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
20 November 2012

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?

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