Realising peoples’ rights through provision of basic services and housing

This lecture series honours a community leader, Irene Grootboom. In the 1990s she lived in an informal settlement called Wallacedene, near Kraaifontein, where the residents had no water, sanitation or refuse removal services and only 5% of the shacks had electricity. The area was partly waterlogged and was dangerously close to a main road. Those circumstances must sound familiar to you.

In September 1998 she and some others decided that their circumstances were intolerable and so they invaded some private land. Before long there were 390 adults and 510 children there, without the owner’s permission. He therefore took the matter to court and in December 1998 a magistrate ordered that they be evicted from the land. The people failed to move – their places in Wallacedene had been taken by others and they didn’t have anywhere else to go. Eventually the magistrate appointed lawyers to represent the community and it was agreed that there would be an eviction on 19 May 1999 and that their structures would be dismantled and removed. However the magistrate directed that the community and their lawyers negotiate with the municipality to identify somewhere else for them to live.

That negotiation did not take place. Instead the municipality arranged a surprise eviction a day early, bulldozed and burnt their dwellings and destroyed their possessions. The community sheltered on the Wallacedene sports field and within a week the winter rains started. Their attorney demanded temporary accommodation for them from the municipality without success, so they urgently went to the High Court and on 31 May the Judge ordered the municipality to provide shelter – at least tents, portable toilets and a regular supply of water – until they could obtain permanent housing.

In response every sphere of government objected – and appealed to the Constitutional Court to set aside the judgement on the grounds that the constitutional right to housing did not require them to provide temporary shelter for every one who takes the law into their own hands and invades land. The Constitutional Court agreed that people cannot be allowed to invade land and be rewarded for it. However, the Court required the government to devise a comprehensive and coordinated programme to, within its resources, progressively realise the right of access to adequate housing.

As a result of the Irene Grootboom case the Department of Human Settlements in 2004 introduced two new programmes. The Upgrading of Informal Settlements Programme is to replace informal settlements with registered serviced sites – preferably in the same location but otherwise on alternative land. The Emergency Housing Programme is to provide temporary housing for people affected by a disaster, such as a fire or flood.

All of this has contributed to the following situation in which we find ourselves:

All land within our cities is owned by someone, and nobody has the right to invade it and squat on it. A landowner has the right to prevent people erecting dwellings, and for that reason the City of Cape Town has an Anti-Land Invasion Unit that is constantly patrolling every area of the city to prevent people from occupying municipal land illegally and erecting shacks. Likewise people who already have shacks in informal settlements may not extend them without written permission from the City’s Informal Settlements department – otherwise they will be demolished by the ALIU.

Because all informal settlements are illegal the landowner can apply to a magistrate for an order to have the people evicted. However in terms of Act 19 of 1998 the magistrate must take all the circumstances into account, and usually makes very sure that the municipality has somewhere acceptable for the people to be taken. The City of Cape Town, however, has far too little land, money and infrastructure to be able to cater for everyone’s needs. I shall highlight three major problems.

The first is that many informal settlements have been established on land that cannot lawfully be used for permanent housing – because it gets flooded in winter; or the ground is not strong enough,  perhaps because it is on an old rubbish dump, or the settlement is on land reserved for widening a road or gaining access to a sewer or water main or electricity lines, or the land is being kept for some other use – for a school, community centre or park to be built one day. For land to be used for permanent housing it also has to be zoned for that purpose by the City.

The second major problem is that our informal settlements have become so crowded, so dense, that it is impossible to turn them into a formal township, with everyone having a serviced site. That is what the Upgrading of Informal Settlements Programme is for – but unless there is other available and suitable land formalisation is impossible and the programme cannot be used. In some areas the problem is even greater, and the shacks are so dense that the Council’s workers cannot even find a place to lay a pipe or squeeze in a toilet block.

The third major problem is that Cape Town, more than any city in South Africa, is short of suitable land. Elsewhere cities are able to slowly expand outwards, but here we bump into a mountain or fall into the sea or wander into a special agricultural area or find that the land is protected because it contains very rare plants or creatures. The only place where there is lots of space is north, towards Atlantis, but even if there was enough money to develop housing, to build all the schools, sewerage treatment plants and all the other infrastructure needed, where would you work? How would you get there? And how would you afford it?

It is not only the poor and inadequately housed that have a problem in Cape Town. The municipality has a huge problem in catering for their needs. Money for housing comes from national government, and there is not enough for Cape Town to even prevent the housing backlog from growing. The need for housing keeps growing. The municipality tries to prevent the expansion of informal settlements, but all that does is force more people into the townships, to live in bedrooms and backyards. Furthermore, this is not just a South African problem, it exists all over Africa and in other developing regions. People are moving to towns and cities in volumes that the world has never experienced before.

So what can we do about our informal settlements, because it will probably be only a lucky few who get a house, or even a serviced site? The bottom line in the Grootboom case is that there must be regard for human dignity. “In short”, said the Constitutional Court Judge, “I emphasise that human beings are required to be treated as human beings.” So this is where we get back to – at the very least:  more taps, more toilets, more drainage – the improvement of informal settlements.

You as informal settlements residents and community leaders have to help the municipality to find a way to do this, by working with them. To do that you need to be organised – and you’ve already heard from the Social Justice Coalition and the Informal Settlements Network. But the City must also get organised – and so I now want to highlight some fundamental areas in which the City can easily improve.

Eleven years after Irene Grootboom’s Constitutional Court case that was regarded as a landmark in securing socio-economic rights we have more informal settlements than ever, the environment in which their residents live – certainly here in Khayelitsha – is worsening, and the chance of them getting housing in any form is very small and diminishing.

The right to housing is a progressive right – it is a ‘right to have access to adequate housing’ – which in Cape Town means little more than a right to be on a very long waiting list, which grows every year. In addition to our housing backlog of about 400 000 households we have a severe shortage of well-located and affordable land for housing, inadequate bulk infrastructure and not enough money. We must come to terms with the fact that most of our informal settlements are here to stay and they are likely to grow in number.

For most informal settlements residents the right to housing is not very helpful. It is a nice idea to dream about, but in the meantime what they need is a less hazardous environment – more toilets, more taps, more drainage, better access roads – at least for emergency vehicles, better policing, some lighting, less dependence on dangerous fuels, and more protection against the City’s demolition squads. 

The Department of Human Settlements won’t help – they only do houses, serviced sites, flats and emergency camps like Blikkiesdorp for victims of fires and floods. Its Upgrading of Informal Settlements Programme, created in response to the Grootboom judgement, can only be used to create proclaimed serviced sites – and if there is insufficient land they have nothing to offer. Unfortunately they believe that all informal settlements can be eradicated whereas we know that they cannot. Not in Irene Grootboom’s lifetime – and probably not in ours either. The dream world versus the real world.

So who can we find to address the real issue of having no toilet or tap nearby, a baby with diarrhoea yet again, no light, no drain… Is there anyone in government who has responsibility and authority and is accountable for the state of our informal settlements? No, there isn’t. Instead all the different departments duck and dive, pass the buck, blame their budgets, blame the residents, submit reports and have meetings. There is no one in charge of informal settlements. We need one senior official to be given the mandate and the means to coordinate and drive the process.

What about the politicians? Isn’t there someone who will stand up and say we are in a new era of unprecedented global urbanisation. This is not colonial Cape Town or apartheid Cape Town or rich Cape Town or beautiful Cape Town – this is real Cape Town and we have a major humanitarian problem! In this World Design Capital and Top Tourism Destination we have people with nowhere to relieve themselves! We need a brave, committed, dedicated political champion who can hold all the reigns and whip all the horses and command attention in the corridors of power.

And what about the baby with diarrhoea? We must get her to a clinic. But what about the filthy water standing outside her shack, the garbage overflowing from the skip, the toilet that is too far and is blocked anyway? Who knows about that? The municipal health inspectors. What can they do about it? They write a report. Where does it go? It is compiled into a bigger report which is used to try to persuade other departments to respond. Is it effective? Not really.

Do municipal health inspectors have no power? Yes, they do, but it takes some guts to issue a Compliance Notice in terms of Section 83 of the National Health Act to your boss the Mayor or City Manager, instructing them to take appropriate corrective action in order to minimise, remove or rectify the condition. The law requires health inspectors to take action against anyone responsible for violating our constitutional right to an environment that is not harmful to our health or well-being. That, I would submit, is a much more fundamental right for us all to insist upon in this case than the right to access housing.

The good news is that all these things are possible in this amazing City. Our Mayor can instruct her health inspectors to fearlessly issue Compliance Notices to anyone in the City and ensure that they are enforced. The Mayoral Committee Member for Utility Services is a powerful and determined fighter for the marginalised and would make an excellent political champion for improving informal settlements. And a year ago the City appointed an Urbanisation Director, highly qualified in human settlements & health issues, well acquainted with Khayelitsha, yet who is still waiting to be given responsibility, authority and some personnel.
Let’s see our City work for us.