CONTRIBUTION TO A PANEL DISCUSSION ON JOHN DUGARD’S
LEGACY TO HUMAN RIGHTS ACTIVISM AND LITIGATION

Stuart Wilson
Visiting Senior Research Fellow, Wits Law School

I would like to talk, in the time allotted to me, about Abahlali baseMjondolo, a movement of informal settlers in KwaZulu Natal I represented while I worked at CALS, which has recently been violently repressed by the state under the guise of a police operation to tackle vigilantism. John Dugard was the first to sign a statement condemning the repression for what it was – a remorseless attack on a peaceful and democratic community based organisation.

Abahlali is the shack dwellers’ movement of South Africa. It is run by people who live in shacks, for people who live in shacks. It is committed to improving conditions for people living in the settlements affiliated to it, and to campaigning for the better integration of the poor into the urban fabric. Abahlali’s core message is that shack dwellers should not sit back and wait for what is often blithely called “service delivery”, but rather take responsibility for actively campaigning for better housing, sanitation, healthcare and education, to be provided on terms favourable to its members. In simple terms, as its President, Sbu Zikode often says, Abahlali’s message is “Nothing for us, without us”.

Its central campaign is concerned with housing. Instead of mass relocations to matchbox housing settlements on the urban periphery – which tend to deepen poverty, destroy social networks and increase unemployment – it seeks the upgrading of informal settlements in situ, in line with national government policy and international best practice. At a time when many poor and understandably frustrated communities across South Africa are blockading roads, setting fire to cars and destroying government property, Abahlali is mobilising informal settlers to find solutions to their problems through coming to grips with the nature of their exclusion, rejecting the stigma which is often attached to them and forming progressive alliances with housing technicians, lawyers and other civil society organisations to campaign for their objectives. Abahlali fosters a dialogical, iterative and reflective relationship with and between its members, as well as with those outside its membership who support its objectives.

During the xenophobic violence which rocked South Africa in 2008, it was observed that few attacks took place in settlements in which Abahlali had a presence. This is because Abahlali’s membership comprises of citizens and non-citizens, and the movement responded to the violence by bringing them together in forums where the grievances of both could be discussed openly. The result was that most people were able to reflect and realise that the causes of the frustrations leading to the violence were rooted in poverty and inequality that made little meaningful distinction of nationality – at least in informal settlements.

Abahlali was first met with violent repression (its marches and meetings were illegally broken up; its leaders were arrested and beaten; its members or people living in settlements in which it had a presence were evicted at gun point without a court order by the City’s land invasions unit). However, Abahlali’s patient engagements with the Durban municipality have lead to limited undertakings on behalf of the state to consider the viability of upgrading settlements in which Abahlali has a presence and the beginnings of a meaningful dialogue with the movement. Abahlali has also successfully campaigned for the installation of more water points and better sanitation in its members’ settlements.

Abahlali’s turn to the law has facilitated some of this. Abahlali began, with the aid of public interest lawyers at CALS, the Legal Resources Centre and private attorneys acting pro bono, to challenge and successfully resist some of the unlawful evictions to which its members were subjected. Abahlali’s members were defended on and successfully resisted spurious charges of public violence brought against them. Faced with a movement over which it could not simply ride roughshod with police harassment and unlawful eviction, the state began to talk.

Most recently, Abahlali, with CALS’ assistance, has taken a case to the Constitutional Court. That case challenges the constitutionality of the Slums Act, a piece of provincial legislation which equates the elimination of Slums with the eviction of people living in them and is intended to make that a much more frequent and easily facilitated occurrence. Judgment in that case is pending.

Abahlali’s message and its modest, incremental successes in improving the lives of its members have been popular. Abahlali now has a presence in well over thirty settlements in Durban and many more in Cape Town and Pietermaritzburg. However, although Abahlali has never sought political office, or power for its own sake, its success has be interpreted as a threat by some local politicians and property owners. This is because much of the land on which Abahlali’s settlements stand is valuable suburban property. It is worth far more to some if were developed commercially, rather than upgraded for low-cost housing. A powerful, assertive organisation of shack dwellers who know their rights represents a real threat to the commercial agenda.

Last Saturday and Sunday nights, a gang of thugs entered the Kennedy Road informal settlement in Durban. Kennedy Road is the founding settlement of Abahlali, where its office is based and in which its membership is strongest. The gang sought out and destroyed the shacks of around 30 leading members of the movement and stole their possessions. The police were present and did nothing to stop the pillage. They only intervened to arrest members of Abahlali who resisted the gang. Many other families associated with the movement fled in fear of their lives. On Monday morning, the local ANC councillor Yacoob Baig and the MEC for Community Safety, Willas Mchunu, arrived at the settlement, congratulated the community on having removed what they called a criminal element and declared that the community could now live in peace and harmony. Abahlali’s office was ransacked.

At first, the state painted the violence either as xenophobia or vigilantism. Later on, it released a statement claiming that the violence was directed by a shady community-based organisation, which it referred to as “The Forum” (which it said had links with Abahlali) and that the police had intervened to “free” the Kennedy Road informal settlement from its clutches. In later statements, representatives of the state and members of the ANC have simply stated that the police operation was directed at Abahlali, which is a criminal organisation.

The criminalisation of the poor is nothing new. I have often seen crime prevention operations in the inner city of Johannesburg which quickly and seamlessly metamorphose into unlawful evictions. The residents of the Olivia Road properties had to resist three such crime prevention operations on their way to the Constitutional Court hearing which ultimately resulted in their voluntary relocation to state-funded housing in the inner city. But these incidents have mostly been the result of fairly low level corruption – a property owner who can’t be bothered to get an eviction order, or wait for the state to do it for him, will slip a middle ranking police officer a few hundred rand to arrest some unlawful occupiers for trespass, or to stand by and ensure that there is no resistance while a security company carries out an eviction at 3am.

What is happening to Abahlali represents something more profound. It is a closing down of political space; it is a warning that the poor should not be too organised, critical or demanding – at least not outside the spaces in which the state can control and marginalise dissent. One of the most chilling aspects of the MEC’s statement in the aftermath of the violence at Kennedy Road was that after Abahlali is disbanded “challenges community shall be addressed through dialogue within properly constituted community structures”. One is left to wonder, uneasily, what that means. When an ANC councillor declared the next day that Abahlali’s office, by then ransacked, would become a new branch office of the ANC itself, the answer seemed menacingly clear.

CALS has been one of the spaces in which the jurisprudence of the Constitutional Court on socio-economic rights has been the most used, praised and criticised. Whatever the contours of that debate, the Court is indisputably correct about one thing: at their most fundamental, socio-economic rights prohibit exclusion, and guarantee the space to engage with and shape the terms on which the benefits they guarantee are provided to the poor. One such space has been violently wrested from Abahlali’s members this week.

When John set CALS up, he might have been forgiven for thinking that in 30 years’ time we’d be dealing with a different kind law in a different kind of society. And, in many ways, we are. We have a government legitimated by truly free and fair elections. We have much less hostile judiciary. Most importantly, we have a Constitution which, at least formally, guarantees the inclusion of all in the political community. But democracy must also fill the spaces between elections. The freedoms guaranteed by the Constitution must be practiced – and permitted to be practiced – by the citizenry. The attack on Abahlali is an attempt to stamp out that vital practice of democracy. Abahlali, fighting on behalf of an excluded underclass in the teeth of a paranoid state, an aggressive propertied class and a corrupt police force, is now becoming painfully aware of the lessons John learnt and taught thirty years ago.