Abstract preemptive review dealing with the Constitutionality of legislation allowing provincial government officials to mandate the institution of eviction proceedings in respect of informal settlements. Whether right under section 26(2) of Constitution and other national legislation made legislation invalid. Right to housing under article 26 of the Constitution.
This case was brought as an abstract review[1] by the Abahlali BaseMjondolo Movement (Abahlali), a voluntary association which acts in the interests of several thousand people living in informal dwellings in South Africa. Abahlali argued that section 16 of the KwaZulu-Natal Elimination and Prevention of Re-emergence of Slums Act (“the Slums Act”), which authorized provincial government officials to issue a notice directing that eviction proceedings be instituted by owners and local municipalities against informal settlements, was unconstitutional. Essentially, section 16 would, in theory, allow for the institution of eviction proceedings against all the informal settlements in the entire province. This would make it significantly easier to evict people living in informal settlements, facilitating their eviction without meaningful engagement and rendering them homeless. Abahlali argued that the law was invalid due to inconsistency with the right to housing in section 26(2) of the Constitution because it precludes meaningful engagement, violates the principle that evictions should be a measure of last resort and undermines the precarious tenure of unlawful occupiers by removing protections granted to them under national legislation.
The Constitutional Court found that section 16 of the Slums Act was unconstitutional and invalid. Its judgment did not rely on reports tendered by Abahlali that described living conditions and the housing situation in South Africa, but instead decided the case solely by interpreting the section 16 of the Slums Act. The Court accepted that the provision was coercive, requiring owners and municipalities to evict when told to do so by the government, and therefore was at odds with the Constitution. It was declared that the provision, while passed within the legislature’s competence, was inconsistent both with section 26(2) of the Constitution and undermined other national laws passed with the express purpose of protecting the rights of people with insecure land tenure.
Keywords: Abahlali BaseMjondolo Movement SA and others v. Premier of the Province of Kwazulu, and others, 2010 (2) BCLR 99 (CC), Housing, Right
[1] An “abstract review” is a review by a tribunal of a legal provision without reference to a particular case in which the provision was applied.
This case has had the practical effect of annulling Section 16 of the KwaZulu-Natal Elimination and Prevention of Re-emergence of Slums Act, as it was declared invalid. On 26 September 2009, a few weeks before the decision was rendered, Abahlali was victim of violent attacks by a group of armed individuals, allegedly supporters of the African National Congress[1]. It is believed that the aim of the attacks was to undermine various achievements by Abahlali in the area of human rights. The police forces that were present in the settlement did not respond to calls for assistance. This incident has impacted the work of the movement, as some of its members received death threats in the weeks and months following the incident, its office in the settlement was dismantled, and the Movement was obliged to operate in hiding following this event. To date, the South African authorities have still not seriously investigated this violent attack nor the death threats and intimidations against members of Abahlali.
[1] See: Center for Constitutional Rights, “Re: Urgent Appeal Regarding Abahlali baseMjondolo, Durban, South Africa”, 1 December 2010, available at: http://abahlali.org/files/S_R_Human_Rights_Defenders.pdf
With this case, the South African Constitutional Court confirmed relatively novel entitlements for poor people seeking to affirm their housing rights: henceforth, the failure to consider an upgrade of an informal settlement (as opposed to an eviction or relocation) likely renders the decision to evict or relocate reviewable under administrative law. People lacking security of tenure will also be able to propose alternatives to their eviction prior to the institution of proceedings. The Court also suggested that where it is possible to upgrade an informal settlement on the site of the settlement itself, this must be done.
Abahlali baseMjondolo (http://www.abahlali.org/) The applicant was represented by the Centre for Applied Legal Studies
