The law, like the suburban American house, is designed to order a particular pattern of relationships, many of them oriented around the heterosexual nuclear family. For real people in contemporary circumstances to inhabit the house the law built, one has to find side doors and discreet corners, while the dominant space changes little and the façade remains unaltered. The two big L.G.B.T.-rights Supreme Court victories that came before Bostock—Windsor and Obergefell—did exactly that: they carved out a place for monogamous same-sex couples who want to marry (statistically, these are more apt to be white middle-class people like the plaintiffs) in the house of the American nuclear family.
One might think the City of
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
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