The Previously Disadvantaged are the Currently Disadvantaged
The racial nature of poverty has not changed since the dawn of democracy with inequality along racial lines having increased. While South Africa managed to overthrow the immoral and inhumane system of apartheid, it has failed to replace it with a system that is any better. In fact, it has been argued that in certain ways the current system is worse than apartheid.
In attempting to justify my assertion that South Africa has not truly reached a post-apartheid state especially in relation to housing, my essay is grounded in and begins with a discussion on the first housing-related case to come before the Constitutional Court (“the Court”), Government of the Republic of South Africa v Grootboom and Others (“Grootboom”). In the second section I undertake an analysis of the neoliberal housing policies adopted by the South African government. I then attempt to bring to the fore the disastrous effect these policies have had on the realisation of the right to housing. The neoliberal housing policies in question as well as section 26 of the Constitution of the Republic of South Africa, 1996 (“the Constitution) will be critiqued from a Marxist as well as Critical Race Theory (CRT) perspective in section three. In section four, I apply a complex understanding of equality to the facts in Grootboom to determine if a different outcome were possible. In the fifth and final section I make a recommendation with regards to the use of structural interdicts.
- Government of the Republic of South Africa and Others v Grootboom and Others 2001 (1) SA 46 (CC)
(a) Background information
Mrs Irene Grootboom and a majority of the respondents were residents of an informal settlement, Wallacedene, in the Western Cape. The residents were living in intolerable conditions, had scant access to electricity and basic services and many were receiving little to no income.
Many of the Residents had applied for low-cost housing and had remained on waiting lists for up to seven years to no avail. With no change in sight, the Residents vacated Wallacedene and settled on private land on which low-cost housing was to be erected. The owner of the land was granted an eviction order against the Residents however; they remained on the land beyond the date on which they had to vacate. The Residents were subsequently, by force and in an insensitive manner, evicted from the privately-owned land. The Residents went on to set up temporary shelters at the Wallacedene sports field.
(b) The judgement
Section 26(2) of the Constitution places a positive obligation on the state in terms of housing. However, the obligation on the state is not an unqualified or absolute one, thus the focal point of the case was whether the state considered and provided for different situations and circumstances in the applicable legislation. The Court noted that state housing policy needs to cater for and pay special attention to the needs of those who are unable to afford housing on their own.
In determining the adequacy of the housing policy, the main criterion invoked by the Court was that of reasonableness. Taking into consideration that no provision was made for people living in deplorable conditions and thus those in immediate need of suitable alternative accommodation, the Court declared there to be a duty on the state to provide for such events and ordered the state to meet its obligations.
(c) Realities after the decision
Mrs Grootboom remained on the housing waiting list for the eight-year period between the hearing of the case and her death in 2008, without her dream of adequate and proper housing having been realised.  The sad reality is that such occurrences are far from being unique.
- Neoliberalism and South Africa’s housing policies
How is it that the government allows for situations such as the one the Wallacedene residents found themselves in, not only to emerge but to continue? The answer lies squarely in the adoption of neoliberal housing policies.
(a) About neoliberalism
Liberalism warranted the existence of the free market. A core idea of liberalism, the foundation upon which neoliberalism is built, is that the nature of society should be the product of process. Neoliberalism goes further by asserting that all social life, not just the production of goods and services, will depend upon and be determined by the markets forces of supply and demand. The ultimate goal of neoliberalism is a society in which all actions are market transactions that are carried out in competition with each other. Neoliberalism advocates for a reduction in government spending in key areas, which noticeably affect mostly the poor such as housing, this is in order to facilitate a reduced role for the government thus allowing for the seamless operation of the economy.
All aspects of life are commodified, verifying Treanor’s assertion that neoliberalism is not simply an economic structure but rather a philosophy with all aspects of life viewed through the market lens. For Bond, neoliberalism meant sticking to the principles of the free market economy coupled with a reductionist view of democracy. Succinctly put, neoliberalism is an extreme commitment to the superiority and ability of the free market to, without any intervention, be able to regulate itself and cure economic and social problems.
(b) Neoliberalism in South Africa and its presence in housing policy
The apartheid government left the incoming Government of National Unity with mountains of debt and chaotic and disorganised housing policies leading to conflict over resource allocation. If the incoming government were to commit itself to socialist housing policies without the prospect of any economic return, further strain would be placed on the budget. It is in these circumstances that the neoliberal policies were adopted.
The Reconstruction and Development Programme (“RDP”) White Paper
The RDP White Paper, adopted in 1994, was an ambitious document with a socialist essence that aimed to provide for the basic needs of the population (housing, education and healthcare) yet it retained strong neoliberal elements. Fiscal and monetary discipline and the creation of an economic environment that was conducive to economic growth formed part of the strategies to finance the ascertainment of the RDP goals. The RDP White Paper called on citizens to play their part towards the realisation of the policy objectives, this served to exclude a majority of the population that lived in abject poverty.
The White Paper on Housing (the White Paper)
The White Paper on Housing established the framework for the national housing policy going forward. It was acknowledged that the government would be unable to provide housing on its own and so private sector investment would be needed. Accordingly emphasis was placed on the creation of a certain and enabling economic environment. Further the delivery of housing was made to be dependent on an economic framework that was based on increased rates of economic growth and a reduction in government spending.
Growth, Employment and Redistribution – A macroeconomic strategy (GEAR)
The main focus of the market sensitive GEAR strategy was, unashamedly, the transformation of the economy. The core elements of GEAR were all neoliberal: budget reform, monetary policy that contains inflation and a continued emphasis on trade. Again the realisation of socioeconomic rights such as housing was of subsidiary importance.
(c) Discussion of the neoliberal housing policies
From the earliest moments of South Africa’s democracy, as is evidenced in the RDP White Paper, the restructuring and stabilisation of the economy was a condition precedent for addressing the issue of housing. The neoliberal agenda in the RDP White Paper remains plain for all too see. The role of the market economy is emphasised and given preference and only once the economy had been firmly established and stabilised, will work towards the realisation of the goals well and truly start. What is further evident is the reliance on the economy to facilitate the realisation of the promises relating to matters such as housing.
The neoliberal agenda persisted and made its way to the Housing White Paper. The Housing White Paper felt the need to ensure favourable economic conditions in order to facilitate private sector investment in housing.
According to Narsiah, “the ANC’s neoliberal metamorphosis was complete” once the GEAR was adopted in 1996. The adoption of the GEAR strategy saw a continuation of unemployment, wage inequalities and poverty, thus GEAR failed to address the socioeconomic challenges faced by the citizens of South Africa.
From a neoliberal perspective, social life is to be determined by the market forces of supply and demand. The adoption of neoliberal housing policies has stifled the prospects of the achievement of housing for all and continues to do so, as is evident from current housing figures. It is well known that there was and still is a high demand for housing however, the rate of supply is sluggish.
Of what use would it be to look to the private sector for funding? It is inconceivable that the private sector would take it upon themselves or even heed the call to provide housing without any direct financial benefits. Further, with neoliberalism being so entrenched in South African housing policy and one of the focal points of neoliberalism being cuts in government spending, those in need of housing are effectively doomed to remain in their current perilous situations.
A further characteristic of neoliberalism holds all actions, in whatever sector they occur, to be market transactions that are carried out in competition with each other. Housing, an area of significant and vital importance and something that could go a long way in restoring the dignity of those who were stripped of their it during the horrific days of apartheid, was made to compete with the emergence of the market economy that served and continues to serve the interests of the elite capitalists.
No denial is being made that the financing of housing would be a contentious issue given the then dire state of the economy however; the problem is that the government ran with the idea of restructuring the economy without returning to its promise of providing housing for those in need. Jeremy Cronin wrote that socialists will accept the notion of “fiscal discipline” if it meant that public resources are used effectively and to meet the needs of the citizens. The unfortunate and sad reality is that the delivery of housing has had an imperfect impact on the alleviation of poverty.
Housing programmes must be able to facilitate the realisation of the right to housing and such policies “must be reasonable both in their conception and implementation.” Yet the very housing policies exclude the majority of the population that they are meant to serve and instead promote and sustain the interests of the capitalist economy.
(d) The presence of neoliberalism in section 26 of the South African Constitution as is evidenced in Grootboom
In as much as the housing policy in Grootboom was held to be unreasonable for failing to cater for those in urgent need, the unreasonableness of the housing policies flow from their neoliberal roots which can be traced back to the Constitution. The neoliberal influence in the Constitution is visible when looking at the imposition of three conditions that limit the state’s duties in respect of housing; the state is required to take ‘reasonable legislative and other measures, within its available resources’ in order to facilitate ‘the progressive realisation of this right’.
The Court realistically points out that the state cannot do more to achieve the realisation of the right to housing than available resources permit. However, the fact that millions still live in apartheid-era housing conditions and that their circumstances continue to be perpetuated, begs the question of whether the state has made effective use of the available resources. Or has the commodification of basic rights such as housing in accordance with the state’s neoliberal tendencies lead to a situation where the downtrodden are left to fend for themselves, I submit that this is the direction in which South Africa is heading if we are not already there.
In Grootboom the Court notes that the use of the words “progressive realisation” in section 26(2) of the Constitution is indicative of the fact that the right to housing cannot immediately be afforded to all. Accordingly, hurdles such as costs that impede the realisation of the right to housing should be lowered over time. Given the state’s affinity towards neoliberal policies and the current housing statistics, it is clear that significant strides have not been made in addressing the issue of housing.
- A Critique of the adoption of neoliberal housing policies
The South African government’s adoption of neoliberal housing polices has seen inequality and poverty being further entrenched while the capitalist agenda took precedence. What follows is a critique of the adoption of neoliberal housing policies and the effects thereof according to the Marxist as well as the critical race schools of thought.
According to Marx, society is engineered along class lines; there exists the ruling, powerful and rich bourgeoisie class and the poor, subordinated proletariat class. Fundamental to the understanding of the role of law according to Marxism, are the concepts of the “base” and the “superstructure”. Located in the base are the forces of production as well as the relations of production. The superstructure is comprised of numerous institutions such as law, politics and religion.
In as much as the economic base determines the superstructure, the institutions, such as law, in the superstructure work to legitimise and reproduce the exploitative nature of the relations of production in the base by performing the function of ideology. In performing the function of ideology, law obstructs visibility of the unequal and unfair nature of social relations in the base while serving to continue and perpetuate the interests of the ruling class and the brutal capitalist economy. Parallel to protecting and advancing the interests of the ruling class, law served to undermine and entrench the subordination of the poor. Further law works to defuse the potential class conflict that may arise as a result of the exploitative nature of the relations of production.
South Africa’s current reality brought about by the adoption of neoliberal policies verifies Marx’ assertion that the economy is of fundamental importance and the foundation on which society is built. The adoption of the neoliberal housing polices, which all placed emphasis on the growth of the emerging economy, serves as evidence of the law being used to further the interests of the capitalist elite. Law also performs the function of ideology in the South African context by providing for housing rights yet none of the state’s practices are, in effect, geared toward the realisation of this right.
In line with Marxist thought, Bond points out that parallel to the process of wealth production is the production of poverty; as the capitalist economy operates, contrary to the view of economists, equilibrium is not reached rather the inequalities present in society deepen. Such is South Africa’s sad reality.
(b) Critical Race Theory (CRT)
All critical theories emerge from Marxism and are based on a critique of liberalism and the nature of law as being neither clear nor impartial nor unambiguous. CRT is focused on racism and the way it has been normalised by law, ways in which it has been ingrained into all aspects of life such that white supremacy and black inferiority are made to seem as the natural order.
Critical race theorists are of the view that it is impossible for the law to be written and enacted from a neutral point of view, rather the law is enacted from the perspective of the white capitalists and in order to further their own agendas. Critical race theorists assert that the marginalisation of black people into lives of poverty, misery and inequality is facilitated by the law and the relevant legal institutions. That the law plays a role in facilitating the subordination and marginalisation of a particular racial group, cannot be more visible than in South Africa considering how the apartheid government used the law and legal institutions to oppress and violate the dignity of black people.
That South Africa’s current housing reality has been shaped by race is indisputable, hence the CRT rejection of the liberal and colour-blind approach to politics that aims to resolve racial inequalities is most fitting. Considering the averment that “neutrality always normalises the status quo”, it is unfortunate that the South African government has chosen to go the neoliberal route which turns a blind eye to the historical racial segregation that characterised housing in the past.
The most obvious argument that would be brought up is the fact that South Africa is being run by a largely black government. To respond to the argument? It would not be difficult to arrive at the second answer given the white capitalism played in the determination of current policies.
- Would a complex understanding of equality have resulted in a different outcome in Grootboom?
(a) About complex equality
In as much as we are attempting to build a society that is free of past inequalities and injustices, we have to be cognisant of those very divisions and invoke them in order to build a just and equal society thus complex equality is sensitive to the life experiences of those concerned as well as the intersectional nature of poverty. There are three values that are inextricably linked and contribute to a complex understanding of equality – equality, dignity and democracy.
(b) The complex equality test and outcome
There is no set complex equality test; what is required is equality that is pliable and that can be applied to different situations thus complex equality is very context specific. The following factors are worthy of note, consideration of the interplay between the kind of claim, the position in society of the claimants, their life experiences and the historical and social realities of the group of people.
In attempting to determine whether a complex understanding of equality would have warranted a different and more meaningful outcome in Grootboom, the following factors are to be considered, the respondents were from a historically disadvantaged racial group, they had lived in deplorable conditions for most of their lives, they were not a very economically active group (they had no means to be), they were claiming their basic human right to housing and had remained on a housing waiting list for a number of years.
It light of the above, I submit that had the Court in Grootboom applied a test for complex equality, the respondents in the matter would have had some sense of dignity being restored and would have been the beneficiaries of a more meaningful outcome than a declaratory order that directs the state to fulfil its obligations.
A complex understanding or equality would have seen the Court not only acknowledge the above mentioned factors but also invoke them in ordering the state to fulfil its duties and provide permanent housing and not only highlight the state’s duty to provide housing in emergency situations.
- Further recommendations
(c) Structural interdicts
Dugard is on the opinion and rightfully so, that the South African courts have not done all that they can, within the legal framework, to lay the foundation for meaningful change in the lives of those who are the worst off. One of the ways in which courts can play a greater role in ensuring that court orders are carried out effectively is through the use of structural interdicts. Structural interdicts direct the government, to remedy the conduct (or lack thereof) in question under the supervision of the court. The government will be required to notify the court of steps that have been taken and steps that are to be taken in order to comply with the court order.
The use of a structural interdict may have been appropriate in Grootboom to ensure a meaningful outcome for the respondents, instead of Mrs Grootboom passing away 8 years on from the court case without a solid roof over her head.
Although section 26 of the Constitution affords the right to housing to all, the adoption of neoliberal policies effectively negates the constitutional promise of a better life for all. I aimed to bring this point across firstly by a discussion of the neoliberal housing policies that have all played a role in ensuring black people continue to live in ghastly conditions with little to no protection from the elements. I went on to critique the neoliberal housing policies using Marxist as well as critical races theories. Inequality comes in numerous forms; one of the forms of inequality sees a failure to appreciate the equal worth and dignity of certain sectors of society, which is what lead me to undertake a complex equality analysis that would have resulted in a more meaningful outcome for the Grootboom respondents.  I finally suggested the use of structural interdicts to ensure government’s compliance with court orders.
 Jackie Dugard ‘Courts and structural poverty in South Africa’ in D Maldonado (ed) Constitutionalism in the Global South: The Activist Tribunals of India, South Africa, and Colombia (2013) 293 at 299.
 Sampie Terreblanche, Lost in Transformation 1 ed 124.
 Government of the Republic of South Africa and Others v Grootboom and Others 2001 (1) SA 46 (CC).
 Ibid para 7. The total number of respondents in the matter amounted to 900, comprising 510 children and 390 adults, see footnote two of the judgement.
 Ibid para 8.
 Ibid para 9.
 Ibid para 10.
 Ibid para 11.
 Section 26(2) of the Constitution, “the state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right.”
 Grootboom supra note 4 para 38.
 Ibid para 36.
 Ibid para 33.
 Ibid para 96.
 Francis Hweshe, ‘Heroine dies while still waiting’ last accessed from http://www.iol.co.za/news/south-africa/heroine-dies-while-still-waiting-1.410968 on 14 September 2015.
 Paul Treanor, ‘Neoliberalism: origins, theory, definition’, last accessed from http://web.inter.nl.net/users/Paul.Treanor/neoliberalism.html on 21 September 2015.
 Treanor op cit note 18.
 Patrick Bond Elite Transition 2 ed (2005) at 1 last accessed from http://ccs.ukzn.ac.za/files/Bond%20Elite%20Transition%202ndEdn.pdf on 14 September 2015.
 Andrew Heywood Political Ideologies An Introduction 3 ed (2003) at 45 last accessed from https://muhammadgozyali.files.wordpress.com/2012/05/politics-ideologies.pdf on 28 July 2015. Longview Institute Market Fundamentalism last accessed from http://www.longviewinstitute.org/projects/marketfundamentalism/marketfundamentalism/ on 24 October 2015.
 Sagie Nasiah ‘Neoliberalism and privatisation in South Africa’ (2002) 57 Geo Journal 3 at 4. Bokang Ramashamole Sustainable Housing Development in Post-Apartheid South Africa (published MA thesis, University of the Witwatersrand 2011) at 26. Bond op cit at 94.
 Nasiah op cit at 4.
 White Paper on Reconstruction and Development (GN 353 in GG 16085 of 23 November 1994) at para 3.3.1.
 RDP White Paper supra at para 4.4.2.
 Ramashamole op cit at 32.
 Department of Housing ‘White Paper, A new Housing Policy and Strategy for South Africa’ last accessed from http://www.dhs.gov.za/sites/default/files/legislation/Policies_Housing_White_Paper.pdf on 27 October 2015 at para 4.5.2.
 Housing White Paper supra at preamble.
 Housing White Paper supra at para 2.2.9.
 Department of Finance ‘Growth, Employment And Redistribution A Macroeconomic Strategy’ last accessed from http://www.treasury.gov.za/publications/other/gear/chapters.pdf on 27 October 2015 at para 1.1. Sibongile Khoza (ed) Socio-Economic Rights in South Africa (2007) last accessed from http://repository.uwc.ac.za/xmlui/bitstream/handle/10566/254/KhozaSocio-EconomicRights2007.pdf?sequence=1 on 25 October 2015 at 134.
 GEAR supra at para 1.4.
 RDP White Paper supra at para 10.
 Housing White Paper supra preamble.
 Narsiah op cit at 6.
 South African History Online ‘South Africa’s Key economic policy changes since 1994-2013’ last accessed from http://www.sahistory.org.za/article/south-africa%E2%80%99s-key-economic-policies-changes-1994-2013 on 26 October 2015. Tshepo Madlingozi ‘Post-Apartheid Social Movements and the Quest for the Elusive ‘New’ South Africa’ (2007) 34 Journal of Law and Society 77 at 80.
 Note 20 above.
 The pre-democracy urban housing backlog figure was 1,5 million houses. By 2011, the number of shacks and informal housing structures stood at 1,9 million - Kate Wilkinson ‘Factsheet: the housing situation in South Africa’ last accessed from https://africacheck.org/factsheets/factsheet-the-housing-situation-in-south-africa/ on 27 October 2015.
 The rate of housing delivery sits at approximately 140 000 houses a year, however the rate of demand is increasing at a greater rate than the delivery of houses due to the growth in population numbers.- Ibid . Robert Brand & Mike Cohen ‘Where the hear is: South Africa’s post-apartheid housing failure” last accessed from http://mg.co.za/article/2013-08-02-where-the-heart-is-south-africas-post-apartheid-housing-failure on 24 October 2015.
 Note 21 above.
 Jeremy Cronin ‘Challenging the neo-liberal agenda in South Africa’ last accessed from https://www.nelsonmandela.org/omalley/index.php/site/q/03lv02424/04lv02730/05lv03005/06lv03006/07lv03096/08lv03102.htm on 25 October 2015.
 Socio Economic Rights Institute ‘A resource Guide to Housing in South Africa 1994-2010’ last accessed from http://www.seri-sa.org/images/stories/SERI_Housing_Resource_Guide_Feb11.pdf on 26 October 2015 at 61.
 Grootboom supra note 4 paras 41-42.
 Section 26 of the Constitution.
 Grootboom supra note 4 para 46.
 Grootboom supra note 4 para 45.
 Terreblanche op cit at ix.
 Heywood op cit at 7.
 Forces of production is defined as “the labour power, the materials, and the instruments and tools used in the process of production. Relations of production is defined as “class relationships or relationships of power and controls.”- Denise Meyerson Jurisprudence 1ed (2013) at 224-225.
 Meyerson op cit at 225.
 Meyerson op cit at 225. The Marxist use of the term ideology differs from the everyday meaning attributed to the term – see Heywood op cit at 6.
 Veitch et al op cit at 217, 219 and 220.
 Bond op cit at 4.
 Raymond Wacks Understanding Jurisprudence : An Introduction to Legal Theory 3 ed (2012) at 281.
 Derrick Bell ‘Who’s afraid of CRT?’ (1995) University of Illinois Law Review 893 at 898.
Joel M Modiri ‘The Colour of law, power and knowledge: introducing CRT in (post-) Apartheid South Africa (2012) 28 SAJHR 405 at 406.
 Bell op cit at 901.
 Modiri op cit at 415.
 Ibid. At paragraph 6 of Grootboom, the Court acknowledged that colonialism and apartheid were responsible for the current state of housing being fragmented along racial lines.
 Modiri op cit at 416.
 For housing specifically see the Urban Foundation – Bond op cit at 95.
 Henk Botha ‘Equality, Plurality and Structural Power’ (2009) 25 SAJHR 1 at 1.
 Ibid at 7-8.
 Botha op cit at 8.
 Botha op cit at 10 and 30. Note that some criteria mentioned, Botha uses in distinguishing between affirmative and transformative strategies however, they would be equally as applicable in a complex equality enquiry.
 Grootboom supra note 4 para 96.
 Jackie Dugard ‘Courts and the poor in South Africa: A critique of systemic judicial failures to advance transformative justice’ (2009) 24 SAJHR 214 at 215.
 Dugard note 79 above at 236.
 Iain Currie and Johan de Waal The Bill of Rights Handbook 4 ed (2005) at 217
 Currie and de Waal op cit at 218.
 Madlingozi op cit at 80
 Botha op cit at 16.