Category Archives: Kate Tissington

Letter from the Socio-Economic Rights Institute on the Unlawful Banning of an AbM Protest by the Sydenham SAPS

Mr Sibusiso Sithole
City Manager, eThekwini Municipality
Per fax: 031 311 2170
Per email: dovec@durban.gov.za

Colonel de Villiers
Station Commander, Sydenham SAPS
Per email: SYDENHAM-SAPS@saps.gov.za

RE: PROHIBITION OF PALMIET ABAHLALI BASEMJONDOLO BRANCH MARCH

Dear Sir and Madam

The Socio-Economic Rights Institute of South Africa (SERI) is a non-profit organisation providing socio-economic rights assistance to individuals, communities and social movements in South Africa. Our thematic areas are: housing and evictions; access to basic services; and political space. The SERI Law Clinic acts as lawyers for Abahlali baseMjondolo (Abahlali) in a number of cases.

SERI has been informed that a peaceful march planned by the Palmiet Road shack
settlement Abahlali branch in Clare Estate, due to take place on Friday 7 December, has been prohibited. The march is being held to protest the erosion of local governance and democracy and lack of basic services in the ward. On 19 November 2012, Abahlali gave written notice of their intention to hold the march, which is ample notice in terms of the law.

However, it appears to SERI that a number of concerning issues have arisen which are not in line with the spirit or letter of the Regulation of Gatherings Act 205 of 1993.

  • First, after receiving an acknowledgment of receipt their letter of notice, Abahlali was subsequently informed that it had been lost. Further, attempts to confirm receipt of the notice were futile, as none of the contact numbers provided for the Metro Police worked.
  • Second, it appears Abahlali was informed that they cannot be given “permission” to march unless the person who the memorandum is addressed to agrees to accept it.This is not the case and all the Regulation of Gatherings Act states is that “if a petition or any other document is to be handed over to any person, the place where and the person to whom it is to be handed” must be provided on the notice.
  • Third, at a section 4 meeting chaired by Captain Govender from the Metro Police on 5 December 2012, it appears that an officer from the Sydenham SAPS stated that the march could not go ahead as Abahlali had not received a permit from the Reservoir Hills shopping mall (which the march passes by) or the Aquarius building (where the march is due to end, at the office of the ward councillor). The march is not taking place on either of these private properties, and permission is thus not required by the owners.
  • Further, in terms of the Regulation of Gatherings if a convener has not, within 24 hours after giving notice, been called to a section 4 meeting, the gathering may take place in accordance with the contents of the notice. The late notice at which the section 4 meeting was called is extremely problematic, so too are the grounds on which the protest has been prohibited.

    In terms of the Regulation of Gatherings Act, gatherings should only be prohibited in exceptional circumstances where credible information on oath is brought to the attention of a responsible officer justifying the prohibition. This can only occur if he/she can prove that the following will take place and that it will not be possible for the police to prevent them: the gathering will result in serious disruption of traffic; the gathering will result in injury to
    participants gathering or other persons; and the gathering will result in extensive damage to property.

    There is no absolutely no evidence that any of these three scenarios is a concern (Abahlali marches have always been peaceful in the past). In the circumstances, Abahlali is fully entitled to proceed with the proposed march and intends to proceed notwithstanding the purported ‘prohibition’. Any attempts to stop the march from going ahead will constitute an abuse of power and will be contrary to the Regulation of Gatherings Act and the Constitution of the Republic of South Africa.

    Yours sincerely,
    Kate Tissington
    Senior Research and Advocacy Officer
    Socio-Economic Rights Institute of South Africa (SERI)
    Email: kate@seri-sa.org

    cc.
    Dr Zweli Mkhize,
    Office of the Premier, Province of KwaZulu-Natal
    Per fax: 033 342 7368

    Captain Govender
    eThekwini Metro Police Special Events
    Per fax: 031 304 4353

  • 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.

    A Resource Guide to Housing in South Africa 1994-2010

    Click here to download this guide in pdf.

    A Resource Guide to Housing in South Africa 1994-2010

    by Kate Tissington, Socio-Economic Rights Institute

    Chapter 1
    Introduction

    Chapter 1 provides a framing overview of the housing landscape in South Africa, examining some of the systemic problems facing housing policy implementation and briefly discussing the nature of adequate housing.

    Chapter 2
    Housing legislative and policy framework in South Africa

    Chapter 2 outlines the housing legislative and policy framework in South Africa, examining the Constitution, the Housing Act, the PIE Act, the Rental Housing Act, the National Norms and Standards, the Social Housing Act, the White Paper on Housing and Breaking New Ground in more detail. The National Housing Code, and the national housing programmes categorised therein, is outlined. Information pertaining to the National Housing Subsidy Scheme (NHSS) is provided, including the generic qualifying criteria for beneficiaries wishing to access state housing subsidies. The chapter further examines some of the legislated housing institutions in South Africa including the Housing Development Agency (HDA), the National Home Builders Registration Council (NHBRC), the Social Housing Foundation (SHF) and the Social Housing Regulatory Authority (SHRA).

    Chapter 3
    What is adequate housing?

    Chapter 3 examines the concept of “adequate housing”, as enshrined in section 26(1) of the Constitution. The chapter briefly outlines what is contained in the International Covenant on Economic, Social and Cultural Rights (ICESCR) and what the Constitutional Court has said regarding the “progressive realisation” and resource constraint clauses contained in section 26(2). This chapter should be read together with chapter 5 of this guide, which outlines constitutional jurisprudence on the right to housing in South Africa.

    Chapter 4
    Housing delivery and backlogs

    Chapter 4 delves into the terrain of statistics – and data reliability – around housing delivery and backlogs in South Africa since 1994. It provides both qualitative and quantitative information on housing delivery, as
    well as on housing demand and backlogs particularly in relation to informal settlements, low-income rental accommodation and so-called affordable housing. Figures are provided for the number of houses completed or in the process of completion (by province); housing grant allocations and actual delivery since 2004; estimated housing delivery from 2008 to 2014 (by province); need for adequate shelter estimates (housing backlog) from 1994 to 2009; distribution of households by main dwelling (by province); and number and percentage of households living in informal dwellings (by major city).

    Chapter 5
    Constitutional jurisprudence on the right to housing

    Chapter 5 provides an overview of the constitutional jurisprudence on the right to housing as developed by the Constitutional Court over the past decade. The chapter begins by describing the meaning of “respect, protect, promote and fulfil” – obligations on the state in respect of the rights enshrined in the Constitution. The Grootboom1 case – the standard-bearing case on socio-economic rights which resulted in detailed directions to the state on requirements for an effective housing policy framework – is described in detail. The chapter further outlines some of the implementation challenges surrounding national housing policy as well as what the Court has said in relation to other housing-related cases including Olivia Road, Joe Slovo, Abahlali and Nokotyana. Finally, a summary of key findings from the Constitutional Court cases is provided.

    Chapter 6
    Housing policy development: 1994 – 2009

    Chapter 6 provides an overview of developments in housing policy since 1994, including a summary of the deliberations at the National Housing Forum held between 1992 and 1994. The chapter examines the overarching policy framework contained in the 1994 White Paper on Housing, and the problems with RDP houses built after 1994. It also unpacks the 2004 Breaking New Ground policy amendment specifically in relation to its focus on the role of local government and the process of accreditation of municipalities, informal settlement upgrading,as well as urban renewal/inner city regeneration. Other specific policies which are examined include the People’s Housing Process (PHP) and the Inclusionary Housing Policy (IHP). The chapter concludes with an outline of the National Housing Code published in 2000 and recently updated in 2009.

    Chapter 7
    National housing programmes: policy vs. implementation

    Chapter 7 summarises each of the national housing programmes and subsidies included in the revised National Housing Code (except for the rural programmes). Each sub-chapter outlines which groups are targeted by the specific programme, what funding is available and what institutional arrangements are in place or envisaged. A number of the programmes are examined in greater detail, referring to challenges in implementation and recent developments. These include the accreditation of municipalities, the rectification of post-1994 RDP houses, the Integrated Residential Development Programme (IRDP), the Upgrading of Informal Settlements Programme (UISP), the Emergency Housing Programme, the Social Housing Programme (SHP) and the Community Residential Units (CRU) Programme.

    Chapter 8
    Bibliography

    Chapter 8 of this guide is a detailed reference section, providing full citations and online links (where available) to all books, journal articles, research reports, publications, media articles, government documents, housing policy/legislation and Constitutional Court judgments discussed in the guide.

    Business Day: Making up lost ground in SA’s informal settlements

    The report from this conference is online here.

    http://www.businessday.co.za/articles/Content.aspx?id=126777

    Making up lost ground in SA’s informal settlements
    Published: 2010/11/15 07:32:29 AM

    by KATE TISSINGTON and LAUREN ROYSTON

    IN THE midst of current debates about access to information and media freedom there are important political developments happening around another vital part of South African society. And no, it’s not the National Health Insurance or public sector wages (although these are critically important).

    We’re talking about the upgrading of informal settlements.

    According to Statistics SA, as of mid- 2009, 13,4% of households in SA lived in informal dwellings. There are more than 2700 informal settlements consisting of about 1,2-million households.

    In spite of a progressive upgrading of informal settlements programme being in the National Housing Code since 2004, informal settlements have been characterised as sites of illegality, and shack dwellers treated in a heavy-handed and undignified manner. In recent months Hangberg residents, and members of the shack-dweller movements, Abahlali baseMjondolo and the Landless People’s Movement, have experienced this treatment in Cape Town, Durban and Johannesburg.

    A far cry from the “eradication” discourse that has characterised informal settlement approaches in the past, the upgrading of informal settlements programme highlights the importance of assisting people with tenure security and access to services on site, and states that relocation is a last resort — to be undertaken only in exceptional circumstances on a voluntary, co-operative basis.

    It’s about land and services first, houses later. This is the message the National Upgrading Support Programme — a partnership between the Department of Human Settlements and the Cities Alliance, set up to support the implementation of the informal settlement upgrading programme — is seeking to reinforce through, among others, the creation of a “community of practice”, a forum of public-sector practitioners in which lessons can be learnt and capacity-building can take place.

    It is at the municipal level that pressures are most acutely felt, and where the planning for development takes place, including identifying informal settlements for upgrade and setting targets for delivery using municipal planning instruments — integrated development plans and their associated “housing chapters”, or housing-sector plans.

    The accreditation of municipalities with the housing function is under consideration for the metropolitan municipalities and some of the secondary cities. Depending on the accreditation level, municipal autonomy over the application of the provincial housing subsidy is set to increase. This should give local planning in the housing sector more teeth and reinforce the municipal priorities.

    As a result, however, communities living in informal settlements need to be “on the list” or “in the integrated development plan ” if they are to have any hope of upgrade in the foreseeable future (or at least the five-year term of office, which is the planning horizon of municipal plans). If they are not, then there are no other options, as they are excluded from the “normal” residential property market. Unless people register on the housing demand database (a new name for a housing waiting list) and wait patiently for houses to be built or their name to come up, they are identified as queue-jumpers at best, and very often as illegal. Clear, open and well- understood rules for inclusion on these lists are essential, as need far exceeds what the government is able to supply.

    Reality, as always, is complex. Implementation of the upgrading of informal settlements programme has been slow or poorly conceived, and plagued by various obstacles, not least the lack of capacity at the local level as well as political will to do incremental settlement upgrading for poor people on what is often very well-located land. For some officials and politicians, this smacks too much of historical “site and service” schemes and does not have the immediate political clout that cutting ribbons on houses does.

    Further, identifying informal settlements for upgrade is often the subject of much less obvious processes than the rational allocation of resources and participative planning methodologies envisaged in policy. This is a particular risk in a local government election year, when delivery promises are routinely made, sometimes to specific communities.

    The question of access and inclusion — of being on the list, or in the integrated development plan — is not new but it was recently reinforced at a workshop in Johannesburg organised by LANDfirst, a network of civil society organisations advocating a pro-poor approach to land access that emphasises incremental settlement, together with the Socio-Economic Rights Institute of SA. This event brought together community-based organisations, social movements, nongovernmental organisations, think-tanks, lawyers and academics working on informal settlement upgrading and managed land settlement, as well as the Department of Human Settlements. The issue of informal settlement identification — of being on the list — was given a new emphasis because of a shift in our development context.

    Earlier in the year we heard President Jacob Zuma and ministers Tokyo Sexwale and Edna Molewa talk about the government’s plan to provide tenure and services to 400000 households in well-located informal settlements by 2014. This is central to Zuma’s signature outcomes-based approach to service delivery.

    Recently, the delivery agreement for outcome eight — sustainable human settlements and improved quality of household life — signed between Zuma and Sexwale has entrenched this objective. The next step is for Sexwale to sign agreements with provincial MECs, and for the identification of informal settlements for upgrading to be finalised.

    As promising as the renewed emphasis on on-site upgrading appears to be, for those at the workshop a priority question was about how the process for the identification of informal settlements for upgrading is taking place. Transparency, flexibility and the involvement of community organisations, social movements and other civil society groups should be critical to this process, as with the upgrading process in general. The workshop identified the need to create a national platform for discussion on informal settlement and land-access issues, as well as the need to bridge the gap between community needs and technocratic “delivery”. A call for dialogue between all parties and enhanced collaboration between different role- players on the ground, was articulated.

    We need to identify and learn from a range of “good practice” happening throughout the country, in order to replicate these at scale. The political space being created by current developments is welcomed by many who have consistently campaigned in various ways for the implementation of the upgrading programme over the years.

    The creation of equitable towns and cities that provide dignity and quality of life for all inhabitants is not a pipe dream.

    However, to become a reality, it requires the collective buy-in and energy of local government officials, communities, social movements, planners, engineers and nongovernmental organisations.

    The right kind of policy instrument is in place. The political space appears to have opened. A programme of support has been established. The time is now, and we cannot afford to make the same mistakes again.

    – Tissington is research and advocacy officer at the Socio-Economic Rights Institute of SA. Royston is tenure theme co-ordinator at Urban LandMark.