GroundUp: Court victory vindicates shack dwellers’ rights

“Our houses have been demolished and we have no place to stay.

We tried to secure shelter and now we are being chased away from the forest.

They say we must figure out what to do next and we have no idea where to go.

We intend on going back to the forest on Monday.”

There’s a timelessness to the words spoken by Angel Duma on 5 March 2013, moments before they were translated from isiZulu and captured by her lawyers in an affidavit. A rendition of that verse could easily have been uttered by forty-four year old Mandla Tetani as he readied a donated mattress on a winter’s night at Nomzamo community hall, Strand in June last year; or by the teary woman whose name went unrecorded as she sat on a broken bed with an infant daughter in the gathering dusk at Philippi East on 8 January 2014; or by Durban based community leader Ndabo Mzimela as he spent Christmas eve, three weeks prior, preparing to rebuild his ruined shack for the 25th time.

Duma’s words, poetically delivered and penned after an eviction from state owned land in Durban, captures the trauma and defiance of thousands of poor people seeking access to jobs and opportunity in South Africa’s post-apartheid cities. Invariably, they are shack dwelling people and are assumed by government to have no standing on any land that they do not own or rent. When pushed by circumstance, maybe an eviction from elsewhere or unaffordable rentals, they may mobilise, and find strength in numbers to occupy a derelict plot nearby. The risks in doing so are immense. People are evicted, they have no place to go or return to, they reoccupy, they are evicted. For the foreseeable future they remain in this uncertain and sometimes deadly dance with the state.

To be sure, the repression from the state as it tries to repel and disincentivise occupations, generally a collaboration of riot police providing the fire power to back up municipal workers bearing hammers and crowbars with which to demolish the shacks, is marked by violence. The crucial distinction between those established on the land, and others hoping to join the occupation becomes blurred. And so every occupier becomes a potential target.

Violent evictions at Marikana informal settlement in Philippi East. Photo by Daneel Knoetze.

Mzimela estimates that his Cato Crescent shack was laid to waste at least two dozen times between August and December 2013. Earlier that year he was evicted from an adjacent settlement where he had rented a shack for 15 years. His removal was a punted as a pre-requisite for a new housing development. But, in reality, Mzimela says that he and many neighbours were purposefully excluded from benefitting from new houses because they were backyarders, unwilling or unable to pay a bribe and Xhosas in a part of town dominated by corrupt, low-level Zulu politicians.

Mzimela joined the occupation of Cato Crescent after living for several weeks under a plastic sheet, on a sports field, while waiting for the promise of alternative accommodation. Of the later evictions he says:

“Every time I asked them whether they had a court [eviction] order. Since we became one with Abahlali baseMjondolo we knew what our rights were. The police and land invasion unit would just look at me, and then they would carry on. That thing is very illegal.”

In the latter half of 2013, the Cato Crescent land occupation – “Marikana” – became a battle ground for the radical shackdwellers’ movement Abahlali baseMjondolo: in the courts and in streets. The community were defiant. They protested loudly and violently against eviction, but also against the corruption of housing delivery on their doorstep. As the occupation’s namesake and inspiration showed the year before (when 34 striking miners were massacred by police in the North West province), such challenges to the state rarely go by unpunished. Nkululeko Gwala and Thembinkosi Qumbela, both activists with Abahlali baseMjondolo; and Nqobile Nzuza, a 17-year-old school girl, were murdered respectively by hitmen and police during the months of upheaval. In September last year Mzimela also endured threats on his life and went into hiding. For Cato Crescent’s Marikana occupation tragedies have been manifold, and victories rare. And so one is unsurprised at the joy in Mzimela’s voice as he speaks of the judgment, handed down in the Durban High Court last week, which finally confirms the lawlessness of the Cato Crescent evictions.

People at Marikana informal settlement in Philippi East flee eviction squads and law enforcement in August 2014. Photo by Daneel Knoetze.

Experts in the field have seconded Mzimela’s understanding of an occupier’s right, and the illegality of the state-led evictions of the type seen at Marikana (in Cato Crescent); Lwandle (in Strand) and Marikana (in Philippi East). Once an occupier has built a shelter and claimed it as their home, they have a right to due process and representation in court – a process which may take months – before an order to evict them can be granted. That right, asserted in the Constitution and given effect to by the Prevention of Illegal Eviction (PIE) Act, is rarely recognised. As the three mass evictions above have shown, the boundary between securing a property from potential occupiers (an action easily permitted by the courts) and evicting established ones becomes blurred.

Last week’s judgment confirmed what public interest lawyers have suspected and argued for some time: the courts bear as much responsibility for this ambiguity as municipal land invasion officers who decide, with a nod of the head, which shacks are given the hammer and crowbar treatment on a given day. These officers’ self-assurance is grounded in the wide ranging discretion imbued on them via court interdicts secured by their superiors in government.

KwaZulu Natal MEC for Human Settlements Ravi Pillay read Duma’s affidavit, the part where she speaks of returning to the forest on Monday, as an explicit threat. That reading set in motion a court process which ended with Pillay securing an wide ranging interim interdict which would allow other organs of state to repel this and other anticipated land occupations. The order allowed the state “to dismantle and/or demolish any structure that may be constructed upon the aforementioned properties subsequent to the grant of this order”. Similar wordings can be found in the interdicts used to justify the evictions at Lwandle, Strand and Marikana, Philippi East.

It was an interdict in the guise of an eviction order – that is how Abahlali baseMjondolo’s lawyers, from the Socio-Economic Rights Institute (SERI), convinced Judge Mokgohla to strike the order down, instead of making final and lasting. Said differently, the interdict purported to prevent occupation, but allowed for arbitrary eviction without due process. To a lay reader, the distinction may seem superfluous; but to thousands of people in Durban, Cape Town and likely other cities it has meant the difference between a roof over your head and homeless destitution.

Marikana informal settlement resist evictions in August 2014. Photo by Daneel Knoetze.

This was the first time that the legality of this type of interdict has been successfully challenged, with the result of it being struck down. That translates to a victory for shack dwelling people that goes well beyond the celebrations of Abahlali baseMjondolo in Cato Crescent, says SERI director of litigation Nomzamo Zondo. Although an order of the Durban High Court holds no prescriptive sway in other metros, this one is expected to be persuasive to judges when the matter of interdicts against land occupations arises again.

“The judgment has national implications, and sends a clear message to municipalities and owners seeking similar interdicts that they too are subject to the requirements of the PIE Act, and the Constitution. It represents a significant step towards achieving a more just dispensation for people who feel the burden of inequality most in South Africa,” says Zondo.

It may be a time of celebration for Abahlali baseMjondolo and other occupiers around the country who have fallen victim to illegal, de facto eviction orders disguised as interdicts. But, Mzimela has only allowed himself the briefest moment to bask in vindication and satisfaction. No victory is ever complete without land, housing, and dignity, he says.

“The struggle goes on. I cannot live with this life forever, in a shack forever. I have felt that for too long. I cannot imagine that my children will grow up never knowing what it means to sleep in a house. I imagine a life of dignity for us, one that I am willing to fight for. We are also willing to engage. But, if anyone stands in my way (to deprive me through corruption) I am willing to fight. Under the constitution, these are my rights – housing, equality and dignity.”