Balancing Socio-economic Rights: Confronting COVID-19 in South Africa’s Informal Urban Settlements

ABSTRACT

In the context of a stand-off between housing rights advocates and the South African government over the appropriate way to safeguard the right to health in the country’s urban informal settlements during the early days of the COVID-19 pandemic, this article reflects on some of the strengths and weaknesses of the local understanding of human rights. It argues for a holistic understanding of interdependent rights that allows for a reconciliation of seemingly competing concerns, for renewed engagement with rights’ positive and participatory dimensions, and for the cross-fertilisation of concepts and mechanisms associated with their separable jurisprudential development.

KEYWORDS:

• Right to health
• right to housing
• COVID-19
• informal settlements
• South Africa

Acknowledgements

A version of this article was presented at an Urban Law Day webinar co-hosted by the Institute of Advanced Legal Studies (University of London) and UN Habitat on 10 July 2020.

Notes

1 See generally Katharine G Young, ‘The Right–Remedy Gap in Economic and Social Rights Adjudication: Holism Versus Separability’ (2019) 69 University of Toronto Law Journal 124.

2 See Karl E Klare, ‘Legal Culture and Transformative Constitutionalism’ (1998) 14 South African Journal on Human Rights 146; Etienne Mureinik, ‘A Bridge to Where? Introducing the Interim Bill of Rights’ (1994) 10 South African Journal on Human Rights 31.

3 See Marius Pieterse, ‘Eating Socio-economic Rights: The Usefulness of Rights Talk in Alleviating Social Hardship Revisited’ (2007) 29 Human Rights Quarterly 696.

4 On factors driving informal settlement formation in South African cities see Centre on Housing Rights and Evictions, Any Room for the Poor? Forced Evictions in Johannesburg, South Africa (COHRE 2005) 75–76.

5 See Marius Pieterse, ‘Geography, Marginalisation and the Performance of the Right to have Access to Health Care Services in Johannesburg’ (2016) 20 Law, Democracy & Development 1, 9; Niamh K Shortt and Daniel Hammett, ‘Housing and Health in an Informal Settlement Upgrade in Cape Town, South Africa’ (2013) 28 Journal of Housing and the Built Environment 615; Jo Veary, ‘Migration, Urban Health and Inequality in Johannesburg’ in Tanja Bastia (ed.), Migration and Inequality (Routledge 2013) 121–144, 132, 138; Joanna Veary, Ingrid Palmary, Liz Thomas, Lorena Nunez and Scott Drimie, ‘Urban Health in Johannesburg: The Importance of Place in Understanding Intra-Urban Inequalities in a Context of Migration and HIV’ (2010) 18 Health & Place 694, 697–99.

6 For critical discussion, see Marie Huchzermeyer, ‘Pounding at the Tip of the Iceberg: The Dominant Politics of Informal Settlement Eradication in South Africa’ (2010) 37(1) Politikon 129.

7 Housing Act 107 of 1997, s 1(e)(iii).

8 RSA Department of Human Settlements, Breaking New Ground: A Comprehensive Plan for the Development of Sustainable Human Settlements (2004) 12.

9 Ibid.

10 RSA Department of Human Settlements, Upgrading of Informal Settlements Programme (2004), currently contained in part 3 volume 4 of the National Housing Code (2009).

11 Marie Huchzermeyer, ‘The Struggle for In Situ Upgrading of Informal Settlements: A Reflection on Cases in Gauteng’ (2009) 26 Development Southern Africa 59, 64.

12 Neil Klug and Shahid Vawda, ‘Upgrading of Informal Settlements: An Assessment with Reference to the Application of “Breaking New Ground” in Cape Town and Johannesburg’ (2009) 54 Town and Regional Planning 37, 41–61. See also Marie Huchzermeyer, ‘The New Instrument for Upgrading Informal Settlements in South Africa: Contributions and Constraints’ in Marie Huchzermeyer and Aly Karam (eds), Informal Settlements: A Perpetual Challenge (UCT Press 2006) 41–61, 48–50, 53–54, 57; Huchzermeyer, ‘The Struggle’ (n 11) 64, 66; Shortt and Hammett (n 5) 617.

13 See Lilian Chenwi, ‘Legislative and Judicial Responses to Informal Settlements in South Africa: A Silver Bullet?’ (2012) 23 Stellenbosch LR 540, 543–44; Michael Clark and Kate Tissington, ‘Courts as a Site of Struggle for Informal Settlement Upgrading in South Africa’ in Liza Rose Cirolia, Tristan Gorgens, Mirjam van Donk, Warren Smit, and Scott Drimie (eds), Upgrading Informal Settlements in South Africa: A Partnership-based Approach (UCT Press 2016) 376, 376–77; Huchzermeyer, ‘Pounding at the Tip of the Iceberg’ (n 6) 131–35; Marie Huchzermeyer, Cities With ‘Slums’: From Informal Settlement Eradication to a Right to the City in Africa (UCT Press, Cape Town 2011) 1–3, 10, 112–20.

14 See Chenwi, ‘Legislative and Judicial Responses’ (n 13) 549; Clark and Tissington (n 13) 376–77; Huchzermeyer, ‘The Struggle’ (n 11) 65–66; Huchzermeyer, ‘Pounding at the Tip of the Iceberg’ (n 6) 139; Huchzermeyer, Cities With ‘Slums’ (n 13) 172–79; Malcolm Langford, ‘Housing Rights Litigation: Grootboom and Beyond’ in Malcolm Langford, Ben Cousins, Jackie Dugard, and Tshepo Madlingozi (eds), Socio-economic Rights in South Africa: Symbols or Substance? (Cambridge University Press 2014) 187–225, 202; Ruth T Massey, ‘Competing Rationalities and Informal Settlement Upgrading in Cape Town, South Africa: A Recipe for Failure’ (2013) 28 Journal of Housing and the Built Environment 605.

15 See Clark and Tissington (n 13) 379–80.

16 Partnership Framework Agreement between Civil Society Organisations (CSOs) and the National Department of Human Settlements (NDHS) around Interventions in Informal Settlements in the Context of COVID-19 (8 June 2020) 1. On file with author. Despite a prohibition on evictions during the pandemic, it has increased housing insecurity and thereby fueled informal settlement formation – see eg Community of Hangberg v City of Cape Town [2020] ZAWHC 66.

17 Partnership Framework Agreement (n 16).

18 Under the terms of the Disaster Management Act 57 of 2002.

19 South African Government Media Statement, ‘Remarks by Minister of Human Settlements, Water and Sanitation, Hon. LN Sisulu, at the occasion of media briefing to outline interventions to curb the spread of COVID-19’ (25 March 2020) <www.gov.za/speeches/minister-lindiwe-sisulu-interventions-curb-spread-coronavirus-covid-19-25-mar-2020-0000> accessed 22 March 2021.

20 ‘An Urgent Call to Rethink De-Densification as the Dominant Proposed Strategy in the Context of COVID-19’ (11 April 2020) statement published on the websites of signatory-organisations. See eg <https://planact.org.za/an-urgent-call-to-rethink-de-densification-as-the-dominant-proposed-strategy-in-the-context-of-covid-19/> accessed 22 March 2021.

21 Leilani Farha, UN Special Rapporteur on the Right to Adequate Housing COVID-19 Practice Note: Protection for those Living in Homelessness (2 April 2020) <http://unhousingrapp.org/user/pages/07.press-room> accessed 22 March 2021.

22 UN Habitat, Policy Statement on the Prevention of Evictions and Relocations during the COVID-19 Crisis (14 May 2020) <https://unhabitat.org/sites/default/files/2020/05/un-habitat_policy_statement_on_prevention_of_evictions_and_relocations.pdf> accessed 22 March 2021.

23 See ‘Speaking Notes by Minister of Human Settlement, Water and Sanitation Lindiwe Sisulu on Government’s Response to the COVID-19’ (29 April 2020) <https://www.gov.za/speeches/minister-lindiwe-sisulu-government%E2%80%99s-response-coronavirus-covid-19-pandemic-29-apr-2020> accessed 22 March 2021. ‘Re-blocking’ involves repositioning informal housing units so as to enable the construction of roads and installation of essential service infrastructure.

24 Partnership Framework Agreement (n 16) 2.

25 Ibid. 4–8. These include supply of water, toilets, hygiene services, and solid waste management (which may require re-blocking) alongside, for instance, awareness-raising and behaviour-changing campaigns, interventions aimed at enhancing food security, and the operation of temporary isolation and treatment facilities for COVID-19.

26 Various iterations of draft Human Settlements Emergency COVID19 Disaster Response Directions Issued in terms of Regulation 10(8) of the Regulations Issued in terms of section 27(2) of the Disaster Management Act, 2002 (2020), on file with author.

27 See Sandra Liebenberg, ‘Engaging the Paradoxes of the Universal and Particular in Human Rights Adjudication: The Possibilities and Pitfalls of “Meaningful Engagement”’ (2012) 12 African Human Rights Law Journal 1, 1–6.

28 See Iain Currie, ‘Judicious Avoidance’ (1999) 15 South African Journal on Human Rights 138, 157–58; Brian Ray, ‘Evictions, Aspirations and Avoidance’ (2013) 5 Constitutional Court Review 174.

29 See Jackie Dugard and Anna Alcaro, ‘Let’s Work Together: Environmental and Socio-economic Rights in the Courts’ (2013) 29 South African Journal on Human Rights 14, 26–27; Marius Pieterse, ‘Possibilities and Pitfalls in the Domestic Enforcement of Social Rights: Contemplating the South African Experience’ (2004) 26 Human Rights Quarterly 882, 899–902; Craig Scott and Philip Alston, ‘Adjudicating Constitutional Priorities in a Transnational Context: A Comment on Soobramoney’s Legacy and Grootboom’s Promise’ (2000) 16 South African Journal on Human Rights 206, 244–53.

30 United Nations Committee on Economic, Social and Cultural Rights (UNCESCR) General Comment 14 The Right to the Highest Attainable Standard of Health (2000) paras 4; 8; 11–12; 15–16.

31 See Soobramoney v Minister of Health, KwaZulu Natal 1998 (1) SA 765 (CC) (unsuccessful claim for access to kidney dialysis); Minister of Health v Treatment Action Campaign 2002 (5) SA 721 (CC) (successful challenge against regulatory barriers to access a drug for prevention of mother-to-child-transmission of HIV); N v Government of the Republic of South Africa 2006 (6) SA 543 (D) (successful claim for access to antiretroviral drugs in prison); Law Society of South Africa v Minister of Transport 2011 (1) SA 400 (CC) (successful challenge against legislation limiting access to private-sector care for persons rendered paraplegic or quadriplegic by car accidents).

32 See Peris Jones and Nyasha Chingore, ‘Health Rights: Politics, Places and the Need for “Sites for Rights”’ in Langford and others (n 14) 226–252, 230, 233, Young (n 1) 136.

33 See UNCESCR General Comment 14 (n 30) para 8.

34 See Marius Pieterse, ‘The Interdependence of Rights to Health and Autonomy in South Africa’ (2008) 125 South African Law Journal 553, 557–70.

35 Christian Lawyers’ Association v Minister of Health 2004 (10) BCLR 1086 (T).

36 Minister of Health, Western Cape v Goliath 2009 (2) SA 248 (CPD).

37 See Act 61 of 2003, ss 8–9.

38 See Castell v De Greeff 1994 (4) SA 408 (C); Pieterse (n 34) 559–60, 565–67, and authorities there cited.

39 See UNCESCR General Comment 14 (n 30) paras 11, 12(3). On the importance of community participation in public health programmes see Peris Jones, ‘The “Dirty Work” of Public Health: Effective Planning and Policy amidst Prejudices in Response to HIV/AIDS’ Norwegian Institute for Urban and Regional Research Working Paper 114 (2009) 6, 15, 17, 19.

40 See Marius Pieterse, Can Rights Cure? The Impact of Human Rights Litigation on South Africa’s Health System (PULP 2014) 19, 160.

41 Lee v Minister for Correctional Services 2013 (2) SA 144 (CC) [2], [13].

42 Minister of Public Works v Kyalami Ridge Environmental Association 2001 (3) SA 1151 (CC) [39], [51], [68], [103], [107].

43 See Anél Du Plessis, ‘The Promise of “Well-being” in Section 24 of the Constitution of South Africa’ (2018) 34 South African Journal on Human Rights 191; Marius Pieterse, ‘The Right to the City and the Urban Environment: Reimagining Section 24 of the 1996 Constitution’ (2014) 29 Southern African Public Law 175, 181–87.

44 Federation for Sustainable Environment v Minister of Water Affairs [2012] ZAGPPHC 128.

45 These judgments include Manqele v Durban Transitional Metropolitan Council 2002 (6) SA 423 (D): Residents of Bon Vista Mansions v Southern Metropolitan Local Council 2002 (6) BCLR 625 (W); Mazibuko v City of Johannesburg 2010 (4) SA 1 (CC). See Melanie Murcott, ‘The Role of Environmental Justice in Socio-economic Rights Litigation’ (2015) 132 South African Law Journal 875, 896–908; Pieterse, ‘The Right to the City’ (n 43) 191–92.

46 See Dugard and Alcaro (n 29); Anél Du Plessis, ‘South Africa’s Constitutional Environmental Right Generously Interpreted: What is in it for Poverty?’ (2011) 27 South African Journal on Human Rights 279, 292; Loretta Feris, ‘Constitutional Environmental Rights: An Under-utilised Resource’ (2008) 24 South African Journal on Human Rights 29, 30, 38; Murcott (n 45) 877–78; Pieterse, ‘The Right to the City’ (n 43) 187–92.

47 See Job Gbadegesin, Michael Pienaar, and Lochner Marais, ‘Housing, Planning and Urban Health: Historical and Current Perspectives from South Africa’ (2020) 48 Bulletin of Geography: Socio-Economic Series 23, 24–27; Gustav Muller, ‘Evicting Unlawful Occupiers for Health and Safety Reasons in South Africa’ (2015) 132 South African Law Journal 616, 616–17. On the pernicious history of public health in South Africa, see Maynard W Swanson, ‘The Sanitation Syndrome: Bubonic Plague and Urban Native Policy in the Cape Colony, 1900–1909’ (1977) 3 Journal of African History 387.

48 Government of the RSA v Grootboom 2001 (1) SA 46 (CC) [11].

49 1996 Constitution, s 26(2). See Grootboom (n 48) [39]–[44], [66]–[67].

50 Grootboom (n 48) [35], [37].

51 UNCESCR General Comment 4 The Right to Adequate Housing (1991) para 8.

52 Ibid. para 44.

53 Ibid. para 93.

54 On the judgment’s policy aftermath see Langford (n 14) 199–204.

55 See Langford (n 14) 200–201 and authorities there cited; Marius Pieterse, Rights-based Litigation, Urban Governance and Social Justice in South Africa: The Right to Joburg (Routledge, London 2017) 57; Ivan Turok and Andreas Scheba, ‘“Right to the City” and the New Urban Agenda: Learning from the Right to Housing’ (2019) 7 Territory, Politics, Governance 494 at 505–506.

56 Discussed by Langford (n 14) 187–88, 196–98; Pieterse, Rights-based Litigation (n 55) 47.

57 See Clark and Tissington (n 13) 380; Langford (n 14) 188; Young (n 1) 132, 136.

58 Occupiers of 51 Olivia Road, Berea Township v City of Johannesburg 2008 (3) SA 208 (CC) [13]–[17].

59 For cautious optimism over ‘meaningful engagement’ see Liebenberg, ‘Engaging the Paradoxes’ (n 27); Sandra Liebenberg, ‘Participatory Approaches to Socio-economic Rights Adjudication: Tentative Lessons from South African Evictions Law’ (2014) 32 Nordic Journal of Human Rights 312; Brian Ray, Engaging with Social Rights: Procedure, Participation and Democracy in South Africa’s Second Wave (Cambridge University Press 2016) 275–336; Shanelle van der Berg, ‘Meaningful Engagement: Proceduralising Socio-economic Rights Further or Infusing Administrative Law with Substance?’ (2013) 29 South African Journal on Human Rights 376.

60 See Lilian Chenwi, ‘A New Approach to Remedies in Socio-economic Rights Adjudication: Occupiers of 51 Olivia Road and Others v City of Johannesburg and Others’ (2009) 2 Constitutional Court Review 371, 382–383; Liebenberg, ‘Engaging the Paradoxes’ (n 27) 21–26; Kirsty McLean, ‘Meaningful Engagement: One Step Forward or Two Back?’ (2010) 3 Constitutional Court Review 223.

61 Chenwi, ‘Legislative and Judicial Responses’ (n 13) 556–57.

62 See Langford (n 14) 220.

63 Abahlali Basemjondolo v Premier, KwaZulu Natal 2010 (2) BCLR 99 (CC).

64 Residents of Joe Slovo Community, Western Cape v Thubelisha Homes 2010 (3) SA 454 (CC).

65 Residents of Joe Slovo Community, Western Cape v Thubelisha Homes 2011 (7) BCLR 723 (CC).

66 Pheko v Ekurhuleni Metropolitan Municipality 2012 (4) BCLR 388 (CC).

67 Joe Slovo (n 64) [24], [108]. See also ibid. [198] (Ngcobo J), [363], [398] (O’Regan J).

68 See Sandra Liebenberg, ‘Grootboom and the Seduction of the Negative/Positive Duties Dichotomy’ (2011) 26 Southern African Public Law 37.

69 Abahlali (n 63) [101]. See also Muller, ‘Evicting Unlawful Occupiers’ (n 47) 619–20; Pieterse, Rights-based Litigation (n 55) 56, 62.

70 City of Johannesburg v Changing Tides 2012 (6) SA 294 (SCA) [52]–[54]. See also City of Johannesburg v Rand Properties 2007 (6) SA 417 (SCA) [46], [67], where the SCA rejected as absurd the notion that intolerable living conditions were protected by the right to housing.

71 Olivia Road (n 58) [50]. See Muller, ‘Evicting Unlawful Occupiers’ (n 47) 627.

72 Abahlali (n 63) [32], [46]–[48], [121].

73 Schubart Park Residents Association v City of Tshwane Metropolitan Municipality 2013 (1) SA 323 (CC) [35]. See Pieterse, Rights-based Litigation (n 55) 65–66.

74 Daniels v Scribante 2017 (4) SA 341 (CC) [6–8], [31]–[34], [50]–[53], [58].

75 Ibid. [50]–[53], [58].

76 While the High Court likened the applicants’ resistance to relocation to ‘ …  a person burning in a fire and refusing to be rescued’ (Pheko: n 66 [15]), the Constitutional Court did not regard the danger of sinkholes as imminent: ibid. [41],[44].

77 See Pieterse, Rights-based Litigation (n 55) 68–70, 224–26; Turok and Scheba (n 55) 502–503.

78 Muller, ‘Evicting Unlawful Occupiers’ (n 47) 636. See the prescriptions to which TRA accommodation had to adhere in terms of the order in Joe Slovo (n 64) para 7 and the finding in Dladla v City of Johannesburg 2018 (2) SA 327 (CC) that ‘house rules’ in a homeless shelter offered to evictees as alternative accommodation were inconsistent with rights to dignity, privacy, and freedom and security of the person.

79 Nokotyana v Ekurhuleni Metropolitan Municipality 2010 (4) BCLR 312 (CC) [42]. The Court did however order the Province to take the decision, hence (albeit imperfectly) indirectly triggering the UISP: ibid. [55], [57]. See Clark and Tissington (n 13) 384–86; Huchzermeyer, Cities With ‘Slums’ (n 13) 235–41.

80 See Chenwi, ‘Legislative and Judicial Responses’ (n 13) 558–62; Clark and Tissington (n 13) 377, 380; Langford (n 14) 212–17.

81 For detail on surrounding events see Huchzermeyer, Cities With ‘Slums’ (n 13) 142–55.

82 Melani v City of Johannesburg 2016 (5) SA 67 (GJ).

83 Beja v Premier of the Western Cape 2011 (1) BCLR 1077 (WCC) [66]–[67], [101], [143]; see also Clark and Tissington (n 13) 386–87. Beja is consistent with the Constitutional Court’s finding in Dladla (n 78) in relation to provision of alternative accommodation.

84 Mbatha v City of Johannesburg Metropolitan Municipality [2015] 1 All SA 575 (GJ) [12], [29]–[34]. See Pieterse, Rights-based Litigation (n 55) 63.

85 See Pieterse, ‘The Right to the City’ (n 43) 183.

86 CSO Joint Statement (n 20) 2.

87 De Lange v Smuts 1998 (3) SA 785 (CC) [101], [134], [176].

88 2009 (2) SA 248 (CPD).

89 Albeit not without criticism – see Marius Pieterse and Adila Hassim, ‘Placing Human Rights at the Centre of Public Health: A Critique of Minister of Health, Western Cape v Goliath’ (2009) 126 South African Law Journal 231; Pieterse, Can Rights Cure? (n 40) 171–74.

90 See De Beer v Minister of Cooperative Governance and Traditional Affairs [2020] ZAGPPHC 184 (lockdown movement and commercial restrictions declared unconstitutional for failing to pass rationality and/or proportionality review); Esau v Minister of Co-operative Governance and Traditional Affairs [2020] ZAWCHC 56 (lockdown regulations not ultra vires the Disaster Management Act and constitutionally compliant); Fair-Trade Independent Tobacco Association v President of the RSA [2020] ZAGPPHC 246 (ban on sale of tobacco products during lockdown not irrational).

91 See generally Gbadegesin, Pienaar and Marais (n 47); Swanson (n 47).

92 See Marius Pieterse, ‘Disentangling Illness, Crime and Morality: Towards a Rights-based Approach to HIV Prevention in Africa’ (2011) 11 African Human Rights Law Journal 57, 63–64 and authorities there cited.

93 See Lawrence Gostin and Jonathan Mann, ‘Towards the Development of a Human Rights Impact Assessment for the Formulation and Evaluation of Public Health Policies’ (1994) 1 Health and Human Rights 58; Denise Meyerson, ‘Why Courts should not Balance Rights against the Public Interest’ (2007) 31 Melbourne University Law Review 873; Pieterse, Can Rights Cure? (n 40) 151–58.

94 Section 36(1) determines: ‘The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including (a) the nature of the right; (b) the importance of the purpose of the limitation; (c) the nature and extent of the limitation; (d) the relation between the limitation and its purpose; and (e) less restrictive means to achieve the purpose.’ On the use of s 36 in a public health context, see Pieterse, Can Rights Cure? (n 40) 164–67.

95 For criticism, see Kevin Iles, ‘Limiting Socio-economic Rights: Beyond the Internal Limitations Clauses’ (2004) 20 South African Journal on Human Rights 448; Marius Pieterse, ‘Towards a Useful Role for Section 36 of the Constitution in Social Rights Cases? Residents of Bon Vista Mansions v Southern Metropolitan Local Council’ (2003) 120 South African Law Journal 41.

96 See Pieterse and Hassim (n 89) 244–45.

97 On the limitations of different conceptions of disease in public health thinking see Lawrence O Gostin, Scott Burris, and Zita Lazzarini, ‘The Law and the Public’s Health: A Study of Infectious Disease Law in the United States’ (1999) 99 Columbia Law Review 59, 69–77.

98 Young (n 1) 148. See also Pieterse, ‘The Right to the City’ (n 43) 180–87.

99 Gbadegesin, Pienaar, and Marais (n 47) 27–28.

100 See Liebenberg (n 59) 321; Gustav Muller, ‘On Considering Alternative Accommodation and the Rights and Needs of Vulnerable People’ (2014) 30 South African Journal on Human Rights 41, 42–46; Turok and Scheba (n 55) 501.

101 See Marius Pieterse, ‘Where is the Periphery Even? Capturing Urban Marginality in South African Human Rights Law’ (2019) 56(6) Urban Studies 1182–97.

102 Remarked in relation to the housing right by Turok and Scheba (n 55) 506.

103 Gbadegesin, Pienaar, and Marais (n 47) 30–31.

104 Partnership Framework Agreement (n 16) 2–3.

105 Ibid. 3.

106 Young (n 1) 145–46.

107 Ibid. 144.

108 Information on South Africa’s vaccine rollout strategy, which contemplates preferential access for those living ‘in congregate settings’ (though these are not defined), is available at <www.nicd.ac.za/covid-19-vaccine-rollout-strategy/faq> accessed 21 March 2021.