/ 20 April 2008

An executive-minded decision

The issue of land claims and homelessness continues to be one of the most pressing of our social problems. Unsurprisingly, the courts have been drawn into the intricacies of this problem, particularly when it comes to squatters and their removal.

Recently, in the Johannesburg City case, the Constitutional Court sought to guide authorities confronted with the dilemma of the removal of a large group of people who reside in unsafe buildings but who have nowhere else to live.

The court’s judgement ruled that the relevant authority engaged with the affected dwellers before eviction could take place: ”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.”

This follows earlier qualifications to the previously absolute right of an authority or land owner to evict persons, but its full implications do not appear to have reached Cape Town. On March 10, the Cape High Court ordered the eviction of about 20 000 residents from the Joe Slovo settlement.

The residents argued that the parties that sought their removal — a company charged with the task of transforming the settlement into formal housing and the provincial and national ministries — had no legal standing to bring an application for eviction.

They also argued they had a expectation that 70% of the opportunities afforded by the new housing at Joe Slovo would be awarded to their community.

The decision on the argument regarding legitimate expectations is illuminating. Their claim on 70% of Joe Slovo was not denied by the applicants for their eviction.

The court accepted this and the entitlement would act as a defence against eviction.

But the court also found that the initial occupation was unlawful, which can never give rise to a legitimate expectation, so the residents could not rely in law upon the undertaking that had been given to them.

This is surely a controversial judgment. It cites but one decision as authority for this finding. Although there is no unanimity on the point, there is alternative authority that supports the argument that there is a substantive legitimate expectation, where such an undertaking is given, except if the undertaking is made in violation of a statute or when it is not in the public interest. Neither was the case in this dispute; hence there appears to be a significant injustice if people were removed from land where clear promises had been made to them.

But more problematic is the absence of any engagement as set out by the Constitutional Court. Though the Cape High Court found compliance with the Johannesburg City case, the residents asserted that no meaningful consultation had taken place. The applicants conceded that consultation had been limited. No evidence of such engagement was shown.

A unilateral decision was made to move the residents more then 37km, far from where their children went to school and where many were employed.

Of course a court must seek to balance the state’s attempt to give effect to its constitutional obligation to provide housing with the rights of those who are homeless but whose actions may frustrate the housing programme. That will often prove to be a difficult balancing exercise, hence some sympathy for the judicial dilemma. But in this case the court manifestly glossed over the undertaking given to the residents and the legal implications of meaningful engagement before any removal could take place. It is this deference to developers and the diminution of the importance of consultation that makes this judgement so problematic.

This case must raise a debate about the meaning of legal transformation.

By the way, the judge who decided the case was Western Cape Judge President John Hlophe.

Lead counsel for the 20 000 evicted persons was Geoff Budlender, a man turned down three times for a post as a judge in the Western Cape. I wonder how 20 000 historically disadvantaged homeless people understand the idea of legal transformation?