The Bill of Rights can totally be understood as a part of the constitution and as a significant element of the constitutions project of transforming South African society and the countries political and legal systems. The Bill of Rights can be applied directly, and they can also be applied indirectly. With the indirect application, the Bill of Rights does not override ordinary law or generate its own remedies. Rather the Bill of Rights respects the rules and remedies of ordinary law but demands furtherance of its values mediated through the operation of ordinary law .
The indirect application overrides ordinary law and any conduct that is inconsistent with it and, to the extent that ordinary legal remedies are inadequate or do not give proper effect to the fundamental rights, the Bill of Rights generates its own remedies.With the scenario at hand, one can say that the Shack dwellers rights were violated. The violated rights include section 9 of the constitution which is the Equality right, Section 10( human dignity), Section 24( Environmental right), section 26( the right to housing) , Section 27 ( the right to health care), section 28(1)(c)(The right for every child to basic nutrition, shelter, basic health care services and social services), and Section 33( right to just administrative action), and the right to participate in the social, economic and cultural activities. The Shack dwellers equality right were violated as they were not treated equally as any other human beings, they ended up not having the houses and had to sleep in the open, they were not equally protected as everyone else by the law and they also could not enjoy their rights and freedoms fully and equal as everyone else out there. Their right to human dignity was violated as their dignities were not respected, they were disrespected, and they had their properties demolished and the building properties were burnt. When their homes were demolished, they were then left with the inadequate houses and the houses were also demolished without a court order, which violated their right to housing. They were left homeless and had to sleep in the open, the environment that they were exposed to was no longer good for them, it was harmful to their well-beings and it was no longer protected, which violated their right to a safe and healthy environment.
The violation of their safe and healthy environment linked to the violation of their health care, since they were exposed to the unsafe and unhealthy environment, their health care was affected as they could get ill and some of them could die if possible. When they attempted to engage with the eThekwini Municipality to obtain information they failed. They were not given written reasons as to why they were affected by the administrative actions, which violated their section 33(2) the right to just administrative action. They even attempted participating in the housing development, but they failed, which violated their right to participate in the social, economical and cultural services. The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of the right to housing, right to health care, food, water and social security, as no one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances and no legislation may permit arbitrary evictions. The South African Constitution guarantees and protects most internationally recognized human rights, and places upon the state an obligation to “respect, protect, promote and fulfil the rights in the Bill of Rights.” As these administrative rights apply to “everyone,” the South African state must respect these rights in the administration of its migration control and asylum determination systems.In the Grootboom’s case, it was noted that the Constitution obliges the state to act positively to ameliorate the plight of the hundreds of thousands of people living in deplorable conditions throughout the country. The court held further that the state was obliged to take positive action to meet the needs of those living in extreme conditions of poverty, homelessness or intolerable housing.
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The interconnectedness of the rights and the Constitution as a whole had to be taken into account in interpreting the socio-economic rights and, in particular, in determining whether the state had met its obligations in terms of them. It must provide access to housing, health-care, sufficient food and water, and social security to those unable to support themselves and their dependants. The Court stressed that all the rights in the Bill of Rights are inter-related and mutually supporting. Realising socio-economic rights enables people to enjoy the other rights in the Bill of Rights and is the key to the advancement of race and gender equality and the evolution of a society in which men and women are equally able to achieve their full potential. Human dignity, freedom and equality are denied to those without food, clothing or shelter. The right of access to adequate housing can thus not be seen in isolation. The state must also foster conditions that enable citizens to gain access to land on an equitable basis. But the Constitution recognises that this is an extremely difficult task in the prevailing conditions and does not oblige the state to go beyond its available resources or to realise these rights immediately.The court held that the national government bore the general duty regarding guaranteeing that the state conformed to the commitments forced on it by segment 26.
The land program embraced by the metropolitan chamber, on its substance, met the commitment of the state towards people in the situation of the respondents to the degree that the national lodging project didn’t. The presence of the program was, nonetheless, just the beginning stage. Viable execution of it required in any event enough budgetary help by national government. As at the date of the dispatch of the application, the state had not been gathering the commitment forced on it by section 26 inside the significant territory. Specifically, the projects embraced by the state missed the mark regarding the segment’s necessities, in that no arrangement was made for alleviation to classifications of individuals in urgent need. The Constitution obliged the state to act emphatically to improve these conditions. This commitment was to devise and actualize a cognizant and co-ordinated program, intended to give access to lodging, human services, adequate nourishment and water and government disability to those incapable to help themselves and their dependants. The State additionally needed to cultivate conditions to empower residents to access arrive on an impartial premise. Those in need had a comparing ideal to request this be finished. Be that as it may, section 26 (and furthermore area 28) didn’t qualifies the respondents for case safe house or lodging promptly on interest. Nevertheless, the state must give effect to these rights and, in appropriate circumstances, the courts can and must enforce these obligations. The question is always whether the measures taken by the state to realise the rights afforded by section 26 are reasonable.
To be reasonable, measures cannot leave out of account the degree and extent of the denial of the right they endeavour to realise. Those whose needs are the most urgent and whose ability to enjoy all rights is most in peril must not be ignored. If the measures, though statistically successful, fail to make provision for responding to the needs of those most desperate, they may not pass the test of reasonableness. In Grootboom case, the respondents based their claim on two constitutional provisions, First was on Section 26 of the Constitution which provides that everyone has the right of access to adequate housing. Section 26(2) imposes an obligation upon the state to take reasonable legislative and other measures to ensure the progressive realisation of this right within its available resources. The second basis for their claim was section 28(1)(c) of the Constitution which provides that children have the right to shelter. When comparing the facts of the Grootboom case to the facts in the given scenario, they are slightly similar. In the given scenario the Shack dwellers were also stranded, they had no shelters as theirs were demolished, and their children also had no shelters and their parents could not provide for them, and so they all had to sleep in the open.
In the Grootboom case the defendants applied for an order directing the appellants forthwith to provide adequate basic temporary shelter or housing to the respondents and their children pending their obtaining permanent accommodation, or basic nutrition, shelter, healthcare and social services to the respondents who are children. For the first part of their application about housing, the High Court concluded that “appellants are faced with a massive shortage in available housing and an extremely constrained budget. Furthermore, in terms of the pressing demands and scarce resources appellants had implemented a housing programme to maximise available resources to redress the housing shortage. For this reason, it could not be said that appellants had not taken reasonable legislative and other measures within its available resources to achieve the progressive realisation of the right to have access to adequate housing”. The courts concluded for the second part of their application that “an order which enforces a child’s right to shelter should take account of the need of the child to be accompanied by his or her parent. Such an approach would be in accordance with the spirit and purport of section 28.” As a result, the courts also ordered that It is declared, in terms of section 28 of the Constitution that; the applicant children are entitled to be provided with shelter by the appropriate organ or department of state.
The Court stressed that the judgment should not be understood as approving any practice of land invasion for the purpose of coercing a state structure into providing housing on a preferential basis to those who participate in any exercise of this kind. It then issued a declaratory order which required the state to devise and implement a programme that included measures to provide relief for those desperate people who had not been catered for in the state programme applicable in the Cape Metropolitan area before the Accelerated Managed Land Settlement Programme had been introduced. The Court also emphasised that neither section 26 nor section 28(1)(c) gave any of the respondents the right to claim shelter immediately. However, the programme in force in the area of the Cape Metropolitan Council at the time the application was launched fell short of the obligations imposed upon the state by section 26. Although the overall housing programme implemented by the State since 1994 had resulted in a significant number of homes being built, it failed to provide for any form of temporary relief to those in desperate need, with no roof over their heads, or living in crisis conditions. Their immediate need could be met by relief short of housing which fulfils the requisite standards of durability, habitability and stability.
The Shack dwellers could also apply for the adequate basic temporary housing for them and their families, as even though they may be regarded as unlawful occupiers, they have rights in terms of the Unlawful Occupation of, Land Act (PIE) of 1998. This would be in claiming for their rights that had been violated. Hence, the constitution required the state to act and meet the obligation imposed upon it to devise and implement a comprehensive and coordinated program to realise progressively the right of access to adequate housing, which includes the obligation to devise, fund, implement and supervise measures to provide relief to those in desperate need within its available resources.
