Report: The deficiency of reality in the Joe Slovo judgment

15 06 2009

Click here to read this article in a word document and here to read previous entries on the Joe Slovo settlement.

Kate Tissington
15 June 2009

The highest Court in South Africa has decided the fate of the 20 000 Joe Slovo informal settlement residents to be evicted to Delft to make way for the N2 Gateway housing project, in what is a disappointing and frustrating judgment that orders their eviction, albeit on the proviso that engagement occurs and that certain mitigating measures are undertaken.
Two years spent battling the possibility of this mass eviction has ultimately resulted in a naïve patch-up job by the Constitutional Court, whose actions have allowed the government to make appallingly triumphalist statements like “a better life beckons for the people of Joe Slovo informal settlement. The Court has pronounced its judgment, and the biggest winners are the families who will soon put the misery of shack dwelling behind them.” What shameless spin and utter nonsense.

What follows can be described as a personal ‘insider’ reaction to the judgment and why it is disturbing, given what many already know to be the sad reality of the N2 Gateway project and what I have learnt over the last two years being involved in the case. In many respects I am most likely preaching to the converted. It was written in response to a preliminary reading of the judgment and does not constitute a rigorous academic or legal analysis of it. Indeed, I doubt anyone has yet to fully digest all 220 pages of the judgment and in the next few weeks and months it remains to be seen how the engagement process between the parties will play itself out. There is surely much incisive analysis and commentary still to come.

What I argue below is that despite the Court’s ordering of meaningful engagement and the provision of alternative accommodation for all Joe Slovo residents, the reality is that the N2 Gateway project was never conceived or implemented in a reasonable manner, and the mass eviction sought in its name is thus unreasonable. There are manifold reasons for this and I will touch on the socio-economic impact of eviction to Delft; government’s persistent misunderstanding of informal settlement upgrading; the numerous flaws with the N2 Gateway project as described by its provincial project manager and recently exposed by an Auditor-General’s report; the choice of Delft as a site of temporary relocation and the reality of life in Delft TRAs; problems with the deeply political bent of the project; and what N2 Gateway looks like at Joe Slovo at present. Finally, the deeply problematic belief (which the Court has seemingly adopted) will be discussed, which implies that simply because there is a ‘good’ end (in this case the delivery of some low-cost housing), there is justification for top-down, bureaucratic and unacceptable means that render many people worse off.

The Joe Slovo case and judgment(s)

Sitting in the Constitutional Court and listening to Justice O’Regan read out the order, one got the sense of a Court completely naive and out of touch with reality, failing at its duty to adjudicate on socio-economic rights compromised by bad implementation of wrongly interpreted government policy. The Court refused to condemn the eviction of Joe Slovo residents to Delft, which will result in an uncertain future for them in so-called ‘temporal housing’ (basically, government shacks) managed by that defunct and debatable “national public entity” called Thubelisha Homes. Lest we forget that this agency is now technically insolvent.

The Court, unwittingly or not, has effectively allowed government to get away with a national project that was misconceived from the start, described by many as merely a grandiose ‘vanity project’; implemented with no consultation or bottom-up planning; and which is contrary to the spirit and letter of national housing law and policy and the Constitution. This, despite it being the pilot project for the Breaking New Ground (BNG) housing plan.

This failure is sadly true for every one of the five judgments, despite agonising individual attempts by Yacoob, Moseneke, Ngcobo, Sachs and O’Regan to defend their devastating ‘consensus’ to grant the eviction order. The order is highly problematic, regardless of the mitigating efforts made by the Court to render the eviction more “humane”, by ordering ongoing meaningful engagement, setting standards for the alternative accommodation at Delft and stipulating the 70% allocation for current and former Joe Slovo residents.

There is perhaps an element of sympathy with the Court’s predicament – this was obviously not a straightforward case for them to adjudicate. The legal strategy of the applicants was to argue this highly complex case on the most winnable legal points, which also happened to be rather technical, arguing that the residents had tacit consent to occupy the land, were thus lawful occupiers and were entitled to adequate notice before their eviction, which never occurred. Therefore, there are no grounds to evict. Given the nature of the case and that of the Court, this tactic was not necessarily wrong. However, it has unfortunately resulted in over 220 pages of a judgment which still condones a mass eviction (including 25 pages spent by Justice Yacoob agonisingly unpacking the nature of ‘consent’).

It should be stated at this point that the above comments in no way serve to bolster recent criticisms made by Judge Hlophe (who initially ordered the eviction of the residents in the Cape High Court with no regard for their predicament or provision of mitigating measures). He attacked the Constitutional Court for their long judgments and the “complex and scholarly” manner in which they write them, stating that the Court has a responsibility to write simple and accessible judgments which can be understood by ordinary people. While this is undoubtedly an enduring problem with the judiciary and needs to be addressed urgently, it is rather a cheap shot from Hlophe. Most likely Joe Slovo residents did not really care that when their eviction was ordered by him it was done in a short, “simple and accessible” judgment. Content that favours “ordinary people” is surely as important as the form it takes.

During the hearing, the Court expressed some distaste at the technical line of argument followed, in a case they viewed as so clearly being about more complex issues of justice and equity. The amici curiae submission by the Community Law Centre (CLC) and Centre on Housing Rights and Evictions (COHRE) attempted to counter this ‘deficiency of reality’ by providing the Court with insight into how the N2 Gateway project runs contrary to international best practice and South African housing law and policy, explaining why the temporary relocation areas (TRAs) in Delft do not constitute adequate alternative accommodation for Joe Slovo residents considering their lived reality, and stressing the lack of meaningful engagement throughout the project.

However, this information came to the Court as ‘an aside’ in a sense, and they clearly did not it into account sufficiently. Likewise, information known by those actively working on the project, like the provincial project manager I will mention below and that which has emerged from the Auditor-General’s report, was never going to make it to the Court. Thus its ability to properly or fully decide whether an eviction would be “just and equitable”, given the realities of how and why the socio-economic rights of Joe Slovo residents are affected by misinterpreted government policy and its thoroughly flawed implementation, was constrained by its focus on addressing, and rebutting on the whole, the technical arguments presented.

And yet there are many reasons why the Court should not have granted the eviction order. While conducting research for the amici submission on the socio-economic impact of the removal to Delft, as well as how and why the N2 Gateway project looks the way it does, I came to several obvious conclusions.

Socio-economic impact of eviction to Delft

Firstly, it is clear that the lives of Joe Slovo residents will be severely disrupted if they are forced to move to Delft. This conclusion is not simply an academic one, but emerges from hundreds of affidavits submitted to the Court, which provide testimonies of Joe Slovo residents facing eviction to Delft. Even Thubelisha acknowledges this much (although they assert, misleadingly, that this will be merely a temporary disruption). At Joe Slovo, residents are close to Langa, Pinelands, Epping and other economic hubs where jobs and food can be easily sourced. Children attend school within walking distance, young adults attend night classes which they are able to make in the evenings due to proximity, and gogos attend churches they have frequented for 15 years. The settlement is close to Cape Town CBD, and there is a cheap train network operating, making commuting brute early and late at night to and from work easier for people. There is no train network in Delft, transport is expensive and the TRA settlement is more than 15 kms further from the City.

Due to their poverty, residents lead fragile existences and therefore a strong community and social networks are extremely important to mitigate its effects. A telling quote from a resident sums this up well: “Delft is a new place, and we do not have a community there. I have visited Delft. Houses are built from asbestos and are brittle. My things will not be safe inside. It is fine for rich people to live in a place without a community, because they can afford expensive security. We cannot. We need our community to be safe.”

Thubelisha’s assertions that the move to Delft will be merely a “temporary hardship” for Joe Slovo residents have been misleading and shameful, and will be discussed further below.

Government misunderstanding of informal settlements

This leads me onto how and why the N2 Gateway project looks the way it does. Firstly, from the above, it is clear that the project never took the actual lived realities of Joe Slovo residents or their needs and desires into account in the process. The decision to do a massive relocation rather than in situ upgrading on the site was never adequately explained by government (further, neither was the decision not to build more densified housing typologies at Joe Slovo).

One likely reason seems to be that government, despite its progressive informal settlement upgrading programme (Chapter 13 of the Housing Code) included in BNG in 2005, has consistently misinterpreted ‘slum eradication’ to mean demolishing informal settlements. According to Marie Huchzermeyer, professor at the Wits School of Architecture and Planning and informal settlement policy expert, the national Housing Act, Code and BNG policy, as well as international best practice, all speak to indirect measures that need to be taken to improve the lives of shackdwellers, and which will ultimately result in the eradication of the need for informal settlements and thus actual informal settlements themselves. Government continues to misinterpret this goal as being about eliminating the symptoms of the problem, rather than addressing its causes. Informal settlements are a reasonable and legitimate response to apartheid geography and a major housing backlog in South Africa. If this had been taken into account by the project, and a real dedication shown to the true spirit of informal settlement upgrading, the N2 Gateway project would have undoubtedly looked very different.

N2 Gateway – a flawed project by all accounts

Second on this point, from the outset there was no real consultation with Joe Slovo residents, and the project was condemned at the time by non-governmental organisations working in the settlement, who later pulled out of the project citing lack of bottom-up planning and engagement. During research conducted on the N2 Gateway project by the Centre on Housing Rights and Evictions (COHRE) in November 2008, I spoke to the N2 Gateway project manager at the Western Cape provincial department of housing.

He slammed the project and revealed that there has been no proper communication between Thubelisha and the provincial department; that Thubelisha is poorly managed and largely incompetent; that there has been no community participation in the project; that the situation at Delft is dire; that there have been endless problems with contractors at the Delft site; and, finally, that there is an acute lack of an efficient and transparent TRA allocation process which has led to major corruption and the bizarre situation of beneficiaries not being found for newly built houses and them standing empty once completed. According to him, when houses were finished in Delft 7-9 and they needed to hand over the units, there was no list of beneficiaries from Thubelisha and they had to “just find and put people in.” People had not been signed up fast enough in the TRAs to be put through the provincial Housing Subsidy System (HSS) in order to be allocated a house.

In April 2009, a damning report on the special audit conducted by the Auditor-General for the National Department of Housing emerged (it was written in June 2008), which found serious problems with the N2 Gateway project and its implementation. Among these:

• Lack of adequate planning and lack of approval of a business plan before construction started;
• “Fruitless and wasteful expenditure” occurred since reasonable care was not exercised during the planning phase;
• Identification and securing of sufficient land was not finalised prior to construction;
• Adequate geotechnical surveys not conducted before construction;
• No clear roles and responsibilities defined between the different spheres of government;
• Selection of beneficiaries not finalised prior to the commencement of construction;
• Affordable housing was not provided for the target market identified: “The national Housing Code, the Breaking New Ground plan and the draft business plan were not consistent with regard to the qualifying criteria for proposed beneficiaries, especially in respect of the monthly household income requirement. It was also noted that the criteria communicated to the different communities were not consistent.”
• Overambitious time-frames adopted. As of 31 May 2007 (two years after project commenced) only 5% units of the revised planned units had been completed, while 21% of the total budget had been utilised;
• Initial project manager was appointed despite being ranked number 6 in the evaluation committee’s evaluation, not preparing costing in compliance with the terms and conditions of the request for proposal, lacking sufficient in-house and specialist expertise to perform various project management functions, and was furthermore paid project management fees exceeding the norm and which were not performance based;
• Thubelisha was appointed without following a proper procurement process.

It was clear from my meeting with the gatvol provincial official (and now supported now by the Auditor-General’s report) that the entire N2 Gateway ‘housing delivery’ exercise has been, and continues to be, extremely technocratic and top-down. He explained this to me aptly as there being ‘no matching up, no bottom up’ and it was clearly visible when we discussed what would happen if the Joe Slovo eviction order was granted and he frantically shuffled around maps and numbers on his desk. According to him, there is simply no more space left in Delft.

Delft was a last resort

It is important to note that the decision to move residents to Delft was never a preordained or beneficial one for residents, as government has spun it to the media. According to a report by the Development Action Group (DAG), Delft was a last resort for establishing temporary accommodation, following several months of lengthy and unsuccessful negotiations to find suitable land for relocation. The decision came after no less than 17 other sites closer to Joe Slovo were considered, in the first instance to relocate those affected by the fire at Joe Slovo in 2005, and later for those envisioned to be removed to make way for Phase 1 of N2 Gateway.

The reason these 17 sites were rejected in 2005, including the preferred sites in Epping and Langa, was due largely to objection by Langa and Athlone residents, and organisations like the Epping Industrialists Association and Pinelands Residents and Ratepayers Association, amongst others. Unsuitability of land and other reasons, which mainly included anticipated community opposition, were also cited for rejecting certain sites. Eventually, the only feasible site was the former hostel site on the edge of Langa and a planned cemetery site on the edge of the built-up area in Delft. Thus, Delft TRA was born.

Life in Delft TRAs

A March 2007 survey conducted by DAG entitled Living on the Edge: A Study of the Delft Temporary Relocation Area concluded that 63% of respondents were unhappy about living in the TRA, mainly due to being on the periphery of the city and the resulting high transport costs, as well as dissatisfaction with the TRA structures summed up by one resident as “being very cold during winter, very small and, above all, they are not safe.” Further, people talked about their social and economic networks being severely disrupted; service provision lacking (poor maintenance of ablution blocks, lack of electricity, dissatisfied with access to water and washing facilities, refuse removal); overcrowding; tension with existing backyarders in Delft; loss of jobs as a result of the move (due to high cost of transport, lateness for work) and less opportunity to look for informal work; the need to spend money and time on their so-called ‘temporary shelter’; and unhappiness with levels of crime in Delft.

In its recommendations, DAG cited the importance of location and the enormous impact it has on households’ income and expenditure and on their social networks. It stressed that the impact of relocation needs to be analysed carefully before decisions are made as it can leave people worse off, even if some of their living conditions are improved as a result. Apart from the socio-economic impact of the move on households, the survey also highlighted the potential burden on the government to provide a larger social safety net and to mitigate the social problems caused by the relocation to a peripheral area like Delft. Indeed, the mitigation measures handed down by the Constitutional Court, particularly their ordering “the provision of transport facilities to the affected residents from the temporary residential accommodation units to amenities, including schools, health facilities and places of work”, speak to this.

The survey points to how the burden on the state to provide a social safety net often increases due to relocation, particularly as “living in relative isolation in areas such as Delft can give rise to an increase in the occurrence and variety of social problems, which in turn can create high levels of social instability. This instability is already evident in greater Delft, and although government carries the cost in its expenditure on, for example, crime prevention, the social cost is also borne by the households who live in these areas.”

There has always been the fear that Delft TRAs would become permanent accommodation for those removed from Joe Slovo to Delft and who do not qualify for housing subsidies. Gerald Adlard, who administered the N2 Gateway project for the Western Cape provincial department of housing in 2006, stated in his affidavit for the applicants that it is precisely for these particular people that an upgrading project, such as could have been provided at Joe Slovo, should have occurred. He further stated that “TRAs are meant to provide emergency housing for disasters, such as fires and floods, not accommodation for the poor so that the land that they occupied can be provided for the better-off.”

And what about those who relocated from Joe Slovo over three years ago to Delft? Many are still living in dire conditions in shacks in the Tsunami TRA, watching houses being built across the road and waiting for one to be eventually allocated to them.

Politicking vs. progressive realisation of housing

Another important point that should not be sidelined is that of the deeply political bent of the project. N2 Gateway came to its zenith during the period when the DA controlled the City and the ANC controlled the Western Cape province. The project has been as much about political campaigning and mud-slinging as it has been about low-cost housing delivery.

The fact is that there are thousands of people living in backyard shacks in and around Delft who qualify for government houses, and who have been living in the surrounds as long as Joe Slovo residents have been at Joe Slovo. Allocation of houses should have been based on meeting a housing demand and need that existed on the ground, not playing around with percentages that favoured particular political constituencies or showed up rival political parties. There continue to be families living along Symphony Way in Delft who were evicted from N2 Gateway houses that they occupied in protest of the project and its flawed allocation process. They refuse to move to TRAs for many of the same reasons Joe Slovo residents do not want to move there, and now face eviction by the City.

It is common knowledge that the DA pulled out of, and has repeatedly slammed, the N2 Gateway project in the past. It is going to be very interesting to see how the former ANC-led provincial government, who played largely a monitoring and allocation role in the project, and who recently became DA, are going to respond to the judgment.

The end cannot justify the means

Indeed, Joe Slovo residents’ only ‘mistake’ has been to access well-located land in the city and build shacks there, in the context of a massive housing backlog and the continued legacy of apartheid spatial planning. The irony (unfortunately more common and malevolent than the Court appreciates) is that this mass eviction is part of a low-cost housing development being implemented by government, ostensibly to provide poor people with housing. This cannot and should not serve as simple justification for its manifold failures. If a golf estate was to be built on Joe Slovo informal settlement would the Court have even entertained the thought of a mass eviction? Highly unlikely.

N2 Gateway to date at Joe Slovo – a farce

The reality is that Phase 1 of N2 Gateway has resulted in very poorly constructed rental units built at Joe Slovo, which have turned out to be unaffordable to the low-income bracket. According to the Auditor-General’s report, “although the average income of households in the region was approximately R1 200 per month according to the earlier versions of the business plan and communities had raised their concern regarding affordability, the actual tenant profile indicated that the income of 99,6% of the current tenants ranged from R1 500 to R7 500 per month.” Since mid-2007, Phase 1 tenants have been on a rent boycott as they claim no one is willing to address their concerns over unacceptable rent increases and poor living conditions in the flats. The Auditor-General’s report also revealed that despite the R40 000 per unit overrun, there were problems with the units including cracks, doors not fitted properly, uncovered drainpipes and blocked drains. Apparently, the certificate of completion for the building contract was erroneously issued.

Phase 2 consists of ‘affordable bond’ houses, which are distinctly unaffordable to Joe Slovo residents, as well as what Thubelisha refers to as a “show village” of subsidised BNG houses. Standing in Joe Slovo settlement, looking next-door at what has been built already as part of N2 Gateway, the only logical conclusion would be: “hold on, there is no way this is project is going to benefit me and I am far better off here in my shack than living in extended limbo in a shack in Delft.”

One of the Court’s mitigating measures, which stipulated that 70% of BNG houses to be built at Joe Slovo must be allocated to current or former Joe Slovo residents, cynically leaves one phrase ringing in my head – 70% of nothing, is nothing. Indeed, even if the 1500 BNG houses were built on the site (and Thubelisha has two weeks to inform the Court if this is still the case), this would only mean that 1050 would be allocated to Joe Slovo residents. There are over 4000 households currently living at Joe Slovo.

Going forward?

It remains to be seen how the engagement process, as outlined in the order, will play itself out and if the parties can engage productively and come to an agreement. Given the reality of the project and the Court’s exhaustive mitigating provisions, it appears unlikely that the eviction can go ahead as envisioned. However, while this inability to effect the eviction order would probably be a blessing for Joe Slovo residents (not least because the inability will be expressed by them in the ‘meaningful engagement’ process), it does not vindicate the Court’s judgment(s), which remains technical, cowardly and naïve in the face of the obvious.

Kate Tissington is a researcher at the Centre for Applied Legal Studies (CALS) at Wits University. She writes in her personal capacity.

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