Constitutional Hill

Housing

Constitutional Court in Bapsfontein shuffle

Dec 7th, 2011
by Pierre De Vos.
53 comments

It is not surprising that section 26 of the Bill of Rights has become one of the sections most often invoked in cases being argued before the Constitutional Court. In a country in which many people do not have access to formal housing, one in which the property rights of some force many poor and destitute people to act in an unlawful manner, one in which such people often have no choice but to occupy land owned by others and build informal houses on that land to avoid absolute destitution, the right of access to housing guaranteed in section 26 will often come into play.

The situation is exacerbated by the failure of local, provincial and national governments to deal with this issue effectively and humanely and by officials whose elitist or extremely statist attitudes towards the poor and the homeless lead to often heartless and cynical attempts to force those who occupy land unlawfully to go and live elsewhere — anywhere — as long as it is “not-in-our-backyard”.

Yesterday, in Pheku and Others v Ekurhuleni Metropolitan Municipality (in a judgment authored by Justice Bess Nkabinde) the Constitutional Court once again came to the assistance of such a community. The Occupiers of Bapsfontein Informal Settlement had approached the court to challenge a High Court decision which found that where a Municipality declared an informal settlement a “disaster area” in terms of the Disaster Management Act it was permissible forcibly to relocate the residents of such an area and to demolish their homes. (Many years ago – during the apartheid era – Bapsfontein was infamous for hosting whites-only country dances in the hall depicted below. Country and Western singer Lance James regularly performed at these dances.)

The Bapsfontein informal occupiers had built their structures on land prone to develop “sinkholes”. They were then told that they would be “temporary moved” from this site, that their houses would be demolished and that no court order was required to do so as this action was taken in terms of the Disaster Management Act. The Municipality argued that such a “temporary move” was not an eviction at all. The Bapsfonetin residents were then forcibly removed from the area and their homes were then demolished. (So much for the care and compassion which the Ekurhuleni Municipality was required to show towards the informal occupiers and for the claim by the ANC politicians in that area that they always represent the best interests of the poor. These people might just as well have lived in a DA controlled municipality.)

The Court noted that section 55(2)(d) of the Disaster Management Act provides that evacuation is limited to cases where temporary action is necessary for the preservation of life and that this section had to be interpreted narrowly to ensure that it conformed to section 26 of the Constitution. Section 26(3) of the Constitution states that:

No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances.  No legislation may permit arbitrary evictions.

The Court found that properly construed, section 55(2)(d) does not authorise eviction or demolition without an order of court. It pointed out that on its wording, the Act deals with “evacuation”.  The word “evacuate” is generally used to describe what is done in a situation where people’s lives are at risk as a result of impending “disaster”.  “Evacuate” means to “remove from a place of danger to a safer place.”  The section could only be invoked where the people concerned required immediate removal to a safe temporary shelter, away from the disaster area, in order to preserve their lives.

If one reads this section carefully it had to mean that the Act ordinarily applies only to temporary removal from a disaster stricken area to a temporary shelter. It implies that those evacuated may return to their homes, if possible. This was not the case here where the Bapsfonetin Informal Occupiers were going to be removed permanently. Evacuation is not the equivalent of eviction, much less of a demolition. On the Municipality’s own admission, no purpose would have been served by removing the applicants without demolishing their homes because they would otherwise have returned to Bapsfontein. Evidently, this is not what section 55(2)(d) sanctions.

What was required was to demonstrate that there was urgency in the evacuation and that this was done in order to save lives. However, as the Constitutional Court pointed out, the facts do not suggest that there was any need for an urgent evacuation of the Bapsfontein community at all, and although the court did not say so, this suggests that the Municipality had used the sinkhole excuse to justify an eviction without obtaining a court order as required by the Constitution.

Conversely, the history of this matter shows that the Municipality never regarded the relocation of the applicants to be urgent to warrant drastic measures of unauthorised removal and demolition of shelters. This is fortified by the fact that Bapsfontein was identified as a hazardous area as early as 1986; its first sinkhole was identified in 2004; the first commissioned report was delivered in June 2005 and the second report in September 2005; no action was taken in response to these reports for four years after they were delivered, until 2009, when another report was commissioned and delivered; and only in 2010 did the Municipality finally start taking action to relocate the residents from Bapsfontein. An evacuation does not entail the demolition of peoples’ homes or an indefinite removal. The DMA does not seek to achieve this. If the purpose of the DMA were to authorise demolition and eviction without an order of court, it would have said so.  It does not.  The forcible removal of the applicants amounts to an eviction, an indefinite removal from Bapsfontein.  The deprivation is, in the circumstances, inimical to the right in section 26(3).

The High Court had therefore erred in dismissing the application for an urgent interdict preventing the eviction of the residents and the demolition of their homes as it had failed to consider the relevant circumstances. These include whether: (a) the disaster was sudden to warrant the hasty relocation; (b) Bapsfontein could be rehabilitated; (c) the Municipality had established disaster management and relocation plans and strategies as well as their implementation; (d) there was loss of life or an imminent threat to life; (e) alternative land has been made available or could reasonably be made available; and (f) the applicants are long term occupiers in Bapsfontein.

The High Court instead approached the matter on the assumption that the Disaster Management Ac was applicable and urgent removal was necessary. In the absence of evidence, the Court compared the situation of the applicants with that of people faced with sudden emergency but failed to assess whether the circumstances warranted evacuation under the Act.

In the light of the finding that the removal of the Bapsfontein Informal Occupiers and the demolition of their homes were unlawful, the Court found that the Municipality has an obligation to provide them with suitable temporary accommodation. To this end, the Municipality was ordered to identify land in the immediate vicinity of Bapsfontein for the relocation of those who had been evicted. The Municipality was also ordered to engage meaningfully with them on the identification of the land.

Furthermore, the Municipality was ordered to ensure that the amenities provided to those evicted and people resettled in terms of the court’s order are no less than the amenities and basic services provided to them as a result of the relocation of March 2011. Because these orders were quite far reaching the Constitutional Court issued what is known as a structural interdict. This happens where the Court feels that it was necessary to retain supervision over the implementation of the order to ensure that it was complied with.

The Municipality was therefore required to file a report in the Constitutional Court confirmed on affidavit by no later than 1 December 2012 regarding steps taken in compliance with the order issued by the court. The applicants would then have the right, within 15 days of the filing of the Municipality’s report, to lodge affidavits in response to the report.

This order would ensure that the Municipality implements the order of the court properly and would protect the vulnerable and marginalised applicants from exploitation and abuse.  Although the Municipality might feel aggrieved by this order, it was clearly necessary in order to protect the poor and homeless. And once again — without even having to wait for an assessment of the work done by the Constitutional Court, the cabinet has been provided with a rather graphic illustration of the way in which the Constitutional Court stands up for the poor and how its judgments protect the poor from the exploitation and heartless decision of the ANC-led Municipality.

On banks, judges and the right to housing

Apr 13th, 2011
by Pierre De Vos.
43 comments

When Elsie Gundwana (pictured below) went to Nedbank in 1995 to borrow R25 000 to help her buy a house in Thembalethu outside George, she could not have known that the granting of this mortgage bond by the bank would cause her so much pain and sleepless nights. She could also not have known that her fight with Nedbank (“who are those people?”) would end up in the Constitutional Court and that she would eventually win a clear legal victory against one of the mighty banks in South Africa.

For Ms Gundwana her house was literally her life. She stays in the house with family members, but also utilises part of the house to run the only Bed & and Breakfast establishment in Thembalethu. As she wrote in a letter explaining her predicament (reproduced here in full):

I bought this house about eighteen years ago. This is not only a house to me.  This is my home, my source of income, a legacy that I would like to leave for my children.  With this house, I want to break the chain of poverty that has been handed within my family from generation to generation.

ElsieWhen she fell behind with her payments to the bank, the Registrar of the High Court – at the Bank’s insistence – granted default judgment against her for the outstanding amount of the debt. No judge was involved in the decision about whether to grant this order. This judgment meant that the house could be sold in execution, but the bank did not take further action because Ms Gundwana went to the bank and arranged to make two large payments to wipe out her arrears. She says she thought this meant that the bank would no longer seek to sell her house in execution.  

She continued paying the bank – as if the original mortgage bond was still in place – until 2007 when she again fell behind with her payments. She then learnt – on a return from a visit to her sister in Cape Town – that the house would be sold in execution. She promised the bank that she would pay the arrears of more or less R5000 and made an initial payment of R2000 to this effect, thinking that the bank would not go ahead with selling her house. She was wrong. Banks, so it seems, do not always adhere to the ethos represented by their advertisements. Two days after the bank took her R2000, it sold her house to Steko Development CC. An application was then made to evict her from her house.

Ms Gundwana resisted the eviction and also took steps to have the original order to have her house sold in execution rescinded. She was, unfortunately, not well served by various lawyers, but eventually received sound legal advice (even if I have to say so myself) and her case – in which she challenged the constitutionality of the rule that the Registrar of a High Court could declare immovable property specially executable when ordering default judgment under Rule 31(5) of the Uniform Rules of Court and that the house could then be sold – ended up in the Constitutional Court. (Full disclosure: my sister was the advocate who argued this case in the Constitutional Court and I provided legal advice.)

In Gudwana v Steko Development CC and Others the Constitutional Court (Froneman J writing for a unanimous court), declared this rule unconstitutional as it found that the rule infringed on the rights set out in section 26 of the South African Constitution. A similar rule relating to the Magistrate’s court had already been declared invalid in Jaftha v Schoeman several years ago, but banks were circumventing the Jaftha decision by approaching the Registrar of the High Court – even where the amount due would normally mean they would approach the Magistrates Court – to ensure that the Registrar would be able to grant default judgment against defaulters.

The legal problem in this case centred around the Supreme Court of Appeal (SCA) who, in its wisdom, had found in the case of Standard Bank v Saunderson that the principles set out in Jaftha v Schoeman would not ordinarily be applicable to mortgage bonds as such bonds were a very special kind of legal instrument. The SCA found that the Registrar was therefore constitutionally entitled to make execution orders when granting default judgment in cases where the debt arose out of a mortgage bond agreement and that a judge need not be involved in such cases. This reasoning of the SCA in the Saunderson was perplexing. It was almost as if it thought that certain common law rules and principles were so important for the economic well-being of the country that these were not subject to the discipline of the Constitution.

Section 26 of the Constitution clearly states that:

  1. Everyone has the right to have access to adequate housing.
  2. The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right.
  3. No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.

In Jaftha this was taken to mean that only a court (in this case the Magistrates Court) could declare immovable property executable, which they would do unless there were very good reasons not to. The Jaftha decision found that administrators could not make decisions which might lead to an individual losing access to housing or to being evicted from a house as this was prohibited by the Constitution.

Of course, section 26 of the Constitution should not be read as meaning that one would never have one’s house sold in execution if one did not pay one’s bond instalments in time. Bondholders have a duty to keep on paying their mortgage bonds. If one obtains a loan from a bank in the form of a mortgage bond and one does not repay the bond, then the bank would normally be able to convince the judge that default judgment should be granted and that the house over which the bond was registered could be sold in execution. Banks are entitled to take steps to make sure that bondholders pay their bonds.

But where the bank acts in a callous and unreasonable manner to force payment (for example where the bank wishes to sell the house in execution even where the amount outstanding is very small and other mechanism apart from selling a house in execution is available to force the bondholder to pay his or her debt) a court may well find that the granting of default judgment and the sale in execution should not proceed.

What is important is that there will now always be judicial oversight over this process. Banks won’t be able to go to the Registrar in the hope of obtaining a default judgment against the defaulter – even where that defaulter owes a few hundred Rand to the bank and may well pay back the amount owed  to the bank in the near future. Ms Gundwana’s legal battle is not over yet. Her lawyers will have to go back to the High Court to try and convince the court that the default judgment should not have been granted by the Registrar.  

But for now she can stay on in her house. I for one, am rather happy. Ms Gundwana, her attorney informs me, is ecstatic.

On banks and home evictions

Nov 23rd, 2010
by Pierre De Vos.
41 comments

Banks are usually not regarded with much affection or even love by those who use them. Sometimes it seems easier to make small talk by slagging off the banks than by talking about the weather, the dismal performances by South African sports teams, or whether Princess Sisulu has gone complete around the bend and whether she has become certifiably paranoid.

It was therefore not surprising that the following snippet from Legalbrief caught my attention. However, the report also raises interesting constitutional questions which have not been fully dealt with by our Courts:

Thousands of black home buyers on FNB’s books have been overcharged by up to 100%, according to bond recalculator Emerald van Zyl in a Sunday Tribune report. The home loan accounts were inherited by the banking giant when it took over the bond book of failed finance provider Saambou in 2002. Van Zyl says FNB has not done much to sort out the problems left in the wake of Saambou’s collapse. Van Zyl, who has been fighting Saambou’s excess charges since he discovered his own bond had been miscalculated, said each of his nearly 2 000 clients had been overcharged by the bank, but black home buyers far more so than whites. FNB spokesperson Virginia Magapatona refused to comment on the overcharging, but insisted the bank denied ‘in the strongest possible terms that it engages in discrimination in any form’.

I have no idea if these allegations are true. The fact that the Bank has refused to comment on the allegations that they overcharged many bondholders, does seem to give some credence to the allegations. The question I am wondering about is the following: what would happen if a bond holder defaulted on a bond, the bank wished to sell the house over which the bond was taken with a view to evict the former owner, but where the bank had been overcharging the bondholder for the bond for several years (as is alleged in this case)?

Does our Constitution constrain banks in such a situation? Does it place a duty on the state to pass legislation to protect bond holders who are being exploited and bullied by banks or should our courts develop the law to protect bond holders from the mighty and sometimes rather unscrupulous banks who might want to make a fast buck with their home loans? Should the right of access to housing not play a role in all of this?

Section 26 of the Constitution states that:

  1. Everyone has the right to have access to adequate housing.
  2. The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right.
  3. No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.

In Jaftha v Schoeman the Constitutional Court held that any measure which permits a person to be deprived of existing access to housing, limits the rights of that person in terms of section 26(1) of the Bill of Rights. But what if those measures are not taken by the state but by a bank, which is a private entity. Does section 26 apply horizontally (in other words to a private company like a bank) and if so, to what extent does it bind the bank?

The Supreme Court of Appeal (SCA), in Stander Bank v Saunderson displayed its particular fetish for freedom of contract and its grave concern about any interferance with the free market when it had to decide whether section 26(1) would ever protect a defaulting debtor whose mortgage had not been paid. (If only Julius Malema had focused on issues like this, instead of on the issue of the nationalisation of mines, maybe we would begin to believe that he is not a greedy tenderpreneur being paid off by BEE fat-cats wanting a bailout from taxpayers, but rather a person who is really concerened about the excesses of capitalism.)

The SCA found that the nature of a mortgage bond was that it “curtails the right of property at its root, and penetrates the rights of ownership, for the bond-holders rights are fused into the title itself”. This meant that a bank who had secured a debt by a mortgage bond could apply immediately to have the property declared executable – even where it had not first tried to attach the moveable property of the home owner.

It further held that although section 26(1) might conceivably provide some protection for home owners who had defaulted on their bonds, cases where execution against a mortgaged property conflicted with section 26(1) would “likely be rare”. Even where a property was residential and where an owner stood to lose their access to housing, the bank would be assumed to have the right to sell the house over which the bond was taken.

I am not sure that this decision is a wise one as it does not strike the right balance between the interest of banks on the one hand and the interest of home owners on the other. Obviously banks need to have some certainty that their rather large loans to home owners in the form of mortgage bonds were secured by the property over which the bond was registered in order for them to continue lending money. But often ordinary citizens who do not have access to the lawyers and can easily be intimidated by large banks, lose their homes because banks decide to enforce their rights in a rigid and heartless manner – even where only small amounts are outstanding on mortgage payments.

It seems to me that where only a small amount was outstanding on a bond or where the bank tried to call up a bond where its own hands were not clean – because it abused the legal process to intimidate the home owner, it overcharged a client or it gave the impression to the client that it would not take action because it entered into negotiations with that client – it should not be easily allowed to be granted execution against a mortgaged property. The North Gauteng High Court moved in this direction in ABSA Bank v Ntsane but the legal position at present seems less than clear.

In this legal vacuum banks continue to call up mortgage debts and to sell houses in execution and evict the former owners, thus depriving them of their right of access to housing. This happens especially where poorer home owners default on their bond repayments because of circumstances beyond their control.

Maybe it is time for the legislature to step in. After all the state has a duty to respect, protect, promote and fulfil the rights in the Bill of Rights. This means that where the right of access to housing is being threatened by powerful private actors such as banks, the legislature has a duty to pass legislation which would protect property owners.  What is required is to balance the interests of the banks, who need to use mortgage bonds to secure home loans, against the interest of home owners, who needs to be protected  from banks who wish to abuse their enormous power to intimidate and even evict people willy-nilly from their homes.

Where a bank has overcharged a client for many years and, even worse, where this was done on a discriminatory basis, it would surely be unconscionable for the bank to be able to sell the house over which the bond was secured and to evict the former owners from their house. Where only a small amount of the bond is outstanding or where the owner of the house has made substantial payments to the bank and then loses his or her job and falls behind, surely some legislative mechanism should be found to provide at least some protection for home owners?

In any case, this area of our law demonstrates how constitutional issues can permeate parts of our law which are traditionally considered part of the private law and calls into question the rather strange distinction still being made in our law between private law and public law.

Not the South of France

May 26th, 2010
by Pierre De Vos.
73 comments

Several years ago I attended a conference where a French academic delivered a paper on the etiquette of soliciting anonymous sex in public toilets in the South of France. I listened in amazement as the academic gave a rather erudite and learned presentation (relying on the work of French philosopher Michel Foucault), in which he argued that there were very strict but unwritten rules to be adhered to when engaging in such a noble pursuit.

Little did I realize then that one day I, too, would have to write about toilets.

However, the toilets I have to write about are not situated in the South of France, but in the Makhaza area of Khayelitsha. The DA city council had erected these toilets almost three years ago but, so they claim, they could only afford either to build one walled toilet for every 5 households or to provide each household with a toilet without the walls. When it came to light that the DA had built these toilets without walls, the city councils got a big fright because it suddenly realized how callous this looked and arranged for the toilets to be partitioned off.

The ANC Youth League in the Western Cape understood that the bare toilets were a potent symbol of neglect and even racism and could be used to mobilize voters, so its members tore down the partitions, leaving the poor residents exposed again. Asked what right they had to destroy structures when residents had agreed that the city should fix its mess, Ward 95 Development Forum leader Andile Lile said a community meeting on Sunday had decided to reject the enclosures. ”We’ve been given a mandate by the community to fight against this,” he said.

Pressed about the fact that residents had signed an agreement and had a right to choose, Lile said: “I believe in majority rule. It must be a principle position for all of us here and not for individuals. The majority does not want this and we cannot accommodate individuals who betray us.”

“We are going to destroy everything and make the city ungovernable,” ANCYL Dullah Omar regional secretary Loyiso Nkohle said on Tuesday in response to the toilet saga. ”We are calling on all youth to do this [vandalise the city], especially those living in informal settlements.”

To me this disgusting saga can be viewed as a metaphor for so much that is wrong with our politics and our society.

First, the DA city council has a lot to answer for. A city that spends millions of Rands every year on trimming the hedges and raking and gathering the leaves in the streets of leafy white suburbs (not to mention the billions spent on the World Cup Stadium and the park next to it) and then claims it has no money to provide poor black residents with one of the most basic and relatively cheap amenities required to live a life with even a semblance of human dignity, is not a city that cares about all its citizens.

It is not as if the city had to choose between building proper toilets and keeping the water purification system going, the streets free of pot holes and the street lights working. Cape Town is not Johannesburg: the streetlights work, the roads are well maintained and, at least where the tourists go, it is relatively clean. It had enough money for all these things and to provide the residents of rich suburbs with extra services they really do not need. I used to live in a quiet cul-de-sac in Sea Point and spent some Saturday mornings raking the leaves on the pavement before the house and depositing it in black bags. Many other residents did not do so as they waited for the city council workers to come and rake their leaves for them, the lazy sods.

How can one morally justify this kind of skewed spending priorities? Surely, the city has better things to spend its money on (like building proper toilets for poor residents) than doing something I can do myself rather easily? If its officials had really thought long and hard about its priorities and had taken the needs of the residents of Khayelitsha at least as seriously as the needs of the rich voters in the suburbs, it would not have wasted their money like this.

Officials and city council politicians will probably claim that they have always provided this service and that white residents expect their pavements to be cleaned up, but that would only expose the callousness of their position. In the past the white suburbs received better services than the suburbs where black people live because white people were thought of as fully human while black people were only, at best, viewed as second class citizens deserving second class services.

A city council that really cared for all its inhabitants equally would have thought long and hard about its priorities, would have ignored the spending patterns of the past and the complaints of some spoilt rich folks and would have prioritized properly so that everyone could be provided with at least the basic services that would help all citizens to live a life of some dignity and respect.

Not that the lot of the Youth League are any better. How callous can one be? Destroying the very partitions that would have given the long suffering residents a semblance of dignity – and all for short term party political gain –  is about as despicable an act as one can get. And then to justify this action by invoking democracy is just plain scary.

Majority rule does not mean one has the right to destroy other people’s property. It does not mean one can tell others whether to accept the belated corrective measures from the city council or not. The Youth League members are really saying that as an individual living in Khayelitsha one has no rights as far as they are concerned. If the Youth League or those aligned to it decides you will jump, then you jump and you will sing viva majority rule and wave your ANC flag while you do so. This is not democracy. It is tyranny and fascism.

How can we build a society in which people will begin to take responsibility for their actions – a vibrant democratic society in which people can become active citizens who can stand up for themselves – if scared and disempowered residents are terrorized by lawless and semi-literate thugs who believe the interests of the party they belong to or are associated with should trump the interests of the people that the party pretends to serve?

This is an all-round depressing and rather upsetting turn of events. It almost makes one yearn for the South of France.

Why the Rule of Law matters

Jan 15th, 2010
by Pierre De Vos.
74 comments

A news report this morning sadly reminded me of the novel, The White Tiger, in which Arivind Adiga provides a cunning and often brutal depiction of India’s class struggles. The fortunes of the main character, Balram Halwai, a cynical, foul-mouthed, but witty narrator, rise after he murders his boss.

In the novel Balram, a chauffeur, recounts his transformation from an honest, hardworking boy growing up in “the Darkness” – those areas of rural India where education and electricity are equally scarce, and where villagers banter about local elections “like eunuchs discussing the Kama Sutra” – to a determined killer. He places the blame for his rage squarely on the avarice of the Indian élite, among whom bribes are commonplace, and who perpetuate a system in which many are sacrificed to the whims of a few.

As in India, most South African politicians claim to care about the poor and to promote “pro-poor” policies while acting in naked and often corrupt self-interest. Surely, only the utterly naive or blind can still believe that the South African elite – of which politicians form a part - care at all for the poor and destitute who they see as useful idiots who will act as rent-a-crowds at election rallies and other glorious celebrations of the struggle (and of other events valorising our new democracy) while remaining no more than voting fodder to legitimise the elite’s relentless accumulation of wealth through corrupt tender practices and and other nefarious activities.

According to the Azanian People’s Organisation (Azapo) some residents of Itireleng near Laudium, west of Pretoria, were evicted recently without the relevant court order required by the Constitution and the law. “This refers to evictions carried out in portion 25 of the farm Mooiplaats in Ward 61, Tshwane,” Azapo’s Gauteng chairperson Samore Herbstein said in a statement.

The Anti-Privatisation Forum was on Thursday meeting with lawyers to draft an urgent application to the North Gauteng High Court, in a bid to force the government to provide housing to those evicted. The application would be filed at a later stage, not on Thursday, as reported earlier. Herbstein claimed the sheriff of the court, the City of Tshwane, police and Tshwane metro police at the scene refused or failed, since Tuesday, to supply a copy of the court order to either Azapo or the attorney hired by Itireleng residents.

This kind of thing is not new. A report drafted by the Centre on Housing Rights and evictions (COHRE) and recently submitted to the Constitutional Court in the KwaZulu/Natal Slums Act case, claims that the City of Durban almost never acquires the requisite court order before evicting poor people who live in informal settlements from their homes, quoting Mahendra Chetty of the Legal Resources Centre in Durban who told them:

The City, as a matter of regular and consistent practice, acts in flagrant breach of the law. I have never come across one incident where the City has acted in accordance with the law in terms of Section 21 of the Constitution and the PIE Act. I do not know of one instance where the City has carried out an eviction with a court order.

In terms of section 26(3) of the Constitution “no one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances”. The section also prohibits arbitrary evictions. The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (no. 19 of 1998) (called PIE) gives legal effect to this provision.

The Act requires that a court must consider the rights and needs of certain vulnerable groups of unlawful occupiers, including the elderly, children, women-headed households and the disabled. If the unlawful occupier(s) have been in occupation of the property for longer than six months, the Act requires that the court must consider whether land is available, or can reasonably be made available, by the owner or the local municipality to which the unlawful occupier(s) can be relocated. The Constitutional Court has also said that before a legal eviction can take place the Municipality, Provincial or National Government must engage in a meaningful way with those affected in order to try and find an amicable solution.

This is the main reason, I suspect, why Municipalities evict people without obtaining a court order: they do not want to take any responsibility for having to engage with the poor – who they see as a dirty, selfish bunch of people standing in the way of realising lucrative tenders for them and their friends. And - god forbid - they obviously do not want to have to be forced by a court  actually to have to provide poor people with alternative accommodation when they are forced from their homes.

Poor people often do not have access to lawyers and cannot resist such flagrantly unlawful actions by our new tenderpreneurial class. Where poor people are organised – often under the auspices of the Landless People’s Movement, Abahlali baseMjondolo, the Anti-Privatisation Forum or other social movements – they resist such blatantly unlawful action by politicians and the officials. No wonder the leader of Abahlali is in hiding after members of his movement was attacked and drove from their houses near Durban: these social movements stand in the way of the brutal and selfish accumulation of wealth by the new political elite and their cronies. (After all, as Smuts Ngonyame once said: “I did not struggle to be poor”.)

Some of the social movements have an ambivalent view about the law and about the principle of the Rule of Law. They point out that the law often criminalise poverty and are often used by the elite to victimise the poor. The use of loitering by-laws and trespass laws to lock up “undesirable elements” (also called political opponents) are good examples of this.

But, I am with the late British Marxist historian, E.P. Thompson who said that the Rule of Law is indeed an unqualified human good. As we have seen in Durban and now apparently again in Itireleng, where the law provides protection for the poor and such a law is blatantly ignored, the poor will suffer. 

The law is not always just and it surely does not always serve the interests of the poor, but it does provide an important tool that can be used in the struggle against the heartless and corrupt political elites and their cronies. The law can also be used to help mobilise people and to help them to resist the actions of officials and politicians who have one eye on a Porsche and another on a bottle of Johnny Walker Black Label.

The dark side of the Fifa World Cup?

Dec 10th, 2009
by Pierre De Vos.
25 comments

When Adv Geoff Budlender stood up to argue the Grootboom case on behalf of the amicus curiae in front of the eleven judges of the Constitutional Court, they leaned forward in their seats, eager to fire sharp questions at the former Director General of Land Affairs.

By the time Budlender sat down, the judges looked subdued. Budlender had made a brilliant case for the enforcement of the right of access to housing protected in section 26 of the Constitution and when a unanimous court handed down judgment, it finally gave some substance to the social and economic rights contained in the Constitution.

Although many of us felt that the court did not go far enough, the Grootboom judgement nevertheless provided a powerful legal tool later used to great effect by the Treatment Action Campaign in its fight against the irrational and dangerous HIV policy of the then government.

For me the most powerful moment of Budlender’s performance came when one of the judges (I forget which one) asked him whether the court would not be encouraging homeless people to take the law into their own hands if it ruled in favor of the Grootboom community. Would such a ruling not in effect encourage criminality?

Budlender looked the judge straight in the eye and said that the law as it stood already criminalized the homeless merely for not having a home because every single night homeless persons were forced to trespass by sleeping on someone’s property. It was exactly a policy that ignored the plight of the homeless that encouraged criminality, as it forced the homeless to break the law merely to survive.

I was reminded of this fact when I heard that the City of Cape Town has been taking steps to remove the homeless from the streets of the mother city  for the Fifa World Cup draw and were also making plans to ensure that there would be no homeless people in the streets for the actual world cup.

It is unclear what exactly is taking place. I have received reports that the City used a new bylaw to lock up homeless persons during the draw and that it was also forcing homeless persons to sign a letter promising that they would leave Cape Town for the duration of the World Cup. If they refuse to sign, they are threatened with arrest.

I have been unable to confirm these allegations, but if it is true, it would mean that the rights of a particularly poor and marginalized section of our community are being abused in the most flagrant manner by the City. Recently, the Legal Resources Centre lodged papers to challenge similar loitering bylaws in Johannesburg as such bylaws infringes on the right to freedom of movement and in effect criminalizes poverty.

Perhaps officials from the City could clarify their stance towards the homeless. An undertaking that the City would not lock up anyone merely for not having a roof over their heads would be a good start.

Some might argue that the authorities (whether in Cape Town or Johannesburg) have a legitimate reason for locking up the homeless or for taking steps to clear them off the streets for the World Cup. After all, we would not want Sepp Blatter to be confronted by a homeless person when he steps out of his fancy car to enter a Restaurant where he might spend more than a few thousands Rand on a meal.

It seems to me that such a view fails to take cognizance of the fact that our constitution is premised on the idea that every single individual has equal moral worth and must be treated as an equal human being. Steps to clear the streets of homeless people that involve any form of coercion will clearly limit the rights of the homeless. Not unlike the sodomy law, which the Constitutional Court said was so deeply offensive because it criminalized a class of people for doing no more than trying to live a life of dignity and respect, bylaws that in effect criminalize homelessness cannot be squared with the ethos of our Constitution.

I cannot see how such a drastic infringement of the rights of fellow citizens could ever be justified merely on the grounds that South African cities want to present a good image to foreign visitors.

Although I will probably cheer along with everyone else when the World Cup finally starts (despite having misgivings about the morality of spending billions of Rands on Soccer Stadiums that are not needed while many South Africans have no food to eat, no houses to stay in and no access to proper medical care), the rumors about the mistreatment of the homeless reminds me again of the dark side of the Fifa World Cup.

But maybe these rumors are completely false. If they are, I am sure the City of Cape Town will immediately reassure us that they are not planning to force homeless people off the streets to impress rich foreigners who will be visiting for the World Cup. If the city does not reassure us, we will know that it endorses the criminalization of poverty. Anyone with more information, please let us know what is going on.

Sanity and humanity prevails – for now

Sep 8th, 2009
by Pierre De Vos.
30 comments

When the Constitutional Court granted an order in June, allowing the government to remove the residents of Joe Slovo outside the city of Cape Town to Delft 20 km away, some of us wondered quietly whether the government had not perhaps been as untruthful to the court as it had previously been untruthful to the residents of Joe Slovo.

The government had told Joe Slovo residents that they would be moved “for their own good” so that houses could be built for them as part of the N2 Gateway Project, but after the completion of phase 1 of the Project it transpired that few of those removed from Joe Slovo would be able to afford the rent of the new units. Those residents who were gullible enough to believe the government and agreed to move to Delft during phase 1 are mostly still languishing in Delft while others (with political connections?) have moved in to “their” homes at Joe Slovo.

The court was told that the 15000 individuals who had remained in Joe Slovo after phase 1 could be moved to Delft during phase 2 of the project to allow for an “upgrade” of the rest of Joe Slovo and that 70% of the new houses to be built at the site of Joe Slovo (which would not number fewer than 1 500) would be allocated to the residents who had been removed from Joe Slovo.

The eviction order was granted on condition that temporary accommodation - meeting certain basic standards – were provided in Delft  and that 70% of the new houses were allocated to Joe Slovo residents. These conditions considerably softened the heartless order made by the Cape High Court, while still endorsing a mad, farcically bureaucratic, scheme reminiscent of the apartheid era forced removals.

As part of the Constitutional Court judgment the government was ordered to build a new temporary relocation area in Delft, where people would have access to water and electricity. The government was also instructed to set up meetings with residents, who had complained of being ignored, and report back regularly to the Constitutional Court. But as the Sowetan reported recently, on August 24 the Constitutional Court quietly issued a new order suspending the evictions “until further notice”. Maybe sanity will prevail in this matter after all.

The order was suspended after Western Cape MEC for housing Bonginkosi Madikizela – from the DA nogal -submitted a report to the court saying he had “grave concerns” that the “massive relocation” might end up costing more than it would to upgrade Joe Slovo (trust the DA to worry about money first). Madikizela also said the Constitutional Court had not made any plans for people who would be left behind in the temporary relocation area after Joe Slovo had been upgraded because under the N2 Gateway Housing Project there would not be enough new houses to accommodate all the original Joe Slovo residents.

He was also concerned that erecting a new temporary relocation area for Joe Slovo residents could be legally challenged by people who were further up on the waiting list. As The Sowetan reports, Joe Slovo task team leader Mzwanele Zulu described the court order suspending the eviction as “a blessing”. “We were not happy at all about going to Delft. We have plans for Joe Slovo and we just needed this opportunity to talk to the government about development in our community,” Zulu said.

A report commissioned by the MEC will now be delivered to the Constitutional Court by the end of this month after which the Constitutional Court will decide the way forward.

Surely the government will now rethink this mad idea to forcibly remove 15 000 people – some who have lived at Joe Slovo for 15 years – to a dump 20 km away? We all know the N2 Gateway Project was conceived in haste, part of a vanity project dreamed up by heartless officials and politicians. The Project failed to adhere to the very principles set out in the government’s Breaking New Ground policy which requires in situ upgrades of informal settlements where this is at all feasible.

Maybe FIFA officials (who already vetoed the building of the Cape Town stadium in Athlone because the TV pictures of such an opulent stadium in the midst of poverty was not acceptable to them) and the Mbeki cabinet did not like the sight of all those shacks on the road from the airport into the city of Cape Town? It can’t be good for one’s conscience (if any) to drive past such poverty in a R1.3 million car.

Surely this whole idea was madness from the start? Why can’t the people actually LIVING in Joe Slovo be asked what THEY want for their area? Why should government Ministers, rushing past Joe Slovo to the airport in R1.3 million cars, decide FOR people how they wish to deal with the problems of Joe Slovo? Why can’t the residents be asked to help work out a plan to upgrade the Joe Slovo settlement while most of them remain where they are?

Clearly conditions at Joe Slovo are not ideal. Something must be done to improve these conditions in line with section 26 of the Constitution. But moving people 20 km away to little apartheid-style houses that look like cardboard boxes, requiring them to suddenly pay far more for transport to go to or seek jobs, without even asking them what THEY might want, smacks of the kind of bureaucratic arrogance for which the apartheid government was rightly condemned.

Ironically it took a new administration under Jacob Zuma and a provincial government under the white-led DA, to ask questions about the sanity and humanity of this harebrained and heartless scheme. Let us hope they do not lose their nerve and that they will, once and for all, put a stop to the idea of forcibly moving 15 000 people – District 9-like – to far-off Delft.

On good governance and burning tyres

Jul 29th, 2009
by Pierre De Vos.
39 comments

Why are South Africans in Tokoza, Diepsloot, Mashishing, Emalahleni, Simile and other townships across the country  protesting “poor service delivery” by blockading roads with rocks and burning tyres and throwing stones at police? The government seems to be at a loss. It has commissioned a report on these “service delivery protests”, and has decided to audit elected local councillors and municipalities to try and stem the tide.

Pardon me for being a party-pooper, but I would be shocked and surprised if these steps – while sincere and laudable – will bring and end to the protests.

And although the announcement that the ANC is beefing up its constituency offices so that its elected representatives can better respond to the needs of the voters who elected them is to be applauded, this move on its own will not make much of a difference either.  This is because in my opinion these protests are the result not of technical or technocratic problems around “service delivery”, but rather because of larger problems in our society and our political discourse.

Surely it is far too simplistic to say the protests may be the result of an ANC plot - as Helen Zille stupidly suggested. And it is also far to easy to blame Thabo Mbeki and – like Sipho Seepe – to suggest that local councillors are perceived as part of the previous Mbeki regime and protesters are therefore protesting against Mbeki.

I suspect the protests are at least partly caused by the fact that we live in a deeply divided society, a society in which the ever increasing gap between rich and poor is exacerbated by the neo-liberal economic policies of the government. This means rich and poor receive vastly and scandalously different services and opportunities. Rich people can send their kids to good schools, live in clean and leafy suburbs and have access to streetlights, tarred roads, clean water, electricity (well, most of the time) and all the other municipal services that money can buy.

It seems obscene that in the middle class suburb where I live, the City Council regularly sends workers to sweep the streets and collect the falling leaves while a few kilometers away people do not have access to clean water and live in shacks. The kind of justifiable resentment bred by such glaringly obvious injustice will eventually boil over unless people feel that something is really being done about it.

The government, of course, knows this and is committed to improving the lives of poor South Africans. But because the ANC is the only viable governing party and because the ANC-run government is one of the  few profitable employers for people who do not have high end skills, or do not wish to “fit in” with the dominant Western culture (or have too much dignity to do so), nepotism and corruption in appointments is inevitable and thus often result in the appointment of spectacularly unqualified and heartless individuals to important positions at municipal level. The result is that services deteriorate for those who do not have the wealth to contract out of the public system and those affected see the wealth of the white elite and the wealth of the well-connected public officials and they get bloody angry.

All this would have still been okay if the government was less technocratic and more democratic. It seems to me the enormity of the task of transforming South Africa has led the government to exactly the wrong conclusion, namely, that in order to effect change clever people in government offices had to devise plans, listen to consultants and then had to implement “service delivery” in accordance with these plans – regardless of what people really wanted.

“We as the ANC have liberated you from apartheid and now we will liberate you from poverty,” the government seems to think. This grandiose but delusional elite-driven governance is perfectly illustrated by the N2 Gateway Housing Project. With the best of intentions the government decided to “upgrade” the Joe Slovo settlement. Some clever official devised a plan in terms of which the residents of Joe Slovo would be moved to Delft, 15 kilometers and a R10 taxi ride away, and new houses would be built in Joe Slovo for an emerging lower middle class clientele. The officials just forgot to actually ask the members of the Joe Slovo community if this was what they really wanted. The results have been disastrous.

As Steven Friedman pointed out this morning, the government seems to confuse “service delivery” with “public service”:

Public service, by contrast, starts from the recognition that, in a democracy, the government’s job is not to “deliver” to citizens. It is, rather, to listen to them, to do what the majority asks, if that is possible, and, where it is not, to work with citizens to ensure that what is done is as close to what they want as it can be. It stems from the core democratic idea that government works for citizens and that it cannot do this unless it listens to them.

The protesters are demanding public service, not delivery. While the causes of the protests differ from area to area, in every case people want to be heard and to be taken seriously. The protesters are saying that they are citizens with rights and that they insist on being treated accordingly.

In some cases, people do want cleaner water or better neighbourhoods. But that does not mean they want officials to “deliver” to them. A study of people who benefited from government housing subsidies in the 1990s found that those who had larger and better houses were not more satisfied than the rest: the only people who were happy were those who said they had been able to choose their housing type. The beneficiaries were saying that they did not want the houses officials thought they should have, even if they were technically “better” — they wanted the houses that they chose.

Constant claims that citizens want “service delivery” are antidemocratic because they deny citizens a voice: reporters and commentators do not have to listen to what protesters are saying, they can decide for them what they do not like.

What we need is a more democratic and responsive state, not one fixated on numbers and targets. We need a state that not only believes its slogan of Bathopele – people first – but also follows it. Of course, such an approach would remove much of the power from the elected officials and government apparatchiks and lower their status and would make it more difficult to justify the need for their fancy cars and inflated salaries.

But until we have more democracy and less technocratic centralism, people will continue to protest, burn tyres and throw stones at police.

Joe Slovo case: the good, the bad and the (mostly) unstated

Jun 14th, 2009
by Pierre De Vos.
9 comments

The Constitutional Court judgment ordering the eviction of the more than 4000 families living in the Joe Slovo Settlement has been lauded by some because it partly reverses a High Court judgment of Judge President John Hlophe which would have left 20 000 people languishing in far off Delft with no prospect to return.

The five separate judgments handed down by the Constitutional Court (running over 200 pages) is indeed a vast improvement on the lower court effort. Both in tone and content, the judgment shows a genuine concern for the plight of the Joe Slovo residents while the order purports to guarantee the return of most of the families to the place where they have been living for the past fifteen years.

But the Constitutional Court effort is not without its problems. At least two issues warrant particular attention.

First, the way in which it deals with the question of whether the Joe Slovo residents are “unlawful occupiers”  is problematic.  The lawyers for the Joe Slovo residents argued that they were occupying the state owned land with at least the tacit consent of the state, that they were therefore not unlawful occupiers and hence that PIE does not apply to them.

In a remarkably prissy and formalistic judgment in which the common law seems to swallow the Constitution, justice Yacoob found that the residents never had the tacit consent of the state to live at Joe Slovo. I always thought that judges had a duty to use the Bill of Rights to interpret the common law and legislation to conform to the transformative vision of the Constitution. Unfortunately Yacoob J seems to have forgotten about section 39(2) of the Constitution, giving such a narrow interpretation of PIE that it would make it almost impossible for occupiers to show that it was not living unlawfully on land because it was given tacit consent by the state.

The other judgments at least acknowledge that the Joe Slovo residents had lawfully occupied their homes because they were given tacit consent to do so by the state. But they all seem to argue that this tacit consent could be tacitly withdrawn. All that was required was for the state to develop a plan to upgrade the area and move the residents from the area and to make this known to the residents.

It will be argued that it was necessary to neutralise the provision that PIE only applied to “unlawful occupiers” (as the court did here) in order to ensure that the state is not hampered in its efforts to upgrade long-settled informal settlements. It is the state , so the argument goes,  who knows best or (because of its democratic legitimacy) is better suited to make decisions about the way in which informal settlements should be upgraded. It is not for the courts or the actual residents to say how this should be done.

It seems to me this view is overtly deferential to the state and embodies a very narrow conception of democracy. What happened to “participatory democracy” so movingly championed by the Justices in previous judgments?

Despite the laudable attempts by the court to recognise the plight of the residents, it seems to display an unfortunate paternalistic attitude towards the residents of informal settlements. Even where residents of informal settlements have lived on state land for a very long time with the tacit consent of the state, the state would be able to evict them without giving them formal notice of this move. As long as the state has a plan for the upgrading of the area – even if at first blush the plan is heartless and the state officials dishonest – the court will allow the evictions if certain conditions are met.

Justice Sachs seems to recognise that in this case the state acted in an appalling manner. Commenting on the fact that this proceedings started as an application for an emergency eviction in terms of section 5 of PIE, Justice Sachs states that “the invocation of the fast-track emergency procedures of section 5 of PIE manifested subjective impatience rather than objective urgency, and was legally quite inappropriate”.

Several judges criticise the state for not sufficiently engaging with the community before running to the courts. Instead of meaningfully engaging with the residents and trying to find consensus, the state was in a hurry to evict the residents who did not want to move. They did not want to move because they saw that during Phase I of the Project the state acted dishonestly and broke its promise to residents that they would be allowed to return to the newly upgraded area. Instead middle class families were given housing while the Joe Slovo residents were left to languish in Delft (who knows, probably for ever?).

The state had concocted what Moseneke called a “grandiose  national scheme”. It had tried to cheat the residents by promising them houses if they moved, but had no intention of honouring this promise. It seems to me one way to stop such dishonesty is not to write a blank cheque for the government. This does not mean the courts should not respect the separation of powers and should not allow the state some margin of appreciation to implement its housing policy.

At the very least, surely, the courts should have required the state to engage meaningfully and honestly with residents and to give formal notice to legal occupiers before running to the court in a hasty attempt to get rid of the residents who had the cheek to resist the grandiose plans of the government because these plans were not in their interest.

The second big problem with the judgments is that it ignored the fact that the N2 Gateway plan as originally conceived and presented by the state could not possibly deliver what the state belatedly promised it would deliver. As the Joe Slovo residents realised all too well, the original plan would have resulted in the forced eviction of 20 000 people to a spot far way from the city. But only a small number of those evicted would ever have been able to return to Joe Slovo because there would simply not be enough newly built units to house  all the evictees  who in any case would mostly not have been able to afford to live in the spanking new houses.

The court does not confront this issue head on. If it followed its own precedent, the court could have found that the plan was not reasonable because it failed to take account of the most vulnerable and marginalised residents, in other words, those most in need, as it failed to accommodate the poorest evictees.

Instead the court kicked for touch in the hope that the state would now conjure up a better plan. To be fair, the court seems to recognise this difficulty by ordering meaningful engagement with residents and retaining a supervisory jurisdiction over the matter. I read this as meaning that the court in effect found that the plan was not reasonable but nevertheless gave the state an opportunity to rectify the injustices inherent in the original plan.

That is why I suspect that we have not heard the end of this case. Unless there is a drastic re-thinking of the plan, when the time comes to implement the plan, many Joe Slovo residents will probably have to go back to court because they are going to find themselves suddenly permanently left out, languishing in Delft, while middle class people “take” their newly built houses in Joe Slovo.

Of course, the Constitutional Court can not (and should not) tell the state how to deal with the housing crisis. But it can expect the state to act in an honest manner and to cater also for the most vulnerable and poor members of a well-established community whose area is to be upgraded. Let us hope that the state will rethink its N2 Gateway strategy and that the judgment will actually serve as a wake-up call to the authorities.

Sadly, given the fact that this is a vanity project I am not so confirndent that this will happen.

A (partial) victory for Joe Slovo residents

Jun 10th, 2009
by Pierre De Vos.
28 comments

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.

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