Abahlali baseMjondolo Movement of South Africa & Another v Premier of KwaZulu-Natal & Others (Concourt)

Abahlali baseMjondolo Movement of South Africa, an organisation representing thousands of people who live in informal settlements, and its President, Mr Sibusiso Zikode, approached the KwaZulu-Natal High Court, Durban, challenging the constitutionality of the KwaZulu-Natal Elimination and Prevention of Re-emergence of Slums Act. The High Court dismissed the challenge.

The applicants made two contentions before this Court. They claimed first that the whole provincial Act was invalid because the KwaZulu-Natal legislature had no provincial power to make the law because it trespassed into land tenure a legislative competence reserved for the national legislature.

They also contended that section 16 of the Act was inconsistent with the Constitution and invalid. Section 16 gives the Member of the Executive Council of the province power to publish a notice in the provincial gazette determining a period within which an owner or person in charge of land or a building that is occupied by unlawful occupiers mustinstitute proceedings to evict the occupiers under the PIE Act. If the owner or person fails to comply, the municipality must bring proceedings to evict the occupiers.

Yacoob J, writing for a unanimous Court on the legislative competence issue, found that the Act was within the power of the province to pass laws on housing. He pointed out that the Act is not concerned with evictions alone but with the elimination of slum conditions by upgrading and relocation. He also pointed out that the Act placed detailed responsibilities on municipalities as well as the Member of the Executive Council responsible for housing in the province. A slum is a home in which people live. An Act concerned mainly with improving the circumstances in which people lived is concerned with housing. The Court therefore rejected the first contention and held that the provincial legislature had the power to pass the provincial Act.

On the constitutional validity of section 16 of the Act, Moseneke DCJ, writing for the majority (with Langa CJ, Cameron J, Mokgoro J, Ngcobo J, Nkabinde J, O'Regan J, Sachs J, Skweyiya J and Van der Westhuizen J concurring), held that section 16 of the Act is inconsistent with the Constitution and invalid.

Moseneke DCJ found that section 16 compels an owner of a building or land or the municipality within whose jurisdiction the building or land is located to institute eviction proceedings against unlawful occupiers even in circumstances where the requirements of the PIE Act, which protects unlawful occupiers against arbitrary evictions, may not be met.

Moseneke DCJ noted that section 16 of the Act will make residents of informal settlements, who are invariably unlawful occupiers, more vulnerable to evictions should an MEC decide to issue a notice under section 16.

Moseneke DCJ also concluded that the power given to the MEC to issue a notice is overbroad and irrational because it applies to any unlawful occupier on any land or in any building even if it is not a slum and is not properly related to the purpose of the Act, which is to eliminate or to prevent the re-emergence of slums.

Accordingly, the majority judgment granted an order declaring that section 16 of the Act is inconsistent with section 26 of the Constitution and invalid.

Yacoob J dissented on this second issue. He found that the contested provision could be read subject to all the safeguards provided by the Constitution and the PIE Act. He held that, on a proper construction of the Act, an owner or municipality had to comply with the PIE Act and all other relevant legislation before an eviction could be ordered.Neither the municipality nor the owner could evict unless the evidence at their disposal satisfied these requirements. The section was therefore consistent with the Constitution.

A copy of the judgment can be found here.

Source: Polity.org

1 216 get new homes in Durban

Housing Minister Brigitte Mabandla officially opened a slums clearance project in the eThekwini (Durban) municipality on Tuesday. Keys were handed to some of the 1 216 new homeowners located in the Welbedacht West area. It is one of six main areas that stand to benefit from the slum clearance housing project, which began in 2001 and has, to date, cost almost R218m to implement. "The settlements selected have been earmarked for complete relocation for a variety of reasons such as the threat of flooding, major environmental health risks, unstable land, fire risks and the size of the settlement which may be too small to be feasible for an upgrade project," said Mabandla.

She said project beneficiaries would receive their subsidies from the department of housing, as well as a substantial top-up from eThekwini municipality to ensure that adequate levels of service - such as tarred bus routes, sewer reticulation, water and electricity to each household - were provided. "Houses have been constructed in terms of the housing department's minimum norms and standards, which provide for a 30m² house," said Mabandla. All projects with the exception of Namibia Stop 8 in Inanda were at an advanced stage of construction.

The 10 869 houses and sites was anticipated to be a three-year construction programme, with the construction of houses and services almost 60& complete. Welbedacht East and West, as well as Parkgate, are scheduled to be completed by the end of 2004.

Meanwhile, eThekwini mayor Obed Mlaba said his council had committed itself to funding services and had contributed about R70m to achieve this. "The council has pursued a policy of bridge financing the development to ensure rapid delivery of housing and services," said Mlaba at Tuesday's handover. He said that, according to the eThekwini council's informal settlement programme, proposed housing interventions had been divided into four categories. These were in-situ upgrade; relocation; partial in-situ upgrade and partial relocation; and approved in-situ upgrade housing projects.

In phase one of the slums clearance project, a total of 3 500 informal households will need to be relocated from 10 settlements.

Source: News 24