The negative obligation of the housing right: An analysis of the duties to respect and protect
Authors Michael Dafel
Affiliations: Researcher, South African Institute for Advanced Constitutional, Public, Human Rights, and International Law (SAIFAC), a Centre of the University of Johannesburg
Source: South African Journal on Human Rights, Volume 29 Issue 3, 2013, p. 591 – 614
The extent to which non-state actors play a role in the realisation of socio-economic rights is a contentious issue. In South Africa, and in the context of housing rights, the Constitutional Court has, in part, employed the negative obligation of the s 26(1) right of access to adequate housing to define the role of non-state actors. Although the central feature of the negative obligation is to inhibit state and non-state actors from interfering with another’s housing resource, the negative obligation’s impact is far more complex. The court has utilised the three components of the negative obligation, namely the state’s duty to respect, the state’s duty to protect, and the non-state actor’s duty to respect to regulate the relations of non-state actors. First, the state’s duties require the establishment of a legal framework that allows for the judicial evaluation of competing private rights; and, second, the non-state actor’s duty, if it finds application, permits the courts to impose positive or financial obligations on non-state actors. This framework reveals that non-state actors are limited duty bearers and role-players in the realisation of another’s housing right.