Business Day: Constitutional challenge to law on slums

http://www.businessday.co.za/articles/topstories.aspx?ID=BD4A992159

Posted to the web on: 04 May 2009
Constitutional challenge to law on slums

KwaZulu-Natal shack dwellers take case to highest court, writes Ernest Mabuza

A GROUP of KwaZuluNatal shack dwellers is challenging the constitutionality of the KwaZulu-Natal Elimination of and Prevention of Re-Emergence of Slums Act, intended to eliminate the province’s slums, stop sprawls re-emerging and to upgrade and control existing slums.

The group fears the law undermines national legislation such as the Prevention of Illegal Eviction and Unlawful Occupation of Land Act (PIE) and the Housing Act, which provide significant protection for people whose rights to land are insecure. The shack dwellers also fear that other provinces might copy the law.

The group also claims that officials have placed reliance on the Slums Act in an attempt to justify evictions and shack demolitions without court orders.

Abahlali Basemjondolo Movement SA is an organisation with 20 000 members, residents of the Kennedy Road Informal Settlement in Clare Estate in Durban and of 16 other informal settlements in the greater Durban and Pietermaritzburg areas.

The organisation challenged the constitutionality of the provincial law in the KwaZulu-Natal High Court last year. It argued then that the Slums Act was an unreasonable, retrogressive measure that exceeded the powers of provincial government, was fundamentally irreconcilable with national legislation and threatened to infringe on the fundamental rights of the poorest, most vulnerable members of society.

Judge President Vuka Tshabalala dismissed the shack dwellers’ application in January. Tshabalala said the Slums Act was a reasonable legislative response to the plight of vulnerable people.

The residents applied for leave to appeal to the Constitutional Court. The matter will be heard on Tuesday next week.

In its written submissions to the Constitutional Court, the organisation said that where it was clear an eviction would have unjust or inequitable consequences — such as homelessness — then PIE required that the occupation be tolerated notwithstanding its unlawfulness.

In their written submissions, counsel for the residents Heidi Barnes and Kirsty McLean said: “We submit that this — the toleration of unlawful occupation in circumstances in which the alternative would be unjust or inequitable — is central to the scheme and purpose of PIE.

“Indeed, we submit that PIE effectively discourages the institution of eviction proceedings in these circumstances.”

The advocates also said the relationship between eviction, alternative accommodation and the state’s positive obligations to achieve the progressive realisation of the right of access to housing had been further clarified in two important Supreme Court of Appeal judgments.

“While they were decided in significantly different contexts, the effect of both judgments is that unless the state complied with its obligations … eviction orders would not be granted against people who would be rendered homeless as a result.

“We submit that it is clear that there is a constitutional obligation on the state to provide at least temporary accommodation to persons who will be rendered homeless as a result of eviction.”

The advocates said PIE, read in the context of the constitution, afforded unlawful occupiers two forms of protection. “First, the holding pattern established by PIE means that it is unlikely that eviction proceedings will be instituted against unlawful occupiers, at least by the state, if there is no suitable alternative accommodation available to them. Second, in the event that eviction proceedings are instituted against such unlawful occupiers, the state is required to provide alternative accommodation, of a temporary nature at least, to those who would otherwise be left homeless.”

The advocates also argued that the Slums Act regulated not housing but land, in particular land tenure, access to land and evictions. “Since land is not a competence of provincial government, it is submitted that the Slums Act is beyond the legislative competence of the KwaZulu-Natal provincial government and accordingly invalid.”

The advocates said it was highly desirable to determine the constitutionality of the Slums Act as soon as possible.

“The Slums Act is the first of its kind in the country, and may well be copied in other provinces. We respectfully submit that this court may take notice of the fact that a bill modelled on the Slums Act has been drafted in the Western Cape.”

mabuzae@bdfm.co.za