The Constitutional Court’s misunderstanding of Chapter 13 of the Housing Code, with regards to interim servicing of informal settlements under this Programme.

Marie Huchzermeyer, School of Architecture and Planning, University of the Witwatersrand

19 November 2009

In Nokotyana and Others vs Ekurhulni Metr o and others (CC31/09 [2009] ZACC 33), honorable Justice van der Westhuizen is incorrect when he argues in Section 43 that under Chapter 13 of the Housing Code the

‘phased development process provides for four phases; the provision of services only come into play in the second phase, after a decision to upgrade the settlement has already been taken by the MEC’.

As I will show below, Chapter 13 does not exclude the provision of interim services to informal settlements prior to the decision by the final MEC for in situ upgrading.

Chapter 13 states twice that it applies both to informal settlements that can be upgraded in situ and to those that must be relocated. This is important, as the decision whether or not to relocate an informal settlements is made by the MEC after Phase Two of the programme. Interim servicing, however, is part of Phase Two. The following are the two statements that the programme applies equally to in situ upgrading as to relocation:

13.2.2

This programme is applicable to the in situ upgrading of informal settlements as well as in cases where communities are to be relocated for a variety of reasons. In cases where projects will require dedensification or the relocation of households, the provisions of this programme are equally applicable to both the upgraded settlement and the relocation site.

13.3.2

This programme is applicable to the in situ upgrading of informal settlements, the

relocation of an entire settlement and or in cases where persons will be required to be

resettled due to the revised township layout as a result of the upgrading project. In

cases where projects will require de-densification and/or relocation, the provisions of

this programme are equally applicable to both the upgraded settlement and the

relocation site.

Phase One of Chapter 13 involves only a pre-feasibility, in which it cannot be established with finality whether or not a settlement can be upgraded or not. In Phase One, municipalities apply to their MEC for Phase Two funding under Chapter 13, by submitting an ‘Interim Business Plan’. This includes ‘pre-feasibility details’ for the possible upgrading of an informal settlement. Again, it must be stressed that at this stage, it cannot be determined with any finality, whether the informal settlement can be upgraded in situ. It is the municipality’s responsibility to undertake this pre-feasibility, not that of the Province.

Once the Interim Business Plan is approved by the MEC, Phase 2 funding is released and the municipality can proceed with land acquisition, household registration, interim servicing and pre-planning studies. The pre-planning studies include geotechnical investigations as well as environmental impact assessments. These are the technical determinants for the decision whether in situ upgrading (with the relevant land rehabilitation) is feasible.

Chapter 13 is not clear on the sequencing of Phase Two activities. Clearly, land acquisition will require first that feasibility of in situ upgrading be determined. Land acquisition activities involve merely the preparations for purchase of the land, with this information then included into the Final Business Plan with which Phase 2 ends. In the case of a relocation, the land acquisition would of course apply to the purchase of land for a relocation site.

In the case of interim services, Chapter 13 at first seems ambiguous, and this is where the Constitutional Court made its mistake. Justice van der Westhuizen claims that that interim services should only be provided once the MEC has decided that upgrading is definitely to take place. However, the decision whether or not to proceed to upgrading is only made after the submission of the Final Business Plan, at the end of Phase two. It is therefore clear that a full decision for in situ upgrading cannot possible have been arrived at his stage and therefore interim servicing cannot only apply where in situ upgrading is finally approved. The actual wording of Chapter 13 does not contradict this. It reads that interim services should ‘first and foremost be designed on that basis that it could be utilized/upgraded for permanent services infrastructure’. It does not say ‘exclusively’. ‘First and Foremost’ is merely an ideal principle, in the same way as the funding for access by emergency vehicles should ‘first and foremost be obtained from the MIG project funding’.

The full wording for interim services under Phase 2 in Chapter 13 is as follows:

13.3.4.2

Install interim services to provide basic water and sanitation services to householders within the settlement on an interim basis pending the formalisation of the settlement. The principle must be upheld that any interim services should first and foremost be designed on the basis that it could be utilised/ upgraded for the permanent services infrastructure. The provision of interim services should also address lighting in key areas to enhance community safety and access by emergency vehicles. Funding for the latter should first and foremost be obtained from the MIG project funding. Should this fail the programme could finance such;

The Constitutional Court has therefore erred in today’s judgment. This is sad, given that the Harry Gwala informal settlement community went all the way to the Constitutional Court to demand a correct reading of this Programme, something that their local and provincial government had denied them. It is also sad, given the enormous improvement that the interim services sought by the Harry Gwala would make in these people’s lives. Justice van der Westhuizen could simply have ordered a correct reading of Chapter 13 of the Code. However, given that Chapter 13 of the Code is very clear and the mistake of the Constitutional Court is equally clear, national, provincial and local government must be urged to simply implement Chapter 13 of the Code as it stands. Nothing should stand in the way of using this programme to urgently improve the lives of South Africa’s informal settlement dwellers.