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.
A news report this morning sadly reminded me of the novel, The White Tiger, in which Arivind Adiga provides a cunning and often brutal depiction of India’s class struggles. The fortunes of the main character, Balram Halwai, a cynical, foul-mouthed, but witty narrator, rise after he murders his boss.
In the novel Balram, a chauffeur, recounts his transformation from an honest, hardworking boy growing up in “the Darkness” – those areas of rural India where education and electricity are equally scarce, and where villagers banter about local elections “like eunuchs discussing the Kama Sutra” – to a determined killer. He places the blame for his rage squarely on the avarice of the Indian élite, among whom bribes are commonplace, and who perpetuate a system in which many are sacrificed to the whims of a few.
As in India, most South African politicians claim to care about the poor and to promote “pro-poor” policies while acting in naked and often corrupt self-interest. Surely, only the utterly naive or blind can still believe that the South African elite – of which politicians form a part – care at all for the poor and destitute who they see as useful idiots who will act as rent-a-crowds at election rallies and other glorious celebrations of the struggle (and of other events valorising our new democracy) while remaining no more than voting fodder to legitimise the elite’s relentless accumulation of wealth through corrupt tender practices and and other nefarious activities.
According to the Azanian People’s Organisation (Azapo) some residents of Itireleng near Laudium, west of Pretoria, were evicted recently without the relevant court order required by the Constitution and the law. “This refers to evictions carried out in portion 25 of the farm Mooiplaats in Ward 61, Tshwane,” Azapo’s Gauteng chairperson Samore Herbstein said in a statement.
The Anti-Privatisation Forum was on Thursday meeting with lawyers to draft an urgent application to the North Gauteng High Court, in a bid to force the government to provide housing to those evicted. The application would be filed at a later stage, not on Thursday, as reported earlier. Herbstein claimed the sheriff of the court, the City of Tshwane, police and Tshwane metro police at the scene refused or failed, since Tuesday, to supply a copy of the court order to either Azapo or the attorney hired by Itireleng residents.
This kind of thing is not new. A report drafted by the Centre on Housing Rights and evictions (COHRE) and recently submitted to the Constitutional Court in the KwaZulu/Natal Slums Act case, claims that the City of Durban almost never acquires the requisite court order before evicting poor people who live in informal settlements from their homes, quoting Mahendra Chetty of the Legal Resources Centre in Durban who told them:
The City, as a matter of regular and consistent practice, acts in flagrant breach of the law. I have never come across one incident where the City has acted in accordance with the law in terms of Section 21 of the Constitution and the PIE Act. I do not know of one instance where the City has carried out an eviction with a court order.
In terms of section 26(3) of the Constitution “no one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances”. The section also prohibits arbitrary evictions. The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (no. 19 of 1998) (called PIE) gives legal effect to this provision.
The Act requires that a court must consider the rights and needs of certain vulnerable groups of unlawful occupiers, including the elderly, children, women-headed households and the disabled. If the unlawful occupier(s) have been in occupation of the property for longer than six months, the Act requires that the court must consider whether land is available, or can reasonably be made available, by the owner or the local municipality to which the unlawful occupier(s) can be relocated. The Constitutional Court has also said that before a legal eviction can take place the Municipality, Provincial or National Government must engage in a meaningful way with those affected in order to try and find an amicable solution.
This is the main reason, I suspect, why Municipalities evict people without obtaining a court order: they do not want to take any responsibility for having to engage with the poor – who they see as a dirty, selfish bunch of people standing in the way of realising lucrative tenders for them and their friends. And – god forbid – they obviously do not want to have to be forced by a court actually to have to provide poor people with alternative accommodation when they are forced from their homes.
Poor people often do not have access to lawyers and cannot resist such flagrantly unlawful actions by our new tenderpreneurial class. Where poor people are organised – often under the auspices of the Landless People’s Movement, Abahlali baseMjondolo, the Anti-Privatisation Forum or other social movements – they resist such blatantly unlawful action by politicians and the officials. No wonder the leader of Abahlali is in hiding after members of his movement was attacked and drove from their houses near Durban: these social movements stand in the way of the brutal and selfish accumulation of wealth by the new political elite and their cronies. (After all, as Smuts Ngonyame once said: “I did not struggle to be poor”.)
Some of the social movements have an ambivalent view about the law and about the principle of the Rule of Law. They point out that the law often criminalise poverty and are often used by the elite to victimise the poor. The use of loitering by-laws and trespass laws to lock up “undesirable elements” (also called political opponents) are good examples of this.
But, I am with the late British Marxist historian, E.P. Thompson who said that the Rule of Law is indeed an unqualified human good. As we have seen in Durban and now apparently again in Itireleng, where the law provides protection for the poor and such a law is blatantly ignored, the poor will suffer.
The law is not always just and it surely does not always serve the interests of the poor, but it does provide an important tool that can be used in the struggle against the heartless and corrupt political elites and their cronies. The law can also be used to help mobilise people and to help them to resist the actions of officials and politicians who have one eye on a Porsche and another on a bottle of Johnny Walker Black Label.BACK TO TOP