http://www.themercury.co.za/index.php?fArticleId=4813533

slum clearance case lost in high court
Shack dwellers vow to fight on

January 28, 2009 Edition 1

Tania Broughton

SHACK dwellers have vowed to continue their battle to scrap “slum eradication” legislation after they lost their case in the Durban High Court yesterday.

“We will take it all the way to the Constitutional Court,” said members of the Abahlali baseMjondolo (shack dwellers’) movement, after hearing that Judge President Vuka Tshabalala had rejected their attempt to have the Slums Act declared unconstitutional.

Not only did the judge disagree with their submission that the legislation was offensive and in conflict with other housing and eviction laws in South Africa, he went further, “applauding” the province for attempting to deal with slums and slum conditions.

“This is the first province to have adopted such legislation. The Act makes things more orderly and it must be given a chance to show off its potential. This court cannot strike down an Act before it has even been properly implemented.”

The shack dwellers claim the Act allows for large-scale forced evictions with little or no consultation and prevents the creation of new informal settlements.

Their lawyers also argued that the provincial government did not have the competence to pass the Act because it primarily dealt with land issues – not housing – and land issues were handled by the national government.

But lawyers for the government said accusations that the Act would result in evictions and wide-scale homelessness were unfounded.

In his judgment handed down yesterday, Judge Tshabalala said this was a sensitive and important matter “because so many people are affected by it”.

“The living conditions of those who live in slums is a universal problem. The right to housing is a basic human right. This court acknowledges the plight of those without proper housing. However, the case must be judged according to the facts at hand.”

He threw out the argument that the provincial government did not have the competency to pass the law in the first place, saying that if the Act were looked at in its entirety, its main objective was housing.

He also found the Act to be a “reasonable legislative response” to deal with the plight of the vulnerable in society.

“The applicants have come to court with the view that it is evil and bad and there will be no meaningful engagement with those affected before the decision is taken to evict them, and that people will not be given alternative accommodation,” he said.

But that ignored that the Act incorporated the provisions of other legislation governing evictions, the national housing code which was binding on all, and the Housing Act which required all spheres of government to “consult meaningfully”.

He dismissed the application but made no order for costs.

Housing MEC Mike Mabuyakhulu said the department had been vindicated.

“We have always maintained that this legislation was in the interests of the province and that the province should be congratulated for having the foresight and the vision to nip the challenge of slums proliferation in the bud,” he said.

“Even in the face of fabrication and misinformation that the legislation was aimed at destroying all existing informal settlements in the province, we have always maintained the Act had noble intentions as it acknowledged the reality of existing informal settlements, but aimed at preventing the further mushrooming of slums.”

Mabuyakhulu said his department would now intensify efforts to rid the province of informal settlements and provide people with decent houses.