Fahamu (Oxford)

South Africa: Housing Department Shackdweller Comments Evoke Strong Response

opinion

Comments made by South Africa's Department of Housing after a Durban High Court Judge dismissed an application by the Abahlali baseMjondolo (shack dwellers) Movement SA to declare the KwaZulu-Natal Elimination and Prevention of Re-emergence of Slums Act 2007 unconstitutional have met with opposition from the church, academia and civil society organisations. In an article criticising Abahlali's legal representatives for portraying the legislation as 'inhumane and unconstitutional' and 'designed to allow the government to embark on irresponsible evictions of homeless people', the department said that its policy was informed by consultation with slum dwellers and stakeholders including Slum Dwellers International (SDI). SDI countered that it does not support the Slums Act, which would make it legal to evict people living in informal settlements should the government choose to do so.

Bishop Rubin added that independent experts have confirmed that there are serious reasons to be concerned by the legislation and that it was wrong and counterproductive to treat shackdwellers and the poor as stupid and criminal. 'No one should fear that their fragile home will be bulldozed and that they will be banished to a transit camp far outside of the city where they work and their children attend school', he said. A number of organisations have signed a statement in support of Abahlali baseMjondolo.

1. Working towards a slum-free South Africa

Ndivhuwo Wa Ha Mbaya

Studying the comments by the judge president of the Durban High Court, Judge Vuka Tshabalala, when he dismissed the application by the Abahlali baseMjondolo (shack dwellers) Movement SA to declare the KwaZulu-Natal Elimination and Prevention of Re-emergence of Slums Act 2007 unconstitutional, it became clear that a slum-free South Africa is possible in our lifetime.

Legal representatives of the Abahlali baseMjondolo (shack dwellers) Movement SA, probably without proper analysis of the act, tried to portray this important legislation, aimed at fast-tracking housing delivery through the eradication of informal settlements and prevention of re-emergence of slums, as an inhumane and unconstitutional legislation designed to allow the government to embark on irresponsible evictions of homeless people.

To further its purpose, the Abahlali baseMjondolo (shack dwellers) Movement SA has deliberately ignored our consultative and partnership approach since 1994.

We strongly believe that if the lawyers of the movement had familiarised themselves with the Breaking New Ground (BNG) housing plan and the Slums Act, they would have realised that the act is about the elimination and prevention of re-emergence of slums, not evicting people who are already residing in informal settlements. They would have learnt that since 2004, the government has been implementing a plan to eradicate informal settlements by 2014 and that this is being done in consultation with slum dwellers and other stakeholders.

Additional research would have highlighted the fact that the government, Slum Dwellers International (SDI) and other associations representing homeless people have signed partnership agreements to work together since 2004.

To borrow from the judge president's comments: 'The province of KwaZulu-Natal must be applauded for attempting to deal with the problem of slums and slum conditions. This is the first province to have adopted legislation such as the Slums Act. The Slums Act ... must be given a chance to show off its potential to help deal with the problem of slums ... '

The Slums Act is inspired by the principles of our housing plan, the Comprehensive Plan for Development of Integrated Human Settlements popularly known as Breaking New Ground.

The judgment allows all provinces that have developed similar policies to finalise their legislations as soon as possible. The act not only provides remedies and instruments to eliminate and prevent the re-emergence of slums, but allows provinces and municipalities to plan the growth of cities in an integrated and sustainable manner.

The act brings to a halt the tendencies by some beneficiaries of government-subsidised houses to rent out their shacks after they have received a house. Municipalities would be able to demolish the shack and thus continue our national effort to eradicate slums. The act also ends what is commonly called 'shack farming', which is when people invade land and build shacks for rental and thus create havens for criminals.

The act empowers provinces and municipalities to implement and monitor regulations that prevent invasion of open land that leads to informal settlements.

By dismissing the case, the judge president has dismissed the scaring tactics of many academics and those who seek to instil fear among homeless people for their individual or academic benefits. The court has confirmed our commitment that if we stop the emergence of new slums and formalise current informal settlements, a slum-free South Africa is possible.

The judge confirmed our approach that development must be sustainable and in consultation with communities. The court has declared that the government has a housing programme that is constitutional, consultative and there is no reason for communities to fear its implementation.

The government at all levels understands the challenges of homeless people. As all provinces move to finalise their acts there is no reason to fear. This government is responsible, which it has proved over the past 14 years.

* Ndivhuwo Wa Ha Mabaya is the head of media services in the Department of Housing.

* This article was originally published by =19991]The Witness.

2. Slum Dwellers International (SDI)'s reply to Ndivhuwo Wa Ha Mabaya

Joel Bolnick

In an article that appears in your newspaper today (Working Towards a Slum-Free South Africa), Ndivhuwo Wa Ha Mabaya, head of Media Services in the Department of Housing makes the inference that Slum Dwellers International (SDI) supports the controversial KwaZulu Natal Elimination and Prevention of Slums Act.

The article argues that Abahlali baseMjondolo were mistaken in their efforts to oppose this legislation in the courts and to portray it as 'inhumane and unconstitutional' and 'designed to allow the Government to embark on irresponsible evictions of homeless people'. These comments are juxtaposed with the fact that the Government and SDI 'have signed partnership agreements to work together since 2004.'

This juxtaposition is disingenuous and misleading. SDI certainly does have a partnership agreement with the Department of Housing and tries to work closely with the Minister and her officials. This does not mean that we support everything the Minister and the Department decide to do. SDI has had a close working relationship with the Southern African Catholics Bishops Conference since 1991, but this does not mean that we are opposed to contraception and abortion.

SDI is not in the habit of making press statements and seldom makes public statements of opposition to actions and decisions of other stakeholders in the urban sector. Public declarations have a habit of compromising our capacity to negotiate with and on behalf of organised shack dwellers in the SDI network, including SDI members in over seven hundred informal settlements in South Africa.

This is one occasion, however, when a counterfactual is called for. SDI does not support the Slums Act. In this respect we agree with Abahlali baseMjondolo. This legislation may not have been drafted in order to allow the Government to embark on irresponsible evictions of homeless people. Should Government choose to do so, however, this legislation will make such actions legal. It will roll back many hard fought victories won by the urban poor since 1994.

SDI's partnership with the State does not erase the contestation between those who want slum-free cities at all costs and those who want slum-friendly cities as a precondition for their incremental elimination. It simply locates the debate within the National and Provincial Departments rather than the courts.

* Joel Bolnick, a member of the SDI Secretariat, is based in Cape Town, South Africa.

* This article was originally published by The Witness.

3. Reply to KZN Slums Act judgment

Marie Huchzermeyer

The response of the national Department of Housing to Judge Vuka Tshabalala's ruling on the Abahlali base-Mjondo Movement's KwaZulu-Natal Slum Act appeal presented by Ndivhuwo Wa Ha Mbaya on February 24, is as flawed as the judgment itself.

First of all, it is no business of a judge to repeat the political statements that the ANC president and the Minister of Housing made in praise of KZN's slum elimination efforts. It is also outrageous for the judge to suggest that the act needs to be implemented before it can be evaluated.

Further, neither the judge nor Wa Ha Mbaya show any signs of actually having read the KZN Slums Act and the national housing policy.

Wa Ha Mbaya claims that the act is 'not [about] evicting people who are already residing in informal settlements'. I quote from chapter five, section 16(1) of the act: 'An owner or person in charge of land or a building, which at the commencement of this act [August 2, 2007] is already occupied by unlawful occupiers must ... institute proceedings for the eviction of the unlawful occupiers concerned.'

Had Wa Ha Mbaya or the judge read the Breaking New Ground housing plan of 2004, they would have noticed that this does not mention the eradication of informal settlements by 2014. Instead, it sets out the target of reaching the full implementation of a new informal settlement up-grading programme by 2007-2008. This date has come and gone and there is still not a single completed pilot project under chapter 13 of the Housing Code or the upgrading of the informal settlement programme. Most provinces and municipalities are unaware that this programme exists; instead, they are indoctrinated by a ludicrous campaign to eradicate informal settlements by 2014.

The campaign itself stems from a misinterpretation in 2000 of the UN Millennium Development Goal (MDG) of significantly improving the lives of 10 per cent of slum dwellers by 2020. The unfortunate slogan of 'cities without slums' accompanies this MDG. However, the UN states very clearly that the target is not to achieve cities without slums by 2020 - that is merely a long-term aim.

Ever since the president in 2001 mandated the Department of Housing to achieve shack-free cities by 2014, the housing ministers, their staff and their provincial and municipal counterparts have all toed the political line instead of applying their minds. This disease, it seems, has even permeated a part of the justice system in KZN (KwaZuluNatal), but it is unlikely to have infected the Constitutional Court where Abahlali now hopes to take its appeal.

Breaking New Ground does speak of the need to eradicate informal settlements, but only through structured upgrading. It further points out that 'it is recognised that the high rates of urbanisation within larger cities and secondary towns will also necessitate the introduction of a fast-track land release and service intervention mechanism to forestall the establishment of informal settlements'. This is an indirect and positive approach to doing away with slums and it is the only acceptable approach under our Constitution and the 1997 Housing Act.

Breaking New Ground does not support the direct and negative informal settlement prevention mechanisms of the KZN Slums Act. Examples are (a) to prohibit unlawful occupation (Section 4(1)), no matter how intolerable the circumstances of the individual, and (b) to oblige owners of vacant land to 'within 12 months of the commencement of this act, take reasonable steps to prevent the unlawful occupation of such land' (Section 15(1)).

Along with other academics I am deeply offended that my analysis is labelled a 'scaring tactic' for my own 'individual or academic benefit'. I challenge judges, politicians, officials and heads of media services to apply their minds beyond misinformed political rhetoric.

I call on shack dwellers to continue applying their minds as they did throughout apartheid and continue to do so in their everyday lives, even if it involves fear. Addressing an issue head-on is the only constructive way of dealing with fear. Let history not judge this society as complacent.

* Marie Huchzermeyer is an associate professor in the school of architecture and planning at the University of Witwatersrand.

* This article was originally published in The Witness.

4. No room for the poor in our cities?

Rubin Phillip

Since the KwaZulu-Natal Slums Act was first mooted there has been tremendous concern about a piece of legislation that has been widely condemned as a return to apartheid legislation. This concern has been expressed by a large number of organisations and individuals beginning with the shack dweller's movement Abahlali baseMjondolo and then including the churches and the Special Rapporteur on Adequate Housing at the United Nations.

As Christians we believe that every person is created in the image of God and is loved by God. Our social policies and practices must strive to reflect that. No group of people are expendable or unworthy of care and consideration. We therefore take the view that it is essential that our cities be organised on the basis of care and support for the most vulnerable. Any approach to social problems that seeks to create the impression of progress by simply sweeping the oppressed out of the cities must be vigorously opposed. If this happens it will be our duty as church leaders to, once again, stand before the bulldozers.

We are therefore very disturbed by the article from the Department of Housing's head of media services that appeared in the Witness recently [1]. The article is written in praise of the KwaZulu-Natal 'Slums Act' [2] and to celebrate the initial dismissal of a court challenge to the constitutionality of the Slums Act that was brought by Abahlali baseMjondolo. Abahlali have decided to take their challenge to the Constitutional Court itself, and we await the outcome of that process with considerable interest. In our view, Abahlali are clearly correct to challenge this odious piece of legislation. And, since the judgement against Abahlali is going to be reviewed, it seems inappropriate to say the least, for the Department to crow - let alone to ridicule and undermine the seriousness and integrity of its critics, and the justice of their cause.

Our first serious briefing on this matter took the form of a report from an Abahlali task team on what was then just a Bill. All the members of that task team were shack-dwellers. They had studied the document with scrupulous care and had an obvious concern to understand properly the real meaning of the proposed legislation. Their report-back was very well balanced, taking time to highlight the positive statements and intentions in the Bill before pointing out the problems they foresaw with it. And when independent experts looked at it - lawyers, academics, housing specialists and human rights activists - they all confirmed that Abahlali were correct and that there are serious reasons to be highly alarmed by this legislation.

By contrast, the Housing Department's language displays a worrying arrogance, and indeed a contemptuous attitude to poor people and to shackdwellers. When elites talk about the poor they all too often reveal an underlying assumption that the poor are essentially stupid and invariably criminal. What else explains the Department's opening comment that Abahlali's court challenge was done 'probably without proper analysis of the act'? What else explains the Department's casual connection of the communities where shack-dwellers live with 'havens for criminals'? As Christians we strive to always remember that Jesus Christ was a poor man, and affirm that whatever we do unto the least in our society we effectively do unto Jesus himself.

However we live in a society where open contempt for the poor is rank. We live in a society where irresponsible spending on vanity projects, like stadia, often trumps the basic needs of ordinary people. Given how deeply ingrained these attitudes are it's hardly surprising that what the Department (repeatedly) describes as its 'consultative' approach, was in fact experienced by poor people as contemptuous and intimidatory. Until the rich and the powerful learn to be able to talk to the poor with respect it is surely inevitable that government policies and practices will be experienced as (and revealed to be) premised on a fundamental rejection of the poor. As religious leadership we must urge a completely different approach based on a completely new set of values. For Christians, we cannot avoid the clarity of Christ's singular message: to bring 'life in all its fullness'. This message simply cannot be reconciled with an approach to development that ultimately means bulldozers and prison for the poor.

There is no doubt that we collectively face a massive challenge to make sure that everyone has decent housing. There is no doubt that the government has done well to build many houses over the years. But treating shack settlements as an abomination to be moved out-of-sight, and treating shack-dwellers and the poor as stupid and criminal, is wrong in principle and counter-productive in practice. The creativity, intelligence, and struggles of the poor are the greatest resource for overcoming the challenges put before us all. Indeed we need to recognise that shack settlements, imperfect as they are, have been an effective means of providing housing for the urban poor. Working with people in a respectful way should be the basis for a proper partnership that begins to change our cities to more just, equal and shared spaces where shalom reigns.

And finally, if as the Department claims, 'government at all levels understands the challenges of homeless people', then why are they proposing to destroy people's existing housing to address homelessness? Surely shackdwellers are correct to point out the need for better housing than the appalling conditions people are sometimes forced to endure in the shack settlements - but they are not homeless - not yet. God has promised us that there are many mansions in the Kingdom of heaven. It is our task to ensure that here on earth our cities are open and welcoming to all and that no one should fear that their fragile home will be bulldozed and that they will be banished to a transit camp far outside of the city where they work and their children attend school.

* Rubin Phillip is Bishop of Natal, Anglican Church of Southern Africa and chairperson of the KwaZulu Natal Christian Council.

6. Oppose the 'Slums Act'

Sign on statement that other organisations put their names to

The KwaZulu-Natal Provincial Government has passed legislation [3] affecting the lives and rights of shack dwellers. The shack-dweller movement, Abahlali baseMjondolo, has challenged this law and will take their case to the Constitutional Court. But after a provincial judge ruled against the movement's first challenge, an article by the head of media services for the Department of Housing (published in the Witness newspaper on 24 February 2009) said:

'Legal representatives of the Abahlali baseMjondolo Movement, probably without proper analysis of the act, tried to portray this important legislation ... as an inhumane and unconstitutional legislation designed to allow the government to embark on irresponsible evictions of homeless people. To further its purpose, the Abahlali baseMjondolo Movement has deliberately ignored our consultative and partnership approach since 1994. ... Additional research would have highlighted the fact that the government, Slum Dwellers International and other associations representing homeless people have signed partnership agreements to work together since 2004. ... As all provinces move to finalise their acts there is no reason to fear'.

In a subsequent statement, the South African secretariat of the above-mentioned Slum Dwellers International (SDI) has clarified that:

'SDI does not support the Slums Act. In this respect we agree with Abahlali Basemjondolo'.

When the Bill was tabled in parliament in 2007, Abahlali baseMjondolo warned:

'this Bill is an attempt to mount a legal attack on the poor'.

When he visited South Africa in April 2007, then United Nations (UN) Special Rapporteur on Housing, Miloon Kothari, expressed his real concerns about this law. In his subsequent report to the UN, he said: 'such legislative developments may weaken substantive and procedural protection concerning evictions and increase exemptions for landlords. They may even result in criminalising people facing eviction'.

The Geneva-based Centre for Housing Rights and Evictions (COHRE) have publicly detailed their concerns about this law.

Leading Wits University housing expert, Marie Huchzermeyer, has analysed this law concluding that it 'is not only reminiscent of apartheid policy. It reintroduces measures from the 1951 Prevention of Illegal Squatting Act, which was repealed in 1998'.

Durban-based lawyer with the Legal Resources Centre, Ranjith Purshotum, has said of this law that 'Instead of saying that people will be evicted from slums after permanent accommodation is secured, we have a situation where people are being removed from a slum, and sent to another slum. Only this time it is a government-approved slum and is called a transit area. This is the twisted logic of the drafters of the legislation'.

The Church Land Programme (CLP) was asked to check among some relevant organisations whether they supported Abahlali baseMjondolo's position regarding the 'Slums Act'. So far, during the last 24 hours following the publication of the Housing Department's newspaper article, all of the following organisations have agreed to put their name behind this statement. The following organisations:

do not support the Slums Act; and

support Abahlali baseMjondolo in its opposition to the Slums Act.

a. Grassroots movements that are part of the Poor People Alliance together with Abahlali baseMjondolo have given their support (Western Cape Anti-Eviction Campaign, and the Rural Network).

b. in addition, the following organisations:

SACC - South African Council of Churches

Southern African Catholic Bishops Conference: Land and Agrarian Reform Initiative

AFRA - Association for Rural Advancement

PACSA - Pietermaritzburg Agency for Christian Social Awareness

KZNCC - KwaZulu Natal Christian Council

Diakonia Council of Churches

ESSET - Ecumenical Service for Socio-Economic Transformation

Ujamaa Centre for Biblical and Theological Community Development and Research, UKZN

CLP - Church Land Programme.

* Please send comments to editor@pambazuka.org or comment online at http://www.pambazuka.org/.

[1] 'Working towards a slum-free SA', Ndivhuwo wa ha mbaya, 24 Feb 2009, at: http://www.witness.co.za/index.php?showcontent&global[_id]=19991

[2] the KwaZulu-Natal Elimination and Prevention of Re-emergence of Slums Act 2007

[3] the KwaZulu-Natal Elimination and Prevention of Re-emergence of Slums Act 2007

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