Author Archives: Abahlali_3

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

West Cape News: Marikana shacks were ‘unoccupied’ claims City

http://westcapenews.com/?p=6231

Marikana shacks were ‘unoccupied’ claims City

Nombulelo Damba

The up to 125 shacks the Anti-Land Invasion Unit has repeatedly demolished in the Marikana informal settlement in Philippi East were unoccupied, says the City.

However, a number of Marikana residents, who have been trying to set up home on the city-owned land piece of land on Symphony Way for the last two weeks, say their shacks were demolished while they were still inside them.

Following the Anti-Land Invasion Unit having returned four times since April 25 – the last time being on Thursday last week – the homeless families are setting up makeshift shelters of plastic and cardboard at night and taking them down during the day.

Responding to questions submitted last week, Mayco member for Human Settlements, Thandeka Gqada said residents build shacks illegally on city-owned land then leave them unoccupied and carrying on living in their original dwellings.

But Xolani Mswabi said he was one of the Marikana settlers whose shack was demolished on May 1 – the third time the city had cleared the shacks after residents rebuilt them – while he was still inside it.

Mswabi said all his belongings were inside the shack when the ALIU pulled it down.

“My shack was destroyed more than two times and the last time on May 2. They took the material that was left to cover myself. No one was given notice and we’ve been telling City of Cape Town that we have no other place to live,” he said.

Mswabi came close to being arrested on May 1, along with Mzwamadoda Fingo, when he grappled with law enforcement officials in a bid to demolish his shack himself rather than let the ALIU officers do it.

“With anger I pushed them because the material was going to fall on top of my cardboard, one of the officials pushed me. They grabbed me, pressing me down but some police officers intervened and they left me,” said Mswabi.

Zoe Zulu, 36, a mother of two children, said her shack was also destroyed while she was inside, feeding her five year old daughter on May 1.

Zulu has since been given shelter at the St John’s church while searching for another place to live.

“I don’t understand why the city said we were not living in our shacks because I begged them not to destroy my shack.”

She said as her shack was pulled down her one-month-old son, who was strapped to her back was struck by a falling piece of building material.

“I only noticed later, because he struggled to sleep. Some of the people told me that he was hit,” said Zulu.

The informal settlement, which residents dubbed Marikana as they said like the platinum workers, they were prepared to die for their rights, was first occupied by about six shacks two months ago.

Late in April, the number of shacks increased drastically and the homeless rights organization Abahlali baseMjondolo took up the Marikana cause.

Marikana residents are predominantly former backyard residents who say they can no longer afford to pay the R500 per month rent their landlords demand.

Abahlali baseMjondolo representative Cindy Ketani said the City’s claim that the shacks were unoccupied was “totally rubbish”.

“People were thrown out of their shacks by the City Anti-Land Invasion Unit and pictures were taken of that, so I do not understand why they’re denying it because it’s very clear.”

She said the City was trying to ensure they were not prosecuted for conducting illegal evictions as they were supposed to provide the residents an alternative place to live.

Gqada confirmed that 125 structures were demolished on May 1 and 11 on May 2.

She claimed all the structures were unoccupied and thus the city had no legal obligation to obtain an eviction order.

Asked if the residents were warned of impending demolition, she said they were “verbally warned”.

She said the City did engage with the residents who said they had been living in backyards.

“The claim is that the people are living in backyards, and it is presumed that they will return there.”

Grocott’s Mail: Picket sparks City Hall action

http://www.grocotts.co.za/content/picket-sparks-city-hall-action-02-05-2013

Picket sparks City Hall action

by Thembani Onceya

Makana Municipality has appointed a consultant to assess the design and costs for supplying electricity to eTembeni, in Extension 7.

Makana Mayor Zamuxolo Peter revealed this after around 30 residents, together with members of the Unemployed People’s Movement, picketed outside the city hall yesterday in a service-delivery campaign that began earlier this week.

The group had protested outside municipal buildings on Monday afternoon, demanding electricity for the informal settlement behind Benjamin Mahlasela Secondary School in Extension 7.

In yesterday’s protest, the residents asked the mayor Zamuxolo Peter to write a letter of commitment – and he obliged, making his way to the Mayoral Committee Room accompanied by a group of residents.

In the letter, Peter said the municipality had appointed consultant Arcus GIBB Pty to conduct an assessment, including the design, cost estimates and fee structure to electrify eTembeni informal settlement.

This process will end on 31 May.

A meeting with Arcus GIBB and Eskom to discuss the second step of the project would be in June. Monday’s protesters were divided in two groups: one was in front of the municipality and the other was next to PEP store.

They chanted struggle songs, carrying hand-written placards and emptied at least one rubbish bin in High Street.

One of the conveners, Thandeka Nombewu, said they had tried to discuss their need for electricity with officials, but nothing had been done.

“We were suppose to meet with the mayor, Zamuxolo Peter, last week but he didn’t pitch,” she said.

“What are we supposed to do when our leaders are running away from us?” Nombewu said they wanted electricity, houses and running water.

UPM organiser Ayanda Kota said people had been promised houses, electricity and running water after Zuma was elected in 2008.

“This picket is nothing but people demanding their dignity,” Kota said on Monday.

He said they wanted a written commitment that electricity would be installed in eThembeni by a certain date.

Resident Xolisile Lukwe said the area was dark at night, making people vulnerable to attack. He said he had no neighbours today, because they’d died in a fire last year which was caused by a burning candle.

“The problem is that you cannot see tsotsis in the dark,” Lukwe said. “They hide in dark corners with pangas, waiting for you to approach their corner. They have beaten us, robbed us and even raped our women.”

Another resident, Ntemi Thuthani, said they lived in a place where crime was increasing every day.

“eThembeni is too dark and there are people who kick in our doors at night,” she said. “People without electricity are people without life.”

Municipal spokeperson, Mncedisi Boma, said they had been notified of the picket – but the gathering had been authorised for yesterday, not Monday.