An Analysis of Women’s Housing Rights – Implications of the Grootboom case

Introduction
In 1997, it was estimated that 2,2 million families in South Africa were without adequate housing. It was further estimated that this figure would increase by 204 000 every year because of population growth barring any effective intervention (National Housing Code, 2000:2). Research by the National Housing Department also indicated that, due to high levels of unemployment and relatively low average wage levels, it would be difficult for most people to provide for their own housing needs. The 1996 census revealed that 80% of all families living in South Africa had monthly incomes of R3 500 or less. More than 50% had monthly incomes of R1 500 or less (National Housing Code, 2000: 2).

Factors such as rapid urbanisation, rising levels of poverty, the HIV/AIDS epidemic, lack of experience as consumers within the current housing framework, lack of legal knowledge, limited access to the legal system as well as discriminatory practices in the private housing market have also increased the need and demand for state provision of housing. The housing crisis has particularly devastating consequences for vulnerable and disadvantaged groups, such as women living in poverty. Some of these consequences will be explored in the course of this study.

Women’s access to adequate housing in South Africa is informed by the historical, social and economic context within which women seek to access housing. Discriminatory laws and practices have limited women’s access to housing and other socio-economic rights. They have disproportionately affected black women.

The country’s commitment to addressing the housing crisis is reflected within its legal framework. The Constitution protects a right of access to adequate housing in section 26 (Act No. 108 of 1996). It also endorses the right to equality. Non racialism and non-sexism are among the foundational values of the Constitution (s 1(b)). Section 9(1) of the Constitution
recognises that everyone is equal before the law and has the right to equal protection and benefit of the law. Section 9(2) expressly recognises that equality includes the full and equal enjoyment of all rights and freedoms. In addition to section 9(3) prohibiting unfair discrimination on a host of grounds which include sex and gender, section 9(2) specifically recognises that special measures may be adopted to promote the achievement of equality amongst previously disadvantaged groups. When we read section 9 with section 26, it is clear that the state has an obligation to prohibit unfair discrimination in respect of housing rights, and that it can adopt special measures to promote equality for women in the housing sector.

In the groundbreaking decision of Government of Republic of South Africa and Others v Grootboom and Others 2000 (11) BCLR 1169 (CC) (hereafter Grootboom), the Constitutional Court sought to give effect to housing rights as provided for in section 26. In doing so, it pronounced on key principles. These principles specifically relate to people “who have no access to land, no roof over their heads, for people who are living in intolerable conditions
and for people who are in crisis because of natural disasters such as floods and fires, or because their homes are under threat of demolition” (para 52). Because women are more likely than men to be living in intolerable conditions, the case provides a useful framework
for an analysis of women’s housing rights.

The aim of this paper is to analyse the implications of Grootboom for women and housing policy and budgets. This chapter examines the need for a gendered analysis of housing rights in terms of the realities of women’s access to housing. Chapter 2 analyses the Grootboom
judgment, and themes highlighted by the court. Chapters 3 and 4 analyse the housing programme and budget against the background of the previous two chapters. The study concludes with recommendations that seek to give effect to the Grootboom case for women and housing and so advance women’s access to adequate housing in South Africa.

As will be discussed below, national, provincial and local government spheres all have a role to play in providing access to housing. In this paper we use the Western Cape as a case study when looking at sub-national levels, as it was in this province that the Grootboom case occurred.

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