http://www.dailynews.co.za/index.php?fArticleId=4845043

Slums Act does provide protection for the poor

February 16, 2009 Edition 1

Michael Mabuyakhulu

As someone who respects the rule of law, one feels a little reluctant to engage in a fruitless debate such as the one raised by Sayed Iqbal Mohamed (Daily News February 3, 2009, headlined “Poor left out of equation”).

Were it not for the sake of the public whom Mohamed sought deliberately to mislead, we would not have felt the need to dignify Mohamed’s propaganda with a response. Mohamed has fallen into the trap of using his opinions in an effort to condemn an important decision by our court; he forgets one thing, that when judges rule they make their ruling on the basis of law and not on the basis of opinions or feelings. Clearly Mohamed has not properly read or understood the contents of the Elimination and Prevention of Re-emergence of Slums Act. Let us offer our assistance to him.

At the outset, it must be borne in mind that it is one of the rights espoused in the Constitution that everyone has the right to access to adequate housing, and that the state is constitutionally bound to take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right. The Slums Act is, in fact, a reasonable legislative measure that was taken by the government of KwaZulu-Natal to achieve the progressive realisation of this right.

Furthermore, as correctly pointed out by the Honourable Judge President Tshabalala in his judgment delivered on January 27, 2009, in an application brought by Abahlali Basemjondolo and Sibusiso Zikode, there is no provision of the Slums Act which is in conflict with national legislation. If anything, the Slums Act endorses national legislation, such as the PIE (Prevention of Illegal Eviction) Act and the Constitution, particularly, where the eviction of persons by a municipality becomes necessary in the public interest (section 10).

Consultation

Similarly, the suggestion that the Slums Act excludes the requirement of co-operation or consultation between the government and the poor is without substance and, with respect, not true. In terms of the Constitution and other national legislation protecting the housing or occupational rights of persons, all of which are incorporated by reference in section 10 of the Slums Act, neither the government nor a municipality is entitled to carry out an eviction of persons without prior consultation with the persons concerned. The requirement for such consultation is inherent in the spirit and purpose of the constitutional obligations of the government.

In fact, it is interesting to note that although the Constitution does not make any reference to “co-operation or consultation” between the government and the persons who may be rendered homeless by eviction, the Constitutional Court, in a judgment delivered by Jacoob J, has held that the requirement for meaningful engagement with the persons who may be rendered homeless after an ejectment to be secured by a municipality is inherent in the provisions of Section 26(2) of the Constitution, and that failure to do so is at odds with the spirit and purpose of the constitution.

Of course, one of the questions posed by Mohamed is whether the endorsement of the PIE Act and other national legislation as held by Tshabalala JP is required. In essence, Mohamed has quoted Justice Tshabalala out of context to create an impression that no other purpose is served by the Slums Act except the endorsement of the PIE Act and other national legislation which he considers unnecessary. However, the fact of the matter is that the scope of the Slums Act is broader than a mere endorsement of existing legislation, as it seeks to prevent the gains made by the government in providing adequate housing to the poor being negated by the further proliferation of slums, particularly in areas which are earmarked for the construction of adequate housing.

Furthermore, Mohamed seems to be losing sight of the fact that it is only in instances where the upgrading of slums is either not possible or not in the public interest where a municipality may resort to the eviction of the persons concerned. Even then, the decision of a municipality to evict such persons may still be vetoed by the MEC by refusing to grant his/her approval of any project adopted by a municipality to relocate persons living in a slum or an informal settlement (see Section 8(1)(e)(ii) of the Slums Act. This is in addition to the MEC’s power to withhold funds for the financing of such relocation project (see Section 8(1)(e)(iii) Slums Act).

Unlawful

As for the eviction of unlawful occupiers in the case of private land owners, the Slums Act is simply seeking to prevent the exploitation of poor persons by unscrupulous landlords who charge them exorbitant rental for buildings and/or land which are not fit for human habitation. The Slums Act will enable municipalities to force such landlords to take the necessary steps to render their buildings and/or land fit for human habitation, failing which a municipality will be entitled to order such landlord to evict the persons concerned. This is in addition to such landlord being prohibited to collect any rentals from such persons for as long as the building concerned remains unfit for human habitation.

Therefore, far from protecting the rich slumlords as suggested by Mohammed, the Slums Act will, in fact, protect the vulnerable occupiers from further exploitation.

Lastly, it must be borne in mind that any action for the eviction of unlawful occupiers, where necessary, can only be carried out in terms of the PIE Act, which means that such eviction must be subject to all the stringent checks and balances contained in the PIE Act, failing which the court will not grant an order to authorise it. Lastly, it is important to note that the court, which is the final arbiter on these matters, has pronounced itself on the issue of the Slums Act and in fact congratulated the Department of Housing for being the pioneers in this regard.

# Michael Mabuyakhulu is KwaZulu-Natal MEC for Local Government, Housing and Traditional Affairs