Opinionista Helen Zille 7 May 2018

From the Inside: It’s time for a test case on Expropriation Without Compensation

When the radio experts talk about the need for a “quick resolution” of the land issue, it may be useful to keep some of the complexities in mind, and go beyond the platitudes to offer some concrete solutions in real-life situations.

When one knows a lot about a complex situation, it can be infuriating to listen to radio commentary about it.

On Thursday morning, after a night of intermittent sleep, I was leaving the scene of a protest where a man had died only hours earlier.

The police platoon, who had had no sleep at all, patrolled the busy thoroughfare littered with the detritus of violence – empty bullet casings, shattered infrastructure, and the scarred tar that permanently marks the spot where a barrier of burning rubber once blocked a road.

Jakes Gerwel Drive divides two communities – the shack settlement of isiQalo and the formal suburb of Colorado, Mitchells Plain – that co-exist in a state of permanent tension, interrupted by episodes of open conflict. The situation is symbolic of the challenges that accompany rapid urbanisation and illegal land occupation in major urban centres across South Africa.

As I left the scene, en route for a meeting with community leaders from both sides of the road, I switched on the car radio. The previous night’s events, referred to as “service delivery protests”, dominated the talk-show. A well-known analyst was commenting.

“It’s a sad situation”, he opined “because obviously, we’ve got to resolve it.  The services have to be provided.”

If only things were that simple. They never are.

The isiQalo crisis began in 2012 with the occupation of two privately-owned farms (I’ll call them Farm A and Farm B) along the edge of the Philippi Horticultural area, to the South of Mitchells Plain.

Within weeks, an estimated 6,000 people had settled on the site, much to the anger of the residents on the opposite side of the road who, like homeowners everywhere, worry about their property values and living environment.

As the shack dwellers demanded services, using the tried-and-tested method of blocking a major thoroughfare, the residents of the formal suburb became increasingly enraged at the repeated traffic disruptions and destruction of property, and demanded the relocation of their new neighbours.

Before long, both sides were furious with government, while each accused the police of being biased against them.

So why doesn’t the City, as the commentator suggested, just “handle this situation very quickly”?

Why not just provide services. Or offer the shack dwellers an alternative place to stay?

First, the City has delivered basic services – water and chemical toilets – primarily on the perimeter of the site, due to legal restrictions preventing state infrastructure installation on privately-owned land. In addition, the City has distributed portable flush toilets to almost every shack across the settlement, and pays a stipend to residents employed in a refuse removal scheme that links into the City’s waste disposal service.

Meanwhile, the provision of each new service elicits suspicion and anger from the residents across the road, who regard this as an indicator of the recognition of a permanent settlement.

Last week’s isiQalo protest was primarily about electricity, the service most in demand.

It followed the City’s failed attempt to negotiate access to Farm B, through a servitude, in order to install high mast lighting to improve safety in isiQalo. Mr B refused access, because he has another agenda.

He is not interested in selling or leasing a servitude. He wanted the City to buy the whole property. And according to the inside information given to me, the price tag was reportedly tens of millions of Rand.

This appears to have been his agenda from the start. And he has used the fraught situation to his strategic advantage in trying to achieve that objective.

The background is as follows:

His neighbour, the owner of Farm A, had neglected his land for 16 years. As a result, it was gradually occupied by families from the backyards of Philippi and other settlements, looking for a place to stay.

During these years, Mr B had used his farm for illegal sand-mining. When there was no more sand that could be mined, and the land was effectively useless, Mr B decided to sell. The informal settlement encroachment on the neighbouring farm, and the aftermath of mining activity, made it highly unlikely that he would attract a private buyer.

So, according to an affidavit presented in court papers, Mr B facilitated occupation of his own land, allegedly going so far as to build a ramp onto his property for easy access.

Once Farm B was also occupied, he reckoned, the City would be compelled to buy it in order to provide services to the occupants. When the site was covered in shacks, he offered his farm for sale to the City with a price tag of tens of millions.

Following an inspection of the site, the City declined. The removal of the top layer of soil through mining activity, together with the high water table, had made it impossible to rehabilitate the land and provide services within the available subsidy.

There was another complicating factor. Given the enormous backlog of housing and serviced sites in the face of ongoing rapid urban growth and in-migration, the consequences of enabling people to jump the queue through illegal land occupations are clear. There would no longer be any incentive for people to abide by the law and await their turn. What’s more, there was no way of determining whether the isiQalo residents even qualified for state-subsidised housing.

Both Mr A and B turned to the courts seeking an eviction order, knowing that the City would be compelled, in terms of law, to provide alternative accommodation to the residents. Because this would probably be even more expensive and difficult to achieve, they seemingly surmised that the City would be more likely to purchase their land.

In 2013, the court instructed the province and national government to be joined in the case, and to submit an inventory of all available government-owned sites which might provide alternative land to accommodate the isiQalo community. And it instructed the City to undertake a survey of the isiQalo settlement to determine whether or not the residents qualified, in terms of national government policy, for state-subsidised land and housing.

National and provincial government prepared the inventory, as instructed. However, the City’s initial attempt, shortly after the occupation, to gather the necessary information about the residents of isiQalo failed, because there was significant resistance to providing their identification (ID) numbers. This information is essential to establish a person’s age, citizenship status, whether they are registered on the housing database, and whether they have previously benefited from state-sponsored housing.

I have not had access to the survey the Legal Resources Centre has subsequently undertaken. However, the initial refusal to co-operate with the survey reinforced the belief that many of the isiQalo residents fall into one of the non-qualifying categories, which would have made it unlawful for the City to offer them alternative state-subsidised accommodation.

No one can dispute the fact that it would be patently unfair if people who had previously been allocated a free house or serviced site – only to sell or let it for additional income (a common occurrence) – used a crisis situation to benefit a second time.

What’s more, it is national government policy to prioritise older people on the waiting list. Anecdotal evidence (bolstered by the refusal to supply the necessary information) is that many isiQalo residents are young, and would not qualify on at least one of the policy criteria.

What about the possibility of emergency housing? This raises the question of which situations qualify as an emergency. And, in any event, should all qualifying criteria be waived in such circumstances?

Emergency housing is temporary housing, offered to victims of major shack fires, or floods, or when people are temporarily moved out of their homes so that the site on which they are living can be serviced, before they return. Emergency housing is not used for permanent accommodation, so this option would solve nothing.

What’s more, extending the provision of scarce and costly “emergency accommodation” to those illegally occupying land would establish yet another unsustainable precedent, with perverse incentives that would render the housing allocation process impossible to manage.

So, what is to be done?

The court has not yet ruled. But contemplating all the issues at stake, I have come to a conclusion that this case is ripe for a test-case of expropriation without compensation.

This could easily be achieved within the terms of our existing Constitution. There would be no need to change a word of it.

The Constitution’s property clause (Section 25) stipulates that the amount of compensation payable in the event of expropriation must be just and equitable, reflecting an equitable balance between the public interest and the interests of those affected having regard to all relevant circumstances, including:

a) The current use of the property;

b) The history of the acquisition and use of the property;

c) The market value of the property…

d) The purpose of the expropriation.

In terms of all these considerations, it is quite conceivable that a reasonable court could find that the “just and equitable” amount payable would be R0,00.

The reasons are as follows: the current use of the property, to land owner B, is zero. He has depleted it (and made a lot of money) through illegal mining – the purpose for which it was originally acquired and unlawfully used – and which has rendered it unsuitable for other purposes; the market value of the property is therefore also zero, because there are no willing buyers on the open market.

The purpose of the expropriation would be to protect the housing allocation process, for which hundreds of thousands of people are patiently awaiting their turn. And, while it would allow the provision of rudimentary services, it would not sustain the perverse incentive to land-owners to encourage occupation of their land in order to force the state to buy it, while enabling unqualifying beneficiaries to jump the housing queue.

But even expropriation without compensation would not provide a permanent solution – either to the people of isiQalo or to the community of Mitchells Plain.

The site is totally unsuitable for permanent habitation, and it is also unfair to expect the neighbouring community of Mitchells Plain to face the manifold consequences of this unsatisfactory situation.

The provincial minister of housing, Bonginkosi Madikizela, has found a way of accommodating the residents of isiQalo, over the medium term, into the pipeline of priority housing projects in the Southern Corridor, where the extensive building programme can be observed by anyone driving along the N2. But in order to qualify, the isiQalo residents cannot be exempted from the provisions of national housing policy. They will have to be willing to provide their ID numbers in order for the City to check their age, citizenship status, and whether they have benefited from a house or serviced site before. There is no way around this.

So next time, when the radio experts talk about the need for a “quick resolution” of the land issue, it may be useful to keep some of the complexities in mind, and go beyond the platitudes to offer some concrete solutions in real-life situations.

Because the harder I apply my mind, the less obvious quick-fix solutions appear to me. DM

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