As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
The Constitutional Court judgment ordering the eviction of the more than 4000 families living in the Joe Slovo Settlement has been lauded by some because it partly reverses a High Court judgment of Judge President John Hlophe which would have left 20 000 people languishing in far off Delft with no prospect to return.
The five separate judgments handed down by the Constitutional Court (running over 200 pages) is indeed a vast improvement on the lower court effort. Both in tone and content, the judgment shows a genuine concern for the plight of the Joe Slovo residents while the order purports to guarantee the return of most of the families to the place where they have been living for the past fifteen years.
But the Constitutional Court effort is not without its problems. At least two issues warrant particular attention.
First, the way in which it deals with the question of whether the Joe Slovo residents are “unlawful occupiers” is problematic. The lawyers for the Joe Slovo residents argued that they were occupying the state owned land with at least the tacit consent of the state, that they were therefore not unlawful occupiers and hence that PIE does not apply to them.
In a remarkably prissy and formalistic judgment in which the common law seems to swallow the Constitution, justice Yacoob found that the residents never had the tacit consent of the state to live at Joe Slovo. I always thought that judges had a duty to use the Bill of Rights to interpret the common law and legislation to conform to the transformative vision of the Constitution. Unfortunately Yacoob J seems to have forgotten about section 39(2) of the Constitution, giving such a narrow interpretation of PIE that it would make it almost impossible for occupiers to show that it was not living unlawfully on land because it was given tacit consent by the state.
The other judgments at least acknowledge that the Joe Slovo residents had lawfully occupied their homes because they were given tacit consent to do so by the state. But they all seem to argue that this tacit consent could be tacitly withdrawn. All that was required was for the state to develop a plan to upgrade the area and move the residents from the area and to make this known to the residents.
It will be argued that it was necessary to neutralise the provision that PIE only applied to “unlawful occupiers” (as the court did here) in order to ensure that the state is not hampered in its efforts to upgrade long-settled informal settlements. It is the state , so the argument goes, who knows best or (because of its democratic legitimacy) is better suited to make decisions about the way in which informal settlements should be upgraded. It is not for the courts or the actual residents to say how this should be done.
It seems to me this view is overtly deferential to the state and embodies a very narrow conception of democracy. What happened to “participatory democracy” so movingly championed by the Justices in previous judgments?
Despite the laudable attempts by the court to recognise the plight of the residents, it seems to display an unfortunate paternalistic attitude towards the residents of informal settlements. Even where residents of informal settlements have lived on state land for a very long time with the tacit consent of the state, the state would be able to evict them without giving them formal notice of this move. As long as the state has a plan for the upgrading of the area – even if at first blush the plan is heartless and the state officials dishonest – the court will allow the evictions if certain conditions are met.
Justice Sachs seems to recognise that in this case the state acted in an appalling manner. Commenting on the fact that this proceedings started as an application for an emergency eviction in terms of section 5 of PIE, Justice Sachs states that “the invocation of the fast-track emergency procedures of section 5 of PIE manifested subjective impatience rather than objective urgency, and was legally quite inappropriate”.
Several judges criticise the state for not sufficiently engaging with the community before running to the courts. Instead of meaningfully engaging with the residents and trying to find consensus, the state was in a hurry to evict the residents who did not want to move. They did not want to move because they saw that during Phase I of the Project the state acted dishonestly and broke its promise to residents that they would be allowed to return to the newly upgraded area. Instead middle class families were given housing while the Joe Slovo residents were left to languish in Delft (who knows, probably for ever?).
The state had concocted what Moseneke called a “grandiose national scheme”. It had tried to cheat the residents by promising them houses if they moved, but had no intention of honouring this promise. It seems to me one way to stop such dishonesty is not to write a blank cheque for the government. This does not mean the courts should not respect the separation of powers and should not allow the state some margin of appreciation to implement its housing policy.
At the very least, surely, the courts should have required the state to engage meaningfully and honestly with residents and to give formal notice to legal occupiers before running to the court in a hasty attempt to get rid of the residents who had the cheek to resist the grandiose plans of the government because these plans were not in their interest.
The second big problem with the judgments is that it ignored the fact that the N2 Gateway plan as originally conceived and presented by the state could not possibly deliver what the state belatedly promised it would deliver. As the Joe Slovo residents realised all too well, the original plan would have resulted in the forced eviction of 20 000 people to a spot far way from the city. But only a small number of those evicted would ever have been able to return to Joe Slovo because there would simply not be enough newly built units to house all the evictees who in any case would mostly not have been able to afford to live in the spanking new houses.
The court does not confront this issue head on. If it followed its own precedent, the court could have found that the plan was not reasonable because it failed to take account of the most vulnerable and marginalised residents, in other words, those most in need, as it failed to accommodate the poorest evictees.
Instead the court kicked for touch in the hope that the state would now conjure up a better plan. To be fair, the court seems to recognise this difficulty by ordering meaningful engagement with residents and retaining a supervisory jurisdiction over the matter. I read this as meaning that the court in effect found that the plan was not reasonable but nevertheless gave the state an opportunity to rectify the injustices inherent in the original plan.
That is why I suspect that we have not heard the end of this case. Unless there is a drastic re-thinking of the plan, when the time comes to implement the plan, many Joe Slovo residents will probably have to go back to court because they are going to find themselves suddenly permanently left out, languishing in Delft, while middle class people “take” their newly built houses in Joe Slovo.
Of course, the Constitutional Court can not (and should not) tell the state how to deal with the housing crisis. But it can expect the state to act in an honest manner and to cater also for the most vulnerable and poor members of a well-established community whose area is to be upgraded. Let us hope that the state will rethink its N2 Gateway strategy and that the judgment will actually serve as a wake-up call to the authorities.
Sadly, given the fact that this is a vanity project I am not so confirndent that this will happen.BACK TO TOP