since July 2010

Authors | Paula Proudlock, Katharine Hall ¹

Children’s Right to Water and Sanitation

Children’s Right to Housing and Shelter

Section 26 of the South African Bill of Rights provides that everyone has the right to have access to adequate housing. In addition to providing this right for everyone, children are afforded extra protection in Section 28 of the Constitution, which provides that “every child has the right to shelter”.

In South Africa, the right of access to adequate housing is modeled on the right to housing in Article 11 (1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR), which provides that the State has a duty to recognise the right of everyone to adequate housing. The International Committee on Economic, Social and Cultural Rights (CECSR) has issued a general comment on the meaning of ‘adequate’ housing. It has identified seven key elements which need to be assessed to measure whether housing is ’adequate’:

(1) Security of tenure
Families need to have the peace of mind that their homes are secure and cannot be taken away from them without a legal process that ensures that their rights are protected. Laws that protect against unfair evictions must therefore be passed and enforced. In South Africa, there are a range of policies and laws providing for this protection. The most-frequently used is the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act of 1998, better known as “PIE”.

(2) Access to services
The concept of ‘adequate housing’ includes access to safe water, sanitation, safe energy sources (e.g. electricity connection in the house), and refuse removal. Click on the links above to see how South Africa is measuring up regarding access to these services.

(3) Access to affordable housing
People must be able to afford to buy, build or rent a house. The State needs to design a range of policies, laws and programmes aimed at ensuring that housing is affordable to all people. This includes providing financial assistance to people who do not have adequate income, and passing and enforcing laws aimed at preventing high rentals being charged. The South African government provides access to low-cost housing through the Housing Subsidy Scheme of 1995. (For more information about the Housing Subsidy Scheme and housing delivery in South Africa, see Hall 2006, listed under References on the right).

(4) Habitable housing
Houses must have enough space to prevent overcrowding. They must also be built in a way that ensures they are physically safe and protect the inhabitants against the weather, especially the rain and cold. The type of housing that people are living in provides an indication as to whether housing in South Africa is ‘habitable’. Formal brick or cement-block houses that meet the standards set by the State for quality housing can be considered ‘habitable housing’ if they meet the other requirements for habitability, whereas informal housing, such as corrugated-iron shacks or plastic shelters, would generally not be considered ‘habitable housing’.

(5) Accessible housing
Housing must be accessible to all people and this means that housing policies, laws and programmes must make special provision for vulnerable groups such as the homeless, people with disabilities, people living with HIV, women, children, the aged, and orphans without families. In Government of the RSA vs Grootboom and others (2001), the Constitutional Court found that the South African policies and laws did not provide adequately for vulnerable groups, specifically the homeless, and ordered the State to draft a policy to provide for this group’s needs.

(6) Location
Houses must be situated in areas close to work opportunities, clinics, police stations, schools and child-care facilities. In South Africa, where there tends to be less work opportunities and basic services in rural areas, measuring the proportion of children living in rural areas versus urban areas can give an indication of whether or not children are living in houses that are situated in areas that enable access to such opportunities and facilities. Sites that are polluted or that are hazardous to people’s well-being are not suitable for housing. These include sites near to asbestos and coal mines, rubbish dumps and rivers, which can cause flooding.

(7) Culturally adequate
Houses should reflect people’s cultural identity. If the State builds houses that are not culturally appropriate, it can distort family structure and child-caring practices, which can have a negative effect on children. However, the requirement of cultural adequacy is difficult to put into practice, partly because ‘culture’ is hard to pin down, and also because the practicalities of catering for historically large and mobile households cannot be addressed by a housing subsidy designed to provide a small starter home, built to minimum standards. The housing subsidy is envisaged as a flexible instrument, which allows for beneficiaries to participate in the design and construction of their own homes. However, this flexibility is difficult to implement, and most subsidy houses conform to the standard 36m2 cement-block specifications.

The State is obliged to meet all the requirements outlined above if people are unable to house themselves adequately. However, it does not have to do so immediately. Both Section 26 (1) in the South African Bill of Rights and Article 11 (1) in the ICESCR are qualified by conditions which require the State to take steps to realise the right progressively within its available resources. These conditions mean that the State does not have to provide everyone with a house immediately but must take reasonable steps to ensure that, over time, everyone can enjoy their right to adequate housing.

The South African government’s plan to realise the right to adequate housing comprises a number of policies, laws and programmes – most importantly, the White Paper of 1995 and the national Housing Subsidy Scheme. In the Grootboom case, the Court found that the plan was good in most respects, especially its long-term vision, but that it did not provide for the needs of the most vulnerable, such as people without houses. Thousands of people had already been waiting on the housing allocation queue for over 10 years and the State did not present a plan that had the capacity to provide for their basic housing needs in the short to medium term. The Court found this unreasonable and ordered the State to draft a policy to provide for the short-term needs of people in need of housing.

Children’s right to shelter in Section 28 (1) (c) of the Bill of Rights is not subject to the condition of progressive realisation within available resources. This has been interpreted to mean that the State has a priority obligation to provide children with shelter. The Courts have held that it is first the duty of families to provide shelter for their children. However, the State has a duty to assist families to do so. The Housing Subsidy Scheme is an example of a state programme aimed at assisting families to house their children (although it is not conceptualised in this way).

In situations where children are without shelter despite State assistance, then the State needs to take additional action by:

(a) Giving priority to that family through accelerating and facilitating their speedy access to the State’s assistance programmes; or

(b) Providing shelter directly to the child only, in a child and youth-care facility.

The best interests principle dictates that children should live in families. Therefore, housing children in alternative care facilities should be a last resort. Link (sample)

The United Nations Convention on the Rights of the Child (CRC) does not include a right to housing for children but it does provide in Article 27 that children have a right to an adequate standard of living. While recognising that the parents and family bear primary responsibility for ensuring that this right is realised for their children, the CRC places a duty on the State to assist parents and, in cases of need, to provide material assistance and support programmes particularly with regard to nutrition, clothing and housing. When the family is unable to provide shelter to the child, Article 20 provides that the State bears the responsibility to do so, with due consideration for the best interests principle.

To realise children’s housing rights, the State should therefore ensure that it assists families to provide housing for their children (and the household in general), provides direct and accelerated material housing assistance to poverty-stricken families and families at risk to prevent children from being removed, and provides and funds alternative care options for children who cannot live with their families.

¹ Children's Institute