University of Johannesburg and University of Reading

Abstract

It has become almost a mantra of international human rights law that all human rights are interdependent and interconnected. Yet, this statement is often accepted as a form of dogma without engaging with the questions it raises. If human rights are so intertwined, how do courts determine when one right should be applied instead of any other? How are rights individuated from one another? If they are distinct, in what way are fundamental rights interconnected? In this presentation, I will consider these complex questions concerning the individuation and interconnection of fundamental rights specifically in relation to a particular right: the right to adequate housing. I shall utilize the Dladla case[1] where the Constitutional Court had to address whether the right to adequate housing applied. In doing so, the majority of the Court and the judgment of Cameron J outline starkly different approaches to determining whether the case implicates the right to housing or other rights.  I will distinguish two approaches: a ‘differentiation approach’ adopted by the majority and an ‘integrated approach’ adopted by Cameron J in his minority judgment.  I compare the South African approach with that adopted by the Constitutional Court of Colombia towards the individuation and interconnection of the right to housing. I then consider how these considerations play out in circumstances where there is a stark need to prioritise resources in circumstances of emergency and temporary accommodation. The paper ultimately seek to consider which approach is preferable and able best to capture fully why individuals have an interest in housing and the consequent obligations that should flow from such an understanding.

Bio:

David Bilchitz is a Professor of Fundamental Rights and Constitutional Law at the University of Johannesburg and Director of the South African Institute for Advanced Constitutional, Public, Human Rights and International Law (SAIFAC). He is also a part-time Professor of Law at the University of Reading in the United Kingdom. He was appointed as an Acting Justice of the Constitutional Court of South Africa from February to May 2024, the first full-time academic to have been appointed directly to act as judge on the Court in over 20 years. He is also a Vice-President of the International Association of Constitutional Law and a Member of the Academy of Sciences of South Africa.

Bilchitz has multiple publications covering a wide range of topics including writings on proportionality, socio-economic rights, business and fundamental rights, the separation of powers, and the rights of non-human animals. In the field of socio-economic rights, his monograph Poverty and Fundamental Rights (OUP, 2007) remains a central text in defending the minimum core approach to determining the content of socio-economic rights. In addition to impactful journal articles and book chapters, teaching and conference presentations, he has, notably, developed an important course on socio-economic rights for the Mexican judiciary.

[1] Dladla v City of Johannesburg 2018 (2) SA 327 (CC).