THE SMART NEWS SOURCE | Feb 10 2010 01:46 | LAST UPDATED Feb 10 2010 01:46 |
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In a major legal victory for poor people's rights to housing and shelter, the Constitutional Court this week struck down the KwaZulu-Natal Slums Act. The court upheld shackdweller movement Abahlali base Mjondolo's (ABM) application that the Act was unconstitutional. The KwaZulu-Natal Slums Act empowered municipalities to evict illegal occupants from state land and derelict buildings, and to force private landowners to do likewise or face fines or imprisonment -- all at the behest of the provincial housing minister. The Act also empowered the minister to determine the time frames for all these actions and, via section 16, gave provincial housing ministers untrammelled powers to instigate eviction procedures against communities. If ABM's Constitutional Court bid had been unsuccessful, the Act was to be used as a blueprint around the country. ABM fought this legislation on two fronts. It argued in the Constitutional Court that the Act actually dealt with land and land tenure, and so was not within the ambit of the provincial legislature to implement. And it contended that section 16 of the Act was in contravention of section 26 (2) of the Constitution, which requires the state to take "reasonable legislative and other measures ... to achieve the progressive realisation of [the Constitutional] right" of every South African to access to adequate housing. The social movement further contended that section 16 was inconsistent with national legislation and instruments such as the Prevention of Illegal Eviction Act, the National Housing Act and the National Housing Code. The full Bench of the Constitutional Court unanimously found that, despite ABM's argument, the Act did, in fact, deal with housing matters. Nevertheless, the court struck down the legislation because of section 16. Only Justice Zak Yacoob dissented with Deputy Chief Justice Dikgang Moseneke's majority judgment that "recognised the coercive import" of section 16 in the powers it gave to the housing minister. Moseneke found that section 16 would lead "those in slums and informal settlements who wouldn't face eviction to now do so". He also found that the section "erodes and considerably undermines the protections against the arbitrary institution of eviction proceedings" safeguarded by national legislation such as the Prevention of Illegal Eviction Act. Moseneke further found that section 16 "was silent" on the National Housing Code and the National Housing Act's stipulations that unlawful occupiers must be ejected from their homes only as a last resort. The judgment also questioned whether the section permitted reasonable engagement between government and communities. The deputy chief justice noted that while conflict between provincial and national legislation did not necessitate invalidation, the Act did not pass constitutional muster as set out by section 26 (2). But it was parts of Yacoob's dissenting judgment -- when allied with the majority judgment's emphasis on engagement and that evictions were "a last resort" -- that broke new ground for the rights of illegal occupants of land when negotiating with government. Yacoob noted that "all applications for eviction must comply with the requirements expressly stipulated in the Prevention of Illegal Eviction Act and the Constitution as well as with all other requirements that have been judicially stipulated". The Constitutional Court had previously found that government can only evict after meaningful engagement (the Olivia Road judgment) and if it provides adequate housing alternatives to those affected (the Grootboom judgment). In the ABM case, Yacoob went further: "If it appears as a result of the process of engagement, for example, that the property concerned can be upgraded without the eviction of the unlawful occupiers, the municipality cannot institute eviction proceedings. This is because it would not be acting reasonably in the engagement process." The majority did not find cause to differ on this. Declaring the Act unconstitutional, the court ordered all costs for both this and ABM's high court application be carried by the KwaZulu-Natal government. Neither the province's department of housing nor Premier Zweli Mkhize had responded to the Mail & Guardian's requests for comment at the time of going to press. ABM president Sbu Zikode said the judgment "had far-reaching consequences for all the poor people in the country and validated ABM's role as protector of the Constitution, and a champion of the rights of the ordinary people of South Africa". He said: "Shackdwellers have been recognised as human by the Constitutional Court and its findings that there needs to be more engagement between government and the poor. Hopefully, this judgment will also see the end of forced removals to transit camps and temporary relocation areas." Still in hiding after attacks on his Kennedy Road home, Zikode, responded to recent claims by eThekwini municipality officials that ABM’s application to the Constitutional Court had stopped development in the settlement: "The judgment has proved that we are for development. We will now return to Kennedy Road with this message". He added that the movement expected "more attacks, though". TOPICS IN THIS ARTICLE
Comments
Bravo Abahlali base Mjondolo
Trotsky Trotsky on October 18, 2009, 6:13 am
Great.....more thrash to pollute the Durban skyline. Our consititution needs serious amendments, as it was written by idiots drunk on post-1994 ideologies which are far removed from reality.
Khalsa Singh on October 18, 2009, 10:16 am
I think the judgement is great in that it uses the constitutional provisions to protect the poor and the vulnerable in our communities.It also ensures that the Minister of Housing enforces the laws in a just and proper manner. It goes further to force the hand of the Department to provide housing for the marginalised.
Since the euphoria of 1994 politicians,here I refer to those that competed in the Local Govt Elections who used these poor masses as " VOTE FODDER" and forgot about them as soon as their lazy bottoms got comfortable in their offices. As each lacal govt election came up,one heard the same promise " we will resettle the squatters in decent homes".Fifteen years on those squatters are still living under the most horrendous conditions.One senior Councillor said " squatters are part of South African life. Wonder which life he was referring to- His or Theirs?
Donald Mathray on October 18, 2009, 11:09 am
The poor will always be with us.
The ANC will need these people again in 2014 when voting time comes around again. Once again they will vote for the ANC on the housing delivery ticket only to stay in the same squatter camps until they are needed again in 2019. And that's how the soap opera continues.
Les Wil on October 18, 2009, 12:07 pm
Illegal occupation implies that this is an unlawful action. An unlawful action must be a criminal action. How can any court condone criminality?
This act should be separated from provincial and state responsibility to its constituents. These con court judges are sitting on their high horses, pontificating on justice, all the while garnishing their reputations as champions of the downtrodden while rate paying citizens will have to face the day to day realities of their actions.
Elvis naidu on October 18, 2009, 11:11 pm
The current gover'nt cannot do everything for the people. Squatter camps are not in SA only but around the world. If the gov't hsvr to build houses for all the needy the tax payers will fell the pain first and the gov't.
pingpong afrijap on October 19, 2009, 1:18 am
Amandla to ABM! The courts are the last line of defence the poor and vulnerable citizenry have against a powerful government that seems to have forgotten who put them in power. The integrity and independance of our courts must be protected at all costs for the protection of ordinary people against the government. This is a victory not just for ABM but for democracy. It shows that notwithstanding our many problems in this country, democracy is alive and well.
warren oliphant on October 19, 2009, 6:17 am
The scary thing is that this legislation, the Slums Act, shouldn't have even been conceptualised. But it was and the KZN govt made it a reality. Abahlali had to fight it from concept to ConCourt. And our government calls this democracy? This is not a victory, it is a reality check. Our local and provincial govts' are a law unto themselves.
daniel bailey on October 19, 2009, 9:02 am
That the Singh's and naidu's above say "F**k the Poor" and would throw them out on the street does not surprise me, but how is it that the liberating ANC aligns itself so fiercely against its own voters, its own manifesto and the lauded Freedom Charter? Why is it that they EMBRACE "Rich Man's Law" so strongly, pausing only just before elections to tell lies and utter promises it has no intention of keeping? ANC-style law, "in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread" (France). Knowing this cannot last and a backlash must surely arise (even the fifteen year patience of their loyal voters must end), is this the real reason behind the weakening of human rights laws and the strengthening of the police force's ability to shoot petty criminals and uppity natives (but NOT to act against kingpins or white collar criminals)? Well done to the courageous few, Abahlali base Mjondolo among them! Like the courageous few who stood up to the Nats while most of us looked on in fear (and even professed the Nats' "right" to discriminate!).
pete ess on October 20, 2009, 11:56 am
I concur with Pete a 100%. Mr. Elvis Naidu - please educate yourself on the law. 'Unlawfully occupying' doesn't mean it is a crime, not everything that's termed unlawful is a crime. And the government should protect the poor instead of always acting to frustrate their rights. What the ConCourt judges are in fact doing is administering justice because our government isn't interested in doing that. Justice is not just about criminal law and punishment or retribution.
And to Singh - your kind does not even deserve to be responded to!!
Sello Mokadikwa on October 22, 2009, 7:54 pm
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