Introduction
At the end of the apartheid era, South Africa was marked by two foundational injustices: the formal exclusion of black and African people from political society, and a racialised pattern of economic inequality. These two forms of oppression were interlinked, and inextricable. They were written on the land itself, in the exclusion of Africans from the country’s urban centres and its substantial formal economy. As apartheid came to an end, the architects of South Africa’s new democracy were forced to wrestle with the interconnection of exclusion and inequality – and to design a political, legal and economic order that would end them.
The design for this order was entrenched in the post-apartheid Constitution. It describes South Africa as founded on the democratic, non-racial and equitable values of a bill of rights. The Constitution directly addresses the political exclusions that defined apartheid, guaranteeing all citizens the rights to participate in elections, to vote, to speak and to associate freely. It also permits freedom of movement, and opens all of the country – including its cities – to all. But it does not end there. The Constitution also guarantees a range of socio-economic rights, including rights to health, healthcare and emergency medical treatment; to an environment ‘that is not harmful to … health or well-being’; to housing, and protection against arbitrary eviction; to ‘sufficient food and water’; to education; and to social security and assistance from the state. The clear intention is to address structures of economic exclusion alongside ones of political exclusion (Liebenberg 2010).
Of course, it would be misleading to suggest that the adoption of this constitutional design led to the immediate creation of a just and equal society. Instead, South Africa has continued to be marked by interconnected forms of political exclusion, racialised poverty and gross inequality. The Constitution has, however, provided a new set of tools that have permitted some in South Africa to repeatedly challenge, confront and – in some ways – ameliorate the persistent economic, social and spatial inequalities that still mark the post-apartheid order.
In this paper, I explore the ways in which the constitutional instruments designed to address political exclusion and socio-economic inequality have been used to do so – but not primarily by our governing elites and technocrats. Perhaps unexpectedly, these instruments have been used by insurgent communities of South Africa’s poor. In using these instruments they have remade the state’s responses to economic inequality and exclusion. They have also enacted a claim to equality in citizenship (Brown 2015). In both these acts, they have worked to combat the neoliberal trajectory of the South African state’s social policy. On this basis, I argue that these interventions ‘from below’ are important elements in South Africa’s contemporary struggles to respond to ever-widening social and economic inequality.
The paper is structured as follows: first, I will briefly consider the current situation of poverty and inequality in South Africa, as well as the state’s policy responses to the crisis of inequality. I will argue that access to secure tenure in urban spaces is central to many people’s economic strategies. I will then narrow my focus to consider the struggles of activist communities that have been seeking to defend their right to remain in urban spaces. I will suggest that effect of these struggles has been to shift the basis of national and local economic planning, and to create a tenuous and uneven response to inequality and exclusion – a response that is made ‘from below’. Finally, I will consider the potential consequences of these struggles within the overall frame of South Africa’s broadly neoliberal political order.
Poverty, inequality and policy after apartheid
First, a caution: it is notoriously difficult either to define or to measure poverty or inequality with any consistency (May 2012; Posel and Rogan 2014). In South Africa, the problem is compounded by a paucity of historical information – as, throughout much of the twentieth century, economic data were gathered for only some portions of the population (McGrath 1984). Nonetheless, the consensus that has emerged from more recent data suggests that South Africa possessed – and still possesses – one of the world’s most unequal economies.
Income inequality was extreme at the end of apartheid, and has worsened since. Although there are obvious differences in the methods of calculation, attempts to estimate South Africa’s Gini coefficient at the end of apartheid settled in a range between 0.60 and 0.69 (Treganna and Tsela 2012). Attempts that use later figures, mostly from the 2000s, fall within a range between 0.68 and 0.8. The trend in the first decade after apartheid was therefore towards increasing inequality (Leibbrandt, Finn and Woolard 2012; Seekings and Nattrass 2015). It appears as though this trend has continued. Indeed, the World Bank has recently declared South Africa the world’s most unequal society (Sulla and Zikhali 2018).
There are two obvious factors that play a role in this. The first has been the untrammelled entry of South Africa’s capitalist class into international markets after the end of apartheid (Marais 2001, 2011; Bond 2014). This has meant that the income of the richest 10% of the population has increased significantly over the past quarter-century (Alvaredo et al. 2017). The second is the failure of this new wealth to spread beyond a small fraction of South Africa’s population. One measure of the failure of these new markets can be found in South Africa’s exceptionally high rate of unemployment. Using a narrow definition, an estimate placed the rate of unemployment in 2014 at 24% of the potential working population; using a broader definition – one that captures those discouraged from searching for jobs – that rate was 35% (Bhorat et al. 2015). More recently, Statistics South Africa recorded that in early 2020, shortly before the start of the Covid-19 crisis, about 16 million people were employed out of a working-age population of approximately 39 million people. Seven million were officially unemployed, and another 15 million were not ‘economically active’ (Stats SA 2021).
Although the adoption of socio-economic rights in the post-apartheid constitution highlighted the new state’s willingness to confront the economic crisis that marked apartheid, the state’s policy responses to widening inequality have been uneven both in conception and in effect. Conceptually, it has sought to reduce poverty for the majority of the population while permitting inequality to grow through the accumulation of wealth by a small minority. In general, it has allowed the market to function with minimal restrictions, adopting a broadly orthodox neoliberal model of growth (Marais 2011; Bond 2014). It has focused its policy efforts on the reduction of poverty and the amelioration of social harm.
As such, the post-apartheid state’s principal policy response to poverty has been the development and cautious maintenance of a welfare system, which has focused on the provision of specific conditional and means-tested grants (Patel 2005). The most important of these are the child support grant and the older persons’ grant (effectively, a pension). As of December 2018, of the approximately 17 million social grants being administered by the state, over 12 million were child support grants and over 3.5 million were older persons’ grants (SASSA 2018). These grants have clearly helped in reducing poverty rates: from about 2000, South Africa has seen a modest but noticeable reduction in its overall poverty rate. Between 2006 and 2015, for example, the percentage of the population that was defined as ‘upper-bound poverty-line poor’ – meaning that their income fell below R992 per person per month – fell from 66.6% to 55.5%. Similarly, the percentage of the population that was defined as living in ‘extreme poverty’ fell from 28.4% to 25.2% (Stats SA 2017).
However, even the modest successes of this approach have been uneven in effect. Income disparity between racial groups has declined, while income disparity within these groups – particularly within the African majority – has increased (Leibbrant, Finn and Woolard 2012). Similarly, a survey of gendered trends in poverty concluded that ‘the reduction of poverty has favoured males and male-headed households’ and that ‘the extent and depth of poverty are considerably higher for females and for female-headed households’ (Posel and Rogan 2012).
Significant as these trends are, there is another that is particularly important for this article: that between rural and urban households. A recent study has suggested that in the decade between 2002 and 2012, ‘rural lived poverty probably declined … while urban lived poverty probably increased.’ The study argued that this was due to several factors, including the general movement of large sections of the African population from rural to urban areas in search of work, and the ‘increasing stress of urban infrastructure, particularly with regard to access to water and electricity’ that had followed on this mass urbanisation (Zimbalist 2017).
This dynamic is firmly located in the conceptual limits of the state’s approach to economic inequality: although grants have been effective in reducing poverty in rural areas, they have proven incapable of producing real improvements in the livelihoods of many people. They have created communities of the very young and the very old – the principal recipients of grants (Satumba, Bayat, and Mohammed 2017). As a consequence, those who do not benefit directly from these grants – primarily, men and women of working age – have often moved from rural areas to urban centres, in part because of the absence of waged labour in rural areas. The availability of these – often highly precarious – economic opportunities in urban centres has been a primary driver in a massive trajectory of urbanisation (Barchiesi 2011).
A key element in the livelihood strategies of these communities, therefore, is access to relatively secure tenure in the urban environment. Security of tenure enables men and women to seek work in the city, and to ride out the periods of uncertainty between periods of employment. This is of particular importance in the context of South Africa’s highly precarious and volatile labour economy. However, urban tenure is often notoriously insecure. The formal rental market is too inflexible to respond to the fluctuations of income that mark precarious economies; few workers can accumulate sufficient capital – or sufficient credit – to purchase a home; and the state’s efforts to provide subsidised housing have not proved capable of responding to the increased demand in urban areas (Royston 2017).
The overall picture of poverty and inequality in South Africa therefore remains one of an uneven distribution of the economic dividends of democracy. The rich have become far richer. The poor have become – on average – less poor, largely due to the social welfare system. But the reduction in poverty rates has not prevented the growth of economic inequality, and a growing class of the urban poor in particular are feeling its effects.
Staking a claim: law, politics and urban tenure
One consequence of this has been the emergence of a new politics of the urban poor. In this section I outline three cases of the political mobilisation of urban communities in response to threats to the security of their tenure – and show that, in these cases, although a wide repertoire of actions have been deployed by these communities, the most effective have been strategies of targeted litigation, in which the communities have sought to use the constitutional frame of socio-economic rights to reshape the possibilities of local political action. The consequences of these rights-based claims will be the subject of the final sections.
Given the importance of the legal interventions – both for the communities and for my argument – it may be useful to survey their key elements. Section 25 of the Constitution governs rights over property. Its first sub-paragraph reads, ‘No one may be deprived of property except in terms of a law of general application, and no law may permit arbitrary deprivation of property.’ Section 26 governs the right to housing, and begins: ‘Everyone has the right to have access to adequate housing.’ The section continues: ‘No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.’
These principles were given legislative effect in the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (No. 789 of 1998). The PIE Act, as it is known, recognises the existence of unlawful occupation of land, and decriminalises such occupation. It provides a mechanism through which a landowner can apply for the eviction of unlawful occupiers from their land, and requires that this application be considered by a court. The Act requires the court to investigate ‘all the relevant circumstances’, so as to determine whether it would be ‘just and equitable’ to grant an eviction order. The Act also gives the court the power to refuse an eviction order if it finds that it would not be just and equitable to grant it – even if the owner would otherwise be within their rights to demand it (see Wilson 2009, 2011a, 2021; Williams 2013–204; Strauss and Liebenberg 2014).
It is important to recognise that, at first, this legislative framework had little discernible impact. Few cases came before the courts. When they did, in judgments such as those in Betta Eiendomme (2000) and Groengrass Eiendomme (2002), many judges were often uncertain of how to interpret the new law, and so chose to apply it narrowly.1 Others were clearly sceptical of the principles that it established, and so chose to continue to apply older common law processes – even when these clashed with the intentions of the new law (Wilson 2021).
In other words, the passage of legislation did not cause an immediate change in practice. It was necessary for communities to fight to give substance and meaning to the rights stated in the text of the Constitution and embodied in the PIE Act. But these struggles did more than this – as the following examples make clear. They converted a negative entitlement (to protection from unjust eviction) into the creation of positive state policy and practice.
Inner city evictions
The first of these struggles took place among those most vulnerable to eviction in urban areas – the unlawful residents of otherwise abandoned buildings. In the inner city of Johannesburg, these buildings were typically abandoned by their legal owners in the late 1980s and early 1990s, as the mass movement of African people into the cities sparked capital flight. The buildings were then occupied by these migrants, who would either pay a minimal rent to people who presented themselves as the legitimate owners of the building, or, in lieu of rent, collectively contribute to the upkeep of the building and to payment for water, electricity and other services. In both cases the affordability of these spaces was linked to their place outside of the formal rental market – which does not cater for those in informal and precarious employment, or those who depend on grants and occasional windfalls, or indeed any of those who have no access to predictably remunerated formal or informal employment (SERI 2013).
For several years, these occupiers were largely left to their own devices. In the mid 2000s, however, as the possibilities of urban gentrification began to present themselves, more of these buildings were repurchased (or reclaimed) and the new owners sought to gain control over their properties. Their first step was the eviction of the existing occupiers. In many cases, these evictions were successful. The residents of these buildings were rarely organised, and rarely able to resist eviction. The sight of the ‘Red Ants’ – a private firm that administered mass evictions in the inner city, named after the workers’ red uniforms – carrying out an eviction was all too common. In the wake of these assaults, the residents of some buildings began to organise themselves and seek to frustrate these eviction orders.
In these buildings, resistance took several forms. In some, it involved stoically enduring the violence of an eviction and then – following the exit of the Red Ants or police – returning to the building. This was hardly a happy process: homes would have been damaged in the eviction, goods despoiled and identity papers destroyed or stolen. In these buildings, a war of attrition continued for months or years. In other buildings, residents sought to resist the eviction more actively – but these efforts were rarely successful, and often led to arrest and repression. Some building committees thus decided to approach non-governmental organisations (NGOs) to ask them to provide legal support (Wilson 2011b; Wilhelm-Solomon 2016).
The initial approaches made by these building committees to NGOs arose from contingent circumstances. One example may give a sense of these circumstances. In the mid 2000s, researchers from the Centre for Applied Legal Studies (CALS) at the University of the Witwatersrand conducted a wide-ranging survey of the tenure situation applying to the residents of Johannesburg’s inner city, working with the Centre for Housing Rights and Eviction (the work was published as COHRE 2005). CALS operates both as a research unit in the university and as a legal clinic. When residents of a building known as San Jose faced an eviction application, the building committee drew upon their existing relationships with academic researchers to approach CALS’s legal clinic for support. This initial connection provided the impetus for legal support, which eventually resulted in a series of cases that ended up in the country’s Constitutional Court (see Olivia Road 2008).
In general, the support of these organisations enabled these building committees to resist eviction orders in court – before the Red Ants appeared. In a series of groundbreaking cases, these committees argued that the Constitution and the PIE Act placed an obligation on courts to consider all the relevant circumstances to determine whether or not an eviction would be just and equitable before granting that eviction. The length of the occupiers’ residence, their personal circumstances, and the consequences they faced on eviction were all relevant circumstances. In particular, the litigants argued that no eviction that left people homeless could be ‘just and equitable’ (Occupiers, Shulana Court 2010).
The courts accepted these arguments, and held that no eviction that would lead to homelessness could be granted. Once they had done this, though, they turned to consider the rights of property owners. In general, the courts held that owners also had constitutional rights over property – which meant that the inevitable clash of rights must be addressed. This clash would have to be resolved by the state. As eviction orders could only be granted if the threat of homelessness was removed, and as property owners continued to possess the right to be granted eviction orders, the state needed to have a policy that would provide emergency housing to those who were evicted from their homes. The courts gave the state some guidance. This housing would have to effectively prevent homelessness – which meant that it could not be linked to a rent beyond what the occupants could pay (Blue Moonlight 2012). It also had to respond to the expressed needs of the relocated residents. It could not be time-limited in such a way as to simply postpone homelessness: although it was temporary, it had to extend until the housing ‘emergency’ was over and a resident had found something else. It had to be decent accommodation, conforming to the constitutional requirements of human dignity – which also meant that it must not separate the residents from their social networks or their livelihoods (Dladla 2018).
Such accommodation barely existed prior to these cases, and the City of Johannesburg argued strenuously that it was beyond its capacity to provide it. The courts disagreed, and in the Blue Moonlight decision (2012) instructed the City to plan and budget to create a housing programme that would ensure no one would be rendered homeless by eviction. Despite several appeals, the communities and the courts have held firm and – in the face of recalcitrance from the state – have seen these programmes begin to come to fruition, in Johannesburg and elsewhere. In other words: the efforts of the residents of inner city buildings to resist eviction led to the creation of a court-ordered emergency housing policy.
Informal settlement relocations
A parallel struggle has been led by the residents of the informal settlements that have sprung up on abandoned, unused and fallow ground within and on the edges of cities. These communities, too, have faced challenges to their presence in urban space – and have also chosen to use the Constitution’s rights-based framework to defend their tenure in the city.
The settlements have generally developed when people with limited access to formal housing have identified apparently unused land: sometimes land that has been left unused by speculative investors, sometimes land that is owned by the state, sometimes land on the edges of large plots that are not maintained. Sometimes, this land is technically unsuited to the construction of standard housing, perhaps because it lies on a slope, or because the ground is undermined by potential sinkholes. Residents occupy these plots because there is no formal accommodation available on the market, and so they choose to construct makeshift shacks – using iron sheeting, plastic, wood and any other low-cost material that can be found nearby (see Huchzermeyer and Karam 2006; Huchzermeyer 2011).
Although there are exceptions, these plots tend to be occupied in a piecemeal fashion (Huchzermeyer 2003). One family moves in first, then others follow as word spreads. Some of these settlements are small, occupied by a few dozen families; others are enormous, with thousands to tens of thousands of occupants. Regardless of the size of the settlement, residents are always in tenuous occupation – they have no formal right to live on the land, their residences are often perceived as public nuisances, their homes are fragile and they are vulnerable to police harassment. In these conditions, individual residents need to come together to form community organisations that can respond to threats to their tenure.
Abahlali baseMjondolo is one such organisation. It began in informal settlements around Durban in the mid 2000s, spread over the next decade, and now represents communities across the country. In its earliest days, Abahlali focused on community organisation, on petitioning the state, on resisting the destruction of shack settlements by the police forces, and on rebuilding shacks and communities afterwards (Zikode 2006; Patel 2008; Pithouse 2009). It was this latter work that led Abahlali to take the decision to engage with NGOs and other organisations to explore the possibility of deploying the law in their struggles.
Over the past 10 years, Abahlali has sought to ensure that the demolition of occupied shacks is recognised as an act of eviction – even though the occupation of the land is unlawful, and even though the shack itself is a makeshift structure. At the core of Abahlali’s argument is the idea that these shacks – no matter how ramshackle or fragile – are people’s homes (see, for significant examples, Abahlali I 2008; Zulu 2014; Abahlali II 2015). They are more than the materials that constitute them. They are where people live, where they sleep, where they raise their children. As such, they are protected by Section 26(3) of the Constitution.
As part of the effort to have their shacks recognised as homes, Abahlali has also worked to resist the common practice of pre-emptive demolishing of nascent settlements, as well as the extra-judicial demolishing of existing settlements, by the police and by various municipalities’ ‘land-invasion control units’ (LICUs). In Zulu (2014), for example, Abahlali argued that the residents of an informal settlement in eThekwini had been improperly evicted by the municipality’s LICU. The LICU’s practice was to identify unlawfully occupied land and destroy any existing structures that it found there. It did so without a court order, because – in the LICU’s submissions – these structures were incomplete and thus not truly occupied. It was therefore merely preventing a new land occupation. Abahlali argued that this was wrong. The land in this case had been occupied for several months before the LICU’s first operation. The LICU had demolished the residents’ shacks, and then – over the course of several months – returned over and again to assault the residents and destroy their homes. It then suggested that the newly dilapidated condition of these structures (caused, of course, by its action) was proof that no existing settlement had been established on this land.
Abahlali argued that the LICU was using its powers to effect evictions. Its actions were not intended to prevent a new occupation, but rather to render an existing occupation insecure. This was an inappropriate use of the local state’s powers – and a clear attempt to bypass the need for judicial oversight of eviction proceedings. As such, it should not be permitted.
The KwaZulu-Natal High Court eventually agreed with Abahlali’s argument, and held that the LICU’s practice was not permissible. The disruption of an occupation was an eviction – and not merely a preventative measure, taken within the law. The consequence of this decision is that every attempt by the state or private capital to dislodge a settled occupation must be governed by the Constitution and the PIE Act – which means that it must be overseen by a court and treated as an eviction, and cannot be allowed to lead to homelessness. (This principle is currently being tested in a further case, SAHRC v Cape Town 2019, in which the similar practices of the City of Cape Town’s ‘Anti-Land Invasion Unit’ are being challenged. Abahlali is acting as amicus curiae in this case, which has not yet been decided.)
In other words, the same protections demanded by the residents of inner city buildings are being demanded by the residents of urban informal settlements. The argument is that the act of setting up a home – no matter that this act takes place outside of the formal legal system, or outside of the property market – brings the residents of that home into the ambit of the law, and triggers a duty on the part of the local state to protect their rights. In practice, this means that the state should not be permitted to dismantle a structure that is being used as a home simply because that structure has been constructed without lawful permission. It must apply to the court for an eviction order, which will only be granted once a court has been assured that the eviction will not lead to homelessness – something that can generally only be guaranteed once the state has committed to providing alternative housing to the evictees.
This argument has been largely accepted by the courts, leading to further consequences. The demolition of informal settlements should now be accompanied by a process of relocating the residents of those settlements – sometimes immediately into newly built permanent housing projects, sometimes first into temporary holding sites. These have created their own conflicts, which Abahlali and the residents of the affected settlements have continued to fight.
In one example, this has led to the ongoing evolution of a proposed housing programme so that it better reflects the particular social and economic needs of relocated residents. In Mchunu (2013), a community was able to argue that the relocation proposed by the eThekwini Municipality did not sufficiently respect their social circumstances. The initial proposal had been to relocate them to a new development, more than 40 kilometres from their existing neighbourhood. It was undisputed that the effect of this movement would be to sever them from their communities, to make it impossible for them to continue in their existing jobs and force them to take their children out of their existing schools. The community insisted that this would cause irreparable damage to their lives – and the KwaZulu-Natal High Court agreed. The municipality was ordered to provide the residents with accommodation that did not sever their networks, and that respected their social and economic needs (SERI 2019b).
The effect of these arguments has been to expand the temporary emergency housing programmes developed in response to litigation by inner city residents to cover the residents of urban informal settlements. This implies a significant reorientation of the state’s policy priorities – and a massive expansion of the state’s capacities beyond its initial proposals.
Upgrading informal settlements
These two examples developed in reaction to attempts by private developers and the state to displace poor communities from their homes. The third example, however, comes from a moment in which residents of an informal settlement moved beyond resisting evictions and sought to compel the state to implement a programme to upgrade the settlement in situ.
The residents of Slovo Park – an informal settlement to the south of Soweto, in the Johannesburg municipality – have been repeatedly promised housing by the local state. In 1994, they were allocated housing grants and a private developer was contracted to begin a formal housing programme. For reasons that have never been fully explored, however, these houses were not built, and a different developer constructed a neighbouring residential estate. The residents of Slovo Park did not benefit from these new houses, and instead remained on site in the informal settlement. At several points in the next decade, local and national politicians visited the settlement and promised the residents that housing would be provided. None of these promises came to fruition (Tissington 2011; SERI 2014).
The residents – through the Slovo Park Community Development Forum (SPCDF) – attempted to hold the state to these promises: they petitioned officials, attended meetings and organised marches. They developed a plan for the upgrading of their settlement – for the installation of services and the formalisation of their tenure. They conducted a ‘skills audit’ of the settlement, and built a community hall. They sought to demonstrate their unity.
When these attempts to convince the state to act failed, the residents of Slovo Park turned to the courts. They launched a case intended to compel the municipality to implement an existing national policy framework – the Upgrading of Informal Settlements Programme (UISP) (Melani 2016). A successful implementation of the UISP would provide provincial funds to develop and upgrade Slovo Park – to install electricity, water, sewage and other services, and to formalise the residents’ tenure. However, the UISP could only be activated by an application made by the municipality. Although the residents had already tried to persuade Johannesburg to make such an application, it had not done so. The possibilities raised by the UISP were thus dormant – and could only be explored if the court agreed with the residents, and ordered the municipality to make this initial application.
Although the case was conservatively framed, its implications were remarkable. The residents sought to restructure the process at the heart of state policy: instead of leaving the decision to activate the UISP in the hands of the municipality, the residents aimed to make that decision themselves. They sought to reduce the control that the state could exercise, and to enhance their own agency. They were unwilling to wait on others to identify the right policy to apply to their situation – and believed that they could identify it themselves.
In effect, therefore, the residents were claiming the right to determine the planning and development of their settlement – and to take the initiative to do so from the local state.
The judgment of the High Court handed down in 2016 granted them this right. It instructed the City of Johannesburg to ‘make an application … for funding to upgrade the Slovo Park Informal Settlement in terms of the Upgrading of Informal Settlements Programme within three months … ’. The relevant municipal office-holders were personally directed to submit reports on the progress of the application to the court and to the residents’ representatives. The Provincial MEC for Human Settlements was ordered to consider the application and submit a further report, ‘setting out what steps he has taken and will in future take to upgrade the Slovo Park Informal Settlement … ’ (Melani 2016).
This order was not appealed. The City of Johannesburg initiated the first stages of an application in terms of the UISP, and – following the prescribed process – began to consult with the Community Development Forum. In discussions with the residents’ legal representatives, it is clear that the process is ongoing. The electrification of the settlement proceeded and, in 2018, Slovo Park was connected. A plan for the upgraded settlement was drawn up by the City’s experts – and rejected by the community. It did not provide for all the residents, and involved the relocation of a large number of them. This was unacceptable, and so a new layout plan was drawn up by the community, and accepted by the City. This revised plan required the City to purchase adjacent land, and rearranged the layout of the upgraded settlement to include the majority of the approximately 10,000 residents.
Throughout, the community insisted on actively participating in – and, to some extent, controlling – the development of the upgrading programme. They exercised a veto over the map drawn by the city’s experts, and presented alternative proposals. The process has not been without conflict or contest, but the upgrade has nonetheless proceeded. It is unlikely that it would have done so otherwise: in the two decades that preceded the court case, the community had been promised either housing or upgrading many times without effect. Their legal actions enabled the community to drive the project themselves – and to stop waiting. The agreed application in terms of the UISP was finally submitted on 6 November 2019. At the time of writing, the provincial government had yet to respond to this application.
Making policy from below
The effects of these litigious engagements ‘from below’ are remarkable in their scale – and in their impact. The development of a temporary emergency housing programme, funded and administered by the state, is a product of the confrontational actions of the residents of inner city buildings – first by resisting efforts to evict them, and then by forcing the development of policy through the courts. The extension of this programme to the residents of informal settlements, too, was a consequence of struggle. And the promised implementation of the state’s Upgrading of Informal Settlements policy is a direct result of ongoing challenges.
The scale of these interventions into the processes of policymaking are even more notable when placed in contrast to the extremely limited efficacy of formal ‘participation’ in official consultative processes. As Miraftab, among others, has pointed out, the trend in official consultation has been towards increasing suspicion of public pressure – and active mistrust of community organisations working outside of ‘invited spaces’ of participation controlled by the state (Miraftab 2004; Benit-Gbaffou and Oldfield 2011; Buire 2011; Lemanski 2017).
The first consequence of these struggles, then, has been to reshape the ways in which ordinary men and women may participate in the making of policy. The resources found in the Constitution have allowed communities to insert themselves into these processes of policymaking ‘from below’ – and without having to wait on an invitation to participate from the state. The second consequence is that these struggles have notably changed the content of these policies. The communities not only have acted to force the fulfilment of existing policy promises, but have also forced the state to change and to develop these policies to meet their needs. They have insisted that the spatial elements of inequality be recognised – that social and economic networks are a vital element of urban tenure. They have even repurposed policy, and reshaped it to address their own needs in their own circumstances.
The impact of these newly devised and newly implemented policies on the state and the country’s overall economy is not yet measurable. But it is important to recognise that the orders of the court have acknowledged the potential economic difficulties, and have generally limited themselves to ordering the local state to develop and budget for these policies, as in the Blue Moonlight decision. It is only when a local municipality has clearly failed to do so – and hoped to evade its responsibilities by claiming that it has no available resources – that the courts have stepped in and ordered immediate, unbudgeted for, performance.
The existing programmes currently operate on a relatively small scale, providing accommodation to a few thousand residents in any major city. At present, no city has a housing programme capable of accommodating all of the people who would require it. The scale that would be required to permit all formal property owners to reclaim their property would be far greater. A further legal challenge brought by the approximately 60,000 residents of the Marikana Informal Settlement in Cape Town, requiring the state to expropriate the land on which the settlement is constructed and to apply the UISP to it, demonstrates the potential impact of such a change in scale (see Fischer v Unlawful Occupiers and Others 2018).
Nonetheless, these changes – incomplete as their implementation might be – have been immediately felt by communities of the poor in South Africa’s urban areas. These policies reflect their own experienced needs within the neoliberal post-apartheid order. They are either ineligible for social grants, or unable to survive on them; there is no access to waged labour outside of the cities; and so the ability to access even informal and precarious employment in the urban spaces is essential to their ability to survive – or to imagine the possibility of leaving poverty. The protections that these policies offer these communities is of central importance to their livelihood strategies at present (e.g. Joynt and Webster 2016).
The impact of these changes is ongoing and open-ended. One group has seen concrete alterations in their lives: several communities have been relocated either into state-sponsored rental housing or into long-term ‘temporary’ accommodation; they have been spared the threat of homelessness or displacement from the city. They continue to maintain a fragile connection to the country’s economy, and to their existing social networks in the city (SERI 2019a). Uncounted others, however, have been granted a defence against the further degradation of their existing situation. These groups and communities remain in unlawful occupation of inner city buildings and shack settlements, protected from the threat of homelessness. They cannot be moved from their residences and remain in occupation.
It is difficult to estimate the practical impact of these decisions on communities other than those identified in the particular cases. However, two pieces of information suggest that these decisions have had far wider impacts. First, the number of eviction cases opposed in court is unquestionably high – one indication of this is the number of cases represented by a single litigating NGO, the Socio-Economic Rights Institute of South Africa (SERI). Over the past decade, SERI has taken on more than 90 eviction cases. The number of people involved in each of these cases varies from a few dozen in a single building to tens of thousands in large informal settlements. Although few of these cases will result in reported judgments, most will likely result in the prevention of an unlawful eviction – and in the provision of alternative accommodation to very many people.
A second indication of the impact of these cases lies in the revisions made to the Practice Manual of the Gauteng High Court in 2018. This Practice Manual provides judges with specific advice on the procedures to follow in hearing different types of legal cases. In this revision, judges were reminded that all evictions require judicial oversight and that even if an eviction is unopposed, a judge has the duty to look behind the application and establish whether the circumstances of the residents to be evicted would activate the PIE Act – even if no party makes that claim. Indeed, even if both parties consent to an eviction order, a judge is still bound to look behind that consent and to ensure that the order would be just and equitable if granted. Although it is likely that these directions are not always followed, their existence should ensure that no eviction order will result in homelessness – even when the residents to be evicted are not represented in court, and even when they are not present at all.
This is not all. There had also been at least one further consequence of these struggles: they have forced the state to step back from its reluctance to place limits on the market. For so long as the residents of the inner city cannot be evicted, or for so long as the residents of shack settlements on large tracts of lands cannot be removed, the ability of the official property owners to profit from this land is stringently limited. They cannot tear down a building and replace it with a new one; they cannot ‘gentrify’ a building by evicting the current residents, altering its fabric, and attracting wealthier renters. They cannot sell the land unencumbered (Wilson 2011b).
This means that a sudden restraint has been placed on at least a portion of the market’s ordinary activities – a restraint that is likely to remain in place for the foreseeable future.
Unpicking inequality
In forcing the state to adopt and develop housing policies that respond to the insecurity of urban tenure in a condition of economic inequality, the residents of these buildings and settlements have thus pushed the state to intervene more actively in the workings of the market. Not only is it now responsible for the creation and maintenance of low-cost ‘emergency’ housing schemes for the urban poor, but it is also required to restrain the processes by which property speculation operates. This has necessarily placed a significant constraint on the otherwise unconstrained operation of the market in contemporary South Africa. And although this has not been trumpeted – or even explicitly claimed – by the state, this point has not been lost on property owners seeking to resist these constraints in court.
This is likely to have wider consequences. The inequality of apartheid was founded, quite literally, on the land. Under apartheid, as is well known, the majority of landed property was owned by the white minority – permitting the unequal growth of wealth for this group. In the post-apartheid order, much of this inequality has persisted. The problem of landed property in the present period is also compounded in rural areas by the persistence of traditional chiefly authority, and a land regime that excludes individual ownership. Black South Africans are starved of land – and much of the country’s inequality in wealth can be traced to this deprivation (Hendricks, Ntsebeza, and Helliker 2013; Boisen 2017; Walker 2017).
This had led to numerous suggestions for the redistribution of landed property – from restitution claims made by individuals and communities that can plausibly prove historical dispossession to broader claims for the mass expropriation and redistribution of land. In rural areas, the debate is often around the plausibility of converting communally held land into individually held land, with individual ownership recognised in law. The effects of this are often imagined as permitting the poor to enter into the existing capitalist economy, by granting them credit and the ability to alienate property (Beinart, Delius, and Hay 2017).
In this context, it is notable that the urban struggles described above are about access to landed property – but not for the purposes of obtaining credit or rental or other profit. The right to be housed, and not to be rendered homeless, is a right to residence – to a roof over one’s head, to a basic standard of dignity, to protection from unfair economic disparities. It is not a right to own property. The housing programmes developed by the state may provide shelter and security, but the shelter that they provide is not transferrable in any way. The plans for the recognition and upgrading of the Slovo Park settlement do not include any plans to grant individual title to the existing residents. Rather, the tenure rights of the residents – their security against eviction, the certainty of their residence – are secured without the grant of ownership. Their rights to a certain dignity in residence – to the provision of sewerage systems, of electricity, of water – are recognised. But not the right to transfer those rights to others, for individual profit, and thus not the right to alienate or sell or profit from the land.
This opens up a series of provocative questions. Should we understand this way of recognising the rights to reside secure against eviction, but without the right to ownership, as a means for maintaining an unequal economic system? Does this simply provide some shelter against the most rapacious elements of neoliberal capitalism, without ever threatening it?
That is certainly one possibility. But it seems to me that it is also possible to see these developments as moving us away from a simplistic model of economic rights within capitalism towards a model of social and economic rights that do not presume freedom and agency come from the ability to alienate the otherwise inalienable. In other words: if socio-economic rights – such as the right to a home, the right to live secure against eviction and homelessness, and the right to demand the recognition of one’s otherwise-unlawful residence – are seen in the light of these developments, is it not possible to imagine them as the basis of an economic framework in which these drivers of inequality are eliminated?
Or, in yet other words, without perhaps due caution, we can ask: what would remain of a neoliberal capitalism if one of the primary drivers of contemporary inequality – the commodification of landed property – was removed from its calculus, if access to land and property for the poor was itself decommodified? How would we understand inequality then?
Whatever happens – whether it is the pessimist’s buttressing of capital or the optimist’s remaking of the calculus of inequality – the experiences that underpin this article’s argument suggest that changes to our present social, political and economic systems are at least as likely to come from below, using unexpected means, as they are to be granted by fiat from above. The enactment of socio-economic rights into the post-apartheid constitution has created an unexpectedly efficacious tool for the poor to assert political and economic agency.