Comment on KwaZulu-Natal Elimination and Prevention of Re-Emergence of Slums Bill, 2006
By Marie Huchzermeyer, Associate Professor, School of Architecture and Planning, University of the Witwatersrand
Private Bag 3
13 May 2007
Marie Huchzermeyer is an academic who has researched and published extensively on informal settlements and evictions in South Africa, Brazil and Kenya over the past ten years. She has contributed to housing rights work of the organisation COHRE (Centre on Housing Rights and Evictions), particularly its work in relation to informal settlement/slum eviction in Nairobi, Johannesburg and Abuja. She has also collaborated with the pro-bono unit of Weber Wentzel Bowen in response to eviction and relocation threats to informal settlements in Gauteng. She has analysed informal settlement relocation and eviction cases, including the high profile case of Bredell in 2001.
In 2004, she led a team of consultants in conducting research and developing recommendations for the national Department of Housing on ‘Informal Settlement Support’. Many of the principles that were developed through this report were incorporated into the new Informal Settlement Upgrading Programme of national Department of Housing, Chapter 13 of the Housing Code. These principles included relocation as a last resort, the need to strengthen social capital through support to community organisation in informal settlements, and the need to minimise disruption to livelihoods, schooling and access to survival opportunities in the city.
In 2006, she co-edited a book (UCT Press) titled ‘Informal Settlements: A Perpetual Challenge?’ which seeks to promote in situ upgrading of informal settlements in South Africa and to provide a wide understanding of the complexities involved in this, also in relation to housing rights. The book was welcomed by the Department of Housing. She is also the author or ‘Unlawful Occupation: Informal Settlements and Urban Policy in South Africa and Brazil’ (Africa World Press, 2004). This book was published at a time when the national Department of Housing as well as municipalities such as eThwekini were increasingly looking to Brazil for best practice in addressing the informal settlement situation in South Africa.
The comment below draws on this experience. While identifying positive aspects of the Bill, it finds that the Bill is in contradiction with the principles of the Constitution and of the national Department of Housing’s current programme ‘Comprehensive Plan for the Creation of Sustainable Human Settlements: Breaking New Ground’. The latter embraces informal settlements and states the ‘need to shift the official response to informal settlements from one of conflict and neglect to one of integration and cooperation’. In this spirit, it introduced the informal settlement upgrading programme, centring around poverty alleviation and the reduction of vulnerability and exclusion. This comment calls for a substantial revision to the Bill. It first explains the origin of the mistaken slum elimination rhetoric in this country, then turns to fundamental flaws in the positioning of the Bill before commenting on individual sections only where this adds to what is already argued about the bill under ‘fundamental flaws’.
2. Origin of the Bill: The unfortunate rhetoric of slums elimination
Presumably, the idea for the Bill was derived from the unfortunate rhetoric of slum eradication. This rhetoric stems from a mistaken interpretation of Target 11 of the Millennium Development Goals. This Target to ‘improve the lives of 100 million slum dwellers by 2020’ is unwittingly also referred to as the ‘Cities Without Slums’ Target. This stems from the unfortunate slogan of Cities Alliance. It was intended merely as a normative statement: ‘cities should not have slums’, but in several countries has tragically been translated into a target. Whereas to improve the lives of 100 million slum dwellers means only to improve the lives of 10% of the existing slum dweller population around the year 2000. The UN, when endorsing this target (which stems from Cities Alliance), was fully aware that it is impossible to achieve cities without slums by 2020. It appears that this needed to be better communicated to national and provincial governments in South Africa, which in their zeal seemed to have pulled apartheid legislation off the shelf and are proposing the conservative and repressive measures to wipe slums off the surface of our cities and clamp down harshly on any attempts at their re-emergence.
3. Fundamental flaws in the positioning of the Bill
It must be stated clearly that there is no consensus in South Africa or internationally on the desirability ‘to introduce measures which seek to enable control and elimination of slums, and the prevention of their re-emergence’ (Preamble of the Bill, p.2 – my emphasis added).
3.1 The need to focus the Bill on fulfilling Constitutional state obligations, rather than trying to achieve the elimination of slums
If the state were fulfilling its obligations in relation to the Constitutional right to housing, slums would gradually decline in numbers or at least grow at a slower rate, as desperately poor households would gain access to adequate housing. Instead of focussing on relevant ways in which the State should fulfil its obligations, in particular through implementation of Chapters 12 and 13 of the Housing Code – preparedness for emergencies, and informal settlement upgrading – the Bill assumes that while housing delivery continues as in the past, wide scale evictions and zero tolerance of the formation of new slums will result in the progressive realisation of access to adequate housing for all. The assumption in the Bill is that people living in informal settlements or overcrowded substandard buildings have residential options and in fact choose to live in slum conditions. This view is usually held by the middle class, which has little insights into the level of desperation and the survival strategies of the urban poor. It is not clear how this conservative view found its way into this Bill 13 years into democracy.
There is ample evidence in courts that slum residents live in ‘slum conditions’ out of desperate need. If any option exists to them, it is a return to
- abject poverty in a rural home far away from social facilities and with threats of under-nourishment,
- urban streets with no privacy and threats of violence and harassment,
- to an overcrowded township house or backyard shack with no privacy and with threats of contracting diseases such as TB, while further burdening other already desperate households, depriving them of their already limited privacy and requesting to share their scarce resources
- an attempt at illegally occupying even worse conditions, as invisible as possible.
It is important to note that the New Strategic Plan (NST) of the Ministry of Health, launched 31 April 2007 acknowledges informal settlement communities as some of the most vulnerable groups alongside women and children.
In the now famous case of the Wallace Dean residents represented by Iris Grootboom, the places the group of desperate households moved from when deciding to invade land (from which they were subsequently evicted) had already been taken by others – so scarce are the housing opportunities for this class of people, and so large the demand. This group of households ended up occupying an open field and in their desperation sought legal support to claim relief from the state, eventually leading to the internationally acclaimed socio-economic rights ruling referred to as ‘Grootboom’.
In a highly unequal society such as South Africa, almost half of the population is condemned to living in slum conditions, whether in an unlawful occupation under the threat of eviction, or in an overcrowded backyard room under the threat of contracting TB, or in a desperately poor rural community under the threat of malnourishment and extremely restricted access to hospitals. UN-Habitat, despite its campaign to improve the lives of slum dwellers, predicts a doubling of the number of slum dwellers worldwide by 2020. South Africa is no exception to this unfortunate trend, and a Bill addressed at slums must accept this reality. The Constitution acknowledges this reality, and mandates the state to work towards reducing inequality. The State’s obligation to use its available resources in a reasonable way to progressively realise the right to adequate housing must not be seen in isolation of the obligation to work towards a reduction in inequality – the latter has been an enormous challenge to the national Department of Housing, which acknowledges in Breaking New Ground (2004) that despite delivery of an unprecedented number of new housing units, the number of those living in slum conditions has increased. A Bill addressed at Slums three years later must build on these insights.
3.2 The need for the Bill to centre on the promotion of emergency preparedness and upgrading of informal settlements with relocation only as a last resort
The planned delivery of housing is important, and as clearly stated in national Department of Housing’s Comprehensive Plan for the Creation of Sustainable Human Settlements: ‘Breaking New Ground’ (BNG), must be continued, though in a less segregated manner, on better located land, and with less uniformity. However, it is evident that with current constraints the state is unable to provide adequate housing to all in the immediate term. Breaking New Ground does not suggest that slums will be eliminated through formal housing construction, but through structured upgrading of informal settlements. It requires all informal settlements to be upgraded, with relocation as a last resort.
Chapter 12 of the Housing Code enables certain responses to emergencies as they might arise in slums. Chapter 13 of the housing code, while also providing a finance mechanism for interim servicing of informal settlements, provides financing and inclusionary and participative procedures for the upgrading of informal settlements. The terms ‘control’ and ‘eviction’ are entirely at odds with this programme. If provincial legislation is required to eventually achieve the elimination of slums, it must force municipalities to comply with and implement Chapters 12 and 13 of the Housing Code.
In reality, few municipalities know about Chapter 13 of the Housing Code, few municipalities are prepared for the disasters and emergencies that regularly affect informal settlement communities, in particular fires, and few municipalities are taking any active measures to reduce this risk, by measures such as extension of water hydrants and electricity into informal settlements. This was confirmed by the initial report of the UN Special Rapporteur on Housing Rights, Miloon Kothari, after his recent mission to South Africa. Municipalities are instead encouraged in this Bill focus on the active eradication of informal settlements through repressive measures such as control and eviction, actively advocated for in this Bill. What is meant by ‘control’ is not defined in the Bill. However, the use of this word in the Bill reflects a language that is profoundly anti-poor and anti-democratic. It has frightening similarity with language used by the apartheid government in its 1951 Squatting Act.
3.3 The need to recognise in the Bill that slums are no threat to housing developments
Despite many new measures set out in Breaking New Ground (2004), the conventional response by provincial and local government to the reality of an enormous housing backlog still is to focus on speeding up the delivery of greenfield housing developments. In the Preamble to this Bill, slums are seen as a threat to housing development, thus one of the requirements for slum elimination and control is that this must ‘promote and protect the housing construction programmes of both provincial and local governments.’ With no further explanation given in the Bill, slums, their formation and continued existence, are portrayed as a threat to housing construction programmes. Presumably it is assumed that slum dwellers might be enticed to invade land that is earmarked for housing development or where housing is ready for occupation by individuals on a waiting list. These problems must be dealt with (and prevented) through proper consultation and participation procedures. If communities are fully aware of when and how development will take place for them, and have enough reason to trust development promises made to them, they will neither invade land earmarked for housing development nor disrupt housing projects. The Bill ignores this aspect and fails to promote effective processes of community participation.
3.4 The need for the Bill to prevent housing developments from being a threat to slum dwellers
The reality, in the experience of many slum dwellers, is the opposite of what the Bill claims. Slum dwellers are not a threat to housing construction programmes. Instead, housing construction programmes are often a threat to slum dwellers. Informal settlements are demolished with forced removals of their residents to distant housing developments waiting for occupation. Evictions are forced because residents resist the move, fearing a deterioration of their lives once they have moved to new developments. Other informal settlements are demolished to make way for new low cost housing developments at such low densities that only a fraction of the original informal settlement residents can access these houses. Still others make way for up-market developments in which, even if national Department of Housing’s draft inclusionary housing policy were applied, they would not be able to access the affordable units. Even so-called ‘affordable’ housing is out of reach of the class of people that inhabit informal settlements or slums. A recent example is the N2 Gateway project, where rental units remain out of reach to the original informal settlement dwellers in Cape Town who were removed to distant Delft. In inner city slums or inadequate buildings, forced evictions often make way for developers to renovate these buildings for profitable residential development. Indeed, formal housing development with its many commercial interests (represented by powerful lobbies and at times government) often presents a threat to slum dwellers.
3.5 The need for the Bill to cater for the immediate needs of those living in desperate conditions
Government has obligations in relation to the right to housing that go beyond the construction of housing. It was clearly stated in the Grootboom ruling that housing ‘programmes’ (meaning policies) must cater for the immediate needs of people living in desperate conditions. Several national policy/programme changes were introduced since (and in response to) the Grootboom ruling in the Constitutional Court in 2000. In particular the introduction of Chapters 12 (emergency assistance) and 13 (informal settlement upgrading) of the Housing Code were introduced to meet the needs of informal settlement residents as set out by the Constitutional Court. In order to eventually eliminate the need for slums, these programmes must be actively implemented by municipalities. Their correct implementation must be monitored, municipalities should regularly report on progress made and measures taken, and budgets must be made available.
3.6 The need for the Bill to be underpinned by an understanding of slums as temporary relief to the housing crisis and mandate improvement that involves the occupants rather than displace them
In a context of complex obstacles to speeding up of housing delivery, slums, while never to be condoned, must be understood as providing temporary relief to the housing crisis. Thus the owners of unlawfully occupied land or ‘slum’ buildings, whether government or private, share a part in the burden of the housing crisis. While exploitation of the housing crisis through gainful provision of living quarters with slum conditions must be prevented by the state at all costs, this does not mean that the residents must be evicted. To the contrary, owners of such land or buildings must be required to improve conditions, and in certain instances with support from the state. In the case of rental slums however, this always results in an increase in rents and the market eviction of desperate households. Therefore the Brazilian concept of a ‘social function of land and buildings’ must be introduced. A Bill seeking to improve the lives of those living in slums must seek ways to legislate the improvement of land and buildings in such a manner that the desperately poor occupants are not displaced by the market. This requires
- that maximum standards to be set at such a level that the units are less attractive to the market, and
- the involvement of the occupants in the process of decision-making and implementation of the improvement.
Further, intervention in line with the state’s obligation on the Constitutional right to housing must be to immediately and on an ongoing basis:
- assist slum communities in their own efforts to improve their lives;
- reduce the hardships and risks they endure, in consultation with these communities and their ideas on possible improvements;
- be as prepared as possible for emergencies and to minimise loss of lives and loss of assets of poor people;
- improve access to services immediately in all informal settlements to an overall acceptable minimum standard, including access to free basic services;
- accept that slums will expand as long as housing delivery and lags behind the rate of household formation.
3. Comments on sections of the Bill
3.1 The need for re-naming of the Bill
‘Elimination and prevention of re-emergence of slums’ is a harsh language that signals measures of repression and control, and, irrespective of its content, will result in widespread fear among households who find themselves without alternatives to the shack or other inadequate quarters they inhabit. The title of this Bill needs to be compared with the careful wording in national legislation ‘Prevention of Illegal Eviction from and Unlawful Occupation of Land Act’ and ‘Extension of Security of Tenure Act’, which were enacted to give meaning to the Constitutional right to Housing. The Bill’s name needs to be aligned with the Constitution. It should also be aligned with the intentions stated in national Department of Housing’s current programme ‘Comprehensive Plan for the Creation of Sustainable Human Settlements: Breaking New Ground’(abbreviated ‘Breaking New Ground’), which also represents a careful interpretation of the State’s obligation in relation to the Constitutional right to housing. The name of the Bill should refer to ‘the realisation of the right to housing’. In large parts, this is what the Bill deals with. Those parts of the Bill that contradict this Constitutional right cannot enacted.
3.2 Preamble: the need to protect poor communities
Already commented above, reference to control, elimination and prevention of re-emergence must be removed and replaced with the need to support the efforts of desperately poor households to improve their lives, and to protect poor communities from housing construction programmes.
3.3 Definitions – 1
3.3.1 The definition for ‘informal settlements’ in the Bill is correct and appropriate. This needs to be stressed, due to the ongoing confusion of the term ‘informal settlement’ in the housing sector. This goes back to the terminology promoted by the powerful think tank, the Urban Foundation. The Foundation, while piloting important participatory informal settlement upgrading approaches in cities such as Durban, in its policy documents focussed its definition of informal settlements on the structure or building, with the result that shacks on serviced sites were also referred to as ‘informal settlements’. This definition has confused data-collection on the scale of informal settlements countrywide – the census to date does not differentiating between shacks on serviced sites and shacks in ‘unplanned and unapproved settlement’ (quoting from the definition in the Bill).
3.3.2 The definition of slum: the critical importance of security of tenure
While the definition of informal settlements is correct in the Bill, there is a fundamental problem with the way ‘slums’ are defined, and this fundamental problem is reflected throughout the Bill. The discrepancy between the definition of ‘slum’ in the Bill and the definition promoted by UN-Habitat, e.g. in ‘The Challenge of Slums: Global Report on Human Settlements 2003’, is that UN-Habitat adds a critical characteristic of slums: insecurity of tenure. It is necessary to highlight the importance of including this characteristic in any definition of slums, particularly in a Bill that is directed at addressing slums in a non-repressive and democratic manner. The term ‘insecurity of tenure’ refers to the direct or indirect threat of eviction. In the late 1990s UN-Habitat launched a ‘Global Campaign on Secure Tenure’. To date this is UN-Habitat’s main campaign in its support to country governments in their endeavours to meet UN Millennium Development Goal Target 11 ‘to improve the lives of 100 million slum dwellers by 2020’. According to the global campaign for secure tenure, a first step to improving the lives of slum dwellers, i.e. of transforming a dwelling from a slum to something better, is to remove threats of eviction. The Bill, by mandating municipalities and landowners to institute evictions, does the exact opposite. If passed, it will by UN-Habitat’s definition, overnight, create more and worse ‘slums’ by removing de facto security of tenure of settlements or slums that have been tolerated for years or even decades. It will reverse South Africa’s acclaimed advances towards improving the lives of slum dwellers, by immediately imposing insecurity of tenure on hundreds of thousands of households. From this perspective, the Bill cannot possibly be accepted. It contradicts the South African government’s commitment to the UN Millennium Development Goals and will rightly result in an international outcry.
3.3.4 A definition is required for ‘public interest’ – p.11, item 10 (eviction by municipality)
3.4 Objects of the Act – 3
The objective of the act should not be to eliminate slums and prevent their re-mergence, but to realise the right to housing. Only under this overall objective can stated objectives of increased co-operation between provincial and municipal departments be accepted.
3.5 Prohibition of unlawful occupation – 4
This prohibition pushes the responsibility for carrying the burden of the housing crisis onto other desperately poor households who have to accommodate homeless relatives and acquaintances at costs to their own privacy, health and wellbeing
3.6 Responsibility of municipality on use of substandard accommodation – 6
Action is needed not in the eviction of residents of such slums, but in the improvement of these same slums, with the participation of the residents.
3.6 Powers and functions of the responsible MEC – 8
These must relate in the first instance to ensuring informal settlement upgrading of all informal settlements and improvement of slum buildings, with relocation only as a last resort.
3.7 Progressive realisation of the right to adequate and affordable housing – 9
This section needs to be lifted into the centre of the Bill and be mandatory, rather than stating ‘municipalities may as part of….’.
3.8 Eviction by municipality – 10
Only once ‘public interest’ is clearly defined, can one comment on the appropriateness of this section of the Bill.
3.9 Submission of status and annual reports to responsible MEC – 11
Informal settlement upgrading must be central to this section. The sceptical tone of ‘which slums, if any, are suitable for upgrading’ (p.12) is less than helpful in this respect.
3.10 Steps to prevent unlawful occupation – 15
These are the ultimate steps towards achieving an exclusionary city. This measure is entirely unacceptable 13 years into democracy with cities that still largely perpetuate apartheid spatial structures and continue to exclude the poor, predominately black population from large parts of the city. In the absence of measures to effectively integrate South African cities, land invasion must be recognised as a process towards a more equal city. In the 1988 Brazil Constitution (legislated in the 2001 Cities Statute), after five years of peaceful occupation of privately owned land the occupier of a maximum of 250m2 is given ownership of the land, with no compensation to the owner. This measure recognised social function of vacant land. This would be a far more suitable measure in the segregated South African cities than mandating the fencing off and posting of security guards on vacant land.
3.11 Eviction of unlawful occupiers – 16
In mandating land owners to prevent informal occupation and in cases of existing informal occupation, to institute eviction procedures, lies a worrying commonality between the Bill and the apartheid State’s 1951 Prevention Squatting Act, which, also gave a role to landowners in the ‘elimination’ of informal settlements.
3.12 Offences – 20
This section disregards the needs of those living in desperate conditions.
For all these reasons, I submit that the Bill in its current form should not be enacted.
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