'Never before in the history of this country have ordinary people taken the government to task like this'
At about 3am last Thursday it became apparent that the democratic will of the shack dwellers travelling along the N3 from Durban to the Constitutional Court in Johannesburg would not be denied.
A chorus of “Viva toilets! Viva!” rose above the ghastly blend of R&B and hip-hop in the bus, leaving the previously obdurate driver no alternative but to stop for a bladder-break.
It was one of many stops during a long night for members of the shack dwellers’ movement Abahlali baseMjondolo.
Starting at Kennedy Road informal settlement in Durban about 6pm, the journey ended 12 hours later at the court, where a full Bench deliberated on their objections to the KwaZulu-Natal Elimination and Prevention of the Re-emergence of Slums Act.
The Act empowers 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 within time frames decided by the provincial housing minister.
During the trip the insomniac mood was defiant. Old and young sang zabalaza songs while forty-something mothers danced to lascivious Akon tracks.
Gut-warming libations oiled discussions on the hearing ahead and stripped away apprehensions about a repeat of KwaZulu-Natal Judge President Vuka Tshabalala’s 2008 high court finding that the Act was constitutional.
“Just being here is a victory because never before in the history of this country have ordinary people taken the government to task like this,” said the Church Land Project’s David Ntseng.
“It’s always been: ‘Okay. You’ll give us houses in 20 years? Okay.’ At the Constitutional Court, the people will have their voice back.”
After Tshabalala—widely derided in Durban’s squalid shack settlements for his somnambulist hearing of the matter—“applauded” the Slums Act in his judgment, the sense that the struggle had picked itself up and kept walking was palpable.
Abahlali was contesting the Slums Act’s constitutionality. Its advocate, Wim Trengove, argued that provincial government did not have the constitutional competency to pass it because it dealt with land and land tenure, not housing.
He argued that its emphasis on evictions contravened the National Housing Act, the Prevention of Illegal Evictions Act (PIE), the National Housing Code and the Breaking New Ground policy. The last, especially, emphasised consultation with affected communities and in site upgrades, where possible, rather than evictions.
He said that “PIE’s safeguards were now transferred to the MEC” through the Slums Act. The transfer of the discretionary powers on evictions from courts to the provincial minister—contained in section 16 of the Slums Act—consumed most of the afternoon’s proceedings.
Judge Albie Sachs, noting that the Slums Act was set to be “a model for other provinces” that were “waiting eagerly” for the judgment, felt it was “incurably vague” on the powers it gave to the provincial ministers and municipalities and compared it to a badly made coat.
Trengove asserted that the Slums Act contravened section 26 of the Constitution, which compelled the state to take “reasonable legislative and other measures” to achieve the “progressive realisation” of the universal “right to have access to housing”.
The state, represented by advocate Jeremy Gauntlett, insisted that the Slums Act was a reasonable legislative measure to address housing rights and that the application was “premature” and “abstract” because the Act had yet to be implemented.
In court papers Trengove outlined often illegal state responses to unlawful land occupations, but Gauntlett urged the Bench to read the Act “sensibly” and “through the prism of the Bill of Rights”.
He asked the court not to adopt an “Eeyore-ish” interpretation of the Act—a reference to Winnie the Pooh’s eternally pessimistic donkey sidekick who diligently rebuilt his house every time it was broken by the evil woozles.
Deputy Chief Justice Dikgang Moseneke, musing over whether to strike down the Act and remit it to the legislature or return it to the high court, considered the third option of the judges, “reading it in a compliant manner, which we would find hard to do”.
The duelling between legal minds was, at times, scintillating: Moseneke probed the matter like a surgeon, with Edwin Cameron, Sandile Ngcobo and Kate O’Regan the scalpel assistants.
Gauntlett as the smart-Alec gunslinger, shooting literary metaphors and jokes from the hip, was, at times, met with granite-like impassiveness from the Bench.
Aside from the odd snore from an out-travelled gogo, the gallery, filled with shack dwellers in red T-shirts and clerics, including Anglican Bishop for KwaZulu-Natal Rubin Phillip, was enthralled.
Outside, meanwhile, the Abahlali members watched on the television screen, joined by Gauteng’s Landless People’s Movement and the Western Cape’s Anti-Eviction Campaign.
After the justices had reserved judgment until August, the shack-dwellers spilled out of the court, singing, dancing and heralding the Constitution as their “bible”.
Walking to the bus for the long journey back to Durban, 56-year-old Marriette Kikine from Joe Slovo settlement was, despite sleep deprivation, ebullient: “Today I got an experience of real judges — This was a beautiful day for me, because in 2007 I was shot six times with rubber bullets during a march and put in jail by the police.
“Listening to these judges today made me feel like I was part of this democracy again.”