November 09, 2009 Edition 1

NTOKOZO MFUSI

KEEPING the KwaZulu-Natal Elimination and Prevention of Re-emergence of Slums Act on the statute books has become pointless after its defining section was declared unconstitutional, say legal and housing experts.

Section 16 of the controversial act – which made it compulsory for municipalities to institute proceedings for the eviction of unlawful occupiers of property, where the owner or person in charge fails to do so – was ruled unconstitutional by Deputy Chief Justice Dikgang Moseneke last month.

Justice Moseneke said the section made residents of informal settlements, who were invariably unlawful occupiers of land, more vulnerable to eviction. He also found that the power given to the government to issue an eviction notice was “over-broad and irrational” because it applied to any unlawful occupier on any land or in any building, even if it was not a slum and was not properly related to the purpose of the act – to eliminate or prevent the re-emergence of slums.

Compel

Centre for Applied Legal Studies researcher Kate Tissington said: “Section 16 was the centrepiece of the Slums Act. It allowed the (housing) MEC to compel municipalities and landowners to evict (unlawful occupiers of property). It was the only section of the act which did not replicate, or very closely resemble, provisions of laws already in force.

“Without it, the Slums Act might as well not have been passed. It does not matter that the remainder of the act remains intact because much of it simply parroted laws that already existed.”

Housing MEC Maggie Govender said she was committed to improving the living conditions of those in desperate situations, and the Slums Act had been aimed at that end.

“The objective of the Slums Act is to provide humane living conditions for the poorest communities.”

She said the remaining portions of the act remained intact, and the Constitutional Court recognised it as innovative legislation.

Govender said she would meet stakeholders once her legal team had identified options that would achieve the objective of the act within constitutional parameters.

However, Tissington said it was impossible to “achieve the purpose of the Slums Act” without section 16.

“It is not just the letter of section 16 that has been declared unconstitutional, but its very purpose. With it goes the purpose of the Slums Act as a whole.”

Organisation of Civic Rights chairman Sayed Iqbal Mohamed said he did not see how the government could now use the act for the purpose it was intended. He said the best way for Govender to deal with slums was to engage with shack dwellers to find an amicable way to address slums.

“The majority judgment (of the Constitutional Court) found section 16 of the Slums Act to be in conflict with the National Housing Act and the National Housing Code.

“In essence, the majority judgment protects the rights of the poor, upholds the constitutional provisions, guarantees the right to housing, strikes down the intended coercive power to local government and prevents the Slums Act from being replicated in other provinces.”