Evictions that took place at the Alberts Farm Conservancy (AFC) on 30 August have received significant media coverage. As one of the attorneys of record on the matter, I am grateful for the media coverage, but it has also drawn to the fore numerous points of concern.

Read more in Daily Maverick: “Police move in on homeless people in Alberts Farm Conservancy despite court order”

Apart from the state’s sheer disregard for fundamental responsibilities and rights, the use of disproportionate force and the indignity that human beings were made to endure, the point that has concerned me the most is that people are, quite simply, missing the point.

On 30 August the City of Johannesburg Metropolitan Municipality (CoJ), the Johannesburg Metropolitan Police Department (JMPD), and the South African Police Service (SAPS) — all state institutions constitutionally established for the benefit of society — together with Mafoko Security Services, a private security company, arrived at the AFC to evict some of the people who had taken up residence there. These entities proceeded to evict occupiers, demolish their dwellings, often violently, and failed to adequately account for any of their conduct.

This came after an interdict against the CoJ, JMPD, and other state entities from such similar conduct was granted on 24 November 2021 by the high court because the CoJ and its institutions had performed similar evictions on 13 August 2021. 

So why does any of this matter? Why should we care that persons unlawfully residing in a public space are forcibly removed by instruments of the state?

This is what I refer to when I suggest that people are missing the point.

For purposes of this writing, I shall not focus on the rights violations which occupiers of AFC were made to suffer. My peers and colleagues have already covered this element extensively.

Read more in Daily Maverick: “Alberts Farm evictions: City of Joburg and Chief of Police acted unlawfully”

Instead, I want to focus on the powers at play on the day and why their conduct is of such concern.  

The simple answer to the questions posed above is this: we should care because state institutions acting in an unlawful manner, without any kind of oversight in circumstances where the application of force is the means to achieve an unlawful purpose, is troubling to a constitutional democracy.

South Africa is a constitutional democracy in which the Constitution of the Republic of South Africa, 1996 is the supreme law. Any conduct or law inconsistent therewith is invalid. The state must respect, promote, and fulfil the rights contained in the Bill of Rights. The Bill of Rights binds all law, all spheres of government, and all organs of state. The Constitution was drafted as a direct response to the injustices perpetuated by the supreme executive authority which blighted South African history.

The CoJ is a municipality, a local sphere of government, which has as its purpose, among others, accountable governance for local communities. The CoJ is bound by the Constitution and serves at the pleasure of the people. Put simply, the CoJ’s purpose is the empowerment of persons, to make their lives better, not suppression. The CoJ is certainly not lawfully permitted to circumvent due process and the rule of law in the achievement of its constitutional mandate. 

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Given that the CoJ is established by the Constitution (see Chapter 7 on local government), it is reasonable to presume that it knows, or at very least ought to know, of its constitutional imperatives. Thus, any violation of these constitutional imperatives is either intentional or, generously, negligent.

Given that the high court handed down a final interdict against the CoJ in 2021, the CoJ at this stage must have known that it was acting in violation of its constitutional imperatives and the law. Similarly, all bodies which draw any authority from the CoJ must also have known of the unlawfulness of their conduct. Yet, it, and the bodies serving it, violated these imperatives once again on 30 August.

In this regard, the CoJ did not act as an elected body for the benefit of its people. The CoJ acted as an executive force that did its business outside of the law and its mandate. The CoJ did these unlawful things to achieve an unlawful purpose. The CoJ in this regard did not act as an elected representative body but of its own unlawful volition to violate the Constitution and the rule of law.  

The constitutional purpose of the police

The CoJ has under its control numerous other institutions that it may utilise in the achievement of its objectives. One such institution is the JMPD, a metropolitan police department. The JMPD was a party to the 2021 unlawful evictions and thus, also knew that it was acting unlawfully.

The constitutional objectives of the police service (read them here), which includes the JMPD and SAPS, are to prevent, combat and investigate crime, to maintain public order, to protect and secure the inhabitants of the republic and their property, and to uphold and enforce the law. Accordingly, similarly to the CoJ, the police services are established for the benefit of society and the JMPD is established to assist the CoJ in achieving its purposes through law enforcement.

The SAPS, like the JMPD, is a police service but in the national sphere. Its constitutional imperatives are the same as those of the JMPD but with broader jurisdiction and powers, and its conduct is thus arguably subject to a greater degree of scrutiny.

Mafoko is distinct from the other three entities mentioned above in that it is a private company. Mafoko thus does not have any constitutional obligation to act positively, merely to not negatively impinge upon the fundamental rights of others. The conduct of Mafoko in and of itself, while unsettling, is not particularly concerning. What is certainly of concern is that state institutions made use of private entities to achieve a purpose directly in contravention of their constitutional mandates.

The entire matter can thus be briefly summarised as follows: state institutions, which are held to a constitutionally mandated high standard, acted unlawfully to achieve an unlawful purpose. The state acted in contravention not only outside of the ambit of numerous pieces of legislation but also the Constitution directly when it evicted people from their homes without a court order.

As South Africans, we appear to largely be dissatisfied with the state of government and government institutions. One need only have regard to the Zondo Commission and the resulting maelstrom of media coverage and public discourse to evidence this fact. Couple this with the fact that governments, internationally and historically, have needed to have their powers limited to ensure they do not perpetuate a “might is right” status quo, and it becomes apparent that we ought not to trust the government or its bodies at face value.

The real concern is, what status quo is our government protecting and what happens when it shifts? To what extent will the very institutions established to promote and protect the fundamental rights of human beings violate these very rights to achieve an ulterior or unlawful purpose in furtherance of their interests? In this regard, the argument of “the ends justifying the means” is wholly inadequate.

South Africa has, unfortunately, proven that its executive structures cannot be trusted to serve the people and that a degree of judicial oversight is necessary to not only ensure that they serve at all but to avoid these structures from outrightly violating society. Accountability is imperative for the republic.

I do not advocate that people should be entitled to take up residence in public spaces. I do, however, firmly believe that these people should not be removed without notice, under threat of violence, and with nowhere to go at the sole discretion of the very state which is duty bound to protect them. I believe that the state should serve and be accountable to the people under the scrutiny of our courts.

At the very least, I expect the state to adhere to the rule of law. If it does not, then there truly is no limit to executive authority and we are on a dangerous path to repeating the mistakes of our pre-constitutional past.

Justification and legitimacy are mutually exclusive. This is the point. DM/MC

Marco Lemmer Da Silva Almeida is an attorney at Kropman Attorneys and a Johannesburg native.