Top court failed to consider farm evictees’ right to dignified housing

In theory, the progressive right to housing contained in the Constitution also safeguards the dignity of people being evicted from their homes. In the Claytile judgment handed down on July 13 however, the Constitutional Court endorsed Wolwerivier, a "human dumping ground" on the outskirts of Cape Town, as acceptable housing for evictees.

The court sanctioned the eviction of 21 residents, 11 of them minor children, from a Western Cape farm, on the basis that it met the constitutional requirements of "meaningful engagement" with the residents, and because the City of Cape Town offered "suitable alternative accommodation" at the Wolwerivier relocation camp to those who would be rendered homeless by the eviction.

The residents, many of whom were born on the farm, began living there from 1978.

The relocation camp, 30km from the city bowl, is home to hundreds of families who have been evicted from their homes and cleared off land in the name of Cape Town’s "development" and "regeneration" agenda.

The rows of tin shacks — lined up on an expanse of gravel without the respite of shade and isolated from jobs, schools and hospitals — embody the resilience of SA’s apartheid spatial form: black labour forced to live at arm’s length from economically viable urban centres.

So, how is it that a court, justifiably considered the most progressive of its kind, decided that an apartheid-style relocation camp constitutes suitable accommodation for people evicted from their homes?

One explanation is a lack of imagination. The residents told the court that the accommodation in Wolwerivier was structurally inadequate because it had been constructed with corrugated cladding, and that it was far from the city and remote. But the court took issue with the fact that "[t]hey did not deal with any hardship they would suffer should they move to Wolweriv[i]er". Because the court did not believe the residents had any legitimate concerns in the first place, the ball-and-chain issue of the City of Cape Town’s budget or "available resources", and therefore what alternative accommodation it could in reality afford, was not considered.

The court’s reasoning in Claytile is distressingly familiar to that of Western Cape High Court judge Leslie Weinkove, whose father once owned a farm near Wolwerivier and who, when considering the possible relocation of inner-city evictees to the poorly located relocation camp, asked: "What’s the point of being near a school? What’s the point of them being near transport? Where are they going to go?"

That not one of the judges in the Constitutional Court was able to imagine the hardship, particularly in the light of the bare facts provided and the extensive recent media coverage of the inhumane conditions at Wolwerivier, is an abandonment of a method of legal reasoning that includes the use of legal fictions and hypotheticals and the practice of drawing inferences, that is well accepted and has been employed by the same court in previous cases.

In finding in favour of the company that produced "Black Labour White Guilt" T-shirts, parodying the Black Label beer logo, the Constitutional Court endeavoured a number of years ago to imagine how this would affect "black working-class drinkers", imagining they would not "raise an eyebrow". In the early 2000s, the Court drew on the concept of "legal imagination" (working with what is before the court to draw conclusions) to decide how to classify subordinate legislation.

The Constitutional Court abandoned its decision-making function and precedent when it declined to use its imagination in Claytile. The consequences are dire. The City of Cape Town has already referred to the acceptability of its tin town in Wolwerivier when addressing Reclaim the City activists and residents. It will not be long before other municipalities can house people with impunity in similar conditions, knowing residents will struggle finding support for protests from official channels.

While the Constitutional Court has consistently insisted on meaningful engagement, the involvement of municipalities and "suitable" alternative accommodation, it has also shunned potentially innovative remedies besides alternative accommodation. In Blue Moonlight, the Constitutional Court confirmed a decision in which the Supreme Court of Appeal rejected a high court order requiring the City of Johannesburg to pay a landowner an amount equivalent to fair and reasonable monthly rental until the eviction of the unlawful occupiers, and then to provide the occupiers with temporary accommodation, or to pay R850 per month to each occupier or household head.

It has also, in the past, sanctioned accommodation to which residents have objected. In the case of the residents of the Joe Slovo informal settlement in Cape Town, following its previous and consistent emphasis on engagement that is meaningful between the government and unlawful occupiers in eviction matters, the Constitutional Court found that "[t]he state owns the land and it is the state that pays for construction of housing. The state must be afforded some leeway in the design and structure of the housing provided that it acts reasonably."

In doing so, it sanctioned the forced removal of residents and their relocation to the notorious Delft, largely comprising government-built shacks.

It is difficult to decide what is most disappointing about the Claytile judgment. Is it that the court dispensed of its obligation to imagine what the living conditions at Wolwerivier might be? Or is it the fact that it took 10 judges less than four months and 23 pages to decide a complicated substantive question that has concerned policy makers, researchers and activists for several years?

The court has stopped in their tracks anyone who seeks to translate the constitutional recognition of a notional right into the ability to actually share in and benefit from the country’s material wealth. When the court gave weight to the fact that the landowner "offered to transport the children … to the school and back home again until the end of the 2017 school year", and that it had been deprived of its property (the landowner is a company), it endorsed transactional charity and appeared to identify more with the sacrifices of the landowner.

The court’s failure concerns more than having a house, or even having a suitable house. Rather, this case is deeply tied up with the issue of having a share — in this instance, a share in an economically viable community — and this often means a well-located house. The remedy of alternative accommodation being forced onto people who demand to remain where they are in this instance has detracted from its original and progressive purpose as a safety net against inevitable evictions.

Alternative accommodation of the kind ordered by the Constitutional Court in Claytile threatens to become a means of facilitating evictions. Wolwerivier and other mass relocation camps of its kind, are here to stay. The City of Cape Town has recently put out to tender the construction of 4,500 new tin homes at Wolwerivier.

The Constitutional Court’s judgment sets a chilling precedent, and gives the go-ahead to municipalities to house the thousands of victims of SA’s rapacious urban development, rising farm evictions and continued spatial apartheid in economically depressed tin towns on the far peripheries of cities.

• Ramji is an attorney at Section 27 and Webster a researcher at the Studies in Poverty and Inequality Institute, writing in his personal capacity.