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The reasonableness approach of the South African Constitutional Court - making the constitutional right of access to housing "real" or effectively meaningless?
The South African Constitution explicitly guarantees the right of access to housing (section 26 of the Constitution). To consider whether the state has fulfilled its positive obligations to take appropriate steps to realise the right of access to housing within its available resources, the Constitut...
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| Format: | Thesis |
| Language: | English |
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Department of Public Law
2019
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| _version_ | 1867613316740808704 |
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| access_status_str | Open Access |
| author | Lange, Pia Annika |
| author2 | De Vos, Pierre |
| author_browse | De Vos, Pierre Lange, Pia Annika |
| author_facet | De Vos, Pierre Lange, Pia Annika |
| author_sort | Lange, Pia Annika |
| collection | Thesis |
| description | The South African Constitution explicitly guarantees the right of access to housing (section 26 of the Constitution). To consider whether the state has fulfilled its positive obligations to take appropriate steps to realise the right of access to housing within its available resources, the Constitutional Court – based on the text of the provision 26(2) of the Constitution – uses the test of reasonableness. Contrary to the minimum core concept, which was developed through the General Comments of the United Nations Committee on Economic, Social and Cultural Rights and which is used to measure state actions in regard of the right to housing under Article 11 para 1 of the ICESCR, the reasonableness approach shifts the emphasis from the reasonableness of the solution to the reasonableness of the steps taken, moving away from a substantive right towards administrative oversight, which makes – so the assumption goes – the constitutional right of access to housing effectively meaningless. However, in this dissertation it is argued that it is not the reasonableness approach per se which hinders the implementation of the right of access to housing but rather the choice of remedy and the lack of (individual) access to the Court. In doing so, this study will show that the Court by using the reasonableness approach is acting in accordance with the wording and the transformative character of the South African Constitution and its own institutional role within the constitutional framework based on the separation of powers. Subsequently the study demonstrates that the effectiveness of the right of access to housing depends on the remedy granted by the Court and the possibility of access to the Court rather than the approach reverted to by the Court. Against this backdrop, the dissertation scrutinises what can be done to expand access to justice for claims flowing from the right of access to housing and thus to facilitate the right. |
| format | Thesis |
| id | oai:open.uct.ac.za:11427/29738 |
| institution | University of Cape Town (South Africa) |
| language | eng |
| last_indexed | 2026-06-10T12:34:10.861Z |
| license_str | Not specified — see source repository |
| provenance_str_mv | Harvested via OAI-PMH from UCTD — University of Cape Town Open Access Repository |
| publishDate | 2019 |
| publishDateRange | 2019 |
| publishDateSort | 2019 |
| publisher | Department of Public Law |
| publisherStr | Department of Public Law |
| record_format | dspace |
| source_str | UCTD — University of Cape Town Open Access Repository |
| spelling | oai:open.uct.ac.za:11427/29738 The reasonableness approach of the South African Constitutional Court - making the constitutional right of access to housing "real" or effectively meaningless? Lange, Pia Annika De Vos, Pierre Constitutional Law The South African Constitution explicitly guarantees the right of access to housing (section 26 of the Constitution). To consider whether the state has fulfilled its positive obligations to take appropriate steps to realise the right of access to housing within its available resources, the Constitutional Court – based on the text of the provision 26(2) of the Constitution – uses the test of reasonableness. Contrary to the minimum core concept, which was developed through the General Comments of the United Nations Committee on Economic, Social and Cultural Rights and which is used to measure state actions in regard of the right to housing under Article 11 para 1 of the ICESCR, the reasonableness approach shifts the emphasis from the reasonableness of the solution to the reasonableness of the steps taken, moving away from a substantive right towards administrative oversight, which makes – so the assumption goes – the constitutional right of access to housing effectively meaningless. However, in this dissertation it is argued that it is not the reasonableness approach per se which hinders the implementation of the right of access to housing but rather the choice of remedy and the lack of (individual) access to the Court. In doing so, this study will show that the Court by using the reasonableness approach is acting in accordance with the wording and the transformative character of the South African Constitution and its own institutional role within the constitutional framework based on the separation of powers. Subsequently the study demonstrates that the effectiveness of the right of access to housing depends on the remedy granted by the Court and the possibility of access to the Court rather than the approach reverted to by the Court. Against this backdrop, the dissertation scrutinises what can be done to expand access to justice for claims flowing from the right of access to housing and thus to facilitate the right. 2019-02-22T10:47:44Z 2019-02-22T10:47:44Z 2018 2019-02-21T13:16:05Z Master Thesis Masters LLM http://hdl.handle.net/11427/29738 eng application/pdf Department of Public Law Faculty of Law University of Cape Town |
| spellingShingle | Constitutional Law Lange, Pia Annika The reasonableness approach of the South African Constitutional Court - making the constitutional right of access to housing "real" or effectively meaningless? |
| thesis_degree_str | Master's |
| title | The reasonableness approach of the South African Constitutional Court - making the constitutional right of access to housing "real" or effectively meaningless? |
| title_full | The reasonableness approach of the South African Constitutional Court - making the constitutional right of access to housing "real" or effectively meaningless? |
| title_fullStr | The reasonableness approach of the South African Constitutional Court - making the constitutional right of access to housing "real" or effectively meaningless? |
| title_full_unstemmed | The reasonableness approach of the South African Constitutional Court - making the constitutional right of access to housing "real" or effectively meaningless? |
| title_short | The reasonableness approach of the South African Constitutional Court - making the constitutional right of access to housing "real" or effectively meaningless? |
| title_sort | reasonableness approach of the south african constitutional court making the constitutional right of access to housing real or effectively meaningless |
| topic | Constitutional Law |
| url | http://hdl.handle.net/11427/29738 |
| work_keys_str_mv | AT langepiaannika thereasonablenessapproachofthesouthafricanconstitutionalcourtmakingtheconstitutionalrightofaccesstohousingrealoreffectivelymeaningless AT langepiaannika reasonablenessapproachofthesouthafricanconstitutionalcourtmakingtheconstitutionalrightofaccesstohousingrealoreffectivelymeaningless |