Opinionista Helen Zille 11 November 2018

From the Inside: Few things are more complicated than an acrimonious political divorce

If we are serious about developing well-located affordable housing, we should look at the real obstacles to this imperative. This is not the DA – quite the opposite. It is the many people who cut corners with the law, either to skip critical steps in the process or ignore it altogether by encouraging land invasions.

Breaking up is hard to do, sang Neil Sedaka in his 1960s hit song, composed in the format of the time, complete with nonsensical background lyrics.

Comma, comma, down dooby doo down down
Comma, comma, down dooby doo down down
Breaking up is hard to do…

This incomprehensible combination of vowels and consonants may aptly describe a teenage bust-up. But it falls short in more complex circumstances.

Few things are more complicated than an acrimonious political divorce.

One moment someone is running as a candidate for a leadership position in a party; the next, they are publicly denigrating the very people whose support they sought, and vilifying the platform they faithfully promised to promote.

Small wonder that voters get cynical about politicians.

By the time the dust settles, most observers have already drawn a conclusion consistent with their pre-existing narrative. In the DA’s case, it is the tired trope that we are “racist”.

The recent bust-up in the DA’s caucus in the City of Cape Town is a case in point.Many observers have concluded that it was (at least in part) the result of opposition, by some DA councillors, to the development of affordable inner-city housing.

I was just as distressed as anyone when I heard that the council had postponed the decision to sell 13 erven, collectively known as the Salt River market site, to the social housing company Communicare, for a development which will comprise 33% social (rental) accommodation for families earning below R15,000 a month.

If we can pull it off, this project will indeed be a game-changer in the city.

So I asked a lot of questions and did a lot of digging to establish exactly what happened at the council meeting of 25 October and why the agreement to dispose of the property was postponed.

I have concluded that this was not the result of anyone in the DA caucus trying to stop the development, nor to prevent affordable housing in the inner city.Every one of us wants the project (and many more) to go ahead.

There were three main reasons the DA caucus decided to postpone, by about six weeks, the approval of the sale.

The first was the crucial question as to why the proposed development will not include more social housing, especially as Communicare will buy the site at a mere 10% of its market value, a benefit intended to reduce the cost of the housing for the end user. Given this huge discount, the councillors wanted to know: Was a 33% component of social housing sufficient, especially when measured against the remaining profitable market residential and retail opportunities in the development?

Second, there is an important question relating to the land valuation.Contrary to some statements this question had not been resolved beforehand, because the documents before the council contained two valuations for the 1.4ha site. The first, dated 2014, was for R18-million.The other, done this year, was R114-million, because it factored in the intended bulk of the proposed development. The councillors needed a rational basis to determine whether the land should be sold to Communicare for R1.8-million or R11.4-million — a substantial difference.

This is not an optional calculation.The law requires the council to meet benchmarks of rationality and fair value.So the councillors resolved to wait another six weeks to get the required information before taking a decision.

The third reason related to Communicare itself. During the very week of the council meeting there were media reports that eight staff members were being investigated for alleged corruption, raising a host of questions about the company’s management of its social housing portfolio.Due diligence necessitated further investigation.

The necessity of resolving these questions has been underscored by the fact that three other inner-city housing developments have already been stopped by the courts, including the landmark Foreshore freeway project, after procedural and other problems were identified.

Once there is a court challenge on any aspect of a development, it usually takes about five years to resolve.That five-year delay is then added on to the routine three-year cycle required to complete the preparatory planning processes (assuming all goes according to schedule). This is the reason so many of our priority projects take at least eight years of preparatory work and problem resolution before we put the first spade in the ground.

When it comes to property development in our complex legal environment I have learnt that speed kills.We need to move as slowly as necessary in order to proceed as fast as possible.

And the councillors, in this instance, decided that waiting another six weeks for answers to their questions was preferable to creating conditions for an almost certain court challenge.

That seemed a sensible trade-off under the circumstances. Especially as a long delay occasioned by a five-year court challenge would almost inevitably result in yet another land invasion which would rule out any prospect of the site being used for orderly development in the interests of law-abiding and qualifying beneficiaries.

A land invasion is inevitably governed by the law of the jungle, where might is right. It is hardly surprising that so many settlements initiated by land invasions become “law-free” zones, with rival “big-men” engaged in constant internecine contestation over power to exercise control and extract “rents” from their right-less followers.

We are currently trying to deal with two land invasions on prime inner-city sites: the Helen Bowden Nurses’ Home near the Waterfront and the old Woodstock Hospital.

These prime spaces, which are intended for affordable housing to accommodate needy and qualifying beneficiaries, were occupied on the back of false promises made by “social justice activists” pursuing their own agenda. They told people (irrespective of their status on the waiting list or the qualifying criteria for state housing support) that if they occupied these buildings they would be in pole position for state accommodation in the central city

Now that these hapless individuals are beginning to realise they are being used as pawns in a wider agenda, the situation is rapidly deteriorating and becoming ungovernable.Before long, such “communities” become magnets for criminals, drug dealers and other social pathologies.

And of course the actual delivery of affordable housing to qualifying beneficiaries is delayed indefinitely.

Contrary to what many believe, the development of affordable housing in the city, and especially on well-located land, is not merely, or even primarily, a question of political will.We have that in abundance.

It is a question of navigating the minefield of legal compliance in order not to end up in court — which destroys any hope of “rapid” (or affordable) delivery. And, also, to prevent land invasions during this interminable process.

Any major property development — especially those that require government and market cross-subsidisation to make the resultant product affordable to people of modest incomes — must traverse a legislative minefield to obtain the required “basket of rights” before building can start.

There are about nine different project streams (each with its own tributaries), involving countless delivery chains, requiring hundreds of decisions made by scores of officials, crossing three spheres of government, each with its own legal obligations, in order to comply with the requirements of a “clean audit”.

Depending on the permutations of each project, it includes:

  • A physical planning process;
  • A zoning process;
  • An environmental process;
  • A heritage process;
  • A traffic and parking process;
  • A finance-marshalling process (if government subsidies are required);
  • A political approval process;
  • A land disposal process; and
  • A whole range of procurement processes at every step of the way.

A further complicating factor is that each work-stream is governed by different sets of laws and regulations, replete with court precedents — resulting in different (and sometimes contradictory) legal opinions — that have to be taken into account.

And at least six of these work-streams requires a separate, sequential public participation process, that must follow a precise order, within prescribed time frames, from advertising, to public hearings, to analysis, consideration and conclusion.

We have learnt to follow all these streams meticulously, (which means slowly), to avoid a situation where the inevitable objector (there always is at least one) can find a simple technical point to hold up the process in court, until (they hope) the whole project just dies.

In the field of urban development, the rule of law quickly degenerates into the rule of lawyers.

And while law-abiding citizens and officials try to comply with the complex legal framework, it is often instantly nullified by a land-invasion.

Illegal land occupation ironically seems to suspend the law. It creates a legal hiatus where the law appears irrelevant. Once people have established themselves on a site (that is, slept in a hastily constructed structure) the law starts functioning again — to protect the occupiers.Those who broke the law are suddenly imbued with a whole new set of rights which makes them untouchable. They cannot be evicted without a court order.

And if they can demonstrate that they would be homeless if evicted, the local authority is obliged to provide them emergency housing — ahead of all the law-abiding citizens waiting for the development project to run its normal course.

If the provision of “emergency housing” is impossible, given the non-availability of land and the competing demands for it, the invaders stay put and start demanding services and formal housing where they are.

This cycle destroys any incentive that people may have to pursue an orderly process within the law to obtain a place to live. This is also how de facto expropriation-without-compensation currently works in South Africa.

But in government, we have to follow legal process, to the last letter.This is especially crucial with affordable inner-city housing, because there are pockets of strong opposition from vested interests, who have the resources to hire the best lawyers to find any tiny technical point to halt the whole process.

Having examined the situation in detail, I have little doubt that it was essential to take a step backwards on the Salt River Project in order to avoid being tripped up further down the line.

If we are serious about developing well-located affordable housing, we should look at the real obstacles to this imperative.This is not the DA — quite the opposite. It is the many people who cut corners with the law, either to skip critical steps in the process or ignore it altogether by encouraging land invasions.

But the fundamental problem is the complexity of the legal and regulatory environment that governs the nine work-streams I have listed. This red-tape forest makes it easier to break the law than abide by it.

At the start of my term as Premier, I submitted a full document of all the laws and regulations that inhibit development, to President Zuma. In his normal, charming way, he undertook to do something about it.

He never did.I never expected him to.

But I do now expect the Salt River Development to move ahead, as quickly as possible, and within the current legal dispensation, hopefully without a court challenge. I will certainly be keeping a close eye on it.

It will take long enough, even if everything runs smoothly.

Perhaps, one day, in the comfort of a retirement village somewhere, I will receive an invitation from some future mayor to attend a ribbon-cutting for the newly minted affordable housing scheme, in the magnificent location of Salt River. DM

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