Daily Maverick: Analysis: Landmark judgment – what constitutes a home?


On Thursday, the Cape High Court ruled in favour of the Marikana occupiers and instructed the City of Cape Town to rebuild the homes they 'unconstitutionally and unlawfully' destroyed on 7 and 8 January. The importance of this landmark ruling, if it is upheld, cannot be overstated. Its impact will reverberate in municipalities throughout the country. Anti-Land Invasion units beware: your operations have now been judged illegal. By JARED SACKS.

The City of Cape Town's official guidelines for the Anti-Land Invasion unit (ALI) defines a 'home' in negative terms:

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.

This is a simple, technical, if still somewhat vague, definition that it is essential to the day-to-day workings of this well-funded unit of Law Enforcement. Still, it is more descriptive than a generic dictionary definition. See for instance the Oxford Dictionaries' definition: the place where one lives permanently, especially as a member of a family or household.

Its also well ahead of the South African Constitution and the Prevention of Illegal Eviction (PIE) act of 1995 – both documents reference the term but fail to define it. Neither has it been adequately defined in terms of South African court rulings. Thus, yesterday's ruling by Judge Gamble in the counter-application between the Marikana settlement residents and the City of Cape Town has set a major precedent for future eviction cases.

'The Meaning of Home'

What does the ALI's definition tell us about the social, economic and political relevance of a 'home'? Not all that much.

For such an understanding, we must look elsewhere. A good place to start might be in the book And Our Faces, My Heart, Brief as Photos by British novelist, poet and social historian John Berger. In his passage “The Meaning of Home”, let us focus on his interpretation of the work of the Romanian philosopher Mircea Eliade:

Originally home meant the center of the world–not in a geographical, but in an ontological sense. Mircea Eliade has demonstrated how home was the place from which the world could be founded. A home was established, as he says, "at the heart of the real." In traditional societies, everything that made sense of the world was real; the surrounding chaos existed and was threatening, but it was threatening because it was unreal. Without a home at the center of the real, one was not only shelterless, but also lost in nonbeing, in unreality. Without a home everything was fragmentation. [emphasis added]

In other words, the term “home” does not only have a technical definition, it also has a key social function based on one's lived experience. A person without a home is 'a non-being' or in a legal and constitutional sense, a person deprived not only of her/his citizenship, but also of her/his human dignity as well.

Anyone evicted from her/his home at some point in one's life can probably recognise the universality of such a definition and how it is an essential basis for achieving the core rights laid out in South Africa's Constitution.

For instance, in the first founding provision of the Constitution, Section 1(a), the right to human dignity is mentioned before all other rights and freedoms. Human dignity is also the second right (after equality) in the entire Bill of Rights (Section 10). Such provisions are essential to the interpretation and function of the rest of the document. So while the Constitution may fail to directly explain what constitutes a home, a social definition of the word clearly incorporates rights well beyond the physical right to housing as defined in Section 26 of the Constitution.

The legal arguments

The question then is whether or not such an extended definition that includes the social meaning of a home can be accepted in a court of law. This is the question that Sheldon Magardie, Legal Resource Centre attorney for the Marikana community, has asked the court to consider in their counter-application demanding that the City of Cape Town rebuild the counter-applicant's 49 'structures' that they destroyed on the 7th and 8th of January.

On Thursday the 20th of February, in the initial trial arguments, the City of Cape Town explained their technocratic understanding of what constitutes a home by asserting that if it contained a bed or furniture or other belongings, it would have been deemed occupied. Advocate Anton Katz maintained that the ALI followed the law throughout the entire process: “no structure that appeared to be occupied was removed” maintained Advocate Katz. From this argument, Judge Patrick Gamble deduced the converse, that “any structure that appears to be occupied is [therefore] a home”.

Later in the day, Magardie took the floor and attempted to bring international and constitutional legal considerations into consideration citing the right to live in security and peace, the rule of law and the supremacy of the Constitution. He also asserted that we must not look merely at the dictionary definition of “home” but at its social definition.

He cited the legal work of Professor Lorna Fox on “The Meaning of Home”. To prove his point, Magardie also referenced Albie Sachs’ seminal Consitutional Court judgment in Port Elizabeth Municipality v Various Occupiers (2004):

A home is more than just a shelter from the elements. It is a zone of personal intimacy and family security. Often it will be the only relatively secure space of privacy and tranquillity in what (for poor people in particular) is a turbulent and hostile world.

Magardie said “in the context of poverty, having just two blankets as your bed does not mean the structure is not a home”. Thus, the eviction could not go ahead because dignified treatment could not be found and because the courts, not the highly partial City, could be the only objective decision-maker defining whether or not the structure could be deemed a home.

Judgment day

Judge Gamble ruled that the while the City does have the right and responsibility to prevent land invasions on private land, it does not have the right to decide whether or not an occupation of a structure or land constitutes a home. Ruling in favour of the Marikana community, the judge not only interdicted the City from destroying any more structures on the land but also instructed them to rebuild each and every structure they demolished on 7 and 8 January

While this order is to take immediate effect, the Legal Resource Centre is giving the City until Monday to file an appeal to the Constitutional Court – if they feel the need to do so. The City has refused to comment as it is currently studying the court order.

And yet, a brief perusal of the order shows that the judgment is pretty damning. Judge Gamble did not base his ruling on whether or not the City had lied about their actions on the 7th and 8th. In fact, in coming to the order, Gamble effectively ignored the dozens of affidavits, photos and videos that showed the City to have been economical with the truth. Instead, he ruled against the City based on the ALIU's own submissions. To quote the judgment:

In my view, the City's approach was fundamentally flawed. The question was not whether the temporary structures were homes. Rather, the question was whether those structures were occupied at the time they were demolished…The City's operations seems to have been somewhat haphazard in that the evidence suggests both confusion and a degree of arbitrariness in the selection of targeted structures…Had the City approached the matter properly and contextually considered the provisions of PIE, I am of the view that it would have come to the conclusion that none of the structures that were pulled down were being unlawfully occupied under PIE [emphasis in original].

In other words, Gamble suggests that “people effectively occupy the land upon which an informal structure is erected (regardless of its state of completion) by virtue of the fact that the structure is located thereon”.

Written more simply, it does not actually matter how long someone has occupied a structure in order for it to be deemed a home. What matters is that they built a structure for the expressed purposes of occupation (whether lawful or unlawful) in order to make it their home. Therefore, all structures that were built on the 7th and 8th, even if they were built five minutes before the ALIU arrived, were protected under the Prevention of Illegal Evictions (PIE) Act.

Landmark ruling

Judge Gamble remarked when arguments closed on 25 February that we are entering new legal territory. He took more than two weeks to apply his mind and the result has been nothing short of catastrophic for Anti-Land Invasion units and “red ants” all over the country.

If the order is not challenged or is upheld in the Constitutional Court, it effectively limits the ALIU to preventing structures from being erected but removes from them the authority to destroy any structure built with the intent of occupation without a court order. As such, one could conclude that the majority of the work that the ALIU carries out on a daily basis has been deemed “unconstitutional and unlawful”.

Across South Africa, municipalities can no longer arbitrarily define what is a home, a judgment that Magardie sees as a victory for shack-dwellers everywhere. This includes, for instance, the other Marikana Land Occupation in Cato Crest (Durban).

The importance of this ruling in terms of protecting South Africa's poor from arbitrary evictions and home demolitions cannot be understated. Perhaps, now, municipalities will begin to finally follow the PIE Act. But then again, as with the Cato Crest demolitions, municipalities often defy court orders with impunity.