Equality of the graveyard : participatory democracy in the context of housing delivery : Grootboom

• Published date: 01 January 2011
• Author: W.A. Holness
• DOI: 10.10520/EJC153218
• Date: 01 January 2011
• Pages: 1-36

Equality of the graveyard: Participatory

democracy in the context of housing

delivery

*

WA Holness

**

This is the true toxic inheritance of apartheid ... Yes, we dismantled an elaborate

legal apparatus of segregation and repression. Yes, we made the transition from

repressive police state to democracy... conducted a mass ritual to deal with decades

of state-sponsored violence ... But we did not expunge from ourselves the terrible

talent of seeing members of our own community as radically other, signified by

some arbitrary feature. It used to be race … These days the more dangerous

signifier is class. To be poor is to be inhuman. To be poor is to be a different kind of

citizen. And, of course, race is never far from class in this country.

1

1 Introductory remarks

The spate of service delivery protests in recent times is an indicator of how the poor

see themselves as ‘radically other’ from the privileged few. The general lack of

responsiveness of political representatives to citizen’s needs and concerns has an

alienating effect, rendering the vulnerable communities concerned frustrated, angry

and disempowered.

2

Despite the promise of universal adult suffrage, and the

potential for positive change to attitudes and policies in decisions such as Grootboom

and post-Grootboom,

3

citizens are increasingly disillusioned and frustrated with the

lack of access to adequate housing and basic services. When the elected are too

*

Paper presented at Unisa’s Grootboom Retrospective Conference in September 2010.

**

BA, LLB (Rhodes), LLM (UKZN) Attorney, Legal Resources Centre, Durban.

1

Rosenthal ‘Apartheid replaced with apathy’ The Mail & Guardian (2009-11-11) 20.

2

See Wilson ‘Judicial enforcement of the right to protection from arbitrary eviction: Lessons from

Mandelaville’ (2006) 22/4 SAJHR 535 at 556 where residents felt that the court’s rationale indicated a

lack of sympathy and explained it as follows: ‘The Judge shouted a lot ... He said we smelled bad ... He

didn’t want to know our story. When people don’t want to listen, they just call you “tsotsi” and chase you

away. That’s what he was doing to us. Just because we are living in shacks, we don’t have lives.’

3

The Government of the Republic of South Africa v Grootboom 2001 1 SA 46 (CC). This article

discusses housing jurisprudence post-Grootboom and does not critique that decision.

(2011) 26 SAPL2

slow to deliver, when direct and representative democratic methods fail, often the last

resort for the people is to place their faith in participatory fora to communicate their

concerns and hopes to the elected with the hope that they will listen. When these

also fail, the disillusionment is most evident in radical participation initiatives that

combine social networking, protests, marches, use of the media and boycotts.

4

The

formal participatory fora such as ward committee meetings can be used

simultaneously to protest action: there is not necessarily a hierarchy of mechanisms.

Some communities are convinced that the only way to make government

listen and act on their grievances is through protests and riots that cause damage

to public and private properties and that generally disrupt service-delivery,

5

escalating particularly around upcoming local government elections. Some

commentators blame the recent escalation of service delivery protests on gross

inequality in our society,

6

saying that ‘[a]rguments about a lack of resources for

service delivery carried no weight among people who were living in shacks but

who encountered people with seemingly limitless resources living only a few

kilometres away’.

7

Others blame corruption

8

and incapacity on the part of

government.

9

Ultimately, whatever the cause, actual service delivery is lagging

behind and a series of cases have come before our courts on issues relating to

service delivery.

10

4

Thorn describes the multiple identities that participatory methods, including social networking,

transpose for citizens attempting to consolidate their claims to remain in their settlement. Thorn

‘Housing struggles, land occupation and eviction processes: Negotiating lived experiences in Zille-Raine

Heights, Cape Town’ (October 2008) BSocSci Honours Thesis UCT at 30. See Tadesse, Ameck,

Christensen, Masiko, Atlhakola, Shilaho and Smith The people shall govern: A research report on public

participation in policy processes (2006) CSVVR and Action for Conflict Transformation 22, describing

methods used by Mandela Park residents in the Anti-Eviction Campaign.

5

For instance the protests about service delivery in November 2009, see SAPA ‘Protests “about

inequality”’ News24 (2009-11-11).

6

See Craven’s comments: ‘... the recent protests were part of a revolt against people elected by the

community who had become corrupt, moved out of the community, lived a life of affluence at the

people’s expense and did nothing to help those they had left behind’ quoted in SAPA ‘Protests

“about inequality”’ News24 (2009-11-11). See also Tadesse et al (n 4) 19: ‘A resident in Site C,

Khayelitsha was angered by a decision by a local government official who left her neighbourhood

immediately after he was elected as a ward councillor. She felt that the councillor abused people’s

trust and electoral mandate by moving out of an overcrowded informal area into one that had access

to running water and flush toilets. They tend to remember the community only “when they are looking

for votes from the community” she commented.’

7

Ibid.

8

In April 2008, 31 000 government employees were being investigated nationally for fraudulent acqui-

sition of government houses. Wilson ‘Officials took housing for the poor’ Business Day (2008-04-23).

9

Naidu ‘Deepening local democracy and participation: Experience from practice’ in De Villiers (ed)

Review of provinces and local governments in South Africa: Constitutional foundations and practice

(2008) 83.

10

For example, Mazibuko v City of Johannesburg 2010 4 SA 1 (CC); Nokotyana v Ekurhuleni

Metropolitan Municipality 2010 4 BCLR 312 (CC); Residents of Joe Slovo Community, Western

Cape v Thubelisha Homes 2010 3 SA 454 (CC); Western Cape Provincial Government: In re DVB

Participatory democracy in the context of housing delivery 3

Despite having all the hallmarks of democracy, including direct, representative

and participatory democratic principles, our Constitution left it to the executive and

legislature to determine how the government would give effect to these principles;

whether with regard to policy, law-making, executive or administrative decisions.

The Constitution is not prescriptive with regard to how these are to be fulfilled or

measured, but court challenges against the state’s interpretation of participatory

democracy, and the failure of the state’s participatory obligations in effecting their

positive duties may and have been brought by disillusioned citizens.

11

These

applications include municipal bids to evict occupiers from state owned land.

12

Inadequate housing is one of the hallmarks of pervasive poverty and

inequality in South Africa. The newly elected democratic government’s task to

address a housing backlog of 1.5 million in 1994, was estimated to increase by

178 000 households per year.

13

Almost seventeen years later, according to

estimates of the eThekwini Municipality, the metropolitan municipality rated last

in terms of actual service-delivery,

14

it would take a further 28 years to address the

housing backlog.

15

Yet the official backlog does not include the ‘invisible demand’

from citizens that live in overcrowded township houses and municipal flats,

doubling that estimated period at current rates of construction.

16

The increasing

need for service provision such as water and sanitation, electricity, local roads,

storm water drainage and refuse removal (all essential components of delivery of

adequate housing)

17

indicates a bleaker crisis. While housing is a concurrent

Behuising (Pty) Ltd 2001 1 SA 500 (CC).

11

The Constitutional Court’s jurisprudence on participatory democracy in cases such as Doctors for

Life International v Speaker of the National Assembly 2006 6 SA 416 (CC); Matatiele Municipality

v President of RSA 2006 5 SA 47 (CC); Poverty Alleviation Network v President of the Republic of

South Africa 2010 6 BCLR 520 (CC); Merafong Demarcation Forum v President of the Republic of

South Africa 2008 5 SA 171 (CC); and Occupiers of 51 Olivia Road, Berea Township v City of

Johannesburg 2008 3 SA 208 (CC) are most notable.

12

See inter alia The City of Cape Town v The Other Occupiers Unknown to the Ap plicants who

Unlawfully Occupy Erf 18332, Khayelitsha, in the City of Cape Town, Western Cape Cape High

Court case number 395/04 (unreported); Kayamandi Town Committee v Mkhwaso 1991 2 SA 630

(C); The Unlawful Occupiers of the School Site v The Cit y of Johannesburg Supreme Court of

Appeal case number 36/2004 (unreported).

13

Department of Housing (1994) White Paper on a New Housing Policy and Strategy for South Africa

GG 16178 GN 354 of 1994-12-23.

14

Da Costa and Mbonambi ‘SA’s worst municipalities’ The Mercury (2009-10-21) citing the research

by Empowerdex, a research entity that rates service delivery across municipalities.

15

COHRE (Centre on Housing Rights and Evictions) Business as usual? Housing rights and ‘slum

eradication’ in Durban, South Africa (2008) 104 estimates that: ‘In fact, between June and December

2006 the Municipality was only able to build 4 402 houses – indicating a slow down to a rate of

around 8 000 houses a year.’ See also Goldstone ‘Building 2.4m units by 2014 Will need a miracle’

The Mercury (2007-03-06) 5.

16

COHRE (n 15) 104.

17

See Department of Provincial and Local Government White Paper on Local Government

Transformation (1998).