On Thursday the 25th of July, the International Development Law Unit (IDLU), Centre for Human Rights at the University of Pretoria and the Institute for Economic Justice (IEJ) co-hosted a dialogue titled, “Access to Housing Finance and the Right to Housing” at the University of the Witwatersrand (Wits University). The dialogue was attended by roughly 24 participants from academia, civil society and the private sector and consisted of presenations followed by an open dialogue session. Alison Tshangana (Centre for Affordable Housing Finance) and SERI board member Jackie Dugard (Wits University) served as presenters at the event.
Dugard’s presentation entitled, “The problem of sales of execution by the banks”, tracked a number of concerning cases through which sales of execution have been used to deprive people of their homes for minimal amounts of debt. She used the example of RDP housing to demonstrate that emphasising the importance of private title is not an adequate solution to addressing inequality. She explained that for the majority of South Africans, RPD housing is viewed as a form of social security and not equity. Dugard also argued that in order to protect a person’s right to housing, sales in execution should be used as a measure of absolute last resort.
Tshangana highlighted the realities of the relationship between accessing finances and obtaining a house in the South African market highlighting research conducted by the Centre for Affordable Housing Finances which revealed that only 6.9% of the South African population could access housing finance in the forms of mortgage bonds or loans. Tshananga further noted that low income households are generally unable to secure housing through the property market even if they are eligible for subsidies through programmes such as the Finance Linked Individual Subsidy Programme (FLISP). She attributes this reality for forcing many low income households into informal sale arrangements with little to no consumer protection.
Download SERI’s guide on Preventing or Opposing a Sale in Execution.
SERI represents 133 residents of the Winnie Mandela informal settlement in their action to compel the delivery of RDP houses built with their subsidies, but fraudulently allocated to others over a decade ago.
The residents have noted Gauteng MEC for Human Settlements Lebogang Maile’s remarks about their decision to sue the Ekurhuleni Municipality for constitutional damages, after the municipality missed a court-ordered deadline to replace the residents’ stolen houses. Notably, the MEC was party to the court application in which that deadline was set. The MEC did not oppose the application, and elected to abide by the decision of the court.
The MEC is reported to have said that “our people should raise their dissatisfaction with us first”. This misleadingly implies that the Winnie Mandela residents should have, but did not, approach the state for redress before turning to the courts.
SERI sets out below an edited extract of the residents’ written submissions made to the Supreme Court of Appeal. It summarises extensive efforts the residents made, over the course of ten years, to encourage the state to assist them, before they went to court. We encourage personnel at the office of the MEC to familiarise themselves with it in order to inform an appropriate intervention.
On 26 and 27 July 2019, SERI hosted a two-day workshop in Cape Town to launch the new research series: Informal Settlement: Norms, Practices and Agency. The event was co-hosted by the Social Justice Coalition.
The series consists of three-site based research reports about the Ratanang, Marikana and Siyanda informal settlements. Ratanang is located in Klerksdorp, North West province, Marikana in Cape Town, Western Cape and Siyanda in eThekwini, KwaZulu-Natal.
The purpose of the workshop was to disseminate findings from the research series and to share the policy implications for the upgrading of informal settlements. The workshop also sought to bring community members from different informal settlements together in order to exchange lessons and experiences.
The first day of the two-day workshop consisted of a stakeholder engagement held at Isivivana Centre in Khayelitsha. The event was attended by over 60 participants from Cape Town-based civil society organisations including Marikana I and Marikana II leadership committees.
After opening remarks by Alana Potter, SERI’s director of research and advocacy, the team gave in-depth presentations of research findings from one of the research reports from the series entitled “Our Place to Belong: Marikana Informal Settlement”. The presentations unpacked themes of tenure and land use management; political space; basic services; and livelihoods.
In her presentation of the policy implications emerging from the research series, senior associate Lauren Royston highlighted the need for municipalities to, “Recognise existing norms and practices; prioritise basic services provision; attend to non-material needs in participative upgrading processes and; build constructive relations with residents.”
During the group discussions, one participant commented on the value of the reports, stating that they “provide policymakers with evidence” on the realities of informal settlements which should inform upgrading plans.
Informal settlement exchange
The second day of the workshop was an informal settlement exchange for informal settlement leaders to collectively reflect on public participation strategies towards upgrading. In attendance were representatives from Marikana, Sesikhona, Island, Azania Square, New Green Point, Nkandla, and Barnet Molokwana informal settlements.
The session began with a discussion on challenges facing informal settlements in Cape Town with respect to tenure security, electrification, policing and sanitation. The session was facilitated by SJC’s Axolile Notywala and Slovo Park Community Development Forum’s (SPCDF’s) Lerato Marole. Residents highlighted key challenges such as dehumanising temporary services and private ownership of land used as an excuse by the government not to upgrade services.
SPCDF’s Lerato Marole then spoke about the value of building local informal settlement organisation and external partnerships to assist in the upgrading processes to improve access to services. He emphasized the importance of identifying partners from amongst the NGOs and sustaining partnerships, stating that “Communities can’t afford to wait for the government to help residents develop leadership skills in informal settlements. There are other NGOs in Cape Town who can help you with that.” He went on to highlight the significance of the Melani court judgment and the need for the community to take the judgment and its potential implications and make it theirs.
In the last session, the workshop participants broke up into groups to reflect on settlement leadership structures and to come up with strategies for upgrading.
Almost two years ago, the High Court ordered Ekurhuleni Municipality to build houses for 133 informal settlement residents whose subsidised RDP units had been stolen from them. The municipality has refused to meet the court’s deadline. Now, the residents want constitutional damages.
The municipality had admitted to the court that residents of the Winnie Mandela informal settlement had been deprived of RDP houses by “corruption fraud and/or bribery”. Instead of being given the houses built with their subsidies, the houses became occupied by other, unknown, people who were not entitled to the subsidies used to build them.
Instead of providing the houses required, the municipality has persisted in its “delaying tactics”. The latest such tactic has been to request the court to extend, by one year, the period within which the municipality must provide the residents with plots of land and houses to which the residents have now been entitled for up to 20 years. The municipality seeks, in effect, to extend the period during which it will remain in breach of its obligations to the residents.
On behalf of the residents, SERI now argues that the High Court has no power to vary orders to correct breaches of constitutional rights after those orders have come into effect. SERI also seeks constitutional damages of R5000 per resident for every month from 30 June 2019 that the court order to provide the residents with houses remains unfulfilled.
Nomzamo Zondo, who represents the residents, said “the municipality’s conduct reveals that it has never really accepted its obligations and to correct the wrong it has done to the residents. The residents have been deprived, by the municipality’s own unlawful conduct, of land and houses for far too long. The municipality has a constitutional obligation to remedy this situation, and to compensate my clients until it does”.
The ten-member Expert Advisory Panel, which comprises farmers, lawyers, agricultural economists and academics, was appointed by President Cyril Ramaphosa to provide the Inter-Ministerial Committee on Land Reform with a unified policy perspective on land reform in respect of restitution, redistribution and tenure reform.
SERI provided written inputs for the panel to refer to in the drafting of their final report with specific focus on the question of urban land reform. The question of “urban” land reform is largely absent from land reform. Often, urban land is “hidden” inside the housing, human settlements, planning and municipal finance sectors, while land reform has always been located in a rural development department and has focused on rural land reform and agrarian reform. Furthermore, SERI participated in numerous gatherings including: 1) a stakeholder roundtable on Urban Land and Human Settlements, Spatial Strategies, Property Markets, Land Governance, Development and Administration; 2) a roundtable co-hosted by the Nelson Mandela Foundation and the Expert Advisory Panel on Land Reform focusing on highlighting the voices of grassroots organisations and activists; and 3) the Second Land Colloquium of the Advisory Panel on Land Reform and Agriculture.
In its final report, the panel recommends, among other things, that an urban land reform policy be developed that has a dual focus on equitable access and tenure reform. The panel also notes that “sections 25(5- 6) of the Constitution which mandate redistribution and tenure reform apply to urban areas, and need to be read alongside section 26 which deals with housing.”