South Africa needs an active citizenry. The first step is information. This is because there is a clear link between information and power and, as highlighted by the R2K campaign, “information is crucial to the broader struggle for social justice” and, coupled with the right to freedom of expression, forms “the building blocks of an accountable democracy that is able to deliver on the basic needs of its people”. Much of the information to build an active citizenry is set out in the Constitution. By JACKIE DUGARD and THAPELO TSELAPEDI.
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Business Day: State suppression of popular dissent should concern us all
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State suppression of popular dissent should concern us all
by Michael Clark & Jackie Dugard
IN HIS state of the nation address on February 14, President Jacob Zuma said there were important lessons to be learnt from the Marikana tragedy. Skipping over what many may view as the most important lesson about the South African Police Service’s tragic use of lethal force, Zuma drew attention instead to the issue of violent protestors. Calling on South Africans to exercise their constitutionally protected right to protest in a peaceful manner, Zuma pointed out that protests that were not “peaceful” were “unacceptable”.
He said he had empowered the justice, crime prevention and security cluster to put measures in place to ensure that violent protests are dealt with appropriately, that arrests are made and that speedy and effective prosecutions occur. In addition, Zuma explained that specialised courts would be allocated to give priority to protest cases. Some have criticised this stance, arguing that similar measures have not been implemented in relation to a number of other pressing societal issues, such as rising inequality, violence against women and corruption.
Later in the same week, Justice Minister Jeff Radebe further elaborated on Zuma’s comments, saying in relation to protests that the state had to “exercise its authority” in order to maintain peace and security.
The comments by Zuma and Radebe clearly indicate what has become increasingly obvious to protesters themselves: the government is serious about controlling protests and has prioritised swift state response to crowd management.
While on the face of it there is nothing wrong with a government seeking to ensure that protests do not get out of control, when viewed alongside the range of inherently more pressing social problems facing SA, this preoccupation with crowd control does raise the question why the government has placed so much emphasis on “illegal” protest actions. The answer seems to emerge from the protests themselves.
Since 2004, and gaining momentum over the past few years, there has been a huge surge in the number of popular protests that occur in poor communities, causing some commentators to suggest that SA is facing a mushrooming rebellion.
While undoubtedly related to socioeconomic conditions such as chronic unemployment and inequality, and often referred to as being about “service delivery”, the protests are also about poor communities’ desires to meaningfully participate and influence the decisions that affect their daily lives: protests signal communities’ frustration with being excluded from decision-making processes by officials who either fail to engage with them or unilaterally convey government decisions that have already been taken on their behalf.
With formal avenues for contest and dissent blocked off, communities resort to a more visible expression of their discontent in protest actions. Protests thus expose the failure of formal democratic processes, which may explain the government’s profound discomfort in responding to public gatherings. Indeed, it seems it is the visible dissent and not necessarily the threat of violence that has spurred the government towards this repressive stance.
As such, protests are really a litmus test of our fragile democracy. In their proliferation, as well as in the government’s reaction to them, our leaders are found increasingly wanting.
In this light, protests represent an increasingly visible failure on the part of the government to advance an inclusive democracy. The state’s response is to attempt to suppress the rising tide of dissatisfaction by repressive means if necessary. This is apparent in the conduct of the police at public gatherings.
The police have recently been criticised for their insensitive and unsympathetic responses to protests in general. This is seen in their propensity to prohibit protests on unlawful grounds or unduly proscribe protest action, despite the fact that the Regulations of Gatherings Act (1993) specifies that demonstrators must notify the police of their intended protest, but need no permission.
Yet, as any community attempting to protest will attest, in case after case, the authorities unreasonably delay processes and the police regularly label ensuing protests “illegal”, using this terminology to unlawfully disperse legitimate protests or intimidate and threaten demonstrators.
The police have also been criticised for their increased brutality and heavy-handedness. This ruthless attitude was recently highlighted in the shocking video footage of a taxi driver (originally from Mozambique) who was viciously assaulted by police and dragged behind a police vehicle. The taxi driver later died, while being held in police custody. This incident speaks to a culture of violence that is being left unchecked.
Whether or not the culture of violence in the police is actively encouraged by the state, mere tolerance of such unchecked violence indirectly serves to undermine dissent.
At protests, police often use teargas, rubber bullets and even live ammunition for crowd management. In fact, as Jane Duncan, the Highway Africa chairwoman of the Media and Information Society at Rhodes University recently pointed out, it is often the violence of police against a generally peaceful protest that turns protests violent.
This reactionary violence is then employed by the police to justify the use of excessive force. The same criticism can be launched at the criminal justice system in general, where the arrest, detention and prosecution of demonstrators occurs regularly, often on trumped-up charges, in an attempt to intimidate, threaten or destabilise community-based movements.
These actions are generally targeted at community activists who are depicted as “troublemakers” and “criminals”. Such labelling allows the government to disregard underlying concerns instead of meaningfully engaging with the protesters and incorporating these concerns into formal democratic processes.
With each new protest, the government’s failure to meaningfully include the majority of South Africans in the benefits of our democracy is more evident.
However, instead of recognising our failures and encouraging participation at the formal and informal levels, the government appears to be going all out to clamp down on protests and suppress growing popular dissent. This is a very worrying trend that should concern us all.
The Star: In defence of the Concourt
http://www.iol.co.za/the-star/in-defence-of-the-concourt-1.1198152
In defence of the Concourt
Jackie Dugard and Kate Tissington
In recent months the judiciary has come under attack for being anti-transformative. Yet the Constitutional Court’s most recent judgments reveal its true transformative credentials. They also reveal the transformative potential of the judiciary generally.
The violent dispossession wrought by colonialism and apartheid left millions of people without secure access to land. We continue to struggle with this legacy 17 years into our democracy.
On the best estimates we have, at least 7 million people live in informal settlements. Thousands more live in derelict buildings in inner cities.
Without legal rights to the land they live on, the informally housed are particularly vulnerable to eviction.
In four judgments handed down in the past two weeks, the Concourt has confirmed that evictions that lead to homelessness will not be permitted.
They are unlawful and unconstitutional. While the state and private property developers have legitimate interests in possessing and developing land, these interests must be balanced against, and may be limited by, the needs and interests of the poor.
Often, a private property developer will have to wait to take possession of his land until alternative housing can be found for those living on it.
This is especially the case where a developer purchases land knowing it to be occupied.
This fundamentally subverts the logic of colonialism and apartheid. And it cannot seriously be said that the court that has come to this conclusion is not, at least in some important respects, a transformative court.
But these decisions are important in other respects. They are critical in ensuring that the constitution has meaning for most of SA’s poor people.
And they are also important to safeguard SA’s constitutional democracy for us all. If our constitutional democracy serves only the interests of the wealthy, the adequately housed, the well-educated, the healthy and those with sufficient food, water and a healthy environment, it will not survive much longer.
SA is the most unequal society in the world.
Internationally, inequality is associated with a range of social ills ranging from high levels of violence and criminality to ill health and low life expectancy.
Equality is better for everyone. To survive as a democracy, SA must be a place where nobody wins unless everybody wins.
Consequently, the Concourt must not simply be concerned with respecting the powers and role of the executive in giving effect to the constitution. It must, at the same time, ensure that it remains in touch with, and responsive to, poor people’s struggles for equality and social justice. We see these in increasing “service delivery” protests.
These protests are poorly understood. They are not just about inefficiency, corruption and failure to “deliver services”.
They are also about participation, governance and accountability. Communities don’t just protest because they have no services. They protest because they are ignored (and often repressed) when they seek to hold the state accountable for its duty to provide them. They also protest when the goods and services are provided in a repressive, unaccountable manner.
The decisions of Blue Moonlight Properties, Pheko, Mooiplaats and Skurweplaas show that the court is sensitive to these issues – and, by extension, to the claims of the poor and dispossessed to a transformed society.
In Blue Moonlight Properties, the court held that the state, and in particular municipalities, must provide shelter to those evicted from private land.
And private landowners must wait until the state can reasonably be expected to do so before they evict people. In this decision, the court establishes an implicit hierarchy of interests. The poor sit at the top of this hierarchy. They cannot be dispossessed unless and until the state acts on its obligations to provide shelter.
And a private landowner’s interests in developing property are temporarily frustrated until this has been achieved. This does not mean that private property is ignored or subverted, as some have claimed. It means that the law responds sensibly to needs of the poor. It means that economic development cannot only benefit the already rich and powerful.
Nor can it ride roughshod over the often meagre claims of the poor and desperate.
Blue Moonlight will not end property development, much less urban regeneration in Joburg.
The obligations it imposes and the legal relationships it establishes will simply be factored into the calculations of the state and the private sector in their ordinary course of business. Nor will it impoverish municipalities, as the court made clear that national and provincial government must bear the cost of providing shelter when a municipality cannot.
These principles were affirmed in Mooiplaats and Skurweplaas. In these cases, hundreds of desperately poor people were sought to be evicted as “land invaders”.
But the court saw that the “invasion” was, in fact, a desperate act by people who had nowhere else to go.
They occupied private land that was put to no productive use by its owner because they had been evicted by another private property developer.
Here, again, the state will provide, and the private owner will get his land back.
But not at the expense of the intense suffering that an eviction without alternatives would cause.
In Pheko, the court reaffirmed the need for the state to act lawfully when it does provide services.
In that matter, several thousand residents of the Bapsfontein informal settlement had been violently evicted and relocated by the Ekurhuleni Metropolitan Municipality to a transit camp 35km from their homes, jobs, schools and existing community networks. All of this was done without a court order in terms of the Disaster Management Act. The municipality argued that it had acted in an emergency to avert disaster.
This was because the land was dolomitic. In any event, the municipality claimed, the transit camp gave the Bapsfontein residents access to a range of basic services they did not have before.
But the Bapsfontein land had been dolomitic for more than 20 years. There was no indication that it was getting precipitately worse. In truth, there was neither disaster nor emergency.
Better serviced though the transit camp may have been, it was a vast distance from the community the Bapsfontein residents had known.
All of this had been “achieved” with no real consultation, no lawful authority and in affront to the dignity of the Bapsfontein residents.
If SA’s political leaders are looking for a reason that even communities that have been provided with some services still rise up in protest, they need look no further than Bapsfontein.
The Concourt saw the municipality’s stance for what it was: a cynical manipulation of the law to achieve a violent, repressive end.
The court declared the municipality’s action unlawful and directed it to provide land and housing to the Bapsfontein residents in the immediate vicinity of their former homes.
The Pheko decision is a testament to the court’s resolve in the face of the naked exercise of power without recourse to law.
The Concourt has played, and will continue to play, an important role in transforming our society. Like any institution, it will make mistakes, it will underachieve and it will frustrate.
Despite its spectacular record on the right to housing, we feel that it could have done more to give effect to other socio-economic rights in the constitution – like water and health care – when the opportunities presented themselves. But it has never been, nor does it show indications of becoming, an “anti-transformative” court.
Its role must be debated, analysed and debated again. But the court has, this month, shown itself to be a formidable tool in the hands of those seeking a more just and equal society.
In a time of frustrated expectations, we should take no small degree of pride in it.
Business Day: Court just wants city to care for the poor a bit better
http://www.businessday.co.za/articles/Content.aspx?id=139916
KATE TISSINGTON and JACKIE DUGARD: Court just wants city to care for the poor a bit better
THE government provides some subsidised housing for the poor and should be commended for this.
THE government provides some subsidised housing for the poor and should be commended for this. However, the housing subsidy scheme and roll-out of subsidised “RDP” houses is not a solution for everyone. Some — single men without dependants; people without identity documents, child-headed households, noncitizens and permanent residents — do not qualify.
For those who qualify, the supply is inadequate and the process is lengthy and dogged with corruption. Even then, all the “lucky” recipients get is a house on the urban periphery, far from where they need to be to make a living. In the interim, they seek shelter in informal settlements, backyard shacks or dilapidated buildings. This in itself is the consequence of unstoppable migration from impoverished areas to cities such as Johannesburg.
On March 30, in City of Johannesburg v Blue Moonlight Properties, the Supreme Court of Appeal ruled that about 100 people living in derelict buildings in Johannesburg could not be evicted without the provision of temporary shelter from the city. It directed that the city adjust its housing programme to cater for the needs of poor people who are evicted by private property owners, and who have nowhere else to go because they cannot afford private rental housing.
The case concerns the inner city of Johannesburg, which is undergoing a process of “regeneration”. Those people who have accessed substandard accommodation in so-called “bad buildings” are being rapidly evicted with nothing available to them afterwards.
The city has bemoaned the judgment. It complains it cannot provide accommodation to everyone who is evicted throughout the city. This, however, is not what the judgment says. According to the court, the city is required only to stop evictions resulting in desperately poor people becoming homeless. A tenant who boycotts his rent will still be evicted without consequence for the municipality.
Municipalities worldwide have taken responsibility for devising and implementing public housing programmes. It is the City of Johannesburg’s failure to accept this responsibility that is at the core of its problem. The only way to solve it is to adopt a housing programme that will cater comprehensively for the poor. That is all the judgment requires.
The city says it doesn’t have the money. But it is important to note that the city actively, albeit indirectly, subsidises the eviction of desperately poor people. Many derelict properties in the inner city are bought cheaply at auction by shell companies backed by lone speculators. They know full well that there are people living in the buildings they buy, but are not interested. They simply want to refurbish the buildings for middle-class or corporate tenants — and make a quick buck.
This is completely in line with the city’s model of inner-city regeneration. The city even writes off service debts and gives tax breaks to allow them to do it. Forget the poor — it is property speculators who benefit most from the city’s largesse. With ratepayers’ money. All the appeal court has done is to suggest that the city use some of that money to accommodate the homeless, rather than fund a bargain basement giveaway to the rich.
It is hard to fault the appeal court’s reasoning. It cannot be fair for the poorest and most vulnerable members of society to be made homeless simply to serve the economic convenience of a privileged few. Nor is it in anybody’s long-term interests. The constitution’s entrenchment of socioeconomic rights — including the right to housing — embodies our common interest in ensuring that everyone has the basic elements of a decent existence. That is precisely why the courts are entitled to require the city to provide housing to people who need it.
As much as the city may want to ignore this reality, we live in the most unequal society in the world with staggering rates of poverty and 40% unemployment. The appeal court’s judgment — and the law it applied — is an attempt to ensure that poor people are not deprived of their existing access to shelter while they wait for their formal housing needs to be addressed. In doing so, it strikes a balance between the need for property rights to be respected and protected and the need to ensure social justice.
It is time that the city acknowledged its responsibilities towards the poor and acted on them. It would find the courts much less hostile if it did.
Civic Action and Legal Mobilisation: The Phiri Water Meters Case
J Dugard (June 2010) “Civic action and the legal mobilisation: The Phiri water meters case” in J Handmaker and R Berkhout (eds) Mobilising Social Justice in South Africa: Perspectives from Researchers and Practitioners pp 71-99 (The Hague: ISS and Hivos).
This chapter is online here.