An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
Some readers seem to think that I was unfair in my criticism of the judgment by Judge President John Hlophe in which he ordered the eviction of Joe Slovo residents to far off Delft. I should not have mentioned his Porsche, some say. And others ask whether it was such a bad judgment – after all if the government does not move those Joe Slovo residents to Delft, they will not be capable of upgrading the informal settlement?
I disagree with both contentions and strongly so.
Maybe I am a prisoner of the remnants of my Calvinist upbringing, but I really do not think it is appropriate for any judge anywhere in the world to drive around in a Porsche. It is more troubling in a country where so many poor black people live in shacks, the divide between rich and poor is so glaring and the Constitution purports to establish a more caring and egalitarian society.
The Porsche is largely paid for by tax payers money and when the Porsche has to be serviced – at tax payers expense – it will cost us about R80 000 a shot. But worse, by driving around in such a flashy and expensive car the judge is displaying a complete lack of sensitivity about the lived reality of the majority of South Africans and is really saying that he does not care two hoots about what anyone else thinks.
How can one trust the judiciary if one of its leaders thinks there is nothing wrong with driving a car that costs more than the average South African would earn in a life time? I think a certain amount of humility is required of judges to ensure their legitimacy in the eyes of mostly poor people. Otherwise what we have are not a legitimate judiciary but merely a feared one.
I think Judge President Hlophe is bringing the judiciary into disrepute by driving such a flashy car and I think it is relevant when one comments on his anti-poor judgments to point out that he might be black but that he has seemingly forgotten the poor. Because this is an anti-poor judgment but now delivered by a judge who might be black but has definitely not struggled to be either humble or poor.
I also strongly disagree with those who argue that it is necessary to move the Joe Slovo residents to Delft so that the informal settlement can be upgraded and that it is the residents own interest to go and live in Delft. How can one improve the country, they say, if one does not do this kind of thing.
When we talk of progress and improvements it might help if we asked the very people in whose name the improvements will supposedly be done for their opinion. And the funny thing is, if we do this in Joe Slovo, we discover that the residents themselves do not want to move because they know that things will be worse in Delft and that most of them will never return to Joe Slovo.
According to Judge President Hlophe this is a “strategic removal” and not a forced eviction because it would be done to upgrade the Joe Slovo informal settlement. But the upgrade will happen in terms of the N2 Gateway Housing Project and the houses that will be built will not be able to house even one third of the people presently living in Joe Slovo and, in any case, they will be rented out to people who can afford to pay the rent.
This means that in effect this is not a strategic removal but an eviction. The end result will be that poor people would be moved further away from town to Delft where there is no access to a train service to make place for lower middle income people who will get access to the new houses. It is therefore in effect an anti-poor eviction.
And there are alternatives. Most of the existing residents could be accommodated if the informal settlement was merely upgraded with installation of water and sanitation facilities and a better road system. Seeing that most people would rather stay in their shacks than in brick houses far away, why remove them instead of making their living conditions more bearable?
The only answer is that this is done to create the impression of dealing with poverty without actually making peoples lives better. The poverty would be removed out of the sight of rich people wizzing by (in their Porsches?) on their way to the airport. This the residents of Joe Slovo understand too well and that is why they are resisting this forced removal.BACK TO TOP