Justice restores the dignity of the poor
“Today, I got an experience of real judges,” 56-year-old Marriette Kikine told me on a clear, crisp autumn afternoon in 2009. “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.”
At the time, Kikine, a shack dweller from Durban’s Joe Slovo informal settlement, was leaving the Constitutional Court in Braamfontein where the social movement she belonged to, Abahlali baseMjondolo, had challenged the constitutionality of the KwaZulu-Natal Elimination and Prevention of the Re-emergence of Slums Act.
Following a robust and at times clinical exchange between the counsel for the state, lawyers for Abahlali and a full Bench of the court, shack dwellers spilled out of the court, singing struggle songs, dancing and heralding the Constitution as their Bible.
Kikine and her comrades were heading straight back to the bus that had, the night before, brought them on a 12-hour trip from Durban to Johannesburg.
On the way, David Ntseng of the Church Land Project had said: “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.”
Three months later, the court would rule that the Act, which gave provincial housing ministers and private landowners untrammelled powers to evict land occupiers, and in contravention of the Prevention of Illegal Evictions Act, was unconstitutional. The majority judgment penned by Deputy Chief Justice Dikgang Moseneke would become, legally and symbolically, a victory for the poor and marginalised.
After the judgment, Abahlali president Sbu Zikode told me: “Shack dwellers have been recognised as human by the Constitutional Court and its findings that there needs to be more engagement between government and the poor.”
Although South Africa’s common law was advanced by that judgment, which continued the humane judicial approach to housing rights that can be found in the Grootboom and Olivia Road judgments, the reality in 2015 is far from rosy, or legal.
Local governments continue to evict communities without a court order or plans for alternative accommodation. If communities are sussed and organised, they enlist lawyers to apply for urgent interdicts to stave off their eviction.
But many communities are not organised. A gap remains between, on the one hand, a progressive Constitution and the common law developed by the courts, and ordinary people and their knowledge of their rights on the other.
Abahlali and its lawyers, the Socio-Economic Rights Institute (Seri), have attempted, in recent weeks, to bridge that gap with workshops and screenings of the film Dear Mandela in inner-city buildings and informal settlements in Gauteng, KwaZulu-Natal and the Western Cape.
Winner of a best South African documentary prize at the Durban International Film Festival, the film followed three young Abahlali activists at the time when the slums Act was challenged and when the movement itself came under violent attack at the Kennedy Road informal settlement in Durban.
It is about grass-roots politics, the power of mobilisation and the law. It is also a deft, insightful film about the humanity and agency of South Africans so often marginalised, ignored and derided — the poor.
In a recent interview, Dara Kell, who co-directed Dear Mandela with Chris Nizza, said the screening and workshop tour was important in making the law and people’s rights more accessible to them.
“The film helps show people that it’s possible to use the law to protect their rights not to be evicted and, if they are evicted, it doesn’t necessarily lead to homelessness. People always say after the screening: ‘Now I realise that I have rights’.”
Kell said, for many of the communities where the film was screened, “just seeing shack dwellers like themselves in the Constitutional Court is a massive thing. To see their case being argued, to see their issues being taken seriously and to see the way they can work with lawyers was emancipatory and inspirational.”
For her, a very important aspect of the film was to reflect the agency shown by shack dwellers and not to dwell on the lawyers, which would have lent the narrative a strong sense of the “white saviour complex”.
Kell and Nizza set out to show how it really happened.
“It wasn’t a lawyer coming in and saying: ‘This law is really bad.’ It was the shack dwellers themselves who actually studied the law [and approached lawyers], which is why we included the scene where they talk about reading the law from beginning to end, and saw that it was a bad piece of legislation — that it was very harmful for millions of shack dwellers around the country.
“Every single person has that agency. If you talk to someone long enough, you will find that they are very well aware of the forces that are keeping them in poverty. They often know why they can’t get out of poverty,” Kell said.
In bringing the shack dwellers’ stories and voices to the fore, Kell and Nizza achieved a fine balance: a film that resonated with shack dwellers, but one that also humanised them for middle-class audiences, demystifying them as little more than an “invisible mass of people”.
On tour, Kell travelled with Abahlali members, including Zikode, who spoke about the means and challenges of community mobilisation, and a lawyer from Seri, who conducted paralegal workshops.
Kell said the lawyer was taken aback by how very hungry communities were for advice and insight into how to mobilise and organise themselves to achieve and advance their rights, from housing to information from local government about projects and their budgets.
“Everywhere that we have gone to, there are organisations within informal settlements. All different kind of groups, whether it’s the South African National Civic Organisation or Economic Freedom Fighters, or smaller organisations where a bunch of young people are organising themselves and educating each other about teen pregnancies or something like that. The main thing is they don’t know how to organise,” said Kell.
The fracture between the Constitution, the law and the people on the ground could be attributed to several factors, including that copies of the Constitution were no longer printed and freely available in schools, post offices, libraries and other public venues. But there was also a more sinister reason, Kell said.
“The state keeps breaking its own laws. You have this faith in your government, especially in South Africa. It’s a legitimate government that had the support of the people and, when the state is routinely breaking its own laws, it breaks that faith in the law.”
Niren Tolsi is a freelance journalist. His forthcoming book is titled A People’s History of Marikana