We may have one of the great constitutions in the world, but it means nothing if social justice still has to be attained, writes Somila Dondashe.
The preamble of the Constitution asserts that the people of South Africa recognises the injustices of the past and are therefore committed to the attainment of social justice for all who live in it.
The South African Constitution has been hailed as a progressive document. In a society that threatens to be quite conservative, our Constitution stands valiantly. Bold in its inclusiveness, it is coloured in liberal ideas and cloaked in transformation.
Praise for the Constitution extends beyond our borders. Harvard scholar, Cass Sustein, called it the most admirable Constitution in the history of the world, and a US Supreme Court Justice hailed it as a “great piece of work that embraces basic human rights”.
The presumption would then be that South Africans are reaping the social justice promised by this supreme law, but unfortunately for the majority of black people – this praised progression is a myth. Despite all the rights that stand attractive on paper, a simple look into the world’s most unequal country informs even the biggest optimist that this document, alone, is simply unable to translate into the attainment of social justice.
Fetishisation of rights
The deification of the Constitution has led to what legal scholars such as Tshepo Madlingozi call a fetishisation of rights.
This glorification makes state actors act oblivious to the fact that the struggles that confront most black people today are still the same ones that they faced pre-1994. If one were to put aside the promises that exist on paper and look only at lived realities – it would be clear that black people still carry the burden of normalised social injustices. Umhlaba usabolile.
The prevalence of illegal evictions is one of these normalised social injustices. On the 1 July 2020, a video of a naked Bulelani Qolani being violently evicted from his home circulated the internet. The video shows the City of Cape Town’s Law Enforcement dragging the 28-year-old man, who is naked and in full public view.
The City of Cape Town continues to conduct these illegal evictions despite the Disaster Management Act’s prohibition of evictions during lockdown.
Apartheid’s spatial planning and racist land and property laws have left many black people displaced and dispossessed. These laws entrenched socio-economic inequality through the common law. Legislation favoured property rights, thus private landowners could vindicate these rights through eviction processes without consideration of the occupiers’ circumstances. Spatial planning meant that majority black people were deprived from formal access to land and housing and were relegated to the homelands.
Because of a host of legislation such as the Natives Land Act 27 of 1913, Group Areas Act 41 of 1950 and the Prevention of Illegal Squatting Act 52 of 1951; the majority of black people still find themselves on the periphery of human rights.
The residue from racialised land and property laws has left an unshakeable stench which has resulted in the right to housing being one of the most litigated rights. Today most black people still find themselves in undesirable living conditions, waiting for the longstanding promise of service delivery.
The disparities between people’s lived realities and the Constitution’s promise of human rights are inescapable.
Section 26(1) provides that everyone has a right to have access to adequate housing and that the State must take reasonable legislative and other measures within its available resources to achieve the progressive realisation of the right.
This momentous right is a preventative measure against the system of laws that sought to ostracise black people from their own country.
Section 26(2) indicates that the State must take reasonable legislative and other measures within its available resources to progressively realise this right.
All arbitrary evictions are prohibited by section 26(3) and no one may be evicted or have their home demolished without a court order made after considering all the relevant circumstances. The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE) was enacted to give effect to section 26(3). PIE protects against the eviction of unlawful occupiers living on both privately and publicly owned land.
Despite these rights and an array of case law in support, poverty continues to be criminalised in South Africa as communities and individuals are frequently and violently evicted from places they call home.
The right to housing is an all-encompassing right.
As per Government of the Republic of South Africa v Grootboom, housing is about more than bricks and mortar. The right is informed and informs other rights such as dignity, privacy, safety and security and water. More than half of South Africa’s population lives in poverty and it is probable that the housing crisis is at the heart of this destitution.
The rights exist and the legal jurisprudence is rich, but it often fails to translate into people’s lived experiences.
In an article by Tshepo Madlingozi titled Social Justice in a Time of Neo-Apartheid Constitutionalism: Critiquing the Anti-Black Economy of Recognition, Incorporation and Distribution, he eloquently states that poor black people fall on the other side of the promise of a new South Africa. Informed by a report by Abahlali Basemjondolo, Madlingozi refers to South Africans who have been excluded from the miracle of the transition as “The Forgotten”. The Forgotten are excluded from reaping the benefits of basic human rights despite the legal jurisprudence which continues to develop in their name.
My first introduction to the Constitution and Constitutional law was in second year in my Public Policy and Administration class when a student was explaining the separation of powers doctrine and used the Grootboom judgment as an example of a case where the Court reminds the government of its obligation to provide adequate housing, as per section 26 of the Constitution.
The case concerns Irene Grootboom who brought the application on behalf of 510 children and 390 adults who were rendered homeless when they were evicted from their informal homes situated on private land. The application was for an order which required government to provide the respondents with adequate basic shelter or housing until they obtained permanent accommodation.
True to the circuitous nature of the legal system; Grootboom died eight years after the judgment, still waiting for reasonable accommodation from the State. Today the judgment remains a powerful precedent for communities under threat of eviction as it implores government to be consistent with its constitutional obligations to provide adequate housing. However, the case’s namesake died without attaining that socio-economic right. The case is an example of how the legal jurisprudence is enriched in the name of The Forgotten – who unfortunately never see beyond their deplorable living conditions.
The developing legal jurisprudence often conceals the fact that black South Africans are still confronted with the same issues which trammelled them during the merciless years of apartheid. Black people still bear the brunt of normalised social injustices and the promise of the Constitution is frequently offered as a panacea. It has been 26 years since apartheid property and land laws were abolished but the stain of displacement still lingers. Black people still exist on the periphery of belonging.
A day after Qolani’s eviction video circulated, he shared the following words with a journalist regarding the matter: basihlisile isidima sam.
The have disregarded my dignity. Lowered it.
These fervent words lament the history of dispossession suffered by black people at the hands of a merciless State. It all comes down to the fight for dignity and
a fight for the attainment of social justice for all who live in it.
– Somila is a postgraduate LLB student who has a blog where she writes on socio-economic issues.
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