http://www.dailynews.co.za/index.php?fArticleId=4848874

Constitutional freedoms

February 18, 2009 Edition 1

Dr Sayed Iqbal Mohamed

When a judgment is delivered, people take positions, and it is not uncommon for lawyers, academics and the public to engage in criticism. MEC of Local Government, Housing and Traditional Affairs Mike Mabuyakhulu’s attempt to “rebut” the constructive criticisms of the High Court’s controversial judgment of the Slums Act is sophistry plastered with clichés. He would want us to believe that criticising a judgment translates into disrespect for the rule of law. He further avers “that when judges rule, they make their ruling on the basis of law and not on the basis of opinion or feelings”.

Does this mean that judges do not err and that once pronounced a judgment cannot be interrogated meaningfully?

If one were to adopt Mabuyakhulu’s reasoning, ANC president Jacob Zuma’s court challenges are tantamount to “disrespect for the rule of law”.

In a unanimous judgment of the Supreme Court of Appeal (SCA)[1][1], Ponnan JA cites the following: “… the wisdom required of a judge is to recognise, consciously allow for, and perhaps to question, all the baggage of past attitudes and sympathies that fellow citizens are free to carry, untested, to the grave…

“True impartiality does not require that the judge have no sympathies or opinions; it requires that the judge nevertheless be free to entertain and act upon different points of view with an open mind.”

On page 33 of the S v Le Grange judgment, referring to Kgomo JP of the Kimberley High Court, it was stated: “Taken cumulatively though, I have no doubt that they compel the conclusion that in fact the learned Judge President was not fair and impartial during the trial.”

Judges have to follow the doctrine of precedent (stare decisis) and are therefore bound to base their judgments accordingly. This does not mean that every judgment is correct even if it is based on previous decisions or that the precedent itself is apposite.

The courts, for 70 years, have generally refused specific performance orders against landlords because it believed that it would be difficult to enforce such an order. Judge Satchwell rejected this composite view[2][2].

Justice Squires’s decision was overturned by a unanimous judgment of the Supreme Court of Appeal [3][3] which found that he had erred in his interpretation of the law regarding the principle of “huur gaat voor koop” in relation to a tenant.

There is a robust debate around contracts. Our courts have more than a century of experience and an accumulated “consciousness” based on entrenched legal principles from English law, early Roman law and Roman-Dutch law.

The “ancient” laws, created by brilliant minds, are very much alive and relevant, but changes are inevitable within a changing society like South Africa.

Few judges have been daringly outspoken, allowing the principle of fairness to prevail over the jealously protected principle of the sanctity of a contract.

Bhana (2007) argues that the court ought to reassess its approach to constitutional values in general and the importance of the liberal notion of freedom of contract in particular.

Barnard (2006: 161) states, “The being of the law of contract has always been shot-through with the values associated with altruistic political morality (fairness, reasonableness, etc.) but, more often than not, the law of contract is portrayed in the standard texts and in case law as value-neutral, socially stagnant, rule-bound and an individualistic approach that favours freedom of contract above all other considerations, and is dogmatically endorsed, followed and worshiped as an untouchable foundation and idol of the law of contract.

“This classic portrayal only narrows down, furthers and delineates in contract law the false consciousness regarding the legitimacy of law in general. It provides the means to further the commercial interests of the societal elites, the powerful bargaining agents and the corporate giants to the detriment of the blindfolded labourers, debtors and have-nots who are all told that this way of contract is the best and only way: take it or leave it (you had better believe it!”

The Slums Act indirectly aims to subvert the “pro-poor” judgments [4][4] with ensuing public debates adding to the legal genre within the Constitutional guarantee of freedom of expression.

The freedom to express one’s opinion is one of the pillars of our democracy. In terms of Section 15 of our Constitution, “Everyone has the right to freedom of conscience, religion, thought, belief and opinion.” Section 16 states: “Everyone has the right to freedom of expression, which includes freedom of the press and other media; freedom to receive or impart information or ideas; freedom of artistic creativity; and academic freedom and freedom of scientific research.”

# Dr Sayed Iqbal Mohamed is chairman of the Organisation of Civic Rights

http://www.dailynews.co.za/index.php?fArticleId=4823693

Poor left out of the equation
Slums Act no solace to the dispossessed

February 03, 2009 Edition 2

Sayed Iqbal Mohamed

“Engagement is a two-way process in which the City and those about to become homeless would talk to each other meaningfully in order to achieve certain objectives. There is no closed list of the objectives of engagement.” – Yacoob J[1]

On Tuesday January 27, 2009, Judge President Mr Justice Vuka Tshabalala delivered judgment in favour of the government that he believed was ultimately in the interest of the poor.

The judgment, in fact, secured the perimeters around any hope for a list of the objectives of engagement for the poor.

The applicants, Abahlali Basejondolo Movement of SA and Sibusiso Zikode, did not challenge legislation that was called the “Social Equality, Justice, Elimination and Prevention of Re-Emergence of Homelessness, Unemployment and Poverty Act”, but the KwaZuluNatal Elimination and Prevention of Re-Emergence of Slums Act 6 of 2007 (“the Slums Act”).

The Slums Act specifically mentions co-operation between tiers of government and consultation with traditional council and the affected municipalities.

There is no reference to co-operation or consultation bet-ween the government and the poor.

It seems that the consultant of the Slums Act pieced togeth-er for the government, a tapestry of colonial and apartheid hegemony over the poor from the Natives Land Act 27 of 1913, Prevention of Illegal Squatting Amendment Act 24 of 1952, the Slums Act: Demolition of Slums of 1934, among other laws. The government of the Union of South Africa claimed the Natives Land Act 27 of 1913 was enacted to prevent friction between Blacks and whites, but its main intention was to dispossess Blacks of land and provide cheap labour to white farmers.

The ANC, then known as the South African Native National Congress, failed to prevent the draconian legislation.

The divide between poor and rich, black and white and the source of cheap labour were all intertwined in land laws.

Post-apartheid, the plight of the poor inhabitants of the informal settlements is rooted in the history of dispossession of land laws from the 1600s.

We expunged a myriad of evil laws, much to our credit. Yet, by the stroke of a pen, can infuse the evil of such laws into one Act.

Vulnerable

However, the judge president has spoken.

At paragraph 36 of his judgment, he says: “This Court finds that the Slums Act constitutes a reasonable legislative response to deal with the plight of the vulnerable in our society.”

In allaying the concerns of the poor, Tshabalala JP confirms the government’s arguments that national legislation, like the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE), Housing Code, and the Housing Act 107 of 1997 provide the necessary legislative protection.

It makes no sense to promulgate the Slums Act.

“There can be no conflict if the Slums Act is actually endorsing the PIE Act and other national legislation,” (at paragraph 37 of the judgment).

Is endorsement required?

In Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC) at 237, Sachs J eruditely expresses the concerns of the poor:

“Thus, PIE 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 aspect of ubuntu within the legislative context was explained gracefully by Jajbhay J in the City of Johannesburg v Rand Properties (Pty) Ltd and Others 2007 (1) SA 78 (W) at 97:

“In South Africa the culture of ubuntu is the capacity to express compassion, justice, reciprocity, dignity, harmony and humanity in the interests of building, maintaining and strengthening the community.

“Ubuntu speaks to our interconnectedness, our common humanity and the responsibility to each that flows from our connection… It recognises a person’s status as a human being, entitled to unconditional respect, dignity, value and acceptance from the members of the community, that such a person may be a part of. In South Africa ubuntu must become a notion with particular resonance in the building of our constitutional democracy.”

It is respectfully submitted that Judge Sachs’s human interdependence, respect and concern, and Jajbhay’s ubuntu will not resonate through the Slums Act in building an integ-rated, better and just society.

Rich slumlords, some well connected politically, must be relieved that they are protected by the Slums Act.

The many thousands who live in squalid conditions in the inner cities and suburbs, paying exorbitant rentals; families who lost their beloved ones, some decapitated by dysfunctional lifts, will not benefit from the Slums Act.

Debating housing crises, slum clearance and overcrowding, Lord Balfour of Burleigh in 1934 said: “The only object in examining the mistakes of the past is to see to what extent one can profit for the future.”[2]

Dr Sayed Iqbal Mohamed is the chairperson, Organisation of Civic Rights

Website: www.ocr.org.za

For advice, contact Pretty Gumede or Loshni Naidoo at 031 304 6451

Notes

[1] Occupiers of 51 Olivia Road, Berea Township and Others v City of Johannesburg and Others 2008 (3) SA 208 (CC) at paragraph 14

[2] Slums and Overcrowding: HANSARD, 21 March 1934 Vol 91 300-64 at 310.

http://www.dailynews.co.za/index.php?fArticleId=453052
Eviction must follow legal process

July 29, 2008 Edition 1

Sayed Iqbal Mohamed

There is an increase in self-help remedies, especially by landlords resorting to illegal disconnection of water and electricity supply, forced evictions and illegal lockouts.

The prolonged period to evict an unruly tenant and the sheer magnitude of the legal costs associated with legal proceedings can be a compelling reason for a landlord to take the law into his own hands. This is, of course, indefensible.

There is also no excuse for an organ of the State to ignore the rule of law and to disrespect the legal process and procedures.

Granted that it is frustrating to have a tenant who fails to perform on a lease contract, and subsequently evades eviction notices, but legal process must still follow.

Last week, a neighbour informed a tenant at work that her personal property was removed from her flat by the supervisor of the building.

It would appear that the supervisor, a municipal employee, was acting on “legal instructions” to “evict” the tenant.

The tenant will have to bring an urgent court application to be reinstated and may have a possible claim for damages. Should the tenant institute legal proceedings, the ratepayers will pay the municipality’s legal costs for its unlawful conduct.

Earlier this year, the Constitutional Court (CC) gave a judgment in a matter that started in 2006.

The City of Johannesburg (the City) wanted to evict 400 occupiers of buildings that were unsafe and presented a health risk. The City won an appeal when the Supreme Court of Appeal (SCA) granted the eviction orders, but made it conditional that alternative housing be provided to those evictees who may become homeless.

The occupiers took their case to the CC[1], which overturned the decision of the SCA.

In a unanimous judgment by Yacoob, J, the CC made three major findings: –

1. There must be a process of meaningful consultation between the City and the people it intends to evict. People are human beings.

2. The city must make alternate accommodation available if eviction leads to homelessness of occupiers of buildings that are unsafe and unhealthy.

3. The CC amended the provisions (section 12(6)) of the National Building Regulations and Building Standards Act 103 of 1977.

Where criminal sanction could follow for non-compliance to vacate an unsafe building immediately or within a period specified in a notice issued by a municipality, such action must now follow after the municipality has obtained an eviction order.

What is the impact of the CC’s case for other related matters between a municipality and its tenants, or tenants in privately owned buildings like the Occupiers of 51 Olivia Road, Berea?

Can a municipality grant an owner permission to demolish a dwelling without enquiring about occupation by tenants?

Can permission be given to convert a dwelling for nonresidential use while tenants occupy it?

Municipalities presently grant such permissions at great distress to tenants, even rendering some families homeless.

When an owner instructs for the supply of water and electricity to be disconnected on grounds that the dwelling is unoccupied, a municipality does not verify or investigate if this is indeed the case.

Often, tenants suffer at the revolting approach of some unscrupulous landlords and are unable to have basic ser-vices restored or find suitable affordable alternate accommodation.

It is necessary for a municipality to revise its application form to demolish or to have services disconnected, making provision for an enquiry as to the dwelling being vacant or occupied.

Notwithstanding the hazardous condition of the building, in granting permission to demolish, the municipality is responsible for displacing a family/occupants when its constitutional duty is to provide accommodation.

It is the responsibility of the officials to investigate an application, the circumstances that necessitated such an application and the position of both the owner and the occupants.

Consent

It is also the duty of officials to engage with other departments, to ascertain the negative consequences, if any, in taking a decision to grant an applicant permission to demolish, or to have services disconnected, or give consent to convert a dwelling for non-resi- dential purposes.

Yacoob J states[2]: “Municipal officials do not act appropriately if they take insulated decisions in respect of different duties that they are obliged to perform.

“In this case, the City had a duty to ensure safe and healthy buildings on the one hand, and to take reasonable measures within its available resources to make the right of access to adequate housing more accessible, as time progresses, on the other.

“It cannot be that the City is entitled to make decisions on each of these two aspects separately, one department making a decision on whether someone should be evicted, and some other department in the bureaucratic maze determining whether housing should be provided.

“The housing provision and the health and safety provision must be read together.”

The CC judgment of the Occupiers of 51 Olivia Road, Berea, has serious implications for organs of State, and municipalities must adhere to the constitutional requirements of the country.

Locking out a tenant and removing her personal belongings is unconstitutional and dehumanising.

A city must lead by example if it wants its citizens to obey the law.

Dr. Sayed Iqbal Mohamed is the chairperson of the Organisation of Civic Rights; commissioner at the KwaZulu-Natal Rental Housing Tribunal and member of the Council of Canadian Administrative Tribunals.

Website: www.ocr.org.za

For advice, contact Pretty Gumede or Loshni Naidoo on 031 304 6451

Notes

[1] Occupiers of 51 Olivia Road, Berea Township and 197 Main Street Johannesburg v City of Johannesburg and Others (24/07) [2008] ZACC 1; 2008 (3) SA 208 (CC) (19 February 2008)

[2] In the above case (Occupiers of 51 Olivia Road, Berea Township)