Notes on Harry Gwala High Court hearing 12 December 2008
Harry Gwala is an informal settlement of some 800 households occupying mainly municipal land adjacent to Wattville in Ekurhuleni. Currently it has no refuse removal, no lighting, only inadequate home-made pit latrines as toilets, and only 6 communal taps.
In October 2008, Harry Gwala applied, through the High Court, for installation of basic services. For every household in the settlement to be in a 200m radius of a communal tap, as set out in the Water Services Act, an additional 7 taps are needed in this settlement. The same Act requires one toilet per informal household. This could be ventilated improved pit (VIP) latrines or chemical toilets. Further, refuse collection is required for reasons of health and hygiene, and high mast lighting for basic safety and night-time access for emergency vehicles. Harry Gwala’s legal representatives, Moray Hathorn of Webber Wentzel and Advocate Roshnee Mansingh of Maisels Chambers, argue that the current situation at Harry Gwala is unconstitutional. They set out a three-fold application based on constitutional rights, statutory rights (as set out in the Water Services Act) and policy (Chapters 12 and 13 of the Housing Code).
At the hearing in the Witwatersrand High Court on 12 December 2008, the Ekurhuleni Metropolitan Municipality announced that it offered to install the additional taps and provide refuse removal, but did not commit to any particular timeframe. Acting Judge Epstein stated that certainty was needed, and ended the proceedings with an order that refuse collecting and 7 additional taps be provided by 2 January 2009, a definite victory for the Harry Gwala community.
The question of high mast lighting and sanitation were not resolved that easily. Justice Epstein reserved judgement after a lengthy debate that exposed the Municipality’s position on basic service delivery to informal settlement communities.
Regarding high mast lighting, the Municipality argued that it would require approval from Eskom, who in turn would require a formal township approval before giving the go-ahead. No evidence was given of this requirement and it was not considered that high mast lighting had been installed as a safety intervention in other informal settlements.
Technicalities aside, Ekurhuleni Metropolitan Municipality argued that providing sanitation and high mast lighting at Harry Gwala would result in money not well spent, as long as feasibility of upgrading the settlement in situ was in question. The Municipality stated it had been waiting for 2 years for a decision from the Provincial Department of Housing, regarding such feasibility. The Municipality indicated that in November 2006 it had asked for a second feasibility study to be commissioned by the Provincial Department of Housing for upgrading at Harry Gwala. The outcome was still awaited – this being one of 16 feasibility studies currently being awaited.
However, Harry Gwala’s legal representatives showed that under Chapter 13 of the Housing Code, it is the Municipality that has to carry out or commission the feasibility study, before applying for funding from the Province for informal settlement upgrading.
Further, the legal representatives of Harry Gwala showed that basic services provision should not be dependent on feasibility of in situ upgrading. Instead, they pointed to a statutory obligation in terms of the Water Services Act. This requires a safe albeit temporary toilet for each stand, including in informal settlements. In addition, they pointed to Chapters 12 (Emergency Housing) and 13 (Informal Settlement Upgrading) of the Housing Code which provided for funding for interim services. In terms of the minimum core content of socio-economic rights in the Constitution, it was argued that residents at Harry Gwala had a right to basic water and sanitation, refuse collection and lighting. Further, the proximity to the formal township of Watville meant that laying water and installing high mast lights could not amount to large sums of money, and stressed that the current situation presented a threat to the health and safety of the residents.
However, Ekurhuleni Metro argued that because people had lived in Harry Gwala for many years, their condition could not be labeled an emergency, and therefore Chapter 12 of the Housing Code could not be used to fund basic services. An application by the Municipality would be fruitless as it would simply not be approved. Harry Gwala’s legal representatives in turn showed that the kind of emergency experienced in the settlement (living in dangerous conditions) is included in Chapter 12 of the Housing Code.
It was then debated whether the sum for basic services available under Chapter 12 and Chapter 13 of the Housing Code was sufficient. Ekurhuleni Metro argued that the time lapsed since 2004 when the amounts in these programmes were set, meant that they were no longer sufficient today. That of course puts these two policy instruments in question.
Ekurhuleni Metro further argued that their budget had already been allocated to projects that had proven feasibility, and for people living in similar or worse conditions. The Municipality was providing 13 000 stands in approved township areas in this financial year at the cost of R210 million (the entire Municipality has 130 000 informal structures requiring stands). It therefore found it could not redirect funding for the basic servicing of Harry Gwala, where feasibility of upgrading was still in question.
The Municipality further predicted that if budgets were redirected for this purpose, any other informal settlement community could demand the same, and it would become very difficult to provide housing in a structured and planned manner.
The judge would have liked evidence on actual costs of the requested services, which the Municipality was not able to present, other than to state that providing a toilet for each household in Harry Gwala would amount to R1 800 000. The judge would also have liked to have seen the entire budget of the Municipality, asking on what basis funding was not available from the Municipality’s general budget. In its absence, he questioned on what basis the Municipality was able to re-arrange its budget to offer or tender provision of the additional taps and the refuse removal.
However, the Municipality gave a further reason as to why it was not willing to re-allocate its budget for basic services provision in Harry Gwala – the households had been given the option to relocate to a serviced area called Chief Albert Luthuli. Those currently remaining in Harry Gwala had refused this offer. Here the judge stated that there may or may not have been good reasons for these households to refuse the relocation offer, and did not wish to go into this discussion. However, the Municipality insisted in arguing that it should be taken in to account that the Harry Gwala households had chosen to stay in an area without access to water.
As their legal representatives pointed out, apart from concerns over livelihoods and schooling, the Harry Gwala residents had refused to relocate as the Municipality had not proven the non-feasibility of in situ upgrading, as required under Chapter 13 of the Housing Code and the ‘Breaking New Ground’ housing policy, which specifically refers to relocation as a last resort. In particular, a geo-technical study was required to show whether upgrading is feasible or not. The households’ refusal to relocate therefore was appropriate and in accordance with policy.
In essence, the Municipality was unwilling to engage with Chapter 13 of the Housing Code and was treating the basic services issue in isolation to access to schooling and livelihoods, a silo approach. Extending this approach, the Municipality presented a purely financial interpretation of the term ‘sustainability’. Citing Section 152 – 1b- of the Constitution, it argued that it would be ‘unsustainable’ to provide basic services in Harry Gwala. Harry Gwala’s legal representatives in turn argued that, by not applying for funding under Chapters 12 and 13 of the Housing Code, the Municipality had actually failed altogether to plan, an approach that could also not be considered sustainable.
Several Constitutional Court judgements were cited in the course of the proceedings. Harry Gwala’s representatives referred to (a) municipalities’ obligation to take complex socio-economic conditions into account and to improve access to housing (and by implication basic services) to all in the Municipality (the PE Municipality case), (b) the role of the courts to affect socio-economic rights (the Modderklip case), and (c) the need for the court at times to enquire into and re-arrange budgets (the Rooikop case).
Taking the opposite position on socio-economic rights, the Municipality cited the country’s first socio-economic rights case in the Constitutional Court (the Subramany case) in which the applicant’s claim for dialysis was turned down. Harry Gwala’s representatives strongly disputed the applicability of this case, tragic as it was, in which one individual had requested substantial expenditure by government to save his life – in the Harry Gwala case an entire community was requesting only very minimal expenditure for rudimentary services.
The extreme diversion of views and interpretations between the Municipality and the legal representatives of the Harry Gwala community require a clear judgement. It suggests that this case, if not resolved in the High Court, is relevant for a deliberation by the Constitutional Court.