Professor Gerard Whyte:

If I may, I will comment briefly on the South African experience. When we were drawing up our formula, we looked at the experience in South Africa. The first clause of our proposal is based on section 26 of the South African Constitution. The important point to make is that when it came to judicial enforcement of the right of access to adequate housing, the South African constitutional court used a standard of reasonableness which leaves considerable room to the legislative and executive powers in South Africa to protect or vindicate this particular right.

In one particular instance, the Grootboom case, the South African Supreme Court, using this standard, highlighted an omission from the then policy. It did not address the position of people who are in crisis situations as a result of eviction and who needed emergency accommodation. It stated that the absence of this provision made the existing policy unreasonable or failed to comply with the constitution. The ball was then passed back to the legislature and executive and within a period of four years both at state and provincial level they had adopted policies which addressed this problem. That is how we would see a constitutional guarantee of right of access to adequate housing operating in this jurisdiction as well.