The justiciability of the right to housing to advance social rights: The case of Cape Town and Rotterdam

Abstract

This thesis examines how the justiciability of housing rights influences their realisation through an analysis of housing and spatial justice struggles in two urban contexts, both centring around the effects of gentrification on the rights of marginalised communities: the Tafelberg case in Cape Town and the Tweebosbuurt case in Rotterdam. It explores how the different legal frameworks of South Africa and the Netherlands shape the adjudication of housing rights claims of urban social justice movements. It examines how the different modalities and scope of justiciability of the right to housing in both countries shape access to justice in different ways, illustrating how the 1996 South African Constitution provides more opportunities for lower income and/or historically marginalised residents who are being displaced by gentrification to enforce their rights to adequate housing through court. It also puts forward that, beyond the justiciability of the right to housing, courts can play a proactive role in rights protection if they progressively interpret international human rights and constitutional law. It is shown how the International Covenant on Economic, Social and Cultural Rights, read together with the South African Constitution, creates an obligation for (local) governments to adopt measures towards protecting and advancing the right to adequate housing that are at odds with (elements of) urban gentrification policies that further limit access to affordable housing of vulnerable groups. The two cases demonstrate that the extent to which the adjudication of social rights can contribute to advancing housing and spatial justice agendas also depends on the judiciary’s willingness to identify and enforce positive obligations and to subject urban housing policies to substantive review. While the thesis does not aim to make a comparison between the two countries’ legal approaches nor presents an exhaustive examination of housing rights cases, it contributes to ongoing debates about whether, how and to what extent courts can advance progressive social rights agendas.