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National Department of Housing Programme: Upgrading of Informal Settlements October 2004

NATIONAL DEPARTMENT OF HOUSING

NATIONAL HOUSING PROGRAMME: UPGRADING OF INFORMAL SETTLEMENTS

October 2004
(Final version)

PDF version here.

PART 3: NATIONAL HOUSING PROGRAMMES:
UPGRADING OF INFORMAL SETTLEMENTS

CHAPTER 13:

PART ONE: POLICY 2
13.1 OVERVIEW 2
13.2 POLICY INTENT 2
13.2.1 Objectives of the Programme 2
13.2.2 Principles of the Programme 2
13.3 APPLICATION OF THE PROGRAMME 2
13.3.1 Definition of Informal Settlements 2
13.3.2 Aplication of the programme 2
13.3.3 Eligibility 2
13.3.4 The phased development approach 11
13.3.4.1 Phase 1: Application 12
13.3.4.2 Phase 2: Project Initiation 12
13.3.4.3 Phase 3: Project Implementation 14
13.3.4.4 Variations 16
13.3.4.5 Phase 4: Housing Consolidation 16
13.4 RELOCATIONS 18
13.5 MUNICIPAL COUNTER FUNDING 19
13.5.1 Capital counter funding 19
13.5.2 Maintenance and operational funding 19
13.6 FUNDING ARRANGEMENTS 20
13.6.1 Dedicated funding 20
13.6.2 The release of allocated and approved project funding 21
13.7 INSTITUTIONAL ARRANGEMENTS 22
13.7.1 Responsibilities of municipalities 22
13.7.2 Responsibilities of provinces 23
13.7.3 Responsibility of the National Department of Housing 24
13.8 MEMORANDUM OF UNDERSTANDING 24
13.8.1 Undertaking required from municipality 25
13.9 SELECTION OF PROJECTS 25
13.10 PERFORMANCE MEASUREMENT 26

CHAPTER 13: UPGRADING OF INFORMAL SETTLEMENTS

This Chapter deals with the rules for the in situ upgrading of informal settlements. These rules relate to the provision of grants to a municipality to enable it to upgrade informal settlements in its jurisdiction in a structured way and on the basis of a phased development approach. The grant funding so provided will enable the municipality to fast track the provision of security of tenure, the provision of basic municipal engineering services, the provision of social amenities and the empowerment of informal settlement inhabitants to take charge of their own housing development.

Part One: Policy
13.1 Overview
The Government’s primary housing objective is to undertake housing development, which section 1 of the Housing Act, No. 107 of 1997 (“the Housing Act”) defines as being “the establishment and maintenance of habitable, stable and sustainable public and private residential environments to ensure viable households and communities in areas allowing convenient access to economic opportunities, and to health, educational and social amenities in which all citizens and permanent residents of the Republic will, on a progressive basis, have access to:

permanent residential structures with secure tenure, ensuring internal and external privacy, and providing adequate protection against the elements, and
potable water, adequate sanitary facilities and domestic energy supply”.

The existing national housing programmes have been based on this objective and the principles embodied therein.

Despite the provision of more than 1.6 million houses in the decade since 1994, the backlog has continued to grow. Because of fiscal constraints and delivery capacity, the Government has accepted that it can only accomplish the delivery of housing to all in need on a progressive basis. This takes place within a structured programme based on priorities, fiscal constraints and achievable time frames.

In his 2004 State of the Nation Address, the President committed government to the task of building a People’s Contract for the eradication of poverty and underdevelopment and the improvement of the quality of life of people, taking care to enhance the process of social cohesion and recognizing the critical importance of local government. The President has indicated that a comprehensive programme dealing with human settlement and social infrastructure should be prepared.

Delivery of housing through the Housing Subsidy Scheme has on average kept pace with new household formation but did not made inroads into existing backlogs. In addition the latest statistics released by Statistics South Africa indicated above expected growth in household formation.

While the percentage of households living in informal dwellings since 1994, has remained constant at about 16% of the total population (SA Statistics: 2001 Census) the number of households without formal shelter has increased by 326 976 between 1996 and 2001 (SA Statistics: 2001 Census). Most of the informal settlements are situated in the biggest cities in South Africa and the total estimated number of households of who lived in informal settlements in 2001 amounted to 1,376 705 (SA Statistics: 2001 Census). The bulk of this backlog is located at the lowest end of the income spectrum.

The United Nations Millennium Development Goals seeks to achieve a significant improvement in the lives of 100 million slum dwellers internationally by 2020 and the Millennium Development Goals provide a useful basis for South African target setting. It is projected that informal settlements will continue to grow at 4% per annum in line with existing urbanisation trends but that this will slow to 3% after 2010. The total number of households in informal settlements which would need to be upgraded over a period of 15 years is estimated to be in the region of 2.9 million. This sets a target for the upgrading of approximately 193 000 households per annum over a period of 15 years.

As the current housing subsidy programme were not specifically designed and geared for informal settlement upgrading, this Programme is instituted in terms of section 3(4) (g) of the Housing Act, 1997, and will be referred to as the National Housing Programme: In Situ Upgrading of Informal Settlements.

Assistance takes the form of grants to municipalities to enable them to respond rapidly to informal settlement upgrading needs by means of the provision of land, municipal services infrastructure and social amenities. It includes the possible relocation and resettlement of people on a voluntary and co-operative basis in appropriate cases as a result if upgrading projects.

This Chapter describes and provides guidelines and rules about the steps to be taken when in situ upgrading projects are to be undertaken.
13.2 Policy Intent
13.2.1 Objectives of the Programme
The main objective of this Programme is to facilitate the structured upgrading of informal settlements.

The challenge of informal settlement upgrading must be approached from a pragmatic perspective in the face of changing realities and many uncertainties. Informal settlements should also not be viewed as merely a “housing problem”, requiring a “housing solution” but rather as a manifestation of structural social change, the resolution of which requires multi-sectoral partnership, long-term commitment and political endurance. At the outset therefore, a paradigm shift is necessary to refocus existing policy responses towards informal settlements from one of conflict or neglect, to one of integration and co-operation.

This Programme promotes the upgrading of informal settlements to achieve the following complex and interrelated policy objectives:

• Tenure Security– The Programme aims to enhance the concept of citizenship, incorporating both rights and obligations, by recognising and formalising the tenure rights of residents within informal settlements wherever feasible. This process seeks to vest access and usage of physical land assets in the hands of the urban poor, reducing their vulnerability and enhancing their economic citizenship and capability. Tenure security is also intended to normalise the relationship between the state and the residents of informal settlements. This situation may be complicated by a variety of factors including the presence of illegal immigrants.

• Health and safety: The Programme promotes the development of healthy and secure living environments by facilitating the provision of scaleable, affordable and sustainable municipal engineering infrastructure to the residents of settlements. In so doing, the programme not only restores dignity to the urban poor, but also builds human capital by enhancing the productivity of labour and reducing vulnerability to disease. The provision of municipal infrastructure has the benefit of reducing the negative impacts of informal settlements on the natural environment.

• Empowerment: The Programme addresses social and economic exclusion by focusing on community empowerment and the promotion of social and economic integration as follows:

o Social development – The Programme directly facilitates the provision of social services through the development of primary, municipal-level social amenities and community facilities such as sport fields, community halls etc. to serve the needs of the residents of informal settlements. More broadly, the Programme establishes the platform for the future delivery of secondary and tertiary social services such as schools, hospitals and police stations, over a period of time.

o Economic development – The Programme directly facilitates the development of municipal-level economic infrastructure such as transportation hubs, workspaces and markets. At a household level, the Programme supports the development of human capital as the home is often the most important productive asset of the poor. The Programme also supports job creation insofar as it works with the grain of the Expanded Public Works Programme by promoting community based labour-intensive construction methodologies. Urban efficiency will also be enhanced and the Urban Renewal Programme supported.

o Social capital – The Programme directly encourages the development of social capital by supporting the active participation of communities in the design, implementation and evaluation of projects. This is intended to reinforce a co-operative relationship between local government and communities to directly support the upgrading process and to enhance the long-term sustainability of interventions. The process of engagement is also intended to build mutual trust, reciprocity and enhance social networks, ultimately reducing household vulnerability, social crime and enhancing security. Gender-based organisations are accordingly to be supported and encouraged as a key component of the Programme.

These policy objectives are to be addressed by using an appropriate development framework comprising:

An appropriate institutional, decision-making and management framework for the Programme;
Land access processes appropriate to the situation with due regard to municipal integrated development planning, existing and any new applicable legislation;
Streamlined land development planning and design phases. This may include the investigation into and enactment of new or the amendment of existing legislation to specifically provide for land development on an accelerated basis;
The provisions of basic municipal engineering services and social amenities; and
Providing appropriate and clear rules and procedures applicable to this Programme, regarding the allocation of funding, the application of national norms and standards and the need to deviate where necessary, also the linkages to other programmes.
13.2.2 Principles of the Programme

The following principles are applicable to the Programme:

Grants to municipalities: Grants under the programme will be made available to municipalities for the undertaking of projects based on the upgrading of whole settlements on a community basis as opposed to the normal approval of individual subsidies in respect of specific qualifying beneficiaries;
Application of the programme: 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 de-densification or the relocation of households, the provisions of this programme are equally applicable to both the upgraded settlement and the relocation site;
A holistic approach: The programme entails an area and/or community focus, fostering a holistic development approach with minimum disruption or distortion of existing fragile community networks and support structures. This will ensure that, to the greatest extent possible, communities are upgraded in a holistic, integrated and locally-appropriate manner. The flexibility of the Programme is intended to encourage local solutions through a process of engagement between local authorities and residents living within informal settlements, but a framework of minimum standards is nevertheless provided to ensure the development of viable and sustainable human settlements. Where communities are to be relocated it must be done with the approval of the community and the new location must be part of an approved Integrated Development Plan (IDP) of the municipality in question;
Qualification for benefits: In order to promote successful implementation on a community basis, the programme provides benefits for all the inhabitants of an informal settlement, in a variety of ways including persons currently excluded from any of the benefits of the Housing Subsidy Scheme;
A phased development approach: The programme comprises a four phased development approach utilising two mainstream funding regimes namely the Human Settlement Redevelopment Programme Fund and the Housing Subsidy Scheme Funds;
Public to public partnership: In accordance with the provisions of the Housing Act, 1997 (Act No. 107 of 1997), the Programme recognises the substantial role of local government in the development of human settlements, including the provision of municipal infrastructure, social and community amenities and economic facilities. Local government is accordingly identified as the key implementing agency under the Programme. It is however acknowledged that local government may lack the capacity to implement this Programme. This problem is to be addressed through the establishment of focused capacity building programmes and support to municipalities. The Programme must however be located within a broader framework of public-public partnership in which various departments are expected to pursue an effective alignment of policies, legislation, capacity building and institutional arrangements in order to promote sustainable human settlements. This Programme is specifically premised upon the enactment of legislation which is currently being prepared by the Department of Provincial and Local Government vis-à-vis the establishment of co-operative governance and alignment mechanisms. As an interim mechanism however, the concept of inter-governmental Memoranda of Agreement is to be pursued where possible;
Suitable land: The programme will only provide funding in respect on informal settlements situated on land suitable for permanent residential development and within an approved Integrated Development Plan of the municipality in question. The suitability of the land for permanent residential development may be achieved through the rehabilitation of the land on the basis of sound financial and socio-economic viability indicators and for which the programme will provide funding;
Norms and standards: The National Norms and Standards in respect of Permanent Residential Structures contained in Annexure A to Chapter 3 of Part 2 of the National Housing Code shall not apply to this Programme;
Stand sizes: The informal layout of informal settlements generally precludes the determination of uniform stand sizes. The imposition of rigid requirements not only leads to considerable project complexity but inevitably leads to the displacement of households. It is accordingly not desirable to determine uniform or minimum stand sizes. Rather, actual stand sizes should emerge through a process of dialogue between local authorities and residents during which the following factors should be taken into consideration:

o The ultimate density of the settlement must cater adequately for the operation and maintenance of municipal infrastructure including waste management and especially the prevention and control of fires in settlements

o The ultimate density of the settlement must permit adequate access by both pedestrians and emergency and service vehicles but need not provide vehicular access to each individual property.

Service standards: The Programme provides funding for the installation of interim and permanent municipal engineering services. Where interim services are to be provided it must always be undertaken on the basis that such interim services constitute the first phase of the provision of permanent services. The nature and level of permanent engineering infrastructure must be the subject of engagement between the local authority and residents. Community needs must be balanced with community preferences, affordability indicators and sound engineering practice. However the National Norms and Standards in respect of Permanent Residential Structures contained in the National Housing Code must be adhered to in as far as municipal engineering services are concerned. In the event of a dispute, a Council resolution must be obtained to resolve this issue. The following factors should be taken into consideration during this process:

o An appropriate and sustainable trade-off must be reached between up-front capital costs, long-term maintenance and operating costs, settlement affordability levels, the need for environmental sustainability, social acceptability, human dignity and safety;

o Community involvement in the provision and maintenance of interim and permanent engineering infrastructure and related services (eg. Refuse removal etc.) must be clarified;

o The installation and maintenance of engineering services must be undertaken in accordance with the principles of the Expanded Public Works Programme to maximise job creation.

Social and economic amenities: The Programme envisages the extension of social services into informal settlements and accordingly makes funding available for the construction of limited social and economic infrastructure. The determination of the type of infrastructure to be developed must be undertaken through a process of engagement between the local authority and residents. The following factors should be taken into consideration during this process:
o An assessment of community needs must be undertaken prior to the determination of community preferences;

o Special care must be taken to ensure that the needs of vulnerable groups are taken into consideration during the determination process;

o Amenities to be financed typically comprise sport fields, community centres etc.

o Funding for maintenance and operation must be provided from non-housing sources by the municipality.

Tenure: The Programme promotes security of tenure as the foundation for future individual and public investment. The broad goal of secure tenure may be achieved through a variety of tenure arrangements and these are to be defined through a process of engagement between local authorities and residents. The following factors should be taken into consideration during this process:
o The selected tenure arrangement must protect residents against arbitrary eviction.
o Where substantial public funding is invested in the acquisition and rehabilitation of well-located land, public interest factors may support tenure forms which encourage the retention of land and housing assets for long-term occupation by lower-income groups.
o The costs of administering different tenure arrangements and the capacity requirements of such administration must be taken into consideration.
o Residents must be involved in the development of appropriate dispute resolution mechanisms.

The contribution requirement: As beneficiaries of the programme will only receive access to land, basic municipal engineering services and social amenities and services as the first phase, the requirement for an own contributions will not apply to the programme. To qualify for further benefits of the subsequent phase four, such as registered ownership and a consolidation subsidy for house construction, the requirements of the own contributions regime will have to be satisfied.

Community Partnership: The Programme is premised upon substantial and active community participation and funding is accordingly made available to underpin social processes. The following parameters are applicable:

o Community participation is to be undertaken through the vehicle of Ward Committees or a similar structure where Ward Committees don’t exist, in line with the provisions of the Municipal Systems Act;
o Ongoing effort must be made to promote and ensure the inclusion of all key stakeholders within the participatory process;
o The municipality must demonstrate that effective interactive community participation has taken place in the planning, implementation and evaluation of the project;
o Special steps may be required to ensure the ongoing involvement of vulnerable groups.

NHBRC project enrolment: To ensure that the future enrolment of houses with the National Home Builders Registration Council (NHBRC), to be constructed as part of phase 2 of the development approach, is facilitated and not compromised in any way, municipalities must ensure that project areas are enrolled with the NHBRC at the earliest possible stage of planning. Such enrolment will be undertaken on the basis of the agreement reached with the NHBRC on a two stage enrolment process whereby the project area is evaluated and approved for residential development by the NHBRC at an agreed percentage of the enrolment fee and the house enrolment will realise as prescribed by the NHBRC at consolidation subsidy phases.

Discounting of grants: A grant approved under this Programme in respect of planning and municipal engineering services installation and project management cost of such, if any, will be discounted against subsequent consolidation housing subsidies, where individual ownership and individual consolidation subsidies will be allocated to qualifying beneficiaries, only to the extent to which it might have contributed materially to a future permanent housing solution for the beneficiary. This means that consolidation subsidies to be awarded in phase 4 of the development, will be calculated on the basis of the residual of the subsidy amount for which the beneficiary qualifies after the deduction of the services cost that contributed towards the permanent development of the township. The consolidation subsidy may never be less that the actual consolidation subsidy amount available under the Consolidation Housing Subsidy Programme as amended on an annual basis. The cost of land and the cost of social services and community participation facilitation etc. will not be discounted against the consolidation subsidy. Where rental housing opportunities are to be developed the cost of the infrastructure that contributed to the permanent development of the township will be taken into account in determining the actual total cost per unit;
Project Management: Municipalities should prepare a capacity building strategy to support the implementation of the upgrading project. This strategy should identify the capacity constraints of the local authority vis-à-vis the upgrading of informal settlements and should identify how these capacity constraints are to be addressed. Municipalities may facilitate project management through the establishment of internal, dedicated teams, through the establishment of units, through the in-sourcing of project-management capacity or through a combination of these strategies. When project management capacity is in-sourced, transfer of skills to the officials of the municipality must take place.
Provincial government roles: The provincial government will be responsible for programme implementation and coordination. Where a municipality is not able to undertake a project for a variety of reasons, the province must assist the municipality with all the aspects of the project process and as a last resort could decide to undertake this task on behalf of such a municipality but in collaboration and through the decision-making structures of the municipality. In this process the provincial government must ensure that skills transfer to the municipality is realised to ensure ongoing administration and development of the town by the municipality.
Procurement: Procurement procedures must be fair, equitable and transparent; for the acquisition of housing goods and services; and the guidelines of the Preferential Procurement Policy Framework Act, 2000 (Act No. 5 of 2000), must be followed.
Demolition of shacks: The municipality will be required to table a comprehensive action plan for the management of projects specifically addressing measures to prevent land re-invasion and the processes of shack demolition when persons access phase four benefits and receive permanent houses.
13.3 Application of the Programme
13.3.1 Definition of informal settlements

This Programme will apply to the upgrading and or development of informal settlements that typically manifest the following characteristics and where the application of the normal Housing Subsidy Programme is problematic:

• Illegality and informality – The residents of informal settlements live in a permanent state of legal-social insecurity as informal settlements lack legal recognition due to the unlawful occupation and/or unauthorized use of land and/or the illegal construction of houses upon land. Primarily as a result of their illegal status, most informal settlements are typified by the absence of formal planning and incremental, unplanned growth.

• Location and environmental factors – Informal settlements may be found in various locations. In some instances, the upgrading of settlements may be a relatively simple matter whilst other settlements may not be upgradeable at all due to environmental hazards including dolomite, sinkholes and floodplains. In other cases, upgrading may be possible if extensive land rehabilitation is undertaken to make land suitable for settlement. In some cases, settlements may be well located but in many other situations, settlements are located at a distance from employment opportunities and sometimes on the periphery outside the urban edges of cities and provinces. These different settlement typologies have a profound impact upon the nature, feasibility and desirability of upgrading activities.

• Restricted public and private sector investment – Public sector investment within informal settlements is restricted as a result of the illegal status of settlements. Informal settlements accordingly lack access to basic municipal engineering services such as water, sanitation, electricity, roads and walkways and lighting. Most informal settlements also typically lack government-funded social amenities and economic infrastructure. For the same reason, inhabitants of these settlements had no incentive to date to invest their own resources in the areas.

• Poverty and vulnerability – The residents of informal settlements tend to be poor as most have only basic educational qualifications and are typically dislocated from the formal labour market. Residents are at a high risk of disease due to the combined effect of household poverty and poor living environment. The insecure nature of informal settlements reinforces social fragmentation, including the loss of community and inter-household mechanisms for social security. This greatly exacerbates the vulnerability of households living within informal settlements.

• Social stress and crime – The informality of settlements, including high densities, the absence of demarcated roads, poor lighting and under-developed public open space, provides an ideal cover for criminal activity. The poverty of residents provides fertile ground for exploitation, whilst the hazardous living environment and the visible disparity between informal settlements and surrounding areas typically gives rise to social stress, manifesting in high levels of inter-personal crime including domestic violence, child abuse and various social pathologies.

13.3.2 Application of programme

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. All projects designs will be done on the basis of the community profile and needs. The design must therefore cater for the subsidy qualifiers and those persons that will not qualify for housing subsidies as indicated in the programme. This means that the communities will play an active role in the early planning stages to ensure that all the needs are identified and project designs comply with the needs and community profiles.

The programme will not apply to current projects embarked upon in terms of any other National Housing Programme or any provincial housing programme which is consistent with National Housing Policy. The programme will also not apply to persons currently occupying backyards with informal houses/dwellings in existing towns.
13.3.3 Eligibility

The Programme will benefit all persons (the whole community) who are residing in an informal settlement as described in paragraph 13.3.1 of this Chapter of the National Housing Code. Eligibility for phase 4, the housing provision phase is qualified as contemplated in paragraph 13.3.4.7 of this Chapter of the National Housing Code.

In regard to illegal immigrants it should be noted that benefits under the programme will not necessarily be available to such persons. The presence of illegal immigrants will be detected at community survey stages and must immediately be reported to the Department of Home Affairs. Any action to be taken must be done in collaboration with the Department of Home Affairs and the provision of the benefits under the programme in respect of phase 1 to 3, if any, must be done with the approval of the Department of Home Affairs and should not compromise any powers and or rights of the Government to adequately deal with these persons.

The normal standard qualification criteria contained in Part 3, Chapter 2 of the National Housing Code will not apply, in that assistance under the Programme may also be allowed in the following categories:

Households/persons with monthly income exceeding R3 500;
Minors heading households, who are not competent to contract;
Persons without dependants;
Persons who are not first-time home owners;
Persons who have previously received housing assistance and who previously owned and/or currently own a residential property on condition that access to the benefits of the programme will be considered on a case by case basis to determine the facts and the approval of access in accordance with the provisions of the detailed implementation guidelines of the programme; and
Illegal immigrants on the conditions prescribed by the Department of Home Affairs and only inspect of phases 1 to 3.

Consequently searches against property registers the Population Register of Home the Department of Affairs and the National Housing Subsidy Data base will be required before access to the programme is awarded.
13.3.4 The Phased development process and funding application
Many components of upgrading projects cannot be ascertained up front as they require either detailed investigation or resolution through a process of community engagement. The Programme accordingly envisages that informal settlements will be upgraded through a four-phase process. The phases are:

• Application phase
• Project initiation phase
• Project implementation phase
• Consolidation subsidy phase

13.3.4.1 Phase 1: Application

At the outset, municipalities will be invited to apply for funding for the upgrading of informal settlements through the submission of Interim Business Plans. The Interim Business Plan shall provide:

• Details of the Municipal Integrated Development Plan (“IDP”) and the Municipal Housing Development Plan, reflecting both the scale and number of informal settlements within the area and the basis for the prioritisation of these settlements for upgrading purposes and a plan to address future land-release and securing requirements to avoid the establishment of new informal settlements;

• Pre-Feasibility details of the particular upgrading project must be provided including:
o The age and history of the settlement;
o The ownership status of the land including any restitution claims upon the land;
o The initial scoping of the geotechnical suitability (desk top surveys) of the land insofar as this impacts upon the upgradeability of the settlement in collaboration with the NHBRC project location enrolment process as contemplated in Chapter 3 A of the Part 3 of the National Housing Code;
o A desktop environmental scoping should address the environmental suitability of the area for the upgrading of the settlement;
o The geographic location of the settlement in relation to transportation nodes, employment and social amenities;
o The estimated number of households within the settlement;
o The estimated number of households to be relocated (if any), based on an analysis of the physical suitability of the settlement for upgrading;
o The identification of illegal immigrants;
o A preliminary work plan for the implementation of the project; and
o A preliminary budget for the project, including an indication of municipal counter-funding.

The MEC will consider these applications based on the criteria detailed in the implementations guidelines. Upon approval of the project, the Project will proceed to Phase 2: Project Initiation subject to the condition that a resolution by the Ward Committee, or similar structure where Ward Committees don’t exist, supporting the application for the upgrading of the informal settlement is provided prior to the initiation of Phase 2.

13.3.4.2 Phase 2: Project Initiation

During this phase of the upgrading process, municipalities will receive funding to undertake the following activities:

• The acquisition of land through negotiation or expropriation and the purchase price/compensation as the case may be must be determined in accordance with the average of three independent valuations. This flexibility will enable local authorities to motivate for the purchase of well-located land. The acquisition of well-located land for upgrading purposes will not only enhance urban efficiency but will also reduce the social, political, economic and financial costs associated with relocating households to more peripheral sites. Land held by municipalities, provincial governments, parastatal organisations and other state departments and/or public entities should, where possible be made available free of charge and state land release mechanism must be enhanced to support this process. The acquisition of land is not a pre-condition for the implementation of the remaining activities under this Phase of work, but is to be completed prior to the initiation of Phase 3 of the project;

• Facilitate the appointment of capacity to undertake the survey and registration of households within the settlement, in order to develop a clear socio-economic and demographic profile of the settlement. The results of the survey will determine the tenure options that are required under the programme. This activity could be undertaken through the employment of Community Development Workers. Where Community Development Workers are not available, the municipality may apply for funding to appoint capacity to undertake this task on condition that such capacity also undertake the tasks of community participation facilitation, project information communication, community training and assistance, conflict resolution and housing support facilitation;

• 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;

• Pre-planning studies to determine detailed geotechnical conditions and the undertaking of an environmental impact assessment to support planning processes;

The activities under this phase are generally to be undertaken over a period of 8-12 months, in accordance with the following maximum funding parameters.

Funding indicators (based on a project of 5000 households
Cost elements Maximum cost per household/Stand Funding Source
Community Development Workers to undertake survey and registration of households and facilitate community participation process. Where this is not possible external capacity could be employed at 3% of project cost to also undertake conflict resolution and housing support services delivery Project cost will determine actual amount HSRDP
Provision of Interim Services R1 500
HSRDP
Pre-Planning Studies R400
HSRDP
Geotechnical Investigation R46.66 SA Housing Fund
Land acquisition
No ceiling: Market value based on 3 independent valuations HSRDP & SA Housing Fund

Upon completion of this phase of work, the municipality shall submit a Final Business Plan with the following information:

• The total number of households within the settlement as per the beneficiary survey and registration process;

• The value of land to be acquired, supported by the three independent valuations;

• Details on the selected tenure arrangements as a result of community consultation processes;

• Details on the selected standards for permanent municipal engineering infrastructure as agreed with and during the community consultation processes, reflecting an appropriate balance between up-front capital costs, long-term maintenance and operating arrangements, affordability, environmental sustainability, social acceptability, safety and human dignity;

• Details on the selected social and economic infrastructure interventions;

• A revised work plan for the implementation of the project;

• The strategy for the management of the settlement to prevent re-invasions and informal settlement growth, the movement of people and the strategy for the demolition of shacks and in the process addressing the community’s role in this regard;

• The detailed strategy for the relocation of persons if applicable;

• A revised budget for the project and confirmation of local government counter-funding; and

• The proposed monitoring and evaluation framework for the project, which shall form the basis for quarterly reporting to the Member of the Executive Council.

13.3.4.3 Phase 3: Project Implementation

The MEC shall consider the Final Business Plan and, upon approval, the municipality will receive funding to undertake the following activities:

• The establishment of Project management capacity for the implementation of the project and to ensure compliance with statutory requirements.

• The establishment of Housing Support Centres to support households at an early stage regarding their rights, housing options and construction of various housing typologies in accordance with their needs, means and aspirations.

• The initiation of planning processes including detailed town-planning and the surveying of sites.

• The formalisation of land occupational rights whether individually or on a collective basis and the resolution of disputes.

• Land rehabilitation may be required to facilitate the development of certain areas, including drainage and storm water interventions and the engineering of steep slopes. Funding is accordingly provided to support the upgrading of informal settlements on well-located but marginal land which requires rehabilitation in order to support human settlement. No ceiling amount is provided for land rehabilitation but detailed technical information will be required in support of this activity.

• The installation of permanent municipal engineering infrastructure including water, sanitation and toilet structures, roads, storm water and street lighting where applicable. Bulk infrastructure costs are to be financed separately through municipal allocations under the Municipal Infrastructure Grant.

• The construction of social amenities, economic and community facilities such as early-childhood development facilities, primary health clinics, recreational and community facilities, public open space improvements, public markets, public transport hubs and workspace facilities. The selection of social/economic facilities is to be determined in accordance with community needs and aspirations.

No timeframe is prescribed for the implementation of this phase of the project, which should rather be undertaken in accordance with the detailed work plan of the local authority. The activities under this phase are however to be undertaken in accordance with the following maximum funding parameters:
Funding Indicators
Cost elements Maximum cost per household Funding Source
Land Rehabilitation
No ceiling: Actual cost based on professional assessment HSRDP
Town Planning and Surveying up to
R209,94 SA Housing Fund
Land surveying and pegging up to R155,52 SA Housing Fund
Survey examination fee up to R48,21 SA Housing Fund
Contour Survey up to R31,11 SA Housing Fund
Civil engineers Fee up to R466,54 SA Housing Fund
Site supervision up to R118,18 SA Housing Fund
Conflict resolution and housing support as part of community facilitation and surveying Part of 3% of project cost allowance for community participation facilitation HSRDP
Engineering infrastructure:
Internal reticulation up to
(Provision will be made for variations based upon geotechnical considerations)

R9 618,37
SA Housing Fund
Project management up to Not more than 8% of project budget HSRDP

The Business plan in respect of phase 3 must address the planning, commencement and the time frame for phase 4, the Consolidation for house construction phase.
13.3.4.4 Variations
For the purpose of accommodating any extraordinary development condition such as geophysical conditions and topography, a variation of up to a maximum of 15% on the total grant amount per grant could be considered. The actual variation must be based on professional assessment confirming the relevant conditions and must be costed in terms of minimum precautionary measures recommended by the professional.

13.3.4.5 Value Added Tax
In view of the fact that the benefits to be allocated in phases 1 to 3 will not constitute transfer payments as in the case of the awarding of individual housing subsidies, the funding expended during phases 1 to 3 will attract Value Added Tax. Any amount expended during these phases must therefore be increased by 14% to compensate for the effects of Value Added Tax.

13.3.4.6 Qualification of funding limits indicated in paragraphs 13.3.4.3, 13.3.4.4 and 13.4
The funding indicators in the tables must be treated as budget determination guidelines only and project applications must clearly indicate the actual cost indicators for each aspect. It will therefore not be permissible to apply for town planning and surveying to the amount of R 1 500 000,00 (R300,00 per household multiplied by 5000 household in the project). Actual cost will be determined through the structured procurement process and the rate per unit serves as a guide and the funding limit.

13.3.4.7 Phase 4: Housing Consolidation

The first three phases of the programme are intended to form the foundation for the long-term development of sustainable human settlements. Upon completion of these phases, the final phase of township establishment finalisation, ownership registration, where appropriate, and house construction will commence. Any outstanding social amenities will also be construction during the final phase.

The benefits available under the final phase will be linked to the status of the relevant person regarding competency to contract, previous residential property ownership status, the fact that the person may have accessed a state financed housing subsidy previously and the citizenship status of the person. The benefits will be as follows:

• Illegal immigrants: Illegal immigrants must be addresses in collaboration with and in terms of the directives of the Department of Home Affairs. Benefits to be awarded under phase four could comprise rental accommodation but these persons will not be allowed individual ownership status while they are regarded as illegal immigrants. The presence of such persons will be detected at community survey stages and this fact must immediately be reported to the Department of Home Affairs.

• Previous owners of residential property, existing owners of residential property and previous beneficiaries of state housing assistance schemes: These beneficiaries may apply for benefits under the programme but each application must be considered on a case by case basis to determine the facts and current circumstances. Persons falling in this category will therefore not necessarily qualify for assistance under the programme including phases 1 to 3. Depending on the facts of each case, such persons may be allowed to occupy the serviced stands, acquire registered ownership of the stands they occupy or may elect to opt for rental accommodation in the area, if available. Where the ownership option of the stand is elected, it could include communal ownership arrangement schemes (Eg. sectional title schemes corporative arrangements etc.) The upgrading to ownership of the properties created during phases 1 to 3 will be at the discretion of the municipality in consultation with the community and on condition that no evictions will be allowed outside the prescripts of the relevant legislation. The beneficiaries in this category who will be allowed to acquire the individual stands in ownership could be required to pay a purchase price equal to the cost of the development of the stand. This cost will comprise a land acquisition component, a component equal to the cost of the provision of the municipal engineering services and transfer costs. The detailed implementation guidelines will provide guidance regarding the options that might be available for these persons;

• Child headed households and minors: Persons falling in this category will not qualify for registered ownership of the properties created during phases 1 to 3 and therefore will also not be able to receive any consolidation subsidies. Such persons must be dealt with in accordance with the directives of the Department of Social Development and may be accommodated in rental housing opportunities if available or special facilities for this purpose. Where legal guardianship arrangements apply, the ownership of the property may be transferred as provided by the guardianship arrangement or in trust as the case may be;

• Single persons without financial dependants: Beneficiaries falling in this category may apply for the acquisition of individual ownership or elect to opt for rental accommodation if available. Beneficiaries in this category will not be allowed to apply for consolidation subsidies for house construction purposes. This options will only become available when and if such a person complies with the remaining qualification criteria as contemplated by Section 2 of Part Three of the National Housing Code.

• Persons earning in excess of R3 500,00 per month but who comply with the remainder of the Housing Subsidy Scheme qualification criteria: Beneficiaries falling in this category may apply to acquire individual ownership of the stands created under the programme or may elect to opt for rental accommodation if available. The beneficiaries in this category who wish to acquire the individual stands in ownership will be required to pay a purchase price equal to the cost of the development of the stand. This cost will comprise a land acquisition component, a component equal to the cost of the provision of the municipal engineering services and transfer costs. These beneficiaries will not qualify for consolidation subsidies for house construction purposes.

• Persons complying with the qualification criteria of the Housing Subsidy Scheme, including single beneficiaries: These beneficiaries may apply for registered ownership of the properties created during phases 1 to 3 or may opt for rental accommodation if available. The ownership option may include communal ownership schemes. Beneficiaries wishing to apply for the consolidation subsidy to construct houses will be required to make the required contribution. This may be achieved through participation in an approved People’s Housing Process project or by paying the financial contribution. These beneficiaries may also elect to apply for rental accommodation if available.

The final phase assistance will be administered in terms of the provisions of the relevant National Housing Programme opted for. For example beneficiaries of project linked housing subsidy projects will receive a subsidy amount equal to the residual of the subsidy amount after the deduction of any costs incurred during phase 1 to 3 that contributed towards the permanent development of the property, excluding funds expended for land acquisition, community participation facilitation, social amenities, relocation assistance cost, etc. A variety of options will be available for the execution of phase four. These will include People’s Housing Projects, individual ownership options, contractor built houses, rental accommodation and medium density options that may include rental and individual ownership options.

A summary of the tenure options is contained in Annexure A to the policy.

During these phases, qualifying residents will be encouraged to develop housing proposals in accordance with their individual and communal needs, affordability and aspirations. Residents will also be encouraged to save funds in order to finance their contributions towards the construction of houses. In this regard the principle that beneficiaries should be employed at project construction stage by developers to enable them to work for compensation to save towards realising the financial contribution should be furthered. Furthermore all construction initiatives should be aligned with the provisions and objectives of the Extended Public Works Programme of work creation.

Qualifying beneficiaries will be entitled to access subsidies for the delivery of a range of housing options in accordance with the provisions of the National Housing Subsidy Scheme. This approach is intended to maximise individual and community choice and will be able to sustain single plot, communal and medium-density housing options. Residents will accordingly be able to access housing subsidies through a variety of mechanisms including the individual subsidy, participation in the People’s Housing Process or opt for rental opportunities through the rental housing programme provided through the Institutional Subsidy Programme or the rental programme currently under development.
13.4 RELOCATIONS

Residents living in informal settlements are often dependant on fragile networks to ensure their livelihoods and survival. A guiding principle in the upgrading of these communities is the minimisation of disruption and the preservation of community cohesion. The Programme accordingly discourages the displacement of households, as this not only creates a relocation burden, but is often a source of conflict, further dividing and fragmenting already vulnerable communities.
In certain limited circumstances, it may however be necessary to permanently relocate households living in hazardous circumstances or in the way of essential engineering or municipal infrastructure. In all such cases and where feasible and practicable, the relocation must take place at a location as close as possible to the existing settlement and within the context of an community approved relocation strategy that must be submitted with the final business plan for approval by the MEC.
The same rules and funding limits as applicable to upgrading of the informal settlement will apply in respect of any relocation initiatives required during the upgrading of an informal settlement as described in this Chapter of Part Three of the National Housing Code.
In addition, in these circumstances, the local authority may also access funding from the Human Settlement Redevelopment Programme for the relocation of these households in accordance with principles and guidelines to be issued by the Department of Housing and in line with the following cost parameters:

Average cost per relocated household
Transportation and loading costs for people and household effects up to
R200
Social service support including support for the registration of social benefits, school registration and other welfare support up to
R150
Relocation food support to households up to
R250
Maximum cost per household up to
R600

Where possible, relocations should be undertaken in a voluntary and negotiated manner. Mechanisms to ensure that the land is not re-occupied must be identified during this process. Legal processes should only be initiated as last resort and all eviction-based relocations must be undertaken under the authority of a court order. As a result, no funding is available for legal proceedings linked to the relocation of households. Funding for relocation will only be available on the basis of a detailed motivation to be provided by the municipality which must demonstrate the existence of a viable long-term land-release and upgrading strategy.
13.5 MUNICIPAL COUNTER-FUNDING

13.5.1 Capital Counter-funding
The principle of public/public partnerships is to apply to the Programme and participating municipalities will accordingly have to make a 10% minimum capital contribution towards the total cost of an upgrading project. Municipalities are however encouraged to increase this contribution where possible and increased contributions will be taken into consideration during project selection. Counter-funding requirements will be dealt with in a flexible manner to ensure that it does not result in the exclusion of municipalities that do not have the means to make such contributions. A purported lack of funding will be assessed against the Integrated Development Plan for the municipality and after consultation with the Department of Provincial and Local Government. Municipalities will be entitled to use MIG to finance their counter-funding requirements under this Programme.

13.5.2 Maintenance and Operational Funding
Municipalities are to assume responsibility for the operation and maintenance of all engineering infrastructure established under the Programme. Municipalities will also be responsible for the operation and maintenance of social, community and economic facilities. Funding for these activities is to be derived from through the normal municipal budgeting process. Furthermore, these operational contributions will not be regarded as part of the capital contribution envisaged under section 13. 5.1 of this Chapter.
13.6 FUNDING ARRANGEMENT

13.6.1 Dedicated funding

Dedicated funding is to be secured to support this Programme, through the refocusing of the Human Settlement Redevelopment Programme Fund (HSRDP), in accordance with the instructions of Housing: MINMEC to augment the S A Housing Fund allocations.

Funding under the programme will be dealt with on the basis that the S A Housing Fund will finance the normal housing development aspects and that the funds for land acquisition, where the purchase price exceeds the amount allowed for in the Housing Subsidy, community participation and facilitation costs, emergency services provision, social amenities etc. should be financed from HSRDP.

Phase 4, consolidation subsidies, will be funded solely from the annual S A Housing Fund allocations to provincial governments.

Where S A Housing Fund allocations are committed and urgent projects under this programme are required, applications for bridging funding from the HSRDP will be considered on condition that such is repaid as and when SA Housing Funds become available.

The funding limits indicated in paragraph 13.3 will be adjusted annually in accordance with the annual adjustment of the housing subsidy quantum.

The funding arrangements will therefore be as follows:

The Human Settlement Redevelopment Fund will finance:

• Surveying and registration of persons in settlements;
• Land assessment and township planning;
• Community participation and facilitation conflict resolution and housing support;
• Land rehabilitation where applicable;
• Temporary municipal engineering services;
• Professional and project management cost;
• Formalisation of occupation rights documents
• Social amenities; and
• Relocation costs

The SA Housing Fund will Finance:

• Land acquisition (up to R500,00 per stand);
• The provision of permanent municipal engineering services and professional services;
• Township establishment cost;
• Ownership registration;
• Consolidation subsidies for qualifiers based on the provisions of the relevant National Housing Programme opted for and the principle that the residual of the subsidy amount after the deduction of the cost of services that contributed towards the permanent development of the property, excluding the cost of land in excess of the amount allowed for in the Housing Subsidy Scheme, social amenities and community participation facilitation etc. will apply The consolidation subsidy in respect of individual subsidies may never be less than the Consolidation Housing Subsidy Scheme amount; and
• Rental housing schemes in terms of the provisions of such schemes.

Municipalities will accordingly be invited to apply for project approval and funding through the submission of Business Plans as prescribed in section 13.3.4 of this Chapter to respective Members of the nine Executive Councils responsible for Housing of the Provincial Governments (MEC’s).

Provinces will be obliged to administer the project funding through the Housing Subsidy System to ensure that record keeping is not compromised and the double funding of aspect is prevented.

13.6.2 The release of allocated and approved project funding

Funding secured for the programme will be made available to provinces as a conditional grant, regulated through the Division of Revenue Act. This means inter alia that the funding allocated to the Provinces will be transferred by the National Department of Housing to the Provinces in terms of a transfer of payment schedule. The said transfer of payment schedule will be compiled on the basis of cash flow projections contained in the provincially approved project business plans. The implications of these arrangements are that Provinces will have to approve the projects to be funded in a particular financial year about 3 months before the actual commencement of that financial year. This will also mean that provinces will have to approve projects and align such approvals with actual planning and phasing of execution activities to ensure accurate funding reservation and expenditure.
Approved project funds will be transferred by the relevant provincial housing department, to the municipality concerned in a manner and subject to such terms, conditions, and controls relating to the handling of finances as may be determined by the accounting officer of the provincial housing department concerned, and also subject to those conditions that may have been imposed by the MEC when approving the project.
Progress payments to municipalities shall be made, against proof of the provision of value for money by achievement of agreed milestones provided that advance payments can be made on the basis of an agreement between the MEC and the municipality in respect of each phase of the project. For example, at project approval stage, the MEC may advance the quantum of funds available for phase 1 to the municipality and the municipality may apply for the release of funds for phase two upon conclusion of phase 1 and so on.
Progress payments shall be made by municipalities or the provincial housing department, as applicable, to providers of housing goods or services contracted with, against proof of the provision of value for money.
If it is found that the approved grant amount, based on the estimates provided in the project application for a project, exceeds the actual amount disbursed or to be disbursed, in implementation of a project, the balance must be transferred back to the Provincial Department of Housing.

Income generated through the sale of serviced stand by the municipality must be deposited in the separate operating account of the municipality and be utilised as contemplated by the provisions of Section 14(4) of the Housing Act, 1997.
13.7 INSTITUTIONAL ARRANGEMENTS

Founded on the principles of co-operative governance and the creation of partnerships between different spheres of government, and based on the principle of subsidiarity, which implies that normally a function should be performed at the level most suitable to the circumstances, the roles and functions attributed to the three spheres of government and others under this Programme are listed below. These are in accordance with the provisions of the Housing Act, 1997.

13.7.1 Responsibilities of Municipalities under the Programme

In terms of Section 9 (1) of the Housing Act, 1997 the function of municipalities include that: “every municipality must, as part of the municipality’s process of integrated development planning, take all reasonable and necessary steps within the framework of national and provincial housing legislation and policy to –
(a) ensure that –
(i) The inhabitants of its area of jurisdiction have access to adequate housing on a progressive basis;
(ii) Conditions not conductive to the health and safety of the inhabitants of its area of jurisdiction are prevented and removed;
(iii) Services in respect of water, sanitation, electricity, roads, storm water drainage and transport are provided in a manner which is economical”, (Housing Act 107 of 1997).

Therefore, under this Programme, municipalities are responsible to:

Consider whether a matter merits the submission of an application for assistance under this Programme, and if so:
Initiate, plan and formulate applications for projects relating to the in situ upgrading of informal settlements which in the case of municipalities, which are not accredited, must be in collaboration with and, under the supervision of the provincial housing department;
Request assistance from the provincial housing department on any of the matters concerned if the municipality lacks the capacity, resources or expertise;
Submit the application to the relevant provincial housing department;
Implement approved projects in accordance with agreements entered into with provincial housing departments in terms of Section 12.6.6.2 of this Chapter.
Assume ownership of the engineering services installed.
Manage, operate and maintain settlement areas developed under this Programme.
Ensure as far as possible the availability of bulk and connector engineering services.
Provide basic municipal engineering services such as water, sanitation, refuse removal services and other municipal services.
Provide materials, assistance, and support where necessary to enable the in situ upgrading project to proceed.
Where necessary, a district municipality must provide inputs and assistance to a local municipality, and vice versa.
Where appropriate, assisting with the transport of affected persons and their belongings to resettlement sites.

13.7.2 Responsibilities of provincial governments under the programme

The provincial housing department will be responsible for the funding and implementation of this Programme in collaboration with municipalities.

The provincial housing department must:

• Generally do everything in its power to assist municipalities to meet their obligations under this Programme;
• Collaborate with and supervise municipalities in the initiation, planning and formulation of applications for projects under this Programme;

• Assume the responsibility as a last resort option of the municipality in case where the municipality is not able to fulfil it’s obligations under the programme;
• Forward applications to the MEC together with its comments and recommendations thereon, including its views on the eligibility for assistance and the capacity of the municipality concerned to undertake and complete the project successfully, and any other aspect deemed important for decision-making in the matter;
• Having due regard to the provisions of Section 7 of the Housing Act 1997 including the obligation to take appropriate steps in accordance with Section 139 of the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996), to ensure the performance of such duties if the municipality is unable to do so, including undertaking such obligations itself;
• Assist with the evaluation of applications by the MEC;
• Reserve, reprioritise and allocate funds from its annual budget allocation and manage, disburse and control funds allocated for an approved project, in accordance with an agreement with a municipality;
• Assist municipalities with the use and implementation of accelerated planning procedures; and
• Monitor the implementation of a project by a municipality.
13.7.3 Responsibilities of the National Department of Housing under the programme

The National Department of Housing will:

Actively participate in project conceptualisation, assistance with project applications and evaluations and participate in project management with the provincial housing departments and municipalities;
Maintain the policy and programme and assist with interpretation thereof;
Monitor programme implementation; and
Negotiate the apportionment of funding for the programme and allocate such to provinces for project execution and release allocated funds on a cash flow basis.
13.8 MEMORANDUM OF UNDERSTANDING
Approved projects should be undertaken on the basis of the conclusion of an agreement or memorandum of understanding between the MEC and the relevant municipality.
Once a project has been approved and funds have been allocated by the Provincial Department of Housing, the municipality shall forthwith enter into a written agreement with the Provincial Department of Housing.
Each agreement between a Provincial Department of Housing and a municipality must incorporate the approved business plan as an Annexure and must include the details set out below, and must be signed on behalf of the Provincial Department of Housing by the Head of the Department and the municipal manager or other duly authorised representative, on behalf of the municipality:
Conditions imposed by the MEC when approving the project;
Requirements of the procurement regime applicable;
Total number of persons/households to be assisted under the project;
Detailed description of the land and basis for securing the land where assistance will be provided; and
The envisaged planning of the area and the type of assistance that will be provided in terms of:
o Tenure arrangements,
o Basic municipal engineering services to be provided
o The social facilities to be provided
o Details of any other assistance to be provided.

• A detailed itemised breakdown of all amounts of the grant and the total grant amount;
A detailed project implementation plan also indicating the cash flow, agreed project milestones and progress payments;
Arrangements to be made in respect of payment of service charges and where applicable municipal rates;
The agreed professional services to be procured, detail on the work to be done, and fees to be paid;
Detail on any other agreed housing goods or services to be provided and or procured; and
Any other matters deemed reasonable and necessary to ensure meeting project objectives.

13.8.1 Undertakings required from the municipality in the agreement

Where appropriate, undertakings will be required for:
Implementing the project;
Taking the necessary steps to ensure the provision of bulk and connector services to a project;
The provision of municipal services for purposes of a project;
The acquisition, management and control of land, basic municipal engineering services, and settlement in general;
Keeping and maintaining a register of persons/families who benefited from assistance provided under the Programme;
Providing relocation assistance to affected persons;
The planning and development of a permanent housing solution for affected persons;
Operating and maintenance costs of the settlement; and
Services delivery to the community.
13.9 SELECTION OF PROJECTS

The initial commencement of the programme will be undertaken on the basis of nine pilot projects, one in each of the nine provinces of the country. The selection of these pilot projects will be undertaken through consultations
In regard to future projects, beyond the pilot project phase, the MEC shall by written notice to all municipalities in the relevant province request the submission of business plans in the format as prescribed in section 13.3.4 of this Chapter.

The MEC shall then in considering the business plans so submitted, take the following criteria into consideration for the selection of projects to be approved and funded under this Programme:

• The capacity of the municipality to undertake the project;

• The extent to which the upgrading of the informal settlement is prioritised within the IDP and the Municipal Housing Strategy;

• The number of households who will benefit from the upgrading of the settlement. Preference should initially, where possible, be given to the upgrading of larger settlements to reach the maximum number of people;

• Value for money in relation to the size of the settlement must be taken into account, particularly where considerable amounts are expended on the acquisition and/or rehabilitation of well-located land;

• The availability and quantum of municipal counter-funding. Preference should be given to projects where municipalities provide counter-funding in excess of minimum requirements.

• The relationship between the municipality and the residents of the informal settlement, as demonstrated through a resolution from the ward committee.

13.10 PERFORMANCE MEASUREMENT

The following indicators are to from part of an approved business plan and be used to evaluate and regularly report on the impact of projects for the upgrading of informal settlements:

• Performance against the work plan and expenditure targets contained in the Final Business Plan;

• Poverty rates (household income or consumption trends);

• The neighbourhood and environmental aspects of poverty are to be measured through:
o Health indicators (particularly decline in waterborne diseases and infant mortality rates, where these indicators have been recorded and are available);
o Access to water and sanitation (households having access to “improved” drinking water sources and improved sanitation facilities);
o Tenure (number of households with secure tenure);
o Economic activity (increased number of business opportunities and number of jobs created);
o Social amenities (increased number and affordability of social and recreational facilities); and
o Social capital (particularly family stability and community cohesion); and
o Crime (crime statistics).

• The sustainability of upgrading projects are to be measured through:

o The willingness and ability of residents to pay for services as demonstrated by increased local government revenues;
o The willingness and ability of government agencies to maintain and operate pubic infrastructure developed through upgrading projects;
o The environmental impact of upgrading projects;
o Progress with the housing consolidation phase and the various options elected in this regard;
o Whether the densification of the settlement after upgrading is taking place and at what rate;
o An indication of private sector investment in the towns since the upgrading project and the nature of such investment;
o Beneficiary satisfaction survey to determine the impact of the development impact on their lives.
ANNEXURE A
TENURE OPTIONS FOR IN SITU INFORMAL SETTLEMENT UPGRADING

Tenure Option Individual Freehold Ownership Co-operative/ Group ownership DFA Initial Ownership Rental Permissions to Occupy Eviction
Children

Rights may be held by guardian or in trust.
Rights may be held by guardian or in trust. Rights may be held by guardian or in trust. No contractual capacity. Subsidized rentals may be necessary. Rights may be held by guardian or in trust. Not recommended for obvious human rights considerations.
Single persons without dependents Recommended without restriction bur no consolidation subsidy. Yes. Yes. Yes. Normal rentals to be paid. Yes. Not recommended as the Constitutionality of evictions is likely to be challenged.
People who currently own immovable property If own property may be given ownership if purchase site at development cost.

Yes. If own property may be given initial ownership if purchase site at development cost.
Yes. Normal rentals to be paid. Yes. Eviction not recommended as the costs (social, economic, financial and political) are likely to outweigh the benefits. Generally not a substantial problem.
People who have previously received housing assistance May be given ownership if purchase site at development cost. Yes. No additional restrictions or conditions should be imposed. May be given initial ownership if purchase site at development cost. Yes. Normal rentals to be paid. Yes. Eviction not recommended as the costs (social, economic, financial and political) are likely to outweigh the benefits. Generally not a substantial problem.

Tenure Option Individual Freehold Ownership Co-operative/ Group ownership DFA Initial Ownership Rental Permissions to Occupy Eviction
Households with income exceeding R3500 p.m. May be granted ownership if purchase at development cost Yes. May be granted if purchase at development cost. May be granted if purchase at development cost. Yes. Normal rentals to be paid. Yes. Not recommended as the eviction of higher income residents enhances the impoverishment of settlements.
Illegal immigrants Not possible due to legal restrictions.
Not possible due to legal restrictions Not possible due to legal restrictions. Not possible due to legal restrictions Not possible due to legal restrictions In practice, illegal immigrants most likely to leave area if faced with eviction. Repatriation to be undertaken by the Department of Home Affairs.
General Comment

Individual freehold title confers maximum rights but may be expensive and slow. Freehold potentially provide collateral for loans. Freehold also attracts rates and taxes. Co-operative/Group ownership confers limited use rights. Generally insufficient collateral for loans. Group ownership would attract group liability for rates and taxes. Interim ownership which is relatively cheap and fast. Rights are upgradeable to full ownership. Initial ownership probably not sufficient collateral for loans. Very inclusive form of tenure. Department of Land Affairs is however currently considering the repeal of the DFA which created this form of tenure. Rental ownership confers limited use rights, subject to the payment of rentals. Administration costs may be considerable and occur over the entire life of the agreement. The enforcement of rental payments is often difficult. PTOs confer limited use rights. No rentals are generally payable. Initial administration costs arise but are lower than in the case of rentals. Officially perceived as a second-class form of tenure in SA context. Very inclusive form of tenure which is available for the upgrading of informal settlements. Has substantial social, political and financial implications and is often unsuccessful due to community resistance and the reoccupation of land.

Guidelines and Rules for the Implementation of the Informal Settlement Upgrading Programme Pilot Projects
13.11 General Conditions for Projects
13.11.1 Introduction

It has been decided by Housing: MINMEC that the programme implementation will be facilitated through a process on nine pilot projects, one in each of the nine provinces. These pilot projects will serve as a testing ground for full programme implementation and policy and detailed guidelines finalisation.

Provincial housing departments must identify suitable pilot projects without delay and this must be undertaken in collaboration with the municipalities in the province.

Pilot project progress must also be closely monitored and documented to inform the finalisation of the programme.

In cases where provinces are able to reprioritise adequate SA Housing Fund allocations for purposes of approval of projects beyond the identified pilot projects, it may proceed with the full implementation of the programme based on the policy prescripts applicable at the time of project approval.

13.11.2 Identification of pilot projects

The identification of pilot projects should be undertaken against the objectives listed below:

? The objective to reach as many household as possible to maximise the programme impact and to achieve the national goal of eradication of informal settlements by 2014;

? The focus should be on settlements located in dangerous areas posing a threat to health and safety and areas known to be affected by disasters;

? Projects should further the principle of spatial restructuring and integration;

? The projects must be aligned with national priorities such as the current Urban and Rural Development Nodes; and

? The identification of settlements that are threaten with eviction or have been the subject of a Court Judgement to the effect that relocation or upgrading must be undertaken expediently.

13.11.3 The nature of projects

The programme comprises a phased development approach and in respect of the initial phases of the any project, being phases one to three, the funding under the programme will constitute grants to municipalities to undertake approved projects as opposed to individual subsidies, approved in respect of qualifying Housing Subsidy Scheme beneficiaries of normal Project Linked Housing Subsidy Scheme projects. Phase four of the programme constitutes the housing consolidation phase and access to the Government’s housing assistance programme under this phase of the programme is qualified, based on the beneficiary profile and residential property ownership status or record of the household.

The programme will be financed and implemented by provincial housing departments in collaboration with the municipalities concerned. The decision-making authority for the approval of project applications under the programme vests with the Member of the Executive Council responsible for Housing of the Provincial Government concerned (MEC). The National Department of Housing will be actively involved in the implementation of the pilot phase of the programme through participation in the pilot projects design, application, approval and project implementation stages.

The development role will be fulfilled by municipalities. However the pilot projects will be undertaken on the basis of a partnership of cooperative governance between the relevant municipality, the provincial housing department and the National Department of Housing. In cases where a municipality lacks the capacity and expertise to undertake projects, the provincial housing department will assist and augment the abilities of the municipality where required. In certain cases where a municipality will not be able to fulfil the developer role at all, the provincial housing department may decide to take over the developer role and execute the project on behalf of the municipality. This arrangement will have to be undertaken based on a structured agreement especially addressing the matter of the municipality taking the developed township over, deliver the required services and assume full responsibility for the administration of the town and application of by-laws.

Project funding will be secured by provincial governments from the annual S A Housing Fund allocation and allocations from the Human Settlement Redevelopment Programme. Project funding will furthermore be based on the number of persons that qualify for assistance under the programme and approved funds may include funds for community participations facilitation and social and economic amenities development. Persons qualifying for assistance under the programme may include persons who do not fulfil the requirements of Chapter 2 of Part Three of the Housing Code, as described in Section 13.2.4 of this Chapter.

13.11.4 The nature of funding allocations
Grants to municipalities: A grant will be made available to a municipality to undertake an approved project in respect of phases one to three and in respect of phase four where funds will be allocated for housing consolidation, funding approval will be linked to the either the individual housing subsidy beneficiary or the relevant national Housing Programme opted for as the case may be. This means that where a household qualifies for an individual subsidy the housing provision phase will be based on the provisions of the Project Linked Housing Subsidy Scheme or the Individual Housing Subsidy Scheme as the case may be, or where the household opt for rental accommodation, the provisions of the envisaged rental housing programme will apply in accessing funding for that purpose.

13.11.5 Social and economic facilities

The provision of funding for the development of certain lower order community and economic facilities, primary municipal infrastructure, will be facilitated through the revised Human Settlement Redevelopment Programme.

13.11.6 Community participation

One of the fundamental principles of the programme is the empowerment of communities to enable them to assume ownership of their own development and improvement of life. The involvement of the target community from the outset must in all cases be pursued. Community participation must preferably be undertaken within the context of a structured agreement between the municipality and the community. A framework for such an agreement is attached as Annexure A to these Guidelines;

a. Community participation facilitation

A municipality may apply for funding for the appointment of external capacity to assist in the processes leading up to the conclusion of the participation agreement with communities. However, the surveying of the community within an identified project area and the facilitation of community participation and project conceptualisation could under certain circumstances be undertaken through the assistance of Community Development Workers to be employed by Government institutions in terms of the provisions stipulated by the Department of Public Service and Administration. These Community Development Workers’ availability at project commencement stages are not guaranteed as such Workers will not be employed for housing facilitation purposes only.

Where possible, municipalities should endeavour to employ Community Development Workers to undertake community surveys and registration of households and community participation facilitation. As these Workers will be remunerated by the relevant Government institution, there involvement in the project will have no financial implications.

In the event that the appointment of Community Developer Workers does not realise or the allocation of such capacity to a specific project does not realise for what ever reason, the municipality may apply for funding under the project budget to appoint external capacity to assist with the undertaking of the survey and registration of the households, community facilitation processes and project information flow and general assistance.

Community participation facilitation in this programme includes the issues of conflict resolution and housing support provision. External expertise to be appointed will therefore be responsible for the following functions:

• Surveying of households;
• Community participation facilitation;
• Project information flow;
• Conflict resolution, where applicable;
• Housing support services comprising:
o Training and education on housing rights and obligations
o Capacity building regarding housing consumers
o Assistance with the selection of housing options
o Building material management
o Relocation assistance

The funding available under the project for the appointment of external capacity to undertake the above-mentioned tasks, amounts to 3% of the project cost for phases 1 to 3.

b Survey and registration of households

All beneficiaries of the programme must be registered on the National Housing Subsidy Base and projects will be administered through the Housing Subsidy System that will be adjusted to accommodate the specific requirements of the programme. Therefore, the revised business plan for phase two must include the recorded details of the persons in the settlement for testing and uploading purposes.

c. Housing support services

As confirmed by the policy document, Government has placed a considerable emphasis on a developmental orientation that maximises community participation, capacity building and empowerment of the communities in it’s strive to establish sustainable integrated residential areas.

One of the mechanisms identified to contribute towards achieving this goal, is housing support facilitation at an early stage of project commencement to ensure that community members can be assisted to participate fully in all aspects of the project.

The establishment of housing support centres could be facilitated through the establishment of the community hall that will be financed through the HSRDP envisaged for social and economic amenities. These centres will be managed by the municipality and could provide facilities inter alia for community meetings, training and assistance with regard to housing related matters and options selection, housing consumer education, construction training as well as building material distribution where required.

Providing all the housing support services envisaged could require the appointment of external capacity to provide consumer education and construction advice and material management over and above the functions that will be fulfilled by surveyors and community participation facilitators. The acquisition of training material and equipment could also be required. Funding for the acquisition of capacity and material and equipment for this aspect has been included in the 3% of the total project cost for community participation facilitation. The actual services required will determine the actual amount required.

13.11.7 Town planning aspects
a. Relocations
A municipality must identify a project having due regard for the principle that relocation initiatives must be limited as far as possible and relocation should only be considered as a last resort option. Where relocation is unavoidable, any relocation initiatives must be based on the principle that it should be executed with minimal disruption of the affected persons and to relocate the persons to a location as close as possible to the current settlement. A relocation strategy must be developed in collaboration with and on the approval of the community. The rules of this programme will also apply to the relocation areas with the changes required to the context.
b. Township design and layout
The township design and layout must comply with the guidance provided by the Non- Technical Guide to Settlement Planning and Design, the “Red Book”. However in projects comprising in situ upgrading of settlements, local conditions might necessitate deviation from the guidelines to accommodate higher than normal densities to minimise relocation and to accommodate the nature of the housing options elected. However the basic principles that must be applied is that all stands must be accessible to emergency services provision for instance in the case of a fire, the fire fighting service must be able to find easy access to the source of the fire and/or the South African Police Services may want to approve township layouts to ensure that they are satisfied with the creation wholesome and safe residential areas, providing residential areas with easy access to policing and crime prevention.

The township layout and design must be undertaken on the basis of the specific needs of the community and the principle that relocations should be avoided as far as possible. A very important component of the town planning and design process will be a thorough land use survey to determine the practices and needs that will have to be accommodated in the development of the township. A further important aspect is the fact that circumstances vary vastly from area to area and from region to region. In urban areas a more innovative approach will be required as opposed to a more rural oriented area where the more conventional planning standards and practices may prevail. In designing a township layout the following should guide decisions:

• Community needs, current land use and densities;
• Curtailing relocation requirements;
• The need for a more non-traditional/non-standards and innovative approach to township design where required;
• Not all residential properties will necessarily require vehicle access;
• Prevention of fire spread;
• The need for higher density rental developments such as multi level buildings but also small stands where extension of units is preferred vertically as opposed to the normal horizontal approach;
• The provision of social amenity properties and properties for economic activities; and
• Accommodating the design requirements of the Department of Safety and Security to ensure that crime is curtailed and eliminated.

e. Township establishment
The township establishment process must under no circumstances be compromised and although the normal township layout will probably differ substantially form the norm, the approval of the general plan of the areas, the surveying and pegging of stands, the approval of the services design and standards by the municipal council and the actual proclamation of the town must be pursued. This is essential for the application of funding under phase four, housing consolidation.
It must be noted that although the programme comprises a phased development approach, the upgrading of informal settlements are judged to be a complete development programme including all the phases and projects must be designed, planned and executed on this principle
13.11.2 General Conditions for Pilot Projects
13.11.2.1 Application of the programme

The programme is applicable to:

• The in situ upgrading of informal settlements;
• To projects where in situ upgrading is not possible due to a variety of reasons and the entire community will be required to relocate: or
• In cases where, due to the specific township layout opted for, a portion of the community will have to be relocated to adjacent land or alternative areas.

13.11.2.2 Norms and standards applicable to the programme

The norms and standards prescribed by the programme only apply to phases 1 to 3. The norms and standards in respect of the housing consolidation phase will be directed by the National Norms and Standards in respect of Permanent Residential Structures described in Chapter 2 of Part Three of the National Housing Code or by the programme prescripts of the relevant housing option selected.

In respect of phases 1 to 3 of the programme that following serves as a guideline:

a. Municipal engineering services

The programme provides for the provision of interim municipal engineering services as a first phase to alleviate immediate/emergency need to access potable water, sanitation services and certain preventative measures to curtail the occurrence of disasters. The programme furthermore provide for the upgrading of such interim services into permanent municipal engineering services and/or the provision of permanent municipal engineering services form the outset of the project as may be required by local project circumstances.

• Interim services

Interim services will typically entail the provision of rudimentary water supply for communal use, communal and other temporary sanitation facilities, refuse removal facilitation and certain access roads to facilitate service vehicle access and emergency services delivery. In all cases these services must be provided on the basis that it could be upgraded to permanent services status or be utilised as the basis for the provision of the permanent engineering services.

The amount available for the provision of interim engineering services is R1 500,00 per household. This amount must be utilised as the guideline amount and actual design and costs must be used to determine the actual project cost in regard to the interim services. Project application that does not demonstrate costs based on actual design and costing will not be entertained by the MEC.

• Permanent Engineering Services

Permanent municipal engineering services in as far as it pertains to the internal township reticulation will be financed by the programme. Any bulk and/or connector services will not be financed by the programme as funds for these services are available through the Municipal Infrastructure Grants (MIG) programme.

Permanent municipal engineering services that will be financed by the programme and where a normal township layout will prevail, must comply with the provisions of the National Norms and Standards in respect of Municipal Services as described in paragraph 2.5.1 of Chapter 2 of Part Three of the National Housing Code. However the specific design and stand layout of a township might necessitate deviation from the said norms and standards and developers will be required to fully motivate such deviation to the MEC. The minimum norms and standards that will apply under normal conditions are the following:

Type of Service Minimum Level Maximum cost per stand
Water Single standpipe per stand (metered) R2 394,88
Sanitation VIP per stand R2 783,65
Roads Access to each stand with graded or gravel paved roads R1 788,38
Stormwater Lined open channels R2 589,26
Street lighting* For residential purposes only R 62,20
Total R9 618,37
*Highmast security lighting for residential purposes where this is feasible and practicable, on condition that such street lighting is not funded from the MIG initiative or funding available from other resources.

The following indirect cost associated with the township design and installation of municipal engineering services will also be covered by the programme:

Indirect cost element Maximum cost per stand
Pre-planning studies R400,00
Geotechnical investigation R 46,66
Contour survey R 31,11
Land surveying and site pegging R 155,52
Land survey examination fee R 48,21
Town planning fees R 209,94
Civil engineer’s fees R 466,54
Site supervision fees R 118,18
Total R 1 476,16

b. Extraordinary development conditions

In regard to extraordinary development conditions the principle of a variation of up to 15% on the amount of R28 279,00, being the product price of the normal Housing Subsidy Scheme programme will apply. The variation amount will thus amount to R4 241,85 per individual stand within an approved project. Regard must be have for the fact that any extraordinary development conditions might also require precautionary work regarding the construction of housing units and that the variation amount will have to be applied in respect of both the municipal engineering services and housing construction. The NHBRC enrolment process should guide requirements in this regard.

Any application for the variation amount must be motivated on the basis of a professional assessment of the conditions of each area and professionally designed and costed precautionary measures. Typically the variation would apply where geotechnical and topographical conditions require additional work or precautionary measures.

c. Rehabilitation of problematic land

The programme also allow for an application for additional funds to finance the rehabilitation of certain well located land but which is regarded as marginal or less opportune development areas. These areas typically comprise areas with extremely high water tables, settlements situated on flood planes and settlements located on infill areas or near mine dumping sites/slime dams.

Decisions regarding the rehabilitation of problematic areas must be based on an assessment of the economic viability of such projects, the cost of relocation the community both financial as well as socio economic cost, the future use of the rehabilitated area with reference to the retention of the area for perhaps higher income rental accommodation as opposed to the alienation thereof to beneficiaries etc. There will be no funding limit regarding the rehabilitation of land where this is regarded feasible.

13.11.2.3 Tenure options to be provided

One of the objectives of the Programme is to provide the inhabitants with secure tenure rights. It is important that any tenure rights awarded under the programme are legally protected on the one hand and on the other hand it must l not compromise any legal actions that will be required by, for instance the Department of Home Affairs in regard to illegal immigrants that may be residing in informal settlements that are upgraded.

The nature of the tenure rights that are to be awarded for the duration of the project phases 1 to 3, thus before township establishment and the housing consolidation phase commence, will be left to the discretion of the MEC in consultation with the community and the municipality.

However it is important that the agreed tenure rights envisaged for an area are cleared with the Department of Home Affairs to ensure that the awarding of tenure rights does not in any way compromise the legal process that will be instituted against illegal immigrants.

Tenure rights that may be considered in respect of phases 1 to 3 rental agreements entered with each household and or the gratuitous loan of a site for occupation by the relevant household legally known as “Commodatum”. Both tenure rights are currently acknowledged as legitimate rights. The rental option is regulated by the Rental Housing Act and the loan of the site is regulated by common law principles.

Any agreement that will provide tenure rights short of ownership in informal settlements must provide for the following:

• The identification of the site in question
• The term of the tenure right
• The cancellation of the right and processes to be followed
• The rights the tenure entail vest in the receiver of the right and the obligations of both parties to the agreement
• The fact that the development of the area comprises a phased development approach with clearly qualification criteria for access to the housing consolidation phase
• The fact that the tenure right does not guarantee access to any higher order tenure rights nor to the housing consolidation options
• The rules relating to the consumption of income generating municipal services and compensation obligations thereof
• The rules relating to substitution or ceding/transferring of the tenure right

13.11.2.4 The funding limits of the programme

The financial details provided by the policy must be utilised as a guideline of the maximum amounts that would be allowed for each aspect of the project. The actual cost of the project will be dictated by a variety of aspects such as the nature the project, the location, the township design and lay out and the development options selected. Based on a typical project comprising 5 000 units and land will be purchase at the market price of R1500,00, per stand the programme will fund the following:

Development element Maximum Cost per unit Total cost: (Worst case scenario) Funding resource
Phase 1: HSRDP HSS

Survey,& registration, participation facilitation, information flow , education, dispute resolution and housing support (where no CDW) 3% of project cost 3% of project cost ?
Geotechnical investigation R46,66 R233 300 ?
Land acquisition R1 500,00 R7 500 000 R1000,00 R500,00
Pre-Planning R400,00 R2 000 000 ?
Interim engineering services R1 500,00 R7 500 000 ?

Phase 2 and 3
Detailed town planning R209,94 R1 049 700 ?
Land surveying and pegging R155,52 R777 600 ?
Contour survey R31,11 R155 550 ?
Land survey examination fee R48,21 R241 050 ?
Civil engineer’s fee R466,54 R2 332 700 ?
Site supervision fees R118,18 R590 900 ?
Permanent engineering services provision R9 618,37 R48 091 850 ?

Project management fee 8% 8% of total Cost 8% of total Cost ?

Value Added Tax at 14% 14% ? ?

13.11.2.5 Project management fees

The Policy document provides for project management fees up to an amount not exceeding 8% of the project cost. The amount must be calculated on the total actual cost of the project not exceeding the maximum value of the work covered in phases 1 to 3.

13.11.2.6 Value Added Tax
In view of the fact that the benefits to be allocated in phases 1 to 3 will not constitute transfer payments as in the case of the awarding of individual housing subsidies, the funding expended during phases 1 to 3 will attract Value Added Tax. Any amount expended during these phases must therefore be increased by 14% to compensate for the effects of Value Added Tax.

13.11.2.7 Relocation assistance

In cases where households will be relocated to alternative land/areas, the programme provides for support to ensure that the negative effects of the relocation action on affected persons are minimised. The programme will fund, through the HSRDP Fund the following:

Cost element Average cost per relocated household
Transportation and loading costs for people and household effects
R200
Social service support including support for the registration of social benefits, school registration and other welfare support
R150
Relocation food support to households
R250
Maximum cost per household
R600

13.11.3 Qualification Criteria

One of the main objectives of the programme is to further a holistic development approach, focussing on the community as a hole as opposed to the previous individual housing subsidy beneficiary focus. The programme therefore substantially departs from the housing subsidy scheme in regard to awarding benefits to households living in informal settlements.

The benefits to be awarded under the programme must be considered on the basis of the two main processes of the programme. Phases 1 to 3 constitute the first main process, comprising consultations, participation in design and formulation of housing solutions, planning and municipal engineering services provision. Households will obtain tenure rights short of registered ownership or formal rental tenure during these three phases of the project. Awarding access to the benefits developed in these phases of the project will be at the discretion of the MEC with the exception of the cases where the presence of illegal immigrants is detected. The vesting formal ownership rights and formal rental tenure rights will realise during phase 4 of the project, the housing consolidation phase. The programme will therefore comprise a diversified set of qualification criteria.

In cases where the community survey detected the presence of illegal immigrants, the developer must immediately report the matter to the Department of Home Affairs. The Department of Home Affairs must investigate the matter and make recommendations to the developer on how to proceed and whether informal occupation rights could be awarded to such persons as an interim measure. Developers must also immediately report the matter to the MEC. Depending on the guidance received from the Department of Home Affairs, the developer will formulate recommendations to the MEC on the allocation of informal tenure rights to such persons. Alternatively the Department of Home Affairs will proceed with deportation processes. Developers may under no circumstances proceed with the allocation of rights in own right as such actions may have vast implications.

Previous owners of residential property, existing owners of residential property and previous beneficiaries of state housing assistance schemes: These beneficiaries may apply for benefits under the programme but each an application must be considered on a case by case basis to determine the facts and circumstances that led to the presence of these persons in the settlement. Persons falling in this category will therefore not necessarily qualify for assistance under the programme. Each case must be investigated to determine the nature of the previous ownership and/or access to a state housing subsidy and the reasons for applying for state assistance. For instance the fact that a person was married and acquired ownership of a residential property in that status and the marriage was dissolved should not necessarily disqualify that person form accessing state housing assistance again. The relevant person might not have derived any benefit form the residential property ownership at the time of the termination of the marriage. These circumstances may also apply to persons who offered their houses under the pre-emptive provisions of the Housing Act, 1997, or persons that applied for reparation under the Truth and Reconciliation Process.

13.11.4 How to apply for project approval and funding and the project flow process

As soon as the pilot project has been identified, the municipality must compile a project application for consideration by the MEC. The application should be developed on the basis of the preliminary business plan as described in the following paragraphs. The Provincial Housing Department will assist the municipality in the compilation of the project application.

The MEC will consider and reserve finding for projects based on:

• funding availability
• the target set nationally and provincially for the eradication of informal settlements,
• capacity to deliver; and
• priorities identified,

A confirmation of reservation of funds by the MEC constitutes the approval to embark on project design phase and to engage in financial commitments.

Subsequent project applications will also take the form of business plans to be submitted in accordance with the progression of the execution of each phase of the project.

13.11.4.1 Phase 1: Project registration and funding reservation application: Interim business plans

The interim business plan shall as a minimum provide the following information:

• Details of the Municipal Integrated Development Plan (“IDP”) and the Municipal Housing Development Plan, reflecting both the scale and number of informal settlements within the area and the basis for the prioritisation of these settlements for upgrading purposes and a plan to address future land-release and securing requirements to avoid the establishment of new informal settlements;

• Pre-Feasibility details of the particular upgrading project must be provided including:
o The age and history of the settlement;
o The ownership status of the land including any restitution claims or title deed restrictions affecting the use of the land;
o The initial scoping of the geotechnical suitability (desk top surveys) of the land insofar as this impacts upon the upgradeability of the settlement in collaboration with the NHBRC preliminary and project location enrolment process as contemplated in Chapter 3 A of the Part 3 of the National Housing Code;
o A desktop environmental scoping should address the environmental suitability of the area for the upgrading of the settlement;
o The geographic location of the settlement in relation to transportation nodes, employment and social amenities;
o The estimated number of households within the settlement;
o The estimated number of households to be relocated (if any), based on an analysis of the physical suitability of the settlement for upgrading;
o The identification of illegal immigrants;
o A preliminary work plan for the implementation of the project; and
o A preliminary budget for the project, including the funds required for social and economic amenities and furthermore including an indication of municipal counter-funding commitment.

The MEC will consider these applications based on the criteria detailed in this implementations guidelines. Upon approval of the project, the Project will proceed to Phase 2: Project Initiation subject to the condition that a resolution by the Ward Committee, or similar structure where Ward Committees don’t exist, supporting the application for the upgrading of the informal settlement is provided prior to the initiation of Phase 2 is tendered with the MEC.

13.11.4.2 Phase 2: Project Initiation

Once the project has been registered and the funding reservation confirmed by the MEC the municipality will proceed with the implementation of Phase 2 of the project. During this phase of the upgrading process, municipalities will receive funding to and must undertake the following activities:

• The acquisition of land where the land to be developed is in private ownership through negotiation or expropriation and the purchase price offer must be determined in accordance with the average of three independent valuations. Land held by municipalities, provincial governments, parastatal organisations and other state departments and/or public entities should, where possible be made available free of charge or at minimal value and the State land release mechanism must be enhanced to support this process. The finalisation of land acquisition is not a pre-condition for the implementation of the remaining activities under this Phase of work, but is to be completed prior to the initiation of Phase 3 of the project. Where the acquisition of the land is not concluded immediately, proper legal rights to access and enter upon the property must be obtained before the commencement of the further phases of the project.

• Facilitate the appointment of capacity to undertake the survey and registration of households within the settlement, in order to develop a clear socio-economic and demographic profile of the settlement. The results of the survey will determine the tenure options that are required under the programme. This activity could be undertaken by Community Development Workers and deployed at project level. Where Community Development Workers are not available, the municipality may apply for funding to appoint capacity to undertake this task at the same rate per household indicated in this guidelines on condition that such capacity also undertake the tasks of community participation facilitation, project information communication, community training and assistance. The details of the beneficiaries must be included in the final business plan submission to enable the provincial housing department to upload the details on the Housing Subsidy System for the required testing and uploading on the National Housing Subsidy Database;

• The conclusion of the agreement between the municipality and the community that will regulate participation, the project approval processes etc.

• The in-principle enrolment of the project/land with the NHBRC confirming the NHBRC’s approval of the suitability of the land for housing development and or precautionary measures that will have to be considered to achieve house enrolment in the final phase;

• Install interim services to provide access to 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;

• Pre-planning studies to determine detailed geotechnical conditions and the undertaking of an environmental impact assessment to support planning processes, the scoping of the land to determine the usable areas and the possible township layout potential etc;

The activities under this phase are generally to be undertaken over a period of 8-12 months.

13.11.4.3 Phase 3: Project Implementation

Upon completion of the work required under phase 2 described above, the municipality shall submit a Final Business Plan with the following minimum information to the MEC for approval:

• The total number of households within the settlement as per the beneficiary survey and registration process indicating the beneficiary profiles, (household composition, income, names, ID numbers, origin, ownership status as recorded etc;

• The description and plans indicating the location of the settlement the land selected for relocation if applicable;

• Details of the land ownership status;

• Where land will be acquired, the details of negotiations with the land owner to date regarding the purchase and the purchase price required;

• The value of land to be acquired if applicable, supported by the three independent valuations;

• Details of the community participation structures established and contracted with;

• Details on the selected tenure arrangements as a result of community consultation processes;

• The details of the township layout and design with an indication of the sizes of the stands, road access arrangements and the provision of stands for social amenities institutional needs and economic opportunities;

• Details on the selected standards for permanent municipal engineering infrastructure as agreed with and during the community consultation processes, reflecting an appropriate balance between up-front capital costs, long-term maintenance and operating arrangements, affordability, environmental sustainability, social acceptability, safety and human dignity;

• Details and full motivation regarding the rehabilitation of marginal land if feasible and practicable measured, against the economic cost, the social cost of relocation and the future tenure arrangement and use of the land so rehabilitated;

• The contracting strategy to be employed aligned with the EPWP programme requirements.

• Details on how the community will physically participate in the execution of the project;

• Details of negotiations on the alignment of other public sector funding streams for instance the provision of schools and health facilities;

• The details of the recommendations of the Department of Home Affairs regarding illegal immigrants in the settlement;

• Details on the selected social and economic infrastructure facilities/interventions required;

• A revised work plan linked to the funding release requirements for the implementation of the project;

• The strategy for the management of the settlement to prevent re-invasions and informal settlement growth, the movement of people and the strategy for the demolition of shacks and in the process addressing the community’s role in this regard;

• The detailed strategy for the relocation of persons if applicable;

• A revised budget for the project including the funding requirements for social and economic amenities and confirmation of local government counter-funding;

• The proposed monitoring and evaluation framework for the project, which shall form the basis for quarterly reporting to the Member of the Executive Council;

• The Business plan in respect of phase 3 must address the planning, commencement and the time frame for phase 4, the Consolidation for house construction phase; and

• Any further information which in the opinion of the municipality may assist the MEC to come to a decision on the application;

The MEC shall consider the Final Business Plan and, upon approval, the municipality will receive funding to undertake the following activities:

• The establishment of Project management capacity for the implementation of the project and to ensure compliance with statutory requirements;

• The establishment of Housing Support Centres to support individual households and groups at an early stage regarding the construction of various housing typologies in accordance with their needs, means and aspirations;

• The acquisition of land if required;

• The initiation of planning processes including detailed town-planning and the surveying of sites;

• The formalisation of land occupational rights whether individually or on a collective basis and the resolution of disputes if any;

• Acquire full project enrolment status from the NHBRC;

• Land rehabilitation may be required to facilitate the development of certain areas, including drainage and storm water interventions and the engineering of steep slopes. Funding is accordingly provided to support the upgrading of informal settlements on well-located but marginal land which requires rehabilitation in order to support human settlement. No ceiling amount is provided for land rehabilitation but detailed technical information will be required in support of this activity;

• The installation of permanent municipal engineering infrastructure including water, sanitation and toilet structures, roads, storm water and street lighting where applicable. Bulk infrastructure costs are to be financed separately through municipal allocations under the Municipal Infrastructure Grant; and

• The construction of social amenities, economic and community facilities as described in these guidelines and the directives of the relevant programme. The selection of social/economic facilities is to be determined in accordance with community needs and aspirations.

Upon approval of the final business plan, the provincial housing department will register the beneficiaries on the Housing Subsidy Database for testing against the population register, deeds register and subsidy records and uploading on the National Housing Subsidy Data base.

No timeframe is prescribed for the implementation of this phase of the project, which should rather be undertaken in accordance with the detailed work plan accommodating the full involvement and participation of the community.
Upon completion of phase 3 of the project the municipality shall finalise the planning and project applications for the execution of the housing consolidation phase. These project applications will be prescribed by the directives of the relevant programmes opted for.
13.11.5 How the MEC judges a business plan

The MEC shall, in considering the business plans submitted, take the following criteria into consideration for the selection of projects to be approved under this Programme:
• Whether the application is aligned with the policy intent and prescripts of the programme;

• The availability of funding to execute the project based on the costing of the project phases and the work plans for the projects;

• The technical feasibility of the application based on the recommendations of the Provincial Housing Department;

• The national priorities set from time to time by the National Government

• The target set nationally and provincially for the eradication of informal settlements

• The capacity of the municipality to undertake the project; This capacity refers to the ability to undertake and manage town planning, project design and management, services installation projects and supervision, community participation, training and empowerment, the ability to identify and purchase land, to manage the land vacated through upgrading projects and to provide municipal services and enforce municipal by-laws regarding township administration, to undertake housing development initiatives and has the required systems and programmes to implement development projects.

• IDP alignment: The extent to which the upgrading of the informal settlement project is prioritised within the IDP and the Municipal Housing Strategy;

• The suitability and cost of the land to be purchased where applicable;

• The number of households who will benefit from the upgrading of the settlement. Preference should initially, where possible, be given to the upgrading of larger settlements to reach the maximum number of people. In additions people living in dangerous areas or areas known for exposure to natural disasters should receive preference;

• Whether the settlement is situated in dangerous areas, or is threatened by eviction, or is already the subject of a Court Judgement regarding eviction and/or upgrading;

• Value for money in relation to the size of the settlement must be taken into account, particularly where considerable amounts are expended on the acquisition and/or rehabilitation of well-located land;

• Whether the project comprise the relocation of the community. Preference should be given to projects that comply with the objective of minimising the disruption of the community and thus minimises the need for resettlement of some members of or the whole community;

• The availability and quantum of municipal counter-funding. Preference should be given to projects where municipalities provide counter-funding in excess of minimum requirements;

• Whether the contracting strategy complies with the Governments community empowerment objectives;

• Whether the other public sector resource requirements have been aligned and confirmed;

• Whether the matter of illegal immigrants has been satisfactorily addressed and resolved;

• The acceptability of the strategy for the management of relocations to new stands, the demolition of shacks and the protection of the vacated land against re-invasion;

• The relationship between the municipality and the residents of the informal settlement, as demonstrated through a resolution from the ward committee; and

• The planning regarding the housing consolidation phase solutions.

The MEC may impose any conditions that he/she deems necessary for the successful execution of the project.

No application will be approved unless funds are allocated to the project by the Provincial Housing Department.

13.11.6 After the approval of the final business plan

Upon receipt of the decision of the MEC, the Provincial Department of Housing must immediately notify the municipality whether an application has been approved, approved with conditions, partially approved or declined.

The Provincial Housing Department will then register the approval of the project.
13.11.7 Administration of Approved Funding
Funds in respect of approved projects will be provided and managed by the Provincial Department of Housing based on the approved application and conditions imposed by the MEC which constitute the approved business plan for the project, and will be made available to the municipality
Where a municipality or provincial housing department, as the case may be, is to procure housing goods or services (excluding the acquisition of land) to assist with implementing a project, it must use the procurement documents and contracts similar to the format set out in the Annexures to Part 3 Chapter 3A of the National Housing Code, to be adapted for the purposes hereof and must consider the requirements in terms of progress payments as described in Section 13.2.15 of this Chapter.
In regard to the acquisition of land the following must be applied:
• In the Case of state owned land the Land will not be purchase and transfer may proceed in terms of the agreement reached with the state land owner;

• In the case of land that needs to be acquired to proceed with the in situ upgrading of the exiting settlement, the municipality may negotiate directly with the land owner regarding the purchase of the land; and

• In the case of alternative land required for resettlement of the whole or part of the community, the municipality must proceed with the acquisition of the land in terms of the provisions of Chapter 3A : Housing Subsidy Scheme- Project Linked Subsidies: Greenfield developments. Therefore land owners of the land identified within the IDP and found to be the suitable location for the project as agreed to by the relevant community, must be requested to offer their land for sale to the municipality in the context of an open call for offers process.

13.11.8 The Agreement between the Provincial Housing Department and the Municipality
Once a project has been approved and funds have been allocated by the Provincial Department of Housing, the municipality shall forthwith enter into a written agreement with the Provincial Department of Housing.
Each agreement between a provincial department of housing and a municipality must incorporate the approved final business plan as an Annexure and must include the details set out below, and must be signed on behalf of the Provincial Department of Housing by the Head of the Department and the municipal manager or other duly authorised representative, on behalf of the municipality:

• A clear description of the approved project and approval registration number;
Conditions imposed by the MEC when approving the project;
Requirements of the procurement regime applicable;
Total number of persons/households to be assisted under the project;
Detailed description of the land on which the project will be executed; and
The approved project specifics in respect of the following:
envisaged planning of the area;
The agreed professional services to be procured, details on the work to be done, and fees to be paid;
The tenure rights to be awarded under phases 1 to 3 of the project;
The planning details of the township indicating layout land uses sizes of stands and intended zoning of the stands;
The details on the interim municipal engineering services to be provided, if applicable;
The details of the permanent municipal engineering services to be provided;
The type of permanent housing solutions opted for phase 4 of the development;
• Detail of any other assistance to be provided.
A detailed itemised breakdown of all amounts of the grant and the total grant amount;
Details of the contracting strategy selected;
Details of the community participation regime and confirmation of the commitment to implement the agreement reached with the community;
The amount of the grant approved under the Programme which will be discounted against subsequent housing subsidies to the extent to which it contributes materially to the future permanent housing solution for the beneficiaries of the Programme;
A detailed project implementation plan also indicating the cash flow, agreed project milestones and progress payments;
Rental and/or occupational compensation to be charged for phases 1 to 3;
Provision for assistance to indigent persons;
Details on any other agreed housing goods or services to be provided and or procured; and
Any other matters deemed reasonable and necessary to ensure meeting project objectives.
13.11.9 Progress Payments
13.11.9.1 Payment for providers of housing goods and services
The approved project budget will be managed by the provincial housing department and expenditure of funds must be for the purposes approved and subject to the conditions imposed by the MEC.
The municipality must be/ or will become the owner of the land and engineering services installed. In all circumstances the principle of the achievement of value for money must be upheld when payments are considered for housing goods and services.
Therefore:

• Where the municipality implement the project, the municipality must validate, approve and submit claims received or prepared by itself, to the provincial government’s department of housing for final approval and the transfer and/or payment of the amount so claimed.

• Where the provincial government’s department of housing implement the project, the department must validate and approve claims received and affect payment thereof, subject to the receipt of written acknowledgement of satisfaction from the municipality on the work done/services delivered.
The circumstances and nature of the project as described in the application and agreement with the Provincial Department of Housing will determine and identify the cash flow requirements of the specific project. In principle, the guidelines provided in Table 6 below must apply (subject to any amendment / condition which the MEC may impose on the approval of the project).

13.11.9.2 Advance payments to Municipalities
To prevent adverse cash flow constraints at municipal level, the MEC may consider administering advance payments as per agreed project phase in terms of Table 6 below. The submission and payment of subsequent claims for further advance payments or for actual work done will be subject to the receipt and approval of proof for work done in terms of any prior advance payment made, and/or the achievement of the full compliment of work required per relevant phase. Payment by a municipality from such advance amounts received must be done in accordance with the provisions of Table 6 below.
The guidelines on project phases and payment milestones contained in Table 6 below are based on a typical project example where the municipality implement the project. This must be adapted by the Provincial Department of Housing in conjunction with the municipality for purposes of the specific project, based on the approved project items and grant amount.
Project Phases and Payment Milestones: 5000 unit project
PHASE 2: LAND ACQUISITIONING, PLANNING AND ENGINEERING SERVICES DESIGN
Milestones Description of Milestone Activities Nature of Payment Actual amount per grant (incl. VAT)
1.1
Land Acquisitioning • Land acquisitioning agreement signed by both parties to the contract.
• The lodgement of the transfer documents for registration in Deeds Office. Full purchase price of land and fees payable to conveyancer on lodgement and completion as applicable. No ceiling: Average of 3 valuations
1.2 Social surveys & beneficiary registration, participation facilitation and project information flow • Compiling beneficiary list & gathering of textual data and record data on register. Facilitate community participation and ensure project information flow
Fees where CDW’s are not deployed
As agreed to between developer and service provider
1.3 Pre-planning • Geotechnical surveys, EIA scoping, township layout scoping on completion and acceptance of reports and interim project enrolment by NGBRC % of fees for professionals on achievement of mandates Up to R446,66 per stand
1.4 Dispute resolution • Professional expertise appointment to resolve disputes, % of fees on progress basis and final on dispute settlement % of fees for professionals on achievement of mandate Up to 400,00 per household
1.5 Interim engineering services • Provision of emergency/interim services: Communal water, communal sanitations emergency road access etc. Actual cost of interim services upon completion of each Up to R1 500 per stand
1.6 Housing support services • Professionals and equipment for housing support, training store management etc.
Fees for professionals and actual cost of equipment in terms of agreed mandate Up to R500,00 per household
PHASE3: DETAILED PLANNING, LAND REHABILITATION AND PERMANENT SERVICES PROVISION
Milestones Description of Milestone Activities Nature of Payment Actual amount per grant (incl. VAT
1.7

Planning and Land Surveying
• Finalisation and approval by Municipality of base plan, site investigations, contour survey, land survey (final EIA, and geotechnical details), layout planning, and approval.
• On submission of General plan for approval.
• On approval of general plan, pegging of stands and opening of township register as applicable.
• Project enrolment by NHBRC % of fees for town planning, land surveying, geotechnical and EIA services as interim payment.
Final payments on completion approval of General plan and NHBRC enrolment Up to R444,78 per stand
1.8 Engineering services design • On submission and municipal approval of final engineering services design, specification and procurement documentation. % of fees for engineering services design as interim payment.
Final payment on completion of mandate. Up to R466,54 per stand

1.9
Engineering site supervision fees • Linked to milestones on engineering services construction progression % of fees for site supervision Up to R118,18 per stand

1.10

Engineering services construction • Completion and hand over certification of installed services by municipality as per services category % of payments based on progression with services installation and final on hand over certification. Up to R9 618,37 Per stand

1.11 Project Management • Approved project implementation plan.
• Project management in accordance with approved project plan. % of fees as Interim payment based on value for money. Final payment on project completion. Up to 8% of project value excl. land price, social facilitation and housing support

The envisaged expenditure and payment against milestones must be indicated in detail in the project application/final business plan and subsequent agreements. As and when specific agreed milestones are reached or completed, claims must be submitted to the municipality, or provincial department of housing, as applicable, together with the necessary proof that the milestone has been reached. The municipality or Provincial Department of Housing as the case may be must scrutinise claims so submitted and approve or reject them within the time period as agreed with the service provider.
The municipality or Provincial Department of Housing, as applicable, must on approval of a claim, certify that all services, works and goods claimed for, have been received in good order and the work has been executed to its satisfaction.
Where the municipality implements the project, the claim, together with such proof required and the municipal certificate of approval must be submitted to the provincial government’s department of housing for payment.
The department must satisfy itself that all requirements have been met and must effect payment within 30 days from receipt thereof.
The requirements for proof, as indicated in Table 7 below, must be required in respect of each payment relating to a project under the relevant phase.
Payments made for a specific milestone must not exceed the amount indicated in the project budget for such specific milestone and or product, work or service provided.
13.11.9.3 Documentary proof for payment
Progress Payment Document required as proof for payment
Land • Land Purchase:
• Signed acquisition agreement.
o Proof of lodgement of registration.
o Proof of final registration.
Land Surveying • Copy of pre-planning studies, copy of contour plan, approved SG diagram, Municipal approved draft General Plan, SG approved General plan and pegging of stands as applicable. Proof of NHBRC preliminary enrolment approval
Town Planning • Proof of municipality approved layout plan, proof of submission of land development application, proof of environmental record of decision, letter of approved application, letter of approval of township registration, as applicable.
Preliminary engineering services • Proof of approval of completion of construction of services
Permanent engineering Services design • A certified copy of the approved engineering designs and specifications issued by the municipality, contract documentation.
Housing Support • Certification of satisfaction with mandate achievement by service provider and receipt of goods in good order
Mediation and Conflict Resolution • Monthly report and statements as per agreement, as the case may be.
Social Surveys, Beneficiary Registration, community participation and
project information flow • Municipal approved survey report.
• Municipal approved beneficiary registration database, list.
• Certification of community participation through agreed structure
Municipal engineering services installation and site supervision A copy of the approved municipal handover certificate in respect of the municipal engineering services. Monthly site supervision reports, final municipal completion and handover certificate as applicable and as build drawings. In the case of progress payments, municipal approved progress certificates.
13.11.9.4 Refunding
A situation may occur where expenditure is less than the budgeted amount. In such an event on project completion, the municipality will transfer such excess funds back to the Provincial Department of Housing.
If for whatever reason a situation occurs where an amount in excess of the amount to which a supplier of goods, works or services is entitled has been paid, the supplier will on demand refund the overpayment to the provincial government’s Department of Housing. The Provincial Department of Housing may set off such overpayment against any later amount due to the municipality or service provider.
If for whatever reason the project is cancelled, funds not expended will be transferred back to the Provincial Department of Housing. This will exclude funds legitimately still due for payment, as determined by the provincial government’s Department of Housing and the municipality.
13.11.10 A Framework for a strategy to manage the movement of households within project phases and the demolition of informal structures as and when households relocate to their formal housing
The management of the movement of households within a project, the influx of new households and the demolition of informal structures as and when households access their formal housing is a critical success factor for project execution.
The MEC in considering project applications will require a detailed strategy, as agreed to by the representatives of the community and the municipality, on how these aspects of the project will be managed. The following could be considered in the compilation of the required strategy:
Movement of households within settlements:
It is expected that due to the informal nature of informal settlements households may tend to vacate settlements and resettle to new locations, perhaps to follow new work opportunities, or as development initiatives become known, households from other settlements, areas and/or regions may move to the informal settlement under development. These actions will have a substantial affect on planning and project execution phases.
To ensure that this aspect of the project is managed it is suggested that the following steps be introduced:
Inhabitants of settlements identified for upgrading and where the agreement between the municipality and the community is to be concluded, must be informed of the destructive effects of the movement of families in and/or out of the settlements will have of project execution. Due to this the community should assume full responsibility for their development project and ensure that any such movements are detected and reported immediately to the developer. A sense of community policing should thus be instilled;
Any new comers to an surveyed and registered settlement must be recorded and dealt with in accordance with the recommendation of the community and municipal ward representative;
Households that leave the settlement must also be recorded to enable the adjustment of the household register and project planning;
All surveyed informal structures should be clearly marked with visible numbers to ensure that movements are detected when such occur;
Surveyed areas should preferable be mapped to indicate where registered households are located within a community this could be done via Satellite Imaging;
Households in a settlement should be clearly informed that the rights to development assistances they have acquired due to their presence within the target community are not transferable to any other settlement and that should they relocate to another area, they will have to abide by the development planning initiatives in respect of the new area
Demolition of informal structures
The developer must ensure that in respect of each formal housing opportunity it created and a household is allowed access, it must demolish the informal structure vacated by the beneficiary household. No access to permanent housing solutions should be awarded if the informal structure on the stand to be vacated has not been demolished.
In addition to the demolition of the informal structure, the developer must ensure that the land vacated by the beneficiary household must be protected against re-invasion/occupation. This should also be done on the basis of community policing principles, the strict enforcement of municipal by-laws and through close monitoring by means of constant site investigations and/or satellite imaging surveillance.
Any re-invasion of land must be promptly dealt with in accordance to the provision of the relevant legislation.
The strategy should demonstrate the processes that will be followed in securing the vacated land. In this regard it should include:
The methodology to be employed;
The personnel involved or private capacity that will be acquired; and
The systems that will be utilised.

ANNEXURE A

GUIDELINES FOR THE CONTENTS OF AN
AGREEMENT BETWWEN THE MUNICIPALITY AND THE INHABITANTS OF AN INFORMAL SETTLELEMTN TO BE UPGRADED

The following issues should be addressed in a contract that is designed to bind the parties to the agreement regarding the development of the informal settlement.

1. The description of the project relevant to the implementation of the agreement.

2. A description of the municipal ward within which the project is situated.

3. The purpose of the agreement.

4. A clear indication on how the membership of the parties to the agreement is structured, who is represented by each party, and in terms of what mandate. Provision may also be made for the co-option of members, for “non-voting” members, for observers and for the attendance by invitation of consultants.

5. The broad objectives of the agreement.

6. The responsibilities of each party to the agreement. This could include a list of functions to be performed in terms of the agreed development process, and should be specific so that all members know what is required of them. The following must be addressed as a minimum:

• A clear indication of the nature of the project;
• A clear indication of the requirement for resettlement if applicable and the details of the new location and number of persons earmarked for resettlement;
• Details of the contracting strategy that will be employed for the project, eg. a turn key development strategy for each phase of project execution, the traditional planning design and specification and tender route etc.
• How job creation will be furthered;
• Details of the township layout, planning opted for and services standards as well as housing typologies, eg. higher density rental housing, individual ownership options etc.
• The timeframe for the project;
• The cost of consumable services during or in respect of the various phases of the project and the commitment to make payments;
• The application of the Indigent Free Basic Services programme in respect of the project;
• If illegal immigrants are present in the community, how such persons will be treated during and after the conclusion of the project;

7. The processes and proceedings of the agreement. This must include details of:

• When, where and how often the parties will meet;
• The description of the quorum for a constituted meeting;
• The process of appointment of a chairperson and secretary and their terms of office;
• The responsibility regarding secretarial functions;
• The manner in which decisions will be made; and
• How conflicts will be resolved and what shall be done with the project should the agreement be terminated.

8. Signatures of members to indicate acceptance of the terms of contract. The date and place of signature should be included.

Is Operation Murambatsvina a Crime Against Humanity? An international law opinion

The following document is extracted from this file, a study by a group based in Oxford on the illegality of slum clearances in Zimbabwe.

ARE THE ACTIVITIES CONDUCTED DURING OPERATION
MURAMBATSVINA CRIMES AGAINST HUMANITY WITHIN THE
MEANING OF ARTICLE 7 OF THE ROME STATUTE?

International Law Opinion

Oxford Pro Bono Publico Group

University of Oxford, November 2005

TABLE OF CONTENTS

EXECUTIVE SUMMARY…………………………………………………………………………………………..2
INTRODUCTION………………………………………………………………………………………………………5
Rome Statute of the International Criminal Court………………………………………………6
About the Authorities and Methodology Used in this Opinion…………………………….7
Facts……………………………………………………………………………………………………………9
Mens Rea…………………………………………………………………………………………………….12
Structure of the Opinion………………………………………………………………………………..14
PART I: DEPORTATION OR FORCIBLE TRANSFER OF POPULATION……………..15
Forcible Transfer in the ‘Elements of Crimes’…………………………………………………18
PART II: LEGALITY OF THE EVICTIONS UNDER ZIMBABWEAN LAW……………19
The Meaning of ‘Lawfully Present’ In the Rome Statute…………………………………..20
The European Court of Human Rights…………………………………………………………….21
The African Commission on Human and Peoples’ Rights…………………………………24
The United Nations Human Rights Committee………………………………………………..26
PART III : ARE THE ACTS PART OF A WIDESPREAD OR SYSTEMATIC ATTACK
DIRECTED AGAINST A CIVILIAN POPULATION?………………………………………………27
Widespread or Systematic attack……………………………………………………………………27
PART IV: THE LEGALITY OF THE EVICTIONS……………………………………………………33
Doctrine of Abrogation by Disuse………………………………………………………………….35
PART V: THE COMPATIBILITY OF THE EVICTIONS WITH INTERNATIONAL
LAW………………………………………………………………………………………………………………………..37
Grounds under international law permitting the forcible transfer of population……40
International Covenant on Civil and Political Rights…………………………………….42
The International Covenant on Economic Social and Cultural Rights……………..46
The African Charter of Human and Peoples’ Rights……………………………………..47
PART VI: CONCLUSION…………………………………………………………………………………………48
APPENDIX………………………………………………………………………………………………………………50
EXECUTIVE SUMMARY
1. Oxford Pro Bono Publico has been requested to assist in the preparation of an
opinion considering whether the evictions that have taken place in various towns
and cities in Zimbabwe in the context of ‘Operation Murambatsvina’ (Operation
Restore Order) constitute crimes against humanity as defined in the Statute of the
International Criminal Court1 (hereinafter ‘the Statute’).
2. Article 7 of the Rome Statute provides that:

(1) For the purpose of this Statute, “crime against humanity” means any of the following acts
when committed as part of a widespread or systematic attack directed against any civilian
population, with knowledge of the attack:

[…]

(d) Deportation or forcible transfer of population;

[…]

(2) For the purpose of paragraph 1:

[…]

(d) “Deportation or forcible transfer of population” means forced displacement of the
persons concerned by expulsion or other coercive acts from the area in which
they are lawfully present, without grounds permitted under international law;
3. To determine whether there has been a violation of Article 7 of the Rome Statue, a
number of questions need to be answered in the affirmative. These are:
3.1. Whether there was, in fact, a ‘deportation or forcible transfer of population’ in
Zimbabwe in Operation Murambatsvina, through ‘expulsion or other coercive
acts’.
3.2. Whether the persons subject to the ‘deportation or forcible transfer’ were
‘legally present’ in the area from which they were removed;
3.3. Whether the acts in question constituted a ‘widespread or systematic attack
directed against any civilian population’?

1 Rome Statute for the Establishment of an International Criminal Court (adopted 17 July 1998, entered
into force 1 July 2002) UN Doc A/Conf 183/9; (1998) ILM 999 2187 UNTS 90 [hereinafter ‘Statute’ or
‘Rome Statute’].

3.4. Whether there are grounds under international law under which the deportation
or forcible transfer could take place.

4. On the question of whether there was in fact a deportation or forcible transfer of
population as defined in the Statute, it is concluded herein that the requirements of
the Statute, namely, that there be the transfer of one or more persons and that such
transfer be coerced or forced, have been met insofar as the factual situation as
detailed in this opinion is correct. Because the transfers were executed without the
consent of the individuals concerned and a range of coercive measures were
employed, it is reasonable to conclude that the acts fall within the range of practices
proscribed in the Rome Statute. Zimbabwe would therefore have to establish
whether the impugned acts fall under the international law exceptions allowing for a
forcible transfer of population.
5. On the question of whether the forcible transfer of population was committed as
part of widespread or systematic attack directed against any civilian population it is
concluded herein that the requirements of the Statute have been fulfilled. Taking
into consideration the size of and the manner in which the Operation was
conducted, it is reasonable to conclude that it constituted an attack both widespread
and systematic against a civilian population. Furthermore, the orchestration of the
Operation has led to the conclusion that it was conducted pursuant to a State policy
to commit such attack.
6. On the question of whether those subject to forcible transfer were ‘legally present’,
the word ‘lawfully’ in ‘lawfully present’ requires that the laws that define the
legality or illegality of one’s presence in a particular area comply with the principle
of legal certainty. In terms of the case law of the European Court of Human Rights,
the laws in question must be sufficiently precise to allow the individual to foresee,
to a degree that is reasonable in the circumstances, the consequences of his or her
actions. In the present case, while the Housing and Planning Acts are themselves
sufficiently clear, the Zimbabwean government’s actions in largely ignoring this
legislation after independence, and adopting contrary policies, arguably undermined
the requirement of reasonable foreseeability and thus the principle of legal
certainty. This, in turn, undermines the Zimbabwean government’s case that the
evictees were unlawfully present in the areas in which they had settled.

7. If, however, the preceding argument is not accepted, and a narrow reading of
‘lawfully present’ is adopted, it appears that most of those subject to evictions in
Operation Murambatsvina were not lawfully present within the meaning of the
Rome Statute.
8. It may, however, be possible to argue that since the Planning Act has not been
enforced for a significant period, that the doctrine of abrogation through disuse,
renders the Act void. However, no definite opinion on this issue is expressed herein,
and it has been mentioned merely to draw attention to the doctrine for further
consideration by a specialised Zimbabwean constitutional lawyer. Should it be
decided that the doctrine is still operable in Zimbabwe, then those subject to the
evictions were, arguably, ‘lawfully present’ since there was no legislation
prohibiting their settlement in the area.
9. Even if it is accepted that most of those evicted were not ‘lawfully present’, many
of those evicted were ‘lawfully present’ within the meaning of the Rome Statute.
Those evicted should therefore be constituted as those who were ‘lawfully present’
and those who were not for the purposes of the Rome Statute. The Rome Statute
does not require that all of those in a group of displaced persons be lawfully
present’ and it would therefore appear to be sufficient to constitute those lawfully
present as a separate group.
10. Moreover, since the Zimbabwean authorities did not seek to distinguish between
these two groups in carrying out Operation Murambatsvina, it could be argued that
they should not be permitted to rely on that distinction for the purposes of asserting
the legality of the evictions and demolitions under the Rome Statute.
11. Zimbabwean legislation regulating evictions is consistent with international law.
The evictions, however, were not carried out consistently with Zimbabwean law.
12. On the question of whether, assuming that a forcible transfer of population as
defined in the Rome Statute has occurred, Zimbabwe might be able to invoke one of
the international law exceptions allowing for such forcible transfers in exceptional
circumstances, it is concluded herein that the requirements under international law
allowing for the limitation of these individuals’ rights to mobility, namely, that they
be temporary, necessary and proportional to the threat, have not been met.

INTRODUCTION

13. Oxford Pro Bono Publico has been requested to assist in the preparation of an
opinion considering whether the evictions that have taken place in various towns
and cities in Zimbabwe in the context of ‘Operation Murambatsvina’ (‘Operation
Restore Order’ or ‘Operation’) constitute crimes against humanity as defined in the
Statute of the International Criminal Court2 (hereinafter ‘the Statute’).
14. Zimbabwe is not party to the Statute. Therefore, according to Article 12 of the
Statute,3 and given that nationality-based jurisdiction thereunder is extremely
unlikely, it is assumed herein the International Criminal Court (hereinafter ‘the
Court’) does not already have jurisdiction over alleged crimes committed on the
territory of Zimbabwe. Nevertheless, the Court may still exercise its jurisdiction if,
according to Article 13 (b) of the Statute, ‘[a] situation in which one or more of
such crimes appears to have been committed is referred to the Prosecutor by the
Security Council acting under Chapter VII of the Charter of the United Nations’;
this occurred in 2005 with regard to the situation in the Sudan.4
15. For the Security Council to refer a case to the Court acting under Chapter VII, it
must first determine that a ‘threat to the peace, breach of the peace or act of
aggression exists’ as required under Article 39 of the UN Charter. Such a
determination constitutes a prerequisite for the activation of Chapter VII. An
overview of prior Security Council practice demonstrates that there have been
situations where it has found certain human rights violations to constitute a threat to
international peace and security. For example, in 1991 the Security Council

2 Rome Statute for the Establishment of an International Criminal Court (adopted 17 July 1998, entered
into force 1 July 2002) UN Doc A/Conf 183/9; (1998) ILM 999 2187 UNTS 90 [hereinafter ‘Statute’ or
‘Rome Statute’].

3 ibid at Article 12, which reads as follows:

1. A State which becomes a Party to this Statute thereby accepts the jurisdiction of the Court with respect
to the crimes referred to in Article 5.

2. In the case of Article 13, paragraph (a) or (c), the Court may exercise its jurisdiction if one or more of
the following States are Parties to this Statute or have accepted the jurisdiction of the Court in accordance
with paragraph 3: (a) The State on the territory of which the conduct in question occurred or, if the crime
was committed on board a vessel or aircraft, the State or registration of that vessel or aircraft; (b) The
State of which the person accused of the crime is a national.

3. If the acceptance of a State which is not a Party to this Statute is required under paragraph 2, that State
may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with
respect to the crime in question. The accepting State shall cooperate with the Court without any delay or
exception in accordance with Part 9.

4 UNSC Res 1593 (31 March 2005) UN Doc S/RES/1593.

determined that the consequences of the repression of the Kurdish population in
Northern Iraq, in particular the refugee flows and cross-border incursions,
constituted a threat to the peace.5 In the case of Somalia, the Security Council
determined that ‘the magnitude of the human tragedy … constitutes a threat to
international peace and security’.6 Furthermore, both in the cases of Rwanda and
Eastern Zaire, the Security Council found the threat to the peace in the ‘magnitude
of the humanitarian crisis’.7 It should be emphasised, however, that all these
findings were in the context of internal armed conflicts. The Security Council itself
has stated that ‘the deliberate targeting of civilian populations or other protected
persons and the committing of widespread violations of international humanitarian
law and human rights law in situations of armed conflict may constitute a threat to
international peace and security’.8 Nevertheless, there have been examples where
the Security Council has exercised its Chapter VII powers in the context of human
rights violations in the absence of an internal armed conflict: with both Southern
Rhodesia9 and South Africa, the Security Council found that a threat to international
peace and security existed despite no actual armed conflict,10 although other
motivating factors animated the passing of these resolutions.11
16. Therefore, although the lack of armed conflict makes it unlikely that the Security
Council might consider the situation in Zimbabwe to constitute a threat to the
peace, such a finding would not be unprecedented.

Rome Statute of the International Criminal Court

17. Article 7 of the Rome Statute provides that:

5 UNSC Res 688 (5 April 1991) UN Doc S/RES/688.

6 UNSC Res 794 (3 December 1992) UN Doc S/RES/794.

7 UNSC Res 929 (22 June 1994) UN Doc S/RES/929 (Rwanda); UNSC Res 1078 (9 November 1996)
UN Doc S/RES/1078 (Zaire).

8 UNSC Res 1296 (19 April 2000) UN Doc S/RES/1296; UNSC Res 1314 (11 August 2000) UN Doc
S/RES/1314.

9 UNSC Res 217 (20 November 1965) UN Doc S/RES/217; UNSC Res 221 (9 April 1966) UN Doc
S/RES/221.

10 UNSC Res 418 (4 November 1977) UN Doc S/RES/418.

11 For an overview of Security Council practice, see J Frowein and N Krisch ‘Article 39’ in B Simma
(ed) The Charter of the United Nations, A Commentary (2nd edn Oxford University Press Oxford 2002)
717–29.

(1) For the purpose of this Statute, “crime against humanity” means any of the following acts
when committed as part of a widespread or systematic attack directed against any civilian
population, with knowledge of the attack:

[…]

(e) Deportation or forcible transfer of population;

[…]

(2) For the purpose of paragraph 1:

[…]

(e) “Deportation or forcible transfer of population” means forced displacement of the
persons concerned by expulsion or other coercive acts from the area in which
they are lawfully present, without grounds permitted under international law;
18. To determine whether there has been a violation of Article 7 of the Rome Statue, a
number of questions need to be answered in the affirmative. These are:
18.1. Whether there was, in fact, a ‘deportation or forcible transfer of population’ in
Zimbabwe in Operation Murambatsvina, through ‘expulsion or other coercive
acts’.
18.2. Whether the persons subject to the ‘deportation or forcible transfer’ were
‘legally present’ in the area from which they were removed;
18.3. Whether the acts in question constituted a ‘widespread or systematic attack
directed against any civilian population’?
18.4. Whether there are grounds under international law under which the
deportation or forcible transfer could take place.

19. This opinion will examine each of these questions in turn.

About the Authorities and Methodology Used in this Opinion

20. The expansive rule of interpretation regarding the Rome Statute’s definition of
‘crimes against humanity’ and ‘deportation or forcible transfer’, as well as the
understanding thereof as a codification of customary international law, were
articulated by jurist Rodney Dixon, and were respected throughout the drafting of
this opinion:

The desire to prohibit only crimes “which either by their magnitude and savagery or by
their large number or by the fact that a similar pattern was applied … endangered the
international community or shocked the conscience of mankind” is, without dispute, the
essential feature of crimes against humanity. It should guide the interpretation of the
elements of these crimes.

Consequently, the definition of crimes against humanity contained in article 7 of the Statute
accords with the traditional conception of crimes against humanity under customary
international law. The long line of recognised authorities and practices that underpin the
customary law position must be drawn upon to interpret the elements of crimes against
humanity under the Statute.12

21. Although the case law of the International Criminal Tribunal for the Former
Yugoslavia (hereinafter ‘ICTY’) and the International Criminal Tribunal for
Rwanda (hereinafter ‘ICTR’) (hereinafter collectively referred to as the ‘ad hoc
tribunals’) is extensively referred to throughout this opinion, there are certain
institutional and practical differences between the ad hoc tribunals and the Court
which merit brief consideration.
22. The first consideration is the difference between the subject matter jurisdiction of
the ad hoc tribunals and the Court. Article 5 of the ICTY Statute requires a nexus
between the crime and ‘an armed conflict, whether international or internal in
character’ and ‘does not require explicitly that the crime be part of a widespread or
systematic attack’13, both of which differ from the Statute. Article 3 of the ICTR
Statute requires that the crime be committed ‘on national, political, ethnic, racial or
religious grounds’,14 whereas such requirement is only demanded under customary
international law for the crime of persecution and is not required under the Statute.
This difference in emphasis should be borne in mind when considering judgements
from the ad hoc tribunals.
23. Article 7 of the Statute clearly requires, as a component of crimes against humanity,
that the acts be done ‘pursuant to or in furtherance of a State or organizational
policy to commit such attack’.15 However, the Tadic decision of the ICTY observed
that there was no particular motive requirement for crimes against humanity in

12 R Dixon ‘Crimes Against Humanity’ in O Triffterer (ed) Commentary on the Rome Statute of the
International Criminal Court, Observers; Notes, Article by Article (Nomos Verlagsgesellschaft Baden-
Baden 1999) 123.

13 Statute of the International Criminal Tribunal for the former Yugoslavia UNSC Res 827 (25 May
1993), UN Doc S/RES/827 (1993).

14 Statute of the International Criminal Tribunal for Rwanda, UNSC Res 955 (8 November 1994) UN
Doc S/RES/955 (1994).

15 Article 7(2)(a) of the Statute.

general (the act of ‘persecution’ has a motive requirement built into its definition).16
Furthermore, subsequent to the adoption of the Rome Statute, the Appeals Chamber
of the ICTY in the Kunarac judgement held that the policy component was not,
from the standpoint of customary international law, an element of crimes against
humanity at all.17
24. One can therefore reasonably infer that the case law of the ad hoc tribunals has
gravitated towards broadening the concept of crimes against humanity and has
even, on some aspects, appeared to diverge from the text of Article 7 of the Rome
Statute.18 The distinction is immaterial for the case at hand, given that the
Government of Zimbabwe’s statements clearly demonstrate that a policy existed to
perform the acts in question; however, given that the International Criminal Court
and the ad hoc tribunals do not necessarily share a common understanding as to the
nature of crimes against humanity, we caution against excessive reliance on the case
law of the ad hoc tribunals.

Facts

25. The facts cited in the following paragraphs are based, unless otherwise indicated,
both on the ‘Report of the Fact-Finding Mission to Zimbabwe to Assess the Scope
and Impact of Operation Murambatsvina’19 by the UN Special Envoy on Human
Settlements Issues in Zimbabwe, Mrs Anna Kajumulo Tibaijuka, and the Response
of the Zimbabwean Government thereto, issued in a press release on August 2005.20
26. The first official announcement that a comprehensive ‘operation’ was underway in
Zimbabwe came in a speech by the Chairperson of the Government-appointed
Harare Commission, Ms Sesesai Makwavarara at the Harare Town House on 19
May 2005. She characterized it as a ‘programme to enforce bylaws to all forms of

16 Prosecutor v Tadic (Judgement) ICTY IT-94-1-A Ch (15 July 1999) [hereinafter Tadic].

17 Prosecutor v Kunarac (Judgement) ICTY IT-96-23, IT-96-23/I-A (22 February 2001) [98].

18 W Schabas An Introduction to the International Criminal Court (2nd edn Cambridge University Press
Cambridge 2004) 45–46.

19 A Kajumulo Tibaijuka (UN Special Envoy on Human Settlements Issues in Zimbabwe ‘Report of the
Fact-Finding Mission to Zimbabwe to assess the Scope and Impact of Operation Murambatsvina’ (United
Nations Human Settlement Programme) (31 October 2005)
http://www.unhabitat.org/documents/ZimbabweReport.pdf [hereinafter ‘Report’].

20 Government of Zimbabwe ‘Response by Government of Zimbabwe to the Report by the UN Special
Envoy on Operation Murambatsvina/Restore Order’

http://www.zimfa.gov.zw/speeches/president/UNresp.pdf (31 October 2005) [hereinafter ‘Response’].

illegal activity’ and said it would be enforced ‘in conjunction with Zimbabwe
Republican Police’. Five days later, the City of Harare issued a notice indicating to
the people of the Greater Harare area that persons who had erected illegal structures
should demolish them by 20 June 2005. There is no evidence that advance notice
was given in other cities in Zimbabwe to which the Operation was extended. On 25
May 2005, only a few days after the notice appeared, and in complete disregard of
the deadline announced, a massive military-style operation started.21
27. The Operation started in the capital, Harare, but was quickly extended to practically
all urban centres, including Bulawayo, Chinhoyi, Gweru, Kadoma, Kwe Kwe,
Marondera and Mutare.22
28. According to the Government of Zimbabwe the Operation had been undertaken,
inter alia, for the following purposes:

a) to stem disorderly or chaotic urbanisation and the problems that
hinder the Government and local authorities from enforcing national and
local authority by-laws from providing service delivery, water,
electricity, sewage and refuse removal;

b) to minimise the threat of major disease outbreaks due to
overcrowding and squalor;

c) to stop economic crimes especially illegal black market transactions
in foreign currency;

d) to eliminate the parallel market and fight economic sabotage;

e) to reorganise micro-, small and medium enterprises;

f) to reduce high crime levels by targeting organized crime syndicates;

g) to arrest social ills among them prostitution which promotes the
spread of HIV/AIDS and other communicable diseases;

21 ibid 12.

22 ‘Zimbabwe’s Operation Murambatsvina: The Tipping Point?’

http://www.crisisgroup.org/library/documents/Africa/souther_africa/097_zimbabwe_s_operation_murambatsvina_the_tipping_point.pdf (31 October 2005) [hereinafter ‘International Crisis Group’] 1.

h) to stop the hoarding of consumer commodities, and other
commodities in short supply; and

i) to reverse the environmental damage and threat to water sources
caused by inappropriate and unlawful urban settlements.23

29. Irrespective of whether the above justifications were the real motivations behind the
Operation or not, or whether, for example, the Operation was an act of retribution
against areas known by the Government to have voted for the opposition during the
recent presidential and parliamentarian elections,24 it has been established that the
Operation was initially targeted at street vendors and those operating in the informal
urban economy.25 Also, it rapidly extended to the demolition of informal and formal
settlements, and small and medium enterprises countrywide.26
30. Official government figures released on 7 July 2005 revealed a total of 92 460
housing structures that had been demolished directly affecting 133 534
households.27 At the same time, the structures of 32 538 micro-, small and medium-
sized enterprises were demolished. Based on average household size derived from
the 2002 census, and authoritative studies on the informal economy, the population
having lost their homes can be estimated at 569 685 and those having lost their
primary source of livelihood at 97 614.28 This present opinion only considers the
lawfulness of the situation of those actually deprived of their households.
31. However, the Government of Zimbabwe, in its Response to the Report of the UN
Envoy, denies the findings contained therein. First, it states that the persons made
temporarily homeless in the major cities were the same persons placed in transit
centres visited by the UN Envoy. The numbers of households in Transit Centres

23 Response (n 20) 15–16.

24 Report (n 19) 20, International Crisis Group (n 22) 4–5. However, the Government of Zimbabwe
claims that: Contrary to the allegations by its critics that the operation targeted opposition supporters, the
exercise has also affected ZANU PF supporters, war veterans and civil servants including members of
the uniformed forces. Response (n 20) 20.

25 Report (n 19) 31.

26 ibid.

27 For the purposes of the Report (n 19) 32 (fn 46), households include conventional family structures,
multi-generational and/or extended family structures and individuals. The average family size has been
taken to be 4.2 persons.

28 Report (n 19) 32. Crisis Group’s own extensive research, including inside Zimbabwe, has unearthed no
basis for disagreement with UN Envoy’s findings.

were as follows: Harare 1,077; Bulawayo 892; and Mutare 726.29 Second, it states
that most of the structures removed were one-room structures, which were
extremely small in surface area. It therefore argues that, they could not have been
housing an average of five people, the number used in the Report and extrapolated
to arrive at the final figure of 700,000 people deprived of their households.30
32. Institutionally, the Operation was conducted by central Government authorities,
including the military.31 The demolitions were conducted as a national police and
military exercise.32 The operation was still underway as the UN Mission left the
country.33

Mens Rea

33. The present opinion does not deal with the criminal responsibility, if any, of
specific or identifiable individuals; thus, the mens rea requirements for a conviction
under international criminal law will only be discussed in general terms.
34. In order for an individual to be criminally responsible for crimes against humanity,
in the case under question for forcible transfer of population, he or she must have
committed the relevant act with knowledge of the attack. The element of knowledge

should not be interpreted as requiring proof that the perpetrator had knowledge of all
characteristics of the attack or the precise details of the plan or policy of the State or
organization. In the case of an emerging widespread or systematic attack against a civilian
population, the intent clause of the last element indicates that this mental element is
satisfied if the perpetrator intended to further such an attack.34

The perpetrator must therefore have actual or constructive knowledge of the broader
context of the attack, meaning that he or she must know that his or her act is part of
a widespread or systematic attack on a civilian population and pursuant to some

29 Response (n 20) 28–29.

30 ibid 21.

31 Report (n 19) 31.

32 ibid 67.

33 It has been argued that the Operation remains ongoing: Carole Gombakomba, ‘Zimbabwe Carries Out
New Evictions in Harare Township’ (Voice of America)

http://www.voanews.com/english/Africa/Zimbabwe/2005-10-07-voa47.cfm (31 October 2005).

34 ‘Elements of Crimes’ adopted by the Assembly of States Parties to the International Criminal Court (9
September 2002) ICC Doc ICC-ASP/1/3 [hereinafter ‘Elements of Crimes’] 518.

kind of policy or plan.35 The accused need not necessarily share the purposes or
goals behind the broader attack.36

35. The individual’s actions themselves need not be widespread or systematic,
providing that they form part of such an attack. Indeed, the commission of a single
act—such as one murder—can, in the context of a broader campaign against the
civilian population, constitute a crime against humanity.37
36. It should be noted that under the Statute, a person need not be the actual perpetrator
of a crime against humanity in order to bear individual criminal responsibility.
Under Article 25 of the Statute,38 a person can be liable for punishment if, for
example, they have ordered the commission of the crime or assisted in its
commission. In addition, Article 28 establishes the principle of ‘superior
responsibility’, whereby military commanders or other high-ranked officials may be
held accountable for the acts or omissions of those under their military command
who committed crimes under the jurisdiction of the Court and either knew or ought
to have known that such crimes were about to be committed or failed to take all
necessary and reasonable measures within their power to prevent or repress their
commission. 39

35 Prosecutor v Rutaganda (Judgement) ICTR-96-3 (6 December 1999) [71], Prosecutor v Musema
(Judgement) ICTR 96-13-A (27 January 2000) [206].

36 Prosecutor v Semanza (Judgement) ICTR-97-20-T (15 May 2003) [332].

37 Dixon (n 12) 125.

38 Rome Statute (n 2) Article 25 reads as follows:

1. The Court shall have jurisdiction over natural persons pursuant to this Statute.

2. A person who commits a crime within the jurisdiction of the Court shall be individually responsible
and liable for punishment in accordance with this Statute.

3. In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a
crime within the jurisdiction of the Court if that person: (a) Commits such a crime, whether as an
individual, jointly with another or through another person, regardless of whether that other person is
criminally responsible; (b) Orders, solicits or induces the commission of such a crimes which in fact
occurs or is attempted; (c) For the purpose of facilitating the commission of such a crime, aids, abets or
otherwise assists in its commission or its attempted commission, including providing the means for its
commission; (d) In any other way contributes to the commission or attempted commission of such a
crime by a group of persons acting with a common purpose. Such contribution shall be intentional and
shall either: (i) Be made with the aim of furthering the criminal activity or criminal purpose of the group,
where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or
(ii) Be made in the knowledge of the intention of the group to commit the crime; […] (f) Attempts to
commit such a crime by taking action that commences its execution by means of a substantial step, but
the crime does not occur because of circumstances independent of the person’s intentions. However, a
person who abandons the effort to commit the crime or otherwise prevents the completion of the crime
shall not be liable for punishment under this Statute for the attempt to commit that crime if that person
completely and voluntarily gave up the criminal purpose.

39 Rome Statute (n 2) Article 28 reads as follows:

37. The criminal responsibility of each individual who may eventually be indicted must
be determined on the basis of evidence not all of which is currently available and
which is beyond the scope of this opinion.

In addition to other grounds of criminal responsibility under this Statute for crimes within the jurisdiction
of the Court: (a) A military commander or person effectively acting as a military commander shall be
criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or
her effective command and control, or effective authority and control as the case may be, as a result of
his or her failure to exercise control properly over such forces, where: (i) That military commander or
person either knew or owing, to the circumstances at the time, should have known that the forces were
committing or about to commit such crimes; and (ii) That military commander or person failed to take all
necessary and reasonable measures within his or her power to prevent or repress their commission or to
submit the matter to the competent authorities for investigation and prosecution. (b) With respect to
superior and subordinate relationships not described in paragraph (a), a superior shall be criminally
responsible for crimes within the jurisdiction of the Court committed by subordinates under his or her
effective authority and control, as a result of his or her failure to exercise control properly over such
subordinates, where: (i) The superior either knew, or consciously disregarded information which clearly
indicated, that the subordinates were committing or about to commit such crimes; (ii) The crimes
concerned activities that were within the effective responsibility and control of the superior; and (iii) The
superior failed to take all necessary measures within his or her power to prevent or repress their
commission or to submit the matter to the competent authorities for investigation and prosecution.

Structure of the Opinion

Having discussed the preliminary considerations, this present opinion will examine the
evictions carried out under the Operation in light of the definitions of

a) ‘Forcible transfer of population’, to the extent to which these were:1)
coerced;
b) Whether the population so transferred was ‘lawfully present’;
c) The extent to which these attacks were ‘widespread or systematic’,
thus constituting a crime against humanity under Article 7 of the
Statute;

Should a forcible transfer under the Statute be found to exist under the facts as
described supra, a separate discussion of whether there are circumstances under
international law which would otherwise render such forcible transfer lawful will
follow.

PART I: DEPORTATION OR FORCIBLE TRANSFER OF POPULATION

38. Article 7 (2) (d) provides that in order for an act to be considered forcible transfer
of population it needs to be:
i) a forced displacement of the persons concerned by expulsion or other coercive
acts;
ii) from the area in which they are lawfully present;
iii) without grounds permitted under international law.
39. This section of the opinion will examine whether there was in fact a deportation or
forcible transfer of population as defined in the Statute.
40. Article 7 of the Statute, which defines the concept of ‘crimes against humanity’ and
enumerates various individual acts that fall under that definition, excludes, by its
silence, the requirements that the acts in question take place during armed conflict
and occur on discriminatory grounds.40 This definition therefore differs from the
definition of ‘crimes against humanity’ included in the Statutes of the ad hoc
tribunals.41
41. Article 7 of the Statute lists ‘deportation or forcible transfer of population’, which
under subparagraph (2)(d) thereof is defined as ‘forced displacement of the persons
concerned by expulsion or other coercive acts from the area in which they are
lawfully present, without grounds permitted under international law’.42
42. It is imperative that the concepts of deportation and forcible transfer of the
population be properly distinguished: the former emphasises the ‘forced removal of
people from one country to another’; the latter, the ‘compulsory movement of
people from one area to another within the same State’.43 The argument considered
herein proceeds on the observation that nothing in the facts, discussed above,

40 CK Hall in R Dixon ‘Crimes Against Humanity’ in O Triffterer (ed) Commentary on the Rome Statute
of the International Criminal Court, Observers; Notes, Article by Article (Nomos Verlagsgesellschaft
Baden-Baden 1999) 123.

41 See para 22 above.

42 Rome Statute (n 2) Article 7.

43 MC Bassiouni Crimes Against Humanity in International Criminal Law (2nd edn Kluwer The Hague
1999) 312.

indicates that the people affected by the act in question were specifically
transported across international boundaries. It is therefore the specific question of
whether the acts in question constitute a forcible transfer that will be examined.
43. Forced population exchanges have been lawfully executed in the past: Greece and
Turkey, after the First World War, had actually been required to do so by the Treaty
of Lausanne,44 and ethnic Germans and German nationals were expelled from
countries in Central and Eastern Europe after the Second World War.45 The crime
against humanity of ‘deportation’ made its first appearance as an international crime
in the Charter for the Nuremburg Trials, in which Article 6(c) listed a series of acts
constituting crimes against humanity:

murder, extermination, enslavement, deportation, and other inhumane acts committed
against any civilian population, before or during the war, or persecutions on political,
racial, or religious grounds in execution of or in connection with any crime within the
jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country
where perpetrated.46

The emergence of the specific crime against humanity of ‘forcible transfer of
population’ was first codified in Article II(c) of the 1973 Apartheid Convention.47
Internal displacement is also prohibited within international humanitarian law,
where the forcible transfer of a population during wartime constitutes a war crime
under paragraphs 2(b)(viii) and (e)(viii)) of Article 8 of the Statute, as well as the
Fourth Geneva Convention and the Second Additional Protocol thereto.48

44. Although the latter two instruments find exclusive application during international
or non-international armed conflict, the principles elucidated therein may be useful
when considering the analogous crime against humanity during peacetime. In its

44 Treaty of Peace between the Allied Powers and Turkey (1923), 28 LNTS 11 [hereinafter ‘Treaty of
Lausanne’].

45 Hall (n 40) 135.

46 Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, 8
August 1945, Annex, 59 Stat. 1544; 82 UNTS 279; reprinted in 39 AJIL 257 (Supp. 1945) [hereinafter
‘Nuremburg Charter’ or ‘IMT Charter’]. [Emphasis added.]

47 International Convention for the Suppression and Punishment of the Crime of Apartheid (opened for
signature Nov. 30, 1973, entered into force Jul. 18, 1976), 1015 UNTS 243 [hereinafter ‘Apartheid
Convention’].

48 Geneva Convention [IV] relative to the Protection of Civilian Persons in Time of War (opened for
signature 12 August 1949, entered into force 21 October 1950), 75 UNTS 287, Article 49, Protocol
Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of
Non-International Armed Conflicts (opened for signature 8 June 1977, entered into force 7 December
1978), 1125 UNTS 609, Article 17(1).

Rule 61 Decision in Nikolic,49 rendered on 20 October 1995, the Trial Chamber of
the ICTY declared that deportation could be qualified as both a ‘grave breach of the
Geneva Conventions and as a crime against humanity’. The Trial Chamber held
that,

[u]nder the supervision and on the orders of the accused…a large number of detainees are
said to have been transferred from Suzica camp to Batkovic during the summer of 1992.
Dragan Nikolic is said to have organised the transfers, calling out detainees from a list of
names and telling them that they were to be exchanged for Serbian prisoners. In actual fact,
the detainees were transferred to Batkovic camp; they were forced to travel by bus with
their heads down, their hands behind their heads. They were beaten and forced to sing
‘patriotic Serbian’ songs. At Batkovic camp conditions were similar to those at Suzica
camp, if not worse…the Chamber considers that Dragan Nikolic may have committed
grave breaches of the Geneva Conventions of 1949—in particular of Convention IV—
which fall under the Tribunal’s jurisdiction pursuant to Article 2 of the Statute. [The]
Chamber, however, also considers that the same set of facts could be characterised as
deportation and, accordingly, come under Article 5 of the Statute.50

45. Despite the differences between the Rome Statute and the constitutive statutes of
the ad hoc tribunals, the definitions enumerated in the Statute are considered to
codify customary international law on the definition of crimes against humanity.51
The Statute makes no further distinction between the crimes against humanity of
‘deportation’ and ‘forcible transfer of population’. Jurist Christopher Hall has stated
that, ‘given the common distinction between deportation as forcing persons to cross
a national frontier and transfer as forcing them to move from one part of the country
to another without crossing a national frontier, and given the basic presumption that
no words in a treaty should be seen as surplus, it is likely that the common
distinction was intended’.52 The terms, ‘forcible’ and ‘forced’, under this
interpretation, should be given a broad reading consistent with the purpose of the
Statute to include any form of coercion which leads to the departure of people from
the area where they are located.53 The Krstic decision of the Trial Chamber of the
ICTY also stated that ‘deportation presumes transfer beyond State borders, whereas
forcible transfer relates to displacement within a State’ under customary
international law.’54 In that case, about 25 000 Bosnian Muslim civilians were
forcibly bussed outside the enclave of Srebenica to the territory under Bosnian

49 Prosecutor v Nikolic, ICTY IT-94-2-R61 (20 October 1995) Trial Chamber I.

50 ibid at para 23.

51 A Cassese, ‘Crimes Against Humanity’ in Cassese, Gaeta, Jones (eds) The Rome Statute of the
International Criminal Court (Oxford University Press Oxford 2002) vol 1 353, 370.

52 Hall (n 40) 136.

53 ibid.

54 Prosecutor v Krstic, ICTY IT-98-33 (2 August 2001) [531].

Muslim control, but within Bosnia-Herzegovina. The transfer was compulsory and
was carried out ‘in furtherance of a well organised policy whose purpose was to
expel the Bosnian Muslim population from the enclave’.55 The Chamber concluded
that the civilians transported from Srebenica were not subjected to deportation but
to forcible transfer, a crime against humanity.
46. Hall argues further that, ‘considering the recent history of international
displacement of people, “expulsion or other coercive acts” must include the full
range of coercive pressures on people to flee their homes, including death threats,
destruction of their homes, and other acts of persecution, such as depriving
members of a group of employment, denying them access to schools and forcing
them to wear a symbol of their religious identity.’56
47. In light of the foregoing, it is reasonable to add that, when pertinent, any statements
made by a municipal or international court, official government documents, treaties,
conventions or the documents of international organisations concerning
‘deportation’ can assist, as the case may be and, mutatis mutandis, in further
understanding the crime against humanity of ‘forcible transfer of population’.

Forcible Transfer in the ‘Elements of Crimes’

48. The ‘Elements of Crimes’, adopted by the Assembly of States Parties to the
International Criminal Court on 18 September 2002, require that the following
elements exist for the crime against humanity of ‘deportation or forcible transfer of
population’ to be established:

1. The perpetrator deported or forcibly transferred, without grounds permitted under
international law, one or more persons to another State or location, by expulsion or
other coercive acts.

2. Such person or persons were lawfully present in the area from which they were so
deported or transferred.

3. The perpetrator was aware of the factual circumstances that established the
lawfulness of such presence.

4. The conduct was committed as part of a widespread or systematic attack directed
against a civilian population.

55 ibid [527].

56 Hall (n 40) 162.

5. The perpetrator knew that the conduct was part of or intended the conduct to be part
of a widespread or systematic attack directed against a civilian population.57

49. Although the ‘Elements of Crimes’ adopted by the Assembly of States Parties are
not in and of themselves binding,58 nor in any way to be construed as modifying the
Rome Statute, throughout the drafting process for the ‘Elements of Crimes’, great
care was taken that the intent of the Statute not be modified when adopting the
Elements of Crimes. Although the Vienna Convention on the Law of Treaties59
declares in Article 31(1) that a treaty provision should be interpreted ‘in accordance
with the ordinary meaning to be given to the terms of the treaty in their context and
in the light of its object and purpose’, the Elements of Crimes may be of use, as
Article 31(3)(a) of the Vienna Convention also allows for a ‘subsequent agreement
between the parties regarding the interpretation of the treaty or the application of its
provisions’ to be taken into account in interpreting a treaty; Article 31(3)(c)
similarly provides for ‘subsequent practice in the application of the treaty’ to be
taken into account. Important considerations enumerated in the Rome Statute are
emphasised in the ‘Elements of Crimes’, namely, that the persons deported or
forcibly transferred were lawfully present in the area from which they were so
deported or transferred and that the perpetrator was aware of the factual
circumstances that established the lawfulness of such presence.’ [emphasis added]
50. In light of the foregoing, it is therefore reasonable to conclude that Operation
Murambatsvina, as described herein, could fulfil the requirements under Article
7(2)(d) of the Rome Statute of a ‘forcible transfer of population’.

PART II: LEGALITY OF THE EVICTIONS UNDER ZIMBABWEAN LAW

51. This part of the opinion addresses the question of whether the persons subject to
deportation and forcible transfer in Operation Murambatsvina were ‘lawfully
present’ in the area from which they were removed.
52. In order to fully answer this third question, it must be further broken down into
three sub-questions:

57 Elements of Crimes (n 34) 118.

58 United Nations, http://www.un.org/News/facts/iccfact.htm (12 November 2005).

59 Vienna Convention on the Law of Treaties (adopted 22 May 1969, entered into force 27 January
1980), 1155 UNTS 331 [hereinafter ‘Vienna Convention’].

52.1. What is the meaning of ‘lawfully present’?
52.2. Were the persons subject to the deportation or forcible transfer lawfully
present under Zimbabwean law?
52.3. Assuming that the persons subject to the deportation or forcible transfer were
not lawfully present under Zimbabwean law, is that law compatible with
international law?

53. These questions will be dealt with in turn below.

The Meaning of ‘Lawfully Present’ In the Rome Statute

54. Article 7(2)(d) of the Rome Statute provides that ‘[d]eportation or forcible transfer
of population’ means ‘forced displacement of the persons concerned by expulsion
or other coercive acts from the area in which they are lawfully present, without
grounds permitted under international law.’
55. This section considers the meaning of the term ‘lawfully present’. These words can
be interpreted as referring to:
55.1. Zimbabwean domestic law, exclusively;60
55.2. International law, exclusively;
55.3. Zimbabwean domestic law, to the extent that it is compatible with
general international law; or
55.4. Zimbabwean domestic law, to the extent that it is compatible with
Zimbabwe’s specific treaty obligations under international law.

56. This section will conclude that the fourth interpretation, namely, that ‘lawfully
present’ should be taken to refer to Zimbabwean domestic law to the extent that it is
consistent with Zimbabwe’s international obligations, is correct. This conclusion
was reached by examining how the European Court of Human Rights (hereinafter

60 This appears to be the interpretation favoured by Mrs Kajumulo Tibaijuka in the Report, 64–66. If the
evictees were not lawfully present under Zimbabwean domestic law, this interpretation of Article 7(2)(d)
would, of course, negate the argument that Operation Murambatsvina constituted a crime against
humanity.

‘European Court’), the African Commission on Human and Peoples’ Rights
(hereinafter ‘African Commission’) and the United Nations Human Rights
Committee (hereinafter ‘Human Rights Committee’) have interpreted similar
provisions in the European Convention on Human Rights, the African Charter on
Human and Peoples’ Rights, and the International Covenant on Civil and Political
Rights, respectively. Although divergent approaches are evident, all of these bodies
take the view that the words ‘lawfully’, when appearing in instruments such as
these, should not be taken to refer solely to domestic law – an interpretation that
would, after all, accord the State party carte blanche to behave as it liked, provided
that it did so in accordance with pre-established domestic rules.

The European Court of Human Rights

57. Article 5 of the European Convention on Human Rights contains numerous
provisions in which the word ‘lawful’ is used. By way of illustration, Article 5(1)
provides that: ‘Everyone has the right to liberty and security of the person. No one
shall be deprived of his liberty save in the following cases and in accordance with a
procedure established by law: (a) the lawful detention of a person after conviction
by a competent court […]’61
58. In interpreting the word ‘lawful’ in these provisions, the European Court of Human
Rights is faced with a problem analogous to that encountered in interpreting Article
7(2)(d) of the Rome Statute, that is, should ‘lawful’ be taken to refer solely to
domestic law, or is there another possible interpretation?
59. In Amuur v France62 the European Court held that: ‘Where the “lawfulness” of
detention is in issue, including the question whether “a procedure prescribed by
law” has been followed, the Convention refers essentially to national law and lays

61 The remainder of Article 5 provides for the following cases: (b) the lawful arrest or detention of a
person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any
obligation prescribed by law; (c) the lawful arrest or detention of a person effected for the purpose of
bringing him before the competent legal authority of reasonable suspicion of having committed and
offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing
after having done so; (d) the detention of a minor by lawful order for the purpose of educational
supervision or his lawful detention for the purpose of bringing him before the competent legal authority;
(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons
of unsound mind, alcoholics or drug addicts, or vagrants; (f) the lawful arrest or detention of a person
to prevent his effecting an unauthorized entry into the country or of a person against whom action is
being taken with a view to deportation or extradition.

62 (1996) 22 EHRR 533.

down the obligation to conform to the substantive and procedural rules of national
law, but it requires in addition that any deprivation of liberty should be in keeping
with the purpose of Article 5, namely to protect the individual from arbitrariness.’63
In other words, ‘these words do not merely refer back to domestic law … they also
relate to the quality of the law’.64
60. This interpretation of Article 5 has both procedural and substantive consequences
for the ‘quality’ of domestic law. Procedurally, the Court has insisted that:

Where deprivation of liberty is concerned it is particularly important that the general
principle of legal certainty be satisfied. It is essential that the conditions for
deprivations of liberty under domestic law be clearly defined and that the law itself be
foreseeable in its application, so that it meets the standard of “lawfulness” set by the
Convention, a standard that requires that all law be sufficiently precise to allow the
person—if need be, with appropriate advice—to foresee, to a degree that is reasonable
in the circumstances, the consequences which a given action may entail.65

61. In this area, the European Court has dealt with cases in which domestic law has
been found to be of insufficient procedural ‘quality’ either because it is
impermissibly vague66 or simply non-existent.67 The circumstances of Operation
Murambatsvina are somewhat different. There, legislation in the form of the
Regional Town and Country Planning Act 1976 (Chapter 29:12) (hereinafter
‘Planning Act’) and the Housing Standards Control Act 1972 (Chapter 29:08)
(hereinafter ‘Housing Act’) had been retained from the Rhodesian era. However,
according to the United Nations Special Envoy, this legislation was ‘mostly
ignored’ after independence.68 Furthermore, the Zimbabwean government had
adopted policies that directly contradicted these statutes, without engaging in the
necessary legislative reform, before relying on these statutes to justify the campaign
of evictions.69
62. These circumstances were, it is submitted, equivalent to the government of
Zimbabwe acting in accordance with statutory norms that were either ill-defined or
non-existent. In other words, in the face of legislation that was not enforced, and

63 ibid [50].

64 ibid.

65 Baranowski v Poland [2000] ECHR 120 [hereinafter Baranowski].

66 Hashman and Harrup v United Kingdom (2000) 30 EHRR 241.

67 Baranowski (n 65).

68 Report (n 19) 56.

69 ibid 24–25.

policies that directly contradicted such legislation, it cannot be said that the victims
of Operation Murambatsvina could reasonably have foreseen the consequences of
settling as they did. In the context of what the United Nations Special Envoy
describes as the ‘general deterioration of the rule of law’70 in Zimbabwe, it cannot
be said that the principle of legal certainty—itself an aspect of the rule of law—was
satisfied. If so, then the victims of Operation Murambatsvina cannot be said to have
been unlawfully present in the areas in which they had settled, as the government of
Zimbabwe alleges, which is tantamount to saying that they were lawfully present.
63. In these circumstances, a better course would have been for the Government of
Zimbabwe to have promulgated new legislation that was consistent with its own
policies, met its obligations under international law,71 and which recognised the
present position of the evictees of Operation Murambatsvina, thereby signalling a
return to the rule of law.
64. The European Court’s interpretation of ‘lawfulness’ in Article 5 of the European
Convention also has substantive consequences for domestic law. Even where a
national law is clear and has been complied with, a deprivation of liberty will not be
‘lawful’ if domestic law allows for arbitrary or excessive detention.72 Thus, in
Varbanov v Bulgaria73 the Court held that, in order for detention to be lawful under
Article 5(1)(e), it is necessary for less severe measures to have been considered. As
several commentators have noted, in assessing the ‘substantive’ lawfulness of such
laws under the Convention, the Court effectively engages in a proportionality
inquiry that recognises the right to liberty and security of the person, and balances
the interests of the State against that.74
65. This aspect of the European Court’s case law is important insofar as it demonstrates
the Court’s unwillingness to interpret ‘lawfulness’ in Article 5 of the Convention as

70 ibid 56.

71 As argued below in paragraphs 110–115, the Planning Act and Housing Acts are inconsistent with
Zimbabwe’s obligations under the International Covenant on Economic, Social and Cultural Rights
(adopted 16 December 1966, entered into force 3 January 1976) 993 UNTS 3 (ICESCR).

72 C Ovey & R White Jacobs and White, The European Convention on Human Rights (3rd edn Oxford
University Press Oxford 2002).

73 App 31365/96, Judgement of 5 October 2000.

74 R Clayton & H Tomlinson The Law of Human Rights (Oxford University Press Oxford 2000) 10. 93; J
Murdoch ‘Safeguarding the Liberty of the Person: Recent Strasbourg Jurisprudence’ (1993) 42 ICLQ
494.

referring solely to domestic law – an approach that would drain the right of
substantive content and reduce it to a purely formal requirement. However, it is
submitted that the Court’s judgements in this area are not otherwise relevant to the
correct interpretation of Article 7(2)(d) of the Rome Statute, given that this
provision does not establish a specific right and then demand that derogations from
that right must be ‘lawful.’ As such, it does not lend itself to the type of enquiry
employed by the European Court of Human Rights.

The African Commission on Human and Peoples’ Rights

66. The African Charter on Human and Peoples’ Rights likewise includes several
provisions that establish a right and then provide that derogations from that right are
permissible provided that they accord with ‘law.’ For instance, Article 10 thereof
provides that ‘every individual shall have the right to free association provided that
he abides by the law.’ In a similar vein, Article 9(2) states that ‘every individual
shall have the right to express and disseminate his opinions within the law.’75
67. In interpreting these provisions of the African Charter, the African Commission is
faced with a problem analogous to that encountered in interpreting Article 7(2)(d)
of the Rome Statute, that is, should ‘lawful’ be taken to refer solely to domestic
law, or is some other interpretation available?
68. The African Commission has chosen to interpret the term ‘lawful’ in light of what it
loosely terms ‘international standards’: a law which infringes upon a right will not
pass muster unless it accords with international human rights law.76 Thus in its
‘Resolution on the Right to Freedom of Association’ (1992) the African
Commission noted, inter alia, that ‘[t]he competent authorities should not override
constitutional provisions or undermine fundamental rights guaranteed by the
constitution and international standards.’77 Likewise, in the African Commission’s
‘Resolution on Freedom of Expression’ (2001), the Commission undertook to

75 See also African Charter Articles 6 (the right to liberty and security of the person); 8 (freedom of
conscience, the profession and free practice of religion); 12 (the right to freedom of movement); and 13
(the right to participate freely in the government of one’s country).

76 This appears to be the approach favoured by Kriangsak Kittichaisaree who states, with reference to
Article 7(2)(d) of the Statute, ‘[a]lthough lawfulness or otherwise of the presence is determined by
national law, that national law must also be measured against the yardstick of international law,’ K
Kittichaisaree International Criminal Law (Oxford University Press Oxford 2001) 109.

77 ACHPR /Res.5(XI)92 (9 March 1992) at Art 1.

‘develop and adopt … a Declaration of Principles of Freedom of Expression, drawn
from a comprehensive range of international standards and jurisprudence, to
elaborate and expound the nature, content and extent of the right to freedom of
expression provided for under Article 9 of the African Charter.’78
69. The African Commission has also followed this approach in its decisions. The
Commission has, for example, ‘established the principle that where it is necessary
to restrict rights, the restriction should be as minimal as possible and not undermine
fundamental rights guaranteed under international law.’79 Likewise, the
Commission has drawn upon its resolutions to find that ‘[g]overnment should avoid
restricting rights, and take special care with regard to those rights protected by
constitutional or international human rights law.’80
70. In essence, therefore, the African Commission interprets the term ‘law’ in the
African Charter as referring to domestic law to the extent that it is consistent with
international human rights law. Once again, this is important insofar as it indicates
the Commission’s unwillingness to interpret ‘lawfulness’ as referring solely to
domestic law. Questions can, however, be raised about the appropriateness of
extending this approach to the Rome Statute, given the African Commission’s
understanding of the nature of ‘internationally binding legal rules’. In particular,
‘international human rights law’ is poorly defined, and in fact, the African
Commission does not state whether it should be limited solely to those customary
and treaty norms which bind the State in question, or whether it should it be
extended to include all norms that are well-established in the international
community but which do not have the status of customary international law. The
latter notion does not appear to reflect any recognised source of international law
enumerated in Article 38 of the Statute of the International Court of Justice,81 which
is generally accepted as the definitive list of sources of international law.82 For

78 ACHPR /Res.54(XXIX)01 (7 May 2001) at Art 1.

79 Amnesty International, Comite Loosli Bachelard, Lawyers Committee for Human Rights, Association
of Members of the Episcopal Conference of East Africa v Sudan African Comm. Hum. & Peoples’
Rights, Comm. No. 48/90, 50/91, 89/93 (not dated).

80 Constitutional Rights Project and Civil Liberties Organisation v Nigeria African Comm. Hum. &
People’s Rights, Comm. No. 102/93 (not dated).

81 Statute of the International Court of Justice, as annexed to the Charter of the United Nations (26 June
1945) UKTS 67 (1946), Cmd 7015, art 38.

82 I Brownlie Principles of Public International Law (6th edn Oxford University Press Oxford 2003) 3.

these, and for other reasons, it is not recommended herein that the approach of the
African Commission be followed in interpreting Article 7(2)(d) of the Rome
Statute.

The United Nations Human Rights Committee

71. The International Covenant on Civil and Political Rights (ICCPR) likewise contains
several provisions that refer to ‘law’ and ‘lawfulness.’ Of particular relevance is
Article 12(1) of the ICCPR, which provides that: ‘[e]veryone lawfully within the
territory of a State shall, within that territory, have the right to liberty of movement
and freedom to choose his residence.’
72. In interpreting this provision, the Human Rights Committee has held that: ‘[t]he
question whether an alien is “lawfully” within the territory of a State is a matter
governed by domestic law, which may subject the entry of an alien to the territory
to restrictions, provided they are in compliance with the State’s international
obligations.’83 In this vein, the Human Rights Committee has held that an alien who
entered the State illegally, but whose status has been regularised, must be
considered to be lawfully within the territory for the purposes of Article 12.84 In
other words, for the Human Rights Committee, ‘lawful’ in the context of the ICCPR
refers to domestic law to the extent that it is consistent with that State Party’s
obligations under international law.
73. This approach has numerous advantages, and it is therefore reasonable to conclude
that it should be applied to Article 7(2)(d) of the Rome Statute. Firstly, it avoids the
obvious difficulties involved in interpreting ‘lawful’ as referring solely to domestic
law. As mentioned, such an interpretation would allow the State party to behave as
it liked, provided that it did so in accordance with pre-established laws. Secondly, it
specifies which international laws – those customary and treaty norms that bind the
particular State – should constrain domestic law. Thirdly, it accords with the well-
established principle that, from the perspective of an international body such as the
International Criminal Court, the international law that binds a particular State

83 UN Human Rights Committee ‘General Comment 27: the Rights of Minorities: Freedom of
Movement’ UN Doc CCPR/C/21/Rev.1/Add.5 Article 12.

84 UN Human Rights Committee Celepli v Sweden [1994] IIHRL 53 [9.2].

should prevail over its domestic law.85 In other words, in asking what constitutes
the law of Zimbabwe, it makes sense that, from the international perspective,
Zimbabwe’s international obligations should take precedence over its domestic law.
74. Since the Planning Act has not been enforced for a significant period, the doctrine
of abrogation through disuse might render it void. As no definite conclusion on this
question is expressed herein, and it will be discussed with the sole purpose of
drawing attention to the doctrine for further consideration by a specialised
Zimbabwean constitutional lawyer, it will be relegated to separate discussion in Part
IV. Should it be decided that the doctrine is still operable in Zimbabwe, then those
subject to the evictions were, arguably, ‘lawfully present’ since there was no
legislation prohibiting their settlement in the area.

PART III : ARE THE ACTS PART OF A WIDESPREAD OR SYSTEMATIC ATTACK
DIRECTED AGAINST A CIVILIAN POPULATION?

Widespread or Systematic attack

75. According to Article 7(1) of the Rome Statute, ‘[f]or the purpose of this Statute,
crime against humanity’ means any of the following acts when committed as part of
a widespread or systematic attack directed against any civilian population, with
knowledge of the attack: …(d) deportation or forcible transfer of population;’. The
phrase ‘for the purposes of this Statute’ signifies that the definition is intended to be
applicable only before the International Criminal Court. Such a definition might
extend beyond the Court’s practice only insofar as it might contribute to the
evolution of customary international law. Therefore, our analysis will be strictly
limited to the above definition, irrespective of whether or not it is broader or
narrower in some respects from the one under customary international law.
76. This section of this present opinion aims to determine whether ‘Operation
Murambatsvina’ was committed as part of a widespread or systematic attack against
a civilian population, thus falling under the aegis of the Article 7 definition. This
analysis will be based on the presumption that the findings of the UN Envoy are

85 Vienna Convention (n 59) Art 27: a State Party ‘may not invoke the provisions of its internal law as
justification for its failure to perform a treaty.’

valid insofar as the extent of the Operation and the way it was conducted are
concerned.
77. To conclude whether or not a crime against humanity has taken place, it must first
be determined whether there was an attack against a civilian population. We must
therefore examine all the constituent elements of the notion of ‘attack’.
78. Paragraph 2(a) of Article 7 of the Statute states that ‘attack directed against any
civilian population’ means a course of conduct involving the multiple commission
of acts referred to in paragraph 1 against any civilian population, pursuant to or in
furtherance of a State or organisational policy to commit such attack. The text
adopts the previously recognized threshold test of ‘widespread or systematic’
attack, but defines a simple ‘attack’ as well to assuage concerns about an
unqualified disjunctive test.86
79. As far as the ‘multiple commission of acts’ is concerned there is no requirement
that more than one of the enumerated acts, or combination thereof, be committed.87
This requirement either refers to more than one generic act, even though this is not
required, or more than a few isolated incidents that would fall under one or more of
the enumerated acts.88 Thus, in the case at hand, the numerous incidents of forcible
transfer of population suffice to establish the prerequisite of ‘multiple commission
of acts’.
80. It should be emphasised that the acts need not constitute a military attack.89 As the
ICTR held in Prosecutor v Akayesu: ‘An attack may also be non-violent in nature,
like imposing a system of apartheid, which is declared as a crime against humanity
in Article 1 of the Apartheid Convention of 1973, or exerting pressure on the
population to act in a particular manner, may come under the purview of an attack,
if orchestrated on a massive scale or in a systematic manner’.90 In addition, the acts

86 D Robinson ‘Defining “Crimes against Humanity” at the Rome Conference’ (1999) 93 AJIL 43, 49.

87 Dixon (n 12) 124.

88 ibid 158.

89 Elements of Crimes (n 34) 518.

90 Prosecutor v Akayesu (Judgement) ICTR-96-4-T (2 September 1998) [581], Prosecutor v Rutaganda
(n 35) [70], Prosecutor v Musema (n 35) [205]. See also Prosecutor v Semanza (n 36) [327], Prosecutor
v Kamuhanda (Judgement) ICTR-95-54A-T (22 January 2004) [661] where it was held that: ‘An attack
does not necessarily require the use of armed force, it could also involve other forms of inhumane
mistreatment of the civilian population.’

could constitute the attack itself. For example, the mass murder of civilians may
suffice as an attack against the civilian population. There is no requirement that a
separate attack against the same civilians, within which the murders were
committed, be proven.91 Therefore, in the case at hand, the acts of forcible transfer
of population may constitute the attack itself. It is not obligatory to prove that there
was a separate attack against the same civilians in the context where the forcible
transfer took place. The acts of forcible transfer fulfil two requirements of the
Statute. They constitute: a) the acts enumerated in Article 7; and b) the attack itself.
81. A ‘state or organizational policy’ is a necessary component of a ‘widespread or
systematic attack on the civilian population’ as defined in the Statute. It constitutes
a basis for ensuring that random or isolated acts are excluded from the scope of
crimes against humanity. The attack must be committed pursuant to or in
furtherance of this policy irrespective of whether the attack is widespread or
systematic.92 The Appeals Chamber of the ICTY, in Prosecutor v Kunarac held that
the existence of a policy or plan may be evidentially relevant in that it may useful in
establishing that the attack was directed against a civilian population and that it was
widespread or systematic, but that the existence of such a plan is not a separate
legal element of the crime, interpretation which was upheld by the ICTR as well.93
82. However, in the Statutes of the two ad hoc tribunals there was no requirement of
state or organisational policy required for a finding that a crime against humanity
had been committed. In contrast, as regards the International Criminal Court, the
existence of a policy element is provided for explicitly in the Rome Statute and will
be considered herein, notwithstanding critiques of whether this exceeds what is
required under international customary law and unduly restricts the notion of crimes
against humanity.94 According to the ‘Elements of Crimes’ adopted by the Court in
2002,95 it is understood that the policy to commit such attack requires that the State

91 Dixon (n 12) 124.

92 ibid 127.

93 Prosecutor v Kunarac et al (Judgement) IT-96-23&23/1 (12 June 2002) [98], Prosecutor v Semanza (n
36) [329], Prosecutor v Muhimana (Judgement) ICTR-95-1B-T (28 April 2005) [527], Prosecutor v
Gacumbitsi (Judgement) ICTR-2001-64-T (17 June 2004) [299], Prosecutor v Kamuhanda (n 90) [665],
Prosecutor v Kajelijeli (Judgement) ICTR-98-44A-T (1 December 2003) [872].

94 A Cassese ‘Crimes against Humanity’ in A Cassese P Gaeta and J Jones (eds) The Rome Statute of the
International Criminal Court: A Commentary (Oxford University Press Oxford 2002) 353, 375–76.

95 See section on Elements of Crimes (n 34) in paragraph 48 above.

or organisation actively promote or encourage such an attack against a civilian
population.96 A policy which targets a civilian population as the object of an attack
could also be implemented by State or organisational action.97 In the case at hand,
given that the execution of the Operation was announced by governmental officials
and was carried out by the police and military, there is no doubt that the State itself
actively promoted and implemented the Operation and, by extension and should the
Operation be deemed as such, an attack against the civilian population.
83. The term ‘civilian population’ has been defined as people who are not taking any
active part in the hostilities, including members of the armed forces who lay down
their arms and those persons placed hors de combat by sickness, wounds, detention
or any other cause. Where there are certain individuals within the civilian
population who do not come within the definition of civilians, this does not deprive
the population as a whole of its civilian character.98 It also follows that the specific
situation of a victim at the moment the crimes were committed, rather than their
status, must be taken into account in determining their standing as a civilian.99
84. In the instant case, the victims were predominantly civilians. The fact that some of
the victims, according to the Government of Zimbabwe, were members of the
uniformed forces100 is of no importance, because: a) the presence of non-civilians
within the civilian population does not alter the civilian character of the population;
and b) the members of the uniformed forces under these circumstances were not
exercising any military duties. It is therefore reasonable to conclude that their
specific situation was of a civilian character.
85. Furthermore, it should be noted that the heading of Article 7 does not incorporate an
element of discriminatory intent, in contrast with the ICTR Statute. Because of this,
it has been said with regard to the International Criminal Court that ‘[t]herefore,
although a policy will often involve an element of discrimination, the Prosecutor
does not have to prove that the perpetrator acted pursuant to or in furtherance of a

96 ibid 518.

97 ibid fn 6.

98 Prosecutor v Akayesu (n 90) [582], Prosecutor v Kajelijeli (n 93) [873], Prosecutor v Rutaganda (n
35) [72], Prosecutor v Kamuhanda (n 90) [667], Prosecutor v Musema (n 35) [207].

99 Prosecutor v Kajelijeli (n 93) [874], Prosecutor v Bagilishema (Judgement) ICTR-95-1A-T (7 June
2001) [79], Prosecutor v Blaskic (Judgement) IT-95-14 (3 March 2000) [214], Kamuhanda (n 90) [668].

100 Response (n 23) 20.

discriminatory policy in which the victims are selected on certain grounds, notably
because they are members of a particular group. The reasons underlying an attack
against a civilian population are thus irrelevant for qualifying conduct as a crime
against humanity under Article 7’.101 Thus, the verity of the allegations concerning
the targeting of supporters of the opposition is immaterial.
86. In addition, the term ‘population’ does not require that crimes against humanity be
directed against the entire population of a geographic territory or area. The victims
of the enumerated act need not necessarily share geographic or other defining
features with the civilian population that forms the primary target of the underlying
attack, but such characteristics may be used to demonstrate that the enumerated acts
form part of the attack.102 Thus, using the instant case as an example, it need not be
proven that the whole population of Harare was forcibly transferred in order to
establish the existence of a crime against humanity.
87. On the basis of the above analysis and the conclusion that the acts under question
constitute forcible transfer of population under the Rome Statute, it is reasonable to
conclude that Operation Restore Order constituted an attack against a civilian
population. However, we must further examine whether this attack was ‘widespread
or systematic’. This requirement is expressly stipulated in Article 7 of the Rome
Statute. The same requirement was stipulated in Article 3 of the ICTR Statute and
although not expressly mentioned in Article 5 of the ICTY Statute, the ICTY has, in
its case law, consistently upheld the requirement that the attack be directed against a
civilian population to imply the widespread or systematic nature of the attack.103
Although the test is explicitly disjunctive (‘or’), there is considerable debate as to
whether the policy element transforms it into a conjunctive (‘and’) test.104 That
debate, however, is immaterial for the purposes of this opinion; it will be argued
below that both requirements have been met.

101 M Boot Genocide, Crimes Against Humanity, War Crimes: Nullum Crimen Sine Lege and the Subject
Matter Jurisdiction of the International Criminal Court (Intersentia Antwerp-Oxford-New York 2002)
585.

102 Prosecutor v Semanza (n 36) [330], Prosecutor v Kamuhanda (n 90) [669-670], Prosecutor v
Kajelijeli (n 93) [875-876].

103 Prosecutor v Tadic (n 16) [271], Prosecutor v Blaskic (n 99) [202–3].

104 Robinson (n 44) 48–51. His argument is that the policy element constitutes a lower threshold test
compared to the other two.

88. It should be noted in the first place that the act in question can be part of a
widespread or systematic attack and need not be part of both.105 The concept of
‘widespread’ may be defined as massive, frequent, large-scale action carried out
collectively with considerable seriousness and directed against a multiplicity of
victims. The concept of ‘systematic’ may be defined as thoroughly organised and
following a regular pattern on the basis of a common policy involving substantial
public or private resources.106
89. In the case under question, the features of Operation Restore Order fall under the
definition of both ‘widespread’ and ‘systematic. The 569 685 people who were
rendered homeless and the fact that the Operation took place in numerous cities of
Zimbabwe both serve to justify the conclusion that the attack was widespread as it
was a large-scale action directed against a multiplicity of victims. The Operation
can also be characterised as systematic since it was organised and conducted on the
basis of a common State policy (the policy was announced by governmental
officials) and involved substantial public resources (it was carried out by the police
and the military).
90. Even if the above figures were not entirely accurate and we were to base our
estimation on the figures given by the Zimbabwean Government in its Response,
which mentions roughly 6 000 people, the Operation may still amount to a crime
against humanity on the basis of being, if not widespread, at least systematic, as it
was pursuant to a State policy. Although it is correct that isolated, random acts
should not be included in the definition of crimes against humanity, that concern is
assuaged by requiring that the acts be directed against a civilian population; thus
even an isolated act can constitute a crime against humanity if it is the product of a
political system based on terror or prosecution.107 Therefore, it is reasonable to
conclude that there has been a widespread and systematic attack as defined in
Article 7 of the ICC Statute.

105 Prosecutor v Akayesu (n 90) [579].

106 ibid [580]; Prosecutor v Rutaganda (n 35) [69], Prosecutor v Musema (n 35) [204].

107 Prosecutor v Tadic (Opinion and Judgement) IT-95-1 (7 May 1997) [649].

PART IV: THE LEGALITY OF THE EVICTIONS

91. While it is possible that some of those evicted were not lawfully present (under a
narrow construction of that term),108 it is clear that all of those evicted were evicted
unlawfully both with respect to Zimbabwean law and international law. The legality
of the evictions under both domestic law and international law will be considered in
turn.109
92. Although not strictly relevant to a discussion of the Rome Statute it is important to
note that the evictions themselves were not in accordance with Zimbabwean law.
This is relevant insofar as it counters any objections made by the Zimbabwean
government that it’s actions were in accordance with its domestic legislation, and
further contributes to the general understanding of the nature of the Operation that
took place in Zimbabwe.
93. The Zimbabwean authorities have purported to carry out the evictions in Operation
Murambatsvina through the Planning Act.110 For this reason, we have focussed on
the Planning Act, rather than on other legislation which could potentially have been
used to provide justification for Operation Murambatsvina.111 There are two types
of orders which could be issued under the Planning Act which are relevant to
Operation Murambatsvina.
94. Section 32 of the Planning Act provides that if it appears to any local planning
authority, that any development is in contravention of the Planning Act, then the
local planning authority is empowered to serve on the owner of the land, or anyone
else potentially affected, an enforcement order.112 The enforcement order must state
the nature of the contravention, and specify the action required to be taken,113 and

108 This would be the interpretation discussed above in paragraphs 55.1.

109 See the discussion of the legality of the evictions under international law at paragraphs 110–115
below.

110 Report (n 19) 57.

111 ibid 58, where the Report points out that both the Housing Standard Control Act 1972 (Zimbabwe
Chapter 29:08) and the Urban Councils Act 1997 (Zimbabwe Chapter 29:15) contain provisions similar
to that in the Planning Act authorising the issue of enforcement orders. These Acts, however, do not
make provision for the publication of notices through the newspaper. It would therefore appear that, since
the orders were issued by newspaper, that the only Act the government of Zimbabwe could purport to
rely on is the Planning Act.

112 Planning Act s 32 (1).

113 ibid s 32(1)(a), (b).

may require the demolition of any building.114 The notice period for the
enforcement order must be at least one month from the date on which the order is
served115 and a person on whom the order is served is entitled to appeal such an
order in terms of section 38 of the Planning Act. An appeal then suspends the
operation of the enforcement order.116
95. A second type of order, known as a prohibition order, is also available under section
34 of the Planning Act. A prohibition order must be issued by the local planning
authority at the same time or after the issuing of an enforcement order, but before
the enforcement order becomes operative. The effect of the prohibition order is to
order that operations in contravention of the Planning Act (and which are the
subject of the enforcement order) cease, pending the enforcement order becoming
operative.117 The Zimbabwean local government authorities could therefore have
issued a prohibition order to prevent the continuation of illegal trading once the
enforcement order was issued (assuming an enforcement order was validly issued).
The prohibition order could not, however, have been used to authorise demolitions
under the Planning Act.
96. In Harare, on 24 and 26 May 2005, the City of Harare issued an enforcement order
in one of the local newspapers.118 In terms of section 32 of the Planning Act, this
notice is required to provide at least one month’s notice, before any action can be
taken. Despite these requirements, the ‘military-style’ demolitions began on 25 May
2005.119 There is no evidence that any of those evicted, apart from those in Harare,
were given notice of the evictions.120
97. In addition, again with the exception of the Harare enforcement notice, Operation
Murambatsvina was carried out without consultation with local government, who
are responsible for the enforcement of the Planning Act and the issuing of

114 ibid s 32(2)(c).

115 ibid s 32(3).

116 ibid s 32(3).

117 ibid s 34(1).

118 Report (n 19) 58. Note that the enforcement order appears to have been published twice, on 24 and 26
May 2005. Page 96 of the Report contains a copy of the order published on 26 May 2005.

119 ibid 12.

120 ibid 58.

enforcement notices.121 Moreover, it is local government who should have been
responsible for carrying out any demolitions in terms of the Planning Act, while it
was in fact the national police and military who did so.122
98. Some of those evicted were in possession of valid permits and leases issued by the
local authority or by the then Ministry of Local Government and National Housing
or by both institutions.123 Some of these persons obtained court interdicts
prohibiting State authorities from proceeding which the evictions. These interdicts
were apparently ignored and the evictions and demolitions continued
notwithstanding.
99. Thus, for all of these reasons, the evictions and demolitions carried out in Operation
Murambatsvina were not in accordance with the Planning Act and are therefore
inconsistent with Zimbabwean domestic law.
100. The question then arises as to whether ‘lawfully present’ could be extended to
incorporate a duty to evict those present (lawfully or unlawfully) in accordance with
domestic and international law. It is concluded herein that this interpretation is not
possible; therefore, the fact that the evictions were unlawful does not have a bearing
on the legality of the original occupation.

Doctrine of Abrogation by Disuse

101. Zimbabwe’s common law is Roman-Dutch in origin. Under Roman-Dutch
common law, it is possible for legislation to come to an end through tacit consent or
through contrary custom.124 The rationale for this doctrine is that the authority for
legislation comes from the people.125 This position stands in contrast to the English
common law’s rejection doctrine of desuétude.126

121 ibid 26.

122 ibid 58.

123 ibid 57–58.

124 Green v Fitzgerald 1914 AD 88; Glazer v Glazer NO 1963 (4) SA 694 (AD), South African
judgments giving authority for this proposition. South Africa shares the same Roman-Dutch common law
as Zimbabwe.

125 HR Hahlo and E Kahn The South African Legal System and Its Background (Juta, Wynberg 1968)
174.

126 Ashford v Thompson (1818) 1 B & Ald 405, 59 George III Ch 46 (1819).

102. For the doctrine to operate under Roman-Dutch common law, it must be
demonstrated that the legislation has ‘been long out of use’ and that it is ‘out of
keeping with contemporary views’.127
103. It may therefore be possible to argue that the Planning Act has been abrogated
through disuse, if it can be shown that it has not been applied for a considerable
period of time, and if it can be shown to be contrary to contemporary values.
104. The first consideration will depend on a detailed analysis of the facts, but we
would argue that, given Zimbabwe’s obtaining independence in 1980, if the
Planning Act has not been enforced since that date, this would constitute a
‘considerable period of time’ as it would constitute the entire post-independence
period.
105. A further consideration which may lend weight to the argument that the
Planning Act has not been applied is the issuing of SI 216. This statutory instrument
had the effect of encouraging development of the informal sector in residential
areas and suspending the requirements set out in the Planning Act. Unfortunately, a
copy of SI 216 was not obtained for the drafting of this opinion, so to what extent to
which it purports to suspend the Planning Act has not been considered. This issue
would need to be explored by a Zimbabwean lawyer with detailed knowledge of the
planning laws and application of those laws in Zimbabwe over the past 25 years.
Nevertheless, based on the Report, it is possible to make a cautious proposition that
the government of Zimbabwe, through issuing SI 216, expressed its intention to
override the Planning Act, thereby abrogating its use in planning law in Zimbabwe
through ‘contrary custom’.
106. The second consideration, that the Planning Act is contrary to the values of
contemporary Zimbabwe, is of some weight given the fact that the Act itself was
implemented by the former white regime of Ian Smith in order to set standards for
urban dwellings so high as to exclude most (black) persons from moving into urban
areas.128

127 Hahlo and Kahn (n 125) 174.

128 UN Report (n 19) 25, 56. This is also discussed in para 61 above.

107. Another consideration is whether the doctrine has been expressly repealed in
legislation or through the Constitution. In South Africa, for example, the doctrine
was rendered inoperative by the South Africa Act 1909 and later the Republic of
South Africa Constitution Act 1961. The doctrine was expressly overridden in this
legislation, and in the 1961 Constitution, for example, section 107 expressly stated
that all legislation continues in force until repealed or amended by the competent
authority.129 This legislation has now been replaced by the Constitution of the
Republic of South Africa Act 1996, which does not confer sole authority on
Parliament to repeal legislation. It is therefore possible that the doctrine may be
revived in contemporary South African law.
108. Section 32(1) of the Zimbabwean Constitution provides as follows: ‘The
legislative authority of Zimbabwe shall vest in the Legislature which shall consist
of the President and Parliament.’ The Constitution contains no further reference to
the authority of Parliament to repeal legislation or to legislation remaining in force
until expressly repealed. It would appear, therefore, that the doctrine is not
explicitly overridden in the Zimbabwean Constitution.
109. Thus, it may be possible that the doctrine of abrogation by disuse remains valid
under Zimbabwean common law. It is strongly suggested, however, that further
consideration of this issue should be undertaken by a specialised Zimbabwean
constitutional lawyer and this opinion should not be taken to express any definite
view that the doctrine is still valid law in Zimbabwe. Moreover, a detailed factual
evaluation would need to be undertaken as to whether the Planning Act had indeed
fallen into disuse. Again, such an evaluation would need to be undertaken by a
Zimbabwean lawyer with close knowledge of the Planning Act.

PART V: THE COMPATIBILITY OF THE EVICTIONS WITH INTERNATIONAL LAW

110. The forced evictions in Zimbabwe are clearly in conflict with international law
(as well as with domestic law, discussed above in paragraphs 91–100). The
prohibition against forced evictions derives from Article 11(1) of the ICESCR and
Article 17(1) of the ICESCR.130 Article 11(1) of the ICESCR provides that: ‘The

129 Section 107 of the Republic of South Africa Constitution Act 1961.

130 General Comment 7 [8].

States Parties to the present Covenant recognize the right of everyone to an
adequate standard of living for himself and his family, including adequate food,
clothing and housing, and to the continuous improvement of living conditions. The
States Parties will take appropriate steps to ensure the realization of this right,
recognizing to this effect the essential importance of international co-operation
based on free consent.’ Similarly, Article 17(1) of the ICCPR provides that: ‘No
one shall be subjected to arbitrary or unlawful interference with his privacy, family,
home or correspondence, nor to unlawful attacks on his honour and reputation.’
111. It should be repeated here that General Comment 4 of the UN Committee on
Economic, Social and Cultural Rights (hereinafter ‘CESCR’) provides that
‘instances of forced eviction are prima facie incompatible with the requirements of
the Covenant and can only be justified in the most exceptional circumstances, and
in accordance with the relevant principles under international law.’131
112. The CESCR elaborates on the prohibition on forced evictions in General
Comment 7. It defines a forced eviction as:

the permanent or temporary removal against their will of individuals, families and/or
communities from the homes and/or land which they occupy, without the provision of, and
access to, appropriate forms of legal or other protection. The prohibition on forced evictions
does not, however, apply to evictions carried out by force in accordance with the law and in
conformity with the provisions of the International Covenants on Human Rights.132

The evictions carried out under Operation Murambatsvina thus fall under the
definition of ‘forced evictions’ as defined by the CESCR.

113. General Comment 7 further provides that States, when carrying out (lawful)
large-scale evictions, should ensure that the following procedural protections are
provided:

(a) an opportunity for genuine consultation with those affected; (b) adequate and reasonable
notice for all affected persons prior to the scheduled date of eviction; (c) information on the
proposed evictions, and, where applicable, on the alternative purpose for which the land or
housing is to be used, to be made available in reasonable time to all those affected; (d)
especially where groups of people are involved, government officials or their representatives to
be present during an eviction; (e) all persons carrying out the eviction to be properly identified;
(f) evictions not to take place in particularly bad weather or at night unless the affection persons

131 General Comment 4 [18].

132 General Comment 7 [3].

consent otherwise; (g) provision of legal remedies; and (h) provision, where possible, of legal
aid to persons who are in need of it to seek redress from the courts.133

In addition, ‘[e]victions should not result in individuals being rendered homeless or
vulnerable to the violation of other human rights.’134

114. The Report discusses the Zimbabwean Government’s compliance with these
requirements in some detail. In brief, the Report makes the following factual
findings:
114.1. No effective consultations had taken place prior to Operation
Murambatsvina. The government of Zimbabwe has argued that consultations
took place through a notice on a monthly bill, but clearly (on the assumption
that this assertion is factually correct), this is inadequate to constitute ‘genuine
consultation’.
114.2. Adequate and reasonable notice was not given.
114.3. Information was not made available on Operation Murambatsvina within a
reasonable time.
114.4. Although uniformed policemen and the military were used in carrying out
the Operation, the UN Report argues that, since evictions are a local
government competence, they should not have been carried out by national
military and police officers.
114.5. Operation Murambatsvina began in early winter in Zimbabwe, leaving many
of those affected in the cold of winter. Rains are forecast to begin in October or
November and it is feared that many of those affected will still not have
adequate shelter by the time the summer rains start.
114.6. Legal remedies are inadequate, due to both insufficient legal aid (which is
provided primarily by NGOs and not by the State), and a compromised
judiciary.

133 ibid [15].

134 ibid [16].

114.7. Lastly, the evictions clearly resulted in many people being rendered
homeless, as the State had not made adequate arrangements for alternative
accommodation.

Thus, the Report concludes that, for all of these reasons, Operation Murambatsvina
has clearly failed to comply with the requirements in international law regarding
forced evictions.135 On the assumption that the factual findings of the Report are
accurate, the conclusions reached therein are adopted for the purposes of this
opinion.

115. In addition, Zimbabwe has committed itself to a number of United Nations
Resolutions on forced evictions, including Resolution 1993/77, Resolution 1998/9,
and Resolution 2004/28.136 In each of these resolutions, Zimbabwe recommitted
itself to a prohibition on forced evictions, recognising that forced evictions
constitute a ‘gross violation of a broad range of human rights’.137

Grounds under international law permitting the forcible transfer of population

116. This part of the opinion will deal with the question whether, in the eventuality
that Operation Murambatsvina constitutes a forcible transfer of population as
understood in Article 7(2)(d) of the Rome Statute, there exist grounds under
international law that would justify or otherwise permit such a transfer.
117. There exist a very limited number of exceptions under international law which
empower States to restrict the freedom of movement of nationals and aliens who are
lawfully present within the territory. Briefly summarised, these restrictions must be:
in accordance with law and necessary in a democratic society in the interests of
national security or public safety; for the maintenance of public order (ordre
public); for the protection of health or morals or for the protection of the rights of
others, provided such restrictions are consistent with other human rights’.138

135 Report (n 19) 59–62.

136 ibid 57.

137 UN ECOSOC Res 2004/28, UN Doc E/C.4/RES/2004/28 (2004) [1].

138 Hall (n 40) 162.

118. These exceptions are codified in a slew of human rights instruments: Article
13, paragraph 1 of the Universal Declaration of Human Rights139 recognises the
right to freedom of movement and residence within the borders of a State; Article
12, paragraphs 1 and 3 of the International Covenant on Civil and Political Rights140
recognise the right of everyone lawfully within the territory of a State to liberty of
movement and freedom to choose one’s residence, subject to certain restrictions;
Article 2, paragraphs 1 and 3 of Protocol 4 to the European Convention on Human
Rights141 recognise the right of everyone lawfully within the territory of a State to
freedom of movement within the territory and freedom to choose one’s residence,
subject to certain restrictions; and Article 22, paragraphs 1, 3 and 4 of the American
Convention on Human Rights142 recognise that everyone lawfully within a territory
has a right to movement and residence in it, subject to certain restrictions. Taken as
a whole, it has been argued that they establish the ‘circumstances when forced
displacement of persons within a territory is prohibited’ under international law.143
119. With regards to those grounds under which forced displacement is permitted
under international law, the Report of the Representative of the Secretary-General,
Mr Francis Deng, adopted by the Commission on Human Rights144 would not be
binding upon the Court, but may reasonably be considered as of a persuasive
character. Mr Deng recognises that in human rights law, the prohibition of arbitrary
displacement is only implicit in various international human rights instruments. In
particular, Mr Deng’s report refers to ‘the right to freedom of movement and choice
of residence, freedom from arbitrary interference with one’s home and the right to
housing. These rights, however, do not provide adequate and comprehensive
coverage for all instances of arbitrary displacement, as they do not spell out the
circumstances under which displacement is permissible.’145

139 UNGA Res 217 A (III) (10 December 1948) UN Doc A/810, 71 (1948).

140 International Covenant on Civil and Political Rights (adopted (1966) 999 UNTS 171 [hereinafter
‘ICCPR’].

141 European Convention on Human Rights (1948), 213 UNTS 222 [hereinafter ‘ECHR’].

142 American Convention on Human Rights (1969), 1144 UNTS 123 [hereinafter ‘ACHR’].

143 Hall (n 40) 136.

144 UNHCHR Res 1997/39, ‘Legal Aspects Relating to the Protection against Arbitrary Displacement,
UN Doc E/CN.4/1998/53/Add.1 (11 February 1998).

145 E/CN.4/1998/53/Add.1 para. IV, 1

120. Mr Deng’s report provides an overview of the rights in main human rights
instruments that can be interpreted to have an element of arbitrary displacement and
transfer of population. These rights are subject to restrictions and derogation under
certain grounds, but there are also safeguards that the restricting authority must
meet as well. The safeguards are summarised in the conclusions of the Deng Report
as follows:

[D]isplacement of persons should not be discriminatory and may be undertaken exceptionally
and only in the specific circumstances provided for in international law, with due regard for
the principles of necessity and proportionality. Displacement should last no longer than
absolutely required by the exigencies of the situation. Displacement caused by, or which can
be reasonably expected to result in genocide, ‘ethnic cleansing’, apartheid and other
systematic forms of discrimination, or torture and inhuman and degrading treatment is
absolutely prohibited and might entail individual criminal responsibility of the perpetrators
under international law … Prior to carrying out any displacement, authorities should ensure
that all feasible alternatives are explored in order to avoid, or at least minimize, forced
displacement. … Persons to be displaced should have access to adequate information
regarding their displacement, and the procedures of compensation and relocation, as well as
effective remedies, and, where appropriate, compensation for loss of land or other assets …
Where these guarantees are absent, such measures would be arbitrary and therefore
unlawful.146

121. Most human rights instruments permit States to place restrictions on freedom
of residence and movement when specific and limited circumstances are met. These
restrictions may permit certain, limited forced movement of persons or their
settlement in other areas. The grounds permitted under each international treaty are
discussed below:

International Covenant on Civil and Political Rights

122. Zimbabwe deposited its instrument of ratification for the ICCPR on 13 May
1991. Article 12 (3) of the ICCPR provides that the freedom of movement and
choice of residence ‘shall not be subject to any restrictions except those which are
provided by law, are necessary to protect national security, public order (ordre
public), public health or morals or the rights and freedoms of others, and are
consistent with the other rights recognized in the present Covenant.’ The right to
freedom of movement as it related to coerced displacement is addressed in UN
Resolution 1994/24 of 26 August 1994, adopted at its forty-sixth session, entitled
‘The right to freedom of movement’. It affirms ‘the right of persons to remain in
their own homes, on their own lands and in their own countries’ and urges all

146 ibid para IV, 3–4.

countries to ‘cease at once all practices of forced displacement’.147 A General
Assembly resolution does not constitute a source of international law and would not
be directly binding upon the Court; however, this particular resolution may be
considered to be of a persuasive character, especially as it was adopted without a
vote.
123. It has been argued that restrictions to freedom of movement and choice of
residence must be set down by a legislative body and it must be widely accessible to
all those subject to it, and must therefore possess an adequate degree of certainty.148
For a detailed discussion of the legality of the evictions under Zimbabwean law, see
Part II above.149 Moreover, the evicted individuals did not have adequate access to
information regarding their displacement. Even though the government of
Zimbabwe did issue a notice to the individuals who occupied the evicted dwellings,
it is possible to argue that the warning was not appropriately displayed and the date
of the warning was not respected, as the evictions began mere days after the notice
was displayed.150
124. These limitations to the right must also be ‘consistent with the other rights’ in
the ICCPR. The Report of the Secretary-General’s Representative explains that, for
instance, ‘banishment within the State’s territory is only permissible as punishment
when it is imposed in conformity with the guarantees in criminal proceedings set
down in articles 14 and 15 of the ICCPR’.151 From the facts detailed in the report by
the UN Special Envoy on Human Settlements Issues in Zimbabwe, it is arguable
that the evictions in Operation Murambatsvina’ were not consistent with other
rights in the ICCPR. For example, the way in which the state conducted the

147 UNHCHR Res 1995/13 ‘The right to freedom of movement’ (18 August 1995) UN Doc
E/CN.4/Sub.2/1995/6.11/Add.3.

148 M Nowak United Nations Covenant on Civil and Political Rights – CCPR Commentary, (1st edn Engel
Publisher Kehl-Strasbourg-Arlington 1993) 208.

149 Moreover, it has been argued that the proportions advanced by Special Envoy suggest that the number
of legal dwellings evicted were ‘significant given the total number of demolitions’ and that ‘many of the
homes and businesses existed in a legal gray zone’. See M Langford ‘Accountability for Forced
Evictions? A Response to The UN Special Envoy’s Report on Zimbabwe’ COHRE, available online at
www.cohre.org (3 November 2005).

150 See para 26 above.

151 Nowak (n 148) cites relevant case law of the Human Rights Committee: Mpaka-Nsusu v Zaire,
Communication No. 157/1983, and Ngalula Mpandanjila v Zaire, Communication No. 138/1983.

evictions was carried out with disregard to the right to property in some reported
instances.152
125. Furthermore, these restrictions on the right must be necessary for achieving
one of the listed purposes for limitation. The requirement of necessity is subject to
an objective minimum standard and the principle of proportionality, striking ‘a
precise balancing between the right to freedom of movement and those interests to
be protected by the interference’. 153 The permissible reasons for interference under
Article 12 (3) of the ICCPR are ‘national security’, ‘public order (ordre public)’,
‘public health’, ‘public morals’, and the ‘rights and freedoms of others’. The Report
of the Secretary-General’s Representative expands on their scope:
125.1. National security is endangered only in grave cases of political or
military threat to the entire nation, such that persons may have to be
temporarily relocated in such situations. This was not the case in Zimbabwe, as
any threat coming from the settlements, whether perceived or real, did not
necessarily constitute a threat to the entire nation. Moreover, the government of
Zimbabwe does not refer to the settlements as a matter of national security in
any part of the Response.154
125.2. Permissible restrictions on freedom of internal movement and residence
on the ground of public order (ordre public) that could exceptionally justify
displacement may include cases of development and infrastructure projects
where the interests of the general welfare are clearly overriding. Even though
the government of Zimbabwe claims to be reducing high crime levels and
economic crimes through the Operation, the arbitrary eviction of all those who
gained a livelihood in the involved settlements is unlikely to pass a
proportionality test used to evaluate the means of combating crime.
125.3. The ‘public health’ exception might include relocation away from areas
where acute health dangers exist (for example, areas contaminated as a result of
a catastrophe). It must be noted that the emphasis of this ground under which
displacement is permissible is the physical area as posing a threat to public

152 Report (n 19) 62-63.

153 Nowak (n 148) 211.

154 See para 28 above.

health due to contamination. In this case the government of Zimbabwe claimed
that, among the reasons for launching the Operation, they aimed to ‘arrest the
social ills among them prostitution which promote the spread of HIV/AIDS and
other communicable diseases’.155 However, there is no demonstrated link
between the alleged social ills, the spread of diseases and the contamination of
the physical area of the evicted dwellings. It should be noted that it is not the
physical area of the settlements that causes the spread of HIV/AIDS and other
communicable diseases; therefore, the relocation of the population was not
strictly necessary. Even if it was deemed necessary, it could be argued that the
means of evicting all the population form the area is not reasonably linked or
proportional to the objective of preventing the spread of communicable
diseases.
125.4. Finally, restrictions on freedom of movement and residence imposed in
the interest of ‘the rights and freedoms of others’ may justify evictions to
respect private property. However, States parties are obliged to ensure that
interference in favour of private owners is proportional, that is, that it remain at
a level which the public can tolerate.156 Any interference must be reasonable,
objective, and non-discriminatory. The extent and scope of the Operation, even
if alleged by the Zimbabwe Government to be reasonable and objective,
necessarily fails on the point of non-discrimination, because although the
Zimbabwe Government claimed that some of the individuals concerned were
illegally present, it failed to take the necessary measures to properly distinguish
between those individuals who were legally and illegally present.
125.5. Finally, restrictions on Covenant rights are always exceptional and must
therefore not become a generalised rule.

126. In addition, it must be noted that Article 17 of the ICCPR states that ‘no one
shall be subjected to arbitrary or unlawful interference with his privacy, family,
home or correspondence, nor to unlawful attacks on his honour and reputation’.
[emphasis added] According to Nowak, the protection of ‘home’ relates not only to
dwellings but also to all types of residential property regardless of legal title or

155 Nowak (n 148) 211.

156 ibid 216.

nature of use: ‘[a]n invasion of this sphere without the consent of the individual
affected represents interference, as does any activity that deprives one of his/her
home.’157

The International Covenant on Economic Social and Cultural Rights158

127. Zimbabwe became a State Party to the ICESCR on 13 August 1991. Article 4
of the ICESCR recognised that the rights included therein are subject only to ‘such
limitations as are determined by law only in so far as this may be compatible with
the nature of these rights and solely for the purpose of promoting the general
welfare in a democratic society’. In such cases, important procedural guarantees in
the conduct of such limitations must be followed. In the case of Zimbabwe, the
government of Zimbabwe did not make any attempt to follow the procedural
guarantees; therefore, it is reasonable to conclude that the evictions carried out
under the Operation in Zimbabwe as restrictions to ICESCR rights are not justified.
128. Moreover, it should be noted that the CESCR, in its General Comment 4 on
the right to adequate housing, stated at paragraph 18 that ‘[t]he Committee
considers that instances of forced eviction are prima facie incompatible with the
requirements of the Covenant and can only be justified in the most exceptional
circumstances, and in accordance with the relevant principles of international
law.’159 It its Response, the Zimbabwean government has not specifically spoken of
exceptional circumstances, but of social and economic problems that could amount
to exceptional circumstances.160 It is not clear what the CESCR would deem as
‘exceptional’; however, most international human rights that are derogable in
emergency circumstances require explicit recognition of the state of emergency
before they may be suspended.161

157 ibid 303.

158 See n 71.

159 UN Committee on Economic, Social and Cultural Rights (CESCR) ‘General Comment 4 on the Right
to Adequate Housing’. UN Doc E/1992/23 Article 11 (1).

160 See para 28 above.

161 eg Article 4(1) of the ICCPR (n 140).

The African Charter of Human and Peoples’ Rights162

129. Zimbabwe ratified the African Charter on Human and Peoples’ Rights on 30
May 1986. The African Charter does not specifically provide for protection against
forced evictions, but has extensive provisions on the protection of human rights that
are typically affected by the practice of forced evictions, such as the right to
freedom of movement and residence and the right to education. The right to
freedom of movement and residence (Article 12(1)) is applicable to individuals
provided that they abide by the law. As explained above,163 the right to freedom of
movement relates to coerced transfers of population in the right of persons to
remain in their homes. The right to education of the children of the evicted families
would have been affected by Operation Murambatsvina, since the long commutes to
and from educational institutions as result of displacement to isolated areas would
make constant education impermissible.
130. Similarly, the war crime, during international or non-international armed
conflict, of ‘the displacement of a civilian population for reasons related to the
conflict, unless the security of the civilians involved or imperative military reasons
so demand’164, as articulated in Article 8 para. 2(d)(viii) of the Statute, strongly
suggests that the powers of States to displace a civilian population are similarly
limited in peacetime to equally compelling grounds. It is possible that the forced
displacement of population for public projects, such as the construction of a
highway or dam, might fall within the scope of Article 7 paragraph 1(d) of the
Statute if the individuals are not provided with adequate compensation and given
freedom of choice concerning their new homes. The evictions carried out under the
Operation were not done with the purpose of building public projects, and the
evicted individuals received no compensation.
131. It should be noted that there is a distinction that must be drawn between the
Statute on the one hand, which enumerates certain acts it deems to be crimes against
humanity, and the Report of the Secretary-General’s Representative and the various
international human rights instruments on the other, which merely consider such

162 African Charter on Human and Peoples’ Rights (adopted 27 June 1981, entered into force 21 October
1986), 21 ILM 58 [hereinafter ‘African Charter’].

163 See para 122 above.

164 Hall (n 40) 162.

acts to be unlawful. The abundant case law available from the regional human
rights courts and the United Nations Human Rights Commission is therefore of
limited utility for assisting in finding that the facts in the instant case constitute or
do not constitute a crime against humanity.

PART VI: CONCLUSION

132. Part I examined whether there was in fact a deportation or forcible transfer of
population as defined in the Statute. It was concluded herein that the requirements
of the Statute, namely, that there be the transfer of one or more persons and that
such transfer be coerced or forced, have been met insofar as the factual situation as
detailed in this opinion is correct. Because the transfers were executed without the
consent of the individuals concerned and a range of coercive measures were
employed, it is reasonable to conclude that the acts fall within the range of practices
proscribed in the Rome Statute. Zimbabwe would therefore have to establish
whether the impugned acts fall under the international law exceptions allowing for a
forcible transfer of population.
133. Part II examined whether those subject to forcible transfer were ‘legally
present’, the word ‘lawfully’ in ‘lawfully present’ requires that the laws that define
the legality or illegality of one’s presence in a particular area comply with the
principle of legal certainty. In terms of the case law of the European Court of
Human Rights, the laws in question must be sufficiently precise to allow the
individual to foresee, to a degree that is reasonable in the circumstances, the
consequences of his or her actions. In the present case, while the Housing and
Planning Acts are themselves sufficiently clear, the Zimbabwean government’s
actions in largely ignoring this legislation after independence, and adopting contrary
policies, arguably undermined the requirement of reasonable foreseeability and thus
the principle of legal certainty. This, in turn, undermines the Zimbabwean
government’s case that the evictees were unlawfully present in the areas in which
they had settled.
134. Part III examined whether the forcible transfer of population was committed
as part of widespread or systematic attack directed against any civilian population.
It was concluded herein that the requirements of the Statute have been fulfilled.

Taking into consideration the size of and the manner in which the Operation was
conducted, it is reasonable to conclude that it constituted an attack both widespread
and systematic against a civilian population. Furthermore, the orchestration of the
Operation has led to the conclusion that it was conducted pursuant to a State policy
to commit such attack.
135. Part IV examined the question of whether, since the Planning Act has not been
enforced for a significant period, the doctrine of abrogation through disuse renders
the Act void. However, no definite conclusion on this question was expressed
herein, and it has been mentioned merely to draw attention to the doctrine for
further consideration by a specialised Zimbabwean constitutional lawyer. Should it
be decided that the doctrine is still operable in Zimbabwe, then those subject to the
evictions were, arguably, ‘lawfully present’ since there was no legislation
prohibiting their settlement in the area.
136. Even if it is accepted that most of those evicted were not ‘lawfully present’,
many of those evicted were ‘lawfully present’ within the meaning of the Rome
Statute. Those evicted should therefore be constituted as those who were ‘lawfully
present’ and those who were not for the purposes of the Rome Statute. The Rome
Statute does not require that all of those in a group of displaced persons be lawfully
present’ and it would therefore appear to be sufficient to constitute those lawfully
present as a separate group.
137. Part V examined the question of whether, assuming that a forcible transfer of
population as defined in the Rome Statute has occurred, Zimbabwe might be able to
invoke one of the international law exceptions allowing for such forcible transfers
in exceptional circumstances. It was concluded herein that the requirements under
international law allowing for the limitation of these individuals’ rights to mobility,
namely, that they be temporary, necessary and proportional to the threat, have not
been met.

APPENDIX

Article 7 of the Rome Statue of the International Criminal Court

Crimes against humanity

1. For the purpose of this Statute, “crime against humanity” means any of the
following acts when committed as part of a widespread or systematic attack directed
against any civilian population, with knowledge of the attack:

(a) Murder;

(b) Extermination;

(c) Enslavement;

(d) Deportation or forcible transfer of population;

(e) Imprisonment or other severe deprivation of physical liberty in violation of
fundamental rules of international law;

(f) Torture;

(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced
sterilization, or any other form of sexual violence of comparable gravity;

(h) Persecution against any identifiable group or collectivity on political, racial,
national, ethnic, cultural, religious, gender as defined in paragraph 3, or
other grounds that are universally recognized as impermissible under
international law, in connection with any act referred to in this paragraph or
any crime within the jurisdiction of the Court;

(i) Enforced disappearance of persons;

(j) The crime of apartheid;

(k) Other inhumane acts of a similar character intentionally causing great
suffering, or serious injury to body or to mental or physical health.

2. For the purpose of paragraph 1:

(a) “Attack directed against any civilian population” means a course of conduct
involving the multiple commission of acts referred to in paragraph 1 against
any civilian population, pursuant to or in furtherance of a State or
organizational policy to commit such attack;

(b) “Extermination” includes the intentional infliction of conditions of life,

inter destruction of part of a population;

(c) “Enslavement” means the exercise of any or all of the powers attaching to
the right of ownership over a person and includes the exercise of such
power in the course of trafficking in persons, in particular women and
children;

(d) “Deportation or forcible transfer of population” means forced displacement
of the persons concerned by expulsion or other coercive acts from the area
in which they are lawfully present, without grounds permitted under
international law;

(e) “Torture” means the intentional infliction of severe pain or suffering,
whether physical or mental, upon a person in the custody or under the
control of the accused; except that torture shall not include pain or suffering
arising only from, inherent in or incidental to, lawful sanctions;

(f) “Forced pregnancy” means the unlawful confinement of a woman forcibly
made pregnant, with the intent of affecting the ethnic composition of any
population or carrying out other grave violations of international law. This
definition shall not in any way be interpreted as affecting national laws
relating to pregnancy;

(g) “Persecution” means the intentional and severe deprivation of fundamental
rights contrary to international law by reason of the identity of the group or
collectivity;

(h) “The crime of apartheid” means inhumane acts of a character similar to
those referred to in paragraph 1, committed in the context of an
institutionalized regime of systematic oppression and domination by one
racial group over any other racial group or groups and committed with the
intention of maintaining that regime;

(i) “Enforced disappearance of persons” means the arrest, detention or
abduction of persons by, or with the authorization, support or acquiescence
of, a State or a political organization, followed by a refusal to acknowledge
that deprivation of freedom or to give information on the fate or
whereabouts of those persons, with the intention of removing them from the
protection of the law for a prolonged period of time.

3. For the purpose of this Statute, it is understood that the term “gender” refers to
the two sexes, male and female, within the context of society. The term “gender” does
not indicate any meaning different from the above.

State Prepares for War on the Poor: Text of the KZN ‘Shackdweller Elimination’ Bill

Below, the text of the KZN shackdweller elimination bill, which the KZN legislature has euphemistically entitled “Elimination and prevention of re-emergence of slums bill”. This is a truly terrifying piece of legislation that goes so far as to propose moving shackdwellers to ‘transit camps’ and which amounts to a declaration of intent to wage an out and out war on the poor. Original PDF file below. Please read it and please invest some time and energy in finding ways to resist this attempt to decisively swing power back to the rich in a way that would destroy all the gains made by popular action from the 80s and by legislative reform from 1996.

See Also

Submissions on the Bill can be sent to Sibongile Sibisi at SIBISIS@kznlegislature.gov.za before the end of May.

KWAZULU-NATAL ELIMINATION AND PREVENTION OF RE-EMERGENCE OF SLUMS BILL, 2006

CERTIFIED: 26 October 2006

Adv BA Mbili
PROVINCIAL STATE LAW ADVISOR

BILL

To provide for the progressive elimination of slums in the Province of KwaZulu-Natal; to provide for measures for the prevention of the re-emergence of slums; to provide for the upgrading and control of existing slums; and to provide for matters connected therewith.

PREAMBLE

WHEREAS the provision of affordable housing for all citizens in South Africa, and especially those sectors of the community who, prior to the advent of democracy in South Africa, were disadvantaged politically and economically, is a cornerstone in the building of a stable and healthy national community;

AND WHEREAS everyone has a constitutional right to have access to affordable housing;

AND WHEREAS section 7 of the Housing Act, 1997 (Act No. 107 of 1997), encourages provincial governments to, amongst other things, enact legislation which will facilitate the achievement of the objective of providing adequate and affordable housing;

AND WHEREAS the KwaZulu-Natal Housing Act, 1998 (Act No. 12 of 1998), was duly enacted by the KwaZulu-Natal provincial government to afford everyone in the Province access to affordable housing;

AND WHEREAS one of the objectives of both the Housing Act, 1997 (Act No. 107 of 1997), and the KwaZulu-Natal Housing Act, 1998 (Act No. 12 of 1998), is to encourage interaction and support between provincial and local governments in the provision of affordable housing;

AND WHEREAS it is desirable to introduce measures which seek to enable the control and elimination of slums, and the prevention of their re-emergence, in a manner that promotes and protects the housing construction programmes of both provincial and local governments,

BE IT THEREFORE ENACTED by the Provincial Legislature of the Province of KwaZulu-Natal, as follows:-

ARRANGEMENT OF SECTIONS
Section
CHAPTER 1
DEFINITIONS, APPLICATION AND OBJECTS OF ACT
1. Definitions
2. Application of Act
3. Objects of Act

CHAPTER 2
PROHIBITION OF UNLAWFUL OCCUPATION AND USE OF SUBSTANDARD ACCOMMODATION
4. Prohibition of unlawful occupation
5. Prohibition on use of substandard accommodation for financial benefit
6. Responsibility of municipality on use of substandard accommodation

CHAPTER 3
ROLE OF RESPONSIBLE MEMBER OF EXECUTIVE COUNCIL
7. Provision of adequate and affordable housing
8. Powers and functions of responsible Member of Executive Council

CHAPTER 4
ROLE OF MUNICIPALITIES
9. Progressive realisation of right to adequate and affordable housing
10. Eviction by municipality
11. Submission of status and annual reports to responsible Member of the Executive Council
12. Condition for provision of alternative land or buildings
13. Establishment of transit area
14. Notice to owner or person in charge to upgrade land or building

CHAPTER 5
DUTIES OF OWNERS AND PERSONS IN CHARGE OF LAND OR BUILDING
15. Steps to prevent unlawful occupation
16. Eviction of unlawful occupiers

CHAPTER 6
GENERAL MATTERS
17. Report to Provincial Legislature by responsible Member of Executive Council
18. Right of municipalities to expropriate land
19. Municipal by-laws
20. Offences
21. Penalties
22. Regulations
23. Delegations
24. Short title

CHAPTER 1
DEFINITIONS, APPLICATION AND OBJECTS OF ACT

Definitions
1. In this Act any word or expression to which a meaning has been assigned in the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 1998 (Act No. 19 of 1998), must, unless clearly inappropriate, bear that meaning, and unless the context indicates otherwise –
“annual report” means a report referred to in section 11;

“building” includes any structure, hut, shack, tent or similar structure or any other form of temporary or permanent dwelling or shelter, irrespective of the material used in the erection thereof, erected or used for or in connection with the accommodation or convenience of persons;

“Constitution” means the Constitution of the Republic of South Africa, 1996;

“department” the department in the Provincial Government of KwaZulu-Natal responsible for housing;

“financial year” means the period from 1 April in any year to 31 March of the following year;

“Gazette” means the official Provincial Gazette of KwaZulu-Natal;

“informal settlement” means an area of unplanned and unapproved informal settlement of predominantly indigent or poor persons with poor or non-existent infrastructure or sanitation;

“integrated development planning” means planning by a municipality in accordance with a plan envisaged in section 25 of the Local Government: Municipal Systems Act, 2000 (Act No.32 of 2000), and “integrated development plan” has a corresponding meaning;

“land” means a portion of land that is occupied or is capable of being occupied by persons;

“municipal manager” means a person appointed in terms of section 82 of the Local Government: Municipal Structures Act, 1998 (Act No.117 of 1998);

“municipality” means a municipality contemplated in section 155 of the Constitution, 1996, and established by and under sections 11 and 12 of the Local Government: Municipal Structures Act, 1998 (Act No. 117 of 1998), read with sections 3, 4 and 5 of the KwaZulu-Natal Determination of Types of Municipality Act, 2000 (Act No. 7 of 2000);

“officer” means an officer as defined in section 1 of the KwaZulu-Natal Housing Act, 1998 (Act No.12 of 1998);

“Prevention of Illegal Eviction from and Unlawful Occupation of Land Act” means the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 1998 (Act No. 19 of 1998);

“person in charge” means a person who has or at the relevant time had, the legal authority to give permission to a person to enter or reside upon any land or building;

“Province” means the Province of KwaZulu-Natal as contemplated in section 103 of the Constitution, 1996;

“Provincial Government” means the Provincial Government of the Province of KwaZulu-Natal;

“Provincial Housing Code” means the Provincial Housing Code referred to in section 34 of the KwaZulu-Natal Housing Act, 1998 (Act No.12 of 1998);

“provincial housing development fund” means the provincial housing development fund contemplated in section 12(2) of the Housing Act, 1997 (Act No. 107 0f 1997);

“Provincial Legislature” means the Legislature of the Province of KwaZulu-Natal;

“regulations” means regulations made in terms of section 22;

“responsible Member of the Executive Council” means the member of the Executive Council of the KwaZulu-Natal Province responsible for housing;

“slum” means overcrowded or squalid land or buildings occupied by predominantly indigent or poor persons with poor or non-existent infrastructure or sanitation, and “slum conditions” has a corresponding meaning;

“slum elimination programme” means a programme contained in the status and annual report of a municipality submitted in terms of section 11;

“status report” means a report referred to in section 11;

“this Act” includes the regulations;

“traditional council” means a traditional council established in terms of section 6 of the KwaZulu-Natal Traditional Leadership and Governance Act, 2005 (Act No. 5 of 2005);

“transit area” means any land or building acquired or used by a municipality for temporary accommodation or settlement of persons who are removed from a slum or informal settlement.

Application of Act
2.(1) This Act applies to all matters pertaining to the promotion of and protection against illegal and unlawful occupation of land or buildings in the Province.

(2) Where this Act does not regulate a matter pertaining to promotion and protection against illegal and unlawful occupation of land or buildings, the provisions of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, apply.

Objects of Act
3. The objects of this Act are –
(a) to eliminate slums;
(b) to prevent the re-emergence of slums;
(c) to promote co-operation between the department and municipalities in the elimination of slums;
(d) to promote co-operation between the department and municipalities in the prevention of the re-emergence of slums;
(e) to monitor the performance of the department and municipalities in the elimination and prevention of the re-emergence of slums; and
(f) to improve the living conditions of the communities,
in the Province.

CHAPTER 2
PROHIBITION OF UNLAWFUL OCCUPATION AND USE OF SUBSTANDARD ACCOMMODATION

Prohibition of unlawful occupation
4.(1) No person may occupy any land or building without the consent of the owner or person in charge of such land or building.

(2) Any person who contravenes subsection (1) may be evicted from such land or building after following the procedure set out in sections 4, 5 or 6 of Prevention of Illegal Eviction from and Unlawful Occupation of Land Act.

Prohibition on use of substandard accommodation for financial benefit
5. The owner or person in charge of a building or structure may not allow persons to use such building or structure for accommodation purposes and in return for financial benefit if such building or structure has not been approved by the municipality in terms of regulations made under the National Building Regulations and Building Standards Act, 1977 (Act No. 103 of 1977), or is clearly not fit for human habitation on the basis that such building or structure –
(a) does not have access to natural light;
(b) does not have running water supply available or connected;
(c) does not have ablution facilities available or connected;
(d) is a health nuisance as defined in the National Health Act, 2003 (Act No. 61 of 2003); or
(e) is in a serious state of neglect or disrepair.

Responsibility of municipality on use of substandard accommodation
6.(1) A municipality within whose area of jurisdiction a building or structure referred to in section 5 falls must give a written notice to the owner or person in charge thereof to institute, within the period stipulated in such notice, proceedings for the eviction of the occupants thereof.

(2) If the owner or person in charge of the building or structure fails to comply with the notice referred to in subsection 1, the municipality may institute proceedings for the eviction of the occupants of such building or structure as provided for in section 6 of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act.

CHAPTER 3
ROLE OF RESPONSIBLE MEMBER OF EXECUTIVE COUNCIL

Provision of adequate and affordable housing
7. Subject to the provisions of the Housing Act, 1997 (Act No. 107 0f 1997), the responsible Member of the Executive Council must promote and facilitate the provision of adequate housing throughout the Province within the framework of the national policy on housing development.

Powers and functions of responsible Member of Executive Council
8.(1) For the purposes of section 7, the responsible Member of the Executive Council must –
(a) ensure that the slum elimination programme adopted by a municipality is consistent with –
(i) the objectives of the provincial policy in respect of housing development; and
(ii) the multi-year plan for the execution of national and provincial housing programmes in the Province, as contemplated in section 2B(3) of the KwaZulu-Natal Housing Act, 1998 (Act No. 12 of 1998);
(b) monitor the progress made by municipalities in their programmes for the eradication of slums within their respective areas of jurisdiction;
(c) co-ordinate slum elimination and related activities in the Province;
(d) take all reasonable and necessary steps to support municipalities in their progressive elimination of slums; and
(e) administer the provincial housing programme and may, for this purpose, in accordance with that programme and the prescripts contained in the Provincial Housing Code, approve –
(i) any project that is recommended by a municipality to upgrade and improve a slum or informal settlement within its area of jurisdiction;
(ii) any project adopted by a municipality to relocate persons living in a slum or an informal settlement within its area of jurisdiction; or
(iii) the financing of the projects referred to in subparagraph (i) and (ii) out of money paid into the KwaZulu Natal Housing Fund established in terms of section 11 of the KwaZulu-Natal Housing Act, 1998 (Act No. 12 of 1998).

(2) The responsible Member of the Executive Council may, generally, do everything which is necessary or expedient to achieve the objects of this Act referred to in section 3 and to perform the duties and carry out his or her functions referred to in subsections (1).

CHAPTER 4
ROLE OF MUNICIPALITIES

Progressive realisation of right to adequate and affordable housing
9.(1) A municipality may, as part of its process of integrated development planning, and within its available resources –
(a) take reasonable measures to achieve for its inhabitants the progressive realization of the right of access to adequate housing contained in section 26 of the Constitution;
(b) promote the establishment, development and maintenance of socially and economically viable communities and of safe and healthy living conditions to ensure the elimination and prevention of slums and slum conditions;
(c) encourage and promote housing and economic development in rural areas within its area of jurisdiction so as to avoid the undue influx of persons to urban areas and the resultant development of slums;
(d) in the case of a Category B municipality, collaborate with the Category C municipality within whose area of jurisdiction it falls, to enable initiatives for the provision of housing sector plans based on a safe and healthy environment for the community to be coordinated on a district-wide basis; and
(e) in the case of land falling within the area of a traditional council, consult with the traditional council concerned with a view to agreeing to appropriate measures for the elimination of existing slum conditions within the area of such traditional council.

(2) Subject to subsection (3), the responsible Member of the Executive Council may, in the interest of health or safety, and after consulting with the affected municipalities, require a neighbouring municipality or the Category C municipality within whose area of jurisdiction a Category B municipality falls to provide any sanitary or other service to the occupants of a slum, an informal settlement or a transit area within the area of jurisdiction of such Category B municipality if, in the opinion of the responsible Member of the Executive Council, the neighbouring or Category C municipality concerned is best able and suited to provide such sanitary or other service to the occupants of a slum, an informal settlement or a transit area.

(3) A municipality that is required by the responsible Member of the Executive Council to provide sanitary or other services in terms of subsection (2) must prioritise its available Municipal Infrastructure Grant funding for the provision of such service.

Eviction by municipality
10. A municipality may, subject to section 6 of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, the Constitution, and any other national legislation protecting the housing or occupation rights of persons, institute proceedings for the eviction of an unlawful occupier from land or buildings falling within its area of jurisdiction if such eviction is in the public interest.

Submission of status and annual reports to responsible Member of Executive Council
11.(1) Each municipality must, within six months of the commencement of this Act, prepare and submit to the responsible Member of the Executive Council a status report –
(a) detailing the number and location of existing slums within its area of jurisdiction, together with details of its slum elimination programme and key performance indicators to measure progress in the implementation of such programme;
(b) detailing, in respect of each slum, the ownership, description and the estimated number of persons in occupation thereof;
(c) indicating, in the case of persons who are unlawful occupiers of a slum, whether –
(i) such persons have been in occupation thereof for more than six months;
(ii) land or building may be made available or may reasonably be made available by the municipality or other organ of state or another owner of land or building for their relocation, particularly, where they have been in occupation for more than six months; and
(iii) the estimated cost, if any, of acquiring the available land or building for the relocation of unlawful occupiers; and
(d) containing recommendations by the municipality as to which slums, if any, are suitable for upgrading and improvement to address the shortage of housing, as well as the estimated cost of such upgrading and improvement.

(2) Each municipality must, after submitting the status report referred to in subsection (1), prepare, within three months after the end of each financial year, an annual report for that financial year reflecting –
(a) the steps taken towards the realization of its slums elimination programme during that financial year, as well as the improvements made in the living conditions of the persons concerned as a result thereof;
(b) a comparison of the progress referred to in paragraph (a) with targets set in the key performance indicators referred to in subsection (1)(a) and the performance in the previous financial year; and
(c) measures taken by the municipality to improve on the progress made to bring it in line with the targets set in the key performance indicators.

Condition for provision of alternative land or buildings
12. In the event of a municipality deciding to make available alternative land or buildings for the relocation of persons living in a slum, such municipality must take reasonable measures, within its available resources, to ensure that such alternative land or building is in reasonable proximity to one or more economic centres.

Establishment of transit area
13.(1) A municipality may identify or acquire land or buildings within its area of jurisdiction for the purpose of establishing a transit area to be utilized for the temporary accommodation of persons who are evicted from a slum pending the acquisition of land or buildings for their permanent accommodation.

(2) A municipality must, in acquiring the land or buildings referred to in subsection (1), ensure that such land or building is –
(a) suitable for the accommodation of persons; and
(b) equipped with the necessary basic infrastructure and sanitation,
prior to the occupation thereof by the persons concerned.

Notice to owner or person in charge to upgrade land or building
14.(1) A municipality must, if it is of the opinion that any land or building within its area of jurisdiction is –
(a) in an unhygienic condition;
(b) in a state of disrepair; or
(c) likely to become a slum,
give written notice to the owner or person in charge thereof, calling upon such owner or person in charge to upgrade and refurbish such land or building to remove the unhygienic conditions prevailing therein.

(2) A person served with a notice in terms of subsection (1) must, within three months, upgrade and refurbish such land or building to remove the unhygienic conditions prevailing therein.

(3) Any person who fails to comply with the provisions of subsection (2) commits an offence.

CHAPTER 5
DUTIES OF OWNERS AND PERSONS IN CHARGE OF LAND OR BUILDINGS

Steps to prevent unlawful occupation
15.(1) An owner or person in charge of vacant land or building must, within twelve months of the commencement of this Act, take reasonable steps, which include but are not limited to –
(a) the erection of a perimeter fence around such vacant land or building;
(b) the posting of security personnel; or
(c) any other reasonable preventative measure,
to prevent the unlawful occupation of such vacant land or building.

(2) In the event that the owner or person in charge of vacant land or building fails to comply with subsection (1), a municipality within whose area of jurisdiction the vacant land or building falls must give written notice to the owner or person in charge thereof to, within 30 days of receipt of such notice –
(a) comply with the provisions of subsection (1); or
(b) give reasons for failure to comply.

(3) The failure by the owner or person in charge of vacant land or building to comply with the notice issued in terms of subsection (2) constitutes an offence.

Eviction of unlawful occupiers
16.(1) An owner or person in charge of land or a building, which at the commencement of this Act is already occupied by unlawful occupiers must, within the period determined by the responsible Member of the Executive Council by notice in the Gazette, in a manner provided for in section 4 or 5 of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, institute proceedings for the eviction of the unlawful occupiers concerned.

(2) In the event that the owner or person in charge of land or a building fails to comply with the notice issued by the responsible Member of the Executive Council in terms of subsection (1), a municipality within whose area of jurisdiction the land or building falls, must invoke the provisions of section 6 of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act.

CHAPTER 6
GENERAL MATTERS

Report to Provincial Legislature by responsible Member of Executive Council
17.(1) The responsible Member of the Executive Council must, within five months after the end of the financial year, table in the Provincial Legislature a consolidated report based on the annual reports submitted by municipalities in terms of section 11.

(2) The report referred to in subsection (1) must, amongst other things, set out –
(a) the progress made by municipalities in eliminating slums, as well as the improvements made in the living conditions of the persons residing within the area of jurisdiction of each municipality;
(b) the challenges, if any, encountered by municipalities in the implementation of their slum elimination programmes, as well as the solutions proposed by the responsible Member of the Executive Council to overcome such challenges; and
(c) any other information which the responsible Member of the Executive Council may wish to bring to the attention of the Provincial Legislature in relation to the provincial programme for the elimination of slums.

Right of municipalities to expropriate land
18. Subject to the provisions of the Expropriation Act, 1975 (Act No. 63 of 1975), the Local Authorities Ordinance, 1974 (Ordinance No. 25 of 1974), or any other law, a municipality may expropriate any land or right in land, whether temporarily or otherwise, required by it for the purpose of establishing a transit area or, alternatively, for permanent settlement of persons who are removed or evicted from a slum.

Municipal by-laws
19. A municipal council may, subject to the Constitution and national legislation, adopt bylaws not inconsistent with this Act to give effect to its slum elimination programme and the provisions of this Act.

Offences
20. Any person who unlawfully interferes with the reasonable measures adopted by an owner or person in charge of vacant land or building to prevent the unlawful occupation of such vacant land or building commits an offence.

Penalties
21. Any person convicted of an offence in terms of section 20, and other offences provided for in this Act, is liable to a fine not exceeding R20 000 or imprisonment for a period not exceeding 5 years or to both such fine and imprisonment.

Regulations
22.(1) The responsible Member of the Executive Council may, by notice in the Gazette, make regulations or issue guidelines not inconsistent with this Act or any national legislation regarding –
(a) the upgrading of slums and informal settlements within the Province;
(b) the contents of the status and annual reports to be submitted by municipalities to the responsible Member of the Executive Council in terms of this Act;
(c) the prerequisites for the financing of any projects adopted by municipalities to upgrade or relocate slums or informal settlements within the Province;
(d) the administration of any funds that the Provincial Government may advance to the municipalities for the purpose of financing their slum eradication programmes;
(e) the acquisition of any suitable land or building identified by a municipality for the relocation of persons living in a slum or informal settlement; and
(f) any administrative or procedural matter necessary to give effect to the provisions of this Act.

(2) The responsible Member of the Executive Council may by regulation made in terms of subsection (1) declare a contravention of, or failure to comply with, any specific regulation hereof an offence.

Delegations
23.(1) The responsible Member of the Executive Council may delegate to an officer, employee or functionary in the department any power or duty conferred on the responsible Member of the Executive Council by this Act, except –
(a) the power to make regulations referred to in section 22; and
(b) the duty to table the consolidated report in the Provincial Legislature in terms of section 17.

(2) A delegation referred to in subsection (1) –
(a) must be in writing;
(b) does not prohibit the responsible Member of the Executive Council from exercising that power or performing that duty; and
(c) may at any time be withdrawn or amended in writing by the responsible Member of the Executive Council.

Short title
24. This Act is called the KwaZulu-Natal Elimination and Prevention of Re-emergence of Slums Act, 2006.

eThekwini Municipality’s Land Audit and Housing List Files

The Open Democracy Advice Centre recently asked to eThekwini municipality to provide information still outstanding from Abahlali’s request for information in terms of the Promotion of Access to Information Act – i.e. to take a little more seriously the request to tell people what it was considering doing on housing, and its assessment of its tasks completed so far. These are the documents obtained through that request. More information is still required.

A PIE in the Face – Comments on the Government’s New Eviction Legislation

Here are three comments on the government’s “Prevention of Illegal Eviction from and Unlawful Occupation of Land” Amendment bill. Shortened to PIE, the bill seems to be a manifesto for landowners, and a kick in the teeth for shackdwellers. These comments are by Stuart Wilson, of the Centre for Applied Legal Studies at Wits University here, Jean du Plessis of the Centre on Housing Rights and Evictions, here, Koni Benson of the International Labour Research and Information Group (ILRIG) (here) and Marie Huchzermeyer of the University of the Witwatersrand (here).
———

Comment on General Notice 1851 of 2006

PREVENTION OF ILLEGAL EVICTION FROM AND UNLAWFUL OCCUPATION OF LAND AMENDMENT BILL 2006

by
Stuart Wilson

CENTRE FOR APPLIED LEGAL STUDIES
UNIVERSITY OF THE WITWATERSRAND

30 January 2007

Contact details:
Mr. Stuart Wilson
Centre for Applied Legal Studies
University of the Witwatersrand
Private Bag 3
WITS 2050
011 717 8609
stuart.wilson@wits.ac.za

A INTRODUCTION

1. The Centre for Applied Legal Studies (CALS) is a non-profit research, advocacy and public impact litigation institute attached to the University of the Witwatersrand, Johannesburg. CALS’ comments on the Prevention of Illegal Eviction from and Unlawful Occupation of Land Bill, 2006 (“the PIE Bill”) are based on its extensive engagement in housing rights research in, and public interest litigation on behalf of, poor, informal and inadequately-housed urban communities in the Johannesburg area.

2. CALS’ recent research work has encompassed the following housing rights-related themes:

• The impact of urban renewal on access to housing and basic services for poor and inadequately housed communities in the inner city of Johannesburg;

• The structure and dynamics of informal settlement populations; and

• The impact of large-scale forced evictions and/or relocations on access to economic opportunities and social services in informal communities.

3. The housing-related legal assistance CALS has provided to its clients (which range from individuals to communities of over 6000 people) has encompassed:

• The defence and prevention of mass evictions, without the provision of alternatives, at the instance of organs of state as part of urban planning and regeneration initiatives;

• Efforts to compel the Johannesburg municipality to effectively implement informal settlement upgrading policies;

• The defence and prevention of evictions, without the provision of alternatives, at the instance of private landowners;

• The reversal of illegal water disconnections effected both by private landowners and by organs of state; and

• The defence and prevention of evictions at the instance of the Johannesburg municipality as part of its efforts to recover incorrectly calculated debt.

4. CALS therefore comments on the PIE Bill from an informed perspective and trusts that its submission will enhance the quality of the public discussion the Bill will undoubtedly continue to generate.

B THE PIE AMENDMENT BILL

Section 3 of the PIE Bill

5. Section 3 of the PIE Bill proposes that the application of the PIE Act be significantly narrowed. If the Bill is passed, the PIE Act will no longer apply to:

• Tenants and persons who occupied land “in terms of any other agreement” so long as the tenancy or other agreement has been validly terminated; and
• Persons who occupied land as its owner and have lost ownership of the land.

6. The explanatory memorandum states that this amendment is necessary in order to reverse the decision of the Supreme Court of Appeal in Ndlovu v Ngcobo; Bekker v Jika, (“Ndlovu”) which confirmed that the PIE Act applies to “holders-over” (i.e. persons who took occupation of land with the consent of the owner and/or the person in charge, which consent was subsequently withdrawn).

7. The memorandum characterises the impact of the Ndlovu decision as undesirable and states that “the Act should cover only those persons who unlawfully invade land without the prior consent of the landowner or the person in charge”. The memorandum does not say why the Act’s application should be restricted in this way.

CALS submits that Section 3 of the PIE Bill will create undesirable and constitutionally unjustifiable inequalities between groups of occupiers who are equally in need of the PIE Act’s protection. It will increase the likelihood and frequency of evictions which lead to homelessness. It may enable organs of state to evict occupiers of state-owned land without considering their needs for alterative housing.

8. The PIE Act is not just any legislation. It is constitutional legislation. Its purpose is to give effect to Section 26 (3) of the Constitution of the Republic of South Africa, 1996. Section 26 (3) states that:

“No-one may be evicted from their home, or have their home demolished without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions”

9. “Arbitrary evictions” may be defined as evictions which take place without due process and/or which take place for the wrong reasons. The constitutional injunction to consider “all the relevant circumstances” is an attempt to ensure that considerations counting for and against the execution of an eviction in a given context will be weighed carefully and judiciously before a person is deprived of access to their current home, or, indeed, to any permanent home. In Port Elizabeth Municipality v Various Occupiers (“Port Elizabeth Municipality”) the Constitutional Court had this to say on the purpose of the provision:

The judicial function [in adjudicating an eviction application] is not to establish a hierarchical arrangement between the different interests involved, privileging in an abstract and mechanical way the rights of ownership over the right not to be dispossessed of a home, or vice versa. Rather it is to balance out and reconcile the opposed claims in as just a manner as possible taking account of all the interests involved and the specific factors relevant in each particular case.

10. The PIE Act, correctly, in CALS’ view, identifies a number of circumstances which must be taken into account before a decision is made. These are:

• How the occupier (s) came onto the land in question;
• How long the occupier(s) have lived on the land in question;
• The needs of elderly, disabled, child occupiers, and occupiers in female headed households; and
• The availability of suitable alternative accommodation.

As Port Elizabeth Municipality made clear, other relevant contextual factors can and must, where appropriate, be taken into account if doing so would tend toward a just outcome.

11. In essence, what the PIE Bill says is that if an occupier is a lease or bond defaulter, or occupies land in terms “of any other agreement” (a provision so frighteningly broad its impact can only be guessed at) the mandatory circumstances set out in the PIE Act no longer matter. It does not matter if a land owner wants to evict an elderly, disabled, female lease or bond defaulter supporting 5 children on to the streets in circumstances where she is unlikely to find anywhere else to live, at least in the short term. All that matters is that she defaulted in her lease and/or bond agreement. Moreover the PIE Act’s mechanisms for mediation and/or for the joinder of the municipality as housing provider of last resort are not to be extended to this person, simply because she is a lease or bond defaulter.

12. The PIE Bill envisages that a court will be able to rule that the PIE Act applies to bond or lease defaulter if it is satisfied that “the plight of a person is of such a nature that any act or omission by the owner or person in charge of land was calculated to avoid the application of” the PIE Act. This provision is very vague. It does not state what constitutes evidence of an ulterior motive, which is ordinarily very difficult to allege and prove, especially in application proceedings in which many occupiers are unlikely to be familiar with what is required to prove bad faith on the part of the landlord.

13. However, the fundamental point is that the good faith of an owner or landlord is hardly sufficient to guarantee the fairness of eviction proceedings brought against a bond or lease defaulter. What is required is a consideration of the social and economic circumstances of the occupier in question as well as the obligations that the state may have to provide that occupier with some form of alternative accommodation, at least in the short term. The PIE Act, as it currently stands, creates the framework for such a consideration. The PIE Bill seeks to place lease and bond defaulters beyond the protection of this framework. It does so arbitrarily.

14. CALS submits that the PIE Bill creates a situation which the Constitutional Court has expressly prohibited. It establishes “a hierarchical arrangement between the different interests involved [in an eviction application], privileging in an abstract and mechanical way the rights of ownership over the right not to be dispossessed of a home”. The PIE Bill says that, assuming the person seeking the eviction is acting in good faith, the existence of a lease or bond agreement (or “any other agreement”) on which the occupier has defaulted is the circumstance of paramount importance. In practice, the narrowing of application of the PIE Act is likely to convince Judges and Magistrates across South Africa that the legislature intends that this is the only relevant circumstance they need to consider before granting an eviction order.

15. This result would be unconstitutional for two reasons. First it would fly in the face of the constitutional injunction to consider all relevant circumstances before coming to a decision. Second, it would create an arbitrary distinction between equally very poor and vulnerable people who are party to lease agreements and those who are not. There is no reason to suppose that a tenant will ordinarily be any less likely to be rendered homeless by an eviction than a non-tenant. What matters is socio-economic status, not abstract legal status. The PIE Bill asks the courts to ignore socio-economic status and concentrate on a highly formalistic distinction between two legal statuses.

16. CALS has represented many hundreds of people against eviction at the instance of private landowners and organs of state. Many have been so-called “land invaders” – people who occupy land unlawfully because they simply have nowhere else to go. Others have been lease and bond defaulters. Because of the complexities of population movements and social change in urban areas over the past several years, many people live on the same land or in the same buildings as so-called “land invaders” in terms of a lease or bond. Alternatively, they live on different land but are often in exactly the same socio-economic position. Usually they are unemployed, informally employed or, at best, employed on the very lowest rungs of the formal labour market. They earn incomes which do not enable them to sustain a bond or a lease in accommodation anywhere within a reasonable distance of where they actually work.

17. Many of the rent or bond defaulters CALS has represented are people who have defaulted on their leases or bonds precisely because their socio-economic status has declined, either because they have been retrenched from their jobs, a major income earner in the household has died (often of HIV/AIDS) or their informal livlelihood strategies have been thwarted by an increasingly formalising and repressive local state, which perceives informal economic activity to be at odds with urban regeneration.

18. CALS submits that the PIE Bill, if passed, may allow many of these peoples’ housing needs to be completely ignored in court proceedings for their eviction, simply because, through no real fault of their own, they have defaulted on their lease or bond. The local municipality will not be asked to consider the provision of alternative housing (even on an emergency basis). A court will be effectively blind to the possibility that its order will leave the occupier(s) homeless.

19. In this regard, the PIE Act, as it currently stands, serves an important accountability function. It envisages that if a landowner is entitled to an eviction, but that eviction would leave the occupier homeless, a municipality will ordinarily be required to assist in the provision of alternative accommodation, or at least justify to a court why it cannot provide an alternative on the occupier’s eviction.

20. This was the situation in Modderklip East Squatters v Modderklip Boerdery (Pty) Ltd (“Modderklip”) , where the Supreme Court of Appeal prevented the execution of an eviction order in respect of 40000 occupiers in circumstances where the Ekurhuleni municipality would not provide alternative land to the occupiers. The Court was dissatisfied with the municipality’s explanation for its unwillingness to come to the occupiers’ aid.

21. All of the occupiers were very poor people who would have been rendered homeless, at least in the short term, if they were evicted. The court held that “to the extent that we are concerned with the execution of the court order, Grootboom made it clear that the government has an obligation to ensure, at the very least, that evictions are executed humanely. As must be abundantly clear by now, the order cannot be executed – humanely or otherwise – unless the state provides some land.” (emphasis added)

22. In these circumstances, the Court stayed the eviction of the occupiers and required the state to compensate the owner for the loss of the use of the occupied land for as long as it failed to provide an alternative. In effect, the municipality was held accountable for the situation for its failure to fulfill its constitutionally mandated function as housing provider of last resort.

23. It is true that the occupiers in Modderklip were not tenants. However, it is hard to imagine that the Supreme Court of Appeal’s ruling would have been unfair or inappropriate if the occupiers in Modderklip were defaulting tenants or bond holders.

24. The PIE Bill as it stands allows municipalities to escape responsibility for dealing with the very real housing crises which can be caused by evictions. Even where the municipality itself is seeking an eviction as landlord in terms of a validly cancelled lease, the PIE Bill does not envisage that it will be required to assist the occupiers it seeks to evict in finding any alternative at all. In circumstances where lease-holding occupiers of state-owned housing are often likely to be very poor and vulnerable people, this is perverse.

25. For all of these reasons, Section 3 of the PIE Bill (provided, of course, that it is not quickly declared unconstitutional once passed) will increase the likelihood of evictions which will render many desperately poor and vulnerable people homeless. As the Constitutional Court has said:

“It is not only the dignity of the poor that is assailed when homeless people are driven from pillar to post in a desperate quest for a place where they and their families can rest their heads. Our society as a whole is demeaned when state action intensifies rather than mitigates their marginalisation. The integrity of the rights based vision of the Constitution is punctured when governmental action augments rather than reduces denial of the claims of the desperately poor to the basic elements of a decent existence.”

CALS submits further that the Bill will not significantly alleviate the frustrations property owners and landlords have expressed at the difficulty of obtaining a court order to repossess property occupied by persons who have defaulted on their leases. It will make almost no difference to banks who wish to repossess property from defaulting bond-holders.

26. Although the memorandum to the PIE Bill does not expressly say so, Section 3 is doubtless an attempt to preclude the so-called “affluent tenant” from claiming the protection of the PIE Act. This is unnecessary. As the law currently stands, an “affluent tenant” is not given any substantive protection against eviction.

27. This is clearest from the decision of the Supreme Court of Appeal in Wormald v Kambule (“Wormald”) . There, in considering the nature of the court’s discretion in eviction proceedings to which the PIE Act applies, Maya AJA held that:

“An owner is in law entitled to the possession of his or her property and to an ejectment order against a person who unlawfully occupies that property except if that right is limited by the Constitution, another statute, a contract or on some other legal basis.”

28. The judge held further that “the effect of PIE is not to expropriate the landowner . . . it cannot be used to expropriate someone indirectly. The landowner retains the protection against arbitrary depravation of property under s 25 of the Bill of Rights. PIE serves merely to delay or suspend the owner’s full proprietary rights until a determination has been made whether it is just and equitable to evict the unlawful occupier and under what conditions.”

29. In the circumstances of the case, the judge held that it was clear that the occupier “is not in dire need of accommodation and does not belong to the class of poor an vulnerable persons whose protection was obviously in the foremost of the legislature’s minds when in enacted PIE. To my mind, her position is essentially no different to that of the affluent tenant, occupying luxurious premises, who is holding over.”. In the circumstances, the judge ordered the occupier’s eviction.

30. It is therefore clear that the PIE Act, as interpreted by the courts, does not protect affluent tenants. It is also clear that its application cannot lead to an expropriation of property.

31. The potential inconvenience to which the PIE Act does subject property owners and landlords is the cost of, and delay in, their repossession of property. These costs and delays may be occasioned by the court proceedings aimed at the exploration of an occupier’s personal circumstances. South African society is characterised by high levels of poverty, inequality and tenure insecurity. The majority of South Africans do not own land. In these circumstances, CALS submits, at least some delay for the purpose of ensuring a fair an equitable eviction process is not unreasonable.

32. However, the PIE Bill, if passed, will do little to reduce the costs and delays which currently burden property owners and landlords. Even if the PIE Bill is passed into law, owners and landlords will still be required to go to court to effect a lawful eviction. There is no reason to suppose that eviction proceedings after the amendment will be any shorter or less costly than they are now.

33. The solution to the problem of costs and delays in eviction proceedings (if they are really problems at all) is to make lawyers and courts function more effectively. It is not to prejudice potentially desperately poor tenants and former bond holders by removing them from the PIE Act’s protection.

34. Following the line of reasoning adopted in Wormald, it is unlikely that the PIE Act would be applied to protect an affluent bond defaulter, who could find alternative accommodation, in occupation of property repossessed in terms of a bond agreement. Indeed, in Standard Bank of South Africa v Saunderson and Others the Supreme Court of Appeal decided that a bank may execute against immovable property burdened by a bond in its favour, without even pleading its case in terms of Section 26 of the Constitution. All the bank as Plaintiff must do, is draw the Defendant bond holder’s attention to Section 26 (1) of the Constitution in its summons.

35. For all these reasons, CALS submits that the PIE Bill, if passed, will contribute to an increasing cycle of poverty, desperation and homelessness in South Africa. It will not significantly address the difficulties of property owners, banks and landlords who seek to repossess property from defaulting tenants and bondholders, affluent or otherwise.

Section 4 of the PIE Bill

36. Section 4 of the PIE Bill creates the offence of practicing “constructive eviction”. Section 2 of the Bill defines “constructive eviction” as:

“any act or omission, including the deprivation of access to land or to essential services or other facilities related to land, which is calculated or likely to induce a person to vacate occupied land or refrain from exercising access to land”

37. CALS welcomes the addition to the Bill of an inclusive definition of “constructive eviction”. In CALS’ experience, the disconnection of a property’s water or electricity supply is often a tactic employed by unscrupulous landlords or organs of state in order to encourage occupiers to vacate land without having to go to the effort of obtaining an eviction order.

However, CALS submits that the Bill should be strengthened to prevent explicitly the disconnection of water and other essential services to a property by an owner or a person in charge without a court order.

38. If the aim of the PIE Bill is to stop interference with an unlawful occupier’s access to land without process of law, it would be more effective to simply ban service disconnections altogether and explicitly allow for a court to order the reconnection of unlawfully disconnected services. Such a measure would be consonant with, and strengthen, the common law remedy of spoliation, which is itself directed toward the prevention of interference with possession of property without process of law. It would also be commensurate with Section 13 (1) (b) of the Gauteng Unfair Practices Regulations, 2001, made under the Rental Housing Act 50 of 1999, which forbids the termination of water, electricity and gas supplied by a landlord to a tenant without an order of court.

39. This would give occupiers unlawfully dispossessed of access to services a remedy additional to relying on a police investigation and prosecution, which can take many months if it happens at all. Indeed, although Section 8 of the PIE Act makes eviction without a court order a criminal offence, South African Police Service (SAPS) officers are notoriously reluctant to respond to complaints of illegal eviction. CALS is unaware of a single successful prosecution in terms of Section 8 of the PIE Act since its promulgation.

Section 5 of the PIE Bill

40. Section 5 of the PIE Bill repeals the distinction between occupiers living on land for less than six months, and those who have been living on land for more than six months. Its stated purpose is to eliminate unjustifiable discrimination between groups of people who are equally in need. This is welcome.

41. However, for the reasons set out above, the narrowing of the application of the Act envisaged in Section 3 of the Bill simply creates another arbitrary distinction between groups of occupiers who may be in the same socio-economic circumstances. Section 3 of the Bill therefore, to some extent, defeats the underlying purpose of Section 5. CALS submits that this is undesirable.

C SECTION 2 (d) OF THE RENTAL HOUSING AMENDMENT BILL

Section 2 (d) of the Rental Housing Amendment Bill allows for the “repossession of rental housing property” after a ruling of a Rental Housing Tribunal. To the extent that this amendment is intended to remove jurisdiction over evictions in terms of lease agreements from the Magistrates’ and High Courts to a Rental Housing Tribunal, CALS submits that this would be undesirable.

42. Section 2 (d) of the Rental Housing Bill is clearly intended to complement the narrowing of the PIE Act’s application envisaged in Section 3 of the PIE Bill. There are two reasons why it would be undesirable to allow a Rental Housing Tribunal to make a ruling which would have the effect of evicting a defaulting tenant.

43. First, Rental Housing Tribunals are not institutionally equipped to make the far-reaching decisions required to balance out the completing rights and obligations of landowners, landlords, occupiers and the state. Although Section 13 (3) of the Rental Housing Act allows a Rental Housing Tribunal broad powers of subpoena, the Act provides no explicit mechanism for holding municipalities accountable for performing their function as housing provider of last resort.

44. Second, allowing a Rental Housing Tribunal to order an eviction would be a violation of Section 26 (3) of the Constitution, which provides that no-one may be eviction from their home without an order of court. The Rental Housing Tribunal is not a court. Section 26 (3) of the Constitution clearly envisages that only a judicial officer, with the appropriately broad experience of the administration of justice and equity, ought to be allow to make an order depriving a person of access to their home.

D CONCLUSION

45. The PIE Act is an important and sensitive piece of legislation. After several years of application in its current form, the courts have, in theory at least, achieved an equitable balance between the rights and obligations of landowners, tenants, the landless and the state. A degree of legal certainty has also been achieved. Jurisprudence developed under the PIE Act and Section 26 of the Constitution may, in one sense, be summed up as follows:

• A property owner is entitled to possession of his or her property;

• Everyone is entitled to reasonable measure of tenure security – a place to rest their heads and call “home”;

• The state is the housing provider of last resort, at least on an emergency basis;

• Evictions which lead to homelessness will almost never be permitted;

• The state should participate in eviction proceedings in order to prevent evictions which lead to homelessness and to be accountable to property owners whose rights to property are unjustifiably infringed by the state’s failure to ensure adequate tenure security to all.

46. The preservation of these principles is essential to ensure the alleviation of poverty and the maintenance of social stability. The PIE Bill, as it stands, unjustifiably limits their application. In the interests of preserving them, the vague and potentially destructive provisions in Section 3 of the Bill should be expunged altogether.

47. For all of these reasons, CALS submits that that PIE Bill should not be presented to Parliament in its current form.

—————————————————

Comment on General Notice 1851 of 2006: Prevention of
Illegal Eviction from and Unlawful Occupation of Land
Amendment Bill, 2006 as published in the Government
Gazette No 29501 dated 22 December 2006

by

The Centre on Housing Rights and Evictions (COHRE)

15 February 2007

Contact details:

Jean du Plessis c/o Moray Hathorn
Acting Executive Director Partner
Centre on Housing Rights and Evictions (COHRE) Webber Wentzel Bowens
83 Rue de Montbrillant 10 Fricker Road, Illovo Boulevard, Johannesburg,
1202 Geneva, Switzerland 2196, South Africa
Tel +41.22.7341028 Switchboard: +27.11.530 5000
Fax +41.22.7338336 Direct: +27.11.530 5539
RSA Tel +27.82.5575563 Telefax: +27.11.530 6539
Email address: jean@cohre.org Email address: morayh@wwb.co.za
Website: www.cohre.org Website: www.wwb.co.za

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BACKGROUND

The Centre on Housing Rights and Evictions (COHRE) is a Geneva-based, international nongovernmental human rights organisation founded in 1994 as a foundation in the Netherlands
(Stichting COHRE). COHRE maintains offices in a number of countries around the world,
including South Africa. COHRE’s various offices coordinate global, regional and local
activities in pursuit of its mission, which is to promote housing rights for everyone,
everywhere.

COHRE has been granted Special Consultative Status by the United Nations Economic and
Social Council (ECOSOC, since 1999), and the Organisation of American States (OAS, since
2002). COHRE also has participatory status to the Council of Europe (CoE, since 2003) and
Observer Status with the African Commission on Human and Peoples’ Rights (ACHRP, since
2003).

Working closely with local partners in South Africa, COHRE has carefully studied the
Prevention of Illegal Eviction from and Unlawful Occupation of Land Amendment Bill, 2006
as published in General Notice 1851 of 2006 contained in Government Gazette No 29501
dated 22 December 2006.

We have a number of concerns we urgently wish to bring your attention:

SUBMISSION

1. Municipalities are under an obligation under the Housing Code in Chapter 12: Housing
Assistance in Emergency Housing Circumstances to take a proactive approach to
dealing with people in desperate need whose immediate housing needs cannot be met
by then existing low income housing development schemes. Chapter 12 pertains to
people who find themselves “in an emergency housing situation such as the fact that
their shelter has been destroyed or damaged, their prevailing situation poses an
immediate threat to their life, health and safety, or they have been evicted, or face the
threat of imminent eviction.”
2. Municipalities are under a further obligation under the Housing Code in Chapter 13:
Upgrading of Informal Settlements to take proactive measures to secure the in situ
upgrading of informal settlements where feasible.

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3. Section 9 of the Housing Act and Paragraph 12.4.1 of Chapter 12 of the Housing Code
requires municipalities to investigate and assess the need for emergency housing within
their areas of jurisdiction and to plan proactively therefor. If the circumstances do merit
the submission of such a plan for approval to the Provincial housing department, the
municipality must submit one.
4. The enumerated categories of different Emergency Housing Situations catered for in
Chapter 12 of the Housing Code are listed under Section 12.3.5.1.
5. The guiding principle of Chapter 13 of the Housing Code is the minimization of
disruption and preservation of community within informal settlements. Thus, it
discourages the displacement of households and acknowledges that only in certain
limited circumstances may it be necessary to permanently relocate households that are
living in hazardous circumstances or in the way of essential engineering or municipal
infrastructure. Legal processes for eviction should only be initiated as a last resort.
6. Under either Chapter 12 or 13 of the Housing Code, rather than eviction, a municipality
must purchase the land on which an informal settlement is situated and upgrade the
settlement in situ, alternatively, provide alternative accommodation for the inhabitants.
7. In his judgement in City of Johannesburg v Rand Properties (Pty) Ltd and Others 2006
(6) BCLR 728 (W) the judge summed up the housing policy as follows:
“The Housing Act imposes specific obligations on local government in this regard.
Section 9 requires every municipality to take all reasonable and necessary steps within
the framework of national and provincial housing legislation and policy to: ensure that
the inhabitants of its area of jurisdiction have access to adequate housing on a
progressive basis; set housing delivery goals in respect of its area of jurisdiction; identify
and designate land for housing development4 ensure that conditions not conducive to
the health and safety of the inhabitants of its area of jurisdiction are prevented or
removed; create and maintain a public environment conducive to housing development
which is financially and socially viable; promote the resolution of conflicts arising in the
housing development process; and initiate, plan, coordinate, facilitate, promote and
enable appropriate housing development in its area of jurisdiction.

In terms of section 2 of the Housing Act, municipalities must perform the above functions
in a manner which: gives priority to the needs of the poor in respect of housing
development, involves meaningful consultation with individuals and communities
affected by housing development; ensures that housing development is economically,

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fiscally, socially and financially affordable and sustainable; and ensures that housing
development is administered in a transparent, accountable and equitable manner and
upholds the practice of good governance.

THE EMERGENCY HOUSING PROGRAMME

The National Housing Code’s “Programme for Housing Assistance in Emergency Housing
Circumstances,” was adopted in terms of the Housing Act, (“the Emergency Housing
Programme”) and was a direct response to Grootboom’s ruling that the State’s positive
obligations in terms of section 26 of the Constitution include an obligation to provide
temporary relief for persons in crisis or in a desperate situation

“The Grootboom judgment furthermore suggested that a reasonable part of the national
budget be devoted to providing relief for those in desperate need….Consequently, this
Programme is instituted in terms of section 3(4)(g) of the Housing Act, 9997, and will be
referred to as the National Housing Programme for Housing Assistance in Emergency
Housing Circumstances. Essentially, the objective is to provide temporary relief to people in
urban and rural areas who find themselves in emergencies as defined and described in
this Chapter.”

Clause 12.3.1 of the Emergency Housing Programme defines an emergency as, inter alia,
a situation where

“the affected persons”…owing to circumstances beyond their control … are evicted or
threatened with imminent eviction from land or unsafe buildings, or situations where proactive steps ought to be taken to forestall such consequences or whose homes are
demolished or threatened with imminent demolition, or situations where pro-active steps
ought to be taken to forestall such consequences.”

The Programme makes funding available from the Provincial Departments of Housing for
emergency housing assistance.

The Programme requires municipalities to investigate and assess the emergency housing
need in their areas of jurisdiction and to “plan proactively” therefor. Where an emergency
housing need is foreseen municipalities must apply to the relevant Provincial Department of
Housing for funding for the necessary assistance. After approval by the MEC of the relevant
Provincial Department of Housing, the funding is made available to the municipality for direct
implementation of the assistance. In terms of the Programme the Provincial Department of
Housing may provide support to ensure the successful implementation of the assistance.

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While the Programme is flexible in order to cater for diverse situations, it does lay down
certain minimum standards. It requires that water and sanitation be provided and that
the floor area of a temporary shelter be at least 24 metres squared. Notably an amount
of R23 892.00, including VAT, may be made available to municipalities, per grant.”

8. Chapters 12 and 13 of the Housing Code in the main covers persons falling within a
socio-economic group previously disadvantaged by racial discrimination (and suffering
from ongoing socio-economic disadvantage), certain categories of which would now be
excluded from the protection of PIE, as proposed by the PIE Bill. The following are
categories of such persons (there are no doubt others) who would now be excluded
from the protection of PIE:
8.1 inner-city tenants who had to run the gauntlet of the Group Areas Act, and whose
tenancy has subsequently been terminated following withdrawal of rental payments
because of the failure of landlords to maintain the premises;
8.2 persons (black) who had their site and residential permits upgraded to ownership,
then took out bonds and then found themselves retrenched (and, as a result unable
to make the necessary payment in relation to their bonds). Such persons would
probably have been the victims of inferior education as a result of the operation of
the Bantu Education Act, No 47 of 1953 and thus at a disadvantage in a competitive
economic environment;
8.3 informal settlements which previously had legal status as emergency camps under
the Prevention of Illegal Squatting Act (PISA) and still remain vulnerable to eviction.
The legal history of one such informal settlement, Thembelihle (which is situated in
Lenasia, Johannesburg), is instructive, as other vulnerable communities currently
enjoying the protection of PIE have a similar status. The legal history is set out
below:
8.3.1 In terms of Administrator’s Notice 575 dated 28 November 1990 regulations for
the control and administration of Thembelihle by the administrator of the
Transvaal were published in the Government Gazette in terms of Section 6(6)
of the Prevention of Illegal Squatting Act number 52 of 1951;
8.3.2 In terms of Administrators Notice 633 dated 27 November 1991, Thembelihle
was declared to be a transit area in terms of Section 6(3) of the Prevention of
Illegal Squatting Act;

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8.3.3 In terms of Administrators Notice 311 dated 6 July 1993, Thembelihle was
declared to be a defined area outside a local authority as contemplated in
Section 2(11) of the Black Local Authorities Act 1982;
8.3.4 In terms of Section 2(11) of the Black Local Authorities Act:
“An Administrator may by notice in the official Gazette define for the purpose of
this sub-section an area outside a local authority area and exercise in such
area the powers conferred upon the City Council in a local authority area under
this act.”

8.3.5 On 3 December 1994 the Premier of Gauteng published Proclamation number
24 (Premiers) 1994 in an Extraordinary Provincial Gazette. This proclamation
was made in terms of the powers granted to him in Section 10 of the Local
Government Transition Act. The proclamation dealt with, inter alia, the
dissolution of certain local government bodies and their replacement with new
transitional local authorities. Section 2(2) of the proclamation read as follows:
“Administrators Notice no 310 of 6 July 1993, number 546 of 6 December
1993, number 633 of 27 November 1991 read with number 311 of 6 July 1993,
no 32 of 3 February 1993 and number 272 of 24 June 1992, are as from the
effective date repealed under section 13 (6)(a) of the Local Government
Transition Act, 1993, insofar as they apply to the area of the townships known
as Doornkop/West of Soweto, Finetown/Thembelihle (Lenasia Transit Area),
Alexandra Far East Bank and Diepsloot/Nietgedacht, respectively”;

8.3.6 In terms of Section 9 of Proclamation 24 of 1994 the assets, liabilities, rights
and obligations of the Administrator in respect of Thembelihle were transferred
to the Greater Johannesburg Transitional Metropolitan Council. In terms of the
aforesaid Section 9 as amended by Premier’s Proclamation 42 of 1995 the
assets, liabilities, rights and obligations of the Greater Johannesburg
Transitional Metropolitan Council in respect of Thembelihle were transferred to
the Southern Metropolitan Substructure of the Greater Johannesburg
Transitional Metropolitan Council. In terms of Notice 6766 of 2000 published in
the Provincial Gazette Extraordinary on 1 October 2000 the City of
Johannesburg became the successor in law in respect of all the resources,
assets, liabilities, right, obligations, titles and the administrative and other
records of the Southern Metropolitan Substructure of the Greater
Johannesburg Transitional Metropolitan Council.

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9. The Thembelihle community was under intense pressure for a number of years to
relocate to Vlakfontein. In 2003, the City brought an application in the High Court for an
order of eviction from Thembelihle and relocation to Vlakfontein. The case was
defended. The City of Johannesburg has never set the application down for hearing.
Although this case is still pending the City now seeks to relocate at least part of the
community to Lehae, a new township some three kilometres away on the outskirts of
Lenasia. (Thembelihle is situated in the heart of Lenasia, a prosperous urban area, and
the community has immediate and easy access to jobs, schools, clinics and other
facilities within Lenasia). The Thembelihle community contends for an in situ upgrading
in terms of Chapter 13 of the Housing Code. A feasibility study in this regard is awaited
from the City of Johannesburg. If the amendments to PIE are made the community will
be precluded from raising any non-compliance by the authorities with Chapter 13 as the
basis for an argument that eviction and relocation would be unjust and inequitable, if
fresh legal action was to be instituted for their eviction. Indeed if the City of
Johannesburg was to proceed with the pending application for eviction and relocation to
Vlakfontein the community may be precluded from relying on PIE in its defence.
10. It is an anomaly that these categories of persons, to whom either or both Chapters 12
and 13 of the Housing Code apply, should now be removed from the protection of PIE
and thus rendered more vulnerable to eviction and the exacerbation of their need before
the benefits of Chapters 12 and 13 can be applied to them. This is in direct
contravention of the tendency of the courts to maximise the protection from forced
eviction of the socio-economically disadvantaged, as demonstrated by the following
judgments:
• Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC)
• President of RSA and Another v Modderklip Boerdery (Pty) Ltd (2005) (5) SA 3
(CC)
• City of Cape Town v Rudolph 2004 (5) SA 39 (C)
• City of Johannesburg v Rand Properties (Pty) Ltd and Others 2006 (6) BCLR
728 (W)
• Property Lodging Investments (Pty) Ltd v The Unlawful Occupiers of Erf 705,
Halfway Gardens Ext 80 and others: TPD case no: 6292/ 2006 (unreported)
In the final two cases, the courts expressly linked eviction to compliance by the
municipality with its obligations under the Housing Code.

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11. In City of Johannesburg v Rand Properties (Pty) Ltd and Others 2006 (6) BCLR 728 (W)
the judge put it as follows at paragraph 65 of his judgement:
“The facts of the present matter reflect the plight of thousands of people living in the
inner city, in deplorable and inhuman conditions. Our Constitution obliges the State to
act positively to ameliorate these conditions. These obligations have been, and continue
to be designed at a macro level. We now require a coherent plan and the
implementation of this plan at the micro level. The obligation is to provide access to
adequate housing to those unable to support themselves and their dependants.”

12. In consequence thereof the judge included the following paragraphs in his order:
“(3)The Applicant is directed to devise and implement within its available resources a
comprehensive and co-ordinated programme to progressively realise the right to
adequate housing to people in the inner city of Johannesburg who are in a crisis
situation or otherwise in desperate need of accommodation.

(4) Pending the implementation of the programme referred to in paragraph 3 above,
alternatively until such time as suitable adequate accommodation is provided to the
Respondents, the Applicant is interdicted from evicting or seeking to evict the current
Respondents from the properties in this application.”
13. Implicit in such an order is recognition by the court that the existence or implementation
of a plan for the housing of specific occupants is a relevant factor in determining whether
an eviction would be just and equitable in terms of PIE. In short, the courts have been
careful to ensure that before evictions taking place the intended benefits to prospective
evictees of Chapters 12 and 13 of the Housing Code become available to them. The
courts have been careful to ensure that evictions do not exacerbate the conditions that
Chapters 12 and 13 are designed to ameliorate.
14. The occupiers in this case includes persons who have never had the consent of the
owner or person in charge of land to reside on the premises concerned and thus would
continue to have the protection of PIE. Others are former tenants and would, if the
amendment is adopted, fall outside of the protection of PIE. Both categories are from the
same desperately needy socio-economic group.
15. Sachs J in the Port Elizabeth Municipality places the State’s obligations under Section
26(3) of the Constitution in the following historical framework:

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“PISA, accordingly, gave the universal social phenomenon of urbanisation and intensely
racialised South African character. Everywhere the landless poor flocked to urban areas
in search of a better life. This population shift was both a consequence of and a threat to
the policy of racial segregation. PISA was to prevent and control what was referred to as
squatting on public or private land by criminalising it and providing for a simplified
eviction process. The powers to enforce politically motivated, legislatively sanctioned
and State sponsored eviction and forced removals became a comer stone of apartheid
land law. This marked a major shift, both quantitatively and qualitatively (politically).
Evictions could be sought by local goverment and achieved by use of criminal rather
than civil law. It was against this background and to deal with these injustices, that
section 26(3) of the Constitution was adopted and new statutory arrangements
made…….that a third aspect of section 26(3) is the emphasis it places on the need to
seek concrete and case specific solutions to the difficult problems that arise. Absent the
historical background outlined above, the statement in the Constitution that the courts
must do what courts are normally expected to do namely, take all relevant factors into
account would appear otiose (superfluous) even odd. Its use in section 26(3) however
serves a clear constitutional purpose. It is there precisely to underline how non
prescriptive the provision is intended to be. The way in which the courts are to manage
the process has, accordingly, been left as wide open as constitutional language could
achieve, by design and not by accident, by deliberate purpose and not by omission.”

16. The obligation of the State and its organs to make provision for the housing of those
disadvantaged persons whom PIE is intended to protect is set out in and flows from
Section 26(2) read with Section 7(2) of the Bill of Rights. This obligation must be carried
out in a context in which land holdings in South Africa are skewed as a result of past
racial discrimination. The role of the courts in playing a key mediating role between the
rights of current land-owners and the needs of disadvantaged communities and persons
flows from Section 26(3) of the Bill of Rights. The intended amendments limit the
creative role afforded by the courts and processes of mediation in resolving the tension
between those who currently own land and the homeless, and will thus hinder and
obstruct the implementation of housing policy as contained in Chapters 12 and 13 of the
Housing Code.
17. This exclusion of one category (for example former tenants or mortgagors or occupiers
of former emergency camps under the Prevention of Illegal Squatting Act) and inclusion
of another (persons who have never had the consent of the owner or person in charge
of land to occupy it) in the same disadvantaged group (that is the socio-economic group
previously disadvantaged by racial discrimination and suffering from ongoing socio

.

economic disadvantage) under the protection of PIE is, we submit, unconstitutional.
This is because it offends the provisions of Section 9(1) of the Constitution which
enshrines the right of persons to the “equal protection and benefit of the law.” It is
submitted that any limitation of this principle should be applied against advantaged
persons (that is current landowners) in preference to it being applied against
disadvantaged persons, where their interests conflict (in this case the conflict between
the right to property and the right to have access to adequate housing).

18. To remove the protection of PIE from the categories of persons listed in Section 2(2) of
the intended amendment and to increase their vulnerability to eviction prior housing
becoming available to them in terms of national housing policy may also be in
contravention of the obligation under Section 26(1) of the Bill of Rights of the State to
desist from impairing the right of access to adequate housing, as enunciated by Yacoob
J at 66G-H in Government of the RSA v Grootboom and Others 2001 (1) SA 46.
19. The proposed amendments result in a more limited protection of the right to have
access to adequate housing. This is a retrogressive measure in contravention of the
dicta of Yacoob J at paragraph 45 of the Grootboom judgement: “It means that
accessibility should be progressively facilitated: legal, administrative, operational and
financial hurdles should be examined and, where possible, lowered over time. Housing
must be made more accessible not only to a larger number of people but to a wider
range of people as time progresses”.
20. In addition to these fundamental objections are those which may be described as
matters of detail. We will not deal with these. However, there is one further amendment
which we find disturbing. Currently organs of state can bring eviction proceedings under
PIE for land / buildings within their area of jurisdiction. That would now be amended to
land which organs of state administer or control. The current formulation more clearly
seems to bring eviction proceedings by municipalities under, for example, health,
building and fire by-laws within the purview of PIE. Is it the intention of this amendment
to enable municipalities to invoke health, building and fire by-laws to evict people
outside of the purview of PIE? If not, then what is the purpose of this particular
amendment?
CENTRE ON HOUSING RIGHTS AND EVICTIONS (COHRE)

===========================================

International Labour Research and Information Group

Box 1213, Woodstock, 7915 – South Africa
Tel: (021) 447 6375 Fax: (021) 448 2282
E-mail: info@ilrig.org.za
http://www.ilrigsa.org.za

Mr. R Thatcher
Department of Housing
Private Bag X644
Pretoria, 0001
Tel. 021.421.1629
richard@housing.gov.za

International Labour Research
and Information Group
Contact: Koni Benson
P.O. Box 1213
Woodstock
Cape Town, 7915
Tel. 021.448.6052
koni@ilrig.org.za

February 13, 2007

To Whom it May Concern,

We are writing to comment on the proposed amendments to the Prevention of Illegal Eviction From and Unlawful Occupation of Land Amendment Bill, 2006.

The International Labour Research and Information Group (ILRIG) is an NGO providing education, publications and research for the labour and social movements. ILRIG was founded in 1983. For many years we were linked to the sociology department at the University of Cape Town but since 2003 ILRIG is an independent trust. We study the kinds of socio-economic issues central to housing, homelessness, basic services, land invasions and evictions and we work with social movements trying to deal with repercussions of policies and practices around basic survival issues. It is our belief that the proposed change in legislation will make the situation of the poor and working class worse.

Our overall concern is that the bill has been proposed in response to the “nature and increase in land invasion” as a way to make it easier to evict “invaders” rather than getting at the root of why people are increasingly moving into open spaces, and how these actions can be negotiated or embraced by the state. We are concerned that the Constitutional right to housing is infringed upon by the proposed changes and that the changes offer no room to critique the roles and responsibilities of municipalities, or to include mechanisms that analyse why a particular invasion takes place. In fact, Section 3 of the proposed changes puts default of lease/bond payment over and above consideration of circumstances of occupiers such as length of time of occupation, the needs of the elderly, disabled, child, and female headed households, and the availability of suitable alternatives. Without considering socio-economic factors, the bill makes it a crime to be poor, desperate, and homeless.

The changes will make it easier to evict people, and thus easier to ignore their right to housing. Brazil, for example, also has a housing crisis. The Brazilian Constitution gives people ownership rights to private land peacefully occupied for 5 years. And the effects of legally embracing informal land occupation has been positive for land utilisation, and distribution for the poor, and for planners tasked with waiting lists and hundreds of thousands without homes in the city. Informality has been embraced by the Brazilian Constitution and “land invasions” are seen as a human needs-led development, and a process that can desegregate and positively shape urban space. The proposed changes to the law leave little room for the landless to become active agents of desperate change needed in accommodation policies and practices in South Africa and will rather push people into insecure subdivisions or overcrowded rooms vulnerable to exploitation by landlords.

The consideration of circumstances, and the availability of suitable alternative accommodation is too vague to be supported as an alternative to the way the bill is encoded at present. Likewise, by changing the term “owner” the bill blurs responsibility and gives more power to more people to act on behalf of “the haves” while eliminating someone in particular who needs to be responsible for justifying the eviction. For example, by proposing to change the term “owner” to “administration or control” the bill will make it harder to pin point who is responsible for making decisions about land. Rather, the Bill needs to ensure security of tenure in a way that does not only depend on interpretation of the judge, and in a way that stipulates that alternative accommodation does not disrupt the social networks people form for survival- i.e. alternative accommodation needs to be mandatory close to where people are “evicted” from.

It is our belief that the proposed change to the legislation will make the situation of the poor and working class worse. There will be less access to land, less participation, and the potential for violent conflict between state actors, like the police, and those effected, will increase with state officials having less flexibility to negotiate solutions other than forcibly evicting people from land/buildings.

The public participation process regarding this bill prevented those community organisations that we work with from making a submission. ILRIG would have prefered to make its submission as part of the coalition of social movements known as the Social Movements Indaba. The almost complete lack of publicity and the tight deadline of this process means that such groups are effectively barred and we have to make the submission on our own. Our participation does not mean we view this process as legitimate and fair. Such serious changes to constitutional legislation should not be made without mass based input and participation, especially by those who will be most effected by the changes- if the process continues to exclude the poor and especially their organisations it is fundamentally illegitimate and unfair.

For all of these reasons, ILRIG submits that that PIE Bill should not be presented to Parliament in its current form.

Signed,

¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬___________________________
Leonard Gentle
Director