In defense of the Concourt

In recent months the judiciary has come under attack for being anti-transformative. Yet the Constitutional Court’s most recent judgments reveal its true transformative credentials. They also reveal the transformative potential of the judiciary generally. The violent dispossession wrought by colonialism and apartheid left millions of people without secure access to land. We continue to struggle with this legacy 17 years into our democracy.

On the best estimates we have, at least 7 million people live in informal settlements. Thousands more live in derelict buildings in inner cities. Without legal rights to the land they live on, the informally housed are particularly vulnerable to eviction.

In four judgments handed down in the past two weeks, the Concourt has confirmed that evictions that lead to homelessness will not be permitted. They are unlawful and unconstitutional. While the state and private property developers have legitimate interests in possessing and developing land, these interests must be balanced against, and may be limited by, the needs and interests of the poor.

Often, a private property developer will have to wait to take possession of his land until alternative housing can be found for those living on it. This is especially the case where a developer purchases land knowing it to be occupied. This fundamentally subverts the logic of colonialism and apartheid. And it cannot seriously be said that the court that has come to this conclusion is not, at least in some important respects, a transformative court.

But these decisions are important in other respects. They are critical in ensuring that the constitution has meaning for most of SA’s poor people. And they are also important to safeguard SA’s constitutional democracy for us all. If our constitutional democracy serves only the interests of the wealthy, the adequately housed, the well-educated, the healthy and those with sufficient food, water and a healthy environment, it will not survive much longer.

SA is the most unequal society in the world. Internationally, inequality is associated with a range of social ills ranging from high levels of violence and criminality to ill health and low life expectancy. Equality is better for everyone. To survive as a democracy, SA must be a place where nobody wins unless everybody wins.

Consequently, the Concourt must not simply be concerned with respecting the powers and role of the executive in giving effect to the constitution. It must, at the same time, ensure that it remains in touch with, and responsive to, poor people’s struggles for equality and social justice. We see these in increasing “service delivery” protests.

These protests are poorly understood. They are not just about inefficiency, corruption and failure to “deliver services”. They are also about participation, governance and accountability. Communities don’t just protest because they have no services. They protest because they are ignored (and often repressed) when they seek to hold the state accountable for its duty to provide them. They also protest when the goods and services are provided in a repressive, unaccountable manner.

The decisions of Blue Moonlight Properties, Pheko, Mooiplaats and Skurweplaas show that the court is sensitive to these issues – and, by extension, to the claims of the poor and dispossessed to a transformed society. In Blue Moonlight Properties, the court held that the state, and in particular municipalities, must provide shelter to those evicted from private land.

And private landowners must wait until the state can reasonably be expected to do so before they evict people. In this decision, the court establishes an implicit hierarchy of interests. The poor sit at the top of this hierarchy. They cannot be dispossessed unless and until the state acts on its obligations to provide shelter.

And a private landowner’s interests in developing property are temporarily frustrated until this has been achieved. This does not mean that private property is ignored or subverted, as some have claimed. It means that the law responds sensibly to needs of the poor. It means that economic development cannot only benefit the already rich and powerful.

Nor can it ride roughshod over the often meagre claims of the poor and desperate. Blue Moonlight will not end property development, much less urban regeneration in Joburg.

The obligations it imposes and the legal relationships it establishes will simply be factored into the calculations of the state and the private sector in their ordinary course of business. Nor will it impoverish municipalities, as the court made clear that national and provincial government must bear the cost of providing shelter when a municipality cannot.

These principles were affirmed in Mooiplaats and Skurweplaas. In these cases, hundreds of desperately poor people were sought to be evicted as “land invaders”. But the court saw that the “invasion” was, in fact, a desperate act by people who had nowhere else to go.

They occupied private land that was put to no productive use by its owner because they had been evicted by another private property developer. Here, again, the state will provide, and the private owner will get his land back. But not at the expense of the intense suffering that an eviction without alternatives would cause.

In Pheko, the court reaffirmed the need for the state to act lawfully when it does provide services. In that matter, several thousand residents of the Bapsfontein informal settlement had been violently evicted and relocated by the Ekurhuleni Metropolitan Municipality to a transit camp 35km from theirhomes, jobs, schools and existing community networks. All of this was done without a court order in terms of the Disaster Management Act. The municipality argued that it had acted in an emergency to avert disaster.

This was because the land was dolomitic. In any event, the municipality claimed, the transit camp gave the Bapsfontein residents access to a range of basic services they did not have before. But the Bapsfontein land had been dolomitic for more than 20 years. There was no indication that it was getting precipitately worse. In truth, there was neither disaster nor emergency.

Better serviced though the transit camp may have been, it was a vast distance from the community the Bapsfontein residents had known. All of this had been “achieved” with no real consultation, no lawful authority and in affront to the dignity of the Bapsfontein residents.

If SA’s political leaders are looking for a reason that even communities that have been provided with some services still rise up in protest, they need look no further than Bapsfontein.

The Concourt saw the municipality’s stance for what it was: a cynical manipulation of the law to achieve a violent, repressive end. The court declared the municipality’s action unlawful and directed it to provide land and housing to the Bapsfontein residents in the immediate vicinity of their former homes.

The Pheko decision is a testament to the court’s resolve in the face of the naked exercise of power without recourse to law.

The Concourt has played, and will continue to play, an important role in transforming our society. Like any institution, it will make mistakes, it will underachieve and it will frustrate. Despite its spectacular record on the right to housing, we feel that it could have done more to give effect to other socio-economic rights in the constitution – like water and health care – when the opportunities presented themselves. But it has never been, nor does it show indications of becoming, an “anti-transformative” court.

Its role must be debated, analysed and debated again. But the court has, this month, shown itself to be a formidable tool in the hands of those seeking a more just and equal society.

In a time of frustrated expectations, we should take no small degree of pride in it.

Business Day (14 december 2011) - Jackie Dugard is executive director of the Socio-Economic Rights Institute of SA. Kate Tissington is research and advocacy officer at the institute.