This study is motivated by the judiciary’s unwillingness to positively engage in the horizontal application of the right to adequate housing, thereby perpetuating a formalistic legal culture that has curtailed and continues to curtail the exponential effect of the constitution in an environment of finite resources.
The socio-economic position of the previously disadvantaged was undoubtedly a result of deliberate action by the apartheid era government and thus it can also be reversed or redressed through deliberate reforms. Furthermore, the post-apartheid government inherited a burden, with resource and capacity constraints to achieve the progressive realisation of the right to adequate housing.
Therefore the dissertation questions the predisposition of the judiciary to focus only on the state in achieving adequate housing. This not only maintains the socio-economic status quo but to a certain extent privileges negative liberty, in the process absolving those that have greatly benefited from apartheid rule from meeting their own obligations to right the wrongs of the past. The wide spectrum of societal challenges are an indirect manifestation of the chasm between the rights guaranteed by the constitution vis a vis the slow progress that has been made in their realisation, to which I approximate the knock on effect of a conservative legal culture. Relevant to this study are the recent unlawful land grabs, a microcosm of the delayed legal development on the right to adequate housing which has led to an undesired route to the satisfaction of the need being pursued. As a means to an end to homelessness, unlawful occupation of privately owned land in the urban peripheries has become the norm.
This dissertation investigates one of the reasons why we find ourselves in this situation and explores solutions.