Learning from Joe Slovo

Learning from Joe Slovo NCHR workshop on advancing Socio Economic Rights: Session 7 Group 1 In this activity participants will engage in a critical review of the case, examine the interests and perspectives of the different actors and assess the concepts of 'participation' and 'community' in the setting of a large and dynamic informal settlement. They will analyse the interventions made to secure the rights of the residents past and present and extract key lessons for future engagement. AIMS ACTIVITY OUTLINE To bring together human rights practitioners and social activists to critically review the interventions to enable Joe Slovo residents to access well located and affordable housing and prevent their displacement to Delft. To examine what might have been done differently to more effectively secure their tenure and rights to housing. To reflect on the nature of the community in Joe Slovo and the meaning of participation in this setting. To identify the key lessons arising from the Joe Slovo case To understand how the actions of the different spheres of government impacted on the outcomes at Joe Slovo. 1. The facilitator provides a brief introduction to the two scenarios under review (Learning from Joe Slovo and The rights of others foreign nationals and xenophobic violence in South Africa). 2. Participants break into self selected working groups to analyse the scenario of their choice. 3. Once in the group participants select a facilitator and rapporteur who will make notes from the discussion. 4. Participants familiarise themselves with the scenario, discuss the key questions and identify lessons for improved practice. 5. Participants report back on their deliberations to the plenary. 1 P age

KEY QUESTIONS RESOURCES 1. If we could turn the clock back how might organisations advocating for socio economic rights have worked with residents to secure a more equitable and sustainable outcome in Joe Slovo and prevent eviction? 2. How do we conceptualise community and participation in a setting like Joe Slovo? What implications does this have for involving residents in planning and development decision making? 3. How would an emphasis on tenure security to formalise the occupancy rights of the people in the informal settlement earlier in the process have made a difference to the outcome at Joe Slovo? 4. Housing allocation processes, affordability, fire and environmental risk are crucial areas highlighted by the Joe Slovo experience. What can we learn from how these issues were handled? 5. How do activists and lawyers strike a balance between the rights of residents in a particular area and the wider public interest? How do we assess the public interest in terms of informal settlement upgrading and housing development in a context like Joe Slovo? 6. What are the key lessons of the Joe Slovo experience? Joe Slovo case background Joe Slovo timeline 2 P age

Joe Slovo: Case background Introduction This scenario 1 reviews the history of Joe Slovo informal settlement since its inception in the late 1980 s. It examines the failure to enable poor households to secure rights to housing and secure tenure on well located land in the City of Cape Town. The settlement was established by former occupants of the Langa hostels and people living in backyard shacks. The original Joe Slovo informal settlement was well located with respect to transport nodes, educational facilities and economic opportunities. This made it one of the fastest growing informal settlements in the city. The settlement is relatively close to the Cape Town Central Business District (CBD) 1 The scenario has been prepared by Rick de Satgé with input and comment by Steve Kahanovitz, Lwazi Kubukeli and Kate Tissington. 3 Page

and has rail access to the city. Commuters can catch trains to town which eases the cost of commuting and provides reliable access to the workplace and trading opportunities in nearby Langa, Pinelands, Epping etc. Rapid settlement expansion Within Joe Slovo a dwelling count conducted in May 1996 found that there were 1 195 informal homes. These had increased to 2,153 by May 1998 2 and by 2000 the number had grown to 4,300 3 dwellings an increase of 100% in two years. By 2003, there were 5,431 dwellings in Joe Slovo. 4 Rising levels of risk This rapid densification, combined with a variety of other factors, contributed to driving up disaster risk on a number of fronts. During this period residents experienced a series of devastating fires which killed several people, destroyed thousands of dwellings and caused millions of rands worth of damage. In the winter months sections of the settlement experienced serious flooding due to inadequate, or non existent storm water drainage. This period of rapid settlement expansion was also characterised by increased social tension and competition for resources between the residents and their neighbours. A 2004 evaluation of the Ukuvuka campaign to mitigate the risk of informal settlement fire, alluded to political rivalry between leaders of various zones and noted a history of tension between residents in formal housing in Langa and people in the settlement. It reported anecdotal evidence that fire engines had been stoned or otherwise interfered with on at least one occasion which informants attributed to persons in Langa who wished to see the settlement burn. Between 1995 and 1999 a survey of fire incidence across ten informal settlements 5 in the Cape Peninsula revealed a total of 1 612 reported informal dwelling fires which destroyed a total of 10,206 informally constructed homes. Over this period, annual fire events increased by 96%, rising from 213 in 1995 to 418 in 1999. Of all dwellings destroyed, 3,227 (32%) were recorded in Langa/Joe Slovo. Significant environmental and public health hazards developed in this rapidly densifying settlement, despite the provision of increasing levels of service from 2000 onwards (in 2003 there were 21 communal standpipes and 1200 toilets at Joe Slovo). 6 Comprehensive housing programme and the N2 Gateway project These problems, coupled with the strategic and highly public nature of the site next to the N2 highway and en route to/from Cape Town International Airport contributed to the decision to launch the N2 Gateway housing project on the site. In his State of the Nation address in May 2004, President Mbeki referred to a new comprehensive programme dealing with human settlement and social infrastructure, which would provide rental housing stock for the poor and enable insitu upgrades already captured in law in chapters 2 Abbott, J. (1999) in DiMP (2002) 3 The Development Support Department of the City of Cape Town conducted the 2000 count 4 City of Cape Town IDP (2004/2005) 5 Bonteheuwel, Brown s Farm, Elsies River, Gugulethu, Imizamo Yethu, Langa, Manenberg, Nyanga, Redhill and Wallacedene. 6 City of Cape Town IDP (2004/2005) 4 P age

12 and 13 of the national housing code. This was unveiled as Breaking New Ground: A Comprehensive Plan for the Development of Sustainable Human Settlements, and the N2 Gateway development was one of the pilot projects. The media launch of the project took place on 14 th February 2005. According to the launch materials: The N2 Gateway Project is a crucial pillar of the realigned housing strategy within which arresting the growth of informal settlements and upgrading is central to the realisation of the aims, goals and objectives of the Comprehensive Housing Plan (CHP) (Emphasis added) 7 The stated purpose of the project was to comprehensively address the housing and development needs of communities in such a way that individual and household livelihoods are enhanced; people are housed in habitable, affordable and sustainable housing; the city is improved through urban renewal, regeneration, and socio economic development. An official briefing document described the situation on the ground in Joe Slovo as follows The households in the area suffer acute shelter and income poverty; their incomes are very depressed; education levels are extremely low; unemployment is three times higher than in the rest of the Western Cape; and, access to adequate water, sanitation and energy is poor but is slowly improving. These factors combine to create a socially toxic environment characterised by high levels of contact and social fabric crime. Fragmentation and stratification As could also be expected the rapid growth of the settlement described above contributed to increasing social and political fragmentation and deepening stratification between established residents and new entrants. New entrants to the settlement reported being required to make payments to individuals and/or the committee in exchange for a site. As the settlement expanded a local rental market developed as established occupants rented out rooms or complete dwellings to incomers. Rental opportunities grew sharply after the government installed services in the settlement in 2000. Top down planning From its inception the N2 Gateway project was faced with criticism concerning the inadequate involvement of the Joe Slovo residents in the planning of the development. There were concerns about the lack of informed dialogue on the implications of the project design ( with its many changes ) for poor and marginal households. Government tended to engage in consultation by committee rather than engaging more directly with residents in different zones. This calls into question the representivity, interests and effectiveness of the established committee structures and their ability to represent and communicate with 20,000 people. Over 7 N@ gateway media launch pack 5 P age

time two recognised committees 8 developed within the settlement. However these were shadowed by a variety of informal networks and social structures whose voices were not heard. Political contestation As the timeline in Appendix 1 below highlights in more detail, then2 Gateway project became something of a political football as the National Department of Housing, the Provincial Department of Housing and Local Government and the City of Cape Town argued about their respective roles and responsibilities, together with the feasibility and cost of the project. This led to the City being removed as implementing agent and agreeing in terms of a land Availability Agreement to release the land involved to Province who in turn released it to Thubelisha, who in turn released part of it to FNB. These LAA agreements and the disagreements between the spheres of government later resulted in the the Auditor General questioning the legal basis for the Gateway development. Relocation voluntary and by order of court After a major fire in 2005 people in the fire zone were not allowed to rebuild their shacks. Many of those displaced moved into tents. While there Mayor Mfeketo ruled that they could not return to the sites from which they had moved (this had been the previous practice after fires in Joe Slovo) and further advised that there were going to be houses built on those sites primarily for Joe Slovo residents.this was the basis for the residents having an expectation that they were to be the beneficiaries of Gateway housing. Some displaced people were temporarily accommodated in a renovated hostel adjacent to a predominantly Coloured residential area. This led to conflict, marches and demonstrations, where local organizations from the host community claimed that the Joe Slovo people got preferential treatment at the expense of the (mainly Coloured) people that lived in backyards and had been on the City s waiting lists for years. Eventually over a 1000 people were relocated to a Temporary Relocation Area (TRA) in Delft 15 kms further out of Cape Town, with low levels of service and extremely weak transport infrastructure. Once construction of Phase 1 started in Joe Slovo the relationships between the State, Thubelisha Homes the implementing agent for the N2 Gateway project and representatives of people living in Joe Slovo became increasingly strained. Residents saw the erection of expensive flats as opposed to the expected RDP type housing. Tensions were exacerbated when it became clear that the proposed development in Phases 1 and 2 would not be affordable for the vast majority of the people relocated to TRAs, or who remained on the land. Unaffordable housing options Phase 1 of the project involved the construction of social housing for rental (3 story apartment blocks) which proved unaffordable to the vast majority of residents, while Phase 2 involved the construction of bonded housing for which poor households would be economically ineligible. 8 There was a committee which instructed Essa Moosa re housing applications and in the course of that it split into 2 committees which subsequently instructed 2 law firms in relation to contesting the evictions. 6 P age

Community representatives began to argue that promises had been broken and that the main thrust of the N2 Gateway project was to relocate the poor to badly located and remote settlements on the periphery, which would continue to perpetuate the spatial form and social structure of the apartheid city. The community attempted to engage with then Minister of Housing, Lindiwe Sisulu over an end to removals to Delft; the provision of houses close to urban centres, and a say in the development of the Joe Slovo area. However when a response was given which was perceived as ignoring their concerns, they blockaded the N2 highway in September 2007. Following this protest action, the State and the implementing agent initiated proceedings to evict people living in the settlement to the Delft TRA. Eviction ordered by Cape High Court Consent to serve an application for an eviction order was granted by the Cape High Court in September 2007 and an eviction application then launched and opposed in a hearing held in December 2007. In March 2008 Hlophe JP granted an eviction order which would have seen evictions over the next approx 40 weeks.the occupants in this matter were represented by 2 committees who in turn instructed the LRC and Chennels Albertyn to represent them Briefly they argued that there should be no decision re an eviction until the lawfulness of the Land Availability Agreements had been properly considered by a Court. The judge refused to delay the hearing for this purpose.the Applicants relied for the eviction order on PIE and the occupants submitted PIE did not apply as they had consent to live at Joe Slovo a consent that had not been withdrawn. Further they submitted that in light of the promises made by Mfeketo, the new Joe Slovo plans breached their legitimate expectations in respect of seeing their housing rights realized. Further they submitted that in all the relevant circumstances a relocation to faraway Delft was not appropriate. Expert evidence was also submitted as the appropriateness of an in situ upgrade. Appeal to the Constitutional Court Representatives of the residents instructed the Legal Resources Centre (LRC) and Chennels Albertyn to appeal against Hlophe s judgment to the Constitutional Court in August 2008. The Residents maintained Hlophe s order was wrong in that he had failed to recognize that they had consent to live there the majority of judges held they did have consent but that it had been impliedly withdrawn. All the judges held that accordingly the State was entitled to an eviction order in terms of Section 6 of the Prevention of Illegal Evictions from and the Unlawful Occupation of Land Act (PIE). The Centre of Housing and Evictions (COHRE) and the Community Law Centre (CLC) as amici curiae attempted to address issues of fairness and equity arguing that that the N2 Gateway Project did not subscribe to international best practice or local housing policy imperatives, and highlighting the livelihood impacts of the proposed removal to Delft. The ConCourt judgment While the Judges of the Constitutional Court did not all agree on the issue of whether the residents had received consent to occupy the site, they reached consensus that an eviction order was just and equitable under the circumstances and that the relocation is undoubtedly in the public interest. On the 10 th June 2009, the Constitutional Court handed down a judgment which upheld the High Court decision to evict approximately 20,000 residents of the informal settlement, but which: 7 P age

modified the terms and conditions of the eviction; tightly regulated the procedure and standards of alternative accommodation to be provided; reserved 1050 houses (70%) of the 1500 BNG houses the State had undertaken would be constructed at Joe Slovo project for Joe Slovo residents. However the judgment remained silent on who from the 4000 plus households originally staying in Joe Slovo would qualify to occupy these houses. Tissington has since argued that despite the Court s ordering of meaningful engagement and the provision of alternative accommodation for all Joe Slovo residents, the reality is that the N2 Gateway project was never conceived or implemented in a reasonable manner, and the mass eviction sought in its name is thus unreasonable. 9 Reflections on the case The Joe Slovo case indicates the complexity of the informal settlement environment and the dynamic nature of risk. The case asks fundamental questions about how to best ensure the progressive realization of the rights to housing, security of tenure and a safe living environment. It also illustrates how all rights, including socio economic rights are interrelated and interdependent and highlights the difficulty in attempting to realize these rights in isolation from one another. 9 Kate Tissington. (2009). The deficiency of reality in the Joe Slovo judgment 8 P age

Joe Slovo timeline Year Event 1994 Joe Slovo informal settlement started at the end of 1989 and the occupation accelerated at the beginning of 1994 following a land invasion between Vanguard Drive and Washington Street a buffer strip originally intended to define the edge of Langa adjacent to the N2 and M7 roads. The land is owned by the City of Cape Town. A land invasion was lead by: hostel dwellers seeking to move out of overcrowded conditions in the Langa hostels backyard shack dwellers who were discontented by rising rents and landlord restrictions. Since its inception the relationship between residents of the settlement and nearby Langa have been characterised by suspicion and mistrust. 1996 The settlement had an estimated dwelling count of 1 195 in 1996 1998 Dwellings had increased to 2153 by May 1998. The area received no services of any kind until 1998 when local government provided 400 bucket toilets and communal taps. Many of the toilets provided were vandalized as they were inappropriately sited. Several households continued to use home built pit latrines or open spaces for sanitation purposes. However given the high water table in the area this created a serious environmental health hazard. 2000 The number of dwellings then doubled to approximately 4300 in 2000. Evidence exists of informal land and site transactions and payments made by residents to members of the Committee purporting to control access to the site In November 2000 a fire destroyed about 980 dwellings leaving approximately 1300 families homeless. On 8th December 2000 President Thabo Mbeki declared the fire a national disaster. This released funds both from central and local government for services to the area. The direct economic losses from this fire were estimated at R5.5 million rand. A total of 14.4 million rand were spent to provide water, upgrade fire hydrants, provide tracks, stormwater drainage, dwelling relocation and electrification. Joe Slovo was divided into three zones, Zones 30, 31 and 32 which comprised of a total of 38 blocks. Blocks were pegged and sites allocated at approximately 44 square metres per dwelling. These developments took place by way of consultation with City officials occupants by agreement moved into allocated areas and were specifically instructed not to live in other areas e.g under the pylons. Thus those under the pylons were always seen as living illegally while those in the designated cells had consent to stay. Planners were confident that this largely infrastructural intervention would reduce fire risk. However this was not the case. Instead in a short time fire risk was rather driven up. The availability of services and the strategic location of the settlement increased its desirability 2001 A number of environmental and public health risks have been identified linked to poor living conditions in the settlement. E Coli bacteria counts from human faeces 9 P age

Year Event taken from the Black River were reported to be higher upstream adjacent to the settlement than downstream below the Athlone sewerage plant. This was as a result of inadequate sanitation at Joe Slovo. Heavy rains wash faeces into the storm water channel that runs through the middle of the settlement and into the river. 2002 The settlement dwelling count had grown to 4 571 in 2002. Restrictions on new construction lead to an increase in population densities per dwelling as dwelling occupiers started to subdivide and sublet rooms. An evaluation of the settlement fire mitigation strategy in 2002 warned that structural measures on their own were not enough and could have unintended consequences. It highlighted that fire risk was rising as a consequence of densification per dwelling and within the blocks. Initially when fires broke out they could be contained within the cells. Although big fires were initially prevented the number of smaller fires increased and the overall number of dwellings destroyed in smaller events started to exceed pre mitigation rates. 2003 According to the City of Cape Town IDP (2004/2005), by 2003 there were 5,431 dwellings at Joe Slovo. 2004 In March 2004 a fire jumped breaks between six fireproof cells and a man was killed. 10 P age In the State of the Nation address in May 2004, the President referred to a comprehensive (housing) programme dealing with human settlement and social infrastructure, including rental housing stock for the poor. Subsequently the NDoH released the document entitled Breaking New Ground: A Comprehensive Plan for the Development of Sustainable Human Settlements (September 2004) The N2 Gateway project was approved by Cabinet in August 2004 as a pilot and lead project of the Breaking New Ground strategy. (Government of South Africa, 2008) The N2 Gateway project was in part intended to demonstrate a move away from the approach by government of providing households in informal settlements next to the N2 freeway with freestanding, freehold title RDP houses. Instead, the objective was to provide a range of higher density affordable rental housing options on welllocated land. However the N2 Gateway documents and the BNG documents also spoke about a new and mixed approach including in situ upgrades and rental housing The project was supposed to comprehensively address the housing and development needs of the informal settlements adjacent to the N2 highway between the Bhunga Avenue interchange near Langa and Boys Town in Crossroads, together with 6,650 households on the CoCT s waiting list currently residing in backyard dwellings. January 2005 In January 2005 a major fire jumped the breaks in Joe Slovo destroying over 1000 dwellings and killing four people. It was reported that 3,150 families had been affected by the fire and about 12,000 left homeless. Joe Slovo residents were promised priority in the allocation of N2 Gateway housing. After the fire people were not allowed to re erect their shacks, because this land had been earmarked for the N2 Gateway project. The decision to relocate people to Delft came after 17 other sites closer to Joe Slovo were considered and rejected after pressure from local stakeholders. These sites included land in Epping near an industrial area, but the business association there threatened the Council with court

Year Event action to stop the temporary accommodation. Other options included land in Langa, but the community structures in that area protested massively and made it difficult for the city to erect temporary structures to house Joe Slovo residents. March 2005 Construction of the N2GP started on 15 March 2005 2006 In February 2006 Thubelisha Homes was appointed as the project manager and implementing agent for N2 Gateway project. To build units in Joe Slovo (Phase 1), scores of households who were living in informal settlements were removed with the prospect of returning to the new formal housing. However most could not afford to return due to the significantly higher costs associated with government s decision to develop higher density (social) housing that was provided in the N2 Gateway (Phase 1) project. Monthly rentals previously set out in pamphlets (in the range of R250 for 27m² to R690 for 40m²) had increased to R500 for 27m² and R1,050 for 40m². About 1000 Joe Slovo residents moved to TRAs in Delft. Some occupants moved voluntarily as early as August 2006. However respondents raised concerns about pressure on them to move to Delft. Many others refused to move citing no electricity, poor transport, high crime, social problems at Delft. A survey conducted by the Development Action Group indicates that a high percentage of people lose their jobs after moving due to problems of transport In 2006 the Joe Slovo settlement suffered another fire which resulted in more people being moved to temporary accommodation in Delft. 2006 In mid 2006, cooperation between the representatives of Joe Slovo residents and the authorities broke down. For the construction of Phase 2, so called gap housing, government together with project managers Thubelisha Homes, entered into a partnership with First National Bank (FNB) to build 3,000 bonded houses in Joe Slovo and Delft, costing between R150,000 and R250,000. FNB undertook to make bonds available to people earning R3,500 R7,500 per month. This resulted in allegations that the poor were being moved out to make way for the better off as most people in the Joe Slovo informal settlement earn less than R1,500 per month. 2007 Over expenditure brought the N2 Gateway (Phase 1) project to a halt. The total cost overrun incurred on Joe Slovo phase 1 was R28,2 million (705 units x R40 000 per unit) The higher density social rental housing provided unaffordable to nearly all households originally removed from the site. Not even more than five households who previously lived in the Joe Slovo informal settlement had been accommodated in the N2 Gateway (Phase 1) project. February The selection of beneficiaries was not finalised prior to the commencement of construction, resulting in non compliance with the prescribed requirement of listing the beneficiaries in the final business plan and loading these details on the National Housing Subsidy database prior to project implementation. The selection of the beneficiaries for the first 705 units was only finalised as at 28 February 2007 almost two years after the N2GP had commenced. (Government of South Africa, 2008) Government failed to draw these from waiting lists in so far as they exist and finally resorted to advertising in local papers for applicants to come to the provincial government offices to apply. The subsequent admin of phase one has been problematic. 11 P age

Year Event May As at 31 May 2007 (two years after the N2GP had commenced) only 871 (5%) units of the revised 16,735 planned units had been completed, while 21% of the total budget had been utilised (Government of South Africa, 2008) The households that were removed from the informal settlements adjacent to the N2GP and accommodated in temporary residential areas (TRAs) could not return to the rental units constructed in Joe Slovo Phase 1 due to affordability problems. Although the average income of households in the region was approximately R1,200 per month the actual tenant profile indicated that the income of 99,6% of the current tenants ranged from R1,500 to R7,500 per month. Consequently affordable housing was not provided for the target market identified (Government of South Africa, 2008). July Despite their reportedly higher incomes, residents in Phase 1 rental housing subsequently embarked on a rent boycott from July 2007 complaining about unaffordable rent escalations, construction faults, damp and blocked toilets. However, Thubelisha Homes held them to the legal lease agreements they signed as individuals, which stipulate that if households refuse to pay due rentals on time, they will be evicted without notice. Applications since launched by Thubelisha against defaulters did not rely on this clause which is illegal or importantly ask for evictions Thubelisha rather sought a declaratory that the occupant was an unlawful occupant Community representatives reported that ± 60% of rental units are now occupied by households who sub let from the original tenants. 10th More than one thousand residents from Joe Slovo informal settlement blockade N2 September highway from 4:30am. Eight Joe Slovo informal settlement residents were charged 2007 with public violence. All have since either had charges against them withdrawn or been acquitted 19 th Sept Thubelisha Homes, the National Minister for Housing and the Western Cape Minister of Local Government and Housing initiated eviction proceedings against informal dwellers in Joe Slovo to enable land to be made available for construction. 20 th Sept Consent to serve an application for an eviction order was granted by the Cape High Court in September 2007 and an eviction application then launched, authorising the applicants to give notice to respondents in specified languages and in a manner that would allow for proper service of the notice. 25 th Sept Respondents filed in excess of 2000 notices of opposition on 25 September 2007 December The application was opposed in a hearing held in December 2007. 12 P age

Year 10 th March 2008 June 2008 Thursday, 21 August 2008 Event In March 2008 Hlophe JP granted an eviction order which would have seen evictions of 18 000 to 20 000 persons from 4500 informal dwellings in Joe Slovo in terms of section 6 of the PIE Act. Judge Hlophe argued that the residents of Joe Slovo did not have a right in law to occupy the said properties, and insofar as they constructed their informal structures on such property they did so in contravention of the law. He stated that the Roll Over upgrade technique requires the residents to relocate strategically from the land so that the land can be stabilised and serviced and thereafter houses built. The implementation of the N2 Gateway project in Joe Slovo informal settlement requires the relocation of residents to the temporary relocation areas (TRAs) to ensure the rehabilitation, the laying out of infrastructure and services and the building of houses. A very disruptive protest in September 2007 resulting in property damage on Phase 2, the intimidation of constructors on the vacant site of Phase 2 and the disruption of the N2 arterial. This is not a normal eviction application. In fact it is a misnomer to refer to it as such. It is the application for a strategic relocation of the residents of Joe Slovo to temporary accommodation to enable the land to be rehabilitated in order that proper housing would be built. The Court did not make a declaratory order reserving a percentage of households for Joe Slovo residents or assure the evicted residents that they would be the primary beneficiaries of the new housing scheme Lawyers acting on behalf of the Joe Slovo residents subsequently applied to the SCA for leave to appeal against the order of eviction made by the Western Cape High Court, Cape Town. The parties then all agreed to rather proceed directly to the Constitutional Court so as to get the matter resolved quicker/cheaper Residents were represented by two committees one chaired by Mr Penze and the other by Mr Mapasa. The two committees together were assumed to represent the entire Joe Slovo community. This was not questioned by anyone and the Concourt judgment accepted that this was so without qualification. The case was heard in Constitutional Court which had to find on whether the applicants had properly sought eviction of the residents in terms of the Prevention of Illegal Eviction from and Unlawful Occupation of Land (Act 19 of 1998) and whether they had acted reasonably within the meaning of section 26 of the Constitution in seeking the eviction of the residents. Section 26 provides that: (1) Everyone has the right to have access to adequate housing. (2) The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right. (3) 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. The Residents maintained Hlophe was wrong in that he had failed to recognize that they had consent to live there the majority of judges held they did have consent but that it had been impliedly withdrawn. All the judges held that accordingly the State was entitled to an eviction order in terms of Section 6 of the Prevention of 13 P age

Year 11 March 2009 10th June 2009 Event Illegal Evictions from and the Unlawful Occupation of Land Act (PIE). The Centre of Housing and Evictions (COHRE) and the Community Law Centre (CLC) as amici curiae attempted to address issues of fairness and equity arguing that that the N2 Gateway Project did not subscribe to international best practice or local housing policy imperatives, and highlighting the livelihood impacts of the proposed removal to Delft. Another fire destroys 400 informal dwellings at Joe Slovo Five judgments were handed down by the Constitutional Court, all containing different reasoning but all ultimately upholding the High Court decision to grant an application to evict the 20,000 residents of Joe Slovo. The court ordered the relocation of occupiers to TRAs in Delft, beginning 17th August and to be completed by 21st June 2010. All the judgments agree that under the circumstances an eviction order is just and equitable. The judgment also held that the relocation is undoubtedly in the public interest. The judgment acknowledged the arguments by the State that it has not been possible to accommodate Joe Slovo residents in Phases 1 and 2 of the N2 Gateway project but noted that the state was now prepared to consent to an order in terms of which 70% of the subsidised houses yet to be constructed at Joe Slovo will be allocated to Joe Slovo residents. The Constitutional Court order also orders the provision of alternative temporary accommodation of prescribed construction standards and levels of service to all those who vacate Joe Slovo; orders one week notice of removal to affected residents and provision of transport for relocation; Interdicts residents from returning to JS to build dwellings; Requires government to submit affidavits to the court report on progress in implementing the order. According to the judgment the total number of Breaking New Ground houses to be built at the site of Joe Slovo will not number fewer than 1,500. However as Tissington has pointed out this would only mean that 1050 would be allocated to Joe Slovo residents whereas there are over 4000 households currently living at Joe Slovo. How these allocations will be made does not form part of the ConCourt order. Furthermore, political changes at the provincial level in the Western Cape, as well as the damning Auditor General s report on N2 Gateway and major problems with land and funding mean that the future of the project is in question and the ability to follow through with the ConCourt s order is unlikely. After the judgment was handed down the parties have engaged with one another and no evictions have (yet) taken place. Further the Gateway project has once again come under parliamentary scrutiny. 14 P age

References Disaster Mitigation for Sustainable Livelihoods Programme. (2000) Evaluation of the Fire Prevention Awareness Campaign Joe Slovo. University of Cape Town. Disaster Mitigation for Sustainable Livelihoods Programme. (2002) Evaluation of the Fire Mitigation Programme in Joe Slovo Informal Settlement, Cape Town. University of Cape Town. Disaster Mitigation for Sustainable Livelihoods Programme. (2004) Report on Informal Settlement Fire Occurrence and Loss, Cape Town Metropolitan Area. 1995 1999. University of Cape Town. de Satgé, R and Macgregor, H (2004) Final Specialist Evaluation Report Assessing Achievement Against Objectives 3, 4 & 6. Ukuvuka Campaign Government of South Africa. (2008). Report of the Auditor General on the Special Audit of the N2 Gateway Project at the National Department of Housing. 15 P age