Constitutional Court encourages change in attitude towards Joburg’s urban poor

Last week the Constitutional Court handed down its judgment in Dladla v City of Johannesburg, unanimously finding that the rules the City of Johannesburg has sought to implement in temporary accommodation for those evicted from their homes violates residents’ rights to dignity, family life, freedom and security of the person and privacy. Tim Fish Hodgson says  the court’s judgments send a strong message to the City, warning against anti-poor policies and rules and condescending attitudes.

Ms Nomsa Ellen Dladla lived with her granddaughter, Ayanda, in Berea, Johannesburg. In 2004, developers bought the building, Saratoga Avenue, where she and 86 other people were living. The developers ultimately sought their eviction and after a lengthy court process, on 1 December 2011, the Constitutional Court decided that it would “just and equitable” to grant their eviction by 15 April 2012.

However, wise to the failings of the government in providing those who are evicting in these circumstances with alternative accommodation, the Constitutional Court took additional precaution. To ensure none of the occupiers would be rendered homeless by the eviction, the court simultaneously ordered that the residents be provided with temporary accommodation on or before 1 April 2012.

By doing this, the court concretely tied the eviction order to the provision of “temporary accommodation” for the residents. It made clear that regardless of unlawfulness of their occupation the Constitution entitled them to protection by the City against homelessness. Ultimately, however, the court left it up to the City to determine where and how the occupiers would be housed upon their eviction.

The implication, reading the judgment as a whole, was that when the City decided what to do, it would do so taking the occupiers’ rights into account and do as the court has consistently instructed: treat the residents “with care and concern”. Unfortunately, despite the court’s efforts, the residents discovered that the protection of the City was to provide sparse comfort.

The poorest of the occupiers, who could not afford the R600 rental accommodation offered elsewhere by the City, were moved to Ekuthuleni Shelter in central Johannesburg. Ekuthuleni was run by Metro Evangelical Services (MES) an NGO which provides “poverty alleviation, community and spiritual enrichment services”. Until contracting with the City, it ran Ekuthuleni as a “traditional overnight facility”, providing 100 “destitute” people “a temporary place” of shelter while they sought employment. This matched well with the City’s own ambition to ensure the residents “take responsibility for their own lives” and to discourage a “dependency relationship” with the City.

This condescending view of the occupiers as lazy people who would be discouraged to seek jobs and accommodation because they had temporary accommodation in the shelter, was reflected in the shelter rules. The rules, which Ms Dladla described as “repressive”, “unhealthy, “demeaning”, “prison-like” and “humiliating” quickly became unbearable. On 8 October 2012, she again found herself approaching the courts, to have MES’s rules invalidated as unconstitutional.

The residents objected to two rules in particular: the “lockout” rule (requiring residents to be out of the shelter between 08h00 and 17h30 every day and return by 20h00) and the “family separation” rule (prohibiting men and women from living together in the rooms/dormitories). They argued that the rules violated their constitutional rights to dignity, freedom and security of the person, privacy, and access to adequate housing.

On, 1 December 2017, six years to the day after the Constitutional Court initially vindicated their rights to not be rendered homeless (and additional trips to the high court and Supreme Court of Appeal later), the Constitutional Court again came to the residents’ aid.

Over four different judgments, and though the eleven judges disagreed about which of the occupiers’ rights had been violated and how, they were unanimous that MES’s rules were unconstitutional violations of the occupiers’ rights. The court’s condemnation of MES and the City was sharp and direct. For example, Justice Mhlantla, writing for the majority of the court, condemned the City’s conduct as “cruel, condescending and degrading”.

Justice Cameron, with the agreement of the three other judges, went further, questioning the City’s attitude towards the occupiers. Damningly, he noted that that the City appears to have treated the occupiers demeaningly precisely “because they are poor”. Over and above violations of their dignity and privacy, then, Cameron’s judgment implies directly that the City discriminated against the residents on the basis of their socio-economic status.

The Constitutional Court’s decision is extremely important to the residents of Ekuthuleni but also has broader social, legal and political significance.

First, the City described the Ekuthuleni shelter as a “pilot project”, which, if it had been rolled out, would mean that over 3 000 other people in need of temporary accommodation could have been subjected to the same types of oppressive rules. This can no longer happen.

Second, the rules are at the core of a mindset which will continue to produce anti-poor policies that the Johannesburg mayor Herman Mashaba, seems to fully endorse. Infamously, Mashaba, a millionaire businessman himself said that putting poor people in leadership positions is “looking for trouble”. He has described lawyers, who represent poor people in the position of Ms Dladla, as “so-called human rights lawyers”, chastising them for impeding his attempts to resolve Johannesburg’s housing crisis. Some of the lawyers he appeared to be referring to – the Socio-Economic Rights Institute of South Africa (Seri) – represented the residents in this litigation. It says that Mashaba has made “repeated attempts to demonise the inner city poor as criminal or undeserving”.

Although Mashaba brands his policies as “unapologetically pro-poor”, Justice Cameron’s judgment suggests that courts are capable of looking through the thin veneer of political rhetoric and calling discrimination against poor black people what it is. This should serve as a warning to the City to carefully consider its constitutional obligations when formulating and implementing policies on issues ranging from inner-city evictions to the regulation of informal trade or upgrading of informal settlements.

Finally, the resilience of the residents of Ekuthuleni shelter (and Saratoga Avenue before that), illustrates that regardless of who is in government poor people in Johannesburg are willing to tenaciously wield the Constitution as shield against the often degrading treatment of the government. In Johannesburg’s inner city, as a direct result of the City’s persistence in attempting to evict poor people, residents from a wide range of different buildings continue to mobilise through the Inner-City Housing Federation.

The judgments do however open up some troubling issues.

First, Justice Mhlantla and the majority of the court refused to find that the rules violated the residents’ housing rights, finding only that their rights to privacy, dignity, family life, and freedom and security of the person were violated. At first glance, this feather thin legal distinction, which abstracts housing itself (protected by housing rights) from the housing’s rules (protected by other rights), defies common sense. It runs the risk of confusing City officials and their legal advisers and may well court further litigation.

Second, the court appears – not for the first time – to have disregarded submissions before it on the gendered dimensions of housing. None of the judgments engage the detailed submissions of the Centre for Applied Legal Studies (CALS). CALS argued, for example, that the lockout rule left women in Ms Dladla’s position out on the streets and unsafe for much of the day and that the family separation rule placed the responsibility on mothers to perform child-rearing activities alone thus perpetuating patriarchal gender roles.

Despite these concerns, the court’s judgment is a welcome victory for Johannesburg’s urban poor. Nomzamo Zondo, Seri’s director of litigation, concludes: “The City has throughout treated our clients as less than human… We hope that today’s judgment will result in a change in attitude towards poor and vulnerable people in Johannesburg’s inner city.”

Tim Fish Hodgson writes in his personal capacity. He works on socio-economic rights, is based in Johannesburg and is a former law clerk of Justice Zakeria Yacoob. He is cricket nerd, a law jock and identifies as a heretic. He tweets from @TimFish42.

The views expressed in this article are the author’s own and do not necessarily reflect the editorial policies of The Daily Vox.

Featured image by Mohammed Jameel Abdulla