The right to housing is a fundamental human right affirmed by the United Nations (UN);⁽²⁾ it is recognised in regional treaties and in more than 100 national constitutions throughout the world.⁽³⁾ In spite of this right, the homeless, the inadequately housed, and the evicted are growing more numerous in cities and countryside on a global scale.⁽⁴⁾

In post-apartheid South Africa (SA), housing is one of the basic needs enshrined in the SA Constitution’s ‘Bill of Rights’.⁽⁵⁾ SA’s emerging shack-dwellers movement (Abahlali baseMjondolo), a result of the state’s failure to adequately guarantee the right to housing for all, has become a struggle against the marginalisation of the poor. This is against the background of an increasing divide between rich and poor, with the latter forced to live in informal settlements. This CAI paper analyses the violations of human rights in SA’s informal settlements.

The right to housing

Central to the Constitution of the Republic of SA is the obligation it gives the state to “respect, protect, promote and fulfil” the rights enshrined in the Bill of Rights.⁽⁶⁾ In interpreting Section 26 of the 1996 SA Constitution, SA’s Constitutional Court emphasised these obligations as lying directly on the state.⁽⁷⁾ The respect and protect obligations place negative duties on the state – requiring that the state passively refrain from violation of its obligations - while the promote and fulfil place positive duties on the state – requiring that the state intervene and take direct action to ensure that its obligations are fulfilled.⁽⁸⁾ It is within this context that the state’s responsibilities to housing rights are located.⁽⁹⁾ Within this framework, the obligation to respect is a negative duty that the Constitution places upon the state not to impair a person’s constitutional rights. The state violates this obligation when, through legislative and administrative conduct, it deprives citizens access to a socio-economic right, such as housing. Therefore, “legislation that permits procedurally or substantively unfair evictions would constitute a failure to respect housing rights.”⁽¹⁰⁾ Similarly, the state fails to respect housing rights when it forces the eviction of people who will consequently be left homeless. One example of this scenario is the removal of SA citizens to Delft in Cape Town. Following an order by the national Government, 20,000 shack-dwellers were evicted and relocated to temporary relocation areas in Delft. The residents refused to submit to removal, claiming that the Government was not eliminating the slums but was, rather, moving them to Delft, where there were no jobs, few schools, and a higher rate of crime.⁽¹¹⁾ It has been reported that the residents who chose to move to Delft have subsequently lost their jobs - they could not afford the transport to Cape Town.⁽¹²⁾ The Government’s eviction order was intended to make way for the N2 Gateway housing project ⁽¹³⁾ and constitutes a clear failure by the state to respect housing rights, as enshrined in the 1996 Constitution.

The parallel obligation to protect the right to housing:

…requires the state to take measures that prevent third parties from interfering with this right. The most important statutes that uphold this protection are the Extension of Security of Tenure Act 62 of 1997 and the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998, which were specifically enacted to give effect to section 26(3) of the Constitution.⁽¹⁴⁾

In contrast, the obligation to promote is a positive duty that demands state action to further or advance the right to housing. This obligation therefore requires the state to create an enabling environment that will advance the realisation of the right to housing. As described by the Constitutional Court in the Grootboom case:

...[It] is not only the state who is responsible for the provision of houses...other agents within our society, including individuals themselves, must be enabled by legislative and other measures to provide housing. The state must create the conditions for access to adequate housing for people at all levels of our society.⁽¹⁵⁾

The final obligation is to fulfil the right to housing.⁽¹⁶⁾ “It requires the state to adopt appropriate legislative, administrative, budgetary, judicial, promotional, and other measures towards the full realisation of the right.”⁽¹⁷⁾

These obligations have, to a large extent, been neglected; instead of new houses, people find themselves facing bulldozers and threats of being moved away from the city, work opportunities, schools, hospitals, and the communities they had been part of. This gives rise to an ‘unrealised right to housing’, which is playing a central part in continuing struggles for freedom.

Unrealised right to housing?

It is the case that, for the marginalised in SA’s cities, governmental acknowledgement of the human right to housing is merely rhetoric. Individuals living in informal settlements are largely forgotten and are left without access to basic services such as sanitation, water or electricity. They occupy shacks dug into the side of hills and built out of advertisement boards, corrugated iron, branches, and mud.⁽¹⁸⁾ Their ‘temporary’ shelters have become essentially permanent.⁽¹⁹⁾ For many, the right to housing remains unrealised.

Contemporary SA is increasingly divided along class lines, with evident gaps between the employed and unemployed, and the rich and poor.⁽²⁰⁾ Those without access to jobs are bearing. and will continue to bear, the brunt of poverty.⁽²¹⁾ These individuals are known as the ‘underclass’ - they are not simply unemployed but are also excluded from access to job opportunities.⁽²²⁾ They lack human capital (minimum skills demanded in the labour market today), social capital (connections and networks), and financial capital (money). These are society’s marginalised; they are typically poorer, less well educated, and less likely to live in urban areas.⁽²³⁾ The people living in informal settlements are, therefore, separated from the experiences of those living in the city centre.

It is often assumed that, in an international system predicated on cooperation and the recognition of individual rights, factors such as race, gender and geography should not determine access to healthcare, education, social grants, or housing. In fact, inequality in post-apartheid SA demonstrates that “privileges could be reproduced on the basis of class rather than race.”⁽²⁴⁾ With a growing number of black South Africans moving into the higher classes,⁽²⁵⁾ it is clear that declining interracial inequality is accompanied by rising intraracial inequality. The African elite and middle classes are becoming richer, while the rest of the black population becomes poorer.⁽²⁶⁾

There is a continuing struggle for adequate housing, which should be understood as a broader struggle for freedom. The marginalised are beginning to fight for their rights and press the state for accountability.⁽²⁷⁾ Anger continues to rise and many citizens are becoming impatient as they fight for the realisation of their rights, rejecting the idea that “many people had given up hope for formal employment, or were being forced to use what the World Bank terms their ‘entrepreneurial’ aspirations and ‘resourcefulness’ in the informal economy.”⁽²⁸⁾ Those living in SA’s informal settlements, known as the shack-dwellers, understand that the changes promised by the Government will be slow and that they need to take responsibility for their own welfare. The emergence of a shack-dwellers’ movement (Abahlali baseMjondolo) suggests a new reality for the state; the movement protests against forced evictions and campaigns for the realisation of the right to adequate housing.⁽²⁹⁾ The poor are taking matters into their own hands, seeing themselves as the force and reason for their own liberation.

SA’s shack-dwellers not only demand recognition as human beings but also inclusion in the political and legal systems, best represented by the demands of the Abahlali baseMjondolo movement.⁽³⁰⁾ The freedoms won in the struggle against the apartheid regime must be taken seriously, “…reject[ing] the equation of freedom with neoliberal ideas as ‘unfreedom’ since for them those ideas only amount to absence of freedom.”⁽³¹⁾ SA’s poor want freedom to be a recognition of true equality. Abahlalibase Mjondolo is the poor people’s struggle - they want to change how things are done and are struggling not merely for the delivery of rights, but for a vision of a different kind of politics.

Concluding remarks

SA continues to be informed by deep inequalities, along both racial and class lines. A struggle that began locally has become global. Citizens forced to live in SA’s informal settlements now understand that the problems they face are systemic. The state continues in its failure to respect, protect, promote and fulfil the right to housing, giving rise to demands for freedom and equality. The struggle of the marginalised is not simply a struggle for inclusion, but a struggle to change the terms of inclusion. There is a desire to remain in the city and have access to its services. The marginalised want protection and security, but are faced with the realisation that, outside of the informal settlements, they will continue to face harassment and inequality.⁽³²⁾ In present-day SA, security for the marginalised may be best offered within their informal communities. The inconsistency of this truth with SA’s international and regional human rights obligations must be examined and reformed with urgency.

Written by Siyabulela Fobosi ⁽¹⁾

NOTES:

(1) Contact Siyabulela Fobosi through Consultancy Africa Intelligence's Rights in Focus Unit (rights.focus@consultancyafrica.com).
(2) ‘The right to adequate housing (art. 11(1))’, United Nations Office of the High Commissioner for Human Rights General Comment, 1991, http://www.unhchr.ch.
(3) ‘Housing rights legislation: Review of international and national legal instruments’, United Nations Housing Rights Programme Report No. 1, 2002, http://www.ohchr.org.
(4) Ibid.
(5) Constitution of the Republic of South Africa No. 108, 1996, http://www.info.gov.za.
(6) Ibid.
(7) Ibid.
(8) Tissington, K., ‘A review of housing policy and development in South Africa since 1994’, Socio-Economic Institute of South Africa (SERI), 2010, http://www.spii.org.za.
(9) Ibid.
(10) Ibid.
(11) Legassick, M., ‘Western Cape housing crisis: Writings on Joe Slovo and Delft’, A Western Cape Anti-Eviction Campaign and Socialist Alternative Publication, 2008, http://westerncapeantieviction.files.wordpress.com.
(12) Ibid.
(13) Ibid.
(14) Tissington, K., ‘A review of housing policy and development in South Africa since 1994’, Socio-Economic Institute of South Africa (SERI), 2010, http://www.spii.org.za.
(15) Government of the Republic of South Africa and Others v Grootboom and Others,2001 (1) SA 46 (CC) (Grootboom), http://www.lrc.co.za.
(16) Tissington, K., ‘A review of housing policy and development in South Africa since 1994’, Socio-Economic Institute of South Africa (SERI), 2010, http://www.spii.org.za.
(17) Ibid.
(18) Gibson, N.C., 2011. Fanonian practices in South Africa: From Steve Biko to Abahlali baseMjondolo. University of KwaZulu-Natal Press: Scottsville.
(19) Ibid.
(20) Seekings, J. and Nattrass, N., 2005. Class, race, and inequality in South Africa. Yale University Press: New Haven.
(21) Ibid.
(22) Ibid.
(23) Ibid.
(24) Ibid.
(25) Ibid.
(26) Ibid.
(27) Gibson, N.C., 2011. Fanonian practices in South Africa: from Steve Biko to Abahlali baseMjondolo. University of KwaZulu-Natal Press: Scottsville.
(28) Ibid.
(29) Ibid.
(30) Ibid.
(31) Ibid.
(32) Ibid.