now live in cabins and shacks and are prohibited from constructing permanent structures. They were then given notice to vacate the farm so as to enable the third respondent to carry out the construction of houses thereon.
It is not in dispute that the appellants have no alternative accommodation and that their children attend a school within the area.
Judgment of the High Court
The court a quo found that the right to shelter, under section 28 of the Constitution, is subject to the availability of State resources and that the State must take reasonable measures within the limits of available resources to enable citizens to have adequate shelter. The State is only obliged to provide for the progressive realisation of the right to shelter. Section 28 does not create any right to shelter but only sets out a national objective which is not enforceable.
As regards section 19 of the Constitution, the court took the view that this provision merely prescribes national aspirations pertaining to the rights of children. This provision is also qualified by the availability of resources. The State must put in place policies and measures to ensure that the interests of children are paramount. However, the primary obligation lies on parents to properly care for their children. This provision does not create any enforceable rights. The State is only responsible for those children who have been removed from their family environment.
Turning to section 81 of the Constitution, the court held that this provision did not create any absolute, independent, and justiciable right to shelter for children. There was no primary obligation on the State to provide shelter for children in the care of their parents. The State was only obliged to take measures, within its available resources, to ensure the progressive realization of the right to shelter. It is the parents who have the primary obligation to ensure that their children have adequate shelter. In the instant case, the children in question were not in State care and had not been removed from their parents.
With respect to Haydon Farm, the court observed that the appellants' stay on the land had not been regularised and that the acquiring authority had other plans for the land. Additionally, the appellants could not demand alternative land as a pre-condition to vacating the farm. The court could not compel the fourth respondent to allocate land to the appellants. This was a function that was purely within the domain of the State. The appellants could not insist on being allocated land within an urban area.
According to the court, the conduct of the respondents was in pursuit of the legitimate aim of urban development and expansion of the City in a planned and orderly fashion. There was a pressing social need for urban housing and development. The forced eviction of the appellants, and others in their position, was for the general public good and was justified. However, to avoid their arbitrary eviction, the appellants must be given the opportunity for genuine consultation and adequate notice of the scheduled eviction in accordance with the due process of law.
In the event, the court held that the appellants had failed to show the existence of a clear right for the interdictory relief that they sought. The application was accordingly dismissed with no order as to costs.
Grounds of Appeal and Relief Sought
The stated grounds of appeal in this matter are conspicuously repetitive. Shorn of that obvious defect, they relate, in essence, to the interpretation and application of sections 74 and 81 of the Constitution. Section 74 codifies the freedom from arbitrary eviction, while section 81 enshrines the rights of children.
With respect to section 74, the appellants attack the judgment a quo for having failed to protect the appellants from arbitrary eviction without due process and a valid court order.
As regards section 81, the appellants asseverate the justiciability and enforceability of the right to shelter in favour of children. The judgment a quo is impugned for having failed to properly consider the scope and extent of the State's obligations under section 81 insofar as children in parental care are concerned.
The relief craved by the appellants is threefold;
(i) Firstly, they seek an interdict against the respondents from ejecting the minor appellants from the informal settlement on Haydon Farm.
(ii) Secondly, they seek a declarator to the effect that the right of children to housing is justiciable and enforceable as an independent right not dependent upon the general right to housing or shelter.
(iii) Thirdly, the appellants seek substantive relief commanding the first and fourth respondents to allocate serviced Stands and construct minimum core houses on the informal settlement presently occupied by the appellants. Alternatively, the first respondent is to be ordered to provide alternative land on which it must allocate residential Stands conforming to the same specifications.
Right to Shelter under International Law and the Constitution
The right to shelter is generally recognised, both under international law and municipal law, as a fundamental socio-economic right. The dearth of adequate housing lies at the heart of the myriad deplorable iniquities that bedevil societies generally, not only in developing countries but also in the developed world. As has been observed in several jurisdictions, the courts play a pivotal role in ensuring the eradication of social inequalities and actualising socio-economic rights, thereby promoting and advancing the attainment of social justice. See People's Union for Democratic Rights & Ors v Union of India & Ors 1983 (1) SCR 456; Soobramoney v Minister of Health (Kwazulu Natal) 1998 (1) SA 765 (CC).
In the sphere of international law, there are two key instruments that enshrine the rights of children and the concept of their best interests. The first is the United Nations Convention on the Rights of the Child (1989). The second is the African Charter on the Rights and Welfare of the Child (1990).
Article 3(1) of the United Nations Convention on the Rights of the Child (1989) stipulates that “the best interests of the child shall be a primary consideration” in all actions concerning children. By virtue of Article 3(2), “State Parties undertake to ensure the child such protection and care as is necessary for his or her wellbeing”, taking into account the rights and duties of parents and legal guardians, “and, to this end, shall take appropriate legislative and administrative measures.”
These provisions are mirrored and re-affirmed in Article 4 of the African Charter on the Rights and Welfare of the Child (1990).
With respect to the role of parents, Article 27(2) of the United Nations Convention on the Rights of the Child (1989) recognises that parents “have the primary responsibility to secure, within their abilities and financial capabilities, the conditions of living necessary for the child's development.” Nevertheless, in terms of Article 27(3), States Parties are also enjoined “in accordance with national conditions, and within their means” to “take appropriate measures to assist parents” and “in case of need, provide material assistance and support programmes, particularly with regard to nutrition, clothing, and housing.”
To similar effect, Article 20 of the African Charter on the Rights and Welfare of the Child (1990) places the primary obligation to implement children's rights on parents, but, also obligates the State to assist parents in that endeavour, with particular reference to nutrition and housing.
Both the United Nations Convention on the Rights of the Child (1989) and the African Charter on the Rights and Welfare of the Child (1990) have been ratified by Zimbabwe, the former on 11 September 1990 and the latter on 19 January 1995. Consequently, by dint of section 46(1)(c) of the Constitution, it is incumbent upon our courts to take them into account in interpreting the Declaration of Rights entrenched in Chapter 4 of the Constitution.
This is reinforced by section 327(6) of the Constitution which dictates the adoption of any reasonable interpretation of domestic legislation that is consistent with any treaty or convention which is binding on Zimbabwe in preference to any alternative interpretation that is inconsistent with that treaty or convention.
The next question concerns the justiciability and enforceability of the relevant rights dealt with by the court a quo and presently under scrutiny on appeal, i.e. sections 19, 28, 74 and 81 of the Constitution.
Sections 19 and 28, which set out national objectives vis-à-vis children and shelter respectively, are located in Chapter 2 of the Constitution. Section 19(2)(b) enjoins the State to “adopt reasonable policies and measures, within the limits of the resources available to it, to ensure that children…, have shelter and basic nutrition, health care, and social services.”
Section 28 calls upon the State and the Government to “take reasonable legislative and other measures, within the limits of the resources available to them, to enable every person to have access to adequate shelter.”
In my view, these provisions are essentially hortatory in nature, given that they are qualified by the condition that they are to be realized “within the limits of the resources available” to the State and the Government. In this sense, they cannot be said to be strictly justiciable and enforceable in themselves.
Nevertheless, they are not to be regarded as being entirely superfluous and otiose and therefore devoid of any legal significance whatsoever. They remain interpretively relevant for the purpose of informing and shaping the specific contours of the substantive rights enshrined elsewhere in the Constitution….,.
Chapter 4 of the Constitution sets out the Declaration of Rights, divided into several Parts.
Part 1 deals with the application and interpretation of Chapter 4. Part 2 enumerates those rights that are considered to be fundamental rights and freedoms. Part 3 elaborates certain rights and freedoms in relation to their application to particular classes of people. Part 4 provides for the enforcement of fundamental human rights and freedoms, while Part 5 delineates the limitation of those rights and freedoms.
The specific provisions that are germane for the purposes of this appeal are sections 74 and 81.
Section 74 guarantees the freedom from arbitrary eviction and appears in Part 2 under the rubric of fundamental human rights and freedoms. Section 81 spells out the rights of children and appears in Part 3 relative to the elaboration of certain rights.
Counsel for the appellants submits that the rights accorded by sections 74 and 81 are justiciable and enforceable. He relies in this respect on section 44 of the Constitution which sets out the duty of the State, every person, and the Government, at every level, to “respect, protect, promote and fulfil the rights and freedoms set out in [Chapter 4].”
Counsel for the first and fourth respondents adopts a curiously contentious position grounded in the particular location of the provisions under consideration. Sections 19 and 28, dealing with children and adequate shelter, are to be found not in Chapter 4 but in Chapter 2 of the Constitution. Chapter 2 relates to national objectives and aspirations to be progressively attained according to available resources. Additionally, section 81 is located in Part 3 rather than Part 2 of Chapter 4. Consequently, so it is argued, sections 19, 28 and 81, taken together, cannot be interpreted to confer any justiciable or enforceable right to shelter in favour of children.
Counsel for the second respondent takes a similar stance premised on the argument that first generation civil and political rights are absolute and fully enforceable. However, second generation social and economic rights, so he contends, are not absolute, justiciable or enforceable.
I am unable to find any merit whatsoever in the arguments propounded by counsel for the respondents.
Both sections 74 and 81 are located in Chapter 4 of the Constitution, the former under Part 2 and the latter under Part 3 of that Chapter. Clearly, there can be no argument about the justiciability and enforceability of section 74.
As regards section 81, the correct position, relative to the application of Part 3, is amply clarified by section 79 which provides as follows:
“(1) This Part elaborates certain rights and freedoms to ensure greater certainty as to the application of those rights and freedoms to particular classes of people.
(2) This Part must not be construed as limiting any right or freedom set out in Part 2.”
The objective underlying Part 3 of Chapter 4 is unequivocally clear. It is to elaborate certain rights and freedoms so as to ensure greater certainty in their application to particular classes, namely, women, children, the elderly, the disabled, and war veterans. The objective is certainly not to dilute, diminish or devalue the rights that are particularised in Part 2, but, rather, to fortify those rights by elaborating and imbuing them with a greater measure of certitude.
It follows, in my view, that the rights accorded to children under sections 74 and 81 of the Constitution are not only justiciable but also constitutionally enforceable.
Access to Adequate Shelter or Housing
Section 28 of the Constitution, which appears in Chapter 2, under the broad rubric of National Objectives, provides that:
“The State, and all institutions and agencies of Government, at every level, must take reasonable legislative and other measures, within the limits of the resources available to them, to enable every person to have access to adequate shelter.”…,.
It is immediately apparent that the obligation imposed upon the State, and other governmental institutions and agencies, to avail access to adequate shelter is one that is to be fulfilled within the limits of the resources available to them. This qualification is significant but does not absolve the State of its administrative obligation to take reasonable legislative and other measures to enable the populace, as a whole, to have access to adequate shelter.
The equivalent provision, under the South African Constitution, is contained in section 26(1) which provides for a “right of access to adequate housing.”
The obvious distinction between this provision and our section 28 is that, in addition to the obligation imposed upon the State, it also confers a corresponding right to housing.
In the leading case of Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC), it was observed that access to land, services, and a dwelling is also included in the right to access to adequate housing. Additionally, the State, through legislative and other measures, must create the conditions for access to adequate housing for people at all economic levels of society (at paragraph 35). The obligation upon the State is to achieve “the progressive realisation of this right” by examining and lowering legal, administrative, operational, and financial hurdles over time. However, this does not deprive the obligation of all meaningful content. The State remains bound to move, as expeditiously and effectively as possible, towards the goal of full realisation of the right, with full use of the maximum resources available (at paragraph 45).
In any event, as I have already intimated, the obligation imposed upon the State, in terms of our section 28, to adopt reasonable measures, is significantly qualified by the limits of available resources.
As was explained in Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) at paragraph 46:
“…, the obligation to take the requisite measures is that the obligation does not require the State to do more than its available resources permit. This means that both the content of the obligation, in relation to the rate at which it is achieved, as well as the reasonableness of the measures employed to achieve the result, are governed by the availability of resources. Section 26 does not expect more of the State than is achievable within its available resources….,.
There is a balance between goal and means. The measures must be calculated to attain the goal expeditiously and effectively but the availability of resources is an important factor in determining what is reasonable.”…,.
Protection against Arbitrary Eviction
Section 74 of the Constitution guarantees the freedom from arbitrary eviction and stipulates that:
“No person may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances.”
Commenting on the South African equivalent, i.e. section 26(3), which is ad idem with our section 74, CURRIE & De WAAL: The Bill of Rights Handbook (6th ed. 2013)…, summarise this provision as follows:
“The general right of access to housing can be negatively enforced against improper invasion in the form of arbitrary evictions. Section 26(3) puts the matter beyond doubt by expressly entrenching a conventional negative right, unqualified by considerations relating to the State's available resources, against arbitrary evictions and demolitions.”
Within the broader context of housing rights generally, the learned authors…, observe that:
“…., mass eviction is a retrogressive step on the road to the promotion of the right of access to adequate housing and needs to be justified, not just on its own terms as an eviction, but also within the bigger picture of progressive housing delivery.”
The meaning of the word “home”, as used in section 74, is to be very broadly construed.
The word embraces both permanent and temporary places of abode as well as shacks and informal dwellings. It has also been conceptually defined to mean a shelter against the elements providing some of the comforts of life with some degree of permanence. See Ross v South Peninsula Municipality 2001 (1) SA 589 (C); Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC)…,.; CURRIE & De WAAL: The Bill of Rights Handbook (6th ed. 2013)…,.; City of Harare v Mukunguretsi & Ors SC46-18…,.; Zuze v Trustees of Mlambo & Anor SC69-19…,.
In Zuze v Trustees of Mlambo & Anor SC69-19…, this Court elaborated the essential elements of the freedom from arbitrary eviction and demolition under section 74:
“The essential elements of the protection afforded by section 74 are twofold;
(a) The first is that no person may be evicted from his home or have his home demolished 'without an order of court'. This is a basic procedural requirement to ensure that the law is followed in conformity with due process. This was underscored in the City of Harare case (supra), at paras. 12 & 15, as a prerequisite to the lawful demolition of the respondents' homes….,.
(b) The second element relates to the possible arbitrariness of an eviction and necessitates that the court seized with the matter must consider 'all the relevant circumstances' before it grants an order of eviction or demolition.
With respect to the South African equivalent of our section 74, i.e. section 26, the provision has been construed to confer not only a procedural right but also a substantive benefit to include the issue of whether or not the prospective evictee has access to alternative housing.”
As regards what constitutes “all the relevant circumstances” for the purposes of section 74, the Court took the view that the legality or otherwise of occupation by the potential evictee was immaterial and did not detract from the scope and extent of the protection afforded by the section. It was held…,:
“In the final analysis, what is required in considering all the relevant circumstances is a balancing exercise between the rights and interests of all the parties involved in or affected by the eviction dispute.
In the instant case, the relevant circumstances are relatively clear. The appellant was a bona fide occupier who was not aware that the subdivision that he occupied was illegal. He had been residing on the land in question for almost nine years. What is not apparent from the record is whether he had suitable alternative accommodation or land to occupy consequent upon his eviction from the property.
What emerges from the foregoing factual conspectus is that the appellant had a direct and substantial interest in the matter notwithstanding that his occupation of the property might have been illegal. In terms of section 74 of the Constitution, he had a procedural right to be heard apropos all the relevant circumstances pertaining to his occupation of the property.”
The relative immateriality of the applicant's illegal occupation was further underscored, at pp.18-19:
“There is no doubt that the appellant has no substantive real rights in the property in question. Nevertheless, although section 74 of the Constitution does not confer any substantive real rights, it operates to guarantee the procedural rights, that I have elaborated above, on any person who stands to be evicted from his home. Moreover, the ambit of the protection accorded by section 74 is not confined to strictly legal occupants of land or property. Having regard to the plain and ordinary connotation of a 'home', that protection extends as well to unlawful occupiers of any property that can be characterised as constituting a home.”
In my view, the privacy and sanctity of one's domestic space, and the potential trauma of being forcibly or involuntarily ejected from one's home, cannot, in any situation, be over-emphasized.
As was recognised in Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC)..,:
“Section 26(3) evinces special constitutional regard for a person's place of abode. It acknowledges that a home is more than just a shelter from the elements. It is a zone of personal intimacy and family security. Often, it will be the only relatively secure space of privacy and tranquillity in what (for poor people in particular) is a turbulent and hostile world. Forced removal is a shock for any family, the more so for one that has established itself on a site that has become its familiar habitat.
As the United Nations Housing Rights Programme report points out:
'To live in a place, and to have established one's own personal habitat with peace, security and dignity, should be considered neither a luxury, a privilege nor purely the good fortune of those who can afford a decent home. Rather, the requisite imperative of housing for personal security, privacy, health, safety, protection from the elements and many other attributes of a shared humanity, has led the international community to recognize adequate housing as a basic and fundamental human right.'”
In any event, it is salutary to point out that section 74 does not preclude eviction generally and clearly acknowledges the possibility of informal settlers being evicted under due process - even if this results in the loss of their home. However, this does not mean that homelessness should invariably and immediately eventuate in all cases.
The private landowner of property that is occupied by illegal settlers may have to be patient in the course of eviction. By the same token, the State, or relevant local authority, may have to take the requisite measures, within their available resources, to avert or mitigate the spectre of homelessness. Such limitations upon the rights of private landowners, and the imposition of correlative obligations upon the State and local authorities, may be warranted in the interests of justice and equity and dictated by the prevailing circumstances.
The aforegoing considerations were aptly highlighted in City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd 2012 (2) SA 104 (CC)…,.:
“It could reasonably be expected that when land is purchased for commercial purposes the owner, who is aware of the presence of occupiers over a long time, must consider the possibility of having to endure the occupation for some time. Of course, a property owner cannot be expected to provide free housing for the homeless on its property for an indefinite period. But, in certain circumstances, an owner may have to be somewhat patient and accept that the right to occupation may be temporarily restricted, as Blue Moonlight's situation in this case has already illustrated. An owner's right to use and enjoy property at common law can be limited in the process of the justice and equity enquiry…,.” [para. 40]
“The relief sought in the Occupiers' cross-appeal must therefore be considered in order not to render them homeless. The date of eviction must be linked to a date on which the City has to provide accommodation. Requiring the City to provide accommodation 14 days before the date of eviction will allow the Occupiers some time and space to be assured that the order to provide them with accommodation was complied with and to make suitable arrangements for their relocation. Although Blue Moonlight cannot be expected to be burdened with providing accommodation to the Occupiers indefinitely, a degree of patience should be reasonably expected of it and the City must be given a reasonable time to comply. The date should not follow too soon after the date of the judgment.” [para. 100]
The same considerations were further elaborated in City of Johannesburg v Changing Tides 74 (Pty) Ltd 2012 (6) SA 294 (SCA)…,.:
“Reverting then to the relationship between sections 4(7) and (8), the position can be summarised as follows;
A court hearing an application for eviction at the instance of a private person or body, owing no obligations to provide housing or achieve the gradual realisation of the right of access to housing in terms of section 26(1) of the Constitution, is faced with two separate enquiries;
(i) First, it must decide whether it is just and equitable to grant an eviction order having regard to all relevant factors.
Under section 4(7) those factors include the availability of alternative land or accommodation. The weight to be attached to that factor must be assessed in the light of the property owner's protected rights under section 25 of the Constitution, and on the footing that a limitation of those rights in favour of the occupiers will ordinarily be limited in duration. Once the court decides that there is no defence to the claim for eviction and that it would be just and equitable to grant an eviction order it is obliged to grant that order.
Before doing so, however, it must consider what justice and equity demands in relation to the date of implementation of that order and it must consider what conditions must be attached to that order.
(ii) In that second enquiry, it must consider the impact of an eviction order on the occupiers and whether they may be rendered homeless thereby or need emergency assistance to relocate elsewhere.
The order that it grants as a result of these two discrete enquiries is a single order. Accordingly, it cannot be granted until both enquiries have been undertaken and the conclusion reached that the grant of an eviction order, effective from a specified date, is just and equitable. Nor can the enquiry be concluded until the court is satisfied that it is in possession of all the information necessary to make both findings based on justice and equity.”
Ejection without Due Process or Court Order
Reverting to the situation in casu, the essence of the appellants' complaint, in the first ground of appeal, is that the court a quo failed to find that the respondents could not eject the appellants without due process and without a valid court order. This ground was not specifically motivated in argument before this Court but was not abandoned, and, therefore, remains to be dealt with and determined.
In its judgment, the court a quo was evidently alive to the need to prevent the arbitrary eviction of the appellants. The learned judge opined that “the applicants and their children must be given an opportunity for genuine consultation. Adequate notice to all those affected of the scheduled eviction, information on the proposed evictions, and the alternative purpose for which the land is required must be given”. He proceeded to find that “notice of the proposed eviction must be given within a reasonable time. The evictions must be supervised and should not be done in the terror of night. The respondents may not evict the applicants without due process of law.”
In any event, the court declined to grant the interdictory relief sought barring the respondents from ejecting the appellants from the informal settlement situated on Haydon Farm.
It should be borne in mind that the application before the court a quo was for a declarator and consequential relief having regard to the particular circumstances of the appellants' occupation of Haydon Farm. They had been given some unspecified form of notice to vacate the farm and were required to move out to enable the third respondent to carry out the construction of houses on the land. However, what was before the court was not an actual application for eviction or a counter-application to resist any claim for eviction. Thus, the court was not called upon to consider all the relevant circumstances or whether or not the requirements of due process had been complied with for the specific purpose of granting or declining an eviction order.
The criteria and considerations that I have delineated above vis-à-vis section 74 of the Constitution would only have been relevant in evaluating the right to shelter that was claimed by the appellants in terms of section 81(1)(f) of the Constitution.
This is a somewhat different inquiry…,.
In any event, it is indisputably clear that there was no application for eviction before the court a quo. The court was not called upon to evict the appellants at the behest of the respondents or anyone else. What it did was to deal with the specific application before it and to decline the declaratory and interdictory relief that was sought by the appellants. Nevertheless, in so doing, it explicitly found that the appellants must be given adequate notice of the proposed eviction and that any such eviction must be duly supervised. More emphatically, it also found, in unequivocal terms, that the respondents could not evict the appellants “without due process of law”, and, therefore, by necessary implication, without a valid court order.
It follows that the first ground of appeal in casu is entirely misconceived and misplaced. It must accordingly be dismissed.
Right of Children to Shelter
Section 81 elaborates the particular rights of children. In the portions that are relevant for present purposes, it declares that:
“(1) Every child, that is to say every boy and girl under the age of eighteen years, has the right —
(a)…,.;
(b)…,.;
(c)…,.;
(d) To family or parental care, or to appropriate care when removed from the family environment;
(e)…,.;
(f) To education, health care services, nutrition and shelter;
(g)…,.;
(h)…,.; and
(i)…,.
(2) A child's best interests are paramount in every matter concerning the child.
(3) Children are entitled to adequate protection by the courts, in particular by the High Court as their upper guardian.”
Counsel for the appellants submits that section 81 of the Constitution is distinguishable from certain other rights incorporated in the Declaration of Rights. In particular, environmental rights (section 73), the right to education (section 75), the right to health care (section 76) and the right to food and water (section 77) are all qualified by the injunction to achieve their progressive realisation within the limits of the resources available to the State. In contrast, the rights of children entrenched in section 81 are not so qualified. They are only subject to the limitations codified in section 86 of the Constitution. They must therefore be regarded as standing on their own. Furthermore, so he submits, section 81(1)(f) applies to every child irrespective of the primary parental obligation. The State is obligated to provide for the child - especially where the parents concerned are indigent.
Counsel for the first and fourth respondents does not take any issue with these submissions. She also accepts that section 81 applies whether the child in question is under parental care or is institutionalised under State care.
However, she contends that there is no obligation on the State to provide for any child under parental care. Consequently, so she submits, the primary obligation to provide shelter lies on the parents of the child concerned.
She further relies upon Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) for the proposition that there is no primary obligation on the State to provide shelter. The equivalent provision in the South African Constitution, i.e. section 28(1)(c), is identical to our section 81(1)(f), and, therefore, the decision in Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) should not be distinguished or departed from.
Counsel for the second respondent agrees with these submissions and adds that section 81(1)(f) only obliges the State to step in where children have not been provided for by the parents and have been institutionalised.
In the South African context, CURRIE & De WAAL: The Bill of Rights Handbook (6th ed. 2013)…, opine that the textual differences between section 28(1)(c) and sections 26 and 27 (relating to the provision of housing, health care, food, water and social security for everyone) would support the interpretation that section 28(1)(c) was intended “to impose a direct duty on the State to ensure that children must have their socio-economic rights met immediately, and that budgetary arguments cannot account for failure on the part of Government.”
This interpretation is bolstered by the decision in Governing Body of the Juma Masjid Primary School v Essay N.O. 2011 (8) BCLR 761 (CC). In that case, the court highlighted the distinctive features of the right to a basic education from the right to further education under section 29 of the South African Constitution…, as follows:
“It is important, for the purpose of this judgment, to understand the nature of the right to 'a basic education' under section 29(1)(a).
Unlike some of the other socio-economic rights, this right is immediately realisable. There is no internal limitation requiring that the right be 'progressively realised' within 'available resources' subject to 'reasonable legislative measures'. The right to a basic education, in section 29(1)(a), may be limited only in terms of a law of general application which is 'reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom'.
This right is therefore distinct from the right to 'further education' provided for in section 29(1)(b). The State is, in terms of that right, obliged, through reasonable measures, to make further education 'progressively available and accessible'.”
As regards the decision in Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC), CURRIE & De WAAL: The Bill of Rights Handbook (6th ed. 2013)…, observe that the effect of that decision vis-à-vis children's socio-economic rights, such as the right to housing, “underwent a positive adjustment in the TAC case.”
In that case, Minister of Health v Treatment Action Campaign 2002 (5) SA 721 (CC), the court dealt with access to treatment to avoid mother-to-child transmission of HIV/AIDS in the context of children born in public hospitals to indigent mothers. The court was called upon to interpret sections 28(1)(b) and 28(1)(c) of the South African Constitution, the equivalent of our sections 81(1)(d) and 81(1)(f), apropos the provision of basic health care services by the State and/or by parents and the family.
The court recalled its earlier judgment in Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) where it was held that paras. (b) and (c) of section 28(1) must be read together so that “a child has the right to family or parental care in the first place, and the right to alternative appropriate care only where that is lacking.” The court then proceeded to qualify its earlier decision insofar as concerns the position of children born to indigent mothers who could not afford to pay for basic health care services. The obligations of the State, in that particular situation, were underscored and articulated, at paras. 76-79, as follows:
“Counsel for the Government, relying on these passages in the Grootboom judgment, submitted that section 28(1)(c) imposes an obligation on the parents of the newborn child, and not the State, to provide the child with the required basic health care services.
While the primary obligation to provide basic health care services no doubt rests on those parents who can afford to pay for such services, it was made clear in Grootboom that '[t]his does not mean…, that the State incurs no obligation in relation to children who are being cared for by their parents or families.'
The provision of a single dose of nevirapine to mother and child for the purpose of protecting the child against the transmission of HIV is, as far as the children are concerned, essential. Their needs are 'most urgent' and their inability to have access to nevirapine profoundly affects their ability to enjoy all rights to which they are entitled. Their rights are 'most in peril' as a result of the policy that has been adopted and are most affected by a rigid and inflexible policy that excludes them from having access to nevirapine.
The State is obliged to ensure that children are accorded the protection contemplated by section 28 that arises when the implementation of the right to parental or family care is lacking. Here we are concerned with children born in public hospitals and clinics to mothers who are, for the most part, indigent and unable to gain access to private medical treatment which is beyond their means. They and their children are, in the main, dependent upon the State to make health care services available to them.”
It is axiomatic that the Constitution must be interpreted in a holistic and seamless fashion. Each provision is to be interpreted, without doing violence to the actual language used, in a manner that is consistent and accords with every other relevant provision, so as to achieve the underlying purpose of those provisions. They must be construed as being mutually complementary rather than as being contradictory to one another. In short, the Constitution must be construed as a unified whole.
Reverting to section 81(1) of our Constitution, I am persuaded to adopt the more purposive approach to the inter-relationship between paragraphs (d) and (f) of section 81(1). I do not think that those paragraphs must necessarily be read so that paragraph (f) is construed as being subordinated to or diminished by paragraph (d). In other words, the obligation of the State, to provide shelter to children in need in terms of section 81(1)(f), is not contingent upon the absence of parental care or other appropriate care under section 81(1)(d). The obligation of the State in this respect is not negated or diluted by the primary duty of care ordinarily imposed upon parents.
In most situations where socio-economic normalcy is possible, where children are living with their parents, the parental duty of care must predominate so as to proportionately reduce the State's correlative obligations. However, where the parents themselves are financially or otherwise incapacitated from fulfilling their parental obligations, it then becomes incumbent upon the State to intervene and carry out its own obligation to ensure that the children's welfare is adequately addressed and safeguarded.
In my view, this interpretation is entirely concordant with the ultimate objective of section 81, viz. to secure the best interests of the child.
To conclude on this aspect, the primary duty of care reposed with parents in respect of their own children does not operate to absolutely absolve the State of its underlying obligation of care towards those children.
