Category Archives: Michael Clark

Evictions and Alternative Accommodation in South Africa: An Analysis of the Jurisprudence and Implications for Local Government

The jurisprudence (case law) of the South African courts (especially the Constitutional Court and the Supreme Court of Appeal) has significantly contributed to the right of access to adequate housing, enshrined in section 26 of the Constitution. The courts have supplemented the legal framework by developing a number of progressive legal principles that should be upheld in eviction cases. The jurisprudence has therefore led to the development of a new cluster of relationships between the parties involved in eviction proceedings, a cluster of relationships that is characterised by a series of rights and obligations pertaining to various parties. Yet despite years of litigation and a host of progressive judgments municipalities have been hesitant, unwilling or unable to act on the obligations laid down in case law. It is amid this complexity that this report seeks to provide a comprehensive analysis of the jurisprudence on evictions and alternative accommodation, and the contingent obligations on municipalities in respect of the provision of alternative accommodation. It is hoped that the report might act as a to guide activists, communities and public interest law practitioners caught up in eviction related struggles, as well as local government officials who are tasked with devising and implementing housing policy.

Business Day: State suppression of popular dissent should concern us all

State suppression of popular dissent should concern us all

by Michael Clark & Jackie Dugard

IN HIS state of the nation address on February 14, President Jacob Zuma said there were important lessons to be learnt from the Marikana tragedy. Skipping over what many may view as the most important lesson about the South African Police Service’s tragic use of lethal force, Zuma drew attention instead to the issue of violent protestors. Calling on South Africans to exercise their constitutionally protected right to protest in a peaceful manner, Zuma pointed out that protests that were not “peaceful” were “unacceptable”.

He said he had empowered the justice, crime prevention and security cluster to put measures in place to ensure that violent protests are dealt with appropriately, that arrests are made and that speedy and effective prosecutions occur. In addition, Zuma explained that specialised courts would be allocated to give priority to protest cases. Some have criticised this stance, arguing that similar measures have not been implemented in relation to a number of other pressing societal issues, such as rising inequality, violence against women and corruption.

Later in the same week, Justice Minister Jeff Radebe further elaborated on Zuma’s comments, saying in relation to protests that the state had to “exercise its authority” in order to maintain peace and security.

The comments by Zuma and Radebe clearly indicate what has become increasingly obvious to protesters themselves: the government is serious about controlling protests and has prioritised swift state response to crowd management.

While on the face of it there is nothing wrong with a government seeking to ensure that protests do not get out of control, when viewed alongside the range of inherently more pressing social problems facing SA, this preoccupation with crowd control does raise the question why the government has placed so much emphasis on “illegal” protest actions. The answer seems to emerge from the protests themselves.

Since 2004, and gaining momentum over the past few years, there has been a huge surge in the number of popular protests that occur in poor communities, causing some commentators to suggest that SA is facing a mushrooming rebellion.

While undoubtedly related to socioeconomic conditions such as chronic unemployment and inequality, and often referred to as being about “service delivery”, the protests are also about poor communities’ desires to meaningfully participate and influence the decisions that affect their daily lives: protests signal communities’ frustration with being excluded from decision-making processes by officials who either fail to engage with them or unilaterally convey government decisions that have already been taken on their behalf.

With formal avenues for contest and dissent blocked off, communities resort to a more visible expression of their discontent in protest actions. Protests thus expose the failure of formal democratic processes, which may explain the government’s profound discomfort in responding to public gatherings. Indeed, it seems it is the visible dissent and not necessarily the threat of violence that has spurred the government towards this repressive stance.

As such, protests are really a litmus test of our fragile democracy. In their proliferation, as well as in the government’s reaction to them, our leaders are found increasingly wanting.

In this light, protests represent an increasingly visible failure on the part of the government to advance an inclusive democracy. The state’s response is to attempt to suppress the rising tide of dissatisfaction by repressive means if necessary. This is apparent in the conduct of the police at public gatherings.

The police have recently been criticised for their insensitive and unsympathetic responses to protests in general. This is seen in their propensity to prohibit protests on unlawful grounds or unduly proscribe protest action, despite the fact that the Regulations of Gatherings Act (1993) specifies that demonstrators must notify the police of their intended protest, but need no permission.

Yet, as any community attempting to protest will attest, in case after case, the authorities unreasonably delay processes and the police regularly label ensuing protests “illegal”, using this terminology to unlawfully disperse legitimate protests or intimidate and threaten demonstrators.

The police have also been criticised for their increased brutality and heavy-handedness. This ruthless attitude was recently highlighted in the shocking video footage of a taxi driver (originally from Mozambique) who was viciously assaulted by police and dragged behind a police vehicle. The taxi driver later died, while being held in police custody. This incident speaks to a culture of violence that is being left unchecked.

Whether or not the culture of violence in the police is actively encouraged by the state, mere tolerance of such unchecked violence indirectly serves to undermine dissent.

At protests, police often use teargas, rubber bullets and even live ammunition for crowd management. In fact, as Jane Duncan, the Highway Africa chairwoman of the Media and Information Society at Rhodes University recently pointed out, it is often the violence of police against a generally peaceful protest that turns protests violent.

This reactionary violence is then employed by the police to justify the use of excessive force. The same criticism can be launched at the criminal justice system in general, where the arrest, detention and prosecution of demonstrators occurs regularly, often on trumped-up charges, in an attempt to intimidate, threaten or destabilise community-based movements.

These actions are generally targeted at community activists who are depicted as “troublemakers” and “criminals”. Such labelling allows the government to disregard underlying concerns instead of meaningfully engaging with the protesters and incorporating these concerns into formal democratic processes.

With each new protest, the government’s failure to meaningfully include the majority of South Africans in the benefits of our democracy is more evident.

However, instead of recognising our failures and encouraging participation at the formal and informal levels, the government appears to be going all out to clamp down on protests and suppress growing popular dissent. This is a very worrying trend that should concern us all.