Analysis: Landmark judgment – what constitutes a home?
On Thursday, the Cape High Court ruled in favour of the Marikana occupiers and instructed the City of Cape Town to rebuild the homes they 'unconstitutionally and unlawfully' destroyed on 7 and 8 January. The importance of this landmark ruling, if it is upheld, cannot be overstated. Its impact will reverberate in municipalities throughout the country. Anti-Land Invasion units beware: your operations have now been judged illegal. By JARED SACKS.
The City of Cape Town's official guidelines for the Anti-Land Invasion unit (ALI) defines a 'home' in negative terms:
A structure is not a 'home' until it has been inhabited by a person or persons who reside in the structure with their belongings and intend to continue doing so.
This is a simple, technical, if still somewhat vague, definition that it is essential to the day-to-day workings of this well-funded unit of Law Enforcement. Still, it is more descriptive than a generic dictionary definition. See for instance the Oxford Dictionaries' definition: the place where one lives permanently, especially as a member of a family or household.
Its also well ahead of the South African Constitution and the Prevention of Illegal Eviction (PIE) act of 1995 – both documents reference the term but fail to define it. Neither has it been adequately defined in terms of South African court rulings. Thus, yesterday's ruling by Judge Gamble in the counter-application between the Marikana settlement residents and the City of Cape Town has set a major precedent for future eviction cases.
Photo taken by the Anti-Land Invasion unit to document their demolition of a home in the Marikana settlement.
'The Meaning of Home'
What does the ALI's definition tell us about the social, economic and political relevance of a 'home'? Not all that much.
For such an understanding, we must look elsewhere. A good place to start might be in the book And Our Faces, My Heart, Brief as Photos by British novelist, poet and social historian John Berger. In his passage “The Meaning of Home”, let us focus on his interpretation of the work of the Romanian philosopher Mircea Eliade:
Originally home meant the center of the world--not in a geographical, but in an ontological sense. Mircea Eliade has demonstrated how home was the place from which the world could be founded. A home was established, as he says, "at the heart of the real." In traditional societies, everything that made sense of the world was real; the surrounding chaos existed and was threatening, but it was threatening because it was unreal. Without a home at the center of the real, one was not only shelterless, but also lost in nonbeing, in unreality. Without a home everything was fragmentation. [emphasis added]
In other words, the term “home” does not only have a technical definition, it also has a key social function based on one's lived experience. A person without a home is 'a non-being' or in a legal and constitutional sense, a person deprived not only of her/his citizenship, but also of her/his human dignity as well.
Photo taken by the Anti-Land Invasion unit to document their demolition of a home in Marikana settlement.
Anyone evicted from her/his home at some point in one's life can probably recognise the universality of such a definition and how it is an essential basis for achieving the core rights laid out in South Africa's Constitution.
For instance, in the first founding provision of the Constitution, Section 1(a), the right to human dignity is mentioned before all other rights and freedoms. Human dignity is also the second right (after equality) in the entire Bill of Rights (Section 10). Such provisions are essential to the interpretation and function of the rest of the document. So while the Constitution may fail to directly explain what constitutes a home, a social definition of the word clearly incorporates rights well beyond the physical right to housing as defined in Section 26 of the Constitution.
The legal arguments
The question then is whether or not such an extended definition that includes the social meaning of a home can be accepted in a court of law. This is the question that Sheldon Magardie, Legal Resource Centre attorney for the Marikana community, has asked the court to consider in their counter-application demanding that the City of Cape Town rebuild the counter-applicant's 49 'structures' that they destroyed on the 7th and 8th of January.