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No compassion for people who do not drive a Porsche?

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No compassion for people who do not drive a Porsche?

Posted on March 11th, 2008 by Pierre De Vos

One would think that it would have been hard for Judge President of the Cape, John Hlophe, to order the forced eviction of 20 000 poor, black people from the Joe Slovo informal settlement. After all, when he was in trouble for taking hundreds of thousands of Rand from the Oasis company and then lied about the reasons for these “out of pocket” expenses, he presented himself as a champion of transformation and a victim of racism.

But I suppose now that he is safely back in the saddle and he can enjoy his ownership of a wine farm while driving in a shiny new black Porsche, he has forgotten the values of the Constitution that requires him to consider the human dignity of the poor people whose forced eviction he has now ordered. Who cares that the order will destroy this community and that the people now living close to work opportunities will be dumped in the gramadoelas in Delft?

Yesterday the judge President handed down a judgment in Thubelisa Homes and Others v Various Occupants and Others that seems to me completely devoid of compassion and also legally misguided because it essentially ignores recent decisions by the Constitutional Court, while purporting to follow them. Thubelisa Homes applied for the eviction order so that it could bulldoze the shacks next the the N2 before erecting shiny new homes where only a few of the original occupants of the informal settlement will ever live.

The starting point of the judgment is that the residence of Joe Slovo – who have been living on the land since 1994 and have been given tacit approval for living there by the authorities – are unlawfully occupying the land needed for a vanity housing project (the N2 Gateway project) and that it would therefore be fine to remove them to Delft because it would actually “undoubtedly [be] for the benefit of the residents of the informal settlement and in line with the Constitutional values”. These pesky residence just do not want to know what is good for them. Obviously bureaucrats and a judge driving a Porsche knows much better what is good for them than they would know themselves. After all they are only poor and black.

The judgment refers to an earlier Constitutional Court judgment in the Port Elizabeth Municipality case where justice Albie Sachs stated that a court should be reluctant to grant an eviction order against relatively settled occupiers unless it is satisfied that a reasonable alternative is available. Thus, Justice Sachs continued, the legislation expressly requires:

the court to infuse elements of grace and compassion into the formal structures of the law. It is called upon to balance competing interests in a principled way and to promote the constitutional vision of a caring society based on good neighbourliness and shared concern. The Constitution and PIE confirm that we are not islands unto ourselves. The spirit of ubuntu, part of the deep cultural heritage of the majority of the population, suffuses the whole constitutional order. It combines individual rights with a communitarian philosophy.

But the judgment then approvingly quotes from the Supreme Court of Appeal judgment (handed down by that champion of transformation, Harms ADP) in City of Johannesburg v Rand Properties (since overtaken by the Constitutional Court judgment two weeks ago!) to the effect that the Constitution does not give a person a right to housing at State expense at a locality of that person’s choice and concludes that it is fair and reasonable to dump the 20 000 Joe Slovo residence in Delft – even though it is 15 kilometers from Joe Slovo, far away from the city center of Cape Town.

This line of reasoning is perplexing, to say the least, as the Constitutional Court in the City of Johannesburg case in effect overruled the SCA judgment by ordering the parties to negotiate with one another and by implicitly accepting that it would not be humane or in conformity with a respect for the human dignity of the inner city dwellers to dump them at alternative accommodation 35 km outside of town. In that judgment Justice Yacoob stressed that the human dignity of those affected by removal must be respected and that their views must be heard.

This seems to imply that high handed and unilateral action by officials or judges telling people what is good for them will not suffice. A real and meaningful engagement is required and merely telling the people of Joe Slovo that it was in their own interest to be dumped in godforsaken Delft would not be good enough. What is sorely lacking in the Hlophe judgment is the “grace and compassion” that Justice Sachs spoke about.

For me what permeates the judgment is a complete lack of compassion for the plight of the Joe Slovo residence. There might be a case to be made to upgrade the Joe Slovo informal settlement, but then it should surely be done within the confines of the Constitutional values of dignity and respect. By repeating over and over that the Joe Slovo residence are living unlawfully on the land, the judgment seems to suggest that they are criminals who are thus less deserving of concern, compassion and respect.

It accepts that the government policy that would force most Joe Slovo residence to permanently live far away from their places of work is completely reasonable because the government says that it is reasonable. It emphasises the need for the court to respect the separation of powers and thus suggests that the court should take at face value assurances by the government that it would be better for Joe Slovo residence to be moved. It completely ignores the fact that the Joe Slovo residence do not think it would be better for them to go and live in the veld.

It is hard to argue that “elements of grace and compassion” animate the conception of reasonableness in this case. It suggests that it is perfectly acceptable for the state to forcibly remove a large group of people who have been living on a piece of land for thirteen years merely because the government of the day has decided this is what needs to happen.

Maybe I am too harsh on the judgment, but it seems to me that given our history in which the apartheid government forcibly removed people at the drop of a hat, courts should be extremely sensitive to give eviction orders where such a large group of people will be moved and their lives disrupted for ever. In this case there is a complete absence of this historical perspective.

To my mind it once again shows the difficulties of judicial transformation and poses questions about what kind of judges we need on the bench. Surely real judicial transformation requires judges who are sensitive to the needs of the poor and destitute and at least an honest engagement with their fears and complaints. In this judgment there is a complete absence of such engagement and the Joe Slovo residence and their needs are completely ignored. They are treated as recalcitrant individuals standing in the way of the government housing programme and their needs and wishes are completely ignored.

Before the law they have once again become invisible. They are not treated as individual human beings with feelings and needs but merely as a problem to be dealt with. What we need are more judges who really wrestle with the very difficult issues presented by gentrification of informal settlements and the real hurt and pain of forced removals. This is what the Constitution – as interpreted by the Constitutional Court, not the SCA – requires.

Perhaps this is too much to ask of a judge who might experience this informal settlement on the N2 as an eyesore and a stumbling block to progress – even as he speeds to his wine farm in his shiny Porsche.

Black Looks Blog: Abahlali baseMjondolo

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Abahlali baseMjondolo
on March 23, 2007
Category: South Africa, Social Movements

Whilst in Durban I met with the newly formed Women’s League of the Abahlali baseMjondolo (Shack Dwellers’) Movement which, although it has members across the province of KwaZulu-Natal, has its strongest base firmly concentrated in Durban.

Members of the newly formed Women’s League of the The Abahlali baseMjondolo (Shack Dwellers) Movement based in Durban spoke about their lives and their struggle against eviction, corruption and the right to housing, water and other basic amenities. I found a group of strong women who despite living with domestic violence, unemployment, rape and HIV were determined to stand their ground and in the daily fight against Durban municipalities, councillors and local businessmen for the right to live with dignity. Their biggest problem was unemployment and all desperately wanted to find ways to create their own incomes as paid labour was even more difficult to get than self-employment. Many of the women collected materials for recycling but they wanted to set up their own recycling business such as making glasses out of bottles and consumer products from tins and cans but to do this they need money to buy the special equipment and of course training. They had access to small pieces of land that they could use for vegetable gardens but even though they had been allocated some equipment by the local government they had not received it and did not expect to receive it so the only alternative was to use their hands to work the garden. Some of the women had set up a feeding scheme for the very poor members of their community which worked by those who could afford to give something contributing pap and other food stuffs when they could and sharing the preparation and cooking.

Motala Heights.

The Shack dwellers in Motala Heights settlement (in the nearby industrial town of Pine Town) are 100% Abahlali and were very organised. There is also a very poor Indian community adjacent to the settlement and this group are themselves becoming organised and are working with Abahlali in Motala Heights in one big Abahlali branch the includes the shack settlement and the tiny houses. The situation here is that the shacks were supposed to be upgraded but a local business man, Ricky Govender wants to build housing for middle class Indians. He is now trying to evict the present shack dwellers and people in tin houses (Africans and Indians) so that he can go ahead with his plans to “upgrade the area” and remove the criminals i.e. the poor. It is against the law to evict shack dwellers but with corruption rife, businessman are able to circumvent the law and evictions do take place unless the residents are prepared to stand their ground and fight back. Although it is illegal to evict residents, it is also illegal to build new shacks.

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Forced Evictions

The government is building box houses on the rural periphery of the city to re house the shack dwellers and presenting this as a form of progressive action. The reality is that it is a form of apartheid the only difference being that single women are also allocated housing. People are being forced to move into these small box houses which are being built way out of town far from transport with no schools, clinics or other infrastructure. There is no employment hope in these places so how are people supposed to live? Another issue is that many shacks are shared by more than one family – why so? Because the allocations go to one “family” to one new house. But since shacks house more than one family the one that remains or is not part of the “rehousing scheme” is then made homeless and has to then seek another family to share with and so the cycle continues. Sometimes whole generations of one or two or even three families are sharing the space – it is inhumane and undignified for all. A further issue is that in some cases families are having to pay bribes to get on the rehousing list and then they find even then they are still not allocated housing which adds to the bitterness and hostility towards the local government officials.

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Sibu Zikode is the President of The Abahlali and he is a living expression of the movement. Calm determined, focused and committed. The basis of the success of Abahlali are all these things. Yes they are angry at the betrayal of the post apartheid government, at the dehumanizing of their lives and the trickery of business and local councillors but it is not a wild anger. It is a focused liberating anger.

Sibu lives in the Kennedy Road Settlement which has been in existence for 30 years but still the government insists on calling it a temporary settlement which is a way of denying the people basic services. For example in 2002 the present ANC government stopped electrifying the settlements. There are only 5 toilets and 5 standpipes for a population of some 7000. Denying the community these basic needs is a way of marginalising them as well as attempting to remove them from their homes. They are not moving. The movement to mobilize the whole settlement community started following a series of Marches by the Kennedy Road people and was joined by other surrounding settlements that at the time all had local based organising committees. But it was following the denial of their promised land that led to the formation of The Abahlali starting with 14 settlements and now there are 34 altogether associated with the movement.

The success of the movement is due to the committed collective leadership, the bravery of everyone to defend their rights and the fact that there is a sense of unity and ownership of their community – there are no NGOs, academics or any other group that speaks for the Abahlali – they speak for themselves – elect themselves and struggle for themselves.

The people of Kennedy Road do not want to move to a new location outside the city. There is land next door to them that was promised to them and then sold to a local business man. They want their land to be redeveloped so they have access to schools, health and employment.

The ANC has betrayed the masses of people, the poor, the vulnerable and most needy sections of South African society both in the urban and in the rural areas. HIV and AIDS are lived experiences for everyone in these areas. As someone said to me – we in the townships, the informal settlements, the rural areas all live with HIV – no one has friends, relatives and family who are either positive or who have died of AIDS – it is everywhere sometimes openly sometimes secretly amongst us but it is there and it speaks loudly.

The people of the informal settlements feel betrayed, angry and frustrated by the present leadership after the struggle for liberation but this has made them stronger and more determined. They intend to use the very same tactics and strategies of the anti-apartheid movement to continue and win their own struggle for dignity. Ironically it was the Apartheid government that build the one concrete structure in the Kennedy Road settlement and the concrete steps in the nearby Foreman Road settlement.

The Abahlali baseMjondolo movement is living proof that when the the organized poor start speaking for themselves it creates a serious crisis. No one not the NGOs, the Government or various middle class left sects want the poor to speak for themselves. NGOs overtly and or covertly try by all means to undermine movements of the poor and co-opt the struggle for their own selfish purposes to the point where you find that there is little difference between them and the State itself.

I would like to thank all the activists from the The Abahlali baseMjondolo movement who spoke with me, invited me into their community and shared with me their trust and their struggle and dreams for the future.

Shackdwellers + Durban