Brave new Joburg: Operation Clean Sweep II

2013-11-24 14:00

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City seeks new ‘unconstitutional’ powers to demolish shacks and evict people living in ‘bad buildings’ without court orders or providing alternative accommodation. Dewald van Rensburg investigates

The City of Johannesburg is preparing for the second leg of Operation Clean Sweep that extends far beyond street traders to target the inner city’s so-called bad buildings, land invaders and shack?dwellers.

A new draft bylaw on “problem properties” was released for public comment on November 11, coinciding with the “reverification” exercise for traders that has now ended up in court.

The city is proposing the creation of a whole new class of officials who can declare any “building?...?public road, park, private road or any piece of land of whatever nature” a “problem property”.

The goal is apparently to evict occupants without the court orders and arrangements for alternative accommodation that the Constitution and the Prevention of Illegal Eviction and Unlawful Occupation of Land Act require.

The draft bylaw is “unlikely to survive constitutional scrutiny” on a number of grounds, according to Advocate Stuart Wilson, the executive director of the Socio-Economic Rights Institute of South Africa (Seri), a nonprofit organisation providing legal aid to 1?211 of the street traders removed from streets in downtown Joburg last month.

KwaZulu-Natal had years ago attempted to impose a similar law to eradicate slums, but it was defeated in the Constitutional Court by the shack?dwellers movement, Abahlali baseMjondolo.

Wilson says: “In effect, they permit an official from the city to evict someone by notice. That is unconstitutional. Like Operation Clean Sweep?...?the aim is to remove the poor from sight without doing anything to tackle acute shortages of accommodation that lead them to occupy ‘problem properties’ to begin with.

“People who live in ‘problem buildings’ are the same people who clean, guard and trade outside other, ‘better’ buildings. These people are integral to the inner-city economy.”

The city did not respond to questions about the draft bylaw and missed the deadline to file replying court papers against street traders on Friday. The bylaw also contains harsh rules for evicting land invaders and demolishing shacks.

An official may instruct the Johannesburg Metro Police Department to demolish any half-completed shack and any completed shack as long as they take a photo “to prove that structure was not occupied”.

This provision is also likely to fail a constitutional test as it allows the destruction of property without a court order, and is open to abuse, according to Wilson.

The definition of “problem property” is similar to the broad term “bad building” that has traditionally been used to describe degraded and illegally occupied inner-city properties with various legal statuses.

The bylaw includes any building that has been abandoned by its owners or is three months in arrears with municipal rate and taxes, water or power bills.

It also includes hijacked buildings, ones that transgress any safety bylaw, is overcrowded or has broken lifts.

Other factors for being deemed a “problem property” include having no power or water; having illegal power and water; being “unhealthy, unsanitary, unsightly or objectionable”; or being subject to complaints about crime.

Any illegally occupied building qualifies.?If the owner of the property cannot be found, the official can deem just about anyone who is “seemingly in charge” as the “responsible person”.

This would be anyone collecting rent including slumlords or hijackers, but it seemingly includes any occupant.?Notices can be served simply by putting them up at the door of the building, addressed to no one in particular.

Ignoring notices will lead to fines and even criminal prosecution.

According to Kate Tissington, a senior researcher at Seri, this “allows the municipality to shirk any responsibility to find and deal with owners of these properties”.

She further said: “More perniciously, it allows the municipality to choose liability and impose liability at the same time. In light of what happened to informal traders as part of Operation Clean Sweep, one can only imagine how this bylaw would be open for abuse by its enforcers.”

The changes come as the city is growing increasingly supportive of the fast-growing private “regeneration” projects in the inner city driven by groups like Urban Ocean in the west and Propertuity in the Maboneng Precinct on the eastern edge of the CBD.

The city this week put out a press release celebrating a spike in inner-city property sales “in the R800?000 to R2?million bracket since the beginning of 2013”.

The release continues: “With Johannesburg Development Agency and private sector funding devoted to regeneration, Johannesburg’s inner city will soon have trendy individuals flock to the space, once known solely for its work appeal.”

Trader cases ‘not urgent’, says Joburg

The City of Johannesburg on Friday missed the midday deadline to file replying papers in two cases brought by street traders displaced by Operation Clean Sweep.

It finally filed a reply in the evening, claiming the urgency of the applications is self-created by the hundreds of traders who have been barred from trading for almost two months.

Altogether, 1?211 named traders are being represented by Seri on behalf of the SA Informal Traders’ Forum, while the SA National Traders’ Retail Association has teamed up with labour federation Cosatu and law firm Routledge Modise’s pro bono associate Michal Johnson with a smaller case involving up to 600 traders.

The applications had been set down for Tuesday with traders demanding that they be immediately allowed back into the city, that their confiscated goods be returned and that Operation Clean Sweep be reversed in its entirety.

They argue that although the city has every right to enforce bylaws against traders, it is “brazenly unlawful” to collectively remove all traders irrespective of their legal status or any proof of infringements.

Estimates of how many traders were operating in the city before the removals range from 6?000 to 8?000.

They not only demand to be allowed back on to the streets, but to be given back their exact trading spots – the crux of the legal challenge since the city has indicated it would later relocate many traders to new peripheral locations around the CBD.

On Monday, Johannesburg Metro Police Department crews were still cutting up and removing the permanent trading stalls along major pedestrian thoroughfares like Diagonal Street, which the city has declared trader-free.

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