The reasonableness approach of the South African Constitutional Court - making the constitutional right of access to housing "real" or effectively meaningless?
| dc.contributor.advisor | De Vos, Pierre | |
| dc.contributor.author | Lange, Pia Annika | |
| dc.date.accessioned | 2019-02-22T10:47:44Z | |
| dc.date.available | 2019-02-22T10:47:44Z | |
| dc.date.issued | 2018 | |
| dc.date.updated | 2019-02-21T13:16:05Z | |
| dc.description.abstract | The South African Constitution explicitly guarantees the right of access to housing (section 26 of the Constitution). To consider whether the state has fulfilled its positive obligations to take appropriate steps to realise the right of access to housing within its available resources, the Constitutional Court – based on the text of the provision 26(2) of the Constitution – uses the test of reasonableness. Contrary to the minimum core concept, which was developed through the General Comments of the United Nations Committee on Economic, Social and Cultural Rights and which is used to measure state actions in regard of the right to housing under Article 11 para 1 of the ICESCR, the reasonableness approach shifts the emphasis from the reasonableness of the solution to the reasonableness of the steps taken, moving away from a substantive right towards administrative oversight, which makes – so the assumption goes – the constitutional right of access to housing effectively meaningless. However, in this dissertation it is argued that it is not the reasonableness approach per se which hinders the implementation of the right of access to housing but rather the choice of remedy and the lack of (individual) access to the Court. In doing so, this study will show that the Court by using the reasonableness approach is acting in accordance with the wording and the transformative character of the South African Constitution and its own institutional role within the constitutional framework based on the separation of powers. Subsequently the study demonstrates that the effectiveness of the right of access to housing depends on the remedy granted by the Court and the possibility of access to the Court rather than the approach reverted to by the Court. Against this backdrop, the dissertation scrutinises what can be done to expand access to justice for claims flowing from the right of access to housing and thus to facilitate the right. | |
| dc.identifier.apacitation | Lange, P. A. (2018). <i>The reasonableness approach of the South African Constitutional Court - making the constitutional right of access to housing "real" or effectively meaningless?</i>. (). University of Cape Town ,Faculty of Law ,Department of Public Law. Retrieved from http://hdl.handle.net/11427/29738 | en_ZA |
| dc.identifier.chicagocitation | Lange, Pia Annika. <i>"The reasonableness approach of the South African Constitutional Court - making the constitutional right of access to housing "real" or effectively meaningless?."</i> ., University of Cape Town ,Faculty of Law ,Department of Public Law, 2018. http://hdl.handle.net/11427/29738 | en_ZA |
| dc.identifier.citation | Lange, P. 2018. The reasonableness approach of the South African Constitutional Court - making the constitutional right of access to housing "real" or effectively meaningless?. University of Cape Town. | en_ZA |
| dc.identifier.ris | TY - Thesis / Dissertation AU - Lange, Pia Annika AB - The South African Constitution explicitly guarantees the right of access to housing (section 26 of the Constitution). To consider whether the state has fulfilled its positive obligations to take appropriate steps to realise the right of access to housing within its available resources, the Constitutional Court – based on the text of the provision 26(2) of the Constitution – uses the test of reasonableness. Contrary to the minimum core concept, which was developed through the General Comments of the United Nations Committee on Economic, Social and Cultural Rights and which is used to measure state actions in regard of the right to housing under Article 11 para 1 of the ICESCR, the reasonableness approach shifts the emphasis from the reasonableness of the solution to the reasonableness of the steps taken, moving away from a substantive right towards administrative oversight, which makes – so the assumption goes – the constitutional right of access to housing effectively meaningless. However, in this dissertation it is argued that it is not the reasonableness approach per se which hinders the implementation of the right of access to housing but rather the choice of remedy and the lack of (individual) access to the Court. In doing so, this study will show that the Court by using the reasonableness approach is acting in accordance with the wording and the transformative character of the South African Constitution and its own institutional role within the constitutional framework based on the separation of powers. Subsequently the study demonstrates that the effectiveness of the right of access to housing depends on the remedy granted by the Court and the possibility of access to the Court rather than the approach reverted to by the Court. Against this backdrop, the dissertation scrutinises what can be done to expand access to justice for claims flowing from the right of access to housing and thus to facilitate the right. DA - 2018 DB - OpenUCT DP - University of Cape Town LK - https://open.uct.ac.za PB - University of Cape Town PY - 2018 T1 - The reasonableness approach of the South African Constitutional Court - making the constitutional right of access to housing "real" or effectively meaningless? TI - The reasonableness approach of the South African Constitutional Court - making the constitutional right of access to housing "real" or effectively meaningless? UR - http://hdl.handle.net/11427/29738 ER - | en_ZA |
| dc.identifier.uri | http://hdl.handle.net/11427/29738 | |
| dc.identifier.vancouvercitation | Lange PA. The reasonableness approach of the South African Constitutional Court - making the constitutional right of access to housing "real" or effectively meaningless?. []. University of Cape Town ,Faculty of Law ,Department of Public Law, 2018 [cited yyyy month dd]. Available from: http://hdl.handle.net/11427/29738 | en_ZA |
| dc.language.iso | eng | |
| dc.publisher.department | Department of Public Law | |
| dc.publisher.faculty | Faculty of Law | |
| dc.publisher.institution | University of Cape Town | |
| dc.subject.other | Constitutional Law | |
| dc.title | The reasonableness approach of the South African Constitutional Court - making the constitutional right of access to housing "real" or effectively meaningless? | |
| dc.type | Master Thesis | |
| dc.type.qualificationlevel | Masters | |
| dc.type.qualificationname | LLM |