Trivialising the plight of landless black people denigrates our Constitution and spits in the face of the fight for social justice
The preamble to the Constitution asserts that the people of South Africa recognise the injustices of the past and are therefore committed to the attainment of social justice for all who live in the country.
The Constitution has been hailed as progressive.
In a society that threatens to be quite conservative, our Constitution stands valiantly. Bold in its inclusiveness, it is coloured in liberal ideas and cloaked in transformation.
Praise for the Constitution extends beyond our borders.
Harvard scholar Cass Sunstein called it the most admirable Constitution in the history of the world, and a US Supreme Court Justice hailed it as a “great piece of work that embraces basic human rights”.
The presumption would therefore be that South Africans are reaping the rewards of the social justice promised by this supreme law.
Unfortunately, this praised progression is a myth for the majority of black people.
Despite all the rights that stand attractive on paper, a simple look into the world’s most unequal country informs even the biggest optimist that the Constitution alone is unable to translate into the attainment of social justice.
The deification of the Constitution has led to what legal scholars like Tshepo Madlingozi call a “fetishisation of human rights”.
Such glorification makes state representatives oblivious to the fact that the struggles that confront most black people today are the same as those they faced pre-1994.
If one were to put aside the promises that exist on paper and look only at lived realities, it would be clear that black people still carry the burden of normalised social injustices. Umhlaba usabolile.
The prevalence of illegal evictions is one of these normalised social injustices.
On July 1, a video of a naked Bulelani Qolani being violently evicted from his home in Khayelitsha, Cape Town, circulated on the internet.
It shows law enforcement officials from the City of Cape Town dragging the nude 28-year-old out of his shack in full view of the public.
The city continues to conduct these illegal evictions despite the Disaster Management Act’s prohibition of evictions during lockdown.
Apartheid’s spatial planning and racist land and property laws left many black people displaced and dispossessed.
These laws entrenched socioeconomic inequality through common law.
Legislation favoured property rights and thus private landowners could vindicate these rights through eviction processes without consideration of the occupiers’ circumstances.
Spatial planning meant that many black people were deprived of formal access to land and housing, and were relegated to the homelands.
Because of an abundance of legislation, including the Natives Land Act 27 of 1913, the Group Areas Act 41 of 1950 and the Prevention of Illegal Squatting Act 52 of 1951, the majority of black people still find themselves on the periphery of human rights.
The residue from racialised land and property laws has left an unshakeable stench that has resulted in the right to housing being one of the most litigated rights.
Today, most black people find themselves in undesirable living conditions, waiting on the promise of service delivery.
The disparities between people’s lived realities and the Constitution’s promise of human rights are inescapable.
Section 26(1) of the Constitution provides that “everyone has the right to have access to adequate housing”, while section 26(2) indicates that “the state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right”.
This momentous right is a preventive measure against a system of laws that sought to ostracise black people from their own country.
To this end, section 26(3) provides that “no one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.”
The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act was enacted to give effect to section 26(3).
It protects against the eviction of unlawful occupiers living on both privately and publicly owned land.
Despite these rights and an array of case law in support of them, poverty continues to be criminalised in South Africa, as communities and individuals are frequently and violently evicted from the places they call home.
The right to housing is an all-encompassing right. As shown by Government of the Republic of South Africa and Others v Grootboom and Others in 2000, housing is about more than bricks and mortar.
The right is informed by and informs other rights such as the right to dignity, privacy, water, and safety and security.
More than half of South Africa’s population live in poverty, and it is probable that the housing crisis is at the heart of their destitution.
The rights exist and the legal jurisprudence is rich, but they often fail to translate into people’s lived experiences.
In an article titled Social Justice in A Time of Neo-Apartheid Constitutionalism: Critiquing the Anti-Black Economy of Recognition, Incorporation and Distribution, Madlingozi eloquently states that poor black people fall on the other side of the promise of a new South Africa.
Informed by a report from the shack dwellers’ movement Abahlali baseMjondolo, Madlingozi refers to South Africans who have been excluded from the miracle of the transition as “the forgotten”, those who are excluded from reaping the benefits of basic human rights despite the legal jurisprudence that continues to develop in their name.
My first introduction to the Constitution and constitutional law was in my second year of my public policy and administration class, when a student was explaining the separation of powers doctrine and used the Grootboom judgment as an example of a case in which the court reminded government of its constitutional obligation to provide adequate housing.
That case concerns Irene Grootboom, who brought the application on behalf of 510 children and 390 adults who were rendered homeless when they were evicted from their informal homes situated on private land.
The application was for an order that required government to provide the respondents with adequate basic shelter or housing until they obtained permanent accommodation.
True to the circuitous nature of the legal system, Grootboom died eight years after the judgment, still waiting for reasonable accommodation from the state.
Today, the judgment remains a powerful precedent for communities under threat of eviction as it implores government to be consistent with its constitutional obligations to provide adequate housing.
That case is an example of how legal jurisprudence is enriched in the name of the forgotten, who, unfortunately, never see beyond their deplorable living conditions.
But developing legal jurisprudence often conceals the fact that black South Africans are still confronted with the same issues that trammelled them during the merciless years of apartheid.
Black people still bear the brunt of normalised social injustices, and the promise of the Constitution is frequently offered as a panacea.
It has been 26 years since apartheid property and land laws were abolished, but the stain of displacement still lingers.
Black people still exist on the periphery of belonging.
A day after the video of Qolani’s eviction circulated, he told a journalist: “Basihlisile isidima sam [They have deprived me of my dignity].”
These fervent words lament the history of dispossession suffered by black people at the hands of a merciless state.
It all comes down to the fight for dignity; a fight for the attainment of social justice for all who live in South Africa.
Dondashe is a postgraduate law student at the University of Cape Town