Resistance from the grass root
Abahlali baseMjondolo Movement SA v Premier of KwaZulu-Natal and Others (2009)
Does the Slums Act violate the Constitution and make an already vulnerable group more vulnerable?
The Constitution is on our side.
In 2007, the provincial government of KwaZulu-Natal (KZN) introduced the ‘Elimination and Prevention of Re-Emergence of Slums Act 6 of 2007’, known as the Slums Act. This Act allowed the province and its municipalities greater ability to remove shack dwellers from their homes, placing them in temporary housing in order to eradicate shacks.
The Abahlali baseMjondolo, the Zulu word for shack dweller, is a grassroot organisation started in 2005 at the Kennedy Road Informal Settlement in Durban, KZN. The movement represents shack dwellers in the surrounding areas of Durban and has extended to the whole of KZN. It represents the interests of shack dwellers and the poor in South Africa.
Path to the Constitutional Court
Abahlali baseMjondolo took the KZN provincial government to the High Court, contending that the Act was inconsistent with section 26(2) of the Constitution. The High Court stated that the Act, properly read and understood in its entirety, is concerned with housing in the context of national and provincial legislation.
The High Court rejected the claims of inconsistency with section 26(2) of the Constitution. Instead, it found that the Act “constitutes a reasonable legislative response to deal with the plight of the vulnerable in our society.”
The applicants then approached the Constitutional Court to give them permission to appeal directly from the High Court, thereby skipping the Supreme Court of Appeal (SCA), on the basis of urgency. The Court granted this permission. In so doing, it recognised that the applicants felt threatened by the Act and required the resolution of their challenge as quickly as possible.
Some of the Arguments
Abahlali baseMjondolo Movement SA
Abahlali baseMjondolo argued that section 16 of the Act was inconsistent with the Constitution, as well as with other housing legislation such as the National Housing Act 107 of 1997.
Abahlali baseMjondolo contended that the Act was not concerned with housing, a Schedule 4 matter within both the competence of provincial and national government. It said that it was, instead, concerned with land tenure and access to land in terms of section 25(5) of the Constitution, and was therefore outside the provincial competence.
Premier of KwaZulu-Natal
The government of KwaZulu-Natal argued that the legislation was concerned with housing, not land tenure, and that it therefore falls within the competence of the provincial legislature.
What did the Constitutional Court decide?
The Slums Act was found to be unconstitutional as it violated section 26(2) of the Constitution. The Court found that section 16 of the Act would make residents of informal settlements, who are invariably unlawful occupiers, more vulnerable to evictions should an MEC (Member of the Executive Council) decide to issue a notice of eviction under section 16.
The Court found that section 16 of the Act compels an owner of a building or land, or the municipality within whose jurisdiction the building or land is located, to institute eviction proceedings against unlawful occupiers, even in circumstances where the requirements, which protect unlawful occupiers against arbitrary evictions, may not be met. The Court therefore granted an order declaring section 16 of the Act to be inconsistent with section 26 of the Constitution, and invalid.
In my view, to the extent that section 16 eliminates discretion on the part of the owner or municipality, it erodes and considerably undermines the protections against the arbitrary institution of eviction proceedings. It renders those who are unlawful occupiers and who are invariably found in slums and informal settlements liable to face eviction proceedings which, but for the provisions of section 16, would not have occurred.
Impact and Significance
The matter was heard in the Constitutional Court on 14 May 2009, but the judgment was handed down on 14 October 2009. In the time between the hearing of the matter and the judgment, tensions between members of the Abahlali baseMjondolo movement and those who supported the ANC-run provincial government rose.
Many members had to flee their homes under the threat of violence, and the leader of the movement, Sibusiso Zikode was forced into hiding. The development of the Kennedy Road Informal Settlement was halted as the municipality was found to be ‘punishing’ the community for opposing the Slums Act. Despite their victory in the Constitutional Court, Abahlali baseMjondolo and the ruling party in KZN remained in a bitter battle.
According to a member of the group: “we live in communities where local councillors are selling RDP houses meant to benefit the poor and municipalities are illegally evicting shack dwellers and, even more drastically, activists are being killed for standing in the way of those same people.”
According to Ground Up – an online publication – “in Durban alone, there are more than 317 000 households living in informal settlements, while the eThekwini Metro’s housing backlog is estimated at more than 400 000.” Residents claim that RDP houses were then allocated exclusively to paying members of the ruling party.