‘Not everyone gets a house’: ministry on Kubayi’s housing rights remarks

“When the constitution says we must ensure that there is shelter, [that] people have a right to shelter, it is not because it says it must be done by the government; we must create a conducive environment for people to also access shelter in the private space.” 

These were the words of human settlements minister Mmamoloko Kubayi during an interview on Newzroom Afrika which have caused controversy over her interpretation of the constitution and what government’s role is in the provision of shelter.

The minister was speaking about the department’s housing policies in the Housing Act: Draft White Paper. Kubayi’s interpretation of the constitutional housing right has been labelled by some as “misinformation”. 

Section 26 of the Bill of Rights reads: “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 the progressive realisation of this right.” 

Speaking to TimesLIVE, the former director of the Helen Suzman Foundation and a member of Change Starts Now, Nicole Fritz, described Kubayi’s comment as “misleading”. 

“The minister’s comment is completely misinformed and has little understanding of the constitution. When the rights such as the right to housing are set out in our bill of rights those obligations are specific directives to the government,” she said. 

The former head of Freedom Under Law referenced the case of the late Irene Grootboom, who 24 years ago won a case against the government for better housing at the Constitutional Court with her win pinned on section 26.

“In the Grootboom case that is decades old, it was made very clear by the Constitutional Court that the state is required to take all available measures to progressively realise this right. The minister of settlements is basically disavowing the application of this constitutional privilege,” Fritz said.

She said the courts recognised the government’s budgetary constraints which cause delays in housing provision. 

“We have now for years had a clear Constitutional Court jurisprudence which recognises the rights to housing, that budgetary constraints mean that it may not be possible for the government to realise that right extensively in an immediate time frame.” 

Ministry spokesperson Hlengiwe Nhlabathi-Mokota said the minister’s remarks were misunderstood and that she meant “not everyone” would be provided shelter by the government. 

“The minister’s comments were referring to the importance of placing emphasis on the segmentation of the housing market, as part of the policy proposals in the Draft Human Settlements White Paper. Her reference to the creation of the conducive environment was precisely to make the point that there are other indirect ways that the government will assist South Africans to access adequate shelter, which include through grants and subsidies, she said. 

“Simply put, the government cannot and will not build a house for everyone. However, where necessary, it will provide a conducive environment within its available resources for the private sector to create housing stock for other income groups.” 

Nhlabathi-Mokota said the department’s policy currently detailed it should provide free housing for households with incomes between nil and R3,500 (monthly), including designated groups and military veterans.

“Furthermore, the government provides assistance through grants and subsidies to what is called the gap market, or the missing middle — those who cannot access bond financing from financial institutions and yet do not qualify to receive free houses from the government. These are families earning between R3,501 and R22,000 a month.” 

Watch full interview here. Here are some reactions from social media: 

TimesLIVE