Dignity faces off against fair play
The Concourt has been asked to find a balance between developers and occupants – again
Constitutional Court Justice Ray Zondo was in no mood for beating about the bush. “It ought not be in the interests of anyone to have this litigation,” he said last Tuesday.
The frustration was palpable on all sides. Both parties — arguing a case about the eviction of 184 people from a Johannesburg building — believed they should not need to be there. They just had no other choice.
Unless the court intervenes, it heard from one side, informal trader Hlengiwe Mhlambo (40) will lose her home of 14 years, leaving her and her two children on the street. Her economic future will be uncertain, at best.
But if the court does intervene in the way Mhlambo hopes, then businessman Calvin Maseko (51) says he stands to lose the pension he had cashed out to buy a dilapidated building, which he believed could, with some renovation, contribute to both his own wealth and the economic future of the city.
At stake is more than the wellbeing of either Mhlambo and Maseko. By one count there are 3 761 people whose accommodation is the subject of legal wrangling with the City of Johannesburg. They live mostly in downtown Johannesburg, mostly in buildings not fit for occupation. That number can only grow.
The court’s approach will also affect the future direction of South Africa’s economic capital itself, as a steady stream of poor people seeking their survival continues to be soaked up in a large supply of abandoned and slum buildings — buildings that developers swear they can turn into hubs of economic opportunity given half a chance.
First, however, the Concourt will have to figure out what to do about Mhlambo and Maseko — and nobody thinks that will be easy.
After what he describes as too many years mostly in the corporate world, Maseko took what money he had saved over decades and invested it in a property in Berea, a Johannesburg suburb sandwiched between the notorious Hillbrow and more salubrious parts to the east. His first foray went well. Then he bought the Kiribilly block, also in Berea, out of liquidation.
To clear the building for badly needed renovations, Maseko and the liquidators (then technically still the owners) went to the high court in Johannesburg to secure an eviction order. What happened in that courtroom is the subject of factual and legal dispute amid what Concourt Justice Johan Froneman called “mildly strange circumstances”.
The parties do agree on some facts. On the day the matter was heard in the high court, four of the 184 residents of Kiribilly were in court. The judge apparently believed those four people represented all the residents, and that everyone had agreed to be evicted, provided they got the first opportunity to rent flats in the renovated building. A consent order to that effect was handed down.
Four years later, nothing has yet come of it other than uncertainty on both sides.
“I bought the building for R1-million, I had to pay another R1-million to clear the rates [owed to the city council], now my legal costs are running to R1-million,” says Maseko. For that price he has a building he cannot renovate, from which he derives not a cent in rent, and which nobody is likely to buy from him.
Mhlambo was one of the four residents in the high court on that fateful day, but she says she had neither consented to leave the building nor could she have done so on behalf of her fellow residents.
Having the right to a renovated flat would mean nothing when her informal trade in cigarettes and sweets cannot earn her enough money to pay the monthly rental of roughly R2 000 that Maseko hopes to charge. The same is true of everyone involved, her legal representative, Stuart Wilson of the SocioEconomic Rights Institute (Seri), told the Concourt.
“We are sensitive to the difficulties the owner faces [but] the difficulty the occupiers face is being out on the street with nowhere else to go,” he said.
Thanks to an earlier landmark judgment of the Constitutional Court, known as the Blue Moonlight case for the company then involved, it is clear what happens when evicted people have nowhere to go: the city must provide them with temporary accommodation. If Mhlambo is evicted, that is supposed to provide her with a safety net. But on Thursday the Concourt heard a sequel to the Blue Moonlight case, replete with allegations that, when it comes right down to it, the supposed safety net is an insult.
“It punishes us for being poor” is how Nomsa Dladla puts it.
Dladla used to live in Saratoga Avenue in Berea, an easy 10-minute walk from the Kiribilly build-