Right to housing and constitutionalism in the global south: analysis of South African Supreme Court decisions gradual implementation and meaningful engagement

Abstract

Modern constitutionalism, which relies on theoretical matrices predominantly coming from the European and American tradition, presents general characteristics that were consolidated throughout the 18th and 20th centuries, presenting common characteristics adopted by the great majority of countries, including the Primacy of the Constitution, the incorporation of social rights and the creation of Constitutional Courts as the last instance in Constitutional matters. Within this framework, several debates have arisen regarding the role of the Judiciary in order to guarantee rights, mainly social, and the role and legitimacy of the Judiciary in the face of the dichotomy established between budgetary limitations and the satisfaction of these rights regarding judicial protection. This article intends to demonstrate that these issues take different forms in countries of late modernity, creating legal and interpretative theories, as in the institute of “gradual implementation” and “significant commitment” in the South African Court. This article addresses the theme exposed through the analysis of decisions of the South African Supreme Court, dialoguing on the housing deficit in South Africa and Brazil, presenting the global south as a political, geographic, and legal space with the capacity to produce theories for problem-solving, and here with emphasis on the crisis of realization of social rights.