July 01, 2009 Edition 1

Caryn Dolley – Cape Times

IN an effort to keep the peace between the two groups, local and Somali traders in Gugulethu today plan to start moving their stores so they are at least 100 metres apart.

It is not yet clear how long the process will take or how many shops need to be moved.

The relocation of stores is one of a few ideas local traders have suggested to try to ease tensions between themselves and the Somali traders, who they feel are taking business away from them.

Yesterday, Mncedisi Twalo, spokesman for the Anti-Eviction Campaign, which has joined forces with the traders’ groups to try to ease tensions between them, said the relocation of some shops would start today.

“We’re going to start implementing the 100m suggestion… this means that from (today) the shops must be a distance of 100m from each other. We’ll start in the afternoon and see how it goes.

“Everyone, the locals and Somalis, is in agreement, so they all know what’s going to happen and are willing to go ahead with it,” Twalo said.

Other suggestions locals had made to ease tensions were that the Somali shopkeepers increase the prices of their goods to match the South African traders’ prices and that no other traders be allowed to set up stores in the area.

Twalo said once the relocation of stores had been completed, the traders would then look at whether the Somalis were indeed willing to increase the prices of their goods.

“We’re first getting this one step done. Then we’ll look at the other plans,” he said.

Yesterday, Mahad Omar Abdi, of the Somali Crisis Group and representing the traders, said discussions about the increasing of prices would continue with the SA traders.

“We must still come to a concrete decision. We don’t want to increase our prices and we won’t let this decision be made for us. We will carry on with discussion but we will remain firm,” he said.

About a month ago, tensions between the local and Somali traders came to a head when a a group of South Africans delivered a letter telling the Somalis they had a week to leave the area, failing which they would be driven out.

An interim committee, comprising five local and five Somali traders, was set up to deal with these tensions.

No further acts of intimidation have been reported in Gugulethu.

But in Franschhoek last week, locals stoned four Somali-owned shops in the area in a clash police said stemmed from a dispute over food prices.

Abdi said locals wanted the Somalis there to increase their prices. No other similar incidents have since been reported in the area.

caryn.dolley@inl.co.za

July 03, 2009 Edition 2

Karen Breytenbach – Cape Times

A HEATED debate has broken out in legal and academic circles over the City of Cape Town’s decision to axe a top law firm from its panel of attorneys for taking on a case for a group of poor litigants against the municipality.

The municipality insisted there was a conflict of interest, but others have warned that this could set a dangerous precedent by scaring off law firms that wanted to act for the poor against the government, but feared losing lucrative briefs from that source.

The city’s director of legal services, Lungelo Mbandazayo, insisted the firm, Smith Tabata Buchanan Boyes (STBB), had acted unethically by, on the one hand, representing the municipality in a number of matters and, on the other, taking on a case against the municipality by poor backyard dwellers from Macassar who had invaded municipal land and been evicted.

The municipality believed a clear conflict of interest arose, because the firm would have been able to use confidential information it was privy to in litigation against the municipality. STBB was not the only firm to receive a letter from the municipality raising such concerns.

Mbandazayo said: “There is a protocol to be followed by law firms on the city’s database when they are faced with a matter which could potentially result in a conflict of interest.

“STBB was aware of this protocol, given that this is not the first time that the city has had to address a concern about a conflict of interest with the firm. The protocol was not observed and the city determined that the best way to limit its risk in the matter was to discontinue briefing the firm.”

Fears were, however, expressed in academic circles that this situation could set a “dangerous legal precedent” by discouraging pro-poor litigation against the government.

Researchers Jackie Dugard and Kate Tissington of the Centre for Applied Legal Studies at Wits University argued in an opinion piece in Business Day yesterday that there would only be a direct conflict of interest if a law firm represented both sides in a case.

If it could not represent clients against the government in unrelated cases, “it would mean no law firm working for the state could ever take on socio-economic rights-related work on behalf of poor people and grassroots organisations”.

“If reproduced across other law firms and in other municipalities, it would be a devastating blow to pro-poor litigation and would substantially undermine the government’s objective of securing access to justice for all.”

UCT constitutional governance professor Pierre de Vos said yesterday he found this matter “disturbing”. “It seems suspiciously like the City of Cape Town has “punished” a law firm for acting on behalf of poor litigants in a case against the city. This sets a dangerous precedent.

“What would happen if the government follows the example of the DA-led city? Law firms will then have to choose between representing poor litigants against the state and receiving lucrative work from the state.

“As firms have salaries to pay and directors to keep happy, they will mostly stop representing those who wish to enforce their rights or legal entitlements against the state, and we would move even further from the ideal of a country under the rule of law than we already are.”

De Vos said this did not bode well for the DA’s values on access to justice for all citizens, rich or poor.

Darren Brander, a director with STBB, said the firm believed it was entitled to act for the client based on the merits of the case, and it did not see a conflict of interest.

Cape Law Society director Nalini Gangen said she was not familiar with the case, but in general, members were required to refrain from doing anything that could place them in a position in which clients’ interests conflicted with their own, or those of other clients.

karen.breytenbach@inl.co.za

Posted on July 2nd, 2009 by Pierre De Vos

One of the most important but often neglected aspects of the Rule of Law is the requirement that individuals must be able to enforce their rights and legal entitlements in a court of law. At the heart of the Rule of Law is the notion that we are a rule-based society and that everyone – no matter how powerful or weak – must have the equal chance to enforce their rights and legal entitlements as set out by law.

However, in South Africa most people – let alone poor people – do not have the money needed to pay for lawyers that would enforce their rights and entitlements in court. A poor person who enters into a verbal contract with someone who fails to honour his or her word, will not be assisted by the law if the powerful contractee just ignores his or her obligations. Neither will such a person have much chance to challenge an unjust, unfair or unconstitutional decision by a state official to stop her pension, evict her from her shack or confiscate her goats – simply because such a person will not be able to pay lawyers to represent him or her.

It reminds one of the famous saying by Anatole France: “The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.”

Yet, when politicians talk about the Rule of Law they often do not deal with this harsh reality which – perhaps more than the lack of transformation on the bench – negatively affect the legitimacy of the courts and of the legal system in South Africa.

For some communities – especially those who are well organised – relief can come in the form of the Legal Resources Centre, the Women’s Legal Centre or private law firms who do pro-bono work or otherwise assist poor litigants at reduced cost. One such firm is Smith Tabata Buchanan Boyes who recently represented backyard shack-dwellers with no access to formal housing in a case against the City of Cape Town (at a reduced rate at the request of the South African Council of Churches).

As Jackie Dugard and Kate Tissington reports in this morning’s Business Day:

The backyarders belong to Abahlali baseMjondolo, a national shack-dwellers’ movement with its base in Durban. They had occupied an empty piece of land in Macassar Village, on which they erected shacks, in mid-May. However, the City of Cape Town’s Anti-Land Invasion Unit, together with the police, demolished their structures and confiscated their materials.

Abahlali won the first phase of its battle when it secured an urgent interdict against the city , preventing the demolition of any shack or structure at Macassar Village without an order of court. It also compelled the city to return to the occupiers all building materials that were illegally confiscated. However, the city defied the interdict and continued demolishing shacks and confiscating building materials.

But in our lovely capitalist system, no good deed usually goes unpunished, so on 18 June Smith Tabata Buchanan Boyes received a letter from the city of Cape Town terminating all the city’s contracts for legal work with the firm. The letter from the director of legal services notes: “It has come to our attention that whilst acting on behalf of the City of Cape Town … you also acted for a third party against the city. The city is therefore terminating its mandate with your firm.”

This seems deeply disturbing to me and may have serious consequences for poor litigants and for the Rule of Law. One can concede – as Dugard and Tissington does – that there might well be instances where a direct conflict of interest would preclude a law firm, say, from representing a municipality in an eviction application while also representing the people under threat of eviction by the city.

Although in practice some law firms “choose sides” and act, say, either for employers or the unions, there would usually not be any conflict of interest merely because a law firm represents an organ of state (like the city of Cape Town) in other matters, while also representing a third party against that organ of state in an unrelated matter.

It seems suspiciously like the City of Cape Town has ”punished” a law firm for acting on behalf of poor litigants in a case against the city. This sets a dangerous precedent. What would happen if the national government follows the example of the DA-led city? Law firms will then have to choose between representing poor litigants who want to take on the state on the one hand, or receiving lucrative work from the state on the other. As firms have salaries to pay and directors to keep happy, they will mostly stop representing those who wish to enforce their rights or legal entitlements against the state and we would move even further away from the ideal of a country under the Rule of Law than we already are.

The DA is trying hard to convince us that it is not (only) the party of rich white privilege anymore and Helen Zille has been dancing and singing with black voters to show how compassionate and non-racial the DA has become. But voters are not stupid and during the election almost no poor black citizens voted for the DA. And a good thing too, because decisions like this by a DA-led city seems to confirm the worst fears about the DA and what it really stands for.

There is perhaps a bright light at the end of this tunnel. Given the fact that the ANC usually does anything that the DA does not do, it might well be that the ANC-led government will not follow the bad example of the DA-led city council and will ensure that just because a firm acts for poor people against the state would not mean that the particular firm will be blacklisted from doing work for the state.

A PORT Elizabeth girl was admitted to Livingstone Hospital after being shot in the head, allegedly by police, during a protest action in Kwazakhele today (July 1).

More than 200 Silvertown, Kwazakhele residents took to the streets, burnt tyres and sang struggle songs, from 4am to about 10am.

They were demanding RDP houses, water and electricity and eradication of the bucket system.

More in The Herald tomorrow.

CAPE TOWN June 30 Sapa

Hundreds of residents of the flagship N2 Gateway housing project marched through central Cape Town on Tuesday to plead for Western Cape provincial government intervention in the project.

Chairman of the residents committee Luthando Ndabamba said they were unhappy at the way state housing developer Thubelisha homes was running the project. Though there were 704 units, Thubelisha had no office on the premises.

“If we have any complaints we have to go to the city centre,” he said.  “We won’t get help [there], they will refer us to places like Johannesburg. That’s not nice.”

He said there were structural defects and plumbing problems, and the 704 units in the complex were becoming havens for drug dealers. “Everything is just wrong in that complex,” he said.

In addition, though residents were originally told they would be renting with an option to buy, the purchase option seemed to have disappeared. Ndabamba said premier Helen Zille and housing MEC Bonginkosi Madikizela addressed the marchers outside the provincial administration building in Wale Street. Zille had told them that though she was not promising anything, she would come to meet the residents and see where she could help. She had said she knew the problems they were talking about, and that she herself had complained that the project was a failure.

The units that the protesters live in were erected on land formerly occupied by shack-dwellers, many of whom have been relocated to more distant areas of the Cape Flats. The Gateway project has been dogged by protests and a series of court challenges over evictions.

Strong case of unfair treatment

JUSTICE department director-general Menzi Simelane says the law firm axed by the City of Cape Town last week may bring a case of unfair discrimination against the municipality in the Equality Court.

Sowetan reported on Tuesday that Cape Town had terminated Smith Tabata Buchanan Boyes (STBB) as one of its service providers after the firm took on a case for the Abahlali baseMjondolo shack dwellers movement against the city.

The city claimed this was a conflict of interest – even though STBB was not acting for the city on the same matter.

Simelane said while the city was free to choose which law firms it wanted to hire, STBB could make a case of unfair discrimination.

The University of Cape Town’s chair of constitutional governance, Pierre de Vos, said “the DA should feel rather embarrassed about this because it flies in the face of the kind of open and accountable democracy our Constitution premises”.

“There is nothing to prevent a legal firm from doing work for different groups. This sets a dangerous precedent.

“What if a lawyer acts against the national government then never gets work from them again? This might lead many lawyers not to take cases to defend the rights of ordinary citizens, and this will be bad for democracy,” De Vos said.

The city’s director of legal services, Lungelo Mbandazayo, denied there had been a purge on STBB.

“This is not the first time that the city has had to address an incidence of conflict of interest with the firm. Protocol was not observed and we determined that the best way to limit our risk in the matter was to discontinue briefing the firm,” he said.

NO TO EXORBITANT RENTS AT N2 GATEWAY! NORMALISE OUR RENTS!

NO TO MANAGEMENT FROM JOHANNESBURG! VOETSAK THUBELISHA!

WE WANT LOCAL MANAGEMENT UNDER OUR CONTROL!

Since we moved into the N2 Gateway flats we have been very unhappy. The flats were very poorly constructed and the rents were much higher than we had been told when we applied for the flats. We pay up to R1050 in rent for defective flats. That is what people paying for bond houses pay, but we are not buying our houses, but only renting them for life! Because of this, we have been on rent boycott for two years. We have raised these issues time and again with Lindiwe Sisulu, Richard Dyantyi, and the Thubelisha management but our complaints have fallen on deaf ears.

In Langa people in the newly-built “show flats” pay maximum rents of R290 and in the old ‘new flats” rents of R40. It is unfair that we should be paying exorbitant rents of up to R1050. We are paying for the well-publicised corruption and overspending that went into the building of the N2 Gateway flats.

We are crying because we are being abused. We demand that our rents be normalised!

We are sick and tired of being managed from Johannesburg. People in Johannesburg do not care about our problems and ignore us when we try to contact them. We are being remote-controlled. We do not need or want Thubelisha, nor its replacement, the National Housing Agency. They must voetsak!

We are well capable of managing our own flats as a community.  We demand a management system under our control!

We have no faith in any political parties. We are addressing this memorandum to you, Helen Zille, not because you are in the DA. but because you are in power in the province and the province still bears responsibility for the N2 Gateway project.

We ask you, Helen Zille, and your housing MEC to, jointly with the Anti-Eviction Campaign (who have consistently supported our struggle) convene a meeting of all relevant stakeholders to negotiate and conclude a decent and fair way forward. We demand your personal involvement – it is crucial to this meeting.

The N2 Gateway project was supposed to be a flagship pilot project for the whole country. For us, its first residents, it has been a disaster. We want to change that! We will change that!

Form more information contact Luthando 079 896 6126 at and Jimmy at 073 158 4835

This march is being carried out with the support of the Western Cape Anti-Eviction Campaign, Abahlali baseMjondolo of the Western Cape and Joe Slovo Informal Settlement.  We recognise that communities all over Cape Town are affected by the failure of the N2 Gateway project.  This includes the communities of Joe Slovo, Symphony Way and Blikkiesdorp who are all going through struggles relating to the failure of top-down planning and N2 Gateway corruption.  To learn more about how the N2 Gateway affects other communities contact Mncedisi at 0785808646, Mzonke at 0732562036, Mzwanele 0763852369.

Tens of thousands of shack-dwellers in South Africa are doomed to be evicted to transit camps.

Last week the Constitutional Court gave the green light for the eviction of 20 000 people from Cape Town’s Joe Slovo settlement to make way for the N2 Gateway Project. Most residents are to be relocated to the Delft temporary relocation area (TRA).

In 2005, 2 400 families from Langa, Cape Town, were relocated to a camp called Tsunami. In Johannesburg, 6 400 families in Protea South, Soweto, fought a plan to move them to a decant camp in 2007. In Durban, 52 families in Siyanda, KwaMashu, were evicted in December last year and moved to a transit camp to make way for a new freeway.
Transit camps, as they were known during apartheid, were used in the Fifties for the screening, segregation and repatriation of unwanted black urbanites. And in the ambiguous late apartheid years, progressive lawyers used transit camp legislation to prevent the removal of people to distant sites and service areas.

Today, recent court cases have raised the question: do transit camps qualify as “adequate alternative accommodation” as required by post-apartheid law?

For proponents in government, transit camps are “formal” and temporary, an acceptable stopgap in the process of delivering permanent houses. For households refusing relocation, transit camps are unacceptable even by the standards of informal dwellings and even if temporary — which many are patently not.
Transit camp shelters ordinarily are one-room boxes of 25m² with tin roofs. Some are built in rows, with a single sheet of tin separating one family from another.

Often, the camps are without electricity. Some have outdoor communal taps, toilets or cold showers in tin or plastic structures. Toilets are massed together in rows.

Camps typically are encircled with fencing or barbed wire. Private security or police are stationed at lockable entry gates. Not only is access controlled, rules apply to camp life. Until two months ago, the Delft TRA had an armoured truck at its single entrance and was locked at particular hours. In the Protea South camp, spaza shops and other businesses will be banned.

Often transit camps are a long way from the shacks in which residents have lived for many years. In the Tsunami camp, some have lost their jobs as a result of relocation. Transport costs are higher; shops less accessible. Those with electricity in their shacks have had to revert to candles and paraffin stoves, both expensive and hazardous.

The erosion of social networks means occupants are in greater fear of their safety — especially women when using communal toilets after dark. Children in Tsunami, not accommodated in local classrooms, were bussed 25km to school. In the Sol Plaatje camp in Johannesburg, those on HIV/Aids medication struggle to get access to treatment.

Some transit camps have taken on the status of permanent settlements. Happy Valley in Cape Town, originally built from government-issued poles and black sails, has been in existence for 12 years. Occupants who have been in the Tsunami camp for four years will be moved to the Delft TRA. In Symphony Way, 127 families will challenge their eviction to the Delft TRA in the Cape High Court in September.

From Langa to eMacambini to Siyanda, residents protesting against relocation — whether for reasons of livelihood, location or autonomy — have been portrayed as thwarting development. They have been illegally arrested, shot at with rubber bullets and seriously injured by the police.

A sustainable approach starts from the perspective of urban livelihoods, such as that of the shack-dwellers movement, Abahlali baseMjondolo, in KwaZulu-Natal.

While formal housing is the desired option, the umjondolo (shack settlement) is not bad simpy because it is informal, but because it often lack services such as toilets. Its location also matters. A life is not improved by relocation from a shack to a distant “formal” structure.

National housing policy recognises this by prioritising in situ upgrading. But to rid KwaZulu-Natal of shack settlements by 2010, the province passed a Slum Elimination Act in 2007. Dubbed the “Polokwane Mandate”, all provinces are expected to enact similar legislation. In this Act, transit camps are central to the elimination of slums.

In little over a year football tourists will visit eThekwini and other World Cup cities. They will be encouraged to visit museums to view the horrors of forced removals and transit camps under apartheid. Ironically, to get to the Cato Manor museum they may have to drive passed bulldozed shacks and present-day transit camps.

Authorities must understand the lives of shack-dwellers themselves. When residents say they prefer a shack to a transit camp this must be taken seriously. It is not a vote in favour of shacks, but a stronger vote against the alternative.

Kerry Chance, Marie Huchzermeyer and Mark Hunter are based at the universities of Chicago, Witwatersrand and Toronto respectively

Note: The City of Cape Town is constantly spending money on lawyers and legal fees because of all the court cases they are involved in against the people of Cape Town.  This makes it difficult for communities such as Macassar AbM and Symphony Way AEC to get any pro-bono support from city law firms who do not want to lose their money coming from the City.

Fury at handling of shack case

THE city of Cape Town has purged a major law firm because it took on a case for the Abahlali baseMjondolo shack dwellers movement.

The axing of Smith Tabata Buchanan Boyes has been slammed by Reverend Siyabulela Gidi of the South African Council of Churches, who hired the law firm to represent about 200 Macassar families who had occupied an empty piece of council land last month.

“It took us more than three days to get a lawyer and this explains why. High quality law firms are too afraid to go up against the city because they get victimised,” Gidi said.

“It’s an indication that poor black people don’t have a right to a good lawyer in Cape Town. Abahlali baseMjondolo is a very dynamic national movement, so the city wants to kill them before they become a force in Cape Town,” a furious Gidi said.

The families won a victory in the Cape high court when they succeeded in interdicting the city from demolishing their shacks. But after demolishing the shacks, the city got its own interdict preventing the organisation from rebuilding them.

Then the city fired the firm. Sowetan is in possession of a letter from the city to attorney Vusumzi Matikinca. It reads: “Whilst acting on behalf of the city of Cape Town, you also acted for a third party against the city. The city is therefore terminating its mandate with your firm … your law firm will not receive any further instructions from the city. ”

Raylene Keightley of Wits University’s Centre for Applied Legal Studies said this undermines the constitutional right of access to justice.

click here to read the letter from the City of Cape Town.