April 23, 2007
By Neil Fraser
IN Charles Dickens's novel Oliver Twist Mr Bumble says: "If the law supposes that," squeezing his hat emphatically in both hands, "the law is an ass - an idiot. If that's the eye of the law, the law is a bachelor; and the worst I wish the law is, that his eye may be opened by experience - by experience."
One of the most difficult concepts to get one's mind around regarding urban regeneration is that of evictions. The dictionary defines "to evict" as "to expel from a property by a legal process". The very word conjures up emotive images with which the media love to confront us - poor people sitting dejectedly on meagre possessions strewn on pavements by brutal security guards employed by the sheriff.
The reports that accompany the pictures inevitably depict the situation as one fraught with injustice, poverty and abuse of the poor. Certainly the very act of eviction is one that is supremely negative - it tells those involved that they are not part of the community of the city, that they are not wanted.
But of course it is not always that simple. Dig a bit deeper and often the underlying facts change the way that one views the situation. One starts to find that there is often huge exploitation of the affected people - by gangsters who extort "rental" from the residents; by persons who spread blatant untruths to gullible people; by lawyers who deliberately run up the costs by filing papers late, thus prolonging the process; by the very conditions that people are living in.
Unhygienic and unsafe
Read this description of a building from which the council requested an eviction order: "The floors were flooded with sewer water and that water ran through the building and spilled out of the parking level on to the pavement … There were no fire extinguishers, the fire hydrants were unusable, there was no water supply, smoke and draught doors had been broken and unsafe electrical wiring abounded. In the event of a fire, the occupants would not be able to escape or be rescued … The parking garage was filled with waste and sewer water as well as refuse and faeces; the fire escapes were totally filled with refuse and were unusable … All the courtyards and other open spaces were filled with faeces and refuse …" and so on and so forth.
A previously fine building, the Avril Malan Building on the corner of Sauer and Commissioner streets, was recently highlighted in the media as "the worst building in the city" - the above description comes nowhere close to the conditions in which some 600 people were illegally living; a council official who visited the building says that the entire building has been systematically trashed, even the massive bronze entrance doors have been torn out and sold for scrap. The building is evidently controlled by the very worst kind of gangsters.
Can the City allow this problem to exist?
Just over a year ago now, a ruling on evictions by the City council and related issues was handed down. I quoted liberally from the judgment in
Citichat 7 of 2006 (Evictions - between a rock and a hard place).
High court judgment
The high court judgment centred on an application brought by the council to evict over 300 people from six properties in the inner city based on the National Building Regulations and Building Standards Act 103 of 1977, "which concerns the City's ability to exercise its statutory powers and duties to prevent dangerous living conditions in its area of jurisdiction".
The judgment stated that the council had failed to comply with the constitutional and statutory obligations of a local authority and had failed to give adequate priority and resources to people in the inner city who were in a crisis situation or in desperate need of accommodation. In addition, the judgment made it clear that the poor people resident in so-called "bad buildings" of the inner city of Johannesburg must be given access to homes in the inner city area if the City wanted to evict them from accommodation it considered unsafe.
The rationale was that it was of no value to push poor people from the inner city to areas where they had no hope of finding opportunities to improve their economic standing. The judgment effectively stopped any further evictions until such time as the council came up with a plan as to how it was going to deal with the problem created by evictions.
I pointed out that as a result of the ruling, the council found itself between a rock and a hard place. On the one hand, it desperately needed to address the dozens of "sinkholes" that had been allowed to fester in the inner city if the area was to be truly revitalised and, on the other, there was no practical solution to the accommodation needs of thousands of poor people when the sinkholes were addressed.
The second act in the saga occurred earlier this year when the council appealed to the Supreme Court of Appeal against the judgment. The appeal concerned, "in the main the right of a local authority to order occupiers by notice to vacate a building because it is necessary for their safety or the safety of others and its right, if they fail to comply, to apply for an order of court for their eviction".
Appeal court judgment
The appeal court judge saw the case as only peripherally about the constitutional duty of organs of state towards those who are evicted from their homes and are in a desperate condition. "The central dispute," he said, "is rather whether the City is precluded from exercising its powers to order persons to vacate unsafe buildings unless it first provides them (or at least provide them) with adequate alternative housing. A subsidiary question that arises if the earlier question is answered against the City is whether such alternative housing must be within the city itself."
The judge upheld the City's right to evict people on the grounds that their safety was at risk and ruled that the City must offer and provide those people who are evicted and are desperately in need of housing assistance with relocation to a temporary settlement area within its municipal area - not necessarily within the inner city. He offered some practical procedures that had to be followed.
The judgment also contained two references to the inner city vision and current urban renewal strategy. The first states that, "The vision and plan effectively deny the poor access to housing in the inner city" and the second that, "While it is true that the City has developed, with broad strokes, visions and plans that it has for the city, and that those plans do not altogether leave out the poor, there is little evidence to demonstrate what the City has actually done."
I have been saying much the same thing for a couple of years now. However, I think that the appeal court judgment reflected a far more balanced approach to the huge issue facing the City and provided a critical way forward.
Constitutional Court appeal
But the saga is not over. The third act was announced last week when it was reported in the press that an application for leave to appeal against the Supreme Court of Appeal judgment was lodged. If approved this will transfer the matter to the Constitutional Court, from where a final ruling will be made.
In the meantime thousands of people will continue to live in inhumane and dangerous conditions and continue to be exploited by the system. On the other hand it does give the City the opportunity to put in place emergency and transitional shelter, something that is, in fact, proceeding with all haste.
But now another drama is playing itself out. This time it is a high court ruling issued two weeks ago. The story appears to be that a group of investors bought a building in Soper Road, Berea, from a deceased estate. The new owners advised the residents that they were going to upgrade the building; the tenants replied that they would not pay rent because they had been told by "the person collecting the rent" that they would be given their flats free of charge by the government because the owner was dead.
The building is in an appalling condition; the alleyway behind it is a rubbish dump because the tenants prefer to hurl their refuse out of the window rather than use bins. The new owners applied for an eviction order so as to be able to undertake the upgrade and as they were faced with tenants refusing to pay rent while they, the owners, had to pay council rates and services costs.
Group evictions
The judge introduced a totally new scenario when he ruled that property owners could not obtain a single eviction order for the 24 tenants who were refusing to pay rent ("each person has a different set of circumstances") and that the owners may not cut off water and electricity services even though they were unable to recover these costs from the tenants. In other words, the law actively protects law-breakers.
To seek individual eviction orders is going to cost the owners R120 000 over and above the R70 000 costs they have already run up, and take about another six months while the tenants refuse to pay rent. The implications of individual eviction orders on the rest of the inner city are frightening.
The protection of people who are clearly illegally occupying buildings - illegally in that they refuse to pay rent or service charges - is made possible through the Prevention of Illegal Eviction From and Unlawful Occupation of Land Act - otherwise known as the PIE Act. This was merely a piece of squatter control legislation related to land but, through a controversial court decision in 2002, defaulting tenants and home loan non-payers have been able to hide behind it.
An amendment to correct the legislation was promulgated in 2003 but was then withdrawn. So for the past four years we have defaulters protected legally while the city's buildings become cesspits.
I can only conclude that Mr Bumble was right.
The president has spoken
President Thabo Mbeki evidently castigated business quite severely at his meeting with them during the Gauteng Presidential Imbizo on Saturday, 14 April, but the council was also not spared heavy criticism.
The result has been quite interesting - at a number of meetings I attended this week council officials were saying that they were hurriedly reviewing their plans and programmes because, "The president said …"
What the president said, of course, is nothing new, nothing that hasn't been said previously and ignored - the fact that it came from the president makes everything different. I hope he comes more often.
Ciao, Neil
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