Category Archives: Ernest Mabuza

Business Day: Shack dwellers want removal order set aside

http://www.bdlive.co.za/national/2014/02/14/shack-dwellers-want-removal-order-set-aside

by Ernest Mabuza

RESIDENTS of a Durban informal settlement on Wednesday asked the Constitutional Court to set aside a high court order for fear it was being misused by the local municipality to unlawfully remove residents.

The order, granted in the Durban High Court in March last year, empowered the eThekwini municipality and police to take all reasonable steps to prevent any person invading, occupying and undertaking the construction of any structures on 37 properties belonging to the municipality.

Granted by Judge Piet Koen, it gave the municipality power to prevent land invasions and ensures that it does not need to approach the court to seek evictions case by case, as required by the constitution.

Residents of Madlala Village, an informal settlement in Lamontville, near Durban, had in May been refused leave by another high court judge, Gregory Kruger, to intervene to resist confirmation of the interim order.

This week, the residents asked the Constitutional Court to set aside the order because they feared it was being misused by the municipality.

Thandi Norman SC, for the municipality, said the order of Judge Koen was to prevent land invasions. She said the residents were not land invaders and the order did not apply to them.

Vinay Gajoo SC, for the minister of police and the KwaZulu-Natal MEC for human settlements, said land occupations were unacceptable.

But Acting Chief Justice Dikgang Moseneke said that courts could not tolerate a society where police could evict people without a court order.

Stuart Wilson, for Abahlali Basemjondolo, an association of shack dwellers, said Judge Koen’s order was an eviction order that authorised evictions without court supervision. He asked that it be set aside in entirety.

The court reserved judgment.

Business Day: Residents to challenge state on sanitation facilities

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http://www.businessday.co.za/articles/Content.aspx?id=71669

Residents to challenge state on sanitation facilities
ERNEST MABUZA
Published: 2009/05/25 06:19:00 AM

THE government’s efforts to deal with slum conditions will once again be challenged in the Constitutional Court when a group of Gauteng slum dwellers asks the court to order the Ekurhuleni Municipality to build temporary sanitation facilities and provide high-mast lighting in their settlement

THE government’s efforts to deal with slum conditions will once again be challenged in the Constitutional Court when a group of Gauteng slum dwellers asks the court to order the Ekurhuleni Municipality to build temporary sanitation facilities and provide high-mast lighting in their settlement.

The group recently filed papers and the matter is set down for hearing in August.

Earlier this month, the court heard an application by a group of slum dwellers from KwaZulu-Natal who challenged the constitutionality of the KwaZulu-Natal Elimination and Prevention of Re-Emergence of Slums Act. The court has reserved judgment.

The Gauteng group has taken issue with Acting High Court Judge Hilton Epstein’s dismissal of their application.

Epstein said there was no suggestion the municipality was not carrying out its obligation to take all reasonable and necessary steps within the framework of national and provincial housing legislation and policy to ensure that services were provided in a manner which was economically efficient.

In an application for leave to appeal to the Constitutional Court, Mandlenkosi Sikosana, one of the residents, said Epstein erred in failing to find that the constitutional right to housing, read with the Housing Code, the Water Services Act, and the regulations, imposed a mandatory minimum core content of free basic sanitation.

Sikosana said this case would have important consequences for the 130000 households in 106 informal settlements in Ekurhuleni which do not have high-mast lighting or basic sanitation services and who might have to wait until 2014 before receiving these.

“Indeed, at the current rate of the creation of 13000 serviced stands per annum, these households might have to wait not less than 10 years before they receive basic sanitation,” Sikosana said.

The Ekurhuleni Municipality submitted an application to the Gauteng housing department for the Harry Gwala informal settlement in Benoni to be upgraded in 2006.

Although this was still awaiting approval from the Gauteng housing department, the municipality had provided residents of the 400 informal houses with communal water taps and refuse removal.

The municipality provides services to 13000 stands in approved township areas at a cost of R210m a year.

When the matter was argued in the South Gauteng High Court in December, the municipality stated that once the layout of the township had been established by the division of land into individual stands as well as the layout of roads, then the necessary infrastructure for the purposes of installing engineering services could be provided.

mabuzae@bdfm.co.za

Media Reports on the Slums Act Case in the Constitutional Court

Anti-Eviction Campaign, Abahlali baseMjondolo and Landless People's Movement banners outside the Constitutional Court

Update:Click here for the report in the Mail & Guardian, here for the report at One.World, , here for the editorial in the Witness and here for some video footage of the court hearing.

The Star

http://www.thestar.co.za/index.php?fArticleId=4981008
Slum bill draws vocal protest from three provinces

May 15, 2009 Edition 4

Bonile Ngqiyaza

A provincial law that apparently seeks to eliminate slums in KwaZulu-Natal has got even far-flung parts of the country in a huff.

The bill with a burdensome title – the KwaZulu-Natal Elimination and Prevention of Re-Emergence of Slums Act – has not even been implemented yet, but already between 300 and 500 activists from Gauteng, KwaZulu-Natal and the Western Cape have been in the Constitutional Court in Braamfontein, Joburg, to demonstrate their opposition.

Clad in red T-shirts, the activists expressed their dissatisfaction, mostly by singing protest songs outside the Constitutional Court.

There were also church leaders from different denominations who attended the hearing to show support for those who might be affected by the intended act's provisions.

The Land Affairs Department has joined KwaZulu-Natal MEC Mike Mabuyakhulu as respondents in the case.

Abahlali baseMjondolo, the South African shackdwellers' movement – whose membership includes more than 20 000 residents of informal settlements in the Durban area alone – has been spearheading the attack on the bill, which is intended as a model for all provinces.

Advocate Wim Trengove, for Abahlali baseMjondolo, argued that the law seemed to be in conflict with the National Housing Act and national housing policy, as well as with certain provisions of the Prevention of Illegal Eviction From and Unlawful Occupation of Land Act.

Deputy Chief Justice Dikgang Moseneke remarked that while the act's aims were to improve the living conditions of communities, it carried no detailed plans to ensure that this happened.

Also, the phrase dealing with improving the living conditions of communities came only at the end.

Lawyers for the government responded that the act had not yet been implemented and it was therefore premature to challenge it.

BBC

http://news.bbc.co.uk/2/hi/africa/8049449.stm

South Africa shanty town bill row

An estimated one in 10 South Africans live in informal settlements

The South African government is being taken to court over plans to abolish shanty towns in the city of Durban.

Community organisations representing Durban shack dwellers say the bill is unconstitutional because it seeks to re-locate residents against their will.

They say many have schooling and work nearby and the move could mean families being separated.

It has been estimated that almost 10% of South Africans still live in such settlements.

They were first set up on the outskirts of major towns and cities during white minority rule.

The shack dwellers' movement, Abahlali baseMjondolo, tried unsuccessfully to get certain provisions of the KwaZulu-Natal Slums Act declared unlawful in a lower court.

'Within the law'

The movement is now bringing its case to the Constitutional Court in Johannesburg.

The campaigners warn that if the act is introduced in KwaZulu-Natal, it will be brought in to other provinces.

It says a few informal settlements have already been demolished in Western Cape province.

The respondents, led by the Department of Land Affairs, are adamant they are acting within the constitution.

Community leader Zweli Nzimande told the BBC's Network Africa programme: "This is not a good act at all. It's taking people far away from where they are staying, to the places where they don't want to go.

"This act is saying people must leave where they used to stay.

"Now they must go 10km (six miles) away from the city, so we are complaining. We are schooling, our parents are working nearby so they can't afford to go somewhere far away."

The BBC's Mpho Lakje in Johannesburg says that when the African National Congress came to power 15 years ago it promised free quality housing for all.

So far the governing party has provided housing for nearly three million people and President Jacob Zuma has promised his new administration will speed up the roll out of state-subsidised housing

The Citizen

http://www.citizen.co.za/index/article.aspx?pDesc=95853,1,22

Published: 14/05/2009 17:30:43

KZN GOVT defends “Slums Act”

JOHANNESBURG – The KwaZulu-Natal government defended its controversial “Slums Act” in the Constitutional Court on Thursday saying there were at least 200,000 people living in degrading conditions in the province.

“There are people living next to the railway lines in Umlazi in circumstances which are degrading,” said the province’s housing department senior counsel Jeremy Gauntlett.

“The state has to deal with the problem,”said Gauntlett.

“And that means you start treading on various bunions.”

At issue is the KwaZulu-Natal Elimination and Prevention of Re-emergence of Slums Act which the lobby group Abahlali baseMjondolo Movement feels is unfair.

The Act aims to eliminate slums, prevent new slums from developing and control and upgrade existing slums.

But the lobby group, which says it represents about 20,000 shack dwellers, feels the act is being used to harass them.

One of their grievances, they argue, is that a section of the Act allowing an MEC to institute eviction proceedings is unconstitutional.

One of the reasons this is unconstitutional is that it strips a local municipality of its own powers, and does not leave room for a land or property owner to take action.

It also forces a land owner or a municipality to carry out an order from the housing MEC to begin eviction proceedings.

Earlier the court heard that many landowners permitted the occupation by shack dwellers for money and out of “greed”.

The judges were also told that a slum was not limited to an informal settlement with poor conditions, but could also be a city building which had been neglected.

Gauntlett said there were remedies for owners or residents facing eviction proceedings.

The owners or occupiers could “attack” notices of eviction in court.

The MEC could use the power “gingerly” and first order a municipality to help rectify the conditions that led to the area becoming a slum, or as a neighbouring municipality to help with, for example, the provision of sanitation.

Gauntlett said that the law was still new and “we must wait to see what the MEC does with this power”, suggesting that the case might be premature as the challenge was not related to a specific eviction attempt.

Much of the court’s argument turned on an English court finding known as “Pye” which set an international precedent in statutory processes that must be followed if there was an eviction dispute between a land owner and person using the land.

Rishi Seegobin,lawyer for the province’s housing department said that the poor were sadly victims of unscrupulous landlords,and that he could find nothing “offensive” in the Act.

He echoed Gauntlett, saying Thursday’s challenge was “abstract” as the Act had not been used yet and did not have regulations yet.

In his reply, Trengove said that not all people letting out shacks were greedy. Many did it for “a few rands” and catered to a need for housing.

– Sapa

The Citizen

http://www.citizen.co.za/index/article.aspx?pDesc=95923,1,22

Published: 5/14/2009 21:15:22
Protest against new slums law

KATLEGO KALAMANE

JOHANNESBURG – About 1 000 members from various non-governmental
organisations travelled from across the country to the Constitutional Court in Johannesburg to protest against the KwaZulu-Natal Slums Act.

General secretary of the Rural Network in KZN, Mbhekiseni Mavuso, said his organisation was pledging its support to Abahlali baseMjondolo (ABM), which has applied to have the Act declared unlawful under the Constitution.

Their support came because members suffered similar experiences as ABM members, who claimed they were being brutalised and harassed by police.

The Act “is portrayed as preventing the re-emergence of slums. But it is a reinforcement of apartheid laws,” said Mavuso.

ABM says areas replacing “slums” are called transit camps in
KwaZulu-Natal, temporary relocation areas (TRAs) in Cape Town and decent camps in Gauteng.

But “they are nothing but a way for the government to evict the poor, to force people out of the cities, in the name of providing so- called ‘housing opportunities’. ”

On Wednesday Western Cape police were allegedly intimidating backyard dwellers during a clean-up campaign at Macassar village.

ABM Western Cape chairman Mzonke Poni, claimed there was a heavy police presence and people were being intimidated.

This came as backyard dwellers were trying to clean vacant land to show the local and provincial government that there was sufficient land to build houses for people of Macassar at Macassar.

Business Day

http://www.businessday.co.za/articles/topstories.aspx?ID=BD4A1000196

Shack dwellers contest slums law in court
ERNEST MABUZA

Legal Affairs Correspondent

THE KwaZulu-Natal Elimination and Prevention of Re-Emergence of Slums Act was a measure to eliminate the poor conditions in which 200000 families in the province found themselves living, the Constitutional Court heard yesterday.

“National and provincial government have been slow in dealing with the situation. Only last week, 12 people died in fires in Kennedy Road informal settlement. Slums should not be prettified and people should not be exposed to these conditions. We are not apologetic about that,” Jeremy Gauntlett SC told the court.

Gauntlett, representing the provincial government, said apart from the KwaZulu-Natal families living in slums, 2-million other families in SA lived in slums.

The province was opposing an application by Abahlali Basemjondolo, an organisation of shack residents from KwaZulu-Natal, which wanted section 16 of the act declared unconstitutional.

The residents feared the section undermined national legislation such as the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE) and the Housing Act, which gave protection for those whose rights to land were insecure.

The section states, “An owner or person in charge of land or a building, which … is already occupied by unlawful occupiers must, within the period determined by the (MEC) by notice in the Gazette, in a manner provided for in section 4 or 5 of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, institute proceedings for the eviction of the unlawful occupiers.”

Wim Trengove SC for the residents, told the court that the section was in conflict with the PIE Act, which discouraged the bringing of eviction proceedings.

Gauntlett said the act aimed to eliminate slums, prevent the re-emergence of slums and improve the living conditions of the communities in the province. Gauntlett said several duties were imposed on the MEC before he could order the institution of eviction proceedings.

He said the act stated that each municipality must first prepare and submit to the MEC a status report detailing the number of existing slums within its area of jurisdiction, and whether land may be made available by the municipality to the unlawful occupiers.

Gauntlett said the act also provided for the establishment of transit areas to be used for temporary accommodation of people who had been evicted from a slum, pending the acquisition of land or buildings for their permanent accommodation.

“This has been missing in legislation in our country. The establishment of transit areas is very progressive,” Gauntlett said.

The court reserved judgment.

mabuzae@bdfm.co.za

East Coast Radio
http://blog.ecr.co.za/newswatch/?p=5392

Concourt hears ‘Slums Act’ challenge

A group from the Abahlali base Mjondolo Movement could be heard chanting outside the Constitutional Court today as inside senior council Wim Trengove argued on their behalf against the “Slums Act”.

Administration worker Jeffrey Magamu had to silence the demonstrating crowd of around 60 people who were singing, chanting and blowing vuvuzelas outside the court.

He asked them to stop singing and fold their banners before allowing them to sit in the court’s foyer where they could watched court proceeding on a TV screen.”Now all is orderly,” he told Sapa.

Only 50 of the protesters were allowed in court.

The group, which works towards improving the living conditions of shack dwellers, had tried unsuccessfully to get certain provisions of the “Slums Act” declared unconstitutional in a lower court, so decided to approach the Constitutional Court.

Trengove explained that the definition of a slum is not confined to conditions in certain informal settlements but can also be inner city buildings that have been allowed to degenerate.

The act would also apply to people who live in rooms in people’s
backyards which have not been sanctioned by municipal authorities.

The court heard that there were “tensions” in law over the rights of owners to let people live on their property, and governmental obligations to evict people from properties that did not comply with building or other municipal regulations, or to make way for upgrades to informal settlements.

The KwaZulu-Natal Elimination and Prevention of Re-Emergence of Slums Act was passed in 2007 by the KwaZulu-Natal legislature and the lobby group see it as an “attack on the poor”.

It aims to eliminate slums, prevent new slums from developing and control and upgrade existing slums.

The departments of housing and land affairs are part of the court hearing in Johannesburg.

(Source: Sapa; Photo: www.abahlali.org.za)

The Times
http://www.thetimes.co.za/News/Article.aspx?id=998994

May 14, 2009

Breaking no new ground

State’s callous slum evictions face constitutional test today, writes Richard Pithouse

TODAY the Constitutional Court will hear the attempt by the shack dwellers’ movement Abahlali baseMjondolo to have the KwaZulu-Natal Slums Act declared unlawful.

Other provinces have been mandated to develop similar legislation and the decision of the court might have a significant impact on the future of our cities.

Thabo Mbeki’s government built a lot of houses. But this does not mean that we have been building democratic and inclusive cities — the apartheid state also built a lot of houses.

In fact, Lindiwe Sisulu, Mbeki’s housing minister, left the state’s housing programme in a catastrophic mess. The “breaking new ground” policy, officially adopted in 2004, recommends democratic engagement with communities with a view to upgrading settlements where they are. It has never been implemented.

The Constitution protects unlawful occupiers of land against summary eviction but the state is the primary perpetrator of systematically unlawful evictions. The state’s actions are, in strict legal terms, routinely criminal.

Both policy and law have been ignored in favour of an increasingly authoritarian discourse around eliminating or eradicating slums. This has led to a deliberate reduction in the provision of basic services to shack settlements and forced removals to out-of-town housing developments and prison-like “transit camps”.

One of the many pernicious consequences of the slum-clearance discourse is that the government ends up measuring its progress on the resolution of the urban crisis in two ways . The first is the reduction in the number of shacks. So, if only half the residents of a settlement are accommodated in a new housing development and the rest are left homeless when their settlement is razed, the state will measure that as progress.

The other way in which progress is measured is by the number of people moved into state-controlled spaces.

And, in a perverse Orwellian move, some municipalities are compounding the damage and turning the urban question into a numbers game by calling the new and deservedly notorious transit camps, or even tents, “housing opportunities”.

So, even when people are forced out of shacks and into transit camps at gunpoint, the statistics show that they have “accessed a housing opportunity”.

It is no surprise that shack dwellers across the country, some organised into movements and others acting independently, have been blocking roads, marching on councillors’ homes and, on the rare occasions when they can access the judicial system, taking the government to court. Entirely legal forms of protest have often been responded to with unlawful state repression.

The Slums Act, passed into law in 2007, is an attempt to give legal sanction to the turn to an outright authoritarian and anti-poor response to the crisis of our cities. It has direct connections to similar colonial and apartheid legislation, such as the 1951 Prevention of Squatting Act. It compels municipalities and private land owners to evict, gives legal sanction to the notorious transit camps and criminalises shack dwellers’ movements.

People have been beaten, shot at with rubber bullets and arrested while protesting against it.

There are currently no grounds for optimism that Zuma’s government will seek a more just and democratic resolution of the urban crisis than that imagined by Mbeki. On the contrary, the ANC’s Polokwane resolutions endorse the extension of the Slums Act to other provinces.

It doesn’t have to be this way. The state could, along with meaningful and pro-poor rural land reform, actively support the efforts of poor people to hold their ground in our cities. It could, for instance, attempt to implement the breaking new ground policy. Or it could take a larger step forward and, following examples in Brazil and the Philippines, implement measures to put the social value of urban land before its commercial value.

Grass-roots activists will be making their way to the Constitutional Court for the hearing today from shack settlements around Johannesburg, and from Durban and Cape Town. We will have to wait to see how the court decides to measure their humanity. We will also have to wait to see how it decides to weigh that humanity against the demand for legislation
that can only, when it comes down to the practicalities of sending out the men with guns to banish the poor from our cities, be a bloody business. — Pithouse teaches politics at Rhodes University © SACSIS

Business Day: Constitutional challenge to law on slums

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http://www.businessday.co.za/articles/topstories.aspx?ID=BD4A992159

Posted to the web on: 04 May 2009
Constitutional challenge to law on slums

KwaZulu-Natal shack dwellers take case to highest court, writes Ernest Mabuza

A GROUP of KwaZuluNatal shack dwellers is challenging the constitutionality of the KwaZulu-Natal Elimination of and Prevention of Re-Emergence of Slums Act, intended to eliminate the province’s slums, stop sprawls re-emerging and to upgrade and control existing slums.

The group fears the law undermines national legislation such as the Prevention of Illegal Eviction and Unlawful Occupation of Land Act (PIE) and the Housing Act, which provide significant protection for people whose rights to land are insecure. The shack dwellers also fear that other provinces might copy the law.

The group also claims that officials have placed reliance on the Slums Act in an attempt to justify evictions and shack demolitions without court orders.

Abahlali Basemjondolo Movement SA is an organisation with 20 000 members, residents of the Kennedy Road Informal Settlement in Clare Estate in Durban and of 16 other informal settlements in the greater Durban and Pietermaritzburg areas.

The organisation challenged the constitutionality of the provincial law in the KwaZulu-Natal High Court last year. It argued then that the Slums Act was an unreasonable, retrogressive measure that exceeded the powers of provincial government, was fundamentally irreconcilable with national legislation and threatened to infringe on the fundamental rights of the poorest, most vulnerable members of society.

Judge President Vuka Tshabalala dismissed the shack dwellers’ application in January. Tshabalala said the Slums Act was a reasonable legislative response to the plight of vulnerable people.

The residents applied for leave to appeal to the Constitutional Court. The matter will be heard on Tuesday next week.

In its written submissions to the Constitutional Court, the organisation said that where it was clear an eviction would have unjust or inequitable consequences — such as homelessness — then PIE required that the occupation be tolerated notwithstanding its unlawfulness.

In their written submissions, counsel for the residents Heidi Barnes and Kirsty McLean said: “We submit that this — the toleration of unlawful occupation in circumstances in which the alternative would be unjust or inequitable — is central to the scheme and purpose of PIE.

“Indeed, we submit that PIE effectively discourages the institution of eviction proceedings in these circumstances.”

The advocates also said the relationship between eviction, alternative accommodation and the state’s positive obligations to achieve the progressive realisation of the right of access to housing had been further clarified in two important Supreme Court of Appeal judgments.

“While they were decided in significantly different contexts, the effect of both judgments is that unless the state complied with its obligations … eviction orders would not be granted against people who would be rendered homeless as a result.

“We submit that it is clear that there is a constitutional obligation on the state to provide at least temporary accommodation to persons who will be rendered homeless as a result of eviction.”

The advocates said PIE, read in the context of the constitution, afforded unlawful occupiers two forms of protection. “First, the holding pattern established by PIE means that it is unlikely that eviction proceedings will be instituted against unlawful occupiers, at least by the state, if there is no suitable alternative accommodation available to them. Second, in the event that eviction proceedings are instituted against such unlawful occupiers, the state is required to provide alternative accommodation, of a temporary nature at least, to those who would otherwise be left homeless.”

The advocates also argued that the Slums Act regulated not housing but land, in particular land tenure, access to land and evictions. “Since land is not a competence of provincial government, it is submitted that the Slums Act is beyond the legislative competence of the KwaZulu-Natal provincial government and accordingly invalid.”

The advocates said it was highly desirable to determine the constitutionality of the Slums Act as soon as possible.

“The Slums Act is the first of its kind in the country, and may well be copied in other provinces. We respectfully submit that this court may take notice of the fact that a bill modelled on the Slums Act has been drafted in the Western Cape.”

mabuzae@bdfm.co.za

Business Day: Immigrants Treated Badly – Lawyers

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http://www.businessday.co.za/articles/topstories.aspx?ID=BD4A697969

Posted to the web on: 04 February 2008
Immigrants badly treated — lawyers
Ernest Mabuza

LAWYERS for the immigrants arrested in a raid on the Johannesburg Central Methodist Church last Wednesday night have expressed serious concern about how their clients were treated.

The Legal Resources Centre said at the weekend that there were apparently delays in providing medical and legal assistance to the more than 300 people detained, who appeared to have been physically mistreated, and were allegedly asked for bribes by police.

Centre director Janet Love said legal representatives were told the church offered shelter and sustenance nightly to homeless people, including many immigrants and asylum seekers.

The centre was asked to consult those arrested and, if they requested, seek their release on bail. “Extensive delays were experienced in obtaining access to the police cells in order to consult the detainees.”

Love said various junior police officers indicated that a number of the detainees might be transferred directly to the Lindela repatriation centre without appearing in court.

She said that at the court the centre’s lawyers found a clerk preparing 19 warrants for detention , indicating no bail had been granted, despite there having been no bail application.

When asked about this, the clerk said it was “an error” and prepared new forms.

Love said that when the defence team requested permission to consult the accused, the magistrate first denied this because she said there was not enough time, and then again denied it because she said there was no interpreter.

The magistrate finally allowed a “five-minute” adjournment to allow the defence to consult the accused The accused waived their right to an interpreter, and indicated that they wanted to apply for bail.

According to Love, the prosecutor said she opposed bail but could not proceed with a bail hearing because the investigating officer was not there.

Love said the magistrate spoke to the accused in an “aggressive manner”, sometimes repeatedly asking whether an accused spoke English or Shona with “increasing aggression and loudness”.

A postponement of the matter until today was granted, despite fierce opposition by the defence, because one accused was due to have an operation today.

Love said the postponement put the liberty of the accused at stake, and that it had been indicated to the counsel in chambers that the matter should be postponed because “the officers of the court wished to go home to be with their families”.

The South African Human Rights Commission and the Southern African Catholic Bishops Conference have expressed concern about these allegations of human rights violations .

The commission said that while it acknowledged police had a constitutional duty to provide safety and security , police members were bound by the same constitution to treat people, regardless of their country of origin, both with dignity and humanely. With Sapa