Category Archives: Constitutionally Speaking

Constitutional Court more pro-poor than the government

Given recent statements by Gwede Mantashe, Secretary General of the ANC, and President Jacob Zuma complaining about alleged “interference” by the judiciary in the work of the elected branches of government (the legislature and the executive), it is perhaps understandable that an announcement by cabinet about a new “assessment on the transformation of the judicial system and the role of the judiciary in a developmental state” will be carried out by a “reputable research institution” created an outcry. As I wrote earlier this week, trust in the ANC government amongst the chattering classes is at an all time low, given daily reports of corruption in our media and given the passing of the Secrecy Bill by the National Assembly.

Only a few minutes after the statement was released my phone started ringing as journalists anxiously sought confirmation that this statement must be read as a full-frontal attack on the independence of the judiciary. Journalists focused especially on the announcement that cabinet agreed to an approach to the transformation of the judicial system that would include an ”assessment of the decisions of the Constitutional Court”, to be “undertaken by a research institution to establish how the decisions of the court have impacted on the lives of ordinary citizens and how these decisions have influenced socio-economic transformation and the reform of the law”.

However, on its face, this statement could be viewed as a positive development. If a truly independent and reputable research institution conducts such an assessment, it will inevitably find that the decisions of the Constitutional Court – perhaps more than the actions of the legislature and the executive — have by and large impacted positively on the lives of ordinary citizens and have facilitated socio-economic transformation. Where the Constitutional Court has handed down judgments that could be viewed as anti-poor, the decisions have almost always endorsed the policies of the government.

I am thinking, for example, of the Mazibuko judgement in which the installation of pre-paid water meters in Phiri, Soweto were unsuccessfully challenged by the residents of that area. The policy was devised and implemented by the ANC-led Metro government of Johannesburg and in my view discriminated against poor black residence of parts of Soweto. The Constitutional Court declined to intervene because the Metro’s policy was adapted over time.

However, in many other cases, the Constitutional Court has either endorsed transformative policies of the government or declared invalid anti-poor policies and laws passed by the ANC national or provincial governments. In the Grootboom case, the Treatment Action Campaign case, the Khosa case, the Jaftha case, and the Glennister case the Constitutional Court handed down judgments that had the effect of extending social and economic rights benefits to the poor, protected them from discrimination and unfair treatment or placed duties on the government to fight corruption, the very corruption that disproportionately affect the lives of the poor and the marginalised who depend on the honest and efficient state to provide it with the minimum basic goods and services required for them to survive and live a meaningful life.

The most telling case in this regard is the judgment of the Constitutional Court in the case of Abahlali Basemjondolo Movement SA and Another v Premier of the Province of Kwazulu-Natal and Others in which the Constitutional Court struck down sections of the KwaZulu-Natal Elimination and Prevention of Re-emergence of Slums Act. This Act, passed by the ANC-led legislature in KwaZulu-Natal, represented a full frontal attack on the poor, the homeless and those living in informal settlements. It might well have been passed in an attempt to undermine Abahlali Basemjondolo and to provide the government with legal tools to harass its members. The Act would have required landlords to evict all “slum dwellers” (a term last used by the apartheid government in the 1960ties) and was thus found to breach the right of access to housing guaranteed in the Constitution.

A credible report assessing the work of the Constitutional Court will have to come to the conclusion reached above, answering the very criticism of Mantashe, Zuma and others in the ANC who have convinced themselves that the courts interfere with the abilities of the other branches of government to effect socio-economic transformation. Any other conclusion will not be credible and no academic worth his or her salt would put their name to a report that concludes differently. If the assessment is done properly, it may therefore help to silence critics of the Constitutional Court.

This does not mean that other aspects of the cabinet statement are not worrying as they suggest a complete lack of respect for the separation of powers doctrine, which is inherent in a system of checks and balances in a constitutional democracy with a supreme Constitution. Two statements in particular can be interpreted to mean that the executive wishes to meet privately (read, in secret) with members of the judiciary to “engage” judges and to try and convince them that they should stop finding that the government is in breach of the Constitution. Notably the statement says:

Thirdly, to affirm the independence of the judiciary as well as that of the executive and parliament with a view to promoting interdependence and interface that is necessary to realize transformation goals envisaged by the Constitution. ….. Appropriate mechanisms be developed to facilitate for regular interface between the three spheres of the State to enhance synergy and constructive engagement among them in pursuit of common transformative goals that are geared to benefit the society at large.

There is nothing wrong with the leadership of the judiciary engaging the executive on issues dealing with access to justice and the better running of the judicial system. The government is elected to provide better access to justice and has to ensure that the system works well. In as much as formal discussions between the branches of government can facilitate the better functioning of our court system and easier access to courts, the move should be welcomed.

However, it is absolutely inappropriate for the executive to engage judges in a way that would even give the appearance that the members of the executive are trying to persuade judges to make decisions in individual cases that are more in line with the policy choices of the government. This would represent a full frontal attack on the independence of the judiciary and the system of checks and balances put in place by our Constitution.

Judges usually do not engage anyone about their past or future judgments (no matter what Judge President John Hlophe might think). They speak through their judgements and engage in this formal sense in a dialogue with the other two branches of government who can then respond appropriately to the judgments of the courts to ensure that they comply with the Constitution. Judges do not and cannot be seen to engage with members of the executive with a view of achieving “synergy” between the views of the executive and the judiciary.

In a constitutional democracy any synergy that exists between the executive and the judiciary is imposed by the various provisions of the Constitution as interpreted by the Constitutional Court. The judiciary is in dialogue with the executive in a formal way through their judgments but they are not “interdependent” with the other branches of government in the way hinted at by the statement (in the sense that they have to meet with the executive and agree on a plan of action on how best to effect transformation without embarrassing the bumbling lawyers appointed by the President and Parliament). If this is what the statement implied, it is wrong and dangerous and the intentions expressed in it would then be proposing an unconstitutional breach of the separation of powers doctrine, which is a doctrine that is deeply entrenched in our constitutional law.

What is needed is for this statement to be clarified. As it stands it can easily lead to the conclusion that the cabinet has a particularly dangerous and unconstitutional view of the relationship between the executive and the members of the judiciary. The judiciary — unlike the legislature and the executive — is completely independent and is required to be seen to be independent from the other branches of government. Secret talks about the transformative goals of the government with a view to “pull together” (which could easily mean, pull in the same direction as the executive – even when it acts in breach of the Constitution) would therefore not be acceptable. Indeed, it would represent a shocking attack against the Constitution itself.

As I suggested, the statement could, at a stretch, be interpreted differently to mean only that the executive would like to engage the leadership of the judiciary to improve access to justice and the efficiency of the courts. If that is the case, this should be made clear. If, however, the cabinet believes that it is appropriate for them to have secret chats with members of the judiciary to ensure policy synergies between them and the judiciary so that judges would not declare invalid the bumbling actions of the legislature and the executive, then the cabinet is shockingly ignorant and is embarking on a road to destroy our constitutional democracy. No judge who respects the Constitution would be party to such talks.

Constitutionally Speaking: About glue and superglue

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http://constitutionallyspeaking.co.za/about-glue-and-superglue/

About glue and superglue

by Pierre De Vos

Only the most partisan and jaded among us who read through the documents on organisational renewal prepared for the ANC National General Council (NGC) would not be impressed by the honesty of the document and by the harsh but accurate assessment of the state of the organisation contained in it.

(Helen Zille could learn a thing or two from the ANC about admitting to the difficult problems faced by her party and the shortcomings of many party members and leaders. But – like Margaret Thatcher – that lady is not for turning and not for admitting a mistake, no matter how damaging and obvious the mistake might have been.)

As the ANC document points out, leadership in the ANC is seen as steppingstone to positions of power and material reward in government and business. There are disturbing trends of “careerism, corruption and opportunism,” taking root in the party at various levels, “eating at our soul and with potential to denude our society of an agent of real change”. The document also recognizes the challenges and sins of incumbency (patronage, bureaucratic indifference, arrogance of power, corruption) and suggests approaches to the management of relations within the organisation.

The ANC – and, ironically, even its leader President Jacob Zuma – often talks about the need to deal with corruption and nepotism and Cosatu last week announced (yet another) initiative to deal with these problems in the party. Why then does the ANC seem incapable of dealing with problems of corruption and nepotism – despite many party leaders freely admitting to the problem and clearly being worried about the consequences of the corruption eating away at the moral fabric of the ANC?

An excellent article in this weeks Mail & Guardian about Kennedy Road and the academic article by Prof Sujit Choudhry (highlighted in the “updates” section of this Blog) on the pathologies of one party dominant democracies, go a long way to explain why the ANC will not be able to deal decisively with corruption. At its most basic level, the ANC will not be able to deal with corruption and nepotism in its midst because it needs corruption and nepotism to remain the dominant party in South Africa.

The better instincts of many ANC leaders therefore come in direct conflict with the more urgent instincts of staying in power to advance the “National Democratic Revolution” (and to hold on to the the perks and benefits of office – the cars, the blue lights, the body guards, the money, the ego-trips).

The end result is that the ANC will continue talking about corruption and the need to address it, while it will continue to turn a blind eye to it (perhaps occasionally making an example of a Tony Yengeni or a Jackie Selebi to demonstrate how serious it is about dealing with the problem). If it actually rooted out corruption, it will not be able to distribute benefits and opportunities to a wide array of people and will not be able to retain the loyalty of important but disparate groups who are currently loyal to the ANC. Corruption and nepotism is the glue that holds the ANC together.

It is true that this glue is turned into superglue by the other factors (the continued racism of large sections of the economically powerful minority; the emotional identification that many feel with the ANC because it is the party of liberation; the splintered nature of the Parliamentary opposition and the strategically shortsightedness of opposition parties which limits their chances for growth), but the fact is that the ANC is managing to dominate the political landscape in South Africa because it controls the state and its resources and can dispense benefits and opportunities to those who might otherwise have challenged the authority and power of the party.

It is essential for the ANC to be able to continue to dish out patronage to a wide array of people and to be seen to be able to do so. This they can only do if they turn a blind eye to tender fraud, corruption and nepotistic appointments and if it continues to insist on the continuation of cadre deployment. The ANC must be seen to be the only vehicle through which people can gain access to state resources and must thus be seen as the only party who can improve the lives of most voters. (That is also why the draft Bill that would prevent party leaders from holding local government jobs is meeting such stiff resistance from within the ANC.)

The brilliant article by Niren Tolsi in Friday’s Mail & Guardian (not yet available on the internet) is instructive in this regard. Writing about the aftermath of the criminal attacks on leaders of Abahlali baseMojondolo in Kennedy Road in September 2009, he notes that at the time of the attacks, Bhekisisa Stalin Mncube, spokesperson for the provincial minister for safety and security Willies Mchunu, sent out a press release on behalf of Mchunu and the provincial police commissioner Hamilton Ngidi saying that “the provincial government has moved swiftly to liberate a Durban community (Kennedy Road)”.

He shows that this “liberation” was nothing else than a move to re-establish the authority of the ANC in the area to ensure that residents would understand that it would only be through ANC structures that they would be able to access services or benefits. Abahlali baseMjondolo was a threat to the ANC because it established alternative structures in the area and provided services to the community and helped each other and this sent a signal that one need not be an ANC member or close to the ANC to benefit and to improve one’s life.

This meant residents did not have to go via ward committees and other ANC controlled structures if they wanted to get things done. But the ANC in the area could not tolerate this challenge to its authority because if enough people started believing that membership of the ANC (or at least not active opposition to the ANC) was not essential for any advancement, then the power of the ANC in the area might have been broken and people might have begun to explore other political options.

Conservative political scientists like Herman Giliomee often argue that South Africa is not a fully functioning democracy because our regular elections are no more than a racial census in which people vote either for the ANC (if they are black) or the DA (if they are white). This analysis is far too simplistic. People vote for the ANC and join the ANC for many reasons, including suspicion of the (white dominated) DA and an emotional identification with the ANC as a party of liberation.

But the dominance of the ANC – despite its dismal failure at local government level – cannot be explained purely in such terms. My view (not shared by all) is that most voters are not that stupid and usually vote for the party they perceive as the party best capable of addressing their needs and concerns. Many voters thus continue voting for the ANC exactly BECAUSE of the ANC’s dominance and its control of the levers of state power.

It is not because the ANC is delivering brilliant services at local government level, but because the ANC has convinced most voters that it is the only party that can make any real difference to their lives – often by bending the rules, by dishing out tenders fraudulently, and by employing unqualified people in government merely because they are close to the ANC. If the ANC controls public resources, it makes sense to vote for or even join the ANC in order to better one’s chances of improving one’s life.

A completely neutral state machinery as required by our Constitution (in which a sharp distinction is drawn between the governing party and the state and in which one’s political affiliations makes absolutely no difference to one’s chances of getting a tender or a job and very little difference to whether the state builds a school in your community or tar the road to your house) would be disastrous for the ANC. If people did not think that the ANC and the state was basically one and the same thing, they would consider voting for another party or – even worse for the ANC – they would consider forming another party to challenge the ANC’s dominance. For most poor people to do so at present would be rather stupid or even suicidal.

But to ensure that the ANC is associated very closely with the state, the rules according to which tenders are issued, jobs are provided and services delivered must be corrupted to ensure that only ANC aligned individuals are seen to benefit (or at least are seen to benefit more than those who are not ANC members, have not voted for the ANC or actively oppose the ANC). No wonder COPE is not coping: having lost the power of incumbency it has very little to offer ordinary voters.

That is why the ANC leaders at Luthuli House have insisted on appointing Premiers and even mayors, why it is investigating changes to the provincial government system to limit the chances of provinces (like the Western Cape) attaining too much power and hence too much access to state resources, and why it cannot afford to deal decisively with corruption at national, provincial and especially local government level.

As Choudhry points out, this does not make South Africa unique at all: India, Mexico, Japan and many other countries in which one party dominant democracies enabled governing parties to retain power for many years all suffered from the pathologies of one party dominance highlighted above.

It does mean that unless the economy collapses and deprives the ANC government of sufficient resources to dispense (as happened in Zimbabwe, enabling the emergence of the MDC), or unless alternative centres of power emerge in municipalities and provinces to challenge the hegemony of the ANC, corruption and nepotism will not be addressed in the medium term. This is not because the ANC leadership is inherently corrupt or that it is morally depraved, but because it has no other choice but to turn a blind eye to corruption and nepotism if it wants to remain the dominant party.

In this, big business and the ANC are in cahoots. During the apartheid era in which the National Party dominated the (whites only) electoral landscape, big business got into bed with the Nats because the Nats had access to resources, could dish out tenders and business, and could ensure an environment in which astute and unscrupulous businessmen and women could become rich. Now that the ANC is firmly entrenched as the dominant party in South Africa, big business has found a new bed partner.

Absa is of course the perfect example of this trend. It used to be the bank of the apartheid government and the supporters of apartheid and it seamlessly turned itself into the bank of the ANC government and of the new elite. When big business bleats about corruption and nepotism, I take this with a pinch of salt. They are not against corruption and nepotism: they are just against the wrong people getting corrupted and then reaping the benefits form corruption.

What is to be done? Corruption commissions will not do the trick. It seems to me that resistance from below (as opposed to complaining by elites like myself) is our best bet.

Here the Constitutional Court can play an important role: by vigorously enforcing the Rule of Law, by making decisions that opens up or keeps open democratic space for contestation, by acknowledging that it has been called upon to interpret and enforce the Constitution in a one party dominant democracy and that this should be taken into account when it makes decisions about the nature of democracy, about the powers of the various spheres of government, and about the abuses of power by the executive that inevitably result from one party dominance, it can help to empower communities who want to take on corruption and nepotism.

In this regard, it will be interesting to see how the Constitutional Court deals with the case challenging the appointment of Menzi Simelane as National Director of Public Prosecutions. If it is asked to consider this matter and if it declines to invalidate the decision of the President on the grounds that the President should have a wide discretion to deploy incompetent and ethically challenged cadres into constitutional positions, we will know the court is not up to the task of helping to safeguard our democracy. What will the Court do? Only time will tell.

Constitutionally Speaking: In defense of the Internet

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http://constitutionallyspeaking.co.za/in-defense-of-the-internet/

In defense of the Internet
Sep 9th, 2010
by Pierre De Vos

Which readers of this Blog (whom I assume are mostly relatively well informed) know the names of Mr Sbu Zikode, Mr Mzwakhe Mdlalose, Ms Bandile Mdlalose, Ms Zandile Nsibande or Mr Zodwa Nsibande? They are, of course the President, Vice President, Secretary General, Chairperson of the Women’s League and Chairperson of the Youth League of Abahlali baseMjondolo, the Durban Shack Dwellers Movement, one of the most influential and vibrant social movements in South Africa who, on its website, describes itself as the largest organization of the militant poor in South Africa.

These are not household names because the leaders of Abahlali baseMjondolo hardly ever appear on SABC TV or radio or ETV and are seldom quoted in the daily serious newspapers (media consumed by the elites of all races). Abahlali is hardly ever quoted exactly because they style themselves as an organization that represents the militant poor in opposition to elites of all races – including the elites who sit in our government and drive in R1 million cars in blue light convoys. These are the very elites who control the SABC, ETV and the printed media and produce news for other elites (like those who write and read this Blog).

Last year when Abahlali leaders and ordinary members were viscously attacked by thugs, allegedly in collusion with members of the police, some newspapers did report on the matter and when it successfully challenged the constitutionality of the apartheid-style Kwa-Zulu/Natal Slums Act it was also reported – scantily – in the media.

But as a general rule, both the ANC-aligned SABC and private independent media have not done a good job of reporting on the actions of this group. What motivates its members? What are the conditions that have produced this organisation representing the interests of the militant poor? What is it that motivates its members and what does the organisation wish to achieve? What does it mean for our democracy? One would be hard pressed to find any reporting or analysis on such pressing questions in our media.

I therefore agree with Steven Friedman that there is something seriously wrong with the way in which our media operates (although I suspect that the problem is even more complex than he suggests). Writing in Business Day, yesterday Friedman pointed out that:

Government attacks on the press have ensured that it is hard to question journalists’ priorities for fear of being seen to encourage censorship. But it should be possible both to defend the press’s right to tell us everything we need to know and to complain that, in the main, it does not tell us — to oppose not only the controls politicians place on papers but those journalists place on themselves….

The problem here is a pack journalism in which some decide what the story is and everyone follows — and reportage which is obsessed with the actions of a few political figures rather than the patterns which may shape where our country is headed; its practitioners are judged by how connected they are to politicians, not by whether they identify trends.

Our media – both the SABC and the independent media – has an inherent bias in favour of process stories focusing on the official political horse races: What happens in Parliament? Which leaders of the alliance are fighting with each other? Does President Jacob Zuma have any chance of being elected to a second term? Is the Alliance a dead horse or will it survive until Jesus comes back? Is Julius Malema’s fortunes rising or falling?

Our media also has ideological and class biases, reflecting the anxieties and the concerns of members of the middle and upper classes and political elites. The way in which the scandalous behaviour by some striking workers were reported recently (by both the SABC and the private media) served certain ideological and class interests. It focused very strongly (but admittedly not exclusively) on these excesses, and this served the ideological and class interests of the rulers. (No ANC leader complained about the way in which the media vilified the strikers, for example.)

Reporting is about making choices: about what to report and what to leave out, about what to highlight and what to underplay, about how to interpret what is being reported and how to structure the narrative of our daily lives in a way that would make often chaotic events understandable to the consumers of news. We have a tendency to want to fit events into a bigger story, a master narrative if you will, and when the media constructs such a narrative they do so to serve certain class and ideological interests.

The South African media is of course not unique in this regard. Noam Chomsky writes in Manufacturing Consent that it is the primary function of the mass media in the United States to mobilise public support for the special interests that dominate the government and the private sector in that country. The same argument could be applied locally.

This does not mean that the ANC proposal for a Media Appeals Tribunal would be a good thing either. Such a tribunal would merely attempt further to narrow the class and ideological focus of the media to prevent reporting that would be damaging to the governing party and those individuals who circle like hyenas around the party bosses in search of influence and money. If the Tribunal is to have any teeth, it would probably be unconstitutional in any case.

What is then to be done?

My answer would be that one has to accept that in a capitalist society with a free media, that media will always be biased in favour of the elites in and outside of government and will advance their interests. Luckily we live in the age of the Internet and with a little effort one can obtain news and analysis with a slightly broader perspective from the “interweb” (as Die Antwoord might say).

When the ANC discussion document talks about a diversification of the media, it does not take cognisance of this fact. If the ANC was really interested in creating a vibrant and ideologically diverse media, it would not pin its hopes on the Gupta-financed newspaper called New Age. Instead, it would focus on the ways in which citizen journalists and members of social movements can use the internet to disseminate news about its activities and ideas which are not often reflected in the mainstream media.

What is needed is a radical programme to make the internet cheaper and more accessible to ordinary people and to provide support for the kind of citizen journalism and analysis that would provide a far broader spectrum of news and ideas than is currently available in the mainstream media? But I guess this is not what the ANC has in mind, as the Internet is an unruly beast that cannot easily be controlled. The last thing the ANC wants is to give the militant poor (to use just one example) a platform that could be used to organise against the party and the government of the day.

But the internet is here to stay and even if the ANC manages to impose a Media Appeals Tribunal to censor the mainstream media, it will soon find out that this will not stop the bad news from coming out. Neither will it stifle dissent from those whom the governing party truly fears: the unemployed and militant poor.

Constiutionally Speaking: The Rule of Law and “conflicts of interests”

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The Rule of Law and “conflicts of interests”
Posted on July 2nd, 2009 by Pierre De Vos

One of the most important but often neglected aspects of the Rule of Law is the requirement that individuals must be able to enforce their rights and legal entitlements in a court of law. At the heart of the Rule of Law is the notion that we are a rule-based society and that everyone – no matter how powerful or weak – must have the equal chance to enforce their rights and legal entitlements as set out by law.

However, in South Africa most people – let alone poor people – do not have the money needed to pay for lawyers that would enforce their rights and entitlements in court. A poor person who enters into a verbal contract with someone who fails to honour his or her word, will not be assisted by the law if the powerful contractee just ignores his or her obligations. Neither will such a person have much chance to challenge an unjust, unfair or unconstitutional decision by a state official to stop her pension, evict her from her shack or confiscate her goats – simply because such a person will not be able to pay lawyers to represent him or her.

It reminds one of the famous saying by Anatole France: “The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.”

Yet, when politicians talk about the Rule of Law they often do not deal with this harsh reality which – perhaps more than the lack of transformation on the bench – negatively affect the legitimacy of the courts and of the legal system in South Africa.

For some communities – especially those who are well organised – relief can come in the form of the Legal Resources Centre, the Women’s Legal Centre or private law firms who do pro-bono work or otherwise assist poor litigants at reduced cost. One such firm is Smith Tabata Buchanan Boyes who recently represented backyard shack-dwellers with no access to formal housing in a case against the City of Cape Town (at a reduced rate at the request of the South African Council of Churches).

As Jackie Dugard and Kate Tissington reports in this morning’s Business Day:

The backyarders belong to Abahlali baseMjondolo, a national shack-dwellers’ movement with its base in Durban. They had occupied an empty piece of land in Macassar Village, on which they erected shacks, in mid-May. However, the City of Cape Town’s Anti-Land Invasion Unit, together with the police, demolished their structures and confiscated their materials.

Abahlali won the first phase of its battle when it secured an urgent interdict against the city , preventing the demolition of any shack or structure at Macassar Village without an order of court. It also compelled the city to return to the occupiers all building materials that were illegally confiscated. However, the city defied the interdict and continued demolishing shacks and confiscating building materials.

But in our lovely capitalist system, no good deed usually goes unpunished, so on 18 June Smith Tabata Buchanan Boyes received a letter from the city of Cape Town terminating all the city’s contracts for legal work with the firm. The letter from the director of legal services notes: “It has come to our attention that whilst acting on behalf of the City of Cape Town … you also acted for a third party against the city. The city is therefore terminating its mandate with your firm.”

This seems deeply disturbing to me and may have serious consequences for poor litigants and for the Rule of Law. One can concede – as Dugard and Tissington does – that there might well be instances where a direct conflict of interest would preclude a law firm, say, from representing a municipality in an eviction application while also representing the people under threat of eviction by the city.

Although in practice some law firms “choose sides” and act, say, either for employers or the unions, there would usually not be any conflict of interest merely because a law firm represents an organ of state (like the city of Cape Town) in other matters, while also representing a third party against that organ of state in an unrelated matter.

It seems suspiciously like the City of Cape Town has ”punished” a law firm for acting on behalf of poor litigants in a case against the city. This sets a dangerous precedent. What would happen if the national government follows the example of the DA-led city? Law firms will then have to choose between representing poor litigants who want to take on the state on the one hand, or receiving lucrative work from the state on the other. As firms have salaries to pay and directors to keep happy, they will mostly stop representing those who wish to enforce their rights or legal entitlements against the state and we would move even further away from the ideal of a country under the Rule of Law than we already are.

The DA is trying hard to convince us that it is not (only) the party of rich white privilege anymore and Helen Zille has been dancing and singing with black voters to show how compassionate and non-racial the DA has become. But voters are not stupid and during the election almost no poor black citizens voted for the DA. And a good thing too, because decisions like this by a DA-led city seems to confirm the worst fears about the DA and what it really stands for.

There is perhaps a bright light at the end of this tunnel. Given the fact that the ANC usually does anything that the DA does not do, it might well be that the ANC-led government will not follow the bad example of the DA-led city council and will ensure that just because a firm acts for poor people against the state would not mean that the particular firm will be blacklisted from doing work for the state.

Constitutionally Speaking: A (partial) victory for Joe Slovo residents

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Click here to read the judgment in word and here to read it in pdf.

A (partial) victory for Joe Slovo residents
Posted on June 10th, 2009 by Pierre De Vos

The Constitutional Court today granted an order for the eviction of Joe Slovo residents to far off Delft to facilitate the building of houses as part of the N2 Gateway Project. The fact that the court ordered the removal of people from their homes where they have lived for the past 15 years, will rightly be harshly criticised. It has failed to display the kind of “grace and compassion” one would expect of the self-styled champion of the vulnerable and dispossessed.

However, in a 220 page judgment (which I am still digesting) the court somewhat mitigated the hardship and trauma that the inhabitants of Joe Slovo will now endure, by ordering the respondents to allocate 70% of the Breaking New Ground houses (that is low-cost government housing available at low rentals) to be built at the site of Joe Slovo to the current residents of Joe Slovo; and those former residents of Joe Slovo who left Joe Slovo after the N2 Gateway Housing Project was launched after being requested to do so by the respondents or the City; and who apply for and qualify for this housing.

The Court therefore set aside the order originally granted by Judge President John Hlophe in the Cape High Court, which would have forced Joe Slovo residents to go and live 15 km outside the city with no guarantee of being accommodated in the new development. Seeing that the government had previously broken its promise that those removed from Joe Slovo would be accommodated in the newly built houses, this can be seen as at least a partial victory for the residents of Joe Slovo.

If the original order of Hlophe was followed, the vast majority of Joe Slovo residents would have permanently been removed from their homes close to the city and – apartheid style – would have been dumped in the bundoe where they would have been forced to live indefinitely. The land next to the N2 Highway along which dignitaries and visitors to the Soccer World Cup would have driven into the city to the 400 million Rand soccer stadium would have become home to middle class families while the poor residents of Joe Slovo would have been forgotten – unless until the next election.

Deputy Chief Justice Moseneke makes clear why the original order issued by Hlophe was so callous and unfair, stating:

I must emphasise that, on the facts of this case, I would have had great difficulty in holding that it is just and equitable to forcibly evict the residents of Joe Slovo and to relocate them far from their homes and modest comfort zones in order to give way to the construction of new subsidised homes in circumstances where the evicted residents would have had no reasonable prospects of satisfying their own dire need to access adequate housing. That eviction and relocation order [issued by Hlophe] would have made the residents of Joe Slovo sacrificial lambs to the grandiose national scheme to end informal settlements when the residents themselves stood to benefit nothing by way of permanent and adequate housing for themselves.

Today’s judgement remains perplexing though, because it condones a forced eviction of a large group of settled residents and endorses a government vanity project that seems to run counter to the government’s own housing policy which states that informal settlements should be eradicated through in situ upgrading where possible.

In this case the government has not shown why the informal settlement could not have been upgraded without removing the residents of Joe Slovo lock, stock and barrel. Some removals might have been necessary given the overcrowded conditions, but surely it would have been more humane to try and upgrade the settlement with the least disruption to the more than 4000 families involved?

I will have to study the judgment in more detail, but at first blush it seems to demonstrate how timid the court can sometimes be when it applies the reasonableness standard to evaluate the actions of the state. To my mind it does not seem reasonable, nor does it seem fair and just, to uproot a whole community for the sake of prettifying the major tourist access route to Cape Town.

At least the government will now be in contempt of court if it again breaks its promise to accommodate those removed in the newly built houses. Judging by its previous actions I suspect we have not heard the last of this matter.