More deeply reactionary legistlation looms: Prevention of Illegal Eviction from and Unlawful Occumpation of Land Amendment Bill

16 03 2008

The bill has been tabled in Parliament. It states that it was amended according to comments received, but it still criminalises the organization of land invasion and takes no account of the outcry from the left in general and from poor people’s organisations in particular. The South African Property Owners’ Association must be thrilled.

To read this bill on this site in pdf click here and to read it on the Parliamentry Monitoring Group site click here.

Clearly this Bill will have to be opposed in the same way that the Slums Act has been fought in the streets and in the courts.

Grassroots urban planning will be defended. The subordination of the state to the narrow short term interests of the rich will be opposed.

PDF: Prevention of Illegal Eviction from and Unlawful Occumpation of Land Amendment Bill

Cape High Court Orders Eviction of Joe Slovo Shack Settlement; Residents Vow to Resist

16 03 2008

A Report for Abahlali baseMjondolo by Kerry Chance

Monday, March 10 2008, CAPE TOWN – Cape Judge President John Hlophe ordered residents of the Joe Slovo shack settlement to be evicted from their homes in Langa and relocated to Delft, as part of the N2 Gateway Project. Thousands of shack dwellers from Langa, as well as some from Delft, congregated at the steps of the Cape Town High Court to express their opposition to the eviction. They carried signs that read, “If We Lose, We Will Appeal” and “We Will Resist the Red Ants.”

In the packed courtroom, singing could be heard from the remaining crowd outside. Following the decision on Monday, shack dwellers shouted “Phansi Hlophe!” and “Phansi [Housing Minister] Lindiwe Sisulu!” An Anti-Eviction Campaign banner was raised at the front of the crowd that read: “Down with Evictions, Water Cut Offs, & Privatisation, Forward to Community Struggles. Phambili! No Land, No House, No Vote.” Approximately a thousand residents returned to Joe Slovo settlement for a mass meeting to discuss a “resistance Plan B” and the possibility of further legal action in the Bloemfontein Court of Appeal. Residents expressed their solidarity with Delft backyarders, some of whom also attended the meeting.

The Western Cape Anti-Eviction Campaign, in a press release, referred to the decision on Monday as “bureaucratic madness.” Joe Slovo residents “do not want to go” to Delft, but “there are thousands of backyarders in Delft who need the housing being built there,” stated the press release. Currently, Delft backyarders are living on the pavement alongside new, empty houses. Backyarders previously occupied the new houses and were violently ejected from them last month. The houses are now encircled with barbed wire fencing, and patrolled by private security and metro police.

Joe Slovo shack dwellers will not be guaranteed occupancy of new houses in Delft, but rather will be placed in “temporary accommodation,” for an unspecified period of time. Residents already relocated to the Delft “temporary accommodation” found that it was made with cancer-causing asbestos, now a matter of investigation. Complaints also have been lodged that the “accommodation” was defective in a variety of other ways, including huge cracks in the walls and leaking roofs.

The land in Langa, where Joe Slovo shack dwellers have lived for at least nineteen years, will be used for bonded flats, which are too expensive for current residents. Construction of the bonded flats is already underway. Unlike the land in Langa, Delft – dubbed the “Delft Karoo” for its sandy, barren landscape – has no train station, transport costs are high, and it is far from the city centre and Langa, where residents respectively work and children attend school. An estimated 6 000 people will be affected by the eviction order.

In his decision, Judge Hlophe directed Joe Slovo residents to assist in the removal of their homes, and gave authority to the Sheriff to enforce the order. Residents are required to vacate the land in accordance with a timetable, reported the Cape Times, beginning on March 17 and ending on January 19, 2009 – in time for the 2010 Soccer World Cup. In the courtroom, Judge Hlophe cited no reason for the eviction, but directed residents to the fifty page judgment to read his decision in its entirety.

The case against Joe Slovo residents, who were represented in Court by the Legal Resources Centre, was brought by Housing Minister Lindiwe Sisulu, Western Cape Housing MEC Richard Dyantyi and Thubelisha Homes, a company in partnership with government and the manger of the N2 Gateway Project, responsible for building the new houses in Delft and the “temporary accommodation.” Judge Hlophe said in his decision that the company and the government are to file affidavits to the courts every eight weeks to report on the implementation of his eviction and relocation orders.

The Western Cape Anti-Eviction Campaign stated in a press release, “The residents of Joe Slovo wish to make it clear that this is just the beginning of the struggle.”

On the same day that Judge Hlophe handed down his judgment the report of Miloon Kothari, the United Nations Special Rapporteur on Adequate Housing, on his mission to South Africa was released. It is not uninteresting to compare the two documents.

No compassion for people who do not drive a Porsche?

16 03 2008

by Pierre De Vos (Professor of Constitutional Law at UWC)
Source: Constitutionally Speaking

One would think that it would have been hard for Judge President of the Cape, John Hlophe, to order the forced eviction of 20 000 poor, black people from the Joe Slovo informal settlement. After all, when he was in trouble for taking hundreds of thousands of Rand from the Oasis company and then lied about the reasons for these “out of pocket” expenses, he presented himself as a champion of transformation and a victim of racism.

But I suppose now that he is safely back in the saddle and he can enjoy his ownership of a wine farm while driving in a shiny new black Porsche, he has forgotten the values of the Constitution that requires him to consider the human dignity of the poor people whose forced eviction he has now ordered. Who cares that the order will destroy this community and that the people now living close to work opportunities will be dumped in the gramadoelas in Delft?

Yesterday the judge President handed down a judgment in Thubelisa Homes and Others v Various Occupants and Others that seems to me completely devoid of compassion and also legally misguided because it essentially ignores recent decisions by the Constitutional Court, while purporting to follow them. Thubelisa Homes applied for the eviction order so that it could bulldoze the shacks next the the N2 before erecting shiny new homes where only a few of the original occupants of the informal settlement will ever live.

The starting point of the judgment is that the residence of Joe Slovo – who have been living on the land since 1994 and have been given tacit approval for living there by the authorities – are unlawfully occupying the land needed for a vanity housing project (the N2 Gateway project) and that it would therefore be fine to remove them to Delft because it would actually “undoubtedly [be] for the benefit of the residents of the informal settlement and in line with the Constitutional values”. These pesky residence just do not want to know what is good for them. Obviously bureaucrats and a judge driving a Porsche knows much better what is good for them than they would know themselves. After all they are only poor and black.

The judgment refers to an earlier Constitutional Court judgment in the Port Elizabeth Municipality case where justice Albie Sachs stated that a court should be reluctant to grant an eviction order against relatively settled occupiers unless it is satisfied that a reasonable alternative is available. Thus, Justice Sachs continued, the legislation 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 to promote the constitutional vision of a caring society based on good neighbourliness and shared concern. The Constitution and PIE confirm that we are not islands unto ourselves. The spirit of ubuntu, part of the deep cultural heritage of the majority of the population, suffuses the whole constitutional order. It combines individual rights with a communitarian philosophy.

But the judgment then approvingly quotes from the Supreme Court of Appeal judgment (handed down by that champion of transformation, Harms ADP) in City of Johannesburg v Rand Properties (since overtaken by the Constitutional Court judgment two weeks ago!) to the effect that the Constitution does not give a person a right to housing at State expense at a locality of that person’s choice and concludes that it is fair and reasonable to dump the 20 000 Joe Slovo residence in Delft – even though it is 15 kilometers from Joe Slovo, far away from the city center of Cape Town.

This line of reasoning is perplexing, to say the least, as the Constitutional Court in the City of Johannesburg case in effect overruled the SCA judgment by ordering the parties to negotiate with one another and by implicitly accepting that it would not be humane or in conformity with a respect for the human dignity of the inner city dwellers to dump them at alternative accommodation 35 km outside of town. In that judgment Justice Yacoob stressed that the human dignity of those affected by removal must be respected and that their views must be heard.

This seems to imply that high handed and unilateral action by officials or judges telling people what is good for them will not suffice. A real and meaningful engagement is required and merely telling the people of Joe Slovo that it was in their own interest to be dumped in godforsaken Delft would not be good enough. What is sorely lacking in the Hlophe judgment is the “grace and compassion” that Justice Sachs spoke about.

For me what permeates the judgment is a complete lack of compassion for the plight of the Joe Slovo residence. There might be a case to be made to upgrade the Joe Slovo informal settlement, but then it should surely be done within the confines of the Constitutional values of dignity and respect. By repeating over and over that the Joe Slovo residence are living unlawfully on the land, the judgment seems to suggest that they are criminals who are thus less deserving of concern, compassion and respect.

It accepts that the government policy that would force most Joe Slovo residence to permanently live far away from their places of work is completely reasonable because the government says that it is reasonable. It emphasises the need for the court to respect the separation of powers and thus suggests that the court should take at face value assurances by the government that it would be better for Joe Slovo residence to be moved. It completely ignores the fact that the Joe Slovo residence do not think it would be better for them to go and live in the veld.

It is hard to argue that “elements of grace and compassion” animate the conception of reasonableness in this case. It suggests that it is perfectly acceptable for the state to forcibly remove a large group of people who have been living on a piece of land for thirteen years merely because the government of the day has decided this is what needs to happen.

Maybe I am too harsh on the judgment, but it seems to me that given our history in which the apartheid government forcibly removed people at the drop of a hat, courts should be extremely sensitive to give eviction orders where such a large group of people will be moved and their lives disrupted for ever. In this case there is a complete absence of this historical perspective.

To my mind it once again shows the difficulties of judicial transformation and poses questions about what kind of judges we need on the bench. Surely real judicial transformation requires judges who are sensitive to the needs of the poor and destitute and at least an honest engagement with their fears and complaints. In this judgment there is a complete absence of such engagement and the Joe Slovo residence and their needs are completely ignored. They are treated as recalcitrant individuals standing in the way of the government housing programme and their needs and wishes are completely ignored.

Before the law they have once again become invisible. They are not treated as individual human beings with feelings and needs but merely as a problem to be dealt with. What we need are more judges who really wrestle with the very difficult issues presented by gentrification of informal settlements and the real hurt and pain of forced removals. This is what the Constitution – as interpreted by the Constitutional Court, not the SCA – requires.

Perhaps this is too much to ask of a judge who might experience this informal settlement on the N2 as an eyesore and a stumbling block to progress – even as he speeds to his wine farm in his shiny Porsche.


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