Victory for shack dwellers across SA
THE Constitutional Court judgment on the KZN Slums Act was a resounding win for Abahlali baseMjondolo (AbM). Similar legislation will not be replicated - a victory for shack dwellers throughout South Africa.
The main challenge to the act was not around legislative competence (this was but one argument) but around section 16, which makes it compulsory for municipalities to institute eviction proceedings of unlawful occupier, where the owner or person in charge of the land fails to do so in the time prescribed by the MEC.
AbM argued that this violates the Constitution because it precludes meaningful engagement between municipalities and unlawful occupiers; violates the principle that evictions should be a measure of last resort and undermines the precarious tenure of unlawful occupiers by ignoring the procedural safeguards inherent in the PIE Act.
Judge Dikgang Moseneke declared section 16 to be unconstitutional. Without it, the Act is inoperative. He found that section 16 is incapable of an interpretation that promotes the objectives of eliminating and preventing slums and providing adequate housing and that the MEC's power to issue a notice as envisioned in section 16 is "overbroad and irrational".
The Act equates the elimination of slums with the eviction of people living in them and was intended to make that a much more frequent and easily facilitated occurrence. While it supposedly allows government to fast track housing delivery, it has the effect of actively encouraging evictions without taking into account socio-economic circumstances or access to livelihoods.
Kate Tissington, Centre for Applied Legal Studies, Wits