Category Archives: The Daily Maverick

Taksim Square: A protest that became part of me

http://www.dailymaverick.co.za/opinionista/2013-06-04-taksim-square-a-protest-that-became-part-of-me

Taksim Square: A protest that became part of me

by Olivia Walton

There are thousands of protestors in Taksim Square right now. Erdogan and his government have decided to build a mall – in the guise of a recreated Ottoman barracks – in Gezi Park, one of central Istanbul’s only green spaces. Locals have made it clear: they do not want a mall. They want their park. Erdogan has also made his position clear: Hurriyet quotes him saying, “Do whatever you want, but we’ve made our decision.” Not quite the voice of reason.
It is a stand-off. At least twelve people have been injured. More than sixty have been arrested. Now, headlines are saying dozens have been killed. No one seems to know. There are photographs of water stained red with blood, of stray dogs running at police, of an old man with a bloodied head.

For South Africans, these things make a sick kind of sense. We understand this language, this tallying of the power of the state.

I was sitting in a cafe in Çihangir all afternoon. During the day I had been crisscrossing the city, from Moda to Sultanahmet to Çihangir, from cafe table to cafe table. I was working, so did not go online. In Çihangir, though, I sat down to read the South African newspapers. And I got a message from a Turkish friend: blood has been spilled in Taksim, and #deringeziparki is now the second-most followed tag on Twitter. So I opened a Twitter account. I followed the hashtag. As I read what people had written, I started noticing the timing: twenty-eight minutes ago, eleven minutes ago, two minutes ago. It was happening, now.

Outside, the guy who makes the coffee and the fresh juices shared a cigarette with some German backpackers. A girl slouched on the couch told someone else how to spell a certain DJ’s name. A boy and a girl in school uniform came in, and kissed each other – briefly, secretly – over the girl’s hot chocolate.

Tents were being burned, and a girl in denim shorts lay with her head bloodied. I read the stories, looked at the photographs. I arranged to meet my friend at Taksim tomorrow. Then I left.

There are not many sirens in Istanbul. In New York they are background noise, muffled by their own ubiquity. Here, I noticed their absence. But as I walked from Tophane to the Galata Bridge to catch the ferry, ambulances screamed by. Yellow taxis clogged the roads and an ambulance driver drummed his fingers on his door. The sirens went on, around and around. A pneumatic drill started next to me and my heart began to pound. I walked on, fast, to the water. The photograph of the girl lying in the ambulance, bloodied by the police, stayed with me as I passed the kebab shops and the tourists. I pictured her. Denim shorts, sandals.

Earlier I had read a Guardian column reminding us what we can learn from the protests of the past. Be brave, be extreme, mix humour with your anger. All are necessary things. But when is a protest your protest? I walked away from Taksim thinking, I don’t speak Turkish, I am not wearing shoes good for running away in, I have my iPad, my wallet, my journal. I should not go to Taksim Square. But the world works today in such a way that the imagery of protest – the girl in the denim shorts, the protestors chased out by police at dawn – comes to us before we know the details. And imagery works. The response is not rational, it is visceral: this is wrong, and if you ignore it you are complicit. There is a hypocrisy inherent in traveling to places and expecting them to be beautiful, interesting, chaotic, intoxicating – but also expecting that your political conscience stays at home.

My mother said to me, Don’t go. It is not your struggle.

But if it is not my struggle, then whose is it? Who am I if I do not see this struggle – against a government that at best ignores and at worst oppresses and attacks its own people – as my own? It’s a struggle that does not end – it continues today in South Africa, and on a far more brutal scale in Syria. It is being fought at home by organisations like Equal Education, Abahlali baseMjondolo, and the Right2Know campaign. It never seems to be over.

Until yesterday Istanbul was an imaginary place. I walked in it, watched it, but it was a mirage and I was drunk on it. Last night, the sun was setting at the end of the Golden Horn. A Turkish flag hung from one of the mosques in Sultanahmet. I wondered who had hung it there. People were fishing and walking hand-in-hand. On the ferry I found a seat along the side facing the water with my feet on the rails. The sun and the water were golden. Smoke hung above Taksim Square. And, right then, I saw it was no longer an imagined place but a real one.

Later, I was with Dilek watching the news. Istanbul’s mayor was fumbling. We just wanted to expand the sidewalk, he said. Later still they screened a beauty pageant. No reports from Taksim. But online it was everywhere: three dead, dozens arrested, four dead, maybe five. From Facebook: The gas they are using is not normal gas, it is making us dizzy, confused, we can’t control our limbs. The hotels are opening their doors to protestors in need of help, the people of Taksim are letting strangers into their homes, throwing lemons down to the crowds to soothe the burn of the gas.

A friend: It is dangerous here. Find another way to resist!

Dilek paced the house, dogs and cats scattering around her. Amy, her partner, was at Taksim. I am so worried, she said. So worried. She has been shot with a rubber bullet.

We sat up past midnight, watching and reading as news came in. Eventually I slept.

Then, at two in the morning, there was knocking on my door. I had been asleep maybe an hour.

Olivia, come, come – see the street!

I got up and we went outside onto the streets of Kadiköy. Everywhere people were walking with pots and spoons, banging on them and shouting: Everywhere is Taksim, everywhere is a protest! They shouted, and cheered, and we started to follow. The crowd built. It was like a fiesta: flags tied over shoulders, people had their dogs with them, their children. Car horns blared. Two teenage girls in their pajamas stood with their mother, hitting out a rhythm on pot lids. A man posed for a photograph, his beer raised up in his fist. Alcohol – something Erdogan has been restricting – has become a small symbol of civil liberty. The crowd was maybe five hundred people strong, and they began to chant: Erdogan must resign! Erdogan must resign! Someone lit a flare and held it high. The faces around me were lit red, hazy in the smoke.

Was this what it felt like in South Africa in the 1970s, the 80s? All these old struggles that I was not part of but that are part of me – and then here I am, now, in a protest that is but is not mine, in a language I do not speak, against grievances I have only heard and never felt. What I can feel is a great energy, a positive surge of hope and excitement. Maybe this will be the day.

I think he will not sleep tonight, old Erdogan, says Dilek.

Daily Maverick: Sacks & the City

http://www.dailymaverick.co.za/opinionista/2013-05-09-sacks-the-city/#.UYtHoaIyZvI

Sacks & the City

by Chris Harrison

The City of Cape Town’s reply to Jared Sacks’ article on the eviction of people living in the newly-built ‘Marikana’ settlement on Symphony way makes for interesting reading – not least because they completely fail to engage with Sacks’ claim that they fabricated a new law to justify their actions.
I was present at ‘Marikana’ on the morning of Sunday 28 April, and bore witness to the events of that day. Whilst Sacks and the City have both referred to what occurred as ‘evictions’, I find the term ‘forced removals’ to be a more suitable description. What I saw in ‘Marikana’ directly contradicts many of the claims advanced by the City in their response.

The City’s justification for their actions hinges critically on the claim that the demolished structures were unfinished and unoccupied. So long as informal houses are incomplete and uninhabited, the law allows the City of Cape Town to demolish them at whim, without need for a court order. However, if the structures were occupied and complete, then the City’s actions would constitute a grave violation of the basic rights afforded to all people by the Constitution.

Whether fuelled by delusion, denial or deceit, the City’s central claim is quite simply untrue, as the included photographic and video evidence attest. In their response, the City cynically moves to pre-emptively rubbish such evidence by claiming that residents “may have brought items on site to make it appear as if the structures were occupied”. This line of reasoning is incredibly convenient, as it grants the City and the Anti-Land-Invasion Unit (ALI) sweeping powers to disregard essentially any evidence of occupation as being ‘for appearances only’.

During my visit to ‘Marikana’ in the hours before the forced removals, I spoke with many of the residents, and was shown around a number of the houses that had earlier in the day been marked for demolition. These houses were unambiguously occupied. Surrounded by their possessions, the occupants of the condemned houses cooked, napped, and breastfed infants right in front of me. If the City’s spokespeople genuinely believe that these houses were unoccupied, then it speaks volumes; either of their wilful blindness to the reality of life for Cape Town’s poor, or of their elitist suburbanite standards that consider desperate people as a ‘refugee’ burden. In other words, they simply do not consider shacks to be real houses and therefore real homes.

When the City claims to be committed to “providing a safe and habitable living environment for all of its residents, especially the poor”, I presume they must be referring to Blikkiesdorp. Whilst formal channels for getting state housing exist, the City itself admits that these are inadequate, with waiting times measured in years. These programs have nothing to offer the inhabitants of Marikana, who are in desperate need of housing right now.

The City often boasts of its record in uplifting and delivering services to its poorer residents, but these claims stand in stark contrast to the violence with which the City responds to desperate people’s attempts to improve their lives. Could the City of Cape Town really be so violently contemptuous of the poor that they find it acceptable to forcibly jettison whole families into a winter of homelessness, all in the name of keeping an unused plot empty?

I find the cruelty and lack of empathy shown by the authorities in their interactions with the poor truly stunning. The City, province, and country all routinely pay lip service to the noble goal empowering the desperate and dispossessed sections of our society, but also greedily lord over vast hoards of unused public land. Until this fundamental dissonance is resolved, illegal settlements will continue to spring up across the country.

Daily Maverick: Cape Town evictions: Brutal, inhumane, and totally unlawful

http://www.dailymaverick.co.za/opinionista/2013-05-09-cape-town-evictions-brutal-inhumane-and-totally-unlawful

Cape Town evictions: Brutal, inhumane, and totally unlawful

by Pierre de Vos

The City of Cape Town and its DA-led municipality will probably be cheered on by many members of the chattering classes (those who channel their inner Rhoda Kadalie by constantly moaning about how the country is going to the dogs under “these people”) for justifying its unlawful and inhumane treatment of poor and destitute occupiers of municipal land by first invoking an imaginary law and then by invoking a non-applicable common law rule. But no matter how the City tries to justify its actions, these evictions (conducted without first obtaining a court order) remain unlawful.

“Legal interpretation,” wrote the late Robert Cover from Yale Law School back in 1986, “takes place in a field of pain and death”, because acts of legal interpretation often impose violence upon others. So, when a court orders the eviction of penniless people from their makeshift homes, it uses the violence of the law to rob them of their dignity, turning them into potential criminals in the process. At night many homeless people are forced to break the law when they have to trespass on private property if they were to grab even a few hours of fitful sleep, often in the cold and the rain. Property rights, so it seems, are indeed invoked against the vulnerable and marginalised “in a field of pain and death”.

It is for this very reason that section 26(3) of the Constitution limits property rights by prohibiting anyone – including a municipality – from evicting someone from their home, or having their home demolished, without an order of court made after considering all the relevant circumstances. The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE) gives effect to this right, but extends the right to protect all those who unlawfully occupy not only homes but also land. An unlawful occupier protected by PIE (and who can therefore not be evicted from either land or home without a court order) is defined as “a person who occupies land without the express or tacit consent of the owner or person in charge, or without any other right in law to occupy such land”. In South Africa, only a court can order the eviction of any human being from either land or from a home.

On Wednesday 1 May 2013, the City of Cape Town’s so called “Anti-Land Invasion Unit” (a name harking back to the forced removals of the Apartheid era), acting like vigilantes, demolished the homes of 125 people who had unlawfully occupied land in Philippi on the outskirts of the city. At first the city claimed that this demolition and eviction was done in accordance with the imaginary “Protection of the Possession of Property Act”. There is no such Act on the statute books in South Africa: the city had lied about its existence and about having legal backing for its eviction without obtaining a court order. After they were caught out in this lie, they provided another justification for the unlawful eviction.

The City, enthusiastically inventing a legal argument – “in a field of pain and death” – to justify its unlawful actions, invoked the common law notion of “counter-spoliation” which, it argued, allowed a landowner to resist illegal attempts to disturb their possession without obtaining a court order. Counter spoliation allows someone to retake possession of his or her property before the person has actually been deprived of that property. For example, if a thief snatches your bag in the street and you trip the thief and take back the bag you can invoke the principle of counter spoliation. However, you cannot go the thief’s house later that day and snatch back your bag. That would constitute an unlawful instance of vigilantism.

The City claimed that the structures were not occupied (although pictures of the evictions suggest this is not true as the personal belongings – including furniture and clothes – can clearly be seen inside the houses) and that the “Anti-Land Invasion Unit” was entitled to “continue to dismantle illegally built structures every time they are erected and before they are occupied.” But from a legal point of view, it is entirely irrelevant whether the structures were occupied or not.

In Ndlovu v Ngcobo; Bekker and Another v Jika the Supreme Court of Appeal (SCA) made it clear that PIE applies to the eviction of (who it inhumanely called) “squatters”, whom Harms JA defined as those who “unlawfully took possession of land”. In the same judgment Olivier JA referred to “the situation where an ‘informal settler’ (a squatter) moves onto vacant land without any right to do so and without the consent of the landowner or his or her agent”. In City of Cape Town v Rudolph and Others the Cape High Court correctly interpreted these statements as showing that PIE also applied to those who the City of Cape Town might call “land grabbers”.

As the PIE Act does not only protect those who occupy homes but also those who occupy land it is difficult (perhaps impossible) to see – especially in the light of the precedent of the High Court and the SCA quoted above – that even those homeless people who have settled on land and are still busy erecting informal shelters on the land they are occupying, falls outside the ambit of the protection of PIE.

This view is affirmed by the dissenting judgment in the Ndlovu case where Olivier stated that:

“There seems to be general agreement that PIE applies to the situation where an informal settler (a squatter) moves onto vacant land without any right to do so and without the consent of the landowner or his or her agent. There are thousands, if not millions, of such squatters in our country. They are usually unemployed, the poorest of the poor, and live with their families in self-erected tin, cardboard or wooden shacks.”

None of the reported judgments in which the application of the PIE Act was in issue proposed the interpretation put forward by the City Council that unlawful occupiers of land are only protected by the PIE Act once they erected homes and actually lived in those homes.

In the Rudolph judgment the High Court also pointed out the obvious fact that the PIE Act has now drastically curtailed the common law rules of spoliation and counter spoliation as far as property is concerned.

“To hold that the common-law remedies available in our law for the eviction of unlawful occupiers exist alongside the remedies provided for in PIE, at the option of the applicant, or at all, would fundamentally undermine the overall purpose of PIE and particularly the purpose of the protections provided for therein.?The idea that an owner can avoid the peremptory provisions of PIE by electing to use the common-law remedies to evict an occupier from land must be rejected.”

In Port Elizabeth Municipality v Various Occupiers (Port Elizabeth Municipality) the Constitutional Court affirmed this view that the PIE Act has now extinguished many of the common law rules relating to property, stating that through the adoption of PIE:

“The former objective of reinforcing common law remedies while reducing common law protections, was reversed so as to temper common law remedies with strong procedural and substantive protections; and the overall objective of facilitating the displacement and relocation of poor and landless black people for ideological purposes was replaced by acknowledgement of the necessitous quest for homes of victims of past racist policies. While awaiting access to new housing development programmes, such homeless people had to be treated with dignity and respect.”

Arguing that the PIE Act now expressly requires the court “to infuse elements of grace and compassion into the formal structures of the law”, the Court in effect said that the court had to be aware of the violence inherent in the strict application of old style property rights and had to guard against the extreme effects that homelessness and dispossession would have on the dignity of those who were not lucky enough or connected enough to have a house of their own.

“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. Hence the need for special judicial control of a process that is both socially stressful and potentially conflictual.”

Of course, the PIE Act does allow the court to unleash the violence of the law on vulnerable and marginalised people who unlawfully occupy the land of others and does not prohibit a court from ordering the eviction of unlawful occupiers in certain circumstances. The capitalist system, from which us middle class citizens often benefit so handsomely, requires the law to impose some protection of property rights and the courts have to interpret and apply those legal provisions in that infamous “field of pain and death”.

But the PIE Act does prohibit the City of Cape Town’s self styled Anti-Land Invasion Unit from taking the law into its own hands – from playing God, as it were. It is not allowed to evict unlawful occupiers from land and neither is it allowed to demolish their homes unless it has obtained a court order to do so. Where a limited number of occupiers have only recently settled on private land, a court will almost always grant such an order. Where public land is in issue, be courts should be more reluctant to order the eviction. After all, where will homeless people go when evicted. It is not as if people “grab land” because they are too stingy or callous to pay for it. They often have a stark choice: either occupy land illegally or become entirely homeless.

The claim by the City Council that it is acting under the cover of law is therefore not only anti-poor, but also – this once – untrue. When it claims otherwise, it is merely trying to avoid responsibility from flouting of the Rule of Law (the very Rule of Law which the DA claims to revere).

Daily Maverick: In Langa, Cape Town: A dark combo of housing corruption & police brutality

http://www.dailymaverick.co.za/article/2013-05-08-in-langa-cape-town-a-dark-combo-of-housing-corruption-police-brutality

In Langa, Cape Town: A dark combo of housing corruption & police brutality

by Jared Sacks

Twenty-seven-year-old Siyabonga Magcida is in Groote Schuur Hospital today, under 24-hour police surveillance, because he is considered a flight risk. Yet he is severely injured, is connected to drips on both arms and is unable to walk or even speak. By JARED SACKS.

The answer will take us back a full six years, when the Joe Slovo community first rose up to fight their pending eviction to the peri-urban township called Delft on the outskirts of Cape Town. Now, Magcida’s enemy is not just the housing department, but also his former comrades. Continue reading

Daily Maverick: City of Cape Town makes up law to justify eviction of the poor

http://www.dailymaverick.co.za/opinionista/2013-05-06-city-of-cape-town-makes-up-law-to-justify-eviction-of-the-poor/#.UYcXFaLTx34

City of Cape Town makes up law to justify eviction of the poor

by Jared Sacks

The City of Cape Town has been caught red-handed using a fraudulent legal pretext to justify the eviction of shack dwellers who had occupied a vacant piece of City-owned land, by citing a non-existent law they claim is called the “Protection of the Possession of Property Act”. After speaking with legal experts in the field of property and evictions, I was told that not only was the eviction of the ‘Marikana’ shack dwellers in Cape Town’s Philippi East illegal according to the PIE Act, but city officials had also lied about the living conditions of the shack dwellers.

Most worryingly, the City has gone as far as fabricating an act of Parliament to present common law tradition as an authentic counterpoint to the PIE Act in order to justify the eviction.

The recent eviction of hundreds of shack dwellers who labelled themselves the Marikana Land Occupation in honor of their “brothers who died there – [because] we, too, are organising ourselves peacefully, and are willing to die for our struggle” – has reached mainstream media outlets with heart-wrenching images of a mother with her one-month-old infant being evicted from their home.

Since their ‘UnFreedom Day’ occupation, I’ve been following the events closely, visiting almost every day and, in my own peripheral role as an activist and supporter of the community, helping their movement access legal representation and organising drop-offs of food and clothing for the most vulnerable affected families.

After having seen many similar evictions for years and speaking to a range of legal minds on the subject, it has become clear that municipal governments all over the country take advantage of the inability of poor communities to represent themselves effectively in the media and access legal representation. They use this vulnerability to flout various constitutional safeguards when evicting shack dwellers and homeless South Africans. Municipalities then frequently go on to publicly assert the legality of their eviction by misrepresenting laws and lying about the facts on the ground.

On Friday 3 May, the City of Cape Town’s Media Manager, Kylie Hatton, issued the statement on the ‘Marikana’ evictions. The full statement is as follows:

On Wednesday 1 May 2013, the City’s Anti-Land Invasion Unit demolished 125 structures in Philippi and on Thursday 2 May 2013, took down a further 11 structures. On Friday, 3 May 2013, four structures were removed.

This was done in accordance with the Protection of the Possession of Property Act, which does not necessitate a court order. However, residents were verbally warned prior to the removal of the structures.

The City of Cape Town will continue to monitor and take action in terms of counter spoliation (as per the above mentioned Act) to protect its land from being illegally occupied.

It must please be noted that the City did not remove the homes people were staying in. The Anti-Land Invasion Unit removed illegal unoccupied structures and the materials that were being used to build them.

Yet, consulting with a number of renowned experts in the field of property and evictions yielded a number of concerns and contradictions with the statement.

Sheldon Magardie, an experienced laywer and Director of the Cape Town office of Legal Resources Centre, was blunt when I asked him about the Act which Kylie Hatton cites: “There is no such law called the Protection of the Possession of Property Act.” Advocate Stuart Wilson, who is the Director of the Socio-Economic Rights Institute and teaches Property Law as a Visiting Senior Fellow at Wits, concurred that in South Africa, no such act exists.

Not only is this law fabricated by the City or whomever has advised them, but there are actually two South African legal documents being ignored by the City, which explain exactly what the government should do when land has been occupied: the South African Constitution and the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE Act) of 1998. The Section 26(3) of the Constitution 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.” The PIE Act legislates the procedure for a legal eviction of the court.

Stuart Wilson goes on to explain that what the City is attempting to do in its argument is assert “counter-spoliation…a common law tradition dating back to Roman times.” Common law says that legal authority is always required to force a possessor of property to part with that property (regardless of whether that person has the right to that property). Counter spoliation, an exception to this rule, “permits a person who is in the process of having property taken from them to immediately take that property back without a court order…[in other words] they never really had the property in the first place – at best they were in the process of trying to snatch it away from you. What the City seems to be saying – rather ham-fistedly – is that it was entitled to take its land back immediately, without a court order, because the ‘invaders’ were, at best, only in the process of depriving the City of possession of the land.”

However, as Wilson, Magardie and others have explained, counter-spoliation does not apply to the eviction of people from their homes – whether or not those people are deemed ‘squatters’ or even ‘illegal land grabbers’ as per the 2004 case Rudolf v City of Cape Town (see this link for a great summary of the findings. In particular, read the first point under The Decision on the Main Application).

Rather, during such circumstances, Wilson says that “it will always be necessary to follow the procedure set out in the PIE Act”. The PIE Act therefore applies in all cases of people occupying land or structures of any kind, even if the City deems such homes to be ‘partially built’ or ‘unfinished’.

Yet, the City is claiming that these shacks were not ‘homes’ but ’empty structures’ that were not occupied. This is a blatant lie. The City’s official guidelines for the Anti-Land Invasion Unit (ALI) defines a ‘home’ quite clearly: “A structure is not a ‘home’ until it has been inhabited by a person or persons who reside in the structure with their belongings and intend to continue doing so”. It then goes on to say that “where the act of taking unlawful occupation has been completed, counter-spoliation will not be permitted”.

With regards to all but a small minority, the shacks were occupied with beds, furniture, clothes, food, and yes, with people living and sleeping in them. If this were not the case, then why would the Law Enforcement have removed people and their belongings by force from the homes? Nearly every home required the physical removal of people and their property by Law Enforcement before its destruction by the Anti-Land Invasion Unit. This form of counter-spoliation explicitly requires a court order – otherwise it is illegal.

As an eyewitness having seen the shacks being occupied and lived in for many days before the evictions (as early as 25 April), as well as watching these evictions on 28 April and 1 May, I know this to be true. More importantly, though, there are more than enough photographs and video footage by a range of people (residents, journalists and even city officials) which prove that families and their belongings were removed from their homes.

These homes were clearly occupied and therefore the evictions were clearly illegal. The City needs to explain (1) why it is conducting illegal evictions, (2) why it is lying about the evictions by claiming the homes are unoccupied and (3) why it is fabricating laws to justify these evictions.

Further, representatives need to explain why they confiscated residents’ property and are refusing to return this property to residents. According to the ALI’s own guidelines, material/property may not be removed and if it is removed, it should be, when claimed, immediately returned to the rightful owner.

Finally, and most worryingly, the City of Cape Town should justify why it has allocated R8 million from the housing budget towards founding ALI in 2008, and continues to spend housing money on a unit not tasked to build, but to destroy peoples’ homes. This huge sum of money could be more effectively used towards making a dent in the huge housing backlog.

In such an unequal and segregated city at this, it is criminal that our government is reinforcing Apartheid legacies and the continued dispossession of land from its inhabitants. Meanwhile, they are spending millions to illegally evict poor and landless people, who are merely attempting to provide a decent life for their families when they build on vacant and unused public land.