Location Matters: Reclaiming the Right to Earn a Living in South Africa

[Timothy Fish Hodgson is a senior legal adviser for ESC Rights at the International Commission of Jurists (Africa).

Valentin Büchi is a legal intern with the International Commission of Jurists (Africa).]

On 23 April 2025, the Supreme Court of Appeal of South Africa (SCA) handed down a judgment in which it found that an eviction order against waste reclaimers had to fully consider and respect their right to “earn a living”. This creates a precedent that, in determining where the authorities should relocate waste reclaimers upon their eviction, efforts need to be made to ensure that they can continue plying their trade. Prior to this decision, South African authorities had consistently denied an obligation to consider reclaimers’ ability to continue plying their trade upon eviction.

The International Commission of Jurists (ICJ) intervened in the case as amicus curiae, arguing that international law and standards in respect of the rights to housing and work in particular required authorities to consider the ability of the reclaimers to continue plying their trade upon eviction. Specifically, the ICJ argued that in line with the UN Committee on Economic, Social and Cultural Rights (CESCR) jurisprudence, the location is a critical and essential component of the right to adequate housing that requires housing to be in a location which allows access to employment opportunities. Read consistently with the right to work under international law, the ICJ submitted, States have the prima facie obligation to not reduce existing access to such employment through eviction or relocation.

In coming to its conclusion, the SCA took up this argumentation and applied both South African constitutional principles and international human rights law and standards, reasoning that “one of the defining features of what constitutes adequate housing” is “the location” of the housing in question, such that “adequate housing must be in a location which allows access to employment options, health care services, schools, childcare centres and other social facilities”. For the Court, it followed that the authorities had therefore “acted unreasonably” in refusing to consider the continuation of the reclaimers’ work after their eviction.

Background

The occupiers in this matter were a community of over 100 persons, including children and households headed by women alone, who had lived, often for many years, on the occupied land. Most of the occupiers relied on waste reclaiming as their only source of income. Many were not South African citizens, which made finding other forms of employment even more difficult. The reclaimers extracted recyclable materials from the waste of industrial sites located near the property and transported it back to the property, where they sorted, cleaned and stored the materials before selling them to recycling companies. 

Importantly, the waste reclaimers were dependent on the high value waste available in the vicinity of the property and on the ability to clean, sort and store the material on the property where they also reside. This is because there were no nearby public places for such activities, and it was not feasible to conduct all the necessary activities within a day. 

Therefore, represented by the Socio-Economic Rights Institute of South Africa, the reclaimers argued that any eviction order granted against them which did not allow them to continue their reclaiming activities on the land to which they were relocated would deprive them of their livelihoods. This, it was argued, was in contravention of their rights to housing and to earn a living as a component of their right to dignity under the South African Constitution.

In South Africa, waste reclamation is run on a largely informal basis, and, with official unemployment rates as high as 32.9%, the sector provides a crucial source of income for at least 90,000 people who may not be able to find other forms of work. In addition to the economic benefits to reclaimers themselves and the broader environmental benefits of waste reclaiming, it is estimated that reclaimers also save struggling local governments up to R750-million a year in landfill space. Nonetheless, reclaimers are often harassed by law enforcement officers and treated as nuisances instead of rights holders whose work has significant social, economic and environmental benefits.

The Litigation

The owner of the property applied for an eviction order in 2020 before the High Court. During discussions about alternative locations for the waste reclaimers to be resettled in the event of such an eviction order being granted, the City eventually proposed a location that all parties could agree upon. However, it sought to impose a condition that the reclaimers agree to not continue their reclamation activities once relocated. Given the impact on their livelihoods, this was understandably unacceptable to the waste reclaimers. On 4 October 2022, the High Court handed down a judgment deciding that:

The land chosen by the City shall be land where the 1st to 71st respondents can live at night and there lawfully and safely sort the reclaimed waste and from where they can reasonably go during the day to use their flatbed trollies lawfully and safely to collect waste.

Unsatisfied with this outcome, the City appealed the decision to the SCA, arguing that the occupiers claim that they have a right to earn a living amounted to a “commercial interest” which was irrelevant to the consideration of where they could permissibly be evicted to and under what conditions. Unlike the High Court, which did not significantly address the substantive issues in its reasoning, other than highlighting the importance of the rights of children involved, the SCA’s judgment provides a detailed discussion of the domestic and international legal human rights standards applicable.

In its judgment, which affirms the High Court’s decision, the SCA clarified that the purpose of the applicable section 4(7) of the Prevention of Illegal Eviction from Unlawful Occupation of Land Act 19 of 1998 (PIE Act) – which governs evictions of unlawful occupiers in South Africa – is not just to provide a procedure for eviction, as claimed by the landowner, but also to prevent “arbitrary and violent evictions and forced removals that were a cornerstone of apartheid laws.” The law, according to the SCA, is crafted in a way to respect “the constitutional rights of occupiers, in particular the vulnerable amongst them”. Section 4(7) of the PIE Act therefore permits a court order for eviction only if the court is of the “opinion that it is just and equitable to do so, after considering all the relevant circumstances”.  

Underlying the PIE Act, the core constitutional right at stake in this case was the right to adequate housing under section 26 of the South African Constitution, which is also protected in terms of Article 11 of the International Covenant on Economic, Social and Cultural Rights. Moreover, while the Constitution does not explicitly provide for a “right to earn a living”, the occupiers argued that the right to dignity in the South African Constitution should be interpreted to include a right to earn a living.  

South African jurisprudence has settled on multiple occasions the right to alternative accommodation of occupiers who would otherwise be rendered homeless upon their eviction. The disputed aspect in this matter was therefore not whether the reclaimers were entitled to alternative accommodation but rather whether such provision of alternative accommodation should consider – and be conducive to – their life sustaining activities. 

In coming to its conclusion, the SCA turned to international law and standards raised in argument by the ICJ for assistance. In particular, it relied on the CESCR’s General Comment No.4, in which the Committee emphasized that “adequate housing must be in a location which allows access to employment options…” The Court thereafter held that:

The City in the present case acted unreasonably by seeking to subject the relocation of the Occupiers to a condition that prevents the latter from earning a living at the temporary emergency accommodation.

Discussion

The Court’s decision is important in several respects.

Firstly, and following on a long line of jurisprudence relating to evictions and housing rights in South Africa, it applies international law, including the jurisprudence of the CESCR Committee.

Secondly, generally, it affirms the constitutional and international law basis for a right to earn a living in South Africa. This is particularly important given the Constitution’s omission of a right to work. This omission has been noted by the CESCR Committee in its concluding observations to South Africa, where it recommended that the right to work and right to an adequate standard of living are “fully recognized in its Constitution and domestic legislation and that [these] provisions of the Covenant can be directly invoked before domestic courts”.

Thirdly, by drawing the connection between the right to adequate housing and the right to work, the SCA emphasized the indivisibility, interdependence and interrelatedness of human rights. The right to adequate housing should not be understood isolation from other rights, including the right to earn a living.

Finally, the judgment implicitly acknowledges the social and economic value of waste reclaimers’ work. In doing so it is hoped that it will act as a bulwark against the further harassment of waste reclaimers and the violation of their rights for simply attempting to undertake life sustaining activities.