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Slumlords? Lawyers? No, Mayor Mashaba, your complaint is against the rule of law itself

Stuart Wilson is the Executve Director at Socio-Economic Rights Institute of South Africa (SERI) - a public interest law centre based in Johannesburg - and a practicing advocate.

What Mayor Mashaba is really criticising is a long line of Constitutional Court and Supreme Court of Appeal decisions – stretching back 16 years. These decisions outlaw evictions that lead to homelessness, and require that the state operate and implement an emergency housing policy.

The Mayor of Johannesburg wants to “get rid” of people who occupy abandoned buildings. These official sentiments are nothing new. Poor people living in the inner city have barely recovered from the City of Johannesburg’s last big idea to expel them: former Mayor Parks Tau’s Operation Clean Sweep, which saw the Joburg Metro Police evict 8,000 informal traders from the inner city streets for a month in 2014.

Former Mayor Parks Tau’s Operation Clean Sweep plan was lawless, brutal, and short-lived. It was roundly condemned and quickly reversed by the Constitutional Court.

The new Mayor does, though, have a fresh take on why poor people live in the inner city – often in substandard housing. The problem, he seems to think, is not poverty, low wages, high housing costs, or the failure of the state to provide public rental housing. The problem, so far as the Mayor is concerned, is “so-called human rights lawyers”, who have “used the courts” to keep people in poor living conditions “to the benefit of slumlords”.

Full disclosure: I am one of those human rights lawyers. I work for SERI, which, together with the Legal Resources Centre and the Centre for Applied Legal Studies (two human rights organisations that fought bravely against apartheid), has been at the forefront of defending the housing rights of the inner city poor.

I’ll also admit that it’s easy to attack lawyers. We’re not a popular bunch.

But Mayor Mashaba’s true complaint is not against “human rights lawyers”. What he is really criticising is a long line of Constitutional Court and Supreme Court of Appeal decisions – stretching back 16 years. These decisions outlaw evictions that lead to homelessness, and require that the state operate and implement an emergency housing policy.

That policy must make sure that people who may be left homeless by eviction are protected with the provision of basic shelter, until better housing becomes available to them – whether provided by the state, or rented or purchased by themselves.

The courts were not duped into making these decisions. Courts are charged with upholding the values of the Constitution, protecting the poor and the vulnerable, and providing concrete case-specific relief to the many people who approach them for redress.

The courts are bound to act fairly, and to hear all sides of a case. The Mayor and the municipality have their own legal team, which is zealous in the defence of their interests. Private property developers, too, are well-served by the legal profession. That poor people use the courts, and that they are served by lawyers, is unremarkable.

What the poor have been able to establish by using the courts to protect themselves against eviction is the most basic of benefits: a small zone of peace and privacy. The comfort and protection of a modest home provides respite from what is often a rough and precarious existence for the inner city poor. Where they are evicted from what they have managed to scrape together for themselves, and where they are unable to find their own alternative, the courts have said that the municipality must provide alternative shelter for them.

This does not mean, as Mayor Mashaba complains, that those evicted from their homes are permitted to “jump the queue”. They are given temporary occupation of the most basic sort: often no more than a bed in a dormitory, with shared washing and cooking facilities.

The “queue” – by which Mayor Mashaba means the RDP housing waiting list – does not, strictly speaking, exist. Housing is not allocated first come, first served. It is allocated by reference to a range of different factors, such as locality, age, income, level of need, number of dependents and so on.

Temporary emergency housing is not at the front of this “queue”. Ownership of a whole house and a surrounding patch of land is. People evicted from inner city buildings seldom, if ever, get this.

So there is no queue, and even if there were, getting evicted is a particularly ineffective way of jumping it.

These details are important because they demonstrate the complexity of the situation that Mayor Mashaba obscures by attacking lawyers who act for the poor. It is these fine details that a court weighs up when deciding cases before it, and in determining who should bear the social costs of inner city renewal.

The courts have decided that the municipality ought to pay its fair share of those costs, by providing the most basic form of accommodation necessary to protect the poorest of its citizens from a life on the streets. The City’s inability to remove poor people from unsafe inner city housing springs from its refusal to provide this accommodation – not from anything the poor, the courts or human rights lawyers have done.

In truth, Mayor Mashaba’s real complaint is not against slumlords, human rights lawyers or the inner city poor. It is against the rule of law itself. It is not appropriate for the leader of South Africa’s biggest municipality to attack the courts. Mayor Mashaba’s job is to respect and obey the courts – not complain about those who turn to them for help. DM

Stuart Wilson is the Executive Director of the Socio-Economic Rights Institute of South Africa (SERI)


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