Pol­icy meets re­al­ity

Grocott's Mail - - MAKANA VOICES -

On 27 June, Gro­cott’s Mail pub­lished an ar­ti­cle “Con­cern over Gra­ham­stown land grabs”. In the ar­ti­cle, a self-ap­pointed com­mit­tee was al­lo­cat­ing land on a va­cant plot op­po­site the May­field Ex­ten­sion 10 Hous­ing De­vel­op­ment. The coun­cilor for ward 3 said he was not aware of the on­go­ing land grabs, un­til he saw about 300 peo­ple queu­ing for land in Ex­ten­sion 10. He said that peo­ple who had their own agenda mis­led these peo­ple. How­ever, the coun­cilor noted that if the mayor does not ad­dress the peo­ple, they would not stop.

There is short­age of hous­ing for the needy in South Africa and par­tic­u­larly suit­able land for the state to build RDP houses. Sev­eral hous­ing protests have been hap­pen­ing across the coun­try with hous­ing and land be­ing the ma­jor driv­ers of these protests. Although the state has made some strides in the pro­vi­sion of RDP houses, the ex­pan­sion of cities and growth of the ur­ban pop­u­la­tion makes it dif­fi­cult for the gov­ern­ment to meet the de­mand for hous­ing. As a re­sult, il­le­gal land oc­cu­pa­tion and the con­tin­ued growth of in­for­mal set­tle­ments has be­come a chal­lenge.

The cur­rent hous­ing pol­icy frame­work (Break­ing New Ground) im­ple­mented since 2004, aims at up­grad­ing in­for­mal set­tle­ments and cre­at­ing an en­vi­ron­ment for dig­ni­fied hu­man set­tle­ments with proper san­i­ta­tion, elec­tric­ity and wa­ter.

We have seen a shift from erad­i­cat­ing in­for­mal set­tle­ments and evic­tions to up­grad­ing, although in some ur­ban ar­eas, mu­nic­i­pal­i­ties con­tinue to fight blood bat­tles with land oc­cu­piers in an at­tempt to erad­i­cate in­for­mal set­tle­ments. Meet­ing tar­gets for up­grad­ing in­for­mal set­tle­ments, how­ever, re­mains a chal­lenge for the De­part­ment of Hu­man Set­tle­ments.

What is cur­rently hap­pen­ing in the es­tab­lish­ment of hu­man set­tle­ments is a re­flec­tion of the com­plex na­ture of hous­ing de­mand and hence pol­icy for­mu­la­tion in South Africa. On the one hand, po­lit­i­cal rep­re­sen­ta­tives make pol­icy de­ci­sions that seek to re­dress past in­jus­tices and pro­vide hous­ing for the needy. On the other hand, the chal­lenges on the ground in terms of im­ple­men­ta­tion of pol­icy places the gov­ern­ment in a cy­cle of rein­vent­ing pol­icy with no prac­ti­cal or fi­nal so­lu­tions to the chal­lenges of hous­ing de­mand.

Il­le­gal/in­for­mal land oc­cu­pa­tion cur­rently does not only in­form pol­icy, but also con­tin­ues to com­pli­cate the process of hous­ing de­liv­ery.

Land in­va­sion or il­le­gal oc­cu­pa­tion of land hap­pens when com­mu­nity mem­bers de­cide with­out per­mis­sion from lo­cal au­thor­i­ties to oc­cupy land and build dwelling struc­tures. Il­le­gal oc­cu­pa­tion of land and the con­struc­tion of in­for­mal dwellings in ur­ban ar­eas is in­dica­tive of the in­creas­ing hous­ing needs for the low-in­come earn­ers and the un­em­ployed.

With no hope of be­com­ing part of the for­mal prop­erty mar­ket and the sys­temic de­lays char­ac­ter­iz­ing hous­ing de­liv­ery in South Africa, the only op­tion for the low-in­come earn­ers or the less ad­van­taged is to ran­domly oc­cupy pieces of ur­ban land and build shacks. Whether the land they oc­cupy is ser­viced (i.e hav­ing piped wa­ter and sewer sys­tems) is not the ques­tion. Il­le­gal oc­cu­piers sim­ply make a place for them­selves to stay. Once a piece of land is oc­cu­pied for a lengthy pe­riod, an in­for­mal set­tle­ment is es­tab­lished. Evic­tions from the land is a dif­fi­cult process and is of­ten re­sisted through vi­o­lent protests.

Im­por­tantly, the law pro­tects in­for­mal dwellers from il­le­gal evic­tions. Sec­tion 26 (3) of the Con­sti­tu­tion states that ‘no one may be evicted from their home, or have their home de­mol­ished with­out an or­der of court made af­ter con­sid­er­ing all rel­e­vant cir­cum­stances’. The Preven­tion of Il­le­gal Evic­tion Act (PIE) pre­vents any evic­tion that takes place with­out con­sid­er­ing the cir­cum­stances of the il­le­gal oc­cu­pants. There should be al­ter­na­tive ac­com­mo­da­tion pro­vided for the peo­ple fac­ing evic­tion. No evic­tion is le­gal if it will leave peo­ple home­less. PIE pro­tects the rights of both the owner of the prop­erty and the oc­cu­pant.

When an evic­tion is done ac­cord­ing to PIE re­quire­ments, it is le­gal and (in the event that the mat­ter is taken to court) - a judge can rule in favour of the own­ers of the prop­erty. Although PIE Act pro­tects both par­ties, the Act has been ef­fec­tively used mostly to pro­tect il­le­gal oc­cu­piers from be­ing evicted and evic­tions have be­come more com­plex and dif­fi­cult.

In 2017 the Con­sti­tu­tional Court ruled in favour of 184 res­i­dents who oc­cu­pied Er­ven 87 and 88 in Berea in Jo­han­nes­burg. The con­sti­tu­tional court re­versed the high court rul­ing in favour of the evicted res­i­dents. The con­sti­tu­tional court in­di­cated that the high court judge had not en­sured that the com­plainants were fully in­formed about their rights be­fore the evic­tion was car­ried out and that the judge had not en­sured that the peo­ple would not be ren­dered home­less.

The rul­ing is in­deed a vic­tory for the low-in­come earn­ers and the un­em­ployed be­cause their rights to shel­ter are pro­tected. It how­ever places the state in a pre­car­i­ous po­si­tion where it be­comes prac­ti­cally im­pos­si­ble to evict il­le­gal oc­cu­pants from land that was meant for con­struc­tion of houses. It also means com­mu­nity mem­bers can de­cide to oc­cupy any piece of land know­ing that once they are there it be­comes dif­fi­cult for them to be moved and be set­tled else­where.

In­for­mal set­tle­ments up­grad­ing, is an at­tempt by gov­ern­ment to im­prove liv­ing con­di­tions of those who live in ap­palling con­di­tions with­out hav­ing to re­lo­cate. Although up­grad­ing in­for­mal set­tle­ments im­proves the liv­ing con­di­tions for in­for­mal set­tle­ments, it does not re­duce the de­mand for for­mal hous­ing. The peo­ple within up­graded in­for­mal set­tle­ments re­main on the wait­ing list for RDP houses. In cases where the oc­cu­pied land was ear­marked for build­ing RDP houses, it means more suit­able land need to be iden­ti­fied and be ser­viced be­fore con­struc­tion be­gins. This fur­ther de­lays con­struc­tion and the wait­ing for RDP houses con­tin­ues as well as the con­tin­ued pro­lif­er­a­tion of in­for­mal set­tle­ments.

The De­part­ment of Hu­man Set­tle­ments has drafted a White Pa­per, which will in­form pol­icy go­ing for­ward. Up­grad­ing of in­for­mal set­tle­ments con­tin­ues to be part of the agenda for the de­part­ment of Hu­man Set­tle­ments. There is no ques­tion about whether to erad­i­cate/evict.

The fo­cus is on bring­ing dig­nity to com­mu­ni­ties by up­grad­ing in­for­mal set­tle­ments. How­ever, will up­grad­ing of in­for­mal set­tle­ments truly bring about the re­al­iza­tion of the right to hous­ing em­bed­ded in sec­tion 26 of the con­sti­tu­tion where- ‘ev­ery­one has a right to ad­e­quate hous­ing,’. Is gov­ern­ment able to de­liver on its con­sti­tu­tional man­date of pro­vid­ing ad­e­quate hous­ing? Does hu­man set­tle­ment pol­icy ef­fec­tively help in ad­dress­ing the chal­lenges of hous­ing de­liv­ery go­ing for­ward?

Also read http://www.gro­cotts.co.za/2017/06/27/con­cern-over-land-grabs/

• Es­teri Msindo is the Hu­man Set­tle­ment Re­searcher at the Pub­lic Ser­vice Ac­count­abil­ity Mon­i­tor

Photo: Sue Ma­clen­nan

Ntombi­zodwa Staki (left) and Nonelela Spring­bok clean up a plot they’ve been told they can build on in this June 2017 file photo. Be­hind them is a queue of land hope­fuls.

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