DATE DOWNLOADED: Thu Dec 15 18:03:45 2022

SOURCE: Content Downloaded from HeinOnline

Citations:

Bluebook 21st ed.

Ryan Burgess, "There Is No Medicine That Can Cure This": The Right to Housing in
France and South Africa, 15 COLUM. UNDERGRADUATE L. REV. [1] (2018).

ALWD 7th ed.

Ryan Burgess, "There Is No Medicine That Can Cure This": The Right to Housing in
France and South Africa, 15 Colum. Undergraduate L. Rev. [1] (2018).

APA 7th ed.

Burgess, R. (2018). "There Is No Medicine That Can Cure This": The Right to Housing
in France and South Africa. Columbia Undergraduate Law Review, 15(1), [1]-[39].

AGLC 4th ed.

Ryan Burgess, '"There Is No Medicine That Can Cure This": The Right to Housing in
France and South Africa' (2018) 15 Columbia Undergraduate Law Review [1].

MLA 8th ed.

Burgess, Ryan. ""There Is No Medicine That Can Cure This": The Right to Housing in
France and South Africa." Columbia Undergraduate Law Review, vol. 15, no. 1, Fall
2018, p. [1]-[39]. HeinOnline.

OSCOLA 4th ed.

Ryan Burgess, '"There Is No Medicine That Can Cure This": The Right to Housing in
France and South Africa' (2018) 15 Colum Undergraduate L Rev [1]

Provided by:
University of Nairobi

-- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and
Conditions of the license agreement available at
https://heinonline.org/HOL/License
-- The search text of this PDF is generated from uncorrected OCR text.
"There is No Medicine That Can Cure This
The Right to Housing in France
and South Africa

Ryan Burgess I The University of Chicago

Edited By: Caroline Zupan, Erin Bronner, Max Kwass-Mason, Kaleigh

McCormick

Abstract

This paper examines the right to housing as presented in the legal regimes
of France and South Africa. It examines the different routes by which the
right to housing is codified or established and the extent to which the right
is truly actionable in the lived experience of the denizens of their respective
countries. The primary claim is that, while in theory, residents of both
France and South Africa have a right to housing that is both provided for by
the respective legal regimes and judiciable, many individuals are excluded
from access to this right. This includes such groups as immigrants (lawful
permanent residents as well as naturalized citizens), people of color, and
other marginalized groups, with respect to the different political histories
of the countries under consideration. This reveals that both France and
South Africa have failed to meet the standards set for them by international
law, as well as under their own domestic legislatures and/or courts. Both
countries have failed to provide housing and enable a route towards stable,
actualized housing, i.e., the actualization of this right via legal enforcement
for their denizens. Those who lack housing in both countries often live in
degrading, dehumanizing conditions, which in itself constitutes an unlawful
affront to the inherent dignity of the human person is correlated with myriad
detrimental effects on the individual.
I. Scope and Methodology of the Comparison'

In this essay, I focus on the concept of an actionable right

to housing, which is provided - in theory, at least - by both France
and South Africa. In particular, I will analyze the factors that led
to the promulgation of such a right as well as the system meant
to benefit claimants. In addition, the jurisprudence, case law, and
subsequent legislative developments concerning the right to housing
are examined vis-a-vis the empirical outcomes of its promulgation,
i.e., whether or not the promulgation of such a right has been an
effective policy prescription.
My central claim is that neither France nor South Africa have
met the standards they have set for themselves in declaring denizens
to have an actionable right to housing. Furthermore, I argue that this
is not necessarily due to a lack of available resources and that this
failure is intimately connected to the fact that those in both countries
who are most likely to demand that the state meet their established
right to housing are precisely those who are least likely to have their
entitlements acknowledged under the law.
Prior to analysis, the notions of "a right to housing" and
"decent housing" must be defined. General Comment Four to the
International Covenant on Economic, Social, and Cultural Rights
(ICESCR), signed and ratified by both France and South Africa,
states that:

The right to housing should not be interpreted in

a narrow or restrictive sense which equates it with
[...] shelter provided by merely having a roof over
one's head or [which] views shelter exclusively as
a commodity. Rather it should be seen as the right
to live somewhere in security, peace and dignity. [...
This] must be read as referring not just to housing but
to adequate housing.2
This concept of "adequate housing" is clarified in Chapter IV(B)(1)
of "The Habitat Agenda," a document created by the Second UN
Conference on Human Settlements (Habitat II), as encompassing
such factors as adequate space, security, structural stability, physical
security, basic infrastructure, security of tenure, heating, cooling,
and ventilation.3 South Africa's conception of adequate housing
is modeled upon this international agreement.4 The European
Committee of Social Rights, and France by proxy, similarly define
adequate housing as:

A dwelling which is safe from a sanitary and health

point of view, that is, [a dwelling which] possesses
all basic amenities, such as water, heating, waste
disposal, sanitation facilities and electricity; is
structurally secure; not overcrowded; and with
secure tenure supported by the law.5

There are a number of limitations regarding this analysis.

Courts do not play the same role in France as they do in South
Africa. France is a civil law jurisdiction, whereas South Africa
employs a 'hybrid' legal system that weaves together Roman-Dutch
civil law, English common law, and African customary law. France
is party to European law, whereas South Africa is a member of the
African Union. However, the idea I advance - that the successful
implementation of an actionable right to housing has not been
universalized in either country because both states estrange the very
populations that are in greatest need of accessing this right - gains
in conceptual strength if it is found to hold in two countries with
dissimilar legal institutions, legal histories, financial capabilities,
and modes of political organization.
II. Analysis: History and Status of the Right to Housing in
France

In official government documents, the recognition of a right

to housing in France first appears in the Quillot Act in 1982.6 1 This
piece of legislation was not a statute guaranteeing accommodation
to all who needed it. Rather, this law was the first declaration of
regulations concerning private tenancy law in the Fifth Republic.
It was a symbolic piece of legislation regarding the right to
housing, and the mere inclusion of language referring to housing
as a "fundamental right" did little to affect substantive change that
would encourage the realization of this purported right.'
The Quillot Act was abrogated by the passage of the
Mehaignerie Act at the behest of the conservative government that
came into power in 1986.9 While the primary purpose of the latter
statute was to abolish the regime of rent control, it also removed the
language that referred to housing as a right of the French people.10
The Mehaignerie Act was itself replaced in 1989 by the Mermaz
Act during Mitterrand's second term as President of the French
Republic." The Mermaz Act, which has remained in place - though
amended slightly in 1994 and 1998 - uses the language of §7 of the
Preamble to the French Constitution of 1946, which established the
Fourth Republic, in asserting that "the right to housing (logement)
is a fundamental right; it is to be exercised within the framework of
the laws that govern it.""
The Mermaz Act was followed by the Besson Act of May
31 1990, which opened with the exposition that "guaranteeing the
right to housing is a duty of solidarity incumbent upon the whole
nation." 3 The Mermaz Act mandated that individual ddpartements
provide housing for the poorest members of society, guided by
ddpartement-specific plans funded through a Solidarity Fund for
Housing (Fonds de solidartdpour le logement, i.e., FSL). In so
doing, this law created a vehicle to provide housing for the most
vulnerable members of society.14 In May of the following year, the
Conseil constitutionneldeclared that "the housing of disadvantaged
persons answers [meets, responds to] a demand of national interest.""
As with the Quillot Act, however, the mention of a right to housing
was only in the preamble of the document codifying this act, and its
inclusion in the Conseil 'sdecision did little to affect concrete policy
change.
This state of affairs began to improve in 1995 with the explicit
recognition by the Conseil constitutionnel that "the possibility
for each person to have decent housing is an object [objective] of
constitutional value."16 In this decision, the Conseil relied upon the
inclusion of the Preamble of the Constitution of 1946 (per the 1971
decision n° 71-44 DC) in the so-called "Constitutional block," to the
effect that "safeguarding [...] the dignity of [each] person from all
forms of degradation is an object of constitutional value;" insofar
that the lack of decent housing constitutes a form of degradation,
and is an obstacle to proper human development, it follows that the
state must be concerned with the provision of decent housing to all
its denizens."
As a result, the state was given the end of universal housing
provision as an objective in accord with constitutional values. This
decision of the Conseil constitutionnel did not, however, provide
for the establishment of an enforceable right to housing. While the
Government had a duty to "provide assistance to those who [met]
the statutory criteria," it had no obligation to provide permanent
housing to the qualified applicants who demanded it."8 Moreover,
denizens who met the necessary criteria could not rely on the courts
for the enforcement of this right. Per the Besson Act, the state had an
'obligation of effort' (obligationde moyen), but this obligation was
limited in scope to the indigent, and the very nature of this obligation
prevented citizens from seeking judicial redress. 19
If the state could demonstrate that it had made a reasonable
effort to house a given individual, even if these efforts failed, then
the state was discharged from its obligations under the law. Along
similar lines, a 1995 ruling of the Conseil constitutionnel established
that:

It is incumbent upon both the legislator and the

Government to determine, in conformity with their
respective powers [competencies], the ways in which
this constitutional objective may be achieved; that to
this end the legislator may modify, amend or repeal
previously-promulgated [enacted] statutes [...].20

This gives no incentive to the citizen to address what they may

perceive as a failure on behalf of the state to address an objective,
supposedly of constitutional importance, directly pertaining to their
supposed right to adequate housing.
The notion that denizens should have a direct avenue for
redress via the courts first appeared in French civil society in 2002.
In the context of increasing public concern regarding homelessness
and rising housing prices, the High Committee on Housing for the
Disadvantaged (Haut Comitd pour le Logement des Personnes
Ddfavorisdes, HCLPD), a governmental organization that issues
yearly reports on best housing practices for the most disadvantaged
members of society, issued a report entitled "Towards an Enforceable
Right to Housing." This report proposed replacing the state's 'best
effort' obligation (obligation de moyen) under the Besson Act with a
results-based or performance obligation (obligation de resultat), on
the basis of which the state could be held responsible for failing to
meet individual denizens' rights to decent housing by means of the
judiciary."
The following years brought increasing acceptance of
an enforceable right to housing in French politics and society. In
2004, Prime Minister Jean-Pierre Raffarin publicly called for the
implementation of an enforceable, judiciable right to housing, i.e., un
droit au logement opposable.22 Later that year, the French Economic,
Social and Environmental Council (Conseil Economique Social
et Environnemental), a "constitutional consultative assembly," 23
recommended that such a right be promulgated by the legislature.2 4
The 11th report of the HCLPDdeclared in 2005 that, vis-a-vis
the purported entitlements established by the Besson Act, "the right
to housing is stalled, and will remain so until an effective shield has
been raised against exclusion [...]. Enforceability is that shield, and
it is important to implement it as soon as possible."2 5 However, in
2002, the Conseil d'Etat had established the status of housing to
be an "objective of constitutional value" - i.e., that it was neither a
fundamental right nor a fundamental freedom - and thus failed to
render this objective justiciable in the absence of explicit legislation
to the contrary.26 While under the current law, the state was obligated
to devise and execute a comprehensive housing policy for the
purposes of meeting this objective, insofar as the law did not allow
denizens to make positive claims against the state to enforce their
right to housing, they had no standing against the Government to
realize their purported right to adequate housing. In other words, the
Conseil d'Etat had disallowed the possibility "for an individual to
claim a service which is not [positively or definitively] established
by the law." 27
The concerns of the High Committee on Housing for the
Disadvantaged, however, gained in visibility and influence over the
ensuing years. The European Committee of Social Rights (ECSR)
ruled on no less than two occasions that the Government of France
was in violation of provisions of the (Revised) European Social
Charter. In the first Collective Complaint, International Movement
ATD Fourth World v. France (No. 33/2006), the plaintiffs alleged
violations of Articles 30 and 31.28 29 In the second Collective
Complaint, European Federation of National Organisations [sic]
Working with the Homeless (FEANTSA) v. France (No. 39/2006),
the plaintiffs requested that the Committee to the following:
 [We] find a violation by France of Article 31 [...] on
the ground that France does not ensure an effective
right to housing for its residents. In particular, [the
plaintiffs consider] that the measures in place in
France to reduce the number of homeless people are
insufficient, that the construction of social housing is
also insufficient [..., and] that there is discrimination
in access to housing with regard to immigrants.30

In the both cases, the Committee found France to be in violation of

Article 31 of the (Revised) European Social Charter. Additionally,
France was found in violation of Article 30 of the Charter in
InternationalMovementATD Fourth World v. France.31 In this latter
decision, the European Committee on Social Rights noted that:

[I]n 2005, the stock of social housing in France was

manifestly inadequate. Since then the government
has taken a number of steps to improve the situation.
However, even if all the planned measures were
achieved, that is, if 591,000 new social housing units
were built by 2009, there would still be a considerable
shortfall compared to the amount of applications
made for social housing. [...Furthermore,] the
allocation procedure [for social housing] does
not ensure sufficient fairness and transparency,
since social housing is not reserved for the poorest
households. 32

Against this background of a clear shortage of affordable

housing and the 2005 ParisOpdraHoteltragedy,which was declared
to be one of Paris's "most painful catastrophes" by then-President
Jacques Chiracin because twenty-four immigrants died in a fire in
low-standard housing, the DALO (DroitAu Logement Opposable)
Act was introduced on the floor of the French National Assembly
on September 2 8th 2005.33 However, the DALO Act was ultimately
rejected by the legislative body during that session. 34 Several other
events transpired during this time that motivated the government
to implement this legislative proposal, including the creation of a
camp of approximately 100 tents in the heart of Paris by the Enfants
du Don Quichotte [sic], a homelessness advocacy organization. 35
36 The Enfants aimed to create a scandal and raise awareness of

the homelessness crisis referred to by the ECSR, which was then

sweeping across France. They were successful in their endeavor, as
the DALO Act passed unanimously in an emergency session of the
legislature in March of 2007.""
The DALO Act not only provides a justiciable claim to
housing but also enshrines in statutory law "the right to decent,
independent housing to all persons legally residing on French
territory [...] who [are] not able to obtain [it] by their own means
and resources." 39 Should one belong to any of the groups specified in
the Act, including: (1) the homeless, (2) tenants facing the imminent
threat of eviction with no plausible prospect for rehousing, (3)
those residing in substandard housing, (4) those with a disability or
a disabled dependent, or (5) those who qualify for social housing
but have waited for an "abnormally long" period of time for
provision of housing, one can contact the Mediation Committee of
their ddpartement of residence. 40 Then, if the committee finds the
applicant to meet one or more of the aforementioned criteria, they
will be declared a priority case for whom officials are required to
provide housing. However, since the provided housing need not be
permanent, one criticism levelled against the DALO Act is that it may
turn "the right to housing" into "the right to short-term housing."41
Regardless, if the departmental committee fails to act upon
the case within three months (six months in larger ddpartements),
the applicant may appeal to an administrative tribunal for relief 42
These courts have the ability to order the state to provide housing for
the applicant. In addition, the tribunals are required by the DALO
statute to levy a fine (paid into a regional fund for social housing)
against the state, should they determine that the state has failed in
its duty to provide the applicant with housing within the required
timeframe.
Furthermore, the responsibility for housing the claimant(s)
falls upon the Prefect of the ddpartement, as opposed to the Mediation
Committee with which the appeal is first lodged. The Prefect,
however, lacks enforcement powers, which are left in the hands
of local authorities. Since these include the issuance of building
permits and the allocation of social housing units, a claimant may
not be placed in a permanent home even if a court order to that
general effect has been issued, i.e. they may find themselves placed
in temporary shelter even after a successful claim against their
ddpartement. 43
The DALO Act was first upheld in court by a tribunal in
Paris in May of 2008.44 In this decision, the plaintiff's application
for housing to her respective Mediation Committee had been denied
on the grounds that it was not urgent, as she already had a place to
live. However, her housing was only temporary because she would
have been forced to leave her place of residence after 21 months'
time, and was, therefore, facing homelessness in the imminent
future. On this basis, the plaintiff, Namizata Fofana, appealed the
committee's decision, which the tribunal later overturned on the
basis of the DALO Act.
In 2015, the European Court of Human Rights (ECtHR)
found France in violation of Article 6, §1 of the European Convention
of Human Rights (ECHR), to which France is a party, which
guarantees the right to a fair trial.45 This decision was the result of a
case, Tchokontio Happi v. France(2015) in which the plaintiff, Ms.
Happi, a Cameroonian national who had been living in France for
over a decade, was found to be living in indecent conditions. On this
basis, the Paris Mediation Commission marked her case as a priority
for rehousing. Six months later, rehousing had not occurred, and
the plaintiff filed a complaint with the Paris Administrative Court
under the DALO Act to demand the actualization of her right to
housing under French statutory law. On December 28, 2010, the
Court ruled in Ms. Happi's favor. The Court's ruling instructed the
Prefect of Ile-de -Franceto re-house Ms. Happi and her family with
the added penalty of a fine levelled against the ddpartement, should
the authorities fail to comply by February 1, 2011.
The plaintiff had not been rehoused over three and a half
years later when the ECtHR issued its ruling. Per the Court's prior
decisions, the state could not plead lack of funds as a valid reason
for failing to meet its obligations. Furthermore, given the years-
long delay between the Administrative Court's decision and the
rehousing (or lack thereof) of the plaintiff, the ECtHR ruled that
French authorities had drained Article 6 § 1 of all value or practical
import. This sufficed to constitute a violation of that provision of
the ECHR. Ms. Happi, however, was not the only one to face such
a predicament; many others have failed to be rehoused despite the
French State's obligation under the law.4 6 Therefore, even since the
passage of the DALO Act, the French state has failed to meet its
own requirements concerning the right to housing.

III. Analysis: History and Status of the Right to Housing in

South Africa

The history of housing in South Africa cannot be separated

from the legacy of apartheid, a systematic policy of racial
discrimination that lasted from 1948 to 1994. One of the many
legacies of segregationist administration against people of color,
the housing crisis facing contemporary South African society
can be directly traced to the policies pursued by the government
of the National Party.47 The South African government designed
and enforced policies which included zoning restrictions based
on segregation of denizens by means of arbitrarily-defined racial
categories. Although reforms have been undertaken to reverse the
policies enacted by the National Party, non-white groups continue
to be disfavored as a result of this history of de jure segregation.
Indeed, in 1996, of the 1,049,686 households living in low-standard,
informal settlements, 1,013,343 were "Black [African]," and 31,103
were "Coloured;" only 1,083 were "Indian," and just 912 were
"White."141
Unlike the French Constitution, the South African
Constitution, adopted in 1996, explicitly enshrines a right to housing.
This Constitution was meant to form the basis of the establishment
of an entirely new social, legal, and political order. As such, those
drafting the document considered it essential that positive rights
should be explicitly extended to all segments of the population, in
a sharp break from the racialized policies of the apartheid regime. 49
Section 26 of the Constitution states that:

(1) Everyone has the right to have access to adequate

housing.
(2) The state must take reasonable legislative and
other measures, within its available resources, to
achieve progressive realization of this right.
(3) 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. No legislation may permit
arbitrary evictions. 0

While the inclusion of positive rights in the South African

Constitution is modelled after the ICESCR, the phrasing of §26(1)
of the South African Constitution differs from its international
analogue. The ICESCR states that "[t]he States Parties to the present
Covenant recognize the right of everyone to [...] adequate food,
clothing and housing, and to the continuous improvement of living
conditions."" The South African Constitution, on the other hand,
enshrines the "right to [...] access to adequate housing," which
includes far more than adequate housing itself. In order to have
access to housing, one must have access to land, sanitation, public
infrastructure, etc." Therefore, the wording of the right to housing
in the South African Constitution extends far beyond the scope of
the international agreement upon which it was originally modelled.
Furthermore, the socioeconomic rights enumerated in the
South African Constitution are justiciable.53 " This can be seen
through the landmark case regarding the right to housing in South
Africa: Republic of South Africa v. Grootboom (2000).55 In this case,
the Constitutional Court of South Africa "ventured into the question
of when the right [to housing could] be positively enforced." 6 The
plaintiffs were members of a group of approximately 900 people,
Irene Grootboom among them, who were living in appalling
conditions on public land in Wallacedene and waiting to be allocated
social housing by the government. In their desperation, they moved
onto a nearby parcel of private land which, ironically, had been
slated to be developed into affordable rental housing sometime in
the future."
The members of this group were subsequently evicted in
a manner described as reminiscent of the forced evictions which
occurred during the period of Grand apartheid. 58 Following their
eviction, the constituents of this group could not return to their former
place of accommodation, since that land had been subsequently
occupied by others in similar conditions of destitution. The members
of this group were now homeless. While their names languished on
the waitlist for government-built housing, "they would have simply
nowhere they could lawfully live." 59 Thus, they decided to sue the
Government for its failure to realize their right to housing that was
clearly stated in the Constitution.
The Court considered a number of factors in making its
judgment. First, it noted that individual rights, including the right to
housing, cannot be considered in isolation. In its proclamation that
"[s]ocio-economic rights must all be read together in the setting of
the Constitution as a whole," the Constitutional Court established
a principle of the interdependency of rights. By this means, actors
would be held to fulfill a right - for example, the right to housing
- not just if they managed to put a roof over someone's head, but
rather if and only if they provided the attendant necessities for this
right to be discharged, such as sanitation and security of tenure. 60
61 Fulfillment of a right therefore requires meeting the conditions

laid out by other substantive rights such that the first right may be
discharged.
Furthermore, in South African jurisprudence, rights must be
understood, interpreted, and applied in light of the relevant social
and historical context. The Constitutional Court, in Grootboom,
quoted the decision of Soobramoney v. MinisterofHealth (KwaZulu-
Natal), in which it was recognized that

[W]e live in a society in which there are great

disparities in wealth. Millions of people are living in
deplorable conditions and in great poverty. [...] These
conditions already existed when the Constitution was
adopted and a commitment to address them, and to
transform our society into one in which there will be
human dignity, freedom and equality, lies at the heart
of our new constitutional order. For as long as these
conditions continue to exist that aspiration will have
a hollow ring. 62

On the grounds established in Grootboom, the Court

found that the state has a positive obligation "to meet the needs of
those living in extreme [...] poverty, homelessness or intolerable
housing."63 The threshold for determining the level of obligation,
however, is not uniform. It was determined to vary according to the
individual's situation with regard to such factors as income, land
tenure, and (un)employment. 64 To further complicate the situation,
individuals in different situations may require different forms of
assistance. On this basis, the Court determined that the core question
of value in the Grootboom decision was "whether the measures
taken by the state to realise [sic] the right afforded by section 26
[were] reasonable." 65
Importantly, the Court rejected the "minimum core" concept
by which the state would be required to provide a minimum level of
housing vis-a-vis the given rights and entitlements in order to meet
the requirements assigned to it by the Constitution. 66 In other words,
noting that §26(2) imposed a qualified - as opposed to an absolute
- duty upon the state, the Court expanded upon the three elements
that functioned to determine the extent of the state's responsibility:
"(an) obligation to 'take reasonable legislative and other measures';
(b) an obligation 'to achieve the progressive realisation [sic]' of the
right; and (c) [to act] 'within available resources. '"67
The first measure requires the state to implement a
comprehensive housing program, coordinated between the different
spheres of government, and equipped with appropriate levels of
human and financial resources. 68 This program must have the
ability to fulfill the right to housing. In turn, this requires continued
intervention on behalf ofthe state in recognition of the socioeconomic
and historical context with regard to which this right was originally
promulgated. Furthermore, this task mandates that the state act in
accordance with the basic concept of dignity underlying the South
African Constitution. 69
The second criterion mandates "that accessibility [to housing]
be progressively facilitated;" insofar as the goal of providing housing
to all denizens simply cannot be met immediately, the government
has a duty to work toward this end over time, with concrete evidence
of its success being evident upon each instance of evaluation. 70
The third and final criterion recognizes that the provision of social
services is dependent upon and constrained by the resources
available to the state. The Court therefore requires no more than that
the state act to achieve what is reasonable with its given resources. 1
The Constitutional Court ultimately conceded that, although:

Neither section 26 nor section 28 entitles the

respondents to claim shelter or housing immediately
upon demand [, . . ] section 26 does oblige the state
to devise and implement a coherent, coordinated
programme [sic] designed to meet its section 26
obligations. [...] This includes the obligation to
devise, fund, implement and supervise measures to
provide relief to those in desperate need.72

Furthermore, Grootboom established that the state can be held

accountable by the courts for failing to fulfill its positive obligations
- even in situations of constrained resources, financial or otherwise.
Other cases have come before the court system in the years
following Grootboom. In 2005, the Constitutional Court ruled in
Presidentof the Republic of South Africa v. Modderklip Boerdery
that a group of people occupying private land out of desperation
could not be evicted until they had been provided alternative
housing by the relevant government authorities. 73 Furthermore, in
City of Johannesburg v. Rand Properties (2007), the High Court
in Johannesburg utilized Grootboom as precedent, declaring
that Johannesburg's housing program was not in compliance
with its obligations under constitutional or statutory law.74 75 The
presiding judge noted the "importance of security of tenure in
our new constitutional democracy," and concluded that "the lack
of alternative adequate accommodation provided by the [city
 . . ] has given birth to the Respondents' predicament to use their
own resources to find the accommodation which they presently
occupy. The applicant now seeks to take this away from them." 76
The city of Johannesburg was thence ordered to cease and desist
from the eviction proceedings against the Respondents "pending
the implementation of [this] programme [sic][, . . or] alternatively,
until such time as suitable [...] accommodation [is] provided" to
them by the authorities ostensibly responsible for housing in this
jurisdiction.7 7 The proclamation of the Court in Jaftha v. Schoeman,
however, perhaps best encapsulates the enduring importance of
Grootboom regarding Section 26 in South African jurisprudence:

Section 26 [...] emphasizes the importance of

adequate housing [....] The indignity suffered as a
result of evictions from homes, forced removals
and the relocation to land often wholly inadequate
for housing needs has to be replaced with a system
in which the state must strive to provide access to
adequate housing for all and, where that exists,
refrain from permitting people to be removed unless
it can be justified.7 8

IV. Analysis: Criticism of France and South Africa

In South Africa, while the Emergency Housing Programme

[sic] was launched in 2004 in response to the Grootboom order,
and additional programs have been adopted to upgrade the existing
informal settlements, 79 the situation for many South Africans remains
bleak. 80 South Africa faces an acute housing crisis in which millions
of people either lack access to housing or live without necessities like
running water or electricity.8 1 Even though government spending on
public housing construction has increased markedly in recent years,
the level of expenditure is still insufficient to meet its constitutional
obligations.82 Moreover, the progress that has occurred in widening
housing accessibility to bring about an integrated society has largely
been limited to those who live in urban areas with higher levels of
investment, disfavoring rural, poor populations.83
In Grootboom, the Constitutional Court neither introduced
a mechanism of governmental accountability, nor did it promulgate
a standard regarding the set of conditions that satisfy the claim
of the right to access to housing. While socioeconomic rights are
justiciable under South African law, individuals are not entitled to
fulfillment of these rights should they demand them. 84 Regarding the
Grootboom decision, Sunstein stated that "[w]hat the South African
Constitutional Court has [...] done is to adopt an administrative
law model of socioeconomic rights."85 In other words, the Court
has merely required the South African government to develop a
program to fulfill the rights assigned to denizens under the South
African constitution, as opposed to specifying any specifics of this
policy program. Administrative law, being the law that governs the
operations of government bodies, lacks thej urisdiction or competence
to adjudicate substantive rights claims. Thus, Sunstein claims that
the Court has created a legal framework intended to realize the right
to housing without the necessary abilities to actualize this right.
Along a similar vein of reasoning, David Bilchitz argues that
the notion of "reasonable effort" adopted by the court in Grootboom,
and applied to other cases concerning adjudication of socioeconomic
rights claims, simply cannot provide the necessary content to make
the decisions which are demanded by the court system, for "it is
questionable how [features of state policy] can be derived from the
concept of reasonableness itself"8 6 This is because the nature of the
"reasonableness" criterion requires a minimum standard against
which one may evaluate the object of investigation. It follows that,
contrary to the reasoning of the Constitutional Court in Grootboom
and other similar cases, the very notion of progressive realization,
if it is to be coherent with respect to the "reasonableness" standard,
requires the inclusion of a baseline. This baseline must specify the
minimum levels of provision to satisfy the basic discharge of the
duties associated with a given right.87 Bilchitz proposes that the
Constitutional Court first examine the content of the right(s) under
dispute in a given case, and then decide whether or not the state's
policies have failed at securing progressive realization of this right.
Wertman goes further in her criticism, stating that "the Court's
unwillingness to create this baseline lets the government off the
hook."8 8 She suggests that the Court's refusal to endorse specific
actions to address the South African housing crisis has contributed
to the current state of affairs, in which millions of South Africans
live in squalor and destitution with little hope of improvement. 89
In particular, this crisis is centered around the historically-
marginalized "Black" population. 90 The legacy of forced evictions
and removals, maldistribution of land and property rights, and
substandard construction of housing during the apartheid era remains
to this day.9 1 As of 2007, "Black" households were 28 times less
likely than "White" households to have access to formal housing. 92
While the equity gap for access to services, including housing,
electricity, sanitation, and running water has narrowed since the
ANC came into power at the midpoint of the 1990s, the disparity
is still unacceptably high. Access to housing, and life outcomes
strongly correlated with it, largely remain determined by race. 93
The legacies of the 1913 Land Act remain in force. This law, which
marked the beginning of a legal regime of explicit racial segregation
by ordering Black South Africans to live in so-called "Bantustans,"
etc., has evolved into the current geographical segregation of South
Africans. The homes and livelihoods of South Africans are, even
today, segregated by "color." This "separateness" is affiliated with
corresponding segregation in areas of demographic health and life
achievement; being born in the geographic boundaries of a former
"Bantustan" is sufficient to statistically determine the life course of
the average South African individual. Such an individual is more
likely to be impoverished, less likely to have a job, and less likely to
own (or even have access to) a home than a South African national
born in a historically "White" neighborhood.
Given the sheer size of the housing shortage in South Africa
andthe Court's insistence that its own decisionstake social, economic,
and historical context into account, by failing to acknowledge the
substandard conditions that characterize a substantial percentage
of the present housing stock, the South African state has failed
at operationalizing the right to housing as explicitly stated in the
Constitution. Jacoob J., in writing the Grootboom decision, noted
that "we must also remember that the respondents [i.e., Irene
Grootboom, et al.] are not alone in their desperation; hundreds of
thousands (possibly millions) of South Africans live in appalling
conditions throughout [the] country." 94 The situation has not changed
substantially since then; the backlog for affordable housing has even
increased since Grootboom.95 It has been estimated that this figure,
2.1 million units as of 2014, increases by approximately 200,000
each year due to the rapid informal urbanization affecting South
Africa's cities. 96
The main cause of the South African housing crisis is the
government's failure to build enough housing to keep up with the
demand. 97 This is due to a number of factors, one of which is the
government's preoccupation with building low-density homes, an
approach that decreases the amount of housing that can be built
on available land with available funds. The process of allocating
affordable housing is both inefficient and rife with corruption. 98
NIMBYism - i.e., localized opposition to development99 - and racial
prejudice are common mobilizing factors behind opposition to
housing projects.ioo 101102 The Preamble to the Constitution of 1996
states that "[w]e, the people of South Africa, recognize the injustices
of the past [, . . and pledge to] heal the divisions of the past and
establish a society based on democratic values, social justice and
fundamental human rights." 103 As long as South Africa remains a
"grossly unequal society in which the (overwhelmingly Black) poor
majority population is disproportionately denied adequate housing
opportunities and basic amenities," the aspirations of the Preamble
cannot and will not be met.104
As in South Africa, there is a long history of residential
segregation in France. This is tied to the systemic exclusion of
disenfranchised groups, namely migrants and their families, from
quality housing.10 5 There is increasing worry that "the poorest
part of the population, particularly some immigrants and their
descendants, are becoming increasingly concentrated in public
housing suburbs."106 These segregated complexes of public housing
(citds) in outlying, isolated suburban areas (banlieues) have been
referred to as "the other France" in the literature.10 7 Diversity is not
an official goal of public policy in France - a legacy of the ideology
of Republicanism - and social integration is largely dependent upon
renunciation of one's ethnic identity and assimilation into French
108
culture. 109
France also appears to fail in its obligation to provide
housing to its population, even with the legal protections afforded
by the DALO. As of 2010, only 30,000 of the 144,000 households
whose claims had been approved by the mediation committees had
been rehoused.11 0 Furthermore, it had been estimated that the state
would need to finance the construction of half a million new units
of affordable housing every year for the effective implementation of
the law, given the expected volume of applications." The French
state has consistently delivered affordable housing units below this
threshold, with a quarter of social housing occupants being assigned
112
to housing each year. 113 114
Yet, the number of applications was far below the expected
volume; ten months after the DALO entered into force, only 50,000
applications had been lodged, as opposed to the expected 80,000-
100,000.115 This suggests that the target population, i.e. those
living in appalling conditions (the homeless, the impoverished,
etc.), experience difficulty with availing themselves of the formal
protection afforded by the law. This should come as no surprise, as
the procedure for lodging an appeal for the relief provided by the
DALO is complex, requiring resources often unavailable to those
who are impoverished, homeless or living in substandard housing.1 6
Furthermore, additional restrictions for application of the
DALO Act are based on immigration status." Those who lack
either (1) citizenship, (2) status as a lawful permanent resident, or
(3) a valid temporary residence permit are barred from applying for
protection under this law.is The ability of the French people to meet
these conditions has been imperiled by an increasingly restrictive
naturalization regime combined with progressively draconian
policies regarding immigration and asylum.1 9 Furthermore,
migration status is strongly correlated with homelessness or housing
in substandard housing stock; much of the target population living
in substandard housing (or without any housing) cannot appeal
because they are excluded by virtue of their status of not being (at
least) lawful permanent immigrants in the Republic of France.120 In
addition, immigrants and ethnic minorities (even if they are French
nationals) often experience longer wait times for social housing.
Even when they are eventually housed, their accommodations are,
by and large, of lesser quality, i.e. with fewer amenities, in a less
valuable location, older and smaller, etc."
A universalized right to housing is crucial because access to
housing is frequently denied to immigrants and French denizens of
ethnic minority. This is exemplified by the fact that, while foreigners
make up only 13.54% of the French population, they compose one-
half of DALO claimants. 122123 As iterated before, however, this very
population is least likely to be able to access the protection of the
law. Immigrants and their families are more likely to be homeless
or live in conditions of squalor, yet a substantial percentage of this
population is unable to apply for substantiation of their rights as
afforded under French law.12 4 Therefore, immigrds are far more
likely to live in situations which call for relief under the DALO. The
injustice of this discrimination aside, a substantial proportion of this
population is unable to apply for this relief because of they lack the
standing to do so under conditions set out by the DALO law.

V. Conclusion

In this paper, I have outlined the extent to which South Africa

and France, respectively, conceive of housing as a right. Although
the structure of the two nations' legal systems and legislative organs
is different, in relevant cases, however, both nations' courts have
ruled against their respective governments on the grounds that they
have failed to address the plight of their most desperate residents.
The ICESCR proclaims that "the right of everyone to an
adequate standard of living [...] include[es the right to] adequate
[...] housing," and the South African Constitution explicitly states
that "[e]veryone has the right to have access to adequate housing."
125 126 The ICESCR also binds the States Parties to "guarantee
that
the rights enunciated in the [...] Covenant will be exercised without
discrimination of any kind as to race, colour [sic], [...,] national or
social origin.""' The rights enumerated in the ICESCR are, inter
alia, derived from "the inherent dignity of the human person,"
without regard to race or status of citizenship.12 In the jurisprudential
literature, personhood is contrasted with citizenship; the former has
its roots in personhood qua personhood, irrespective of national
status, whereas the latter is at its root an exclusionary concept based
upon the legal rules governing the notion of citizenship as such. 129
In the realm of European law, the Charter of Fundamental Rights
of the European Union (the European Charter), which applies to
France, covers the entirety of natural persons; §31 of the (Revised)
European Social Charter, to which France is a party, also refers to
"everyone," i.e., every one person, i.e., every natural person without
a view to their national origin. 130
Therefore, both France and South Africa fail to satisfy the
demands placed upon the respective state apparatuses by these
documents. The differences between the housing regimes of the
two countries vis-a-vis social factors, however, must be noted. The
DALO explicitly places restrictions on citizenship, whereas the
South African Bill of Rights does not. Contrary to South Africa,
France does allow denizens to demand housing by means of the
executive organs of the state apparatus.13 1 Notably, neither nation
is obligated to place applicants in long-term housing. Regardless of
these differences, the legal regimes developed in both France and
South Africa to provide for the realization of a right to housing have,
for various reasons, failed to actualize this purported right for the
much of their respective eligible populations.
There is a clear gap between the law and the reality. Although
neither state could be expected to solve its respective housing
problems overnight, both France and South Africa have failed to
implement a legal regime that truly provides for "progressive
realization" of the right to housing. Therefore, on a normative level,
both countries have shirked their commitments under law.
In both France and South Africa, thousands of people are
homeless or are living in destitute conditions.13 2 133 Modern states
"face the positive challenge of providing [...] services for poor people
[...,] of positively discriminating on a territorial, group or 'rights'
basis in favour of the poor, [...] the deprived, the coloured [sic],
the homeless, and the social casualties of [...] society." 134 Neither
France nor South Africa succeeds in this endeavor: both polities
ostensibly provide a right to housing, yet fail to provide it for their
most vulnerable denizens. This fact, and this fact alone, constitutes a
violation of the laws to which these countries have bound themselves.
Moreover, it is a state of affairs in which, to paraphrase the Preamble
of the UDHR, disregard and contempt for basic human rights has
resulted in the establishment of conditions that should outrage the
conscience of humankind.135 As the Grootboom proceedings were
taking place at the Constitutional Court in Johannesburg, one
resident of Wallacedene glumly portrayed the possibility of any
improvement in their standard of living:

Because of the filth here people are constantly sick.

And government thinks it is all just AIDS, but it is
also due to our living conditions... all the stench and
squalor [sic] that is here... and there is no medicine
that can cure this. 136

For these two countries to fail to remedy the problem of inaccessible

housing through inaction and maintenance of the status quo is both
a dereliction of duty to the law as well as a failure to fulfill their
obligation to recognize the dignity of human beings.
 I Disclaimer regarding racial terminology. Although the South African
Constitution of 1996 collectively refers to the historically-disenfranchised groups
of the population - "Africans," "Coloureds," and "Indians" - as "Black," for
historical clarity, this essay utilizes the Apartheid-era racial categories of "Black"
[African], "Coloured," and "Indian." That being said, this methodology of racial
categorization is categorically rejected by the author as ethically unsound and
scientifically untenable.
2
Office of the High Commissioner for Human Rights, "CESCR General Comment
No. 4: The Right to Adequate Housing (Art. 11(1) of the Covenant)," §7.
3 "The Habitat Agenda: Chapter IV: B. Adequate Shelter for All (1) Introduction,"

§60.
4 "The South Africa Housing Programme," (www.un.org/ga/Istanbul+5/1-
southafrica.doc).
5 European Committee of Social Rights (ECSR), "Decision on the Merits:
European Federation of National Organisations working with the Homeless
(FEANTSA) v. France, Collective Complaint No. 39/2006," §76.
6Loi no 82-526 du 22 juin 1982 relative aux droits et obligations des locataires
et des bailleurs.
7Levy-Vroelant, "The Right to Housing in France: Still a Long Way to Go from

Intention to Implementation," 92.

8
Boccadoro, et al., EUI Tenancy Law Project Final Report, "France," 2.
Loi n° 86-1290 du 23 dicembre 1986 tendant a favoriser F'investissement
locatif 'accession a la propriete de logements sociaux et le diveloppement de
l'offre fonciere.
1 Lonegrass, "A Second Chance for Innovation - Foreign Inspiration for the

Revised Uniform Residential Landlord and Tenant Act," 919.

"Loi n° 89-462 du 6 juillet 1989 tendant a amiliorer les rapports locatifs et
portantmodification de la loi n 86-1290 du 23 dicembre 1986. Translation mine.
12 «Le droit au logement est un droit fondamental ; il s'exerce dans le cadre des

lois qui le regissent, » Article 1 du loi n° 89-482 du 6 juillet 1989. Translation

mine. Cf §7 of the Preambule de la Constitution du 27 octobre 1946 : « Le
droit de greve s'exerce dans le cadre des lois qui le reglementent, » i.e., "The
right to strike shall be exercised within the framework of the laws governing it."
Translation provided by the Conseil constitutionnel.
13 « Garantir le droit au logement constitue un devoir de solidarite pour l'ensemble
de la nation, » Article 1 du loi n 90-449 du 31 mai 1990 visant a la mise en euvre
du droitau logement. Translation mine.
"Fondation Abbe Pierre,"The Besson Law Concerning the Right to Housing."
1 [...] le logement des personnes defavorisees qui repond a une exigence
d'interet national [...,] §13, Decision n° 90-274 DC du 29 mai 1990 du Conseil
constitutionnel. Translation mine.
16 « [...] la possibilit6 pour toute personne de disposer d'un logement decent
est un objectif de valeur constitutionnelle [...,] §7, Decision n° 94-359 DC du
janvier 1995 du Conseil constitutionnel. Translation mine.
17 Decision n° 94-359 DC du janvier 1995 du Conseil constitutionnel §6.
Translation mine.
18 Loison, "The Implementation of an Enforceable Right to Housing in France,"
186.
" Houard, et al., "The (Enforceable) Right to Housing: A Paradoxical French
Passion," 204.
20 g [...] qu'il incombe tant au legislateur qu'au Gouvernement de determiner,

conformement a leurs competences respectives, les modalites de mise en oeuvre

de cet objectif a valeur constitionnel ; que le legislateur peut a cette fin modifier,
completer ou abroger des dispositions legislatives anterieurement promulgu6es
[...], §8, Decision n° 94-359 DC du janvier 1995 du Conseil constitutionnel.
Translation mine.
21
Haut Comite pour le Logement des Personnes Defavorisees (HCLPD), « Vers
un droit au logement opposable : 8eme rapport du Haut comite pour le logement des
personnes defavorisees, » October 2002.
22 Houard, et al., "The (Enforceable) Right to Housing: A Paradoxical French

Passion," 205.
23 https://www.lecese.fr/en

24 Houard, et al., "The (Enforceable) Right to Housing: A Paradoxical

French
Passion," 187.
25
Haut Comit pour le Logement des Personnes Defavorisees (HCLPD), « Face a
la crise : une obligation de resultat : 1 eme rapport du Haut comite pour le logement
des personnes defavorisees, » decembre 2005.
26 Conseil d'Etat (CE), [Juge des r6f6r6s : M. Boyon], ord., Association de

reinsertion social du Limousin et autres, n° 245697.

27
Gay, "The Right to Housing in France and South Africa," 127.
28 European Committee of Social Rights (ESCR), "Decision on
the Merits:
International Movement ATD Fourth World v. France, Collective Complaint No.
33/2006, §17.
29 The 30th Article of the (Revised) European Social Charter proclaims that
"[everyone] has the right to protection against poverty and social exclusion," and
the 31st provides that "[everyone] has a right to housing;" cf, European Social
Charter, Revised, Article 30.
30 European Committee of Social Rights (ECSR), "Decision on
the Merits:
European Federation of National Organisations working with the Homeless
(FEANTSA) v. France, Collective Complaint No. 39/2006," §17.
31 European Committee of Social Rights (ECSR), "Assessment of the Follow-Up:
EuropeanFederationof Organisationsworking with the Homeless (FEANTSA) v.
France, Collective Complaint N° 39/2006."
32 European Committee of Social Rights, "Resolution CM/ResChS(2008)7:

Collective Complaint N° 33/2006 by the International Movement ATD Fourth

World against France."
33
BBC, "Paris Hotel Blaze Leaves 20 Dead."
34 « Proposition de loi instituant un droit au logement opposable, » N0 2541, 28
septembre 2005.
35
Loison, "The Implementation of an Enforceable Right to Housing in France,"
188.
36
Houard, et al., "The (Enforceable) Right to Housing: A Paradoxical French
Passion," 208.
37
1d, 209.
38
Loi n 0 2007-290 du 5 mars 2007 instituantle droit au logement opposable et
portantdiverses mesures en faveur de la cohision sociale.
39
Humbert, et al., Social Exclusion : Perspectivesfrom France andJapan, 140.
40 Brouant, "Implementation of the Enforceable Right to Housing (DALO)

Confronted by the French Regions," 279.

4 Loison, et al., "Increasing the Right to Housing: Implementing the Right to
Housing in England and France," 88.
42 Houard, et al., "The (Enforceable) Right to Housing: A Paradoxical French
Passion," 210.
43
Ibid.
"Olds, "The Role of Courts in Making the Right to Housing a Reality Throughout
Europe: Lessons from France and the Netherlands," 170.
45
European Court of Human Rights (Cour europeenne des droits de I'homme),
Tchokontio Happi v. France, ECHR 116 (2015).
46
Council of Europe, "Living in Dignity inthe 21st Century: Poverty and Inequality
in Societies of Human Rights," 74.
47 Wolf, "Participation in the Right of Access to Adequate Housing," 271.
48
Statistics South Africa (Stats SA), "Census 2001: Primary Tables South Africa,
Census '96 and 2001 Compared," Report No. 03-02-04, 79.
49
Gay, "The Right to Housing in France and South Africa," 121.
5
Constitutional Assembly, "The Constitution of the Republic of South Africa,"
§26.
51
"International Covenant on Economic, Social and Cultural Rights (ICESCR),"
Article 10, §1.
52
Chenwi, "Implementation of Housing Rights in South Africa: Approaches and
Strategies," 71.
53
Wolf, "Participation in the Right of Access to Adequate Housing," 280.
54
Gay, "The Right to Housing in France and South Africa," 122.
5 Government of the Republic of South Africa and Others v. Grootboom and
Others, 2000 (11) BCLR 1169 [CCT 11/00].
56 Budlender, "Justiciability of the Right to Housing - The South African

Experience," 10.
7 Government of the Republic of South Africa and Others v. Grootboom and
Others, 2000 (11) BCLR 1169 [CCT 11/00], §§3, 4.
58 Wertman, "There's No Place Like Home: Access to Housing for All South
Africans," 730-1.
9 Budlender, "Justiciability of the Right to Housing - The South African
Experience," 11.
60
Wolf, "Participation in the Right of Access to Adequate Housing," §§23-4.
61
Chenwi, "Implementation of Housing Rights in South Africa: Approaches and
Strategies," 71.
62 Soobramoney v. Minister of Health (KwaZulu Natal), 1997 (32) BCLR 1696

[CCT 32/97], §8.

63 Government of the Republic of South Africa and Others v. Grootboom and

Others, 2000 (11) BCLR 1169 [CCT 11/00], §24.

64 Government of the Republic of South Africa and Others v. Grootboom and

Others, 2000 (11) BCLR 1169 [CCT 11/00], §32.

65 Government of the Republic of South Africa and Others v. Grootboom and

Others, 2000 (11) BCLR 1169 [CCT 11/00], §33.

66
Kende, "The South African Constitutional Court's Embrace of Socio-Economic
Rights: A Comparative Perspective," 144.
67 Government of the Republic of South Africa and Others v. Grootboom and

Others, 2000 (11) BCLR 1169 [CCT 11/00], §38.

68 Government of the Republic of South Africa and Others v. Grootboom and

Others, 2000 (11) BCLR 1169 [CCT 11/00], §§39-40.

69 Government of the Republic of South Africa and Others v. Grootboom and

Others, 2000 (11) BCLR 1169 [CCT 11/00], §§41-44.

70
Id., §45.
71 Government of the Republic of South Africa and Others v. Grootboom and

Others, 2000 (11) BCLR 1169 [CCT 11/00],, §46.

72 Government of the Republic of South Africa and Others v. Grootboom and
Others, 2000 (11) BCLR 1169 [CCT 11/00],, §§95-6.
 SPresidentof the Republic of South Africa andAnother v. Modderklip Boerdery
and Others 2005 (20) BCLR 586 (CC) [CCT 20/04], §68(3)(c).
?"City of Johannesburgv. Rand Propertiesand Others 2006 (6) BCLR 728 (W),

§§27, 42, 51.

75
1d, §§66-7.
76 City of Johannesburgv. RandPropertiesand Others 2006 (6) BCLR 728 (W),
§§30, 60.
77Id., "Order," @l.
78Jafta v. Schoeman and Others, Van Rooyen v. Stoltz and Others, 2005 (2) BCLR
78 (CC) [CCT 74/03], §29.
9
? As per the definition proposed at HABITAT III, informal housing is clustered in

settlements where "1) inhabitants have no security of tenure vis-a-vis the land or
dwellings they inhabit, [...] 2) the neighborhoods usually lack, or are cut off from,
basic services and city infrastructure and 3) the housing may not comply with
current planning and building regulations and is often situated in geographically
and environmentally hazardous areas."
80
Chenwi, "Implementation of Housing Rights in South Africa: Approaches and
Strategies," 82-3.
81 Wertman, "There's No Place Like Home: Access to Housing for All South
Africans," 723.
82
1d., 729.
83
Nattras, et al., ""Two Nations"? Race and Income Inequality in South Africa
Today," 59.
84
Gay, "The Right to Housing in France and South Africa," 124.
85 Sunstein, DesigningDemocracy: What ConstitutionsDo, 234; Cf Kende,
145.
86
Bilchitz, "Towards a Reasonable Approach to the Minimum Core," 9. Emphasis
mine.
87Ibid.
88 Wertman, "There's No Place Like Home: Access to Housing for All South

Africans," 723.
89
1d., 746-7.
90 Napier, "The Housing Problem in South Africa: Ideological Perspectives,"
22.
91
Williams, "The Right to Housing in South Africa: An Evolving Jurisprudence,"
820.
92
Nnadozie, "Access to Basic Services in Post-Apartheid South Africa: What Has
Changed? Measuring on a Relative Basis," 98.
93
Leibbrandt, et al., "Employment and Inequality Outcomes in South Africa," 9,
11, 17.
9 Government of the Republic of South Africa and Others v. Grootboom and
Others, 2000 (11) BCLR 1169 [CCT 11/00], §80; cf, §93.
95
Nnadozie, "Access to Basic Services in Post-Apartheid South Africa: What
Has Changed? Measuring on a Relative Basis,", 90.
96 The Fuller Centre for Housing, "Draft Report: Housing Delivery in South

Africa," 3.
97 Centre for Affordable Housing
Finance in Africa, "South Africa: Housing
Supply."
98
Dugard, et al., "The Right to Housing in South Africa," 31.
99
Ibid.
"'Williams, "The Grootboom Case and the Constitutional Right to Housing:
The Politics of Planning in Post-Apartheid South Africa," 230.
101"In Search of Land and Housing in the New South Africa: The Case of
Ethembalethu," 16.
112 Minister of Public Works and Others v. Kyalami Ridge Environmental
Association and Others 2001 (19) BCLR 652 (CC) [CCT 55/00], §§10-12.
03
1 Constitutional Assembly, "The Constitution of the Republic of South Africa,"

Preamble.
"04 Clark, "Evictions and Alternative Accommodation in South Africa: An
Analysis of the Jurisprudence and Implications for Local Government," 3.
100 56 Popon, et al., "Social Exclusion of Immigrants in France," 7.
1 Verdugo, "Public Housing and Residential Segregation of Immigrants
in
France, 1968-1999," 3.
107 Williams, "The Grootboom Case and the Constitutional Right to Housing:
The Politics of Planning in Post-Apartheid South Africa,", 202.
08
Escafrd-Dublet, et al., "Urban Policies on Diversity in Paris, France," 4.
109 Ware, "Color-blind Racism in France: Bias Against Ethnic Minority
Immigrants," 185.
" Byrne, et al., "The Right to Housing: An Effective Means for Addressing
Homelessness?" 385.
1" Byrne, et al., "The Right to Housing: An Effective Means for Addressing
Homelessness?" 385.
" 2 Driant, "Why isn't there enough housing in France?"
113 Paris Urbanism Agency (Atelier Parisiend'Urbanisme,APUR), "Social
Housing Statistics in Paris in 2015."
"4"In Numbers: The Growing French Homeless Crisis."
" 5Loison, et al., "Increasing Access to Housing: Implementing the Right to
Housing in England and France," 91.
"16Id., 92.
"7 In France, the term "immigrant" (immigre) is used to refer to members of
ethnic minority populations (even if they are French nationals or have never
migrated to France) as well as actual immigrants. Despite its uncommon usage in
French political discourse, and the French aversion to notions of ethnic difference,
the term "ethnic minority" most accurately reflects the composition of this sphere
of contemporary French society.
118 Levy-Vroelant, "The Right to Housing in France: Still a Long Way to Go from
Intention to Implementation," 88.
" 9 Id., 105.
0
Dietrich-Ragon, "On the Sidelines of French Society: Homelessness among
Migrants and their Descendants," §2.
21
1 Levy-Vroelant, "The Right to Housing in France: Still a Long Way to Go from

Intention to Implementation," 97.

1 22 Olds, "The Role of Courts in Making the Right to Housing a Reality Throughout
Europe: Lessons from France and the Netherlands," 177.
1 2 3 Brouant, "Implementation of DALO Confronted by the French Regions, 189.
12 Edgar, "Policy Measures to Ensure Access to Decent Housing for Migrants and
Ethnic Minorities," 19.
125 "International Covenant on Economic, Social and Cultural Rights (ICESCR),"
Article 10, §1.
126 Constitutional Assembly, "The Constitution of the Republic of South Africa,"

§26(1).
127 "International Covenant on Economic, Social and Cultural Rights (ICESCR),"

Article 2, §2.
128 Id., Preamble.
2
9 Bosniak, "Persons and Citizens in Constitutional Thought," 9.
130McGoldrick, "The Charter and United Nations Human Rights Treaties," 108.
131 City ofJohannesburgv. Rand Propertiesand Others 2006 (6) BCLR 728 (W),
§52; cf, Grootboom, §95.
1 32 Levy-Vroelant, "The Right to Housing in France: Still a Long Way to Go from
Intention to Implementation," 102.
133 Turok, et al., "Backyard Shacks, Informality and the Urban Housing Crisis in
South Africa: Stopgap or Prototype Solution," 384.
134 Titmuss, "Universalism versus Selection," 43-4.
135 "Universal Declaration of Human Rights," Preamble.
136 Williams, "The Grootboom Case and the Constitutional Right to Housing: The
Politics of Planning in Post-Apartheid South Africa," 224.
 Works Cited

1989. Loi n 89-462 du 6 juillet 1989 tendant a amiliorerles rapportslocatifs et

portantmodfication de la loi n 0 86-1290 du 23 dicembre 1986. 6 July.
Acces le March 3, 2018. https://www.legifrance.gouv.fr/affichTexte.
do?cidTexte=JORFTEXT000000509310.
Assessment of the Follow-Up: European Federation or Organisationsworking
with the Homeless (FEANTSA) v. France. 2007. Collective Complaint
No. 39/2006 (European Committee of Social Rights (Comite Europeen
des Droits Sociaux), December 5). http://hudoc.esc.coe.int/eng/?i=cc-
39-2006-Assessment-en.
Bilchitz, David. 2003. «Towards a Reasonableness Approach to the Minimum
Core: Laying the Foundations for Future Socio-Economic Rights
Jurispmdence.» South African Journal on Human Rights 19 (1): 1-26.
doi: 10.1080/19962126.2003.11865170.
Bosniak, Linda. 2010. "Persons and Citizens in Constitutional Thought."
InternationalJournalofConstitutionalLaw 8 (1): 9-29. https://academic.
oup.com/icon/article/8/1/9/68263 1.
Brouant, Jean-Philippe. 2011. "Social Housing in All Its States: Implementation
of the Enforceable Right to Housing (DALO) Confronted by the French
Regions." Housing Europe, 278-291. http://serdeaut.univ-paris1.fr/
fileadmin/atelierdroitfiscal/brouant_dalo_anglais.pdf.
Budlender, Geoff. 2003. "Justiciability of the Right to Housing - The South
African Experience." Legal Resources Center. Accessed March 4, 2018.
https://docs.escr-net.org/usr doc/budlenderhousing.pdf.
Byrne, Thomas, and Dennis P. Culhane. 2011. "The Right to Housing: An Effective
Means for Addressing Homelessness?" University of Pennsylvania
JournalofLaw and Social Change 14: 379-390. https://www.law.upenn.
edu/live/files/2591-byrneampculhane 14upajlampsocchange3792011 pdf.
2001. Census 2001: PrimaryTables South Africa, Census '96 and2001 Compared
(ReportNo. 03-02-04). Statistic South Africa. http://www.statssa.gov.za/
census/census_2001/primarytables/RSAPrimary.pdf.
Centre for Affordable Housing Finance in Africa. n.d. South Africa: Housing
Supply. Accessed March 4, 2018. http://housingfinanceafrica.org/
countries/south-africa/.
1991. CESCR General Comment No. 4: The Right to Housing (Art. 11 (1) of the
Covenant). Office of the High Commissioner for Human Rights.
Chamboredon, Anthony, and Nathalie Boccadoro. 2004. France. Final Report,
Florence: European University Institute Tenancy Law Project. https://
 www.eui.eu/Documents/DepartmentsCentres/Law/ResearchTeaching/
ResearchThemes/EuropeanPrivateLaw/TenancyLawProj ect/
TenancyLawFrance.pdf.
Chenwi, Lilian. 2015. "Implementation of Housing Rights in South Africa:
Approaches and Strategies." Journal of Law and Social Policy 4 (1):
68-87. http://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.
cgi?article=1209&context=jlsp.
City of Johannesburgv. Rand Properties (Pty) Limited and Others. 2006. BCLR
728 (W) (High Court of South Africa (Witwaterstrand Local Division),
March 3).
Clark, Michael. 2013. Evictions andAlternativeAccommodation in South Africa:
AnAnalysis of the JurisprudenceandImplicationsfor Local Government.
The Socio-Economic Rights Institute of South Africa. http://abahlali.
org/wp-content/uploads/2008/04/EvictionsJurisprudence_Nov13 .pdf.
Conseil constitutionnel. 1990. «Decision n° 90-274 DC du 29 mai 1990 (90-
274 DC).9 29 May. Acces le March 3, 2018. http://www.conseil-
constitutionnel.fr/conseil-constitutionnel/francais/les-decisions/acces-
par-date/decisions-depuis-1959/1990/90-274-dc/decision-n-90-274-dc-
du-29-mai-1990.8715.html.
1997. «Decision n° 94-359 DC du 19 janvier 1995 (94-359 DC).9 19 January.
Acces le March 3, 2018. http://www.conseil-constitutionnel.fr/conseil-
constitutionnel/francais/les-decisions/acces-par-date/decisions-depuis-
1959/1995/94-359-dc/decision-n-94-359-dc-du-19-janvier-1995.10618.
html.
1946. Preambulede la Constitutiondu 27 octobre 1946. 27 October. Acces le March
3, 2018. http://www.conseil-constitutionnel.fr/conseil-constitutionnel/
francais/la-constitution/la-constitution-du-4-octobre-1958/preambule-
de-la-constitution-du-27-octobre-1946.5077.html.
Conseil d'Etat [Juge des referds: M. Boyon]. 2002. «Association de reinsertion
sociale du limousin et autres, No. 245697.9 http://www.rajf.org/spip.
php?article920.
Constititutional Assembly. 1996. "The Constitution of the Republic of South
Africa." May 8. Accessed March 4, 2018. www.justice.gov.za/legislation/
constitution/SAConstitution-web-eng.pdf.
Decision on the Merits: European FederationofNational Organisationsworking
with the Homeless (FEANTSA) v. France. 2007. Collective Complaint
No. 39/2006 (European Committee of Social Rights (Comite Europeen
des Droits Sociaux), December 5). http://hudoc.esc.coe.int/eng/#{%22E
SCDcIdentifier%22: [%22cc-39-2006-dmerits-en%22] }.
Decision on the Merits: InternationalMovement ATD Fourth World v. France.
2007. Collective Complaint No. 33/2006 (European Committee of
Social Rights (Comite Europ~en des Droits Sociaux), December 5).
http://hudoc.esc.coe.int/eng/#{%22ESCDcldentifier%22: [%22cc-33-
2006-dmerits-en%22] }.
Dietrich-Ragon, Pascale. 2017. "Onthe Sidelines of French Society: Homelessness
among Migrants and their Descendents." Population-E 72 (1): 7-38.
Accessed March 5, 2018. doi: 10.3912/popu. 1701.0007.
Driant, Claude. 2012. Why isn't there enough housing in France? January 1.
Accessed March 3, 2018. www.metropolitiques.eu/Why-isn-t-there-
enough-housing-in.html.
Dugard, Jackie, Michael Clark, Kate Tissington, and Stuart Wilson. 2016. The
Right to Housing in South Africa. Foundation for Human Rights. https://
www.fhr.org.za/files/8515/1247/1750/Housing.pdf.
Edgar, Bill. 2004. Policy Measures to Ensure Access to Decent Housing for
Migrants and Ethnic Minotiries. Final Report, Joint Centre for Scottish
Housing Research. Accessed March 5, 2018. ec.europa.eu/employment_
social/socialinclusion/docs/decenthousingen.pdf.
Escafrd-Dublet, Angeline, Christine Leldvrier, and Sabrina Tenfiche. 2014. Urban
Policies on Diversity in Paris, France. Paris: DIVERCITIES. https://
www.urbandivercities.eu/wp-content/uploads/2013/05/Urban-Policies-
on-Diversity-in-Paris.pdf.
Gay, Laurence. 2004. "The Right to Housing in France and South Africa." Law,
Democracy & Development 7: 119-137.
Government of the Republic ofSouth Africa and Others v. Grootboom and Others.
2000. CCT 11/00 (Constitutional Court of South Africa, October 4).
http://www.saflii.org/za/cases/ZACC/2000/19.html.
Haut comit6 pour le logement des personnes defavorisdes. 2005. <Face a la crise
: une obligation de resultat - 116me rapport du Haut comit6 pour le
logement des personnes defavorisdes.» Government Report. http://www.
ladocumentationfrancaise.fr/rapports-publics/054004453/index.shtml.
Haut comit6 pour le logement des personnes defavorisees. 2002. «Vers un
droit au logement opposable : 86me rapport du Haut comit6 pour le
logement des personnes defavorisdes.» Government Report. http://www.
ladocumentationfrancaise.fr/rapports-publics/024000619/index.shtml.
Houard, Nodmie, and Claire Levy-Vroelant. 2013. "The (Enforceable) Right
to Housing: A Paradoxical French Passion." International Journal of
Housing Policy (Routledge) 13 (2): 202-214. doi:10.1080/14616718.2
013.792464.
Humbert, Marc, and Yoshimichi Sato. 2012. Social Exclusion: Perspectives from
France and Japan. Apollo Books.
1966. "International Covenant on Economic, Social and Cultural Rights." United
Nations Office of the High Commissioner on Human Rights. December
16. Accessed March 4, 2018. www.ohchr.org/EN/ProfessionalInterest/
Pages. CESCR.aspx.
Jafta v. Schoeman and Others, Van Rooyen v. Stoltz and Others. 2004. CCT74/03
(Constitutional Court of South Africa, October 8).
Kende, Mark S. 2003. "The South African Constitutional Court's Embrace of
Socio-Economic Rights: A Comparative Perspective." Chapman Law
Review 6: 137-160.
Leibbrandt, Murray, Ingrid Woolard, Hayley McEwen, and Charlotte Koep. n.d.
Employment and Inequality Outcomes in South Africa. Cape Town:
Southern Africa Labour and Development Research Unit (SALDRU),
1-54. Accessed March 4, 2018. https://www.oecd.org/employment/
emp/45282868.pdf.
2007. «Loi n° 2007-290 du 5 mars 2007 instituant le droit au logement opposable
et portant diverses mesures en faveur de la cohesion sociale.» 5 March.
Acces le March 3, 2018. https://www.legifrance.gouv.fr/affichTexte.
1982. «Loi n° 82-526 du 22 juin 1982 relative aux droits et obligations des
locataires et des bailleurs.» 22 June. Acces le March 3, 2018. https://www.
legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000000691739.
1986. «Loi n° 86-1290 du 23 decembre 1986 tendant a favoriser l'investissement
locatif,l'accessionhlapropriete de logements sociauxet le developpement
de l'offre fonciere.» 23 December. Acces le March 3, 2018. https://www.
legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000000874247.
1990. «Loi n° 90-449 du 31 mai 1990 visant a la mise en oeuvre du droit au
logement.» 31 May. Acces le March 3, 2018. https://www.legifrance.
gouv.fr/affichTexte.do?cidTexte=JORFTEXTOOOOOO159413.
Loison, Marie. 2007. "The Implementation of an Enforceable Right to Housing in
France." European Journal of Homelessness 1: 185-197.
Loison, Marie, and Deborah Quilgars. 2009. "Increasing Access to Housing:
Implementing the Right to Housing in England and France."
European Journal of Homelessness 3: 75-100. Accessed March 5,
2018. http://www.feantsaresearch.org/download/feantsa-ejh2009-
article-37391388556747069517.pdf.
Lonegrass, Melissa T. 2013. "A Second Chance for Innovation -- Foreign
Inspiration for the Revised Uniform Residential Landlord and Tenant
Act." UniversityofArkansas at Little Rock (UALR) Law Review 35: 905-
 973.
McGoldrick, Dominic. 2004. "The Charter and United Nations Human Rights
Treaties." In The European Union CharterofFundamentalRights, edited
by Steve Peers and Angela Ward, 83-122. Oxford: Hard Publishing.
Minister ofPublic Works and Others v. Kyalami Ridge EnvironmentalAssociation
and Others. 2001. CCT 55/00 (Constitutional Court of South Africa,
May 21). http://www.saflii.org/za/cases/ZACC/2001/19.html.
Napier, Mark. 1993. "Housing Problem in SouthAfrica: Ideological Perspectives."
FORUM 2: 21-27. http://research.ncl.ac.uk/forum/v2il/Housing%20
Problemo20in%20South%20Africa.pdf.
Nnadozie, Remigius Chidozie. 2013. "Access to Basic Services in Post-Apartheid
South Africa: What Has Changed? Measuring on a Relative Basis." The
African StatisticalJournal 16: 81-103. https://www.afdb.org/fileadmin/
uploads/afdb/Documents/Publications/African%20 Statistical%20
Journal%20Vol.%2016%20-%20Access%20to%20basic%20
services%20in%20post-apartheid%20South%20Africa.pdf.
Olds, Kyra. 2010. "The Role of Courts in Making the Right to Housing a
Reality throughout Europe: Lessons from France and the Netherlands."
Wisconsin International Law Journal 28 (1): 170-199. https://hosted.
law.wisc.edu/wordpress/wilj/files/201 1/10/olds_170.pdf.
Paris Urbanism Agency (Atelier Parisien d'Urbanisme, APUR). 2016. "Social
Housing Statistics in Paris in 2015." Paris. https://www.apur.org/en/our-
works/social-housing-statistics-paris-2015-edition-2016.
Peppercorn, Ira, et Claude Taffin. s.d. oSocial Housing in the USA and France:
Lessons from Convergences and Divergences.9 Acces le March 3, 2018.
http://siteresources.worldbank.org/FINANCIALSECTOR/Resources/
Affordable_rentalhousingschemes_USA France.pdf.
Pierre, FondationAbb6. n.d. "The Besson Law Concerning the Right to Housing."
http://www.fondation-abbe-pierre.fr/en/la-fondation-abbe-pierre/la-vie-
de-labbe-pierre/besson-law-concerning-right-housing.
Ponzo, Irene. 2010. Immigrant Integration Policies and Housing Policies:
The Hidden Links. Forum Internazionale ed Europeo di Ricerche
sull'Immigrazione (FIERI). fieri.it/wp-content/uploads/2013/04/
Rapporto-social-housing-ethnic-minorities_def_125013-16032011_ita.
pdf.
Popon, Marie, Justine Lopez, and Laetitia Favrot. 2012. Social Exclusion of
Immigrants in France. National Report, Katowice: University of
Economics in Katowice. http://netaware.ue.katowice.pl/wp-content/
uploads/2012/05/Social-exclusion-of-immigrants-in-France-Annecy.
 pdf.
President of the Republic of South Africa and Another v. Modderklip Boerdery
(Pty) Ltd and Others. 2005. CCT 20/04 (Constitutional Court of South
Africa, May 13). http://www.saflii.org/za/cases/ZACC/2005/5.pdf.
2005. «Proposition de loi instituant un droit au logement opposable, No. 2541.9
Assemblee Nationale. 28 September. http://www.assemblee-nationale.
fr/12/propositions/pion2541.asp.
Resolution CM/ResChS(2008)7: The International Movement ATD Fourth
World v. France. 2008. Collective Complaint No. 33/2006 (European
Committee of Social Rights (Comite Europ~en des Droits Sociaux), July
2). http://hudoc.esc.coe.int/eng?i=reschs-2008-7-en.
Sachs, Albie. 2007. "Concluding Comments on the Panel Discussion." Economic
and Social Rights (ESR) Review 8 (1): 17-20. https://joumals.co.za/
content/esrrev/8/1/AJA1684260X_321.
Sunstein, Cass R. 2002. Designing Democracy: What Constitutions Do. Oxford:
Oxford University Press.
Tchokontio Happi v. France. 2015. ECH 116 (Application No. 65829/12)
(European Court of Human Rights (Cour europeenne des droits de
l'homme), April 9). http://hudoc.echr.coe.int/eng?i=001-153479.
The Fuller Centre for Housing. 2014. "Draft Report: Housing Delivery in South
Africa." https://fullercenter.org/wp-content/uploads/sites/default/files/
Housing%20delivery%20%20 South%20Africa.pdf.
1996. "The Habitat Aenda: Chapter IV: B. Adequate Shelter for All." http://www.
un-documents.net/ha-4b.htm.
The World Bank. n.d. "In Search of Land and Housing in the New South Africa:
The Case of Ethembalethu." http://siteresources.worldbank.org/
INTSOUTHAFRICA/Resources/Ethembalethu_Final.pdf.
ThiagrajSoobramoney v. Minister of Health (KwaZulu-Natal). 1997. CCT 32/97
(Constitutional Court of South Africa, November 27). http://www.saflii.
org/za/cases/ZACC/1997/17.html.
Titmuss, Richard. 2014. <Universalism versus Selection.> Dans The Welfare State
Reader, edite par Christopher Pierson, Francis G. Castles et Ingela K.
Naumann, 38-45. Cambridge: Polity Press.
Turok, Ivan, et Jackie Borel-Saladin. 2016. «Backyard Shacks, Informality and the
Urban Housing Crisis in South Africa: Stopgap or Prototype Solution?9
Housing Studies 31 (4): 384-409. doi: 10.1080/02673037.2015.1091921.
United Nations Conference on Housing and Sustainable Development. 2015.
"Habitat III Issue Papers: 22- Informal Settlements." New York. Accessed
March 3, 2018. https://unhabitat.org/wp-content/uploads/2015/04/
 Habitat-III-Issue-Paper-22_Informal-Settlements.pdf.
1948. "Universal Declaration of Human Rights." December 10. Accessed March
6, 2018. http://www.un.org/en/universal-declaration-human-rights/.
Verdugo, Gregory. 2011. Public Housing and Residential Segregation of
Immigrants in Frnace, 1968-1999. Discussion Paper (No. 5456), Bonn:
Forschungsinstitut zur Sukunft der Arbeit (Institute for the Study of
Labor). http://ftp.iza.org/dp5456.pdf.
Ware, Leland. 2014. "Color-blind Racism in France: Bias Against Ethnic
Minority Immigrants." Journal ofLaw & Policy 46 (1): 185-244. http://
openscholarship.wustl.edu/lawjoumal lawpolicy/vol46/iss 1/11.
Wertman, Clarissa A. 2015. "There's No Place Like Home: Access to Housing
for All South Africans." Brooklyn Journal of International Law 40
(2): 719-747. https://brooklynworks.brooklaw.edu/cgi/viewcontent.
cgiarticle=1043&context=bjil.
Williams, John W. 2005. "The Grootboom Case and the Constitutional Right to
Housing: The Politics of Planning in Post-Apartheid South Africa." In
Inclusive Citizenship, 219-234. London: Zed Press.
Williams, Lucy A. 2014. "The Right to Housing in South Africa: An Evolving
Jurisprudence." Columbia Human Rights Law Review 45 (3): 816-845.
https://poseidon01.ssm.com/delivery.php?
ID=557112031066005065110074064002098122015034023029070035
076121021030090089076125065112102121034022126027016025074
127110073110010045000073046060087088008097088071104090066
0760721151060800890640970001150041000750190.
Wolf, Ralph. 2007. "Participation in the Right of Access to Adequate Housing."
Tulsa Journalof Comparativeand InternationalLaw 14 (2): 269-294.