/ 18 October 2009

Landmark judgment in favour of poor

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”.