VAN DER WESTHUIZEN J
[48] Much of the City‘s oral argument in this Court dealt with whether, on a proper
interpretation of Chapter 12, it is entitled or obliged to fund emergency
accommodation. The City contends that it is neither entitled nor obliged to do so. It
submits that when its application to the provincial government for assistance was
refused, the City exhausted its constitutional mandate.
[49] The City states that the National Housing Code was adopted pursuant to
Grootboom, which suggests that the responsibility to fund emergency housing does
not lie with local government. Based on Grootboom, the City argues that local
governments have an important obligation to ensure that services are provided to the
communities they govern, that ―funding‖ language was used only in connection with
national government and that local governments are allocated certain implementation
responsibilities only in terms of legislation.51
[50] The City argues52 that the functional area of housing appears in Schedule 4A of
the Constitution.
Schedules 4B and 5B do not confer on local government any
function that can be seen to place the onus on it to be the organ primarily responsible
for the fulfilment of the right of access to adequate housing. Local government is not
primarily responsible for the achievement of this right. The Housing Act requires
local governments to act only as a point of delivery. They are entirely dependent on
the national and provincial governments and confined to acting within the parameters
51
See Grootboom above n 12 at paras 39-40 and 47.
52
The City relies on De Visser ―A Perspective on local government‘s role in realising the right to housing and
the answer of the Grootboom judgment‖ (2003) 7(2) Law, Democracy & Development 201.
24