The Right to Shelter: Let Down by the Judicial System in South Africa

19 Jun 2013

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"Lots of people live under bridges," a Johannesburg judge said after a group of people was evicted from a building. Three days after their eviction, a young woman gave birth to a baby. She was found living under a bridge with her newborn. When lawyers appealed to a judge to allow the group back into the building on the grounds that women, children and a newborn were living under a bridge, the judge chose to protect the rights of the property owner over the rights of the vulnerable group. We speak to Prof. Bonita Meyersfeld, Director of the Centre for Applied Legal Studies who explains how judges in South Africa today often find themselves on the wrong side of social justice.

Transcript of Interview

FAZILA FAROUK: Welcome to the South African Civil Society Information Service, I’m Fazila Farouk in Johannesburg.

When poor people come to the cities to look for work. Often besides having to deal with the uncertainty of not knowing whether or not they’ll find a job, often they’re also faced with the situation of not having a place to live.

Our city planners, it seems, simply haven’t planned for the fact that there will be an influx of people coming from rural areas and other parts of Africa as well, to our cities, in search of work. As a result there simply isn’t enough accommodation to absorb these people and we find people looking for and finding accommodation in really old buildings in the inner cities of Johannesburg, Durban and other cities in South Africa.

Notwithstanding the fact, 20 years after democracy in South Africa there does seem to be a push towards gentrification of the cities and what’s happening to a lot of very poor, vulnerable people living in old buildings in Johannesburg is that they’re facing eviction orders.

They find themselves between a rock and a hard place, in many instances. Often they’re dealing with slumlords so they’re dealing with the criminal element on one hand and on the other hand, they’re dealing with the authorities that are trying to get them out of the building.

But that’s not the biggest problem that they face because when they do go to court and challenge these eviction orders, they’re also dealing with a judiciary that, it seems doesn’t understand its role in terms of protecting the rights to shelter of people in South Africa.

Today we’re talking to a lawyer that deals with these eviction cases.

Our guest today is Bonita Meyersfeld. Bonita is the director of the Center for Applied Legal Studies. The centre is located at WITS University.

Bonita is going to tell us about the cases that they deal with and particularly there’s one case that I’d like her to focus on because it really does show how poorly people working in the judiciary understand their role in terms of protecting the rights of the poor in South Africa.

Bonita you told me this story. It’s a really tragic story of a judgment where a judge was protecting property rights over shelter rights of people and he ruled that it was okay for people to be evicted from a building.

I think he said something to the effect that “lots of people live under bridges”.

Tell us then what happened after that. That had other consequences for the people that had to leave the building.

BONITA MEYERSFELD: The case involved over 40 people who’d been evicted over the Christmas holidays when people know that not a lot of NGOs are working. The people were evicted at 3 o’ clock in the morning, which is not in compliance with the norms and standards of eviction.

They were forced to leave in a violent and aggressive context and they were forced to leave all their goods behind. Three days after the eviction, the occupants were now on the street living under a bridge, one of them who gave birth to a baby.

We went to court on an urgent basis and we said, we urgently need to get an order allowing the occupants back in the building. And the first judge said there’s no basis for urgency because there was an eviction order -- a legal technicality. A real concern and I’m not minimizing that aspect of it, but it wasn’t related at all to the human imperative and this new mother living under the bridge.

We went back to court a week later and asked once again for the opportunity for our clients to go back into the building, to be reinstated -- the very least to get all their worldly possessions.

And most importantly that we wanted the court to comply with the precedent from the Constitutional Court saying that you cannot evict people unless and until the government has found suitable alternative accommodation for them -- even on a temporary basis. None of this had happened.

We pointed this out to the judge and the judge was indifferent to it. He said, “Somebody has to look after the interests of the property owners.” We then pointed out that there were vulnerable groups including an infant recently born under a bridge. And his response to that was that many people in South Africa live under a bridge and this is not the problem that he’s was prepared to address. He wants to look after the rights of the property owner, who, as far as they were concerned followed the proper legal process.

The constitution most definitely does protect the right to property. This is not an abstract or legally incorrect notion. Equally, it protects the rights of individuals -- everyone in South Africa.

And that’s important. It’s not every citizen. It’s everyone in South Africa is entitled to shelter. The right to housing therefore has to be balanced…

FAZILA FAROUK: So, let me just take you back to when you say the right of everyone in the country. That then means that it’s people – foreigners, legal and illegal, that are in the country.

BONITA MEYERSFELD: Exactly. That is what the legal right entails. Of course xenophobia, intolerance and economic hardship all feed into that right for foreigners being slightly retarded.

But yes, that’s exactly it. It should…the legal status of a person is irrelevant. Why? Because it’s fundamental humanity.

So the judge took these two rights, balanced them and came to a decision - Judge Gomo - that the property owner’s rights must trump.

On a black letter law analysis one could argue that his judgment is defensible. But here’s the kicker: the Constitution, which is the supreme law of the land has certain values embedded in its interpretation. Those values are and they speak to dignity, human dignity and the eradication of the past. And we all know that the eradication of the past is not simply to say a black person has no right to vote. The eradication of the past is inextricably linked to the allocation of resources in this country. And that eradication is far, far from even being undertaken.

And so we’re finding a continuation in this judgment of economic apartheid -- a discrimination against people simply because they’re poor.

We see this notion of those who have versus those who have not, saying people must “pick themselves up by their bootstraps.” We’ve heard that expression. I am yet to find people who are more self sufficient, who are more ready to comply with principles of law and order.

Are there some people who are not? Absolutely. I don’t it’s appropriate to romanticize the poor. But I also don’t think it’s appropriate to discriminate against somebody because they’re desperate and trying very hard to survive.

It goes one step further. Think about the language we use with the poor. We say people have “hijacked” buildings. Really? You’ve got nowhere to live, no one is looking after you so you go and find your way into and unoccupied building. That’s hijacking? Or is that survival?

People say they want to speak out, but no ones going to listen to a poor person. Poor people don’t go into the house of parliament. They don’t come into the television studios. So they don’t have a voice. So they ask for permission to march. You try and get somebody permission to march. It’s almost impossible. It’s almost impossible.

So what do they do? They march anyway. So what do they do become? Illegal.

FAZILA FAROUK: So it sounds to me from what you’re saying...I mean that this judgment isn’t a unique case. There seems to be an overall situation where judgments are going against the interests of poor people in South Africa.

So would you argue then…or how would you explain that? Would you say that it’s case of judges not understanding their roles and responsibility? Or is it a case of people…judges not caring? Or the system not caring?

BONITA MEYERSFELD: I think that we are definitely in a more conservative judicial environment then we were maybe 10 years ago. I think that there are issues of class involved. I think that judges are finding themselves in an intolerable situation. It was very glamorous 10 years ago to make the decisions around Grootboom. That felt right.

But today we’re asking them to make less glamorous decisions. We’re asking them to say in an economic climate that is still stilted at best where everybody is crying about the decline of the Rand. We’re asking them to say, no, the private sector can’t get away with just kicking people out of their buildings. We want some constraint on it.

And I think it’s a period in our judiciary that’s not the most honourable one. This is not to paint all members of the judiciary with the same brush though. There are superb judges. The problem though is it depends on which judge you get.

There’s precedent that we have in our Constitutional Court, from our Constitutional Court saying that a person who is evicted, can only be evicted, unless and until the government has provided reasonable, alternative accommodation, even on a temporary basis. That wasn’t provided for in this main street case.

FAZILA FAROUK: When people are evicted is the state not obliged to provide alternative accommodation? Do they provide this alternative accommodation and what kind of accommodation is being provided to people?

BONITA MEYERSFELD: The obligation most definitely exists as you have articulated. The state does have an obligation to provide reasonable, alternative accommodation. What we’ve seen in the last year though is becoming dangerously close to an uncomfortable question. That question is, “What constitutes reasonable, alternative accommodation?” Well in this instance of this case the government found a shelter, which has lockout provisions. So you’re locked out 7 o’ clock in the morning and you’re allowed back at 5 o’ clock in the evening and the doors are locked.

So what happens to nursing mothers? What happens to people who have to travel faraway for the jobs they have?

These are not…this is not alternative accommodation. This is a place to maybe put your head down to rest at night. So the question then is, who decides what’s a reasonable standard of accommodation?

This is a problem that is not peculiar to South Africa…

FAZILA FAROUK: Can you describe in a little bit more detail - what are the condition inside these shelters?

BONITA MEYERSFELD: Non-delineation for families. So a lot of these shelters are split by gender, which means that the family existence is precluded, which is a violation of our constitutional provisions, as interpreted by the constitutional court.

There is rife lack of safety. People are hurt constantly and there is a particular role or a particular prevalence of gender-based violence and sexual violence. Kids are not properly looked after and the water and sanitation conditions are appalling.

At least, I must say, in these buildings, you are not at risk as much as in other buildings of electric malfunctioning. But I think that's hit and miss.

The conditions in the building are hostile, aggressive, prison-like when you are locked in or locked out. Lights out automatically at a certain time; limitations on where you go, what you can do -- and all just because you're poor.

FAZILA FAROUK: In terms of the experience of the organisation, what would you say about the state providing accommodation in general for newcomers to the city. Is this something that's abandoned by the city planner? Are they not thinking about new people coming in, in search of job opportunities --  it’s a very rational thing for people to do. You come to the city to find a job. Are our planners working towards accommodating that?

BONITA MEYERSFELD: If they are, we don't see it. There is a shotgun approach to dealing with the problems of eviction and housing. Not a thoroughly considered planned undertaking around how many people are going to need accommodation, assess it, and come up with a plan.

And the reality is that when you don't have a plan, you stand up in court, as happened last year and say, If these people - as if they somehow are different from us - if these people need alternative accommodation, we'll simply bring in tents.

Tents? You mean what you would do in a humanitarian crisis like a flood or an earthquake or a civil war. So, if we are prepared to do that. If that is the level of shelter that we think is appropriate for our fellow human beings, I think that we can't really conclude that there is a thorough plan in place to address the mass migration of people in and out of the city.

FAZILA FAROUK: As a lawyer, dealing with these cases on a regular basis, what do you think are the solutions we should be looking at, you know, to avoid the situation that people find themselves in? What do you think the measures are that should be taken by the state and, as well as, what are the measures that you think should be taken by the judiciary?

BONITA MEYERSFELD: I think there's a role for the state, the judiciary, but I would add, the private sector as well.

And I think that we need a notion of just cities.

It's not a new problem that we are facing in South Africa. Just cities means that we don't give in to the gentrification of a city; that we are quite comfortable with the fact that there will be poor people in buildings who will be treated properly and not evicted simply for the sake of sprucing up a building, so that wealthy individuals can come and occupy them.

That the plan has to include - there's certainly a gentrification plan - but it has to include alternative accommodation that is within the city, close and proximate to the jobs that people need.

It's no good to say, we'll put you an hour away. Well then you can't even afford the transport to get to that job.

So, I actually think its a little bit of a discussion that has to take place where the stakeholders don't simply fight each other in the courts, but plan it in advance.

I've had conversations with members of the private sector saying, give me another week. Give me another week so that the people in that building that you own can find alternative accommodation through the government. And I've been told in no uncertain terms that that's not their problem.

Well it is their problem. It is their problem. So I had to go to court. Spend a lot of their money. Fortunately we work with phenomenal lawyers and advocates who do it on a pro-bono basis. So we went to court, we argued this in court and the judge said, "But of course you can't evict them, give them another week."

So what is the obligation of government and of judges here? It's to realise that the people who are living in these buildings are not criminals; they are poor. They are not offensive; they are trying to survive. They are not romanticised, right. They're good and bad, much like the people in Sandton.

And what they have to realise is that there is a very clear constitutional imperative that places above all, human dignity and well being, and that has to be manifested. Otherwise the problem that we think we are trying to solve is simply going to be swept into a corner that we don't see until they become too angry, too furious, too hurt, and too desperate.

And then I fear that we'll see a complete collapse of law and order. And those in positions of power will simply shrug their shoulders and say see I told you that they were unwieldy.

They are not. We are not. We are people who need a home who want to look after ourselves, and it’s the government in power who has an obligation under the constitution to achieve that.

FAZILA FAROUK: Bonita Meyersfeld, thank you very much for joining us at SACSIS.

BONITA MEYERSFELD: Thank you for having me.

FAZILA FAROUK: And thank you very much for joining us at the South African Civil Society Information Service. And to our listeners and viewers, remember if you're looking for more social justice analysis, you can visit our website at

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