Category Archives: courts

Open Democracy: Legalizing economic and social rights can help the poor: reflections from South Africa

Stuart Wilson, Open Democracy

The best account of human rights aims to protect and advance all the incidents of freedom, equality and dignity. These include freedom of thought and political action, which are incompatible with torture, arbitrary detention, or censorship. They also include freedoms to realise one’s self, which are impossible without access to the basic elements of a decent existence, such as adequate housing and healthcare, sufficient food, and quality education.

This is what we mean when we say rights are “indivisible”. They cohere around an account of the human personality that acknowledges the inherent dignity of each person; that each person counts for no more or less than any other in the distribution of the means of self-realisation; and that each person is free to pursue his or her own conception of the good, equipped with the basic necessities of life.

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The Witness: Cato Crest residents divided over court order on shacks

cato crest | court | Mhlabunzima Memela | The Witness[_id]=106508

Cato Crest residents divided over court order on shacks

Mhlabunzima Memela

TENSIONS threatened to boil over in Cato Crest yesterday after municipal officials tried unsuccessfully to implement a court order compelling them to identify shacks that were not allowed to be destroyed.

The officials found themselves at the centre of a confrontation between home owners and shack dwellers.

On Monday, the Durban high court granted informal settlers a fifth court interdict preventing the eThekwini Municipality from demolishing their homes.
The court instructed the city’s legal team and officials to accompany the shack dwellers and to identify and mark the 31 shacks protected by the orders.
However, the process was stalled after home owners started protesting, saying that they were concerned the shack dwellers would get access to housing before them. Police, who accompanied the municipality’s land invasions unit, urged them to leave as the situation was unsafe. At one stage more than 200 people faced off with just a few metres between them.

Women in pinafores and ANC T-shirts hurled insults at police and municipal officials as they hurriedly left the area.

“You are not going to mark any shacks. We do not need shacks on land earmarked for housing development. Go back to court to explain that, no shack will be erected here,” they threatened.

An elderly resident, Elizabeth Dlamini (72), said they would not allow the construction of shacks on land earmarked for a housing development. “We do not know these people erecting shacks here. At the moment I’m staying in a house made of corrugated iron — it was meant to be a temporary home. Our shacks were demolished because of housing development and we should benefit first,” said Dlamini.

Dlamini said she arrived in Cato Crest in 1991 and was among the first people who cut down trees to construct shacks. “We do not know these people that now need to be protected by the court.”

Sbu Zikode, leader of shack dwellers’ movement Abahlali baseMjondolo, accused local councillor Mzimeleni Ngiba of dividing residents in the area. They accused Ngiba of standing in the way by organising residents with low-cost houses to protest against the order of the court.

However, Ngiba denied that he had turned residents against each other in the area. “I informed members of the development committee about the court order. We are not defying the court order, but we wanted to know where these people come from,” she said.

Zikode said: “We will wait for our legal team to advise us on the steps that need to be taken now. The court order was not about the ANC, but the municipality.”

Daily News: Advocates slam council demolitions

The Municipality is lying. They are evicting the people who went to court and the people that occupied this land are not new arrivals – they are people who have long lived in Cato Crest and were made homeless by illegal evictions.

Advocates slam council demolitions

September 26 2013

Durban – The ongoing demolition of shacks at the Cato Crest informal settlement in Durban, despite several court interdicts preventing it, has raised the concern of South Africa’s advocates’ body.

The General Council of the Bar of South Africa (GCB) has criticised the eThekwini Municipality for sending its Land Invasion Unit to destroy the shacks.

Advocates who are members of the GCB are competitive specialist advocates who are experts in trial, motion court, appellate and opinion advocacy.

Each province has a Bar association that is affiliated to the GCB.

Over the past two weeks, the affected residents had been evicted and left homeless three times, said council chairman, advocate Ishmael Semenya.

At least one shack dweller was wounded in skirmishes with the unit at the weekend.

“The residents have urgently approached the high court on no less than five occasions, claiming that their eviction was unlawful. They have obtained three interim court interdicts, restraining the Durban municipality from evicting them again without a court order, and have subsequently rebuilt their homes,” he said.

Despite this, the Land Invasion Unit had returned to the settlement and once again destroyed homes.

“The General Council of the Bar notes reports that the residents were driven to occupy land at Cato Crest earlier this year after they were excluded from a project intended to provide housing to them and others in a nearby informal settlement.”

Semenya said section 26 of the constitution entrenched the right of access to adequate housing and protection from arbitrary eviction.

“It is a matter of grave concern that, despite their repeated attempts to follow due process of law in enforcing their constitutional rights, the residents, including many women and children, have been left homeless and destitute,” he said.

Constitutional law expert, Professor Pierre de Vos, said the municipality was required to obtain an interdict to demolish the shacks if people were living in them.

“There was a similar situation in Cape Town until the municipality established a law that they had a right to demolish houses,” said De Vos, who is a lecturer at the University of Cape Town.

“The large problem here is that the (eThekwini) municipality is not respecting the law. This appears to be a systemic problem where the municipality does not seem to understand or recognise that there’s a legal framework and they can’t just demolish homes.”

De Vos suggested that the lawyers acting for the Cato Crest residents should try to get a “structural interdict” to prevent the municipality from demolishing any shacks.

The municipality would be required to justify its actions if it persisted in tearing down the shacks, he said.

The municipality’s spokesman, Thabo Mofokeng, said the Bar’s concerns were noted but suggested that a meeting be set with the Bar and the city to discuss the issue privately.

“We have respected the court process and have always complied with the court orders. We have never touched the court applicants’ homes,” Mofokeng said, referring to the 30 Cato Crest shack dwellers that had gone to court.

Mofokeng also hinted at the city’s holding a media conference on the issue, adding that it would not stop dealing with land invasions.

“We have done all the available remedies to deal with these land invasions,” he said. “We cannot allow invasions to continue.”

The truth about rights in South Africa

The truth about rights in South Africa

Iqbal Suleman

Rights ranging from access to land to access to justice are entrenched in our Constitution. These rights are presumed to be available and readily accessible to everyone. The Constitution tells us that we all have equal rights but the reality shows us otherwise.

In a free market economy, nothing is really free. From access to housing, healthcare, education and justice. It all has a price. If you cannot afford it, you cannot access it.

What do you mean justice is inaccessible and market driven, you hear neo-liberals cry. There are human-rights NGOs, legal aid, university law clinics and pro bono attorneys. It remains unsure, though, how many people are able access these mainly urban-centred, rights-based organisations and what capacity these organisations have.

Statistics show us that at least 50% of the population lives in rural areas. So what about the millions unable to access legal services. Two horrors facing the poverty-stricken of our country are job losses and eviction. It is true that a farm worker dismissed in a rural area can refer an unfair dismissal to the CCMA without incurring legal costs but when he is fired, he doesn’t have the money for daily necessities, let alone money to travel to the arbitration process. It is arguable then that he cannot pursue his constitutional rights as a worker.

Legally, a person unable to pay rent cannot be evicted unless given alternative accommodation. The Prevention of Illegal Eviction Act makes it unlawful for a hard-nosed landlord to dump a tenant out on the streets. But how many people know about this right and how many can actually access a lawyer to challenge the eviction in court? Few, if any. So as the old adage goes, a few trees do not make a forest. Rights-based organisations are like a few trees that shine in the dark. They provide free legal services to the poor who cannot afford it. They play an important role in defending the rights of poor but because of limited resources and capacity not enough people are fairly represented. Neo-liberals would have us believe that the few trees make up the forest. They don’t. All of these rights exist within a free-market context. They are commodities. They have a market value. A price. This is the way it is. If you can’t cough up the bucks, then you are out of luck. The propertied and moneyed class can afford the best legal services. The poor cannot. What is on the surface, presented as a level field of justice, is in reality far from it.

A referral of an unfair dismissal can be issued by a worker without the help of an attorney. Workers are mostly under-represented in arbitration. On the other side, employers are always represented legally. According to the Tokiso 2012 Dispute Resolution Digest “employers win approximately 67% of CCMA arbitrations”. This clearly refutes popular perceptions that the Labour Relations Act and CCMA is pro-worker and anti-employer. These statistics are indicative of the uneven power relations between employer and employee. This prejudices the employee from the outset.

Even in the instances where the employer loses, he will delay the legal process and frustrate administrative justice. As a result, even in the rare 23% of cases where an employee swings arbitration in his favour, the employer will take the case on review, knowing the employee does not have the means to challenge it in the Labour Court. Instead of paying the worker what is due, the employer will spend ten times the amount in legal fees because he can. To ensure the worker doesn’t think about pursuing the matter, the employer threatens him with a costs order. In this way, a large percentage of awards which are issued in favour of workers are not enforced. This amounts to paper and procedural justice.

For the working class who are evicted and dismissed on a daily basis, justice in the real sense remains elusive unless we conceptualise justice in the neo-liberal tradition of procedural justice. The truth is that access to justice in a capitalist context is only accessible to the elite. In our country, 50% of the population earns 8% of the national income while the other 50% earns 92% of the national income. This is class apartheid. Most people cannot access legal services. Like the doors to the Palace of the Lost City Hotel are closed to the poor so, too, are the doors of justice.