by Jeanne Hromnik – The Weekender
Published: 2009/10/10 09:03:17 AM
THE appellants in the Joe Slovo shack dwellers’ case against Thubelisha Homes might be forgiven for thinking the law is an idiot and an ass (and a bachelor, no doubt) after a recent ruling of the Constitutional Court.
Five Constitutional Court judges unanimously upheld last year’s high court ruling by Judge President John Hlophe that the 20000-strong community be evicted and relocated from the Joe Slovo informal settlement adjoining Langa, Cape Town’s oldest township, to Delft, 34km away.
Last month, a full bench of Constitutional Court judges suspended the court’s order indefinitely following an application by Housing Minister Tokyo Sexwale that expressed “grave concerns” about the “practical, social, financial and legal consequences” of the relocation.
In the context of the lengthy, ongoing struggle of Joe Slovo’s residents against the infamous N2 Gateway Housing Project for which they were to be relocated, it is difficult to see how the earlier decision overlooked such consequences.
It has become commonplace to compare the government’s relocation of shack dwellers with the forced removal policies of the apartheid government . The difference, however, is the recourse to law that the post-apartheid government has facilitated — which organisations such as the shack dwellers’ movement, Abahlali baseMjondolo, have been using.
One of the movement’s targets is KwaZulu-Natal’s Elimination and Prevention of Re-Emergence of Slums Act of 2007. It allows for a person resisting eviction to be imprisoned for up to 10 years .
In November last year, Abahlali baseMjondolo challenged the act in the Durban High Court. After Judge President Vuka Tshabalala rejected their attempt to have the slums act declared unconstitutional, they took the case to the Constitutional Court.
At the Constitutional Court hearing in May , Adv Wim Trengove, acting for Abahlali baseMjondolo, argued that the slums act seemed to be in conflict with the 1997 National Housing Act, national housing policy and provisions of the 1998 Prevention of Illegal Eviction from and Unlawful Occupation of Land Act.
This landmark piece of legislation, known as the PIE Act, gives effect to Section 26 (3) of the constitution which states: “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. No legislation may permit arbitrary evictions.”
The circumstances the act considers are how occupiers came onto the land; how long they have lived there; the needs of its elderly, disabled, children and female- headed households; and the availability of suitable alternative accommodation.
The Constitutional Court judges in the recently reversed Joe Slovo judgment made three humane provisions in line with these circumstances . The state should provide 70% of the low-cost housing to be built in the N2 Gateway Project to former or current Joe Slovo residents who applied and qualified for housing. The residents were to be allowed to take part in a phased process of removal ; and the court ruled that they be relocated to sturdy temporary residential units serviced with tarred roads and communal ablution facilities at Delft or another suitable location.
As the housing minister’s application suggests, these provisions appear less than humane when viewed against the history of the N2 Gateway Project.
Phase 1 of the project was completed in mid-2006, with 705 rental flats. Very few of the 1000 families who were moved from Joe Slovo to Delft to make way for this were accommodated .
Phase 2, the building of bonded houses in the Joe Slovo area and Delft, is out of the financial reach of most of the shack dwellers .
Thubelisha Homes, the now defunct section 21 company appointed in 2006 to implement and manage the N2 Gateway Project, has moved people out of the slum-like conditions at the temporary camp into permanent houses at Delft at a rate of 10 families a year.
In March this year, Abahlali baseMjondolo won a victory in the Durban High Court, which granted eight orders that provided for judicial oversight of the Richmond Farm transit camp to which residents of Siyanda in Durban were being relocated.
They had been promised houses in the Khalula development, but when this fell through as a result of corruption, Bheki Cele, the transport MEC at the time, sought their forced removal to the Richmond Farm transit camp.
Residents were offered no guarantees about conditions in the camp, the duration of their stay and where, if anywhere, they would be sent next.
They approached the Durban High Court for protection.
The court ordered that the families moved to the transit camp be given permanent, decent housing within a year.
It asked for a report on the corrupt allocation of houses in Siyanda and, where necessary, that restitution be made to the victims of the corruption.
Then in August, the South Gauteng High Court ruled there could be no evictions at the South Protea settlement in Johannesburg until the possibilities of upgrading the site and relocation to a nearby site had been investigated. It gave the City of Joburg a month to report on the provision of water, sanitation, refuse removal and lighting at Protea South and ordered that “meaningful engagement” be undertaken with the Landless Peoples Movement .
Residents of Protea South had since 2003 been resisting eviction to Doornkop, which they describe as a “human dumping ground” distant from their places of work and their children’s schools .
Despite the importance of residential location to the livelihoods and family structures of slum dwellers, the Joe Slovo ruling stated : “The right (to housing) is a right to adequate housing and not the right to remain in the locality of their choice, namely Joe Slovo.”
In the landmark 2007 Olivia Road case in which more than 400 occupiers of two buildings in the Johannesburg central business district appealed against eviction, the Constitutional Court stated that engagement is a two-way process in which the city and those facing eviction should talk to each other meaningfully.
The Constitutional Court judges in the Joe Slovo case also ordered that residents be allowed full participation in their removal .
However, when eviction is fiercely resisted, and where there has been no evidence of “structured, consistent and careful engagement” in the past, this might seem at worst mischievous and, at best, legal naivety.