"THE GROOTBOOM CASE"

Issued by: Human Rights Commission

10 May 2000

The SAHRC is approaching the Constitutional Court as an amicus curlae (someone who provides supporting information) in what has become known as "The Grootboom Case". This case looks at the right of children to shelter.

The SAHRC has the duty to promote respect for human rights and a culture of human rights. In the affidavit supporting our application to become an amicus curlae the Chairperson of the SAHRC stated that: "I believe that it is essential that the bill of rights is seen to address the needs of the poorest of the poor members of our society. The bill of rights is sometimes seen, quite wrongly, as a "criminals" charter. This perception undermines the possibility of building a culture of human rights and respect for constitutionalism.

"I believe that this case presents a critical opportunity to demonstrate that the bill of rights protects all of those who are vulnerable or marginalised, and is an instrument for addressing the deplorable conditions and great poverty in which many of our people live. As has been said, this is at the heart of the new constitutional order. The Commission wishes to make submissions to the Court on how this may be achieved in this particular case, and how this case should create the framework for a proper understanding of the duties of the state."

The SAHRC is assisting the court by finishing it with the reports it has received from various government departments, monitoring and assessing the observance of human rights, particularly the socio-economic rights such as access to housing and welfare, in our country.

The submissions to be advanced by the Commission are the following:

• Social and economic rights place positive obligations on the government, particularly in the light of the duty on the state to "respect, protect, promote and fulfil" the rights in the Bill of Rights.
• In considering whether the state has complied with its duties, the court should examine and have regard to the state's own reports on its performance of its constitutional duties, and in particular reports to the Commission and to international bodies.
• The right to housing and the right of children to shelter are inter-connected. In this particular matter, the obligation on the state should be founded on both rights, as properly interpreted.
• Whether the Bill of Rights does not qualify the right concerned by the availability of resources, then at best for the state, the availability of resources is relevant to whether the limitation clause in the Constitution applies.
• Even if it is true that the resources do not exist immediately to provide the necessary benefit to every person who has a constitutional right, this should not prevent the Court from ordering the provision of benefits to the particular claimants who are before it. Implementation is necessarily an incremental matter.
• While the Courts should show some deference to the executive and legislature as to the matter of implementation of social and economic rights, it is the duty and function of the Court to pronounce on the existence and content of those rights, on whether organs of state have met the constitutional standard, and where necessary to order compliance with that standard.

For more information, contact: Siseko Njobeni SAHRC 011 484 8300 083 288 3339