Constitutional Hill

A (partial) victory for Joe Slovo residents

The Constitutional Court today granted an order for the eviction of Joe Slovo residents to far off Delft to facilitate the building of houses as part of the N2 Gateway Project. The fact that the court ordered the removal of people from their homes where they have lived for the past 15 years, will rightly be harshly criticised. It has failed to display the kind of “grace and compassion”  one would expect of the self-styled champion of the vulnerable and dispossessed.

However, in a 220 page judgment (which I am still digesting) the court somewhat mitigated the hardship and trauma that the inhabitants of Joe Slovo will now endure, by ordering the respondents to allocate 70% of the Breaking New Ground houses (that is low-cost government housing available at low rentals) to be built at the site of Joe Slovo to the current residents of Joe Slovo; and those former residents of Joe Slovo who left Joe Slovo after the N2 Gateway Housing Project was launched after being requested to do so by the respondents or the City; and who apply for and qualify for this housing.

The Court therefore set aside the order originally granted by Judge President John Hlophe in the Cape High Court, which would have forced Joe Slovo residents to go and live 15 km outside the city with no guarantee of being accommodated in the new development. Seeing that the government had previously broken its promise that those removed from Joe Slovo would be accommodated in the newly built houses, this can be seen as at least a partial victory for the residents of Joe Slovo.

If the original order of Hlophe was followed, the vast majority of Joe Slovo residents would have permanently been removed from their homes close to the city and – apartheid style – would have been dumped in the bundoe where they would have been forced to live indefinitely. The land next to the N2 Highway along which dignitaries and visitors to the Soccer World Cup would have driven into the city to the 400 million Rand soccer stadium would have become home to middle class families while the poor residents of Joe Slovo would have been forgotten – unless until the next election.

Deputy Chief Justice Moseneke makes clear why the original order issued by Hlophe was so callous and unfair, stating:

I must emphasise that, on the facts of this case, I would have had great difficulty in holding that it is just and equitable to forcibly evict the residents of Joe Slovo and to relocate them far from their homes and modest comfort zones in order to give way to the construction of new subsidised homes in circumstances where the evicted residents would have had no reasonable prospects of satisfying their own dire need to access adequate housing. That eviction and relocation order [issued by Hlophe] would have made the residents of Joe Slovo sacrificial lambs to the grandiose national scheme to end informal settlements when the residents themselves stood to benefit nothing by way of permanent and adequate housing for themselves.

Today’s judgement remains perplexing though, because it condones a forced eviction of a large group of settled residents and endorses a government vanity project that seems to run counter to the government’s own housing policy which states that informal settlements should be eradicated through in situ upgrading where possible.

In this case the government has not shown why the informal settlement could not have been upgraded without removing the residents of Joe Slovo lock, stock and barrel. Some removals might have been necessary given the overcrowded conditions, but surely it would have been more humane to try and upgrade the settlement with the least disruption to the more than 4000 families involved?

I will have to study the judgment in more detail, but at first blush it seems to demonstrate how timid the court can sometimes be when it applies the reasonableness standard to evaluate the actions of the state. To my mind it does not seem reasonable, nor does it seem fair and just, to uproot a whole community for the sake of prettifying the major tourist access route to Cape Town.

At least the government will now be in contempt of court if it again breaks its promise to accommodate those removed in the newly built houses. Judging by its previous actions I suspect we have not heard the last of this matter.

  • http://www.heyns.co.za Mzo

    Prof

    “To my mind it does not seem reasonable, nor does it seem fair and just, to uproot a whole community for the sake of prettifying the major tourist access route to Cape Town”

    Yacoob J says the following: “The human
    price to be paid for this relocation and reconstruction is immeasurable. Nonetheless it is not possible to say that the conclusion of the City of Cape Town, to the effect that infrastructural development is essential in the area and that the relocation of people is
    necessary, is unreasonable. There are circumstances in which there is no choice but to undergo traumatic experiences so that we can be better off later.”

    I think your statement is a bit overboard and shows your lack of understanding of what the City/govt is ACTUALLY trying to do.

  • The Big Slipper

    I suppose it’s debatable…it would be preferable to upgrade without moving residents, but then again, who knows what infrstructure needs to be laid…and I presume if there were any deaths or injuries related to an in situ upgrade the City would then find itself liable for damages?

  • Michael Osborne

    Pierre, you are correct in pointing out that the CC’s judgment is a great improvement on that of the Court below. (Note Yacoob J’s swipes at Hlophe JP’s order as “unusual.”)

    But you go on to say that the CC’s decision can rightfully be “harshly criticised.” To me, that demonstrates that you – like most legal academics I know — are wedded to an unworkable countermajoritarianism. Perhaps the only cure for your condition would be to be elevated to the bench yourself. I humbly suggest that you would find that judges have neither the time, nor the competence, nor the capacity, not the legitimacy, to second-guess every governmental decision that impacts adversely fundamental rights. This may sound harsh. It is. But it is a grim, ineluctable, reality that courts cannot function in the modern administrative state without showing a good degree of deference (or, to use the more fashionable term, “respect”), for administrative decision makers, including some very bad decisions. And yes, that means upholding administrative decisions that you would not have made yourself, and which you know will be experienced as devastating by vulnerable individuals.

    If you doubt that being on the bench would radically alter your perspective, perhaps we should visit a very well respected judge about town. During his many years as an academic, this man famously advocated a strong countermajoritarism in countless articles books, articles and speeches. Like you, he was prone to decry as an abomination any judicial decision that went against the underdog, the poorest of the poor.

    I predict he will tell you that things look very different from the bench than they do from the academic sidelines. Even the most idealistic, progressive professor comes to understand quite soon after she or he first dons his robes that judicial power has its limits.

  • Anonymous

    Everything legal is negotiable based on one’s ideological stance. That is, i think, the root of the problem here. Any judge can interpret what is in the constitution in alternative ways. The Concourt, though it may be more progressive than the lower courts, ultimately gives the perspective of those who appointed it (the government – mostly ANC) and in particular the perspective of wealthier people.

    Thus, the Concourt has no idea what the actual difference between living in Joe Slovo in Langa and living in Temporary Relocation Areas in Delft. There is a reason why Delft is considered the City’s dumping ground of the poor. The judgement gives no acknowledgement to the higher crime rates in Delft, the substandard nature of schools, the lack of electricity, the lack of jobs in the area, etc. How is someone who gets paid 1,000 Rand per month and spends 5 rand per day for train fare going to afford paying 30 rand per day for Taxi fare? There is NOTHING just or equitable about this.

    This judgement also ignores the fact that there is plenty of land in Cape Town to build houses. Why did the government choose that piece of land? Why not build houses first where the land is open and then move shackdwellers there?

    This judgement also ignores the fact that government built TRA shacks of only 24 sq meters is way too small for a family of 5 – whereas that same family could live in a 4 bedroom shack in Joe Slovo.

    I am not idealising Joe Slovo. Its not a lovely place to live. But there is a reason why 90% of Joe Slovo residents prefer to live in a shack in Joe Slovo than get a brand new BNG house in Delft.

    Any reasonable person (especially one that has actually visited Langa and Delft and seen the complete utter failure of the N2 Gateway in creating ‘sustainable human settlements’) should clearly be able to see how the entire project is against the poor while pretending to be eradicating slums. In reality, they are just relocating slums and making the poor even poorer

  • Pingback: Academia: A (partial) victory for Joe Slovo residents « Western Cape Anti-Eviction Campaign()

  • http://hismastersvoice.wordpress.com/ The Creator

    Joe Slovo is a shackland. Every year there are massive fires which kill people and destroy all their property. It’s unhealthy in every imaginable way. The fact that it’s easy to get from there to your job is the only reason why people would want to live there.

    The real problem is that there’s no easy transport from Delft. If the state provided guaranteed cheap transport from Delft there would be far less of a problem.

    Incidentally, comparing this with the way the apartheid state destroyed homes and dumped people shows that you have no knowledge of the way the apartheid state destroyed homes and dumped people (you could try looking up the Surplus People’s Project for the facts) or else that you are very dishonest, which is not a good thing to put in a constitutional lawyer’s CV (or ought not to be).

  • http://constitutionallyspeaking.co.za Leigh

    I have only two points to make. In the first place, I think Michael makes a fairly valid point insofar as life on the bench probably looks quite different from life in the class room. That is not to say that academics do not make valuable contributions. It is just that many of us are, in a sense, molded by our experiences (or lack thereof).

    Secondly, and notwithstanding the content of my first point, I do think that Michael does something of an injustice to the Professor. He does this injustice insofar as he ventures a sweeping reproach of academics but neglects to consider the content of the Professor’s criticism of the Constitutional Court judgment. And bearing in mind that I have not read the judgment, the criticsm seems well-made.

    At the core of it, the Professor seems to say that in applying its reasonableness standard, the Court was insufficently critical of government. And to be quite honest, I do not see how this contention discloses anything in the way of naivety. Not that I am the most wordly person, but I too would like to know why government effectively ‘got away with’ not placing facts before the Court evincing why construction could only proceed in the absence of the Joe Slovo residents.

  • khosi

    The business of HIV…..

    http://www.saponzi.co.za/

    Sorry for the detour. :-)

  • The Stick

    @ khosi…

    whatever!

  • Michael Osborne

    Leigh, thanks for your well considered post. My criticism of Pierre’s response to the decision is not so much directed at the response to this particular decsion, but rather to his broader approach. Has there EVER been a single case involving a dispute between a poor or marginalised individual and the State which Pierre has opined that, on balance, a court correctly ruled in favour of the state? Probably there has been. But I have never heard of it.

    I have often wondered why it is that almost every public law academic I read or know personally leans heavily in favour of judicial activism, and tends to pooh-pooh countermajoritarianism type arguments. (This applies as much in the U.S. as here.) Of all the SA public law academics I know, it is only Iain Currie and, occasionally, Cora Hoexter, that one occasionally hears calling for a certain judicial minimalism.

    Is there something in the rather bad coffee one finds in law school staff rooms that causes people who keep offices there to incline to maximise judicial power, more so that many judges themselves do? Is it that judges are more susceptible to pressure from the state than are academics? Are academics just more apt to be distrustful or cynical about legislators and administrators, less willing to defer to their decisions? I do not know.

    But I suspect — as suggested in my posting of yesterday — that it has something to do with judges :(i) having a more practical, immediate understandings of the enormous responsibilities of adjudication; (ii) being forced, in the course of adversarial litigation, to recognise that there are indeed two sides to most arguments.

    P.S. I suspect the work of Alvin Gouldner on the intellectual means of production may shed some light on the sociology of legal academia. Have not seen anything he has written on this issue though

  • http://constitutionallyspeaking.co.za Leigh

    Michael, thank you for directing your attention to my points. I have looked forward to your response as your contributions are typically insightful.

    I take your point about public law academics to mean that in general, they back the individual against the State as a matter of course almost. I think you might be right. Given its incredibly onerous responsibilities, its regrettable pecuniary limitations and the host of factors of which its officials must take cognisance, mabe academics should cut governmant the smallest measure of slack every once in a while.

    That being said, I would like to ask: do these idealists serve a fairly useful purpose inasmuch as it may be potentially helpful to have one body of lawyers consistently identify ideals as opposed to everyone trying to be realistic? I think they just might. And my reasoning is quite straightforward. Of course the courts should be realistic and appropriately deferential. However, we should be mindful of the danger of the term ‘realistic’ becoming a byword for token effort. And this is where I think , with all respect, the occassionally knee-jerk idealism of academics is quite welcome.

  • Michael Osborne

    Leigh, your point is well take; a moral division of labour may be just what we needed.

    Let me add this though: Countermajoritarian academics do not necessarily occupy the moral high ground. Indeed, from one perspective, the majoritarian approach — that legislators are more democratically accountable than judges, and can read the constitutional text as well as any judge — is more idealistic (even naive?), than the judicial maximalism favoured by so many academics.

  • http://constitutionallyspeaking.co.za Leigh

    Michael, thank you for pointing out what may well be something of a flaw in my reasoning.

    Forgive me if I have missed the mark, but I understand your point as follows: judicial idealism (if I may coin the phrase) is something of a fluid, relative notion. That is, as regards the making, implementation and development of law, there is something to be said for both maximalism on the one hand, and minimalism on the other. And by the former I mean laws promoting fairly broad State accountability and responsibility whereas quite naturally, I mean the converse by the latter.

    If I have the right of your point, I must say it strikes me as fair indeed. Some executive officials are unworthy I expect. But that does not mean that none of them are honourable or that the State never does demonstrably the right, idealistic thing.

  • Pierre De Vos

    Michael I think your comments are interesting. However, I would say it is a bit like arguing that a movie reviewer should judge the new Superman movie according to the same criteria as a new Lars von Triers effort. Judges and academics do different things. I would not want a judge to do what I do. If I was a judge I would not want an academic to do what I do either. My job as a public lawyer is to fight and argue and charm and cajole to expand protection of rights and freedoms. Judges have a more limited role. Each to her own.

  • http://constitutionallyspeaking.co.za Leigh

    Professor, it seems you understand your basic function as a public law academic to be to argue vigorously in favour of seeing the scope of rights and freedoms expanded. That is, at least on the face of it, fairly commendable.

    However, let me ask you this if I may: do you think that your grasp of your basic function as a public law academic necessarily precludes you from adopting a more nuanced stance when the occasion may well call for it? And by nuanced, I mean adopting a more sympathetic stance to government where the adoption thereof is merited on the facts.

  • Michael Osborne

    Pierre, I think the dichotomy is less straightforward than you suggest. Hoexter suggests that, in a democratic state judges should perhaps be more willing to defer to administrators. I gather that is for so two reasons. One is because democratic legitimacy can be (rebuttably) presumed. Second, especially in a developmental state, essential public programs will never get off the ground if the kind of individual protections,and endless appeals and reviews etc., as accorded in countries like England and Australia are always fastidiously afforded.

    As I see it, the flaw in your argument is that the “expansion and protection of rights and freedoms” does not necessarily weigh on only one side of the scale. The argument can be made that there are circumstances where the best way of expanding rights and freedoms is allowing the state to get on with its developmental agenda. Academics should surely incorporate that debate in their discourse, rather than assuming — as many do — that judicial interventionism is the always best way of vindicating the promises of the Constitution.

    Yes, that sometimes means that, as Yacoob J recognised, individuals will suffer grievously. Such are the tragic choices forced upon us by the cruel exigencies of the real world. Academic criticism is enriched, not diverted, by recognition of this fact.
    .

  • The Big Slipper

    To all the Mzos, Spuys, et al out there – please read the above and see what a debate should be like – not one mention of racsim, colonialism etc!

    Enjoying this guys, good going :)

  • Mpho

    Before this descends into yet another misguided ego rush for Michael, can I discuss the case?

    Has anyone got an opinion on why costs were given for the losing party? Do you think the court wanted to direct some developers profits into the Legal Resource Centre’s coffers? Or do you think it is due to the recent appeal in relation to public interest litigation being for the benefit of us all?

  • Michael Osborne

    Mpho! Please give some guidance so I can avoid repeating my misguided rushing! Thanks in anticipation!

  • Pierre De Vos

    Mpho, they were not the losing party. The appeal was partly successful as the anti-poor and heartless order of the high court was overturned and replaced with a far more considered and compassionate order…..

  • Pierre De Vos

    Michael I do not disagree. Many posts on this Blog reflect – I hope – some sympathy for the difficulties involved in constitutional adjudication and the difficult choices faced by judges. One can, I hope, be both an idealist pushing the boundaries and a “realist” acknowledging the difficulties involved….

  • Michael Osborne

    Pierre, my challenge to you is this. Name ONE decided constitutional (non-criminal), case in which the state won out over a plaintiff or applicant who was marginalised or poor, and where you expressed your approval of the decision.

  • Pierre De Vos

    Michael, Soobramoney (see SAJHR article on Grootboom) comes to mind.

  • Michael Osborne

    Leigh, I think your question for Pierre is well put. As he so often points out, the notion of a dispassionate observer is a myth; we all bring our values to every judgment we make. But
    Pierre sometimes seems to take the conception of the engagé legal intellectual to the point where it would short-circuit critical analysis. It is an antique liberal jurisprudence that proceeds from the assumption that individual remedies applied by countermajoritarian judges is always the best way to expand rights and help the poor.

  • Pierre De Vos

    Leigh and MIchael, I have often written about problems with a kind of “constitutional essentialism” (as Dennis Davis and Michele Le Roux calls it in their new book) that thinks we can solve all problems by running to our courts. Political mobilisation and struggle is just as important as legal struggle. For tactical (you guys might call it pragmatic) reasons one must sometimes retreat and acknowledge the limits of law. Relying solely on law to effect social change may well delegitimise the legal institutions like our courts. A balance is surely required. I do not think we disagree on this. But within this matrix (as Sachs would say) some of us will push harder and others will be more pragmatic. It is about our view of our role in the larger scheme of things, I guess.

  • http://www.internafrica.org/ InternAfrica

    The Creator – aught to know that:

    2008 marks the point when fire and flood displaced more than the initial amount of shacks in Cape Town in 1994…

    in the Period from 2000 to date 12/6/2009

    55,013 Shacks have been affected by fire or flood
    277 Deaths can be attributed to fire
    226,538 People have been displaced

    So if you think that there was more forced displacement during apartheid years – you are wrong.

    Elemental (sic fire and flood) displacement is doing a much better job in recent history than any political dispensation… before or after

    POLITICS DOES NOT SERVE THE BUILT ENVIRONMENT OF CAPE TOWN!

  • Michael Osborne

    OK, Pierre, Soobramoney, — a decade ago. Can you think of anything more recent?

  • Mzo

    The Big Slipper // Jun 11, 2009 at 6:23 pm

    ….and u just had to mess it up with your unwarranted and baseless comment…..enjoy the debate and shut up if you don’t have something to add

    i’ve never liked philosophical arguments even though I may find the discussion interesting…