Judge Chantal Fortuin’s ruling on the land rights issue in Marikana, Philippi, has been defined as a watershed judgment; a breakthrough for the poor. Yet, as with many defining moments in law, it begs as many questions as answers.
On 30 August, Judge Chantal Fortuin upheld an application brought by three private landowners against the City of Cape Town to buy land they own, that was occupied during a particularly violent episode in Philippi, Cape Town, in 2013.
The occupiers named the site Marikana, even though (unlike the original Marikana) the police retreated to avoid injury and loss of life as rocks flew and petrol bombs exploded. Tragedy would have been inevitable had police retaliated with sufficient force to prevent the invasion. Fortunately, this did not happen.
Major legal questions were left hanging regarding the rights and responsibilities of all involved – including the hundreds of thousands of law-abiding citizens on the housing waiting list.
The judge addressed one of the key unresolved issues by ordering the City to enter into negotiations with the landowners to purchase their occupied land. If the price cannot be resolved through negotiation, the City must expropriate the land. If the City does not have the money to do so, the national and/or provincial government must pay.
The judge also found the police had failed to prevent the invasion, thereby violating the property rights of the landowners.
The bottom line of the judgment is that government must carry the can for land invasions. Even if the police cannot always prevent the invasion of large, unfenced, privately owned sites (as the judge concedes), once such a site has been occupied, government has a duty to purchase and service the land for settlement.
It was not surprising that within days of this judgment several other major land invasions had begun, from Endlovini on the outskirts of Khayelitsha to Gansbaai in the Overstrand.
And a warning emanated from Minister of Housing Lindiwe Sisulu, who was quoted as saying: “Property owners have a responsibility to ensure that their properties are guarded. When they see illegal occupations taking place they must act immediately and report it to law-enforcement agencies. I will be meeting with property owners to indicate my views about this. Municipalities and law-enforcement agencies must take action immediately when cases of illegal occupation have been reported,” she said.
Local municipalities and the police had also heard the court’s message. Over 700 new structures were demolished at the sites of the new land occupations, before they could be considered, in law, to have been “occupied”.
Once this brief time period of about 36 hours has lapsed, a dwelling cannot be dismantled without a court order, which (if granted) requires the local authority to provide alternative accommodation to the occupants. The latest judgment confirms this position – even after a violent invasion of privately owned land and despite the fact that land-owners made a concerted effort (excluding force) to prevent it.
In future, the police will have to do a lot more to protect private property rights – despite the attendant risk of injury and even death that inevitably arise during these confrontations.
The judgment will have several other unintended consequences. It will encourage a tendency we have already identified, for landowners who are unable to sell their land (for example after its depletion by sand-mining) to facilitate a land invasion. In that way they can force the government to purchase their land – despite having failed to find a buyer in the open market.
There is no shortage of opportunism of every stripe. For example, in the Endlovini occupation, the ANC councillor for the area, Anele Gabuza, observed: “At first it was desperate people who stayed there, people who really didn’t have houses, but now that is not the case. People are just taking advantage. It is the same people who cause violence as they end up being homeless as their shacks are dismantled. We are asking where they were staying before?”
This is an important question. According to a survey undertaken in the Marikana case, many of the land invaders had come from backyard dwellings, and were tired of paying rent. Occupying land is a way of avoiding payment for housing or services, which are increasingly being regarded as “free rights” that government has a duty to provide. This judgment will reinforce this perception.
Then there are the self-styled “chiefs” who sell plots on invaded land. In one case, the first structure to be erected on the site was an “office” with a sign on the door, where “land deals” could be negotiated and concluded.
The combination of all these factors raises the question of whether and how it will be possible, in future, to maintain a fair and legal allocation of sites and housing opportunities, particularly now that a court has effectively condoned queue-jumping through violent land occupations, replete with rock-throwing and petrol bombs (as happened at Marikana).
There are other major concerns arising from the judgment, such as the failure to distinguish between the legally defined roles (both in policing and housing delivery) of different spheres of government. This confusion must be clarified, possibly through an appeal process.
A sphere of government cannot be held accountable for failing to exercise a power it does not legally have. A clear example is policing: the provincial government has an oversight role only, without any operational control over the SAPS. Yet the judgment holds the provincial Minister of Community Safety, Dan Plato, responsible for the police’s failure to protect the landowners’ property rights.
Many people have asked me why government cannot “get ahead” of the urbanisation wave, at least as far as the provision of serviced sites is concerned. I sympathise with this question.
The answer is multifaceted, but a part of it lies in the inordinate complexity of the regulatory process governing the release and servicing of land. Years of work (including impact assessments, rezoning, public participation, planning etc) must precede even the first sod-turning – by which time the property may already be invaded, with all the attendant problems and conflicts that result.
“Human settlements” (as the housing portfolio is now known) is arguably the most complex policy arena in government, fraught with trade-offs and contradictions and overlapping government mandates.
While everyone agrees that government has a role to play in making housing opportunities more accessible and affordable for indigent and low-income people, it is very difficult to define precisely what that role should be, and what is fiscally sustainable.
It is judgments like this that force the difficult questions onto the table, and make government apply its mind to the trade-offs required. Local government, in particular, is on the line, where the policy of providing free basic services is becoming unsustainable, given a stagnant rates base and escalating demand.
And as we try to make services accessible and affordable, higher densities across the city become inevitable and essential. A successful densification policy requires a culture of payment for housing and services, which has slowly been eroded over the past few decades.
Of all the challenges that lie ahead, the culture of non-payment is one of the greatest, and one that the government is least capable of resolving. The Marikana judgment will make it more difficult to solve, but impossible to ignore. DM