HRC to mediate in eviction
2003-06-22 19:16
Cape Town - In an unprecedented legal manoeuvre, the South African Human Rights Commission (HRC) has approached the Judge President of the Cape High Court and proposed to mediate in an eviction dispute involving about 3 000 families or 10 000 people.
"The case relates to a number of important issues that include the implementation of socio-economic rights, in particular the rights to dignity and housing," said HRC Western Cape co-ordinator Ashraf Mahomed.
Mahomed said other issues the case touched on were the housing obligations of the various spheres of government; the circumstances which could lead to possible violation of human rights through evictions; and the question of suitable alternative accommodation and/or land for people in "desperate situations".
The proposed mediation revolved around current litigation before the Cape High Court in the matter of the South African Rail Commuter Corporation, a parastatal which owned the land and which wanted to evict the 3 000 families from a rail reserve in Khayelitsha.
The area concerned is between Nolungile and Nonqubela stations in Khayelitha site B.
The Legal Resources Centre, representing the affected persons occupying the railway land, have agreed in principal to the mediation process.
Attorneys for the South African Rail Commuter Corporation have thus far declined, saying that they have advised their client there was "no legal basis" for the proposed mediation in this matter by the Judge President under the auspices of the commission, and whose proposed mediation could be inconsistent with the constitutional role and independence of the judiciary and the commission.
Committed
Notwithstanding this, Mahomed said the commission remained committed to this process.
He said the commission ultimately wanted to promote the obligation to respect the rights to housing and property, and to avoid any violation of human rights in general.
The commission proposed a five point plan in an attempt to avert costly litigation proceedings over a matter it considered could be "best resolved through mediation and remedial action".
One of the points was that Western Cape Judge President John Hlophe should "convene and manage" the process, something which Hlophe had apparently agreed upon.
The national minister of housing, her provincial MEC and the city of Cape Town have also been listed as affected parties in the litigation.
According to Mahomed, the commission was concerned about the social and economic consequences arising from evictions, where no provision was made for people in dire situations.
Political solution
"The courts play a particular role, but the issue of evictions also needs a political solution... in almost all cases the buck stops at local authorities and if they don't have a policy dealing with vulnerable groups then they are in danger of violating fundamental rights of our constitution."
He said the Constitutional Court case ruling in 2000 about the Irene Grootboom informal settlement near Wallacedene, Cape Town, made it clear that government had to deliver on socio-economic rights.
In an unanimous judgment Justice Zacharia Yacoob ruled that the constitution obliged the state to act positively to lessen the plight "of the hundreds of thousands of people living in deplorable conditions throughout the country".
However, Mahomed said despite a clear legal framework, "we need to see that laws and judgements are translated into policy, and not only the formulation of policy but the implementation of policy.
"We haven't seen this done effectively yet around housing issues, particularly in relation to the vulnerable groups of people - the aged, children, disabled and female heads of household," he said, adding that insufficient resources and lack of capacity were the usual arguments for non-implementation.
He said the commission was trying to encourage responsible government and only had two months to try and get all stakeholders to buy into the mediation process, before the matter goes to trial in September.
- SAPA