It's the state that is flouting the law

May 27, 2009 Edition 1

WHILE the dust thrown up in the election is still settling, the City of Cape Town is already engaged in violent and allegedly unlawful behaviour towards its most vulnerable citizens.

On Tuesday 19 May, a group of backyard shack dwellers occupied vacant municipal-owned land in Macassar Village. Rents for backyard shacks in the area can reach as high as R600 a month and they have become overcrowded and unaffordable for many people. The law on trespass does render this occupation unlawful and the city has laid a charge of trespass against the occupiers. But, following the right to housing guaranteed in the constitution, the law also makes 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 process that includes a significant degree of consideration for the rights of occupiers.

A Constitutional Court decision against the Port Elizabeth municipality in 2004 insisted that, when considering application for evictions, courts are required to "infuse elements of grace and compassion into the formal structures of the law". It added that they should pay 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".

The state should have responded to the Macassar occupation by providing emergency support for basic needs. After all, unaffordable rents and consequent overcrowding are as much a disaster as any flood or fire in terms of the suffering imposed on people. The state should then have begun sincere negotiations about interim relief leading to a long term plan for housing.

Instead, the state response has been violent and, in strict legal terms, criminal. People have been shot at with rubber bullets and others have been arrested on the spurious charge of public violence. It is the police who are guilty of public violence, not to mention assault, intimidation and wrongful arrest. Moreover, the state has demolished the occupiers' shacks every day and then confiscated their building materials. Despite this, the occupiers have managed to rebuild every day 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 terms of the law the infractions of the occupiers are much less serious than those of the state. In principle, officers in the police and the Anti-Land Invasions Unit should be arrested for assault, intimidation, theft and demolition of shacks without an order of the court.

The city's willingness to disregard the rule of law to defend the elite monopoly over urban planning is hardly unique. 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.

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 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 are both likely to argue that the state needs to firm up the law in order to protect its 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.

According to Professor Martin Legassick in Cape Town: "There is a backlog of some 400 000 homes, increasing by some 20 000 a year, but with a maximum of 8 000 houses a year being built." Across the country 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.

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 party politics. But just as the DA and the ANC share a tacit agreement that the rule of law can be suspended to beat poor people back into overcrowded, unaffordable backyard shacks, the political parties also share a tacit agreement that politics conducted outside of their control is somehow unacceptable.

Already Cape Town's DA Mayor Dan Plato and local ID councillor John Heuvel have resorted to the paranoid language that the ANC has routinely deployed against self-organised communities and movements. They speak as though there is something perverse and illegitimate about independent organisation by poor people. They speak as if a decision to think and act together is some sort of illegitimate conspiracy.

The political parties have failed to address the housing crisis. The magnitude of their failure means that it is inevitable that they will also fail to retain their monopolies on urban planning and on the right to legitimately engage in politics.

They are now obligated to face up to all of this and to learn to respond to popular innovation with negotiation and creativity rather than slander and violence. If they are unwilling or unable to do this they will be responsible for a rapid escalation in social conflicts already endemic in our cities.
This article by Richard Pithouse, who teaches politics at Rhodes University, was distributed by the South African Civil Society Information Service (sacsis.org.za).