Quote of the week

Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.

L'Heureux-Dube and McLachlin JJ
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
10 June 2009

A (partial) victory for Joe Slovo residents

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

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

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

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

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

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

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

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

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

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

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