SA peo­ple have right to ser­vices

Weekend Post (South Africa) - - THIS WEEK YOU’RE SAYING ... -

IN both Jo­han­nes­burg and Cape Town the me­dia have re­ported on the vi­o­lent protests by poor com­mu­ni­ties due to the lack of ser­vice de­liv­ery in re­la­tion to hous­ing.

Sec­tion 17 of the con­sti­tu­tion pro­vides that “ev­ery­one has the right, peace­fully and un­armed, to picket and to present pe­ti­tions”. In an im­por­tant judg­ment by the High Court in Act­ing Su­per­in­ten­dent-Gen­eral of Ed­u­ca­tion of Kwazulu-Natal v Ngubo, it was held that this right to as­sem­ble and demon­strate im­plic­itly ex­tended no fur­ther than what was nec­es­sary to con­vey the demon­stra­tors’ mes­sage. The court also held that it was not pos­si­ble to con­ceive of any sit­u­a­tion where the right to as­sem­ble and demon­strate could be so ex­ten­sive as to jus­tify ha­rass­ment, delicts or crim­i­nal acts.

Democ­racy must be clearly dis­tin­guished from con­duct that con­sti­tutes mob rule. From the above ex­pla­na­tion it is cat­e­gor­i­cally clear that vi­o­lent ser­vice de­liv­ery protests as have re­cently oc­curred in the cities of Jo­han­nes­burg and Cape Town are un­law­ful and un­con­sti­tu­tional.

Al­though such vi­o­lent protests can­not be con­doned, it is nec­es­sary to ask why they are oc­cur­ring and what should be done in re­sponse to them. It ap­pears that these com­mu­ni­ties are in­tensely frus­trated by a lack of ser­vice de­liv­ery and re­gard vi­o­lent ac­tion as the only way to com­mu­ni­cate with the rel­e­vant po­lit­i­cal au­thor­i­ties about their piti­ful plight of home­less­ness and ex­treme poverty.

Sec­tion 26 pro­vides in­ter alia “the right to have ac­cess to ad­e­quate hous­ing”. This so­cio-eco­nomic right is how­ever qual­i­fied in that sec­tion 26(2) stip­u­lates that “the state must take rea­son­able leg­isla­tive and other mea­sures, within its avail­able re­sources, to achieve the pro­gres­sive re­al­i­sa­tion of this right”.

In the fa­mous Groot­boom case, the Con­sti­tu­tional Court found that this right is jus­ti­cia­ble or can be tested. This means that the ex­ec­u­tive can in­deed be held to be ac­count­able. It is not merely the metaphor­i­cal “pa­per tiger” and that the courts have the power to de­ter­mine whether the ac­tion of the rel­e­vant ex­ec­u­tive author­ity had in­deed acted in a rea­son­able man­ner.

From this case, the cri­te­rion of rea­son­able­ness was for­mu­lated and ap­plied to other sit­u­a­tions in­volv­ing so­cioe­co­nomic rights, such as with the right to health care, as set out in Sec­tion 27 of the con­sti­tu­tion.

South Africa has one of the most pro­gres­sive con­sti­tu­tions and bill of rights in the world, in­volv­ing first-, sec­ond- and third-gen­er­a­tion rights. First-gen­er­a­tion rights are the civil and po­lit­i­cal rights, like free­dom of ex­pres­sion and re­li­gion and univer­sal fran­chise. Sec­ond-gen­er­a­tion rights are those rights hav­ing a so­cioe­co­nomic con­tent, such as ac­cess to hous­ing and health. Third­gen­er­a­tion rights in­volve those re­lat­ing to the en­vi­ron­ment and de­vel­op­ment.

The sec­ond-gen­er­a­tion re­quire the state to pro­vide the com­mu­nity with ba­sic ser­vices. De facto this does not de­pend only on fi­nances and re­sources, but on the ca­pac­ity of the state.

Very of­ten funds are in­deed avail­able, for in­stance for hous­ing, but not utilised be­cause of lack of ca­pac­ity and re­turned un­spent to the Trea­sury.

This lack of ca­pac­ity is re­flected in a re­port in The Mer­cury (“Ma­tric shock for KZN coun­cil­lors”, May 4 2018), where the MEC for co­op­er­a­tive gov­er­nance states that “more than 200 coun­cil­lors across KwaZulu-Natal do not have ma­tric”. The lack of ser­vice de­liv­ery is also ex­ac­er­bated by cor­rup­tion and cadre de­ploy­ment.

The prac­tice of cadre de­ploy­ment whereby per­sons, who are card-car­ry­ing mem­bers of the ANC, have been ap­pointed to po­si­tions in the pub­lic ser­vice, re­gard­less of their com­pe­tence, is in most cases un­con­sti­tu­tional and un­law­ful.

Un­qual­i­fied cadres have also re­sulted in very de­bil­i­tat­ing prob­lems, par­tic­u­larly in the sphere of lo­cal gov­ern­ment, where in re­la­tion to ser­vice de­liv­ery there have been widespread po­lit­i­cal protests, ex­am­ples of which are set out above.

The fail­ure to de­liver ad­e­quate ser­vices, such as hous­ing, is not be­cause of the in­ad­e­qua­cies of the con­sti­tu­tion and its bill of rights, but the ex­ist­ing glar­ing lack of ca­pac­ity, cadre de­ploy­ment and cor­rup­tion that has oc­curred with the gov­ern­ment and ad­min­is­tra­tion of South Africa dur­ing the Zuma pres­i­dency.

Ser­vice de­liv­ery in re­la­tion to hous­ing in­vari­ably in­volves two or pos­si­bly the three spheres of gov­ern­ment – lo­cal, pro­vin­cial and na­tional. This has to take place in terms of chap­ter 3 of the con­sti­tu­tion, deal­ing with co­op­er­a­tive gov­ern­ment. This re­quires that there should be suf­fi­cient ca­pac­ity in each of the rel­e­vant spheres of gov­ern­ment.

Civil ser­vants with ex­per­tise and ex­pe­ri­ence are es­sen­tial. Fun­da­men­tal change is re­quired in this re­gard to en­sure ad­e­quate ser­vice de­liver y.

It is co­gently sub­mit­ted that the new Ramaphosa ad­min­is­tra­tion must take de­ci­sive and bold steps to bring about mean­ing­ful change in this re­gard in the in­ter­est of good and com­pe­tent gov­ern­ment.


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