Plans to transform inner city into a dynamic, vibrant 24-hour global centre

Eric Naki

The Constitutional Court is called on to exercise the wisdom of Solomon and weigh the socio-economic rights of impoverished squatters against Johannesburg's drive to become a world-class city.

The desperate invaders of the inner-city flatland demand access to adequate housing and administrative justice; Johannesburg is determined to rehabilitate the city's core, eradicate slums, and enforce its legal obligation to ensure the health and safety of its residents.

Last year, the Johannesburg high court stopped the city from evicting residents of the 16-storey San Jose building in Berea and from the Zinn Building in Main Street, central Johannesburg. The council appealed the case and the appeal court over-ruled the high court's decision, paving the way for the evictions.

The residents then turned to the Constitutional Court and asked it to rule on the constitutionality of the evictions. Now the country's top 10 judges must rule as to which takes precedence, the residents' constitutional rights or the municipality's obligations.

The city is caught between trampling on inner-city residents' rights to shelter and regenerating the inner city.

President Thabo Mbeki articulated the vision of a rehabilitated Johannesburg in 1997. Now dubbed The Golden Heartbeat of Africa, the plan is to transform the run-down inner city into a dynamic, vibrant 24-hour global centre that will become the hub of Africa.

But the constitution forbids all institutions of state, including municipalities, from ignoring people's rights. All laws must comply with these constitutionally-protected rights.

Section 26 of the constitution states that everyone has a right to adequate housing and requires the state to take reasonable measures, recognising its limited resources, to achieve this right.

The section forbids evictions and demolition of homes without a court order.

But section 152 of the constitution also requires local governments to promote a safe and healthy environment. That obligation is reaffirmed in the Housing Act, which requires cities to ensure that "conditions not conducive to the health and safety of inhabitants of its area of jurisdiction are prevented or removed".

Municipalities also have a legal obligation to regulate the occupation of buildings.

Jeremy Gauntlet, counsel for the city, and Paul Kennedy for the residents, took their battle to the Constitutional Court last month, armed with constitutional justification for and against the evictions.

The city's case to evict residents of the multi-storey San Jose is based on inspections of the building in August 2003 and in March 2004.

The city's task team found the building to be "a potential death trap" and a health and fire hazard.

Another task team inspected the Zinns Building in January 2003 and found that a fire had gutted the building and had burnt down the roof to the first floor, where many people lived. The property lacked water and electricity, and was filled with "combustible material".

Gauntlet said the building's unsafe condition required an emergency response.

The city had provided a housing plan to accommodate the community and felt the eviction had to "go ahead while there is a parallel process to provide alternative accommodation".

The tenants claimed they could not be evicted for health and safety reasons until they were provided with adequate housing within the inner city.

Until then the council had to provide them with water, collect refuse, provide sanitation and maintain the buildings.

They also demanded that the municipality consult residents' representatives before taking any steps that would affect them.

Paul Kennedy, for the residents, dismissed the city's claim that it was evicting residents because the buildings were a fire and health hazard.

"The same municipality had failed to provide water and sanitation to the people," he said.

Kennedy said residents had rejected alternative accommodation in Diepsloot and Protea South because those areas were too far from the economic opportunities available in the central city.

The Constitutional Court has reserved judgment and has encouraged residents and the city to negotiate their own settlement.

The court would help where necessary and "might issue directives" to help resolve the matter.

"The parties have the opportunity while the matter is reserved, to approach one another and the court with proposals," said Chief Justice Pius Langa.