Quote of the week

Israel has knowingly and deliberately continued to act in defiance of the [International Court of Justice] Order. In addition to causing the death by starvation of Palestinian children in babies, Israel has also continued to kill approximately 4,548 Palestinian men, women and children since 26 January 2024, and to wound a further 7,556, bringing the grim totals to 30,631 killed and 72,043 injured. An unknown number of bodies remain buried under the rubble. 1.7 million Palestinians remain displaced — many of them permanently, Israel having damaged or destroyed approximately 60 per cent of the housing stock in Gaza. Approximately 1.4 million people are squeezed into Rafah — which Israel has stated it intends to attack imminently. Israel’s destruction of the Palestinian healthcare system has also continued apace, with ongoing, repeated attacks on hospitals, healthcare, ambulances and medics. Israel has also continued to conduct widespread attacks on schools, mosques, businesses and entire villages and areas.

Republic of South Africa Urgent Request to the International Court of Justice for Additional Measures South Africa v Israel
21 February 2007

Evictions require new understanding of property law

One might think the City of Johannesburg should be congratulated for its urban renewal programme, under which it aims to renovate many of the run down buildings in the city center.

The city argues that many of the buildings now occupied by poor people are unsafe to the inhabitants of these buildings and that the city therefore has a legal duty not to allow anyone to live in these structures until they are renovated. Such renovated buildings will help to spark an urban renewal and will get middle class people to stay in the city again.

As arguments put forward yesterday in the Supreme Court of Appeal make clear, this clean-up would happened at the expense of the poor, who will be evicted from the buildings without being provided with any alternative accommodation.

In private discussions I hear people say that the original High Court order by Judge Mahommed Jajbhay overstepped the line and showed how unrealistic our Constitution is by guaranteeing for everyone access to adequate housing. How can the city clean up and renew the city center if they do not evict the present inhabitants, people ask?

For me, that is the wrong question. I would rather ask, how can a municipality who supposedly represents the interests of the poor and marginalized even think of throwing people out on the street and making them destitute?

The Constitution – and the relevant legislation – does not prohibit evictions altogether, but it does require that we make a mind-shift away from the traditional common law view of property as an all or nothing right that can be enforced against anyone regardless of the social consequences.

As the Constitutional Court acknowledged in the Port Elizabeth Muniscipality case, the Constitution requires us to acknowledge that property has a social role and that property owners not only have rights but also duties in relation to how they deal with their property. This means that evictions can only take place if the interests of those evicted are also taken into account. What is required is a sort of balancing of interests.

In that sense the Constitution requires the Municipality to also take into account the interests of those poor people living in the buildings that are now targeted for eviction. Thus, the Constitution is a disciplining force, in that the Municipality must achieve its goals without completely disregarding the interests of those directly affected by the evictions.

Because the Municipal Officers are too hard-headed, lazy or unimaginative, they proceeded with evictions without considering the requirements of the Constitution and when they were caught out they threw up their arms and shouted that the courts are out of control. It’s a bit like the police complaining that they cannot do their work anymore because the courts prohibit them from torturing suspects.

Whether the SCA will see things in this way, will have to be seen. Hopefully they have read and internalized the judgment of Justice Sachs in the Port Elizabeth Municipality case…..

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