On 11 April 2020, a group of civil society organisations made a submission to the Department of Human Settlements (NDHS) on its proposed strategy to de-densify informal settlements in response to COVID-19. Through the COVID-19 Informal Sector Task Team and Engagement Platform established by the NDHS, CSO’s have also engaged with the NDHS regarding strategy and submitted that:
“The informal settlement communities we work with have expressed deep concerns about the social, political, economic and technical impact of de-densification and the disruption it is likely to cause. Similarly, international experts and leading organisations, such as the UN Rapporteur on the Right to Housing, UN-Habitat and Amnesty International, have taken a strong stance against relocations and evictions of any kind as a response to COVID-19.”
The submission argues that de-densification should not be the central thrust of a human settlements response to informal settlements. It calls for a wide-scale emergency response to provide water, sanitation, hygiene and food relief to all informal settlement residents.
The submission sets out the considerations, risks and unintended consequences that together indicate that de-densification should not be adopted as a strategy to mitigate against the spread of COVID-19. It then proposes alternative and more sustainable responses in the short, medium and long term to address the challenges presented by the COVID-19 pandemic.
Some of these short-term (0 – 3 months) response priorities include:
This is SERI's first newsletter of 2020. In it we present highlights of our work since December 2019.
In response to increasing COVID-19 prevalence rates, President Ramaphosa announced an initial 21-day shutdown commencing on 27 March 2020. SERI has closed its offices and continues to offer telephonic legal advice and support, litigation as possible by the courts, social research as well as media and policy advocacy.
SERI has also supported and endorsed various social justice initiatives related to COVID-19. These include:
SERI currently has 94 active cases through which we provide essential assistance to communities to resist evictions and secure basic services in their homes in informal settlements and inner-city buildings; to safeguard their right to public participation; hold duty-bearers to account and defend their right to work.
During this period, SERI furthered its advocacy around the right to work in South Africa through a workshop co-hosted with the African Centre for Cities and the London School of Economics and Political Science. SERI also submitted its comments on the City of Johannesburg’s draft policy on temporary emergency accommodation and its objections to the City of Cape Town’s proposal to renew its lease of 45.99 hectares of land for R1,058 per year to the Rondebosch Golf Club especially in the face of the housing crisis in Cape Town.
In terms of litigation, the last three months have been busy. Informal traders in Mogwase secured a victory against an eviction that was sought against them by Transnet. The residents of the Marikana informal settlement in Philippi secured a victory after reaching an agreement with the City of Cape Town and the property owners, which was made an order of the Supreme Court of Appeal. The City of Cape Town was ordered to purchase that land on which the settlement is located.
SERI also appeared in the Constitutional Court arguing for the inclusion of domestic workers in the Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA). SERI further argued that the inclusion of domestic workers in COIDA should be applied retrospectively.
SERI also appeared in front of a full bench in the Gauteng High Court on behalf of over 2000 inner-city residents who are challenging the constitutionality of section 13(7) of the SAPS Act which allowed for the City of Johannesburg and the South African Police Service to conduct warrantless raids on their homes.
Had informal settlements been upgraded and adequately serviced, residents would not be confronting the COVID-19 pandemic in overcrowded conditions, and sharing poor-quality water and sanitation facilities.
The Melani case is about the Slovo Park informal settlement challenging the City of Johannesburg against a mass relocation, and towards in situ upgrading.
In 2014, the Slovo Park Community Development Forum (SPCDF) approached the Gauteng Local Division to oppose the City’s plan to relocate residents to an area called Unaville, situated 11 km’s from the settlement. The SPCDF requested the court to compel the City to apply for funds from the Provincial Department of Human Settlements, and implement the Upgrading of Informal Settlements Programme (UISP), contained in the National Housing Code (2009).
The UISP says that informal settlements must be upgraded in situ (where they are) with minimal disruption to social and livelihoods networks, and full community participation. It sets out how national, provincial and local government should work together. The policy supports municipalities to ensure that informal settlement residents enjoy tenure security and basic services as a first step.
In April 2016, the Melani judgment confirmed that the UISP is binding on municipalities, and that local government’s failure or refusal to apply the policy was unlawful. The City was ordered to prepare and submit a funding application to the Provincial Department of Human Settlements in order to upgrade Slovo Park informal settlement in terms of the UISP.
The judgment highlighted that the UISP applies to all informal settlements and that relocation must be turned to as a last resort. Acting judge Strauss contextualised the Melani case as implicating constitutional rights to tenure security and basic services that require effective relief. She went on to state that “the only effective relief would be to direct the City to commence the process the UISP prescribes for the upgrading the Slovo Park settlement”.
Since the judgment, Slovo Park has made significant progress. In 2018, the City of Johannesburg electrified Slovo Park as a first step to the settlement’s in situ upgrade. This was an achievement for residents who had lived without formal electricity for 27 years. The SPCDF played a central role in facilitating the electrification of the settlement through a multi-stakeholder task team formed in 2016. The second, and most recent, victory is the City’s funding application to the Provincial Department of Human Settlements, which was finalised and submitted in November 2019. The SPCDF worked closely with their advisors and partners to ensure sufficient community input in preparing the City’s application.
The COVID-19 pandemic has severe consequences for people living in informal settlements. Decades of neglect have meant that they often lack clean water, adequate shelter and sufficient emergency health services to prevent the spread of the virus. In situ emergency response is needed urgently to provide soap, food, basic services, to empty pit latrines and chemical toilets. Community-based organisations require communication support from the government to provide information and spread awareness about disease management facilities. Upgrading informal settlements in situ is paramount to curbing COVID-19 transmission. In instances where relocation is necessary, it must not equate to eviction and forced removal. Resident consent must be strictly adhered to.
In collaboration with the SPCDF, SERI is updating the second edition of the Slovo Park Community Practice Note (CPN). The updated CPN, which will be released soon, continues to document Slovo Park’s struggle for development through the lens of their community-based strategies and tactics, since receiving the 2016 court order.
In April 2019, the Nelson Mandela Foundation commissioned a series of papers on urban land reform. Their aim was to inform debate about and propose a feasible approach to urban land reform which could, in the near future, be implemented. In line with this, SERI authored two papers on urban land reform and urban land redistribution. SERI has recently published summary reports of the papers submitted to the Nelson Mandela Foundation and will be published at a later stage.
The paper on urban land reform adopts Section 25(6)2 and Sections 26 (1), (2) and (3)3 of the Constitution as its starting points. Shortly after the Constitution was enacted, a set of tenure security laws were enacted to give immediate effect to Section 25(6), pending the development of legislation providing permanent, positive rights.4 The Prevention of Illegal Eviction and Unlawful Occupation of Land Act 19 of 1998 (the PIE Act), which gave effect to section 26(3), is one of these laws. The long-term legislation has not yet been developed.
The paper on urban land redistribution adopts the redistribution clause in section 25 (5) of the Constitution as its starting point: “the state must take reasonable legislative and other measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis.” On this basis SERI argues, in line with the Presidential Advisory Panel and High-Level Panel reports, that a law should be developed and enacted which gives effect to section 25(5) and that the in order to operationalise the approach we propose a process for fine-tuning urban equitable access principles, the main legislative measure (the Framework Act) and the policy measures (the various programmes).