Constitutional Hill

Where is the grace? Where is the compassion?

I am haunted by this picture. It is of a woman unsuccessfully trying to stop a bulldozer from demolishing her home in Lenasia. No one seemed to have thought of asking the woman her name. The newspapers said she was “unidentified”: Like so many other black woman in South Africa she is literally treated as being without an identity, without a history, without a personality. Why did the Gauteng government want to demolish this woman’s home and why did a court grant an order allowing the demolition?

(Photo by Associated Press)

The bulldozing of people’s homes is an emotionally laden issue in South Africa. Anyone with a passing knowledge of the apartheid past must recall the horrible images of bulldozers wrecking people’s homes in Fietas, Sophiatown, District Six and in many other parts of the country. It therefore came as a shock to hear that our government sought, and a South African court ordered, the demolition of houses in Lenasia.

The Gauteng local government and housing department began destroying the houses two weeks ago because the land they were built on was intended for government housing, and had been sold illegally. About 50 houses had been destroyed and another 113 were in line to be demolished before the South African Human Rights Commission went to court to try and stop this. The plots of land were apparently sold fraudulently for amounts ranging from R2500 to R95 000. The buyers were given forged deeds of sale with the department’s logo.

On 29 September last year, the South Gauteng High Court ordered the relevant residence of Lenasia to vacate their homes and to demolish the homes or structures erected on the property. In the event of failure to remove or demolish within the time period given, the City was granted the right to demolish the homes. The Order did not require the City to provide those evicted with alternative accommodation.

Given the Constitutional Court’s jurisprudence on forced evictions and the provisions of the Prevention of Illegal Evictions from and Unlawful Occupation of Land (PIE) Act, it is difficult to agree with the court for granting this court order – which in any case the Gauteng Government should never have asked for. I guess if one does not live at Nkandla, one’s home is not seen as either private or sacred by our government.

In terms of section 26(3) of the Constitution, when considering whether to order the forced eviction of unlawful occupiers from their homes, a court must take into account all relevant factors. As the Constitutional Court stated in Port Elizabeth Municipality v Various Occupiers, our Constitution “acknowledges that a home is more than just a shelter from the elements”. A home “is a zone of personal intimacy and family security” and the forced removal from a home “is a shock for any family”. It does not make any difference whether that home is lawfully or unlawfully occupied.

It is not only the dignity of the poor that is assailed when homeless people are driven from pillar to post in a desperate quest for a place where they and their families can rest their heads. Our society as a whole is demeaned when state action intensifies rather than mitigates their marginalisation. The integrity of the rights-based vision of the Constitution is punctured when governmental action augments rather than reduces denial of the claims of the desperately poor to the basic elements of a decent existence. Hence the need for special judicial control of a process that is both socially stressful and potentially conflictual.

The PIE Act confirms that a court must take into account all the relevant circumstances under which people occupied the land. In the PE Municipality case justice Albie Sachs warned that a court should be slow to order the eviction of its citizens from state owned land as “the state generally has further land to meet its obligations”. The degree of emergency or desperation of people, who have sought a spot on which to erect their shelters, would always have to be considered. And persons “occupying land with at least a plausible belief that they have permission to be there” can be looked at with far greater sympathy than those who deliberately invaded land with a view to disrupting the organised housing programme and placing themselves at the front of the queue.

It is settled law that a court should be reluctant to grant an eviction against relatively settled occupiers unless it is satisfied that a reasonable alternative is available. In City of Johannesburg v Blue Moonlight Properties the Constitutional Court found – in slightly different circumstances than the present – that the City’s housing policy was unconstitutional to the extent that it excluded some people evicted from privately owned property from consideration for temporary accommodation. It found that such an exclusion was unreasonable. This does not mean that the City would always have to provide alternative accommodation, but if it failed to do so in circumstances where people would be left homeless the eviction would almost never be granted.

In the end a court must consider all relevant factors but should not do so in a mechanical way or in a way that gave too much weight to the bureaucratic needs and plans of the Municipality and too little weight to the needs of those who might be affected by the eviction. In PE Municipality Sachs explained the approach as follows:

The Constitution and PIE require that in addition to considering the lawfulness of the occupation the court must have regard to the interests and circumstances of the occupier and pay due regard to broader considerations of fairness and other constitutional values, so as to produce a just and equitable result. Thus, PIE expressly requires the court to infuse elements of grace and compassion into the formal structures of the law. It is called upon to balance competing interests in a principled way and promote the constitutional vision of a caring society based on good neighbourliness and shared concern.

In this case, the residents were defrauded. They built structures on government owned land believing that they had bought the plots. They built solid structures, using their own money, believing they had a right to do so. They did not do so because they wanted to jump the queue for land or housing. Those who committed the fraud are being prosecuted, but it is unclear why those who were duped must be punished for their crime.

It is unclear what constitutionally permitted purpose is being served by the eviction of such innocent people from their homes. How does the bulldozing of their homes demonstrates the Gauteng government’s commitment to a caring society, one which is animated by the principle of Ubuntu, which holds that we are all demeaned if some among us are treated without grace and compassion – all in order to pursue a coldhearted and bureaucratic housing plan without any consideration of the feelings of those affected?

I wonder if the Gauteng Premier and the judicial officer who granted the eviction and demolition order have had time to pause for a moment to consider the feelings of the unnamed woman in the picture. Have they asked themselves what must have gone through her mind as she desperately threw her body in the path of that bulldozer? Do they wonder about all the hopes and dreams she had about her new home and how these have now been shattered by the greedy fraudsters who sold these plots to innocent citizens, abetted by the Gauteng Government and by the court who ordered the eviction?

Where is the grace? Where is the compassion? Where is the common decency? Or are these feelings only reserved for one “special” person, a person who might bleed and sleep and eat and have sex and defecate like the rest of us, but who somehow is viewed as more important and more worthy of concern and respect than the unnamed woman in Lenasia who planted her body in front of that bulldozer?

Why is it that we are told (in expensive adverts in the Sunday papers) not to care that the homes of some citizens are bulldozed, while we are also told that it is none of our business that more than R250 million of public funds are being used to upgrade the private homestead of our king, our leader, our father in chief – all while some of our people who contributed to the upgrade of the President’s house do not have a roof over their heads and will be forced to sleep under a bush or in a ditch tonight and for many, many, more nights to come?

  • Brett Nortje

    If our Constitution “acknowledges that a home is more than just a shelter from the elements” “is a zone of personal intimacy and family security” and it “does not make any difference whether that home is lawfully or unlawfully occupied”?

    How is it possible that the Firearms Control Act prescribes how people store their personal property in the privacy of that “zone of personal intimacy”?

    And authorises the cops to – without any notice – inspect that “zone of personal intimacy” to sensure that said property is stored in the prescribed way?

  • Maggs Naidu – (maggsnaidu@hotmail.com) – Zuma MUST go!

    Meanwhile, from those who kill their own people and callously destroy houses …

    Briefing media in Cape Town, International Relations and Cooperation Minister Maite Nkoana-Mashabane said the South African government was gravely concerned at the escalating violence between Israel and Gaza.

    “We strongly condemn the disproportionate use of force by the Israeli government, which has resulted in a significant number of deaths and injuries … particularly among Palestinian civilians, including children.”

    http://mg.co.za/article/2012-11-20-south-africa-condemns-disproportionate-israeli-force

  • http://www.ozoneblue.co.za ozoneblue

    ‘Where is the compassion?’

    Don’t know – must have gotten lost somewhere in the fine print of the Constitution and the ‘tranformation’ of our courts. Or it could be just another AA judge that bought his degree at UCT. But no matter, under a system of Ubuntu everbody can show compassion, why don’t you, Zille and Brett invite them onto your sumptuous private properties and help them to rebuild?

    They say actions speak louder than words.

  • ISHMAEL MALALE

    we have just changed the constitution of the country with the support of the DA. The Constitutional court is the apex court on all matters. LAC decision will be reviewed or appealed at the CC.

  • http://www.ozoneblue.co.za ozoneblue

    You are right ishmael. The DA would also call in the SANDF and the airforce, never mind a just bulldozer. As they do in Israel.

    And while all of that is happening the attention our constitutional experts will remain firmly fixated on our patriachal prez’s navel.

  • Chris (Not the right wing guy)

    My question, where were the officials who applied for the eviction orders and the destuction of the houses, when the people started building their new homes. Sure, if the were doing their jobs, they must have seen people are developing this Government land, and stopped them from starting to built. Now the wait until the new occupants are settled, and then apply for their eviction and destruction of the houses. Have they ever considered alternatives? This is a disgrace. Changing the Constitution to make the CC the apex court (which is in my mind as ill conceived as the destruction of the houses) will not change the rubble into houses again.

  • Maggs Naidu – (maggsnaidu@hotmail.com) – Zuma MUST go!

    ISHMAEL MALALE
    November 20, 2012 at 18:51 pm

    WOW Ishmael,

    “we have just changed the constitution of the country with the support of the DA. The Constitutional court is the apex court on all matters.”

    That is astounding.

    This parliament will go down in history for that phenomenal achievement.

    It’s even bigger than #ObamaCare is to the USA.

    Our departed revolutionary activists will be sooooooooooooo proud that you guys have made such a significant advance towards the NDR!

    A fitting tribute to the ANC in its centenary year!

  • Purple Dragon

    This has exposed ANC for the monster they really are. Don’t give two shits about their own people.

  • Brett Nortje

    Maggs Naidu – (maggsnaidu@hotmail.com) – Zuma MUST go! says:
    November 20, 2012 at 20:21 pm

    Don’t be jajjerig now – I warned this blog months ago to watch the constitutional Amendment.

  • http://www.ozoneblue.co.za ozoneblue

    What does it all mean? Apex court ? Will it be easier to call in the SANDF now to control all “the poor” without anybody noticing a thing? How about the NPA -can they now execute you in public without a fair trail in the media?

  • http://www.ozoneblue.co.za ozoneblue

    And just one more question. Who the fuck gave the ANC and the DA permission to just change the constitution without even telling/asking anybody about it. Shouldn’t there have been a referendum?

  • Zoo Keeper

    So these poor folks bought land and occupied it, building homes and carrying on.

    This happened since 2006, for 6 years this has been going on. When did the government discover the fraud and when did they first engage with the occupiers about their predicament? How long has this been going on? These things don’t happen quickly so there would have been contact, service of court papers, and a hearing. I cannot believe these occupiers have been blind-sided.

    I have been involved in mass evictions so I know what is required in order for them to be effective.

    Besides, is this just a demolition or is this an eviction?

    Demolition is very different to eviction. The occupiers might still be in occupation with a separate eviction order to come.

    Note that there are only demolitions taking place, nobody seems to have had their stuff thrown on a truck and removed as happens in squatter removals.

    PIE deals with occupation only, so it is conceivable that it finds no application at all. This could simply be town planning, in which demolition orders are common.

    And Professor, I note there is no real vitriol in your piece, is this because it is in JHB which is ANC and not DA, so you can’t go on your anti-Zille, anti-white rampage? C’mon, be consistent at least?

  • John Roberts

    I guess all you bleeding heart liberals now realise what swart-gevaar was and is.

  • Brett Nortje

    We did the right thing, voting ‘Yes!’ to included black South Africans in our civilisation.

    It was the dawn of the 21st Century, FFS!

  • Vuyo

    Shameful. If it were the Zille tyranny that had done this there would have been chaos, the masses would be rendered restless, the sky would collapse, the end would nigh, gloom despondency, rumours of war, etc. Clearly the state has become nothing but the police arm of capital. Were the owner of the houses a company owned by corrupt capitalists this matter would have been in the courts for ten years, terminating in the victory of the juristic “person”. Amazingly, the tyrant, Helen Zille and her association of anti-poor (black?) stormtroopers are silent. Certainly because they approve of this fascist act by a fascist state.

  • Zoo Keeper

    There is a further conundrum raised by the constitutional jurisprudence and that is that lawful property owners are treated as if they are ghosts.

    In terms of the current PIE and constitutional jurisprudence being a lawful owner means your rights simply do not exist. If someone is poorer than you, they can occupy your property forever if needs be.

    This cannot be resolved on any logical basis, either you have the right to own property or you do not. If someone occupies it and takes away your right to use and enjoy it unlawfully, it is a form of theft.

    In their rush to bleed their hearts the ConCourt jurists have developed the law of immovable property into dangerous territory which is not what is envisaged by the constitution, at all.

    My personal view is the PIE Act, and its cousin ESTA, are two of the worst pieces of legislation. The reason for this is that they are unbelievably poorly drafted, giving rise to significant confusion primarily because they designed to subvert the concept of private property by stealth and are too embarrassed to be open about it.

  • spoiler

    Zook, you can add the NCA and CPA to the list of badly drafted legislation. I wonder where the DA proposed amendment to PIE is right now or whether it will ever see the light of day…

  • Clay

    Its so sad tht these days u check comments on blogs all are aligned on race note not the story

  • Zoo Keeper

    Spoiler

    PIE has been slated for amendment since about 2003. No chance of any coherent legislation for a while yet.

  • Zoo Keeper

    Brett

    The right to privacy is one which is near absolute in terms of invasions by the State. Any invasion has to be properly authorized, and only in exceptional cases can the State invade without lawfully issued search warrants, such as hot pursuit.

    The FCA is but one, how about SARS’s new powers to search your premises without any warrant?

    A pattern perhaps?

  • Mike

    How do these goverment officials get away with this type of fraud.Well they pry on people who are happy to bribe these officials to get the land for R20,000 when the land value is R200,000 at the very least.
    These people who’s homes are being demolished knew exactly what they were doing and relied on liberal interpretations of the law to push corruption and fraud to the limit.
    Why do we not make headway with corruption in this country, well simply because we cannot stomach accountability when we are caught with our hands in the cookie jar.

  • Zoo Keeper

    Mike

    This is the tip of the iceberg and has been coming for a long time. During my time in property law, I came across numerous instances of this type of fraud. Unfortunately the victims were always too afraid to lay charges despite our insistence.

    This is actually very common when you see a squatter camp suddenly boom. Usually a couple of perps purport to sell plots of land for R500 to R1000 each. Of course they don’t own the land! There’s a huge rush for these plots and the perps would often pocket in excess of R1million hard cash almost overnight.

    Better than the Lotto!

    But there is going to be some real trouble in informal and even formal townships because there is a massive lack of understanding of how land is owned and transferred legally.

    There is more of this to come.

  • Maggs Naidu – (maggsnaidu@hotmail.com) – Zuma MUST go!

    Mike
    November 21, 2012 at 13:38 pm

    Mike,

    “How do these goverment officials get away with this type of fraud.Well they pry on people who are happy to bribe these officials to get the land for R20,000 when the land value is R200,000 at the very least.”

    Similar story emerging with the rhinos – it seems that conservation officers are in cahoots.

  • Mike

    @Maggs – one of the farmers interviewed on Radio 702 said that within two days of submitting a permit to conservation for the movement of his rhino’s seven where taken out.

  • Maggs Naidu – (maggsnaidu@hotmail.com) – Zuma MUST go!

    Mike
    November 21, 2012 at 16:04 pm

    Yeah – I listened in on that Mike. See also :

    http://www.iol.co.za/the-star/officials-probed-over-illegal-hunting-1.1426629

  • Gwebecimele
  • Uhm

    Those seem like pretty fancy homes built by the poor? Probably a 250 m2 house, built at about R2500 a square. If they were able to obtain a loan in that amount, without sufficient collateral, to build the home,I would be surprised. Even more so if these poor people could build the houses cash.

    I don’t for one second believe that the people were left to build their homes and only informed afterwards that the land doesn’t really belong to them. They were in all probability informed at a very early stage, but decided to continue anyway, because they had already “paid” for the land. The court would have taken cognizance of the efforts made prior to approaching the court, to have the people removed and that this was really the last recourse for the state.

    “I think therefore I blog” – PdV

  • Postman

    http://www.bbc.co.uk/news/uk-20415686

    @ Gwebecimile……what a moronic comment

    Have a look at the “white man” reading out the decision

  • Mikhail Dworkin Fassbinder

    @ Gwebe is right

    “White men at it again.”

    Gwebe is right. The liberal press takes up so many column inches savaging Mr Zuma for the security provisions on his bungalow that they have no room left to report the depradations of WHITIST males. For example, I know from a private source that a pale man was convicted of aggravated assault on his wife in Nelspruit last week. Will the liberal press carry the story? I don’t think so!

  • Lisbeth

    @ Zoo Keeper:

    Someone just posted your 12:41 pm comment on Sharenet.

    Lots of people will now be very afraid!

  • Dmwangi

    @Gwebemicele:

    I hope you are referring to the whites that voted in favour. It is the Western man who has fooled himself into believing there are no male/female distinctions; in a ‘genderless’ world. Not Africans. Read Mbiti, Kenyatta, etc. and know your history. (And please do not rejoind with anthropological studies done by Western gender radicals, or their newly brainwashed African epigones, alleging African societies knew no gender distinctions until they were introduced by the white man. That is a very tiring game).

    November 21, 2012 at 16:45 pm
    White men at it again.

    http://www.thenewage.co.za/71078-1020-53-Church_of_England_lost_credibility_on_women_bishops_leader

  • http://www.ozoneblue.co.za ozoneblue

    “Worse than that, it seems as if we are wilfully blind to some of the trends and priorities of that wider society.

    “We have some explaining to do; we have as a result of yesterday undoubtedly lost a measure of credibility in our society.”

    Sure the society is the measure of all things. That is why we have objective morality and a constution. What happens if one day “society” are all for human rights and nonracialism, the nextday its for racial discrimination, child porn and eating babies?

  • http://www.ozoneblue.co.za ozoneblue

    @dmwangi

    Agreed. But you are aware that moral relativists don’t care about facts, logical consistency or just making sense. It is like arguing with your wife, really.

  • Maggs Naidu – (maggsnaidu@hotmail.com) – Zuma MUST go!

    ozoneblue
    November 21, 2012 at 21:25 pm

    Hayibo OB,

    “It is like arguing with your wife, really.”

    What???

    Are you suggesting that Dmwangi’s wife “don’t care about facts, logical consistency or just making sense”???

    Well maybe you have a point — why else would she be his wife, eh!!!!

  • Dmwangi

    What happens…’nextday its for racial discrimination, child porn and eating babies?’

    You’re pretty close to the white man’s utopia:

    ‘nextday its for racial discrimination, porn [license] and [killing] babies?

  • http://www.ozoneblue.co.za ozoneblue

    @maggs

    Now you are just sounding stupid again. btw, how many blondes does it take to screw in a light bulb?

  • Dmwangi

    @Maggs:

    Completely agree. Have always told her that, given how much smarter, better looking and successful she is than me, she’d have to be irrational to marry me.

    ‘Between love and reason, let reason be the subaltern.’– Auden

    (Or something like that- my memory fades now.)

  • Alibama

    Pdv}} Where is the grace? Where is the compassion?
    PLEASE! No fruit-cake poetry; logic suffices.
    Pdv}}why did a court grant an order allowing the demolition?
    For the same reason as the CC needed to fix the generations old legislation which
    brought the Japhta/Albertsville case: it’s STILL in the statutes, for MISS-use by several
    posters to this blog who claim “we need certainty in the law”.
    An important fact re. ‘state housing’ is that the RSA phrase “guvmint PROVIDE houses”,
    is unknown elsewhere. Yes, guvmints provides EDUCATION, because that’s a very profitable
    investment [in functioning societies]. But shoes, fried-chicken and housing is for the
    individual. The only reason for the RSA quirky abnormality, is the history:
    the Nationalist guvmint PROVIDED 5PoundsRental houses in Soweto, which were far
    superior [ignoring transport, location ..etc.] to the 10PoundRental back-rooms that
    the bantu were enticed to vacate in Sophiatown. Ask any Zimbabwian, European,
    Brazillian..etc. if their guvmint PROVIDES housing, and you’ll be showing your
    skaapie ignorance.
    Interestingly: legislators are like computer programmers, and the Judiciary is like
    the blind/unbiased/[we need certainty] hardware. BTW Congo’s getting interesting again?

  • Maggs Naidu – (maggsnaidu@hotmail.com) – Zuma MUST go!

    Dmwangi
    November 21, 2012 at 21:43 pm

    So Dm,

    You reckon that you compliment your wife by insulting her???

    Stick to economics dude!

  • http://www.ozoneblue.co.za ozoneblue

    Lol.

    Fruit-cake poetry!

    Lets just call it yet a new low point for gay kitsch.

  • Alibama

    Lisbeth }} anthropological studies done by Western gender radicals
    Yes, these lunatics who deny the difference of gender and/or race, originate in the Anglo world.

  • Alibama

    ozoneblue }} Lol. Fruit-cake poetry!
    Lets just call it yet a new low point for gay kitsch.{{

    Well, one can kick PdV, but he’s growing in *INTERNATIONAL* stature, because
    he’s insightfull. He must have a team of assistants to help pump-out his
    contributions; considering the time these mafia-lawers [or I] take to
    write an argument. From his writings I’ve realised that:

    * when the Berlin wall fell-down, the Big brains [some would say the Jews]
    realised that ‘NOW [finally] is the time to hand over to the natives/ANC’.
    * and to give the settlers/blankes time to die-off and emigrate gently,
    an internationally [that’s where muntu-looters must get their Benzes from]
    approved/praised constitution, could somewhat stabilise the situation,
    while the old legislation was transformed. The BIG/obvious rules were
    easy to sweep away; but the miriad of absurd statutes are only fixed
    slowly, like Japhta/Albertsville which I keep mentioning.
    And of course the job-reservation-protected mediocre local lawer mafia,
    understandably want to continue to play by the rules that they were trained
    in.
    I wish PdV or some other authority would comment on “time limits”.
    Obviously, with the increased chaos and judicial burden, time limits MUST be
    similarly fix/transformed from when they were designed for a functioning/white
    society, to the present reality. Time limits seem a very fuzzy topic in new-SA.

  • Gwebecimele

    No grace nor compassion from SA lawyers. The poor are there for the elite to suck them dry.

    http://www.moneyweb.co.za/moneyweb-special-investigations/sa-infested-with-debt-abuse

  • Gwebecimele

    Postman

    Here is what the reader said after being put in that uncomfortable position of reading the “White” statement.

    But the Archbishop of York, Dr John Sentamu, insisted: “There will be women bishops in my lifetime. by BBC

  • Paul Kearney

    While I cannot help but sympathise with the picture created (if it’s true – some ANC bigwig did cast doubt on it), the real villains are the fraudsters and the incompetents in the national (Deeds Office) and city structures (building inspectorate) that allowed this to happen. PdV should give up his time, and send a few UCT post grads, to chase these crooks down, bring them to account and extract compensation.

    In my view the PIE Act should be held as an example of the law of unintended consequence. A typical PdeV “help the poor” effort it’s probably been more detrimental than helpful, particularly to the poor. Alongside every high profile appeal case there are a myriad of smaller cost increases, frauds and evictions being committed in its name or because of the fear of it.

    But much easier to blog before action, or even thinking.

  • Gwebecimele
  • Blacklisted Hardliner

    you are spot on on your last paragraph. Also these are the same people who has put him into power. I appeal to people in Lenasia to remember this pain during election.

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