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.
And the JSC refuses to appoint Geoff BUDLENDER to the bench after several interviews. Beats me. Maybe it doesn’t.
(PS: Pierre, what you have written here is in my pro-poor view one of your best posts ever.)
Of course it is important that the state continues its efforts to uplift the poor.
But that should not distract us from the more important long term goal: achieving full TRANSFORMATION, and especially ensuring that black professionals get quicker and more respectful service at Cape Town’s top restaurants.
Thank you.
Snowman, I tend to agree with you: Budlender SC would make an exemplary judge.
Excellent post Pierre. So it’s not just the ANC that’s anti-poor, it’s the DA as well. What a f%&@ing LIBERTY.
I have seen with my own eyes the cops rounding up victims on the atlantic seaboard, and i saw the same thing in Durban during the [pro] racism talks.
i believe it relates to the idea that “it doesn’t matter if you are in fact happy/pretty as long as others see you as happy/pretty”.
Thank you so much for this article and for your help
It’s nice to observe that you tread carefully with your allegations where the DA is concerned. Elsewhere, you rush in and make sweeping allegations portrayed as facts. Otherwise, a permanent solution is more appropriate for dealing with this social challenge.
“If a judge enters a room where there is a king, he must salute Ah! Zwelibanzi. He cannot be excused, unless we live in a country where my culture is inferior to Roman Dutch law.”
http://www.sundayworld.co.za/News/Article.aspx?id=1096864
Whose King is he exactly; not ONLY that of AbaThembu? Moreover, is he not supposed to be saluted in the manner of his liking ONLY if the judge enters his (royal) kraal or court? Interesting indeed…
Sine – It appears to be a thing in the Eastern Cape – I remember when one of the military leaders (after a coup d’etat) of one of the erstwhile TBVC states in the EC 9no names, no pack-drill) was charged with, inter alia, murder, he pleaded before King (no pun intended) J that: “The King can do no wrong!”
@ Mouse
LOL! That must have been General Brigadier Gqozo after the massacre of the people who wanted him out in the early 90s in the Bisho Stadium in Bisho (the Bisho Massacre)…
‘The King can do no wrong!’; LOL, what the devil is that, the Dark Ages!?
There is indeed a place for Kingdoms and Chiefdoms in present-day South Africa but the Kings and Chiefs must know who their subjects are. For instance, I am not subject to any king or chief and indeed neither is any of my family members. This is not only applicable to me because I am in Cape Town but it was not applicable even whilst I was still in the Eastern Cape. I know of a few places (like a certain village in Queenstown) where the chief had to certify in writing that a certain person’s dependant was one of his subjects before the local government authorities could issue permission to the dependant concerned to occupy and own a certain piece of land allocated to him in a community meeting. I accompanied the person concerned to get that written authorisation. However, the limits of their powers must be strictly observed as people like myself do not consider themselves subject to any king nor any culture.
The limitation of the homeless’s rights would be justifiable when taking into consideration the guidelines set out by the Constitution and stripping out the emotional element of the cities’ actions.
Just as a refresher: A right can be limited if it is reasonable and justifiable in an open and democratic society that is based on human dignity, equality and freedom. When deciding whether a limitation is in line with the above precept, the court must take into consideration:
*the nature of the right
*the importance of the purpose of limiting the right
*how much the right will be limited
*the relation between the limitation and its purpose
*whether there are better ways to achieve the same purpose
Thus we have to take into consideration what this right is that homeless people are being deprived and what the purpose of the deprivation is before we condemn any action to rid our streets of them during the World Cup.
The right they are being deprived of, as Professor de Vos points out, is their right to movement. It is not a permanent limitation as the World Cup will last for exactly a month, thus it is only a temporary limitation. The right will also not be limited absolutely: the homeless would still have freedom of movement in whichever area they are located to, as long as they do not go to areas frequented by overseas visitors. I also doubt that they will be interred in prison camps for the duration of the World Cup: they will probably still be able to go back to whichever city they were removed from if they so wished.
The second factor we have to take into consideration is the most subjective of the factors:
*According to a city or government official, the importance of the limitation would be of the utmost significance. The impression of South Africa an overseas visitor will take home is likely to affect tourism, investment, confidence in the country and a variety of other factors. Should a visitor leave with a positive impression of South Africa, there is a good chance that the country and the city will benefit financially in the future from such an impression. Officials thus have larger and more long-term socio-economical and financial interest in limiting the right.
* According to the homeless person him/herself, the limitation has very little perceived importance. After the World Cup they would still be homeless and their removal from the city would deprive them of the benefit they could have derived from begging from well-heeled foreigners. A homeless person thus has a short-term financial interest in not having his/her right to movement limited.
Weighing up these two perspectives is no easy matter, but I am of the opinion that any judge worth his salt would not not hesitate to find FOR the limitation. A temporary, partial limitation of a section of society’s rights when measured against the long term benefits for the country as a whole would, in my opinion, be completely justifiable. The homeless would actually benefit from the limitation in the long term: a stronger economy due to foreign investment would create more jobs and help get them off the streets.
Sluiper, with respect, I think your application of the limitation clause is defective. This is because – as the CC has often pointed out – the balancing test of s36 must be conducted in a certain context, namely what is reasonable in an open and democratic society based on human dignity, equality and freedom. While the limitation is not absolute it constitutes a grave infringement on the human dignity of those involved. Locking up homeless persons is a grave affront to us all for limited gain for a small section of the population. Given the fact that the Bill of Rights guarantees the right to dignity, movement and access to housing as well as a right against discrimination and given the fact that we are all supposedly equal before the law (even poor and homeless people) this move is shocking and grave and not justifiable – unless one is a middle class person who disregards the dignity of the poor.
Sine – LOL! Charles I of England (16-25-1649) also thought that “the King can do no wrong”, and indeed proclaimed it as a ‘rule of law’. I think it was his brainchild. This did however not sit well with the king’s subjects, and in 1642, the English Parliament declared war against Charles I, who was eventually tried for tyranny and treason, convicted, sentenced to death and executed in 1649. I’m quite sure the judge and the jury did not cry: “Hail oh King!” or “God save the King!” every day that the trial continued or even when he was convicted or sentenced. And if Charles I said, “To hell with you judge” after having been sentenced to death, it did not save him from the gallows. In fact, after his execution was carried out, and a new king inaugurated, the cries went: “The King is dead! Long live the King!”
What the king of AbaThembu should keep in mind is that, as long as he and his kingdom have not seceded from the R of SA, his kingdom, and he, remain subject to the Constitution of the RSA (suprema lex) and the law, as well as the institutions that are designed to uphold and protect the Constitution and the law. He should not only look at the example of Charles I, but also to the example of ‘bijltjes dag’ where Louis XVI and Marie Antoinette were assasinated (beheaded with ‘biltjes’) by the angry proletariat. I’m also sure that there are many examples even in indigenous culture where similar incidents have happened.
@ Mouse
I agree with your submissions in both paras except on the issue of assassination, which I submit was execution (an angry mob cannot assassinate but execute; a sniper can.) In fact King Louis XIV (King of France) once boldly declared; “I am the law.” I guess he’s the one who angered the proletariat which culminated in the French Revolution and the execution (as opposed to assassination) of his successor, King Louis XVI and his extravagant wife, Marie Antoinette (she had more than 500 pairs of shoes).
@ Prof et Sluiper
I agree with Prof that the application by Sluiper of s36 is rather over-simplified. It is a public secret that, in applying the Bill of Rights, the courts must give the rights a benevolent interpretation or that which seeks to vindicate the rights as opposed to limiting same, having regard to our history of encroachments of basic human rights as a country. Therefore, chances are that the court will not side with the cities concerned…
@ Mouse
Out of interest though, what level of importance must a person achieve before he’s considered assassinated not murdered? Or must one be a politician?
For instance, Hendriek Verwoerd and Chris Hani are considered as having been assassinated whilst Maqubela J (AJ?) formerly of the Western Cape High Court is considered to have been murdered (in his flat this year).
Sine – Interesting question and observation re assatination / execution / murder. I would personally only use “execution” if it is a sentence of a court of law (or an order of a [legitimate] higher authority) that has been “executed”. Otherwise it will (to my mind) either be murder or an assasination. … As a point of interest: If Hendrik Verwoerd’s death could be regarded as an assasination (with a knife, not a sniper bullet), and if Shaka’s and Dingaan’s deaths could be regarded as assasinations (with assegais, not sniper bullets), why can’t death by guilotine be regarded as an assasination? … Like playing with words and phrases.
Thank you for your answer, Prof de Vos.
In my above post I did not disrespect the dignity of the poor. I don’t think anyone believes that the rights conferred by s18 are absolute and the limitation of a right is not an automatic attack on the dignity of a person. The right to freedom of movement is limited in a variety of ways in South Africa. The limiting of this right has been confirmed in the Goliath case where the interests of society were put above those of the individual. Admittedly, the interest being protected was that of public health but I don’t see why this cannot be transferred to economic health.
In the same vein, the rights conferred by the Bill of Rights are also not absolute. If the purpose of the limitation has as its end goal the enhancement of the human dignity, equality and freedom of our society as a whole, it would surely be justifiable? We see this type of limitation on a daily basis in the form of Affirmative Action and various other laws that limit the rights granted in the Bill of Rights in an attempt to make ours a more equal and dignified society.
You further state that the temporary removal of homeless persons would have “limited gain for a small section of the population”. The World Cup is one of the biggest (if not the biggest) sporting event in the world. The World Cup is estimated to have a direct economic value for South Africa’s GDP of approximately $21.3 billion (that’s nearly 10% of our 2008 GDP) and is predicted to create 159,000 jobs. Nearly half a million visitors will visit South Africa and the image South Africa presents to these visitors will echo through the economy of South Africa for decades to come. I hardly think that an event of such magnitude will only benefit a small section of South Africa as you assert.
I would, in any case, be very interested to see what a court makes of this removal, if it is taking place at all. I haven’t found any specific cases where economic interest was put before that of the right to freedom of movement, but many instances of the application of such a limitation for economic purposes do come to mind.
@ Mouse
Thanks bro.
I believe it is a matter of one being more comfortable in using certain words in certain contexts. My usage of the three words (assassinate, murder, execution), can be summarized as follows;
Assassinate – the person killed must be a politician or wield political power or influence (such a Bret Kebble. Even though he was not a politician he still wielded political influence, hence his “assassination”) Whether he’s killed by a knife, pair of scissors, thrown in front of a moving train (reminds me of John Travolta throwing his wife in front of a moving train in the movie, The Punisher), etc. but not if there was no intention to kill (as in being killed by a stray bullet or by a lion which has escaped from captivity)
Murder – when a person is killed but does not fit in the categoris above and below (like the people regional magistrates et al convict for murder in their courts).
Execute – when the person is killed on the instructions of a lawful or unlawful authority (like being shot by a firing squad on the instructions of a senior military officer or general, through an order of court, or by a mob where a country is in chaos). For instance, I consider a person who was killed by “necklacing” as having been executed since the mob was the (unlawful) authority at the time and place concerned.
I believe the distinction above also addresses your question about a guillotine. Speaking of that, both King Louis XVI and his wife Marie Antoinette were killed by guillotine which was the manner of killing authorities during the French Revolution. The same way necklacing was used to kill spies et al during the Apartheid South Africa…
And, just in case you thought this was only a South African issue:
http://www.argosy.ca/view.php?aid=41803
http://www.fodojournal.com/2009/10/03/the-olympic-games-remove-the-poor/
http://www.boston.com/news/world/asia/articles/2008/08/10/vanishing_act/
So we have rumour and allegation. But do we have any evidence that the City of Cape Town is doing any of these things?
I can only think that Pierre refers to the Public Nuisance bylaw, but that says nothing about locking anyone up. It DOES talk about a R50 for aggressive begging.
It would be interesting for someone to compare the relevant bylaws of JHB, DBN and CPT. Certainly the people that I’ve spoken to about the issue say that JHB’s and DBN’s bylaws are positively draconian with regards to homeless people… but given the political makeups of their councils, they’re above reproach?
Sine – Our above exchange on your – Sine says:
December 14, 2009 at 9:57 am – refers. This guy sure looks as if he is serious about the courts not respecting him, so serious that he intends secession, and, tomorrow is the date he wants to do so! See this quote from Legal Brief Today
“General: Secession going ahead – lawyer
The controversial lawyer behind the planned secession of the AbaThembu hit back at his critics last week, saying whoever has problem with the planned move should raise it with the royal family, reports the Daily Dispatch. ‘I have a valid instruction from the royal family that on 6 January, 2010, we will go and withdraw,’ lawyer Votani Majola said. Majola, who heads the King Dalindyebo Justice Task Team, has served notice to President Jacob Zuma and the NPA claiming that the AbaThembu would establish an independent state by 6 January.”
IT IS not an easy task to find an economist who will admit that he or she doesn’t have the answer to a question. Old Mutual Investment Group’s Rian le Roux doesn’t fit this stereotype, however.
Asked this week at a presentation on the outlook for SA’s economy and markets whether he could estimate the stimulatory effect of the Soccer World Cup on SA’s economy this year, he replied: “It’s not hard to estimate, it’s completely impossible. We have no idea.”
Then you have people like Chris who know exactly the answer to this question.
Please be vocal after the World Cup.
Let the games begin
http://www.timeslive.co.za/sport/soccer/article315616.ece
Let the games begin!!!!!!!!!!!
We planned our lives around this miracle.
Gwebecimele says:
February 19, 2010 at 9:06 am
“We planned our lives around this miracle.”
Indeed we did.
Oh well – at least some roads and freeways will be nicer for a long time after the final whistle blows.
The unions have also woken up to the magic word “WC 2010″ and are extracting maximum milage from it during their negotiations. This magic word creates warm environment for negotiations and can strecth the purse strings(literally). With FIFA around you will be heard!!!!!!!!