http://www.businessday.co.za/articles/Content.aspx?id=73812

Sandra Liebenberg
Published: 2009/06/22 06:49:37 AM

OVER a period of 10 months commencing on August 17, the largest judicially sanctioned eviction of a community in SA’s post-apartheid period will take place. The 20000-strong impoverished community of the Joe Slovo informal settlement on the outskirts of Cape Town will be required to relocate 15km away to a temporary relocation area in Delft.

According to provincial and local government, their relocation is required to enable the upgrading and building of formal housing as part of the N2 Gateway Project. Following resistance by the residents to the relocation, the housing authorities applied for and obtained an eviction order from the Western Cape High Court in terms of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 1998. The residents of Joe Slovo appealed to the Constitutional Court and a weighty judgment was handed down on June 10.

The judgment is significant as it spells out the implications of the housing rights in section 26 of the constitution in circumstances when state organs seek to evict a large, settled community from their homes to facilitate a major housing development. The government will be taking note as the principles articulated in the judgment go to the core of its Breaking New Ground policy, of which the N2 Gateway is a key pilot project. In this policy, the Department of Human Settlements seeks to eradicate informal settlements through structured in situ upgrading, and, where this is not possible, through relocation of relevant communities.

In the case of Joe Slovo, the decision was that in situ upgrading was not feasible and the community should accordingly be relocated to Delft. An initial commitment that 70% of those relocated would be able to return to low- income housing in Joe Slovo morphed over time into a diffuse undertaking to apply “objective criteria” in allocating the housing units in Joe Slovo to the relocated community. The trust between communities and the representatives of the various spheres and agencies of government was further eroded by the fact that the first phases of the development did not give effect to the promise to accommodate 70% of the Joe Slovo residents. Moreover, the dream of a home was becoming ever more elusive as rentals in the development were pitched far higher than initially envisaged and more emphasis was placed on bonded housing which was inaccessible to the vast majority of the families, whose incomes were below R3500 a month. Moreover, many residents feared that the relocation to Delft would destroy their already fragile livelihood and communal networks, and that they would lack access to the schools, transport and other facilities on which they depended in the Joe Slovo settlement.

The Constitutional Court rejected the arguments of the residents that the state was not entitled to seek their eviction in terms of the act. It also held that their eviction and relocation to Delft to enable the upgrading and development of the Joe Slovo settlement was just and equitable in the circumstances.

However, three significant legal and practical victories were won by the residents. First, all five judges, who wrote separate judgments, underscored the necessity of the provision of adequate alternative accommodation when the state evicts a settled community from their homes. This obligation is derived from a long line of cases commencing with the groundbreaking Grootboom judgment in 2000, when the court held that the state must make reasonable provision for those facing homelessness or living in intolerable conditions. Not content to rely on vague guarantees regarding the nature of the alternative accommodation to be provided at Delft, the court stipulated detailed standards with which the “temporary accommodation units” in Delft had to comply, including the provision of services and facilities. Second, the government was ordered to allocate 70% of low-cost housing at Joe Slovo to the relocated communities (the remaining 30% would be allocated to the back-yarders of Langa). Finally, the authorities were required to “meaningfully engage” with the community on the nuts and bolts of the eviction, such as the timetable and the provision of transport facilities to places of work, schools and clinics.

Despite these important gains, the willingness to effectively condone the inadequate consultation processes raises serious concerns. This consultation process was littered with mixed messages conveyed by an array of officials, broken promises and, in the words of Judge Albie Sachs, the “frequent employment of a top-down approach, where the purpose of reporting back to the community was seen as being to pass on information about decisions already taken rather than to involve the residents as partners in the process of decision- making itself”. This represents the antithesis of the “structured, consistent and careful engagement” by “competent, sensitive” officials skilled in engagement which the court has previously underscored when state organs seek to evict large groups of vulnerable people.

A few of the judges held that the laudable objectives and greater good of the N2 Gateway project outweighed the defects in the consultation process. It would be too burdensome to expect higher standards from the state in these circumstances. This fails to take seriously the court’s own insight that procedure and substance are inextricably connected. Meaningful participation is not only an expression of the dignity of citizens, but is indispensable to ensuring that the design and implementation of programmes to realise socioeconomic rights are effective and sustainable. In the Joe Slovo case, for example, there are serious questions whether an in situ upgrade would have been less disruptive and more effective.

If “meaningful engagement” is not to become a meaningless platitude in realising socioeconomic rights, it must be taken seriously by the courts, which have a constitutional mandate to control all evictions of people from their homes. Unless this happens, the realisation of socioeconomic rights in SA will exhibit all the flaws of a top-down approach in which the intended beneficiaries have had little real say.

– Prof Liebenberg holds the HF Oppenheimer Chair in Human Rights Law at Stellenbosch University and was a member of the legal team for the amici curiae in the Joe Slovo case.