After being the subject of political violence and shameless slander over the last two weeks, the Abahlali baseMjondolo Movement (AbM) has something to celebrate as the Constitutional Court (CC) today declared the provincial KwaZulu-Natal Elimination and Prevention of Re-emergence of Slums Act (Slums Act) unconstitutional.
Specifically, the CC declared section 16 of the Slums Act is unconstitutional and invalid. This section makes it compulsory for municipalities to institute proceedings for eviction of unlawful occupiers where the owner or person in charge of the land fails to do so within the time prescribed by the MEC. The applicants argued that section 16 of the Slums Act is in violation of section 26(2) of the Constitution in three ways: it precludes meaningful engagement between municipalities and unlawful occupiers; it violates the principle that evictions should be a measure of last resort; and it undermines the precarious tenure of unlawful occupiers by allowing the institution of eviction proceedings while ignoring the procedural safeguards inherent in the PIE Act. Without section 16, the Slums Act is rendered ineffective.
The application in Abahlali baseMjondolo Movement SA and Another v Premier of the Province of KwaZulu-Natal and Others was first brought by AbM and its president, Sibusiso Zikode, in the Durban High Court in February 2008. The case was heard before Tshabalala JP on 6 November 2008. AbM challenged section 16 of the Act specifically, which they contend bypasses the national Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE Act), particularly safeguards in the Act which protect unlawful occupiers from eviction.
Tshabalala JP handed down judgment on 27 January 2009 dismissing the application, finding that the Slums Act was reasonable and not inconsistent with the Constitution or the PIE Act. He congratulated the Province for passing the legislative measures to eradicate slums. This decision was appealed to the CC and the case was heard on 14 May 2009.
In a judgment written by Moseneke DCJ (with all the judges except Yacoob J concurring), he found that “section 16 cannot be reconciled with the national Housing Act and the National Housing Code, both of which have been passed to give effect to section 26(2) of the Constitution” and that the MEC’s power to issue a notice as envisioned in section 16 is “overbroad and irrational”. Moseneke DCJ further found that section 16 is incapable of an interpretation that promotes the ostensible objectives of eliminating and preventing slums and providing adequate housing. He referred to the fact that other provinces were “awaiting guidance from the Court before deciding on similar legislation.” This clarity has now thankfully been restored.
According to Kate Tissington, a researcher at CALS, “the Slums Act equates the elimination of slums with the eviction of people living in them and was intended to make that a much more frequent and easily facilitated occurrence. The core focus of the Act is on facilitating eradication, not in providing adequate housing. While it ostensibly allows government to fast track housing delivery, the Act has the real and pernicious effect of actively encouraging the eviction of unlawful occupiers living in informal settlements and buildings without taking into account their circumstances or the provision of alternative accommodation. There is a lack of acknowledgment that informal settlements and slum conditions are a symptom of a bigger problem in South African cities around well-located land and access to livelihoods.”
The Constitutional Court win affirms AbM’s interpretation of the Act and means that a repressive and constitutionally inconsistent piece of legislation is now inoperable and will not be replicated in other provinces.
The applicants were represented by CALS with Wim Trengove SC, Heidi Barnes and Kirsty McLean as counsel.
Specifically, the CC declared section 16 of the Slums Act is unconstitutional and invalid. This section makes it compulsory for municipalities to institute proceedings for eviction of unlawful occupiers where the owner or person in charge of the land fails to do so within the time prescribed by the MEC. The applicants argued that section 16 of the Slums Act is in violation of section 26(2) of the Constitution in three ways: it precludes meaningful engagement between municipalities and unlawful occupiers; it violates the principle that evictions should be a measure of last resort; and it undermines the precarious tenure of unlawful occupiers by allowing the institution of eviction proceedings while ignoring the procedural safeguards inherent in the PIE Act. Without section 16, the Slums Act is rendered ineffective.
The application in Abahlali baseMjondolo Movement SA and Another v Premier of the Province of KwaZulu-Natal and Others was first brought by AbM and its president, Sibusiso Zikode, in the Durban High Court in February 2008. The case was heard before Tshabalala JP on 6 November 2008. AbM challenged section 16 of the Act specifically, which they contend bypasses the national Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE Act), particularly safeguards in the Act which protect unlawful occupiers from eviction.
Tshabalala JP handed down judgment on 27 January 2009 dismissing the application, finding that the Slums Act was reasonable and not inconsistent with the Constitution or the PIE Act. He congratulated the Province for passing the legislative measures to eradicate slums. This decision was appealed to the CC and the case was heard on 14 May 2009.
In a judgment written by Moseneke DCJ (with all the judges except Yacoob J concurring), he found that “section 16 cannot be reconciled with the national Housing Act and the National Housing Code, both of which have been passed to give effect to section 26(2) of the Constitution” and that the MEC’s power to issue a notice as envisioned in section 16 is “overbroad and irrational”. Moseneke DCJ further found that section 16 is incapable of an interpretation that promotes the ostensible objectives of eliminating and preventing slums and providing adequate housing. He referred to the fact that other provinces were “awaiting guidance from the Court before deciding on similar legislation.” This clarity has now thankfully been restored.
According to Kate Tissington, a researcher at CALS, “the Slums Act equates the elimination of slums with the eviction of people living in them and was intended to make that a much more frequent and easily facilitated occurrence. The core focus of the Act is on facilitating eradication, not in providing adequate housing. While it ostensibly allows government to fast track housing delivery, the Act has the real and pernicious effect of actively encouraging the eviction of unlawful occupiers living in informal settlements and buildings without taking into account their circumstances or the provision of alternative accommodation. There is a lack of acknowledgment that informal settlements and slum conditions are a symptom of a bigger problem in South African cities around well-located land and access to livelihoods.”
The Constitutional Court win affirms AbM’s interpretation of the Act and means that a repressive and constitutionally inconsistent piece of legislation is now inoperable and will not be replicated in other provinces.
The applicants were represented by CALS with Wim Trengove SC, Heidi Barnes and Kirsty McLean as counsel.
For more information please contact:
Kate Tissington: kate.tissington@wits.ac.za or 072 2209 125
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