Stuart Wilson, Business Day
EARLIER this month, a team of lawyers and community activists addressed hundreds of people at the Slovo Park informal settlement south of Johannesburg. The meeting was called to discuss the effect of a recent high court decision directing the City of Johannesburg to improve the area under the provisions of the Upgrading of Informal Settlements Policy.
The policy is part of South African law, found in the National Housing Code of 2009. But municipalities have consistently refused to apply it. Continue reading
Stuart Wilson, The Daily Maverick
First the facts. In August 2012, a group of Rock Drill Operators, dissatisfied with their wages, and with the representation available from either of the labour unions with a presence at the Lonmin Marikana Shaft, embarked upon an unprotected strike to push Lonmin for higher wages. The strike, and its attendant protest, soon gained widespread support, and incited a violent response – both from union officials and the police. In the days before 16 August 2012, the striking miners, union officials, Lonmin security guards, and the police themselves, all took a small number of casualties. The striking miners – about 3,000 of them – retreated to the top of a small rocky outcrop just outside the Lonmin shaft compound. There they stayed for four days, demanding that Lonmin management come and address them on their demands. Continue reading
Stuart Wilson, Open Democracy
The best account of human rights aims to protect and advance all the incidents of freedom, equality and dignity. These include freedom of thought and political action, which are incompatible with torture, arbitrary detention, or censorship. They also include freedoms to realise one’s self, which are impossible without access to the basic elements of a decent existence, such as adequate housing and healthcare, sufficient food, and quality education.
This is what we mean when we say rights are “indivisible”. They cohere around an account of the human personality that acknowledges the inherent dignity of each person; that each person counts for no more or less than any other in the distribution of the means of self-realisation; and that each person is free to pursue his or her own conception of the good, equipped with the basic necessities of life.
Evictions: South Africa’s bitter, year-round trauma
Every year, when the temperature dips toward zero, there is a stream of stories in the national media about evictions. The stories emphasise the brutality of evictions – and what Colin Bundy, many years ago, described as the “trauma, frustration, grief, dull dragging apathy and surrender of the will to live” that follow them. And the winter weather helps us imagine the depth of that trauma, and the experience of sleeping on the streets in the frigid night air. But the reality is that evictions and their associated traumas are a year-round feature of South African society.
It isn’t supposed to be this way. Our “never again” Constitution, as the Chief Justice has called it, requires that evictions take place only with the permission of the court – and only where the court has decided that it would be fair, just and equitable to do so, all things considered. An eviction is only fair, in the eyes of our courts, if an evicted person has somewhere else to go – some shelter either provided through their own efforts, or through state support.
Click here to read this article in pdf.
Breaking the Tie: Evictions from private land, homelessness and a new normality
by Stuart Wilson
The ‘normality assumption’ and its endurance
It used to be simple. A landowner was in law entitled to an eviction order if
he could prove his ownership and the fact of occupation of the land by the
occupier.1 Where the owner acknowledged that the occupier was in
occupation in terms of a valid lease agreement or some other legal right, the
owner bore the onus of proving that the right of occupation had been validly
terminated. If the owner did not acknowledge that any such right had ever
existed, it was for the occupier to prove the existence of the right and that it
had not been validly terminated.2 This summary of the conditions for the
success of the rei vindicatio (at least insofar as it applied to immovable property,
such as land and buildings) is perhaps the most well known of common law
syllogisms. It was the legal expression of what AJ van der Walt has referred to
as the ‘normality assumption, that a landowner is entitled to exclusive
possession of his or her property — this is what is considered the ‘normal
state of affairs’ that will most likely be upheld in the absence of good reason
for not doing so.3 At common law, the only good reason for not granting a
landowner exclusive possession of his property was the existence of a
counter-veiling common law right in the property.
However, the normality assumption, which forms the basis of western
liberal ideas of what property relations are and ought to be, is under attack.
The Constitution of the Republic of South Africa, 1996 (‘the Constitution’)
has formed the basis for this attack. It has done so by entrenching two
defensive rights, which have fought a war of attrition ever since. The first is
to be found in s 25(1) of the Constitution, which states that: ‘No one may be
deprived of property except in terms of a law of general application, and no
law may permit arbitrary deprivation of property’. The second comes just a
paragraph later, in s 26(3), which 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.’ These two provisions, and the subordinate legislation
enacted to give effect to the latter, have sparked intense legal and ideological
conflicts over land ownership and use in South Africa. They have done so in
part because they have upset the normality assumption and replaced it with
vast uncertainty. Where once there was certainty about who would win a
legal conflict over the possession of land and under what conditions, there
was introduced, almost overnight, a new framework in which the only
requirement was non-arbitrariness. An owner could not be arbitrarily
deprived of the use and enjoyment of his property, yet an occupier could not
be arbitrarily evicted from it either.