Project Evaluation: Protecting the Right to Access to Adequate Housing: Legal Resources Centre...

Legal Resources Centre

Project Evaluation: Protecting the Right to Access to Adequate Housing (2010 - 2012)

Comic Relief Grant: GR002-‐01807-‐DCBE Grant Programme: People Living in Urban Slums

Report prepared by: UtR Research Team: Thuli Madi and Sonja Boezak, with additional support from Sarita Ranchod and Diana Martin

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Contents Executive Summary ............................................................................................................................... 5

Background ........................................................................................................................................ 5

Key Findings ....................................................................................................................................... 5

Key Recommendations ...................................................................................................................... 5

1. Background ........................................................................................................................................ 6

2. Purpose and Scope of the Evaluation ................................................................................................ 6

3. Evaluation Methodology and Design ................................................................................................. 7

3.1 Evaluation model ......................................................................................................................... 7

3.2 Data collection ............................................................................................................................. 8

3.2.1 Document study and preparation ......................................................................................... 8

3.2.2 Field visits .............................................................................................................................. 8

3.2.3 Interviews ............................................................................................................................. 9

3.3 Limitations ................................................................................................................................... 9

4. General Findings ................................................................................................................................ 9

5. Mamelodi East ................................................................................................................................. 11

5.1 Context ....................................................................................................................................... 11

5.2 Community action ...................................................................................................................... 12

5.3 LRC involvement ........................................................................................................................ 13

5.4 Gaps ........................................................................................................................................... 14

5.5 Appropriateness and impact of LRC activities ........................................................................... 14

6. Joe Slovo .......................................................................................................................................... 15

6.1 Context ....................................................................................................................................... 15

6.2 LRC Involvement ........................................................................................................................ 15

6.3 Findings ...................................................................................................................................... 18

7. Case Profiles ..................................................................................................................................... 19

7.1 The Florence case ...................................................................................................................... 19

LRC work and involvement .......................................................................................................... 19

7.2 Gundwana and Kanana .............................................................................................................. 20

LRC Involvement .............................................................................................................................. 20

Impact of LRC intervention .............................................................................................................. 22

8. Overall Recommendations ............................................................................................................... 22

9. Annexes ........................................................................................................................................... 24

9.1 List of People Interviewed ......................................................................................................... 24

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9.2 Selected Documents Reviewed .................................................................................................. 25

Reports and Articles ..................................................................................................................... 25

Affidavits and Judgements ........................................................................................................... 26

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Acronyms CALS Centre for Applied Legal Studies CBO Community based organisation COHRE Centre on Housing Rights and Evictions CORC Community Organisation Resource Centre CSO Civil society organisation DAG Development Action Group FEDUP Federation of Urban Poor HDA Housing Development Agency LRC Legal Resources Centre PIE Prevention of Illegal Eviction from and Unlawful Occupation of Land

(Act 19 of 1998) PPM Poor People’s Movement SDI Shack/Slum Dwellers International

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Executive Summary Background In the context of accelerated urbanisation, lack of sufficient affordable housing for the poor, and increasing income disparities, poor, vulnerable and marginalised communities in South Africa continue to face a substantial challenge in realising their right to housing. This impacts on their livelihoods and general wellbeing. In its project "Protecting the Right to Have Access to Adequate Housing" funded by Comic Relief through the “People Living in Urban Slums” grant, the Legal Resources Centre (LRC) aims to provide legal and non-‐legal support to poor, vulnerable and marginalised communities in order to protect, promote and fulfil their rights. It is expected that through its work, and this project, LRC contributes to the strengthening of the most vulnerable people’s socio-‐economic status through an increase of security tenure and improved confidence and skills to advocate and ask for the realisation of their rights. Key Findings • LRC demonstrates an ability to assist poor people and vulnerable urban dwellers in

implementing, promoting and respecting their right to adequate and safe housing, municipal services and affordable housing developments.

• LRC is a valued and respected partner and important actor in housing rights. • LRC is particularly successful in the protection and assistance of:

o vulnerable people in accessing housing, especially those awaiting housing developments, and

o those under threat of losing their homes due to fraud, maladministration or debt. • The cases pursued by LRC reflect the organisation’s strength and the need for legal activism in

this regard. • Ambitious targets (in terms of numbers) were set and reached. • There is a need to improve and formalise partnerships with other civil society organisations

(CSOs), and to engage with the broader housing sector. • There is a need to record, track and document:

o the profile of beneficiaries; and o cases in order to be able to appreciate impact and effectiveness.

Key Recommendations • LRC’s work on housing should continue to be supported. • Limit outcomes and objectives to what is within LRC’s ability and reach. There is a need for clear

objectives with linked activities and measurable outcomes. • Resources are required for the on-‐going monitoring and evaluation of project activities,

strategies and outcomes for increased efficiency and effectiveness. • Documenting and tracking project work is vital for strategic relationship building, for internal

record-‐keeping, strategic planning and sharing lessons with other CSOs working in this arena.

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1. Background In addition to "four walls and a roof" the right to adequate housing contains freedoms, such as protection against forced or arbitrary evictions, entitlements such as equal and non-‐discriminatory access to housing, and a requirement that minimum criteria are met, such as habitability, accessibility and location. The right to adequate housing is linked to other human rights, for example, the rights to dignity, work, health, social security, personal security or education. In the context of accelerated urbanisation, lack of sufficient affordable housing for the poor, and increasing income disparities, poor, vulnerable and marginalised communities in South Africa continue to face a substantial challenge in realising their right to housing. This impacts on their livelihoods and general well-‐being. In its project "Protecting the Right to Have Access to Adequate Housing" the LRC aims to provide legal and non-‐legal support to poor, vulnerable and marginalised communities in order to protect, promote and fulfil their rights. The expected outcome is that individuals and communities will benefit from legislative protections that continue to strengthen their socio-‐economic status, and will help them gain both greater security of tenure, and the confidence and skills to advocate for the realisation of all their rights. The motivation for this study is to ascertain to what extent LRC has achieved the four outcomes related to its “Protecting the Right to Have Access to Adequate Housing” project.

2. Purpose and Scope of the Evaluation The purpose of this evaluation is:

1. To assess the degree to which LRC has achieved the 4 objectives as stated in the project document (see Chapter 3); and

2. To provide recommendations for future interventions relating to housing.

The purpose of this evaluation therefore is to understand to what extent LRC has achieved its goals or has worked towards the achievement of the stated outcomes. The intention is to identify strengths and weaknesses of LRC’s work and provide recommendations for greater effectiveness. In order to do this two main cases studies have been chosen to illustrate the variety of activities and areas on which the LRC is involved: the Joe Slovo settlement in Cape Town, and the Mamelodi East, Extension 11 settlement north of Pretoria. In addition, two client-‐based cases (Florence case, Kanana and Gundwana cases) – while not directly linked to urban slums – are also highlighted to illustrate LRC’s work on more individual precedent setting cases that focus on the achievement of the project outcomes.

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3. Evaluation Methodology and Design 3.1 Evaluation model Project activities were measured against the four stated project outcomes, as illustrated in the following tables. 1. Ultimate Outcome

Respect, protection, promotion & fulfilment of poor, vulnerable slum dwellers’ rights to: a. access adequate & safe housing, municipal services, affordable housing developments; b. earn a livelihood

Intermediate Outcomes (behaviour, practice, performance)

Fair & transparent local governance

Better policy and legislative environment supporting pro-poor housing rights

Community is willing to demand their rights

Community is able to network with external actors for assistance

Immediate Outcomes (skills, knowledge, understanding)

Government understands community's rights and their responsibilities regarding these rights

Community perceives local government as fair & transparent in delivery of services

Communities know their rights

Community knows of external actors that can assist them

Data Collection Tools

Interviews with government officials

Focus groups; interviews with committees



2. Ultimate Outcome

Legislative protection of gains made in pro-poor housing rights; improvement & better implementation of policies & legislation; vulnerable people participate in processes and are able to assert & access their rights


Community participates in local planning processes

Community asserts its rights to adequate housing and services

Improved policy & legislative changes regarding pro-poor housing rights

Government involves poor communities in policy and legislative processes


Community knows the legislative and policy environment

Community knows its rights regarding adequate housing and services

Government understands its responsibilities regarding rights to adequate housing and services

Government understands the need to involve communities in policy decisions regarding adequate housing and services






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3. Ultimate Outcome

Marginalised slum dwellers are more aware of opportunities & have greater confidence to actively participate in engaging with authorities to secure their rights and improve living conditions


Community engages with decision makers around their rights

Community participates in planning/upgrading processes

Community makes progress toward obtaining secure tenure

Community rights to basic services are realised


Greater community awareness of opportunities

Greater community confidence to participate in engaging with authorities

Government understands their responsibilities regarding delivering the right to housing


Focus groups Interviews with committees; focus groups


4. Ultimate Outcome

Partner organisations have increased capacity to intervene on behalf of poor and vulnerable communities in relation to evictions and the protection of poor people's rights to access adequate housing and services


Communities participate in securing their rights

CSOs intervene on behalf of communities

Government protects communities' rights to access adequate housing and services


Communities know the legislative and pollicy environment affecting them

CSOs understand the legislative opportunities

Government understands the opportunities for poor people to secure their rights through legal processes


Focus groups

Interviews with committees

Interviews with partner organisations


3.2 Data collection 3.2.1 Document study and preparation Documents in the form of reports, affidavits, judgements by the LRC and websites of other stakeholders for more information, were part of the desk review. This was essentially to provide an understanding of the contexts, roles, objectives and activities of those involved in the project. Also, it was to be able to track down changes in activities and outcomes of the project cycle, and to analyse intentions and plans against the results and outcomes. 3.2.2 Field visits Field visits to Mamelodi East (Pretoria), and Joe Slovo (Cape Town) settlements were made in order to: – gain an understanding of the contexts; and – conduct face-‐to-‐face and focus group interviews with community members and leaders. Three focus groups were conducted per community, 8–10 people per group. In Mamelodi East, a total of 55 people from the Silahliwe (33) and Sizwe (22) participated in focus group discussions.

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In Joe Slovo, 20 community members from Zone 32 (those still waiting to move to the N2 Gateway Project's newly built high-‐density housing) participated in focus groups. 3.2.3 Interviews Face-‐to-‐face and/or telephonic interviews with community members, leaders, CSOs and officials from government (local, provincial and national) and LRC attorneys formed part of the method to collect information from relevant informants critical to the evaluation of this project. Face-‐to-‐face interviews were the preferred method. However, when this was not possible, telephone interviews were conducted or email exchanges with open questions and answers were utilised. 3.3 Limitations Representatives from the Department of Human Settlements (national office) in Pretoria, Gauteng proved impossible to reach in all attempts made (e-‐mail or telephone). Some key government informants were also not available to be interviewed. This is also true for informants from the Housing Development Agency (HDA) for interviews on their role in the N2 Gateway Project. Despite these limitations, sufficient information was gathered to assess LRC's work in this project.

4. General Findings Key LRC victories in reaching its stated outcomes include: • Assisting communities in accessing basic services, including tarred roads (Joe Slovo). • The Joe Slovo case as precedent. • Joining the three spheres of government in order to sidestep potential deniability. • Impact on housing development planning: on-‐site development without the need for evictions. • Preventing poor people from losing their primary dwellings, keeping banks from selling a

debtor’s house to capitalise on relatively small debt.

Outcome 1: respect, protection, promotion and fulfilment of poor, vulnerable slum dwellers' rights to access adequate and safe housing, municipal services, affordable housing developments. This is an area of LRC’s strength, particularly in protecting the rights of “those losing their homes due to fraud, maladministration, debt,” as illustrated in the Joe Slovo settlement in particular, as well as in other cases, such as the two cases profiled in this report. In terms of numbers of people reached, the LRC estimated that 152 730 people would directly benefit from its work relating to this outcome. Over the two-‐year period, the LRC has exceeded this estimate, and reached 160 846 people. Outcome 2: legislative protection of gains made in pro-‐poor housing rights; improvement in its implementation of policies and legislation; vulnerable people participating processes and are able to assert and access their rights. Here LRC has been and continues to be active and has achieved successes in courts, and in legal and executive decisions. Particular success has been recorded in the category of those awaiting the provision of municipal services and those facing eviction.

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Vulnerable people having the wherewithal to seek help and act in their own behalf, is illustrated through the formation of community committees. In the case of the Joe Slovo settlement the committee is active and members have an understanding of the state’s responsibility toward them in respecting and upholding their rights as enshrined in the Constitution and other legislation. In the case of Mamelodi East, the same understanding of rights and the accompanying ability to assert these rights is not widely present in the community. This difference between the two communities could be the result of a number of different factors, including the absence of other CSOs active in the Mamelodi East; and the fact of its remote location, unlike the case with Joe Slovo, which is situated along the N2, as a highly visible and major transport artery. Outcome 3: marginalised slum dwellers are more aware of opportunities and have greater confidence to actively participate in engaging with authorities to secure their rights and improve living conditions. Although LRC has served 2,525 beneficiaries through workshops and raising communities’ awareness of their rights, this area needs further improvement. For example, many Mamelodi East community members admit to not knowing anything about their rights or knowing of ways to advocate for their implementation. In this regard, further strengthening the communications and cooperation with, for example, the Development Action Group (DAG), the Islanda Institute1 and Shack/Slum Dwellers International (SDI)2 is necessary so that efforts could converge into the development of communities’ and the most vulnerable people’s knowledge and awareness. Outcome 4: partner organisations have increased capacity to intervene on behalf of poor and vulnerable communities in relation to evictions and the protection of poor people's rights to access adequate housing and services. Linked as it is with Outcome 3, it is important to note that while LRC has strong relationships with organisations such as the Centre for Applied Legal Studies (CALS) (Wits University), the Community Law Centre (University of the Western Cape), the Law Clinic (University of Cape Town), DAG, Isandla and the global SDI, the focus is not primarily on strengthening the capacity of communities to drive their own change. In this regard LRC focuses on 'mechanisms of delivery' as opposed to ‘mechanisms of learning’. In order to secure ‘development from within’, it is fundamental that communities have the tools with which to articulate their needs and make claim to their rights. LRC is well respected in its sphere of influence, and other CSOs have indicated a keenness to work with the organisation, in terms of broadening their internal knowledge of legal matters and working with communities.

1 Isandla is an organisation which engages in research, knowledge sharing, development of alternative frameworks and methodologies to support urban development and transformation. 2 SDI is a CSO that manages networks of the urban poor and shack dwellers in the Global South. SDI works with organised communities to drive their own development, working toward government participation in people's processes.

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In general, the LRC is able to honour and achieve results related to Outcome 1. Some of the detail related to the other 3 outcomes appear to be outside the control and monitoring ability of the organisation. As a legal entity, the LRC is in a strong position to act according to its expertise and position regarding the “respect, protection, promotion and fulfilment of poor, vulnerable slum dwellers’ rights to access adequate and safe housing and municipal services”, whereas it has neither the additional resources, nor is it a general focus area in terms of the organisation’s activities, for the LRC to increase vulnerable people’s awareness of opportunities. The LRC is, however, in an ideal position regarding the forging of partnerships with other CSOs and community based organisations (CBOs) to strengthen vulnerable people’s capacity to act in their own behalf.

5. Mamelodi East 5.1 Context Mamelodi, a township part of the city of Tshwane Municipality, was set up by the apartheid government North East of Pretoria. Currently the settlement consists of about 5000 households with an estimated 25,000 residents who live in single room shacks made of zinc, wood, plastic and cardboard. Extension 11 — the subsection of the township, where LRC has been active — residents are mostly unemployed and living in shelters that are used for all household purposes like cooking, sleeping and bathing, offering no privacy and inadequate space for all members of the household. Having been relocated to Extension 11 from another part of Mamelodi for the construction of houses that had been promised them and to which residents were entitled, the settlement now consists of two villages, Silahliwe and Sizwe, that have decided to combine themselves into a single community represented by the Mamelodi Concerned Committee that was established in 2009 and whose 10 members were elected by the community. The settlement has no basic services. The closest health facilities are situated about 10 km away, and the closest high school some 11 km away. No transportation is provided to link the settlement to these basic services and there is no proper road infrastructure. There is no proper sanitation. Very few public toilets with no drainage systems serve the entire community. Residents have dug pit toilets enclosed by wooden and zinc structures to provide privacy, but during the rainy season, these makeshift toilets flood and faeces overflow. These conditions force inhabitants to walk with plastic bags on their feet to avoid the faeces, a highly unsanitary situation that facilitates the spread of disease. Moreover, the lack of private toilets render women and children particularly vulnerable to gender based harassment or violence. Extension 11 also lacks electricity and adequate access to water. As for the water access, residents have managed to connect to the municipal water system illegally, with only 10 caps servicing the 25,000 inhabitants. The city of Tshwane also does not provide for the collection of refuse, leaving rubbish to pile up. Fire risk and settlement is high given that residents have to use paraffin and wood stoves for cooking and heating in already flammable shelters.

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Some of the community members started residing on the settlement after having been advised to move from where they were by officials of the state, and were promised that they would be relocated back after their houses have been built and completed. These community members were however, not relocated back as promised, but the houses built where they were removed from were given and/or allocated to other people. About 45 people who are currently residing on the settlement have made applications for low-‐cost housing subsidies as far back as 1996, and continuing until 2003 and were given confirmation letters but to date no houses have been allocated to them.

5.2 Community action The battle with government authorities for the improvement of the conditions of the settlement started in the summer of 2008/2009 when the river surrounding Extension 11 flooded. Residents contacted the municipal councillor who promised to negotiate with the municipality for the cleaning and reconstruction of the river. The residents' requests and needs were, however, not addressed. Since July 2009 community representatives have been sending letters and memoranda to the Office of the Speaker and have received no response. After no tangible results for answers were obtained, the community approached the Office of the President in April 2010, and on the instructions of a representative from the Office of the President, requested the intervention of the Minister of Co-‐operative Governance. Following a meeting with the Office of the Speaker in June 2010, residents received a report from the City of Tshwane promising that they would formalise the settlement, upgrade it as part of the 2010/2011 financial year, provide services and meet with community representatives to discuss these matters. Despite attempts to engage municipal officials through the Community Committee, writing letters and conducting mass demonstrations, residents continued facing the same problems. In mid-‐2010 the Community Committee received a report from the municipality advising them as follows: 1. That the formalisation of the informal settlement was one of the municipality's priorities; 2. That Silahliwe and Sizwe villages were earmarked for in-‐site upgrading in the 2010/2011 financial year; 3. That the municipality would provide services, including structures to be incrementally provided through the consolidation of subsidies to qualifying beneficiaries; and 4. That the municipality was willing and prepared to meet community representatives and further discuss plans for the settlement.

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In March 2011, a representative from the Office of the Minister of Cooperative Governance and Traditional Affairs contacted the chair of the Mamelodi Concerned Committee, to ensure residents that their office would engage with the City to find a workable solution. 5.3 LRC involvement The LRC was contacted by the Mamelodi Concerned Committee at the beginning of 2011 when it was clear that no progress was being made with authorities regarding the formalisation and upgrading of the settlement. LRC's approach was to attempt negotiations with authorities before launching a court application. The meeting was held in April 2011 and attended by community representatives, the LRC, the City of Tshwane and the National Department of Human Settlements. During this meeting, the LRC requested explanations regarding the allocation of houses promised to those who applied for low income housing subsidies. They also enquired into the lack of basic services such as sanitation, water provision and electricity, and further requested a detailed plan of action and activities to be produced by the municipality to meet the most basic needs of the residents of Extension 11. The City of Tshwane said they could only provide water and electricity, but no sanitation, as their budget was limited. Since no further meaningful steps have been undertaken by the City to address the conditions in Extension 11, the LRC and the Mamelodi Concerned Committee submitted an application against the City.

The LRC assisted the community members in bringing an application to the North Gauteng High Court against the City of Tshwane, the MEC, Department of Human Settlements (Gauteng) and the Minister of the Department of Human Settlements, requesting that the City be directed to: 1. Provide adequate access to water to the community by installing a sufficient number of water

user connections to supply the minimum quantity of potable water of 25 L per person per day or 6 kL per household per month, and the minimum flow rate of not less than 10 L per minute with in 200 m of each resident's household, within one month of the order;

2. Provide adequate sanitation to community members, at the very least a supplying one well-‐constructed toilet per household;

3. Provide the community with adequate basic temporary shelter or housing pending the obtaining of a permanent accommodation;

4. Produce a detailed plan and timeframe for how and when housing would be provided to community members.

This case involves the issues of adequate housing and the provision of sanitation. Although the legislation on adequate housing has been widely challenged, as is also illustrated in the case of Joe

“Mamelodi East, Extension 11 (Ward 10) has its own day to day problems, your “bread and butter issues” but there is really no crisis there. The residents of both Silahliwe and Sizwe Sections had problems such as no access to water, in a form of water taps; and this was sorted out when the Tshwane Municipality connected enough communal taps.” -‐ Government official

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Slovo settlement, the issue of sanitation has not been much debated in South African courts. LRC is taking up a new precedent-‐setting challenge. The right to sanitation is understood within the broader framework of socio-‐economic rights. As such, The government has a duty to realise this right and work towards the progress of satisfaction of these rights and what they entail. In particular, the refusal to provide the community with adequate toilets would be a breach of the constitutional rights of privacy, dignity and adequate housing. In this regard, the LRC application includes the following sections of the Bill of Rights: – Section 10: the right to dignity; – Section 12: the right to freedom and security of the person; – Section 14: the right to privacy; – Section 24: the right to an environment that is not harmful to health or well-‐being; – Section 26: the right to have access to adequate housing; – Section 27: the right to have access to food and water. The responsibility to provide sanitation lies mainly with the municipality but the provincial and national governments are also to be held responsible for the lack of basic services. 5.4 Gaps • There are no CSOs visibly working in and with the Mamelodi East community; and • The community has very little knowledge of basic human rights and therefore finds it difficult to

identify opportunities and freely participate in engaging with authorities to secure their rights and improve living conditions.

From focus group discussions it is clear that the majority of community members do not know or understand their human rights as enshrined in the Constitution. Very few community members knew about the right to housing and shelter. Community leaders have a much better grasp on their rights and the responsibility of the state, but this knowledge has not filtered down to the broader community. 5.5 Appropriateness and impact of LRC activities All LRC activities were appropriate and relevant to reaching the stated outcomes. The recent application submitted by LRC is complex, and if successful, will improve the lives of many others in similar situations around the country. LRC's role in “precedent setting litigation [and] submissions to government..." has materialised in the form of the 2 applications submitted to the North Gauteng High Court.

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6. Joe Slovo 6.1 Context Joe Slovo is an informal settlement in Langa, a township in Cape Town. The settlement is situated some 10 km from the centre of Cape Town. Established in 1992, Joe Slovo settlement grew exponentially because of its proximity to the city, job opportunities, main transport routes and services and is currently home to an initially estimated 25,000 residents residing in close to 5500 dwellings. In September 2004 the National Department of Housing (now the Department of Human Settlements) launched the N2 Gateway development project to provide subsidised housing for low-‐ income families in informal settlements. This included the provision of “subsidised rental housing units, subsidised full ownership […] and credit linked ‘bond houses’” (Centre on Housing Rights and Evictions, 2009). Joe Slovo was to be one of the first settlements to be developed through the building of three to four-‐storey houses and blocks of flats that comprise 22,000 units for rental and full ownership of which 70% was to be allocated to Joe Slovo residents and 30% reserved for backyard shack dwellers of Langa. The project also aimed to reduce the density of the settlement. On 15 January 2005 a major fire left about 12,000 residents displaced (HDA, 2012). This fire is reported to have lasted the whole day and is said to have been by far the most catastrophic by then. While this moment marked an overlapping of priorities between the N2 Gateway project and the provision of emergency houses, eviction was seen as the only way to address the situation. Although alternative sites close to Joe Slovo were proposed by the City of Cape Town, including the Epping industrial area and Pinelands, strong objections from residents and the industrial community led the government to force a relocation to Delft, some 20 km from Joe Slovo. About 1000 households that lived in the area where the fire occurred were relocated to Delft to make way for the construction of new houses. Although these families were incentivised to move by the government's promise that the new houses would be allocated to them, the relocation had serious consequences. Delft was too far away from jobs and economic opportunities, as well as services such as schools and clinics. Moreover, it was not connected to the railway system. This meant that transportation expenses increased and that those who could not afford these increases lost jobs that were located too far away. Residents who had been left homeless were relocated to transit camps. Residents resisted publicly by protesting. Despite promises from government, the first houses built in Joe Slovo were not allocated to local residents and only one household managed to get one of the units (interview with Steve Kahanovitz, LRC attorney). “And even if houses were allocated to them [Joe Slovo residents], the rental cost would have been too prohibitive as it increased from R 150-‐300 to R 600-‐1050" (COHRE, 2009:13). 6.2 LRC Involvement The LRC was approached by community leaders following a recommendation by presiding Judge Hlophe, after a failed court hearing over the forced removal.

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The LRC appealed against the judgement in the Constitutional Court, claiming that the eviction was not just and equitable according to the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE), that the residents were not unlawful occupants and that the development of the area could have been carried out while the residents were living there. LRC played a critical role in the success of the 2008 case heard before the Constitutional Court in Johannesburg, resulting in: • a halt on all relocations; • Joe Slovo development plan to be revisited; • the HDA identified to deal with urban land and the development of housing.

However, in June 2009, all the judges of the Constitutional Court agreed that the residents of Joe Slovo were unlawful occupants and the eviction order was confirmed. The conditions of the eviction were as follows: • the relocation of Joe Slovo residents had to be carried out over a period of 10 months starting in

August 2009; • residents had to be provided with alternative accommodation;3 • such alternative accommodation had to meet minimum requirements set out by the court order

(such as being at least 24 m² in extent, served by tarred roads, and supplied with electricity, water and basic sanitation);

• the applicants (Minister of Housing, the MEC of Housing for Cape Town, and Thubelisha – a Section 21 company contracted by government all of the upgrading of informal settlements, the unblocking of housing projects, the fast tracking of emergency housing solutions) had to engage with the community to finalise the details of the relocation and enquire of them if any assistance was needed;

• 70% of the houses built had to be allocated to Joe Slovo residents who apply and qualify for subsidies, including those with previously been relocated to Delft.

The Constitutional Court unexpectedly suspended the order because of lack of engagement between the authorities and the community. Meanwhile Thubelisha Homes was substituted by the HDA to construct and deliver low-‐cost houses in Joe Slovo. 3 This was as a result of the Grootboom case through which the LRC set a precedent in the 2000 Constitutional Court judgement. In 1998, 900 people, called the Grootboom community (after one of their leaders, Irene Grootboom) were evicted from the land they were occupying. The matter reached the Constitutional Court and LRC acted as amicus curiae representing the South African Human Rights Commission and the Community Law Centre. The Court found that all three spheres of government (local, provincial and national) were in breach of Article 26 of the Constitution, the right to adequate housing. The judgement handed down in October 2000 declared that the government is not only responsible for the provision of permanent adequate housing, but was also responsible for providing interim solutions for those awaiting permanent housing and living in difficult conditions. The Court praised government efforts to provide permanent housing solutions, but highlighted the need for the adoption of an emergency policy that would address temporary and emergency situations (Marcus and Budlender, 2008).

The city sees us differently now, with LRC on our side. -‐ Sifiso Mapasa, Joe Slovo

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The 2005 fire in Joe Slovo was overtaken in scope by a fire in March 2009. This fire was considered a catalyst to a series of improvements that later took place in the settlement. The first activity was the undertaking of the first ever enumeration of the settlement to map it and survey its population. This survey was decided upon as lobbying tool since real numbers and the identification of key needs would put the community in a better position to negotiate with governments on the improvement of the settlement. This exercise was undertaken with the assistance of the Community Organisation Resource Centre (CORC), the Federation of Urban Poor (FEDUP), the Poor People's Movement (PPM) and Muungano Wa Wanvijiji, a Kenyan federation linked to Shack/Slum Dwellers International (SDI). The survey showed that the settlement was inhabited by 7,946 people living in 2,748 shacks. This finding revealed that the previous overestimation (20,000 people living in 5500 shacks) meant that the construction of new housing units could take place in-‐situ. LRC filed an application in December 2010, stressing that the eviction order should be discharged given the findings of the survey. In March 2011, the Constitutional Court handed down a judgement discharging the eviction order since the conditions under which the Court had previously granted the order had mutated and that “there [was] no reason why the threat of eviction […] should continue to disturb applicants" (Case

CCT 22/08 [2011] ZACC 8). According to Kahanovitz, not only did the Court rule in the residents' favour in discharging eviction, but it was also the initiative of the Joe Slovo community in undertaking the survey revealing that an in-‐situ upgrade was possible and doable that produced this result. Since 2011, houses have been built and regularly allocated to residents of Joe Slovo who qualified for low-‐cost housing and subsidies, including those who had previously been evicted to Delft. According to Kahanovitz, the process of allocation works better than before. There is more clarity as houses are first allocated and then built. The houses that are being built now are for families entitled to full government subsidies, and these people will own their houses.

The new site is clean, refuse bins are allocated to each household and refuse is regularly collected by the municipal services. There are trees planted, giving the site a homely and communal feel. The area is quite safe, there is electricity for each and every household that they individually only pay for using Eskom cards. -‐ Mayenzeke Sopaqa, councillor of Joe Slovo and member of the Community Task Team

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6.3 Findings The LRC’s approach in assisting the Joe Slovo community proved appropriate and in accordance with the principles of the National Housing Code that recommends “the minimisation of disruption and the preservation of the community cohesion". Almost 70% of Joe Slovo residents have now been moved to adequate and safe housing built by the HDA since 2011 (HDA). The housing project is still continuing and should reach completion in 2015. The total number of high-‐density housing units to be completed is 2639. 24 of the total number of units are specifically earmarked to suit the needs of physically disabled, and elderly residents. Affordable rental housing for those earning more than R3500 is still pending confirmation by the Department of Human Settlements. Residents within this category are concerned about what would happen to them should this decision be delayed any further. In terms of LRC’s grant outcomes, the Joe Slovo case is a success on all fronts. As regards the protection, promotion and fulfilment of poor, vulnerable slum dwellers’ rights to adequate and safe housing, municipal services and living; this case has resulted in visible change and progress. Residents of Joe Slovo are settling in their new houses built for them and others are on the waiting lists and will be provided accommodation by 2015. As regards the legislative protection and gains made in pro-‐poor housing rights, the improvement and better implementation of policies and legislation; Kahanovitz attested to a noticeable decrease in the number of applications for eviction orders by any sphere of government. Also, according to government respondents, the government is now more likely to directly engage with communities before taking legal measures or going to court. As for the community’s participation and active engagement in the implementation of their rights, there is a strong level of activism in the Joe Slovo community, which makes it possible for them to assert and access their rights. Members of this community are highly involved and fully participate in weekly community meetings called either by the Community Task Team, the local councillor, the HDA or other stakeholders. Although it is, however, not possible to ascribe the confidence and actions taken by the community to the LRC, the community felt respected in how the LRC worked with them.

Moreover, the fact that LRC has a strong understanding of the contexts in which people live and is able to use this understanding in court, with the support of partners such as DAG, makes it a particularly sensitive and well-‐placed community partner. It is also clear that a number of CSOs are active in and work with the Joe Slovo community. Without these partnerships the community would not have achieved what it has. LRC is an active member of the network of CSOs that work with this community. Partner organisations (such as DAG, and others) have indicated that their legal

LRC allowed the community to lead the whole process. They listened to the needs of and directives from the community. -‐ Mayenzeke Sopaqa, Joe Slovo

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proficiency is strengthened through their interactions with LRC. According to DAG's Helen McGregor LRC may soon be involved a brainstorming session on legal issues concerning the development of certain urban areas for the ‘Participatory Urban Forum’ project. This case is a reflection of LRC's effectiveness and strength in protecting and securing the rights of poor people through litigation. Regular interactions with the community and community leaders revealed an increase in the knowledge and understanding of their rights by the community, and government's responsibility in this regard. Community awareness-‐raising also happens through LRC's regular contact with community leaders.

7. Case Profiles The brief profiles below are an illustration of LRC's commitment to protecting their clients while setting precedents that will increasingly and indirectly assist thousands of other indirect beneficiaries. 7.1 The Florence case Following the issue of the Restitution of Land Rights Act 22 of 1994, the late Lionel Florence sought the restitution of, or equitable compensation for the Rondebosch property that his family owned and where they lived from 1952 until 1970. As the Florence family is classified as ‘coloured’ and because of racial discrimination that did not allow people of colour to own property in that area, the official transfer of the property on the Florence name never occurred. Yet, by October 1970, when the informal sale agreement was cancelled as a consequence of the Group Areas Act, Lionel Florence and his brothers had already paid the owner, a Mr Yeller, R14,896. By November 1970 when they were forced to leave the property under threat of the Group Areas inspectors, they were refunded only R1,350.00 by Yeller. Since Lionel Florence passed away in 2009, his wife, Isabel Florence, supported by her children, acting on her late husband’s behalf, sought just and equitable compensation for the lost property. LRC work and involvement LRC is actively involved in this case as Isabel Florence’s legal representatives. Cape Town based LRC attorney, Henk Smith has been following the Florence case from the Land Claims Court trial initiated in March 2010 and will continue to assist Florence in the Supreme Court phase. As regards the first phase of the case at the Land Claims Court, LRC looked for just and equitable compensation to which Florence would be entitled today. In order to win their case, LRC consulted with a series of expert historians and economists. LRC requested that the Land Claims Court consider: • The dispossession suffered at the time and the calculation of the just and equitable

compensation the family should have got at the time; • The use of a proper and adequate method that would convert that just and equitable

compensation to present day monetary value;

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• R15,000 as monetary compensation that the Florence family should receive as a solatium for the suffering caused to them by racial discrimination and the subsequent hardship;

• A memorial plaque to be erected today in the property and paid for by the state.

The judgement handed down on 5 June 2012 did not grant the investment rate that would have guaranteed Ms Florence a compensation of about R3 million. Judge Carelse only applied the Consumer Price Index (CPI) escalated to the end of March 2012 setting R1,498,980 as compensation for the lost property. Moreover, the judgement granted R10,000 of solatium and no order was made for the erection of the memorial plaque requested by the Florence family. The judgement was not considered fair by the Florence family or the LRC team, in particular because in some cases of expropriation today the investment rate is considered in order to calculate the just compensation. The LRC is lodging an appeal and the leave to appeal will stress this inconsistency (Smith interview, September 2012). The affidavit prepared for the appeal states in fact that “the Consumer Price Index is [not] the appropriate method to be used when converting a past loss into present day monetary terms”4 as “[t]o put the Florence family back in the position that they were in as of 1970, they should be compensated for their lost ‘investment’ – not the lost purchasing power of the value of property” (Nattrass, quoted in Affidavit of 10 June 2012:4). Hearings at the Supreme Court will most probably be held next year. Future Impact Although the Florence case is not yet considered a success, the impact that it is sought in the representation of this case is particularly important. LRC staff are confident that this case will set a precedent for all families and individuals who were affected by the country’s history and racial discrimination past.5 In particular, it might set the use of an investment rate to deal with these compensation cases. In terms of the CR grant outcomes, the work on this case will have protected the most vulnerable, and impact future judgements, legislation and policy. 7.2 Gundwana and Kanana LRC represented Mr and Mrs Kanana against Nedbank. As the Kananas failed to pay their monthly mortgage bonds to the bank and afraid that their house could be sold in execution, they reached an agreement with Nedbank and their lawyers with the assistance of LRC attorney Sarah Sephton based in Grahamstown. Despite this agreement and the guarantee that the house would have not been sold in execution unless the Kananas found themselves in arrears again, the bank sought an order from the Registrar of the Grahamstown High Court declaring the property executable. Unaware of this, the Kananas found out a year later that this order was granted and that their house would have been sold at auction on June 2010. LRC Involvement Sephton prepared a High Court application to stop the sale in execution. During the preparation of this case, it came to LRC’s attention that a similar case, the Gundwana case, was being debated in the Constitutional Court. 4 Affidavit prepared for the leave of appeal to the Supreme Court of Appeal, dated 10 June 2012. 5 LRC Annual Report 2010/2011:14.

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In 1995, Elsie Gundwana bought a house in George (Western Cape) and was in arrears of her monthly bond payments in 2003. The High Court Registrar granted Nedbank an order declaring the property executable. In 2007 Gundawna again fell behind on her payments and the property was sold to Steko Development who sought and obtained an eviction order against Gundwana. Failing to oppose the sale in execution and the eviction order, Gundawana approached the Constitutional Court to prove the unconstitutionality of the sale in execution and , therefore, the cancellation of the eviction order. Afraid that an adverse Constitutional Court judgement in the Gundwana case would have had negative effects on their Kanana case, with a strategic move, the LRC linked the Kanana case and Gundawana case and assisted the Kananas to apply directly to the Constitutional Court. LRC was in fact seeking to obtain an order from the Constitutional Court “declaring both rule 31(5)(b) and rule 45(1) of the Uniform Rules of Court unconstitutional and invalid” as “they authorize the Registrar to declare immovable property which is the home of the debtor executable and without judicial oversights considering all of the relevant circumstances”.6 As in both cases the first respondent was Nedbank, the bank decided to withdraw their case in Grahamstown so that LRC could not take the Kanana case, a stronger case than Gundwana, to the Constitutional Court where Nedbank would have lost both cases. Although this was a victory for the Kananas as their property was no longer executable, LRC decided that the Gundwana case was far too important to lose: there was still what was considered an unconstitutional rule allowing banks to have courts ordering properties executable with no consideration of extenuating circumstances such as the property being the home of the debtor, the debtor attempting to repay the debt, or the property being the home of vulnerable people such as children and/or disabled people. Even though LRC could not act on behalf of the Kananas in the Constitutional Court, they decided to join the court as amicus curiae to challenge the constitutionality of the Uniform Rule of Court 31(5)(b) and 45(1). The intention of LRC was to make the Court aware of how widespread cases such as Gundwana and Kanana are and of cases in which banks declare properties executable for a few hundred or thousand Rands of arrears risking rendering people homeless (Sephton and McConnachie interviews, September 2012). Hearings of the Gundwana case at the Constitutional Court were held on 10 February 2011 and the judgement was handed down on 11 April 2011. The Court declared that each case and all circumstances need to be carefully considered before a property could be declared specially executable, especially in the case of properties constituting homes. Moreover, the Court held that this decision must be taken by a judicial officer and not by a registrar. The court, therefore, declared the unconstitutionality of rules that allow a registrar to declare someone’s home executable.

6 ‘Request for permission to intervene as an amicus (on behalf of the LRC) in the Constitutional Court Case of Gundawana v Steko Development CC and Others CCT 44/10’ file.

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Impact of LRC intervention While it is difficult to quantify the impact that this judgement, in terms of the number of people it will indirectly benefit, LRC’s intervention has been crucial as the Kanana case was extensively mentioned in the court’s judgement (McConnachie interview, September 2012). This means that in the future, banks will not be able to seek an order declaring a property executable if it risks rendering people homeless. Moreover, such order will not be granted unless all extenuating circumstances are considered by the judicial officer. This has been a great step forward in the defence and protection of the most vulnerable, and in preventing banks from abusing their power, through the enforcement of Gundwana judgement in future cases.

8. Overall Recommendations LRC is encouraged to formulate clear and achievable objectives with key outputs and their intended outcomes, along with a manageable set of meaningful and appropriate indicators. Narrowing the number of outcomes to the areas of LRC specialisation and influence will have a wider reach and deeper profile with CSOs working in the same field or communities. In this regard LRC is encouraged to focus on areas where it can achieve measurable change as opposed to areas that depend on the activities and successes of a range of other entities (e.g. while LRC can work toward securing housing for vulnerable people, it is not within its ambit to achieve and secure the livelihoods of vulnerable people). It can only ever be one of several actors contributing to poverty reduction. In order to be more efficient the LRC should ensure at all times that its activities are closely and clearly linked to its outcomes. In this regard, Outcome 2 is the most realistic and SMART.7 While the LRC has spent a considerable amount of time and effort on organising and conducting workshops in the communities, they are encouraged to discontinue these, and focus their time on litigation and partnering with organisations already engaged with such community activities. In relation to Outcome 4 in particular, (partner organisations’ capacity to intervene on behalf of poor and vulnerable communities) the LRC needs to forge stronger partnerships with CSOs who provide workshops and are in a position to assess communities' understanding of their rights in order to improve their ability to take action that would result in desired change. LRC could strengthen the capacity of partner CSOs by providing plain language information on housing rights, access to basic services and government responsibility regarding these rights through publications.

7 SMART: Specific, Measurable, Achievable, Realistic, Timely. These could be qualitative and/or quantitative information that provide simple and reliable means to measure achievement, reflect change connected to an activity (or a range of activities) to help assess performance and make strategic changes to planned activities or interventions.

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LRC is encouraged to document and publicize successes consistently, especially in order to share their work with other organisations in order to build or strengthen the capacity of partners in the field, and to establish a body of case law on housing rights. Expanding impact and increasing the reach of LRC’s work on housing requires as strong and active network of organisations with legal work forming part of a strategic whole. LRC’s effectiveness thus also depends on the strength of such a network, particularly in relation to advocacy and direct community work. It is clear that LRC has existing strong relationships with other partner organisations in the field. It is, however, apparent that these relationships are based on individuals’ informal connections. It is therefore recommended that LRC institutionalise and formalise these relationships in order to ensure continuity and reliability. Standard anonymous intake forms should be drafted in order to better capture the profile of beneficiaries supported by LRC, e.g. women headed households; HIV status; child headed households. This would allow LRC the ability to clearly report on the demographics of its target groups and better understand the particular needs such communities might not be able to articulate themselves.

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9. Annexes 9.1 List of People Interviewed Mzwanele Zulu, CORC Mayenzeke Sopaqa, Local Government Councillor Sifiso Sopaqa, Joe Slovo Task Team Founder & Chair Seth Maqetuka, Department of Human Settlements, Western Cape Alida Kotzee, Department of Human Settlements, Western Cape Bosco Khoza, HDA Lennie Barnes, HDA Helen Macgregor, DAG John Madisa, Chairperson: Mamelodi Concerned Committee Rubesta Manhique, Mamelodi Community Representative Almon Mkhonto, Mamelodi Community Representative Jabulani Tshabalala, City of Tshwane Shirley Mphahlele, National Department of Human Settlements Cameron Jacobs, SAHRC Joe Slovo Community Mamelodi East Community Phumla Blaai Sizwe S Mnyamone Nuklas Lehlalerwa B Notshokovu Sophie Matseke Nolubabalo Putwana Florence Nyathi Zandile Majangaza L G Sambo Xolani Mgxebe Dorah Gama N Vumazonke Pinky Mokoena Mkhuthala Sajini N Sibeko Nosakhele Dyantyi Sie Ngwenya Desmond Molose Mary Maluleke Neliswa Mzayiya Polite Ngomane Z Mgesi Rose Marumo S L Mapasa Stanley Marumo N Putuma Johanna Thubakgale Phumeza Mgxebe Bernard Masemola Phindiwe Kolisi Sello Mashaba Nosakhele Gaga Jabulani Hlatshwayo Nokwazi Nelani Emmah Mahlangu Nobuhle Thisani Sello Mogau Lubabalo Sihlali Beauty Motlou Motebejane Mabotja Albert Kenny Maluleka

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Silahliwe LRC Staff Salome Maphakela Sara-‐Jane Frith Francinah Maphakela Steve Kahanovitz Nkele Mokhoa Thabiso Mbhense George Sebompela Cameron McConnachie Jan Maphakela Sarah Sephton Quibi Actor Henk Smith Rose Malau Zeenat Sujee, former LRC attorney (now at CALS) Esther Lekalakala Zodwa Gumede Albert Senyolo John Irvine Mathosi Sanie Maphanga Frozani Cele Rebecca Moatshe Maria Ramoshaba Tebogo Phele Elphus Molokamme Edgar Monyama Thandi Jele Markos Makwana Makoba Angelina R. Mathobela Keneilwe Leopeng Esther Ndlovu Dorah Matsealepoo Sarah Matlakoane Thembi Ndou Sarah Skhosana Maria Mthombeni Maus Maringa Amos Kofanu Lydia Mthimunye John Khoza 9.2 Selected Documents Reviewed Reports and Articles Boulle, J. 2009. “Comic Relief End of Grant Evaluation of work done under GR002-‐11064: Housing in Urban Areas” COHRE. 2009. “N2 Gateway Project: Housing rights violations as ‘development’ in South Africa” CORC and Joe Slovo Community Task Team. June 2009. “Joe Slovo household enumeration report”, Langa, Cape Town Department of Human Settlements. 9 May 2012. “Long wait almost over for Joe Slovo residents”, Media Statement http://41.86.108.92/~dhs/content.php?pagename=Media-‐Statements-‐May-‐2012 Marcus, G. And Budlender, S. 2008. “A strategic evaluation of public interest litigation in South Africa”, The Atlantic Philanthropies

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HDA. 2012. “Implementation of emergency housing” Liebenberg, S. 2009. “Joe Slovo eviction: Vulnerable communities feel the law from the top down”, LRC Annual Report 2010/2011 LRC 'Know your rights: Housing and evictions' (Pamphlets), available at http://www.lrc.org.za/images/stories/Desktop/2011_09_14_LRC_Know_your_ights_-‐_Housing_and_Evictions_pamphlet.pdf (last accessed August 2012) LRC 'Know your rights: Housing and evictions' (Full text), available at http://www.lrc.org.za/images/stories/Booklets/2011-‐09-‐14-‐LRC-‐Know-‐your-‐Rights-‐Housing-‐and-‐Evictions.pdf (last accessed August 2012) Newton, D. With Cunningham A. 2008. “Mid-‐term review for Comic Relief of work done under GR002-‐11064” UN-‐Habitat “The right to adequate housing” Fact Sheet No. 21, available at http://www.lrc.org.za/images/stories/Booklets/ohchr%20fact_sheet_on_right_to_adequate_housing.pdf (last accessed August 2012) Affidavits and Judgements • LRC Affidavit: Mamelodi East • Affidavit for the Florence case prepared for the leave of appeal to the Supreme Court of Appeal,

dated 10 June 2012 • Constitutional Court of South Africa, Case No. CCT 22/08 [2009] ZACC 16 (Joe Slovo) • Constitutional Court of South Africa, Case No. CCT 22/08 [2011] ZACC 8, residents of Joe Slovo

Community (Western Cape) v. Thubelisha Homes, Minister for Human Settlements, MEC for Human Settlements (Western Cape)

• Constitutional Court of South Africa, Case No CCT 44/10, ‘Media Summary’ (Elsie Gundwana v Steko Development)

• Land Claims Court of South Africa, Case No. LCC 148/08, Isabel Florence v. Broadcount Investments (PTY) LTD, the Government of the Republic of South Africa, the City of Cape Town, Judgement, 5 June 2012

• Land Claims Court of South Africa, Case No. LCC 148/08, Isabel Florence v. Broadcount Investments (PTY) LTD, the Government of the Republic of South Africa, the City of Cape Town, Supporting Affidavit, 9 September 2009

• “Residents' final submissions Joe Slovo discharge” available at http://www.lrc.org.za/component/content/article/1401-‐2010-‐12-‐19-‐residents-‐final-‐submissions-‐joe-‐slovo-‐discharge (last accessed September 2012)

Various LRC reports and memoranda, including: • LRC, MEMO, Reference 1062311J, on the sanitation situation of Mamelodi East • Minutes of Mamelodi Community Consultations with the City of Tshwane and National

Department of Human Settlements • Request for permission to intervene as an amicus (on behalf of the LRC) in the Constitutional

Court Case of Gundawana v Steko Deevelopmnet CC and Others CCT 44

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