The DA and ANC Share a Penchant for State Criminality

In the recent election the DA, together with COPE, made much of their intention to defend the rule of the law. But while the dust thrown up in that election is still settling the City of Cape Town is already engaged in brutal and criminal behaviour towards its most vulnerable citizens.
On Thursday 14 May a group of backyard shack dwellers occupied a piece of vacant municipal owned land in Macassar Village, outside Cape Town. But while the law on trespass does render their occupation unlawful the law also makes specific provision for the protection of the rights of unlawful occupiers. That protection extends to making it a criminal offence to evict an unlawful occupier without an order of the court.
A court can only issue an eviction order against an unlawful occupier after a careful process that includes a significant degree of consideration for the rights of occupier. A Constitutional Court decision against the Port Elizabeth Municipality in 2004 famously insisted that, when considering application for eviction orders, courts are required to “infuse elements of grace and compassion into the formal structures of the law.” It added that they should pay careful attention to the history of evictions under apartheid and to how that history has left “lasting and enduring effects on the distribution of land and access to housing today.”
But the state response to the land occupation in Macassar Village has been, in strict legal terms, criminal. People, including a child, have been shot at with rubber bullets and others have been arrested on the entirely spurious charge of public violence. It is in fact the police who are guilty of public violence not to mention assault, intimidation and wrongful arrest. Moreover the state has demolished the occupier’s shacks every day and then confiscated their building materials. Despite this the occupiers have managed to rebuild everyday with what materials remain. These demolitions have been undertaken without an order of the court and are therefore illegal and criminal acts. The confiscation of building materials is straight forward theft. In principle officers in the police and the Anti-Land Invasions Unit should be immediately arrested for assault, intimidation, theft and demolition of shacks without an order of the court. In practice the prospects of this happening are close to zero.
The City of Cape Town’s willingness to resort to violent criminality to defend the elite monopoly over urban planning is hardly a unique aberration. On the contrary many ANC run municipalities, with eThekwini and Erkhuleni being perhaps the most notorious, have a long record of routine and systematic state criminality towards shack dwellers. This has included unlawful evictions as well as unlawful and often violent repression. One of the reasons why municipalities have been able to get away with this is that it’s often extremely difficult for poor people to access to competent and committed legal support. Moreover when it is possible to access legal support it sometimes happens that both lawyers and judges put their own assumptions and prejudices before the letter of the law.
The bitterness stirred up by Helen Zille’s political critique of Jacob Zuma’s personal life and the astonishingly sexist response from some in the ANC, creates the impression that the DA and ANC are deeply opposed social forces. But while there certainly are important differences between the parties the high levels of personal conflict often masks both these differences and some commonalities between the DA and the ANC. One of those commonalities is that, at the level of practice, both parties share a commitment to an authoritarian mode of development and an assumption that when the poor do not know and keep to the places allocated to them they should be excluded from the protections supposed guaranteed to all citizens by the constitution.
The Constitution and the laws associated with it are imperfect from the point of view of most social forces. That fact should not surprise us given that the Constitution is an expression of the compromises reached during the negotiated settlement. Property owner’s associations have lobbied for a reduction of the rights provided to unlawful occupiers and popular movements and intellectuals on the left have challenged the rights provided to property owners. But state action undertaken in routine contempt of even the limited legal protection currently offered to the poor is setting us on a trajectory far beneath the compromise envisioned by the negotiated settlement.
In the past the DA and the ANC have both given active support to attempts at legal reform aimed at reducing poor people’s rights to land and housing. In practice this means that they have both been committed to criminalising the survival strategies of the urban poor and to deploy armed force to defend this criminalisation. When challenged on this they have both tended to argue that they need to firm up the law in order to protect their plans for rational development. But everyone knows that there is no rational plan to steadily work through housing lists until everyone has a decent house. On the contrary in most cities the number of people without access to decent housing is growing. ‘Housing lists’ are usually a simple fiction used to justify the arbitrary and often self interested despotism of local political elites and to present popular protest and innovation as ‘queue jumping.’ We’re in the early days of Zuma’s government but there have, as yet, been no signs that the ANC intends to break with any of this.
If the major political parties continue to operate on a tacit agreement to accept that the rule of law need not apply to the poor the demand for real equality before the law will have to come from outside of party politics. But this will not be uncomplicated. Although there are important exceptions civil society is largely unwilling to confront the reality of systemic state criminality head on. And while there are some popular poor people’s movements, one of which is growing very rapidly, they remain acutely under resourced and are only just beginning to access some of the resources required from them to be able to forge a way to work together across the country.