On Tuesday the Constitutional Court handed down its judgement in the case of the Schubart Park residents versus the City of Tshwane (CoT) (the full judgement is here. Schubart Park is the residential complex of four high-rise high-density flats in the Pretoria CBD, which was the site of a widely-publicised eviction a year ago. The Daily Maverick covered the eviction and the residents’ violent confrontation with the municipality in a series of articles and pictures.
The residents have claimed that their eviction was illegal and have launched applications to the North Gauteng High Court and the Supreme Court of Appeal to have the eviction overturned. Both courts denied them leave to appeal. The Constitutional Court has now ruled that the residents do have grounds to appeal the original eviction and that the previous courts’ judgements should be set aside.
While the judgement was even-handed and didn’t focus on pointing fingers, it did quite clearly find fault with the processes and actions of the CoT. It found that the CoT hadn’t, strictly speaking, been granted a valid eviction order, and the indefinite removal of the residents was highly problematic. It determined that the take-it-or-leave-it offer of alternative accommodation made by the CoT didn’t constitute “meaningful engagement” with the residents.
The judgement drew broadly from other cases dealing with the property rights of the poor, and hinted quite strongly that the CoT had fallen short of its Constitutional duty of care to the poor. It also questioned some of the CoT’s reasons for seeking an eviction order.
The journey to this point, from the original eviction through the various legal appeals right up to Tuesday’s judgement, has been complicated, and the claims made by both sides are hotly contested. The CoT claims that many of the residents are illegal aliens and that the buildings are unsafe and unfit for human habitation. The residents claim that the CoT has been trying to work them out of the buildings for a long time and that there are lucrative redevelopment contracts planned for the site.
It appears that the metro does indeed plan to demolish Schubart Park and to redevelop the area. It also appears that although the buildings are filthy and badly maintained, they are probably structurally sound (the residents have asked for the buildings to be re-examined by structural engineering expert because they don’t trust the findings of the CoT). The CoT hasn’t claimed that it is impossible to refurbish the buildings, just that it wouldn’t be economically viable.
From one angle, it appears that this is simply a story of planned gentrification that is being resisted by the current occupants. It is commonly accepted that Schubert Park has been a slum for years, that it has been deteriorating for well over a decade, and that the current administration isn’t largely responsible for the state of the buildings. There is also evidence that many (although maybe not most) of the residents are illegal aliens, that there have been problems with the non-payment of basic services and that the CoT could lose more in missed investment opportunities if the Schubart Park slum isn’t turned around.
From another angle, it can be argued that gentrification is a euphemism, a sugar-coated pill to make the eviction of the poor more palatable. The CoT’s detractors are accusing it of cutting corners, of criminalising poverty, of neglecting the buildings’ upkeep because there was no bottom-line benefit, even of treating the residents with cynicism and contempt.
It is true that metro municipalities across the country face a constant in-migration from the rest of the country and that there is no release of pressure on the municipal housing budgets. It is also true that the metros could be doing a lot more to uphold and protect the rights of their poorest inhabitants.
It is also clear from the judgement, and other similar ones, that the Constitution is being tested and will continue to be tested. In an ironic twist of symmetry, in the matter of Soweto residents taking the City of Johannesburg and Joburg Water to court (the “Mazibuko case”) it was the Constitutional Court that reversed the judgement of the Supreme Court of Appeal and reduced the Metro’s obligations of water service provision for the poor. We are still feeling our way around our Constitution and the obligations it places on government to uphold our rights.
The aims of the judgement are laudable. The Court is trying to sensitise the CoT to the needs of the poor and to inject a sense of urgency into the proceedings. It wants to see real communication between the parties and clear progress in resolving the residents’ accommodation needs by early next year.
There might be some unintended consequences, however. The CoT might try to reduce its portfolio of properties catering to its poorer residents. The engagement of the parties could drag on past the mandated deadline, placing the pressure to act back with the Court. There will be complaints from the CoT and investors that this latest ruling just makes it that much harder for them to make a return on their investments, ultimately harming the very poor people who receive free or subsidised services.
It would be heartening if the CoT did use this judgement as an opportunity to tighten up its monitoring and management of its affordable housing portfolio and if it were more proactive in its engagement with affected residents. That isn’t realistic, though. There is no financial pay-off for the CoT and no incentive to devote resources to poor. The parties are having their heads knocked together by the Court, and they are being forced to engage intensively with each other over the next three months; but there is no way to ensure through legislation that they approach each other with more trust and less animosity.
The judgement sends a very important message to government to engage properly with the poor. Whether the signal can be properly received over the noise of entrenched positions and special interests is another thing.