Volume: Volume 6(2) - 2002

Article type: Refereed article

Author/s: Pillay, Kameshni

Kameshni Pillay argues that the Grootboom judgment had not (at the date of writing) resulted in a comprehensive national programme to provide accelerated access to land for people in desperate situations. This can be at least partially attributed to the fact that the order handed down by the Constitutional Court stopped short of compelling the state to take steps to rectify its housing programme.

Grootboom, it is argued, demonstrates that if the judiciary does not adopt a robust approach by compelling the other branches of the state to meet their constitutional obligations, court orders will be ineffective in addressing unconstitutionality. The judiciary will therefore run the risk of failing in its own constitutional obligation. Although the mandatory orders handed down in Minister of Health v Treatment Action Campaign are an improvement, the Court declined to include a structural interdict because it found no reason to believe that the government would not execute its orders. The author argues that this stance was unjustified, given the facts of the case and the questionable implementation of the Grootboom judgment.

Click to view and download article