Socio-Economic Rights in South Africa : Symbols or Substance? 9781107248465, 9781107021143

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socio-economic rights in south africa The embrace of socio-economic rights in post-apartheid South Africa has featured prominently in scholarship on constitution making, legal jurisprudence, and social mobilisation. But it has also attracted critics who claim that this turn towards rights has not generated substantive social transformation in practice. This book sets out to assess one part of the puzzle. It asks what has been the role and impact of socio-economic strategies and tactics used by civil society actors. Focusing on a range of rights and national trends in law and political economy, the book’s authors show how socio-economic rights have influenced civil society discourse and action. The evidence suggests that some strategies have achieved positive (and occasionally negative) material and political impacts, but this is conditional on the nature of the claims, the degree of mobilisation and alliance building, and the underlying constraints. Malcolm Langford is a Research Fellow at the Norwegian Centre for Human Rights, University of Oslo, and Visiting Scholar at the Centre for the Study of Law and Society, University of California (Berkeley). Ben Cousins is a DST/NRF Research Chair and is based at the Institute of Poverty, Land and Agrarian Studies, School of Government, University of the Western Cape. Jackie Dugard is Visiting Senior Fellow at the School of Law, University of the Witwatersrand, and former Executive Director of the Socio-Economic Rights Institute of South Africa, where she is currently a Senior Researcher. Tshepo Madlingozi is Senior Lecturer at the Faculty of Law, University of Pretoria.

Socio-Economic Rights in South Africa

symbols or substance? Edited by MALCOLM LANGFORD University of Oslo

BEN COUSINS University of the Western Cape

JACKIE DUGARD University of the Witwatersrand

TSHEPO MADLINGOZI University of Pretoria

32 Avenue of the Americas, New York, ny 10013-2473, usa Cambridge University Press is part of the University of Cambridge. It furthers the University’s mission by disseminating knowledge in the pursuit of education, learning, and research at the highest international levels of excellence. www.cambridge.org Information on this title: www.cambridge.org/9781107021143  C Cambridge University Press 2014

This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2014 Printed in the United States of America A catalog record for this publication is available from the British Library. Library of Congress Cataloging in Publication Data Socio-economic rights in South Africa : symbols or substance? / Malcolm Langford, University of Oslo, Norwegian Centre on Human Rights, Ben Cousins, University of the Western Cape, Jackie Dugard, University of Witwatersrand School of Law, Tshepo Madlingozi, University of Pretoria, editors. pages cm. Includes bibliographical references and index. isbn 978-1-107-02114-3 (hardback : alk. paper) 1. Human rights – South Africa. 2. Civil rights – South Africa. 3. Social justice – South Africa. 4. Civil society – South Africa. 5. Sociological jurisprudence. I. Langford, Malcolm, editor of compilation. ktl2460.s77 2013 330–dc23 2012051627 isbn 978-1-107-02114-3 Hardback Cambridge University Press has no responsibility for the persistence or accuracy of urls for external or third-party Internet Web sites referred to in this publication and does not guarantee that any content on such Web sites is, or will remain, accurate or appropriate.

Contents

page vii

Contributors

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Preface 1

Introduction: Civil Society and Socio-Economic Rights Malcolm Langford

1

context and contestation 2

Constitutional Jurisprudence: The First and Second Waves Stuart Wilson and Jackie Dugard

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3

Socio-Economic Rights Beyond the Public-Private Law Divide Sandra Liebenberg

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4

Post-Apartheid Social Movements and Legal Mobilisation Tshepo Madlingozi

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5

Political Power: Social Pacts, Human Rights, and the Development Agenda Adam Habib

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thematic areas 6

7

Rural Land Tenure: The Potential and Limits of Rights-Based Approaches Ben Cousins and Ruth Hall Housing Rights Litigation: Grootboom and Beyond Malcolm Langford v

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Contents

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Health Rights: Politics, Places, and the Need for ‘Sites for Rights’ Peris Jones and Nyasha Chingore

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9

Social Security Rights: Campaigns and Courts Beth Goldblatt and Solange Rosa

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10

Urban Basic Services: Rights, Reality, and Resistance Jackie Dugard

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11

Realising Environmental Rights: Civic Action, Leverage, and Litigation Rachel Wynberg and David Fig

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Access to Information and Socio-Economic Rights: A Theory of Change in Practice Kristina Bentley and Richard Calland

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Gender and Socio-Economic Rights: The Case of Gender-Based Violence and Health Liesl Gerntholtz and Jennifer MacLeod

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14

Migrants and Mobilisation around Socio-Economic Rights Tara Polzer Ngwato and Zaheera Jinnah

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Concluding Perspectives Malcolm Langford, Jackie Dugard, Tshepo Madlingozi, and Ben Cousins

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Table of Authorities

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Index

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Contributors

Kristina Bentley is a Senior Research Associate with the Democratic Governance and Rights Unit in the Department of Public Law, University of Cape Town. From 2002 to 2006, she was a Chief Research Specialist with the Democracy and Governance Programme of the Human Sciences Research Council, South Africa. In 2002 she was awarded a PhD by the University of Manchester. Her current research focuses on emerging applications of human rights. She is the co-editor of Politikon, the official journal of the South African Association of Political Studies. Richard Calland is Associate Professor in public law at the University of Cape Town and Director of its Democratic Governance and Rights Unit. For the past sixteen years Calland has worked on issues of governance and human rights in South Africa and the continent, with a special focus on the right of access to information. He founded the Open Democracy Advice Centre in 2000 and worked for IDASA (Institute for Democracy in Africa) until 2011. In 2010, he was a founding member of the Council for the Advancement of the South African Constitution. He is codirector of the International School for Transparency and a member of the World Bank’s Access to Information Independent Appeals Panel. Nyasha Chingore is a Researcher and Project Manager at the Centre for the Study of AIDS, University of Pretoria, where she heads the centre’s collaboration with the AIDS and Human Rights Research Unit of the Centre for Human Rights. In addition to managing several research projects, she ran a justice-sector stakeholder training project that trained magistrates, public prosecutors, and lawyers on HIV/AIDS and the law, and she worked with national human rights commissions in the Southern African Development Community. She manages a paralegal advice centre, PLACE. She holds an LLM in human rights and democratization in Africa from the University of Pretoria and an LLBS from the University of Zimbabwe.

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Ben Cousins is a DST/NRF Research Chair at the University of the Western Cape and is based at the Institute for Poverty, Land and Agrarian Studies (PLAAS). He has worked in agricultural training and extension in Swaziland and Zimbabwe and has carried out research on rural social dynamics and land reform in Zimbabwe (1986– 91) and South Africa (1991–2011). His main research interests are small-scale farming, trajectories of agrarian change, and the politics of land and agrarian reform. He is the co-editor (with Aninka Claassens) of Land, power and custom: Controversies generated by South Africa’s Communal Land Rights Act (Ohio University Press, 2009). Jackie Dugard is a Visiting Senior Fellow in the School of Law, University of the Witwatersrand, and the former Executive Director at the Socio-Economic Rights Institute of South Africa, where she is currently a Senior Researcher. With a background in social sciences and law, Dugard works to advance access to justice and basic services in poor South African communities, and she has published widely on the role of law and courts in affecting socio-economic change, as well as on basic services-related rights. Her most recent publication, with Malcolm Langford, is ‘Art or Science? Synthesising Lessons from Public Interest Litigation and the Dangers of Legal Determinism’, in South African Journal on Human Rights (Vol. 27, 2011). David Fig is a South African environmental sociologist, political economist, and activist. He is an Honorary Research Associate in the Environmental Evaluation Unit at the University of Cape Town and a Fellow of the Transnational Institute, Amsterdam. He holds a PhD from the London School of Economics and specialises in questions of energy, the extractive industries, and corporate accountability. He chairs the board of Biowatch South Africa, which is concerned with food sovereignty and sustainable agriculture, and he works closely with various environmental justice non-government organizations. Recent publications include work on the nuclear and shale gas industries and the Biowatch legal battle with Monsanto. Liesl Gerntholtz is the Director, Women’s Rights Division, at Human Rights Watch. She has worked and written extensively on violence against women and HIV/AIDS in Southern Africa. Her work at Human Rights Watch has included documenting access to safe and legal abortion in Ireland and sexual and gender-based violence in Haiti in the aftermath of the earthquake. Before joining Human Rights Watch, Gerntholtz worked for some of the key constitutional institutions promoting human rights and democracy in a post-apartheid South Africa, including the South African Human Rights Commission and the Commission on Gender Equality. A lawyer by training, she was involved in high-profile, strategic human rights litigation to promote women and children’s rights. Beth Goldblatt is a Visiting Fellow in the Australian Human Rights Centre, Faculty of Law, University of New South Wales. She is an Honorary Senior Fellow of the

Contributors

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Faculty of Law, University of the Witwatersrand. She worked at the Centre for Applied Legal Studies at the University of the Witwatersrand for 12 years. She has also held research positions at the University of Sydney and the University of New South Wales. Goldblatt has been involved in research, advocacy, litigation, law reform, policy work, and teaching, and she has published in many areas, including gender, family law, equality and discrimination, disability, social security, and human rights with a focus on economic and social rights. She co-edited Women’s social and economic rights with Kirsty McLean (Juta, 2011). Adam Habib is Deputy Vice-Chancellor of Research, Innovation and Advancement at the University of Johannesburg, South Africa. He has held academic appointments over the past decade at the Universities of Durban-Westville and KwaZulu-Natal and at the Human Science Research Council. Before being appointed Executive Director of the Democracy and Governance Programme of the Human Science Research Council in 2004, he served as the Founding Director of the Centre for Civil Society and as a Research Professor in the School of Development Studies at the University of KwaZulu-Natal. Habib has served as co-editor of both the social science academic journal Transformation and the official disciplinary journal of the South African Association of Political Science, Politikon. He also sits on the editorial boards of Voluntas, South African Labour Bulletin, and UNESCO’s 2009 World Social Science Report. Habib’s research interests include democratisation and development, contemporary social movements, giving and solidarity, institutional reform, race, redress and citizenship, and South Africa’s role in Africa and beyond. Ruth Hall is an Associate Professor at the Institute for Poverty, Land and Agrarian Studies (PLAAS) at the University of the Western Cape, South Africa. She holds a DPhil in politics from the University of Oxford, where she also obtained a master’s degree in development studies. Hall’s major publications are Farm workers and farm dwellers in Limpopo province, South Africa: Struggles over tenure, livelihoods and justice (PLAAS, 2013, with Poul Wisborg, Shirhami Shirinda and Phillan Zamchiya); Land, memory, reconstruction, and justice: Perspectives on land claims in South Africa (Ohio University Press, 2010, edited with Cherryl Walker, Anna Bohlin, and Thembela Kepe); Another countryside? Policy options for land and agrarian reform in South Africa (edited, PLAAS, 2009); and The land question in South Africa: The challenge of transformation and redistribution (HSRC Press, 2007, edited with Lungisile Ntsebeza). Zaheera Jinnah is a Researcher at the Africa Centre for Migration and Society where she teaches a course in Migration and Human Rights and supervises postgraduate students. She holds degrees in anthropology and development studies. Her research interests are the Somali diaspora, gender and labour migration. Recent

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publications include work on migrant mobilisation in South Africa and Kenya and sexual and reproductive health and livelihoods of Somali women in Johannesburg. Peris Jones is a Human Geographer and Senior Researcher at the Norwegian Institute of Urban and Regional Research, Oslo. Jones currently lives in Nairobi, Kenya. His research focuses upon social change and human rights, particularly the politics of rights implementation. Jones is the author of two books: the monograph AIDS Treatment and Human Rights in Context (Palgrave, 2009) based on local field work in South Africa, and the edited collection, Democratising Development: The Politics of Socio-Economic Rights in South Africa (Martinus Njihoff, 2005, edited with Kristian Stokke). He has also published related works on development and human rights in several international journals (e.g. International Journal of Human Rights, Health and Human Rights, Political Geography, Urban Studies, African Affairs, Third World Quarterly, Journal of Southern African Studies, and Journal of Eastern African Studies). Malcolm Langford is a Research Fellow at the Norwegian Centre for Human Rights (NCHR), Faculty of Law, University of Oslo and Visiting Scholar at the University of California (Berkeley). He was previously a research Fellow in the South Africa Programme and the founding Director of the NCHR’s Socio-Economic Rights Programme. He is an adviser to different UN agencies, governments, and NGOs, and he leads a number of international research networks. He has published on a wide range of topics in human rights, law, and economics, and his books include Global justice, state duties: The extra-territorial scope of economic, social and cultural rights in international law (Cambridge University Press, 2013, edited with M. Scheinin, W. Vandenhole, and W. Van Genugten) and Social rights jurisprudence: Emerging trends in international and comparative law (edited, Cambridge University Press, 2008). Sandra Liebenberg currently holds the HF Oppenheimer Chair in Human Rights Law in the Law Faculty of the University of Stellenbosch and is Co-Director of the Law Faculty’s Socio-Economic Rights and Administrative Justice Research Project (SERAJ). She previously served as a Member of the Technical Committee advising the Constitutional Assembly on the Bill of Rights in the 1996 Constitution of South Africa. In 1997, she founded and directed the Socio-Economic Rights Project based at the Community Law Centre (University of the Western Cape). She serves on the editorial boards of South African Journal on Human Rights, African Human Rights Law Journal, and Human Rights Law Journal, and is Chair of the Board of Directors of the Socio-Economic Rights Institute of South Africa. She has been involved in research, advocacy, and supporting litigation in the area of socio-economic rights for a number of years, and she has published widely in this field. Her monograph, Socioeconomic rights: Adjudication under a transformative constitution was published by Juta in 2010.

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Jennifer MacLeod is Harvard Law School Holmes Fellow at the Socio-Economic Rights Institute of South Africa. She is also a Founding Director of Lawyers against Abuse, an integrated approach to gender-based violence, which led to her keen interest in the cross-over between socio-economic deprivation and gender-based violence. She was formerly Senior Fellow at the Institute for International Law and Human Rights, based in Washington, DC, and Baghdad, where she produced Women and the law in Iraq, a book addressing the status of women in Iraqi law and potential improvements to such laws. Tshepo Madlingozi is a Senior Lecturer in the Faculty of Law, University of Pretoria. He is a member of the editorial committee of African Human Rights Law Journal, a member of the management committee of the Pretoria University Law Press, and a member of the Board of Trustees of Khulumani Support Group and Zimbabwe Exiles Forum. He is a Member of the Advisory Council of the Council for the Advancement of the South African Constitution. He has undertaken consultancy work for the UN Office of the High Commissioner for Human Rights, the African Union’s Pan-African Parliament, and other government and non-government institutions. He has published in journals such as Journal of Law and Society and Journal of Human Rights Practice. He is currently a PhD candidate at Birkbeck, University of London. Tara Polzer Ngwato is a Senior Researcher with the African Centre for Migration & Society at the University of the Witwatersrand. With an inter-disciplinary background in social and political sciences (BA from Cambridge University) and development studies (MSc and Phd from the London School of Economics and Political Science), she has written extensively on refugee and migrant integration, especially in border zones, and policy responses to Zimbabwean migration in Southern Africa. She also works on issues relating to conflict transformation and humanitarian preparedness. Solange Rosa is a doctoral candidate at the University of Stellenbosch and Chief Director of Policy and Strategy in the Premier’s Department in the Western Cape Provincial government, responsible for social policy and planning. She worked at the Children’s Institute, University of Cape Town, as a Senior Researcher from 2002 to 2006, focusing on children in poverty and the right to social security. She was also Advocacy Coordinator for the Alliance for Children’s Entitlement to Social Security and Chair of the Basic Income Grant Coalition, based in Cape Town. She has also worked internationally for Oxfam International and the UN Development Programme. She has researched, written, and published broadly on human rights, social justice, and development, particularly on freedom of expression, access to information, prisoners’ rights, criminal justice, gender, children’s rights, social security rights, participatory rights, socio-economic rights, and poverty.

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Stuart Wilson is the Executive Director at the Socio-Economic Rights Institute of South Africa. A practicing advocate and member of the Johannesburg Bar, Wilson has appeared before the South African Constitutional Court and Supreme Court of Appeal in several leading socio-economic rights cases. Wilson writes and publishes on constitutional law, property law, and the intersection of law and society. His present research interests are in assessing the social and legal impact of publicinterest litigation, especially where driven by the organised urban poor. His most recent publication is J. Brown and S. Wilson (2013) “A Presumed Equality: State and Citizen in Post-Apartheid South Africa”, African Studies, Part 1. Rachel Wynberg is an academic, activist, and policy adviser based at the University of Cape Town where she holds a DST/NRF Research Chair on the Bio-Economy. She has two masters degrees from the University of Cape Town and a PhD from the University of Strathclyde, Glasgow, and is a founding member and existing trustee of two South African NGOs (the Environmental Monitoring Group and Biowatch South Africa) and a board member of the trade association PhytoTrade Africa. Wynberg’s work is focused on biopolitics, the commercialization and trade of biodiversity, and the integration of social justice into biodiversity concerns and environmental governance. She has published widely on these topics, including more than 140 scientific papers, technical reports, book chapters and popular articles, as well as four recent co-edited books.

Preface

The origins of this book are diverse. The kernel of the idea was born in a discussion in 2009 about the impact of the South African Constitutional Court’s landmark Grootboom judgment.1 Was it an illustration of everything positive or everything negative about the uptake of socio-economic rights in post-apartheid South Africa? Was the judgment and its various impacts a vindication of the housing rights for highly marginalised urban dwellers, facilitating emergency assistance and protection from eviction? Or was it Exhibit A of the danger that relying on socio-economic rights might narrow the frame of political struggle and leave communities and individuals without any remedies of substance. The discussion itself occurred in the context of a meeting of South African civil society organisations and university centres that benefitted from Norwegian government support for work on human rights, particularly on socio-economic rights.2 As this decade-long programme of support came to an end in 2010, it was pertinent to ask: what have these and other organisations achieved through their turn to socio-economic rights as a means to address poverty and inequality in the post-apartheid era? What is the actual evidence and how should we assess it? The result is this volume of fifteen contributions, which draws together scholars and some advocates from a range of disciplines. Together, the authors analyse the effects of different socio-economic rights and strategies employed by civil society 1 2

Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) (Grootboom). Since 1998, support for human rights was included in development cooperation between South Africa and Norway as part of the human rights and democracy portfolio. The support was coordinated by the Royal Norwegian Embassy and administered by the Norwegian Centre for Human Rights, University of Oslo. In the period 2005–2010, these organisations were supported: PLAAS (The Institute for Poverty, Land and Agrarian Studies, University of Western Cape), Rape Crisis, Community Law Centre (University of Western Cape), Open Democracy Advice Centre, Women’s Law Centre, Centre for Applied Legal Studies, Tshwaranang Legal Advocacy Centre, Legal Resources Centre, Church Land Programme, Centre for Human Rights (University of Pretoria), International Center for Transitional Justice, Coma Care, and Lawyers for Human Rights.

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formations and organisations, and more broadly assesses the relevance of socioeconomics rights as a political and legal resource for tackling poverty and inequality and strengthening social mobilisation and action. We are deeply grateful to all the authors for their willingness to grapple with the objectives of the book – we hope all have benefitted as much from the process as we have. We thank the authors particularly for new insights and perspectives shared. This book would not have been possible without generous and sustained support from the Norwegian Embassy in South Africa. Special thanks go to Ingrid Skølass and Mai-Elin Stener at the Embassy for facilitating this process. Thanks also go to the University of Western Cape and the Legal Resources Centre, which together organised the first workshop in 2010 at which the themes for the book were partly discussed and to Tara Smith who organised a follow-up authors’ workshop in 2011. At the Norwegian Centre for Human Rights, Cheryl Lorens and Tara Smith provided invaluable editorial assistance and Siri Sk˚are and Kristin Høgdahl provided helpful guidance on the process; at SERI, Katherine Drage and Elisabeth Koek carefully read and proofed each chapter. In the production of the book, we are very grateful to John Berger at Cambridge University Press for his deep support in driving the project forward; Shana Meyer at Aptara, Inc., for shepherding the book through its various phases; and Katherine Faydash for her painstaking copyediting of the entire manuscript. Ultimately, we express our gratitude to our various ‘research objects’, the organisations and individuals who have struggled in different ways to improve the situation in South Africa. We hope that the pages of this book contribute to a critical and informed approach to the question of rights and social change in the cauldron of practice. Socio-economic rights still represent a relatively new paradigm and should be subject to more experimentation and ongoing reflection rather than hard and fast conclusions. The essential message of this book is that these rights can be a lever for change but that their potency is dependent on underlying factors and strategic choices. Malcolm Langford, Ben Cousins, Jackie Dugard and Tshepo Madlingozi

1 Introduction Civil Society and Socio-Economic Rights Malcolm Langford*

In the English-speaking world and beyond, South Africa is habitually held up as the poster child of socio-economic rights. The Constitution and subsequent legislation contain a panoply of justiciable socio-economic rights; court jurisprudence has offered supportive and intellectually robust interpretations; and post-apartheid social mobilisation has been fused with rights-based discourse and headline-grabbing victories. One consequence is that the case of South Africa figures prominently in comparative discussions of constitution making, legal jurisprudence, policy development, and social mobilisation (see Porter, 2009; Sunstein, 2004: 159; UN Development Programme, 2006). Alston (2008: ix) notes, for example: “Rarely have the developments in the field of comparative constitutional law been so dominated by the jurisprudence not only of a single country but in this case of a single court.” However, the failure of South Africa to match this narrative with social transformation in practice has generated a counter-narrative. Calls for rights-based strategies can be equally met with scepticism on the basis of the South African experience. It is not uncommon to hear the bivariate complaint that poverty and inequality remain persistent despite the legalisation of socio-economic rights. Although significant progress has been made on selected socio-economic indicators, unemployment is rampant; life expectancy has fallen (principally due to HIV/AIDS); and access to housing, basic services, affordable food, and quality education remains highly unequal on the basis of race, class, sex, and location. The critiques can be more specific and focused on socio-economic rights discourse and practice itself: that landmark judgments remain unimplemented or that the ‘rights culture’ has hindered the development of alternative paths for social change. Such complaints are diverse and not necessarily unidirectional or unispatial. But they certainly demand investigation * Research Fellow, Norwegian Centre for Human Rights, University of Oslo. My sincere thanks to fellow editors and Evan Rosevar for very thoughtful comments on an earlier draft.

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if socio-economic rights are to be championed as “integral components of poverty reduction strategies” (UN OHCHR, 2002). This book sets out to assess one part of the puzzle of the contrasting narratives on South Africa: what has been the role and impact of socio-economic rights strategies by civil society actors?1 With a focus on the period 2000–10 and a range of socioeconomic rights, we ask a series of interrelated questions. How have a diverse group of actors, from marginalised local communities and social movements through to highly professionalised non-governmental organisations (NGOs) and trade unions, used the linguistic and strategic resource of socio-economic rights? What have been the direct and indirect impact of ‘rights-based’ strategies (or tactics)2 in light of feasible alternatives? And what theoretical and practical conclusions can we draw from the strategies that will be of relevance in South Africa and globally – are particular approaches more effective than others under particular conditions? It is important to distinguish these objectives from several connected questions in law and social science. For instance, we are not asking whether South Africa is complying with socio-economic rights from a legal or normative perspective or seeking to map out the current state of law, policy, or jurisprudence. We are not exploring, in one variant of social science literature, whether a rights framework per se3 positively affects the realisation of human rights (e.g., Simmons, 2009a) nor, in another variant, attempting to explain the rise of social movements that have embraced socio-economic rights (Chong, 2010; Thompson and Tapscott, 2010). By necessity, the book does cover some of the ground that is embedded in these alternative inquiries. Civil society discourse and strategy are triggered by the belief that there is a compliance failure: the renaissance of oppositional civil society action in post-apartheid South Africa is driven by a deep sense of injustice over perceived violations and dashed expectations. As civil society organisations employ the opportunities offered by institutional architecture for socio-economic rights, the evidence generated in this book on impact (or lack of impact) adds to the separate debate on the effects of establishing rights-based frameworks. Equally, the case studies contribute to a broader social movement literature of how “citizens mobilize to claim their rights, protect their resources, and gain recognition for their identities” (Gaventa, 2010: xi). Nonetheless, our purpose is different. It takes a clearer departure point in the ‘politics of rights’. As Scheingold (1974: 7) puts it: The political approach . . . prompts us to approach rights as skeptics. . . . Instead of thinking of judicially asserted rights as accomplished social facts or as moral imperatives, they must be thought of, on the one hand, as authoritatively articulated 1

2 3

By non-State actors our focus is on civil society organisation that has some organised or associational form: principally social movements, NGOs, faith-based groups, and community-based groups or associations (formal or informal). On the extent to which we are referring to strategies or tactics, see the discussion in Section 3.1. This might include the Constitution, legislation, policy, institutions, and even judgments.

Introduction

3

goals of public policy and, on the other, as political resources of unknown value in the hands of those who want to alter the course of public policy.

This approach is tackled in two ways. We wish to ontologically understand the rights discourse of a particular set of actors and explore the effects of the choice of particular rights strategies. To put it in a circular fashion, our focus is on the impact of socio-economic rights on civil society, and vice versa. And in this sense, the book shares more in common with a longer tradition of American literature on non-State action and civil rights (Epp, 1998, 2009; Handler, 1978; Lobel, 2007; McCann, 1994). There is, of course, a growing South African literature on this topic. The edited volume by Jones and Stokke (2005) interrogated the political impact of emerging strategies in labour, health, and land rights, and Robins (2008) presented a rich and synthesised analysis of a ‘rights revolution’ through an anthropological lens that focuses on a number of NGOs and social movements. A number of articles and book chapters have focused on particular case studies (e.g. Wilson, 2011), some book chapters have analysed the impact of judgments in particular fields like health and education (e.g. Berger, 2008) while Handmaker and Berkhout (2010) contribute case studies on some recent struggles. Whereas this study bears some similarity to this literature, it broadens the frame in various respects. The analysis is conducted across a wider range of socio-economic rights, which results in the inclusion of many under-studied rights and organisations. To this is added a broader array of rights-oriented strategies and tactics – from protest and litigation through to policy research and awareness raising. As much as possible, the time period for the analysis is also extended beyond the standard few years, potentially avoiding some of the dark side of ‘evaluation culture’ (Gready, 2009).4 A final distinguishing feature is that we take a sceptical approach to any received wisdom of claims of success or failure. As some chapters demonstrate, we may need to revise prior conclusions on the effectiveness of particular strategies in both directions. The remainder of this introduction sets the scene and framework for the book. Section 1 sketches the recognition of socio-economic rights in the legal, policy, and institutional frameworks of post-apartheid South Africa; the degree to which these rights have been realised in practice; and debates over the causes behind the mixed progress. The revival of ‘oppositional’ civil society activity over the past decade is described in Section 2, with a particular focus on its rights character and the subsequent critiques. Section 3 establishes a skeletal methodology for the book: after setting out different ways of identifying possible ‘socio-economic rights–based’ strategies, it attempts to untangle the different concepts behind measuring ‘impact’ – including its content, baselines for assessment, constraints on civil society action, 4

Gready (2009) notes that impact assessments commissioned by donors of their grantee human rights organisations risk promoting a technocratic understanding of human rights practice, together with an unrealistic demand for short-term and verifiable results. This problem can also be seen in academic analyses: see Hirschl’s (2004) treatment of South Africa for a case in point.

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and the thorny question of causation. Section 4 provides an overview of the structure of the remainder of the book, and the key thematic conclusions are reserved for the final chapter. 1. SOCIO-ECONOMIC RIGHTS IN POST-APARTHEID SOUTH AFRICA

1.1. Transitioning with a Rights Framework When Nelson Mandela walked out of prison in February 1990, the trajectory of the development of South Africa’s post-apartheid order was not self-evident. How would the quasi-socialist agenda of the African National Congress (ANC) contend with the demands of white capital? How would the calls for ethnic, linguistic, regional, and legal autonomy from different constituencies sit with a desire by the ANC and its partners for a strong central government to ensure social and economic change? Once multi-party negotiations gathered pace, the answer became quickly clear. In the words of Robins (2008: 3), the “militant language of liberation” gave way to a “new set of liberal democratic keywords” of “rights, citizenship, liberal democracy, nation-building, transformation, black economic empowerment”, and so on. The result was the creation of a constitutional framework that was ambiguous enough to accommodate alternative political and economic trajectories but situated within the strictures of a liberal frame. With the benefit of hindsight, it has been claimed that such an ideological and constitutional settlement was inevitable. Habib places South Africa in the global context of Huntington’s ‘third wave’ of new democracies: a “‘Janus faced transition’ that embraced political democratisation and economic liberalisation”.5 Neo-liberal globalisation was on the march, and the fall of Eastern European communism made alternative frameworks less plausible – as demonstrated by the wave of resignations from the ANC’s sister party, the South African Communist Party. Marais (2010: 2) prefers a more historical explanation. In his narrative, the “end of apartheid is best understood not as a miraculous historical rupture, but as a dramatic phase in an ongoing struggle to resolve a set of political, economic and social contradictions that became uncontainable in the 1970s”. South Africa’s economic model of a cheap and manageable labour supply, protectionist trade policies, and reliance on mineral resources had become unsustainable. Although this economic crisis helped fuel the political crises in the 1970s and 1980s that led to the end of apartheid, it also paved the way for economic neo-liberalism, which the “apartheid regime flirted with in the 1980s” and was embraced more fully, but not totally, by the post-apartheid government in the late 1990s (ibid.).

5

See Habib, Chapter 5, in this volume.

Introduction

5

These broader systemic factors also revealed long-standing frictions within the liberation movement. The reality of governing exposed traditional divisions over the pace in which South Africa’s model of racial capitalism should be tackled (Robins, 2008). This was aided by South African business, which “had created channels of communication [with the ANC] that would allow the second ‘hidden transition’ – in the economy – to take place without ideological conflict” (Butler, 2009: 111). Path dependencies aside, the precise features of the constitutional settlement on economic questions and political autonomy still remained controversial as late as 1996, when the final Constitution was adopted by Parliament. In a politically charged and tense atmosphere, agreement was found at the eleventh hour on the inclusion of the right to property, limitations on the right to strike, the right to monolingual schools (a demand of Afrikaner parties), and the subjection of customary law to the Bill of Rights (Ebrahim, 1999). Whereas the constitutional design was largely a classical liberal product – strongly reflecting the International Covenant on Civil and Political Rights – it was balanced by an emphasis on dignity and equality, the bounding of the right to property by principles of historical and distributive justice, and the inclusion of a number of justiciable socio-economic rights. The latter was initially contentious, with resistance from the Democratic Party, Chamber of Mines, the South African Institute on Race Relations, and the Free Market Foundation (Dugard, 2004: 349; Liebenberg, 2010). It was also relatively novel for a common law country – although rather standard elsewhere in post-1980 constitution making (Langford, 2008; Simmons, 2009b). Arguments that these rights balanced the recognition of more liberal rights appear to have been decisive in garnering ANC support. The articulation of socio-economic rights in the constitution largely follows the language and jurisprudence of the International Covenant on Economic, Social, and Cultural Rights (ICESCR). The State is required to “respect, protect, promote and fulfil all rights” in the Constitution (Article 7(2)) and to “take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of” various socio-economic rights (Articles 26, 27, and 29). These rights are housing, social security, health-care services, food and water, and non-basic education. A number of social rights are made immediately realisable – right to basic education and children’s socio-economic rights (Articles 28 and 29). Moreover, relatively generous rules on standing and expansive remedial powers for the courts were enunciated, and in 1996, when the Constitution was certified, the Constitutional Court clarified that socio-economic rights were, largely, justiciable.6 The period that followed the interim constitution of 1993 was marked by a heady optimism with a raft of rapid legal and policy reforms. A newly elected Parliament

6

Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa 1996 (4) SA 744 (CC), at para. 77.

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passed the Restitution of Land Rights Act in 1994 with the ANC and National Party voting in favour, and the rightist Zulu-dominated Inkatha Freedom Party and the rightist Afrikaner Freedom Front voting against.7 From there followed the Schools Act 1996, Housing Act 1997, Water Services Act 1997, Skills Development Act 1998, Employment Equity Act 1998, Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 1998, Equality Act 2000,8 and, later, the National Health Act 2003 and Social Assistance Act 2004. And there were important legislative advances for women’s rights with social consequences, such as the right to abortion and protection from domestic violence. One of the distinguishing features of this legislative surge was the influence of socio-economic rights. These rights were often enshrined as a principal statutory objective and helped frame government obligations (e.g. minimum standards, procedural rights, positive duties). More generally, government departments and systems were established in line with human rights commitments, which included departments of housing, social development, education, and health care. Even before the adoption of the Constitution, social policy was undergoing a seismic shift. From 1990, the residual apartheid social welfare state was opened up to black South Africans, in particular old-age pensions and schooling, and by 1994, explicit racial discrimination had largely been removed from public policy (Seekings and Nattrass, 2006: 36–37). The cornerstone of initial policy making was, nonetheless, the comprehensive 1994 Reconstruction and Development Programme (RDP). Adopted by the short-lived Government of National Unity,9 the document had support and input from the Congress of South African Trade Unions (COSATU), the South African Communist Parties (SACP), and many civil society organisations. The RDP is largely remembered for its focus on social development, but it is arguably a more heterodox fusion of different and potentially conflicting ideas and policies. Mandela’s preamble opens with a commitment to addressing “poverty” and “gross inequality”, with a strong emphasis on achieving it through a “path of high and sustainable growth” and a stable macroeconomic environment, including “gradual reduction in the fiscal deficit”. The RDP was to be a “people-driven” process, but much of the document details the institutional role of different levels of Government. The most striking features of the RDP were its quantitative targets (e.g. building one million houses in five years, supplying twenty to thirty litres of water daily to everyone in two years) and “lead projects” in nutrition, water supply, job creation, land restitution, housing, and health care.

7

8 9

The composition of the first Parliament was as follows: ANC (252 seats), National Party (82), IFP (43), Freedom Front (9), Democratic Party (7), Pan African Congress (5), and African Christian Democratic Party (2). The vote by the IFP against the law should be understood in the context of its political struggle with the ANC. Promotion of Equality and Prevention of Unfair Discrimination Act (for non-employment issues). Until the adoption of the final constitution, this included ANC, IFP, and the National Party.

Introduction

7

figure 1.1. Fiscal social spending as percentage of GDP. Source: National Treasury

(1998, 2008).

Since then, the shape of socio-economic policy has been subject to further change and contestation. Three shifts are most notable. In 1996, the ANC Government adopted the Growth, Employment, and Redistribution (GEAR) strategy. This brought a neo-liberal macroeconomic stance into the forefront of economic policy, although Gelb (2006) argues that much of this was implicit in the RDP. Although GEAR had clear economic implications for trade and investment, deficit financing, and interest and exchange rates, it arguably ushered in a neo-liberal mind-set that rippled beyond a strictly defined macroeconomic arena. This could be witnessed in the greater emphasis on cost-recovery principles for utilities at the local level and the drive to establish ‘world-class cities’ to attract foreign and domestic investment. The second development was a marked increase in social spending. In 1998, expenditure on health, education, social welfare payments, housing, and community development constituted 47 per cent of government spending. By 2008, this figure had risen to 60 per cent, with most of the growth coming in the form of expanded social security and welfare payments, particularly the extension of grants for children ages seven to fourteen. The result was that South Africa was ranked as possessing the ninth-highest ratio of social assistance spending to gross domestic product (GDP) among 74 developing and transition countries.10 The health budget doubled over two decades, with an expansion of primary and maternal health care and the introduction of a large antiretroviral treatment programme, albeit implemented only after massive pressure by various civil society organisations. This fiscal prioritisation of the social sector is evident from its growing proportion of GDP, which constitutes one way of conceiving a State’s maximum available resources for socio-economic rights. As Figure 1.1 shows, total social spending increased from 14.5 per cent to 17 per cent of GDP between 1998 and 10

See the discussion by Goldblatt and Rosa, in Chapter 9 of this volume.

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Malcolm Langford

2008,11 and by 2010, the total budget accounted for 34 per cent of GDP, which is typical of developed – albeit liberalist-corporatist – states rather than developing countries.12 Last, institutional reform of municipalities was completed in 2000 with the establishment of ‘wall-to-wall’ municipalities across South Africa. Although the nine provinces had assumed significant responsibilities in terms of largely implementing national policy on education, health, and social security, local authorities are largely or exclusively responsible for key socio-economic rights: the funding and delivery of water, sanitation, local economic development, and housing. 1.2. Socio-Economic Realities If we compare the promise of rights with their actuality, the picture is decidedly more mixed. Inequality and poverty stubbornly persist in the post-apartheid period. Whereas the level and depth of income poverty has fallen in the past two decades, the decrease is not that significant. In 2005, 23 per cent of South Africans lived under the lowest conceivable poverty line of 174 rands a month; and 48 per cent lived under a cut-off of 322 rands a month (Hirsch, 2008). Income inequality between racially defined groups has been declining,13 but the average black worker still earns a quarter of what the average white worker does (Szczepanski, 2008), and intra-racial or class-based income inequality has exploded: Seekings and Nattrass (2006: 308) estimate that ‘between group’ inequality has fallen by around a third between 1975 and 2000 but that ‘within-group’ inequality has increased by this amount. This varied progress extends beyond income: South Africa tumbled down the global rankings on the Human Development Index (HDI), which includes life expectancy and literacy. By 2009, the country was ranked 78th in terms of per capita income, but had fallen to 129th under the HDI (Kegley and Blanton, 2010–2011: 525). One of the most glaring indicators of sluggish socio-economic progress is employment. South Africa experiences one of the highest levels of unemployment in the world – more than double that in other middle-income and fellow sub-Saharan African countries (Bhorat, 2007). As Figure 1.2 indicates, the official unemployment rate steadily rose from 10 per cent to 20 per cent in the last decade of apartheid and has continued upward. By 2002, it had reached 30 per cent, although it has tapered

11

12

13

If we take social grants, we see a considerable increase, from 2 per cent of GDP in 1994 (Seekings, 2007) to 3 per cent in 1998 and 5.1 per cent in 2008. For an overview of recent budgetary trends, see Verwey, Lefko-Everett and Mohamed (2009). To take a very specific example, in 2007, public expenditure on education accounted for approximately 5.4 per cent of GDP, amounting to 17.4 per cent of total government expenditure. This is a higher proportion than, for example Germany (South African Institute of Race Relations, 2009: 379). During apartheid, race was the primary determinant of income inequality, whether through direct discrimination in the form of wage and occupational caps or though indirect forms such as differential education quality and eviction from agricultural lands and livelihoods.

Introduction

9

figure 1.2. Unemployment in South Africa. Source: International Monetary Fund (2010), Seekings and Nattrass (2006), StatisticsSA Website.

off in the past eight years, hovering at around 25 per cent. If we take an expanded definition of unemployment, which includes discouraged work seekers, the rate is even higher. It peaked at 42 per cent in 2002, with a downward trend towards 35 per cent. Unemployment is also overwhelmingly14 racialised and partially gendered. Using the strict unemployment definition, 27 per cent of Africans, 20.7 per cent of Coloured persons, and 10 per cent of Indians were unemployed, whereas this is the case for only 4.6 per cent of whites (South African Institute of Race Relations, 2009). Under an expanded definition, African unemployment reaches almost 50 per cent. Women are overly represented in this category and account for approximately 60 per cent of the unemployed. Thus, since the end of apartheid, the experience of poor South Africans in the ‘productive sector’ has been largely disappointing. Moderate economic growth has largely not translated into jobs, except for a brief period between 2002 and 2006. Unemployment is not the only contributor to high levels of income poverty in South Africa; wages and assets are also part of the story. For example, one study of Cape Town’s African poor found that 67 per cent of wage earners do not earn enough to raise their households above the poverty line (Swardt, 2004). Therefore, a deeper ‘chronic and structural poverty’ persists, which is evident in the distribution of assets (e.g. land, capital, technology) and the more entrenched dynamics of vulnerability, marginalisation, and poverty (Du Toit, 2005). As to assets, there has been an increase in the distribution of capital through black economic empowerment policies, but the white dominance of capital remains overwhelming and efforts to ensure that 14

http://www.statssa.gov.za/keyindicators/keyindicators.asp

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Malcolm Langford

redistribution was broad-based and did not only benefit a few are relatively recent (e.g., the Broad-Based Black Economic Empowerment Act No. 53/2003, which came into effect in 2007). As to land, the figures are worse: despite a promise to put 30 per cent of commercial farm land in black hands by 2014, the figure stood in 2010 at 4 per cent. Changes in social security partly ameliorated this situation. The expansion of grants for the non-working population significantly increased household income. By 2005, 34 per cent of households reported that pensions and social grants formed their main source of income. However, there are no direct benefits for working-age individuals who are unemployed, and the campaign for a basic income grant that would have addressed this group, was not successful (see the discussion by Goldblatt and Rosa in Chapter 9). Health outcomes have also visibly worsened (Lancet, 2009). Life expectancy has fallen by almost twenty years; maternal deaths remain high; and there are other communicable epidemics, especially tuberculosis, and non-communicable diseases that plague South Africans. Rape and various forms of gender-based violence are common but poorly investigated: for each of the fiftyfour thousand rapes reported to the police each year, “another nine are not”.15 And notwithstanding relatively high expenditure on education, the quality of education remains poor for disadvantaged groups and regions, and most school leavers are unable to find work. Significant advances have also been made in terms of basic services and housing. The proportion of those without access to water fell from 40 per cent to 7 per cent, and the equivalent figures for sanitation are 51 per cent and 21 per cent.16 But significant controversies have arisen over the extent of actual ‘progress’, with concerns over the high numbers of disconnections (even if one accepts the official figures), limitations on effective access, and the inability of many urban and rural dwellers to move beyond the most basic level of access given the tardy pace of slum upgrading and land reform (Tissington et al., 2008). In housing, the Government has created ‘two million housing opportunities’, but it faces a backlog of two million housing units (Butler, 2009). And despite the significant extension of infrastructure, access to housing and basic services is still heavily conditioned on apartheid spatial geography, and a significant number of municipalities have been accused of harsh and unforgiving policies on eviction and the pricing of basic services. The State of the World’s Cities Report, by UN Habitat (2008 xii), offers the following assessment: “South Africa stands out as a country that has yet to break out of an economic and political model that concentrates resources, although the adoption of redistributive strategies and policies in recent years have reduced inequalities slightly.”

15

16

‘Tackling South Africa’s rape culture’, BBC News, 1 November 2007, available at http://news.bbc.co. uk/2/hi/africa/7072818.stm (Accessed 1 January 2011). Government of South Africa (2005); Department of Water Affairs and Sanitation, Dashboard, available at http://www.dwa.gov.za/dir ws/wsnis/default.asp?nStn=introduction.

Introduction

11

1.3. Untangling the Causes Debate in South Africa is rich and voluminous on the causes of the failure to make greater progress on poverty and inequality. It is not the point of this book to resolve this question, but we can point to three broad and competing explanations. The first is apologist, and it emphasises both the achievements of the Government and the hard constraints. The ANC should be commended for defusing potentially violent conflicts that threatened to upend the settlement, consolidating democracy, and creating a new governmental infrastructure (Butler, 2009) while recognising the challenges of reversing the systemic effects of apartheid social, economic and educational policy, and its century-old economic path dependency of natural resource extraction (Hirsch, 2008).17 This narrative is evident in the Government’s (2008: para. 101) report to the UN Human Rights Council during the Universal Periodic Review: The South African Government believes that as a young democracy it has made great strides in redressing the inequities of the past and in creating a future for its people based on hope and filled with opportunities. Much though still needs to be done to make the practical enjoyment of all human rights a reality for all South Africans without distinction.

A second set of explanations emphasises economic and policy choices. Pro-business leaders and commentators have blamed the rigidity of South Africa’s wage levels in the formal and agricultural sectors for scuppering the chance of greater job creation. To this are added complaints that trade unions have blocked progress in increasing quality in education and public services (Butler, 2009). An alternative critique holds that an emphasis on inflation targeting in monetary policy and restrictive fiscal policy have constrained economic growth and the potential to create greater Keynesian multiplier effects in the economy, particularly as actual real wage growth has been minimal. Beyond these two classical macroeconomic perspectives, there are specific sectoral arguments: that the Government failed to develop and implement a pro-poor industrial and agricultural policy or to support small and medium-sized businesses (Gelb, 2006); that ‘AIDS denialism’ not only created a health crisis but also dampened economic output; and that the Government’s focus on economic efficiency in agriculture has prevented the emergence of pro-poor redistributive land reform (Cousins and Scoones, 2010). Putting things in a more holistic perspective, Du Toit (2005: 19) argues that the policy mix has failed to take account of the deeper dynamics of political economy and address the systemic lack of transformation: “often the problem is not that poor people have simply been excluded from particular institutions, resources or larger processes, but they have been included on inequitable or invidious terms.” A third critique seeks to move beyond the broad policy settings and focuses on institutional choices. Although increased budgets and the creation of new organs and 17

The latter partly constrains employment possibilities and makes the exchange rate less competitive.

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Litigants in the Mazibuko case at the Constitutional Court. Courtesy of Julia Grey for CALS.

tools of government count as impressive achievements, there have been consistent complaints about the lack of public participation in policy making and implementation, poor quality in local service delivery, and a cadre policy that helps ANC officials secure appointments in local authorities and provincial government. Government institutions – whether led by the ANC or by other parties – have also displayed a curious lack of will to intervene in the private sphere.18 In land reform not a single expropriation order has been issued, and the Government has exhibited a remarkable degree of passiveness in the face of evictions of farm dwellers that has exceeded apartheid-era levels (Wegerif, Russell, and Grundling, 2005) and poorly spent funds for small-scale farming (Hall and Alibar, 2010) 2. CIVIL SOCIETY AND SOCIO-ECONOMIC RIGHTS

2.1. The Renaissance of Oppositional Civic Action Whatever the reason for contemporary socio-economic realities, the disjuncture between social progress and expectation, together with a narrowing of opportunities 18

This is perhaps not helped by some of the ANC’s tolerance of public servants accessing Black Economic Empowerment (BEE) schemes, which potentially compromises their ability to champion independent policies. Some also argue that the Truth and Reconciliation Commission process did little to transform race relations; the soul-searching and apologies expected from whites together with real changes in political and economic behaviour never eventuated.

Introduction

13

for formal democratic participation, is arguably responsible for a re-growth in ‘oppositional’ civic action. Ballard, Habib, and Valodia (2006) describe the emergence of a ‘vacuum’ of such civil society formations in the early 1990s. When the ANC assumed power, the remainder of the apartheid-era constellation of oppositional non-State structures (United Democratic Front, COSATU, NGOs, community-based organisations and umbrella) largely adopted the task of implementing new government policy rather than maintaining a critical distance. The premier civil society institution, the trade union federation COSATU, formally allied itself with the ANC, and many campaigners from the apartheid-era streamed into governmental positions. However, there were some exceptions to this pattern, such as the National Land Committee, which formed in 1985 to represent landless communities and maintained a critical stance until it disintegrated in the early 2000s. Marais (2010: 448–49) argues that the civic movement in the 1990s was an “early casualty” of a post-apartheid “disorientation” and was “knocked badly off balance”. He points out that the primary civil society alliance, the South African National Civics Organisation (SANCO), not only lost most of its members but also developed an investment arm to generate funding. COSATU sought to play a critical role within and outside its alliance with the ANC, but Theron and Godfrey (2000) and others argue that it has became overly centralised and professionalised and neglected to keep pace with worker patterns in rural areas and the informal sector while its engagement on broader social issues has been inconsistent.19 The result was that this popular ‘vacuum’ was gradually filled with a new range of actors. Some of them emerged in the late 1990s; for example, the lesbian, gay, bisexual, and transgender movement20 and NGOs such as Nkuzi and the Association for Rural Advancement (AFRA) sought to support the work of the National Land Committee at the provincial level and beyond. In addition, various apartheid-era legal organisations continued to play pivotal roles in legal reform, advocacy, and mounting public-interest litigation (e.g. LRC, LHR, CALS, the AIDS Law Project [ALP], the CLC).21 However, the scale and intensity of civic action have accelerated in the last decade. Following Chatterjee (2004: 39–41), one can find a “small section of culturally equipped citizens” who constitute what he calls an “organized elite domain” or “political society”. This may apply to the leaders of some NGOs and social movements. But his “subaltern domain” is relatively active and possibly not as disempowered or dependent on a civil society elite as Chatterjee suggests.

19

20 21

However, one should not necessarily expect trade unions to effectively organise civil society at the point of production when there are high levels of unemployment and informality (Neocosmos, 2009). Moreover, the historical and comparative role of unions in leading campaigns for broader socio-economic goods has been somewhat overplayed. See for example Larsen (1996), on the role of women’s movements in campaigning for social security and hospitals in the United States and Europe in the late nineteenth and early twentieth centuries. As advanced by the National Coalition for Gay and Lesbian Equality. See footnote 25 for full names of organisations.

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The field is remarkably heterogeneous, ranging from ordinary citizens, communities, and residents to trade unions, social movements, professionalised NGOs, university legal centres, and churches. It has included national movements, such as the Treatment Action Campaign; local and regional struggles for land and housing rights, as exemplified by the shack dwellers’ movement Abahlali baseMjondolo; and attempts to improve institutional governance, as illustrated by the Open Democracy Advice Centre’s (ODAC) work on the right to information. Other social movements, such as the Anti-Privatisation Forum (APF) and Landless People’s Movement,22 rose and fell and partly rose again throughout the previous decade, and to tackle the current challenges, new NGOs have emerged from old ones.23 This heterogeneity is also evident in the issues the NGOs are taking up: from issues of poor local implementation through to discontent with prevailing national frameworks. Combined with highly organised or funded forms of action, there has been an explosion of ‘local’ or ‘community’ protests in township areas and informal settlements across the country since 2004. South Africa is said to experience the highest rates of protest in the world, which includes formal labour movement strikes as well as local community protests. In 2005, Minister of Safety and Security Charles Nqakula reported in Parliament that there were 5,000 protests across South Africa (Freedom of Expression Institute, 2006). Between 2004 and 2008, there were between 7,000 and 10,500 ‘public gatherings’ a year reported by police – with local protests appearing to account for the majority (Alexander, 2010: 26). The trend in the protest levels continues upward, despite the election of Zuma on an avowedly anti-poverty platform: service delivery protests reported by newspapers in 2009 equalled the total number of the five preceding years (Alexander, 2010: 28). Socio-economic issues dominate the grievances. Jain (2010) calculates that approximately 36 per cent of the protests concern access to affordable or adequate housing, whereas the remainder concern water (18 per cent), electricity (18 per cent), and inadequate sanitation systems and refuse collection (15 per cent). These complaints are often coupled with allegations over corruption, lack of participation, and forced eviction. Several comments are worth making on the nature of this civil society development. First, many of these ‘movements’ can be described as ‘rights based’. Robins (2008: 6) argues that in post-apartheid South Africa, “rights discourse [has] been assimilated into popular political culture”. He sees this discursive shift pervading not only classical civil society but also the language of politicians and traditional leaders. Dugard (2008) is more cautious and stricter in defining which types of strategies are rights based, with an emphasis on litigious forms. Ballard and colleagues (2006) and Madlingozi (2007) argue instead that it is difficult to pigeonhole South African civil society strategies. Amongst organisations, the definition is certainly not clear. Some movements define themselves as not ‘rights based’ but later embraced explicit human rights discourse and tactics. 22 23

Note that the movement principally works now in urban areas. The AIDS Law Project was transformed into Section27, and some staff from the Centre for Applied Legal Studies formed the Socio-Economic Rights Institute of South Africa.

Introduction

15

Second, one can observe a certain continuity in origins and tactics.24 Like their predecessors, many contemporary civil society groups have emerged in clear counterreaction to government policy. The ANC itself was established in 1912 in response to the creation of the white-controlled Union in 1910. In the late 1970s and 1980s, a number of sanctioned ‘NGOs’ emerged to defend the struggle of unsanctioned oppositional movements and black South Africans or to promote alternative agendas,25 and the many ‘unsanctioned’ members of the United Democratic Front – civic associations, student organisations and youth congresses, women’s groups, trade unions, church societies, sports clubs, and others, with a coverage of two million people – represented one of the most potent threats to the apartheid regime, particularly through boycotts and fearless youth participation and leadership (Lodge and Nasson, 1992). Likewise, many contemporary social movements materialised in this fashion. This has given them immediate political traction, although there are questions of sustainability when the immediate ‘threat’ that provoked the mobilisation is removed. The tradition of public-interest litigation has also survived: from the 1990s, older and newer NGOs adjusted to the legal opportunities in the new Constitution and different laws. One of the highest-profile examples was the Treatment Action Campaign (TAC), which wove litigation and mobilisation on the right to health together in a compelling manner. According to Heywood (2003: 304), the “pressure of the ongoing legal action . . . spurred further advocacy and social mobilisation – which in turn placed new pressures on government” and meant that the TAC was able to “reduce the price of medicines, prevent hundreds of thousands of HIV-related deaths”, and “force significant additional resources into the health system and towards the poor” (Heywood, 2009: 14). This continuity potentially extends beyond the nature of the origins of civil society organisations to the shape of their political stance: Marais (2010: 455) argues that the antagonistic relationship of the apartheid era has re-emerged: some of the new social movements have “ironically . . . been operating squarely within a core tradition of the anti-apartheid struggle, delegitimating one’s foes and the future with broad mobilising avowals”. Thus, some groups have clearly distinguished themselves from the ANC (and all political parties), for example with boycotts re-emerging in campaigns against voting. However, this development may be in response to the ANC’s adoption of a similar antagonistic attitude, and many civil society formations are not hostile to the ANC and choose tactics on a case-by-case basis. As Dugard demonstrates in her chapter on basic services, communities usually direct target service delivery protests at local municipalities, not the national ANC. 24

25

Of course, these tendencies are not particular to South Africa and can be seen in civil society trajectories in other post-authoritarian countries, such as Argentina (Langford, 2008). These included the Blacksash, Legal Resources Centre (LRC), and Lawyers for Human Rights (LHR) and the Centre for Applied Legal Studies (CALS), as well as more policy-oriented institutions, such as the Institute for a Democratic Alternative in South Africa, People Opposing Women’s Abuse, the Centre for Human Rights, and Earthlife Africa. Some specialist NGOs such as the Community Law Centre (CLC) at the University of the Western Cape were established in the dying days of apartheid as forward-looking advancers and protectors of human rights.

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2.2. Critical Perspectives The fusion of oppositional civil society action with socio-economic rights has attracted critique from across the political spectrum. From the left, one finds the concern that the cosmology of rights, with its particular emphasis on victimhood and legalisation, crowds out alternative and emancipatory strategies. South African sociologist Neocosmos (2009: 276) argues: Citizenship, from an emancipatory perspective, is not about subjects bearing rights conferred by the state, as in human rights discourse, but rather about people who think becoming agents through engagement as militants/activists and not politicians.

In this narrative, human rights are simply a handmaiden to political neo-liberalism, as both restrict the legitimate space for political activism and provide an overly controlled outlet for expressing frustration with democratic capitalism. Social movements like the TAC have been critiqued for rights talk that leads to a too-rapid alignment with the state and a bio-medicalisation of health politics. In the field of water, Bakker (2007: 447) claims that “individualistic, anthropocentric, statecentric” human rights have blinded organisations to “thinking about new community economies”. This critique is partly shaped by the responses of the judiciary to public-interest and individual litigation. Pieterse (2007) lambasts some of the judgments, despairing that the Court failed to endow the rights with any content. The landmark Grootboom judgment26 is faulted as the Court refused to “supplement its declaratory order with any structural mechanism through which compliance with it could be assured (Pieterse, 2007: 808). According to Pieterse and many others, the result was limited compliance with the order. This critique emerged again after the Constitutional Court dismissed the Mazibuko27 case on the right to water, although Bond (2010) acknowledges that it is too early to tell the real impact of court victories and what may be the future pattern of jurisprudence. Brand (2009) goes further, arguing that both the process and the substance of the Court’s adjudication has closed down the space for political contestation and transformative politics; accusing courts of de-politicising poverty. Beyond the Constitutional Court, Roux (2004) reveals how the Lands Claims Court has often made anti-poor judgments despite its pro-poor outlook, and Mbazira (2008) argues that the court system has generally shied away from ordering strong remedies for socio-economic rights. Other critiques begin from the opposite pole. The problem is not that rights are too weak. Rather, they are too strong, such that recourse to them becomes destructive. Rights talk and contestation tactics limit the possibility for co-operative 26

27

Government of the Republic of South Africa and Others v Irene Grootboom and Others 2001 (1) SA 46 (CC). Mazibuko and Others v City of Johannesburg and Others 2010 (4) SA 1 (CC) (Mazibuko).

Introduction

17

relationships to develop between citizens and state, communities and private actors, so that pressing socio-economic issues can be solved. One of the founders of the former People’s Dialogue on Land and Shelter, now Slum Dwellers International (SDI), has regularly expressed scepticism towards rights-based strategies: SDI is not in the habit of making press statements and seldom makes public statements of opposition to actions and decisions of other stakeholders in the urban sector. Public declarations have a habit of compromising our capacity to negotiate with and on behalf of organised shack dwellers in the SDI network, including SDI members in over seven hundred informal settlements in South Africa. (Bolnick, 2009)

A related concern is that rights foster a culture of dependency or entitlement. Former Black Consciousness leader (now wealthy venture capitalist) Mamphela Ramphele argues: “The whole approach of the post-apartheid government was to deliver free housing, free this, free the other. This has created expectations on the part of citizens, a passive expectation that government will solve problems. It has led to a disengaged citizenry . . . when people’s expectations are not met, they revert to the anti-apartheid mode of protest which is destroy, don’t pay, trash” (cited in Green, 2009: 1). This objection is symptomatic of a broader rights backlash in some quarters, for example, in religious and traditional communities to rights-based social reforms such as the extension of marriage to same-sex partners, progressive reforms on abortion, the abolition of the death penalty, and what is perceived as a ‘perpetrator-friendly’ criminal justice regime. 3. ASSESSING THE CLAIMS: A METHODOLOGY

The extent to which these critiques of rights are valid is both a methodological and an empirical question. Let us take the earlier criticised Grootboom case. Liebenberg (2008: 99) notes that “a widely misunderstood feature” of the case is that it was partly settled at an earlier stage by the parties. This prevented eviction of the community and made funding available for basic services and basic building materials. By 2005, a new emergency programme with earmarked funding for those in Grootboomlike situations was developed. However, Liebenberg concedes that the community’s situation was unsatisfactory. Others have pointed out that the problem in Grootboom was simply the litigation strategy: the community was not linked with any social movement or public-interest legal organisation unlike in other cases (Budlender, 2003; Marcus and Budlender, 2008). In Chapter 7 of this volume, a new reading of the effects of the Grootboom case is proposed, which not only brings to light new and updated evidence but also proposes that the case be compared to a range of similar such cases that have both reached the courts and originated in forced eviction struggles.

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Therefore, in terms of what constitutes rights-based strategies and impact, one needs a relatively clear theory or methodology, to which we now turn. 3.1. What are ‘Rights-based Strategies’? Identifying what makes a socio-economic ‘rights-based strategy’ is essential in addressing the first two questions for this volume – doing so provides an answer to how socio-economic rights have contributed to the choice or framing of strategies, and it isolates those actions that we want to assess for the purposes of impact. However, this definitional task is complicated. If one peers below the surface of the ever-ubiquitous phrase ‘rights based’, a multitude of different and contested meanings flood into view. Even amongst the editors of this book, it became apparent that each of us operated with a markedly dissimilar understanding of this foundational concept. The reason for this plurality is at least five-fold. The first relates to the multiple sources of human rights that may form the basis of a strategy. Broadly speaking, we can distinguish natural law or moral philosophical conceptions (human rights as ‘givens’), legal recognition (human rights as ‘deliberated’ and agreed on – whether nationally or internationally), and political struggle (human rights as ‘fought for’ or ‘achieved’).28 Differing views over the validity or relevance of these potential sources of human rights often lead to disputes over whether or not a particular strategy is rights based.29 This is additionally complicated if a group under study has a different self-understanding from that of a commentator or researcher. The second cause of divergence is the malleable nature of human rights. Linguistic, temporal, and political context can strongly influence localised understandings of ‘universal’ rights, although this is true for all ideational concepts (Koselleck, 1989; Skinner, 1998). In the case of socio-economic rights, interpretive diversity is not too hard to find. Socio-economic rights have been variously described as a quasi-socialist agenda (Mchangama, 2008; Sunstein, 1993), a liberal market-based paradigm (D’Souza, 2008), and an emerging neo-social democratic and/or welfarist model (Gready, 2009). Such characterisations can be found in the discourse between regions (compare post-communist Eastern Europe and post-authoritarian capitalist Latin America) and within countries such as South Africa. Thus, the contextual and ideological connotations of rights are likely to bear heavily on the characterisation of particular strategies or tactics.30 28 29

30

This delineation to some extent follows Dembour (2010). For example, Russell (2009) attacks UN ‘rights-based strategies’ in the water sector for failing to take account of the right to water in international law, whereas Bond (2008) attacks the same strategies for their de-politicalisation of rights. However, even when one has a clear normative perspective, classification of the strategies of ‘others’ is never unproblematic. A potpourri of understandings doesn’t necessarily imply that one is prevented from arriving at a better political or legal interpretation, but it indicates that context is likely to influence how civil society actors articulate their self-understandings of these rights.

Introduction

19

The third is that socio-economic rights themselves present a particular definitional dilemma. Historically, these rights have been understood as positive rights, requiring interventionist state action for their realisation or some form of collective action. More recently, they have been understood in a holistic fashion to include a negative dimension that requires respect and protection from the State (Eide, 1987; Shue, 1980). Like civil rights, the realisation of socio-economic rights requires certain forms of state restraint and protection within the private sphere. However, this shift in conception is not uniform amongst civil society organisations, or the authors in this book. The fourth is the fusion of rights-based discourse with other discourses in practice. In human rights code, socio-economic rights can be understood as entitlements that demand responses by a corresponding duty bearer who must be made accountable. The basic deontology and oppositional dichotomy of rights leads to common lines of thinking: the absence of rights will be primarily understood as the failure of the duty bearer; efforts from research and public statements will be oriented towards measuring and articulating that failure; and there will be calls for the duty bearer to change behaviour or action will be taken to ensure that the duty bearer develops the necessary capacity to realise its duties. It is these rights frameworks that have led to the expansion or development of ‘rights-based tools’, including fact-finding missions, rights-based budget analysis, human rights impact assessments, quantitative monitoring, and peoples’ tribunals. This normative orientation can, on its face, be distinguished from other approaches that seek to identify the causes of and solutions to poverty and inequality – for example, charity (no entitlement or duty bearer), selfempowerment (no duty bearer), customary law (mutual obligations and mediated rights), public policy consequentialism (rights can be traded off with other public goods), market liberalism (market efficiency with limited regulation and involuntary redistribution), and radical political economy and various strands of socialism (e.g. the state must be substantially reconfigured and citizens must be creative or militant in finding solutions). However, rights discourses can partly or substantially overlap with all these perspectives. Cousins and Hall, in Chapter 6 of this volume, show that the evolution of ‘relational and processual’ customary land law in rural South Africa is being subtly influenced by a constitutional rights discourse of gender equality as women struggle to secure greater tenure rights. According to Robins (2008: 11–13), individuals in South Africa use the levers and discourse of rights as ‘citizens’ (we could also add ‘humans’) when it suits them, but they are just as likely to turn to other tactics in their capacity as ‘subjects’, for example through the forms of accountability embedded in customary and patronage-based relationships. Therefore, this non-exclusive nature of rights discourse requires a nuanced definition. Finally, one way of defining ‘rights-dependent’ strategy is its tendency towards institutionalism. Analysing South African social movements, Madlingozi (2007) distinguishes ‘extra-institutional action’, such as civil disobedience, from ‘institutional’

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approaches, such as litigation. Whereas civil disobedience and street protests may occur in the language of rights, they do not necessarily seek to utilise the institutional possibilities created by rights. And in South Africa, there is a relative abundance of institutional possibilities, from litigating constitutional or legislative socio-economic rights to the use of various formal mechanisms in policy making and monitoring. It is, of course, tempting to try to put these different dimensions of socio-economic rights-based approaches into a coherent structure. Modest attempts have been made: Gready (2009) has developed a continuum of human rights approaches for development agencies and NGOs at a global level. However, the diversity of self-understandings and authorial understandings should give us pause. For this book, these contextual and subjective definitions of rights-based strategies represent the point of departure rather than the end for analysis. Before turning to impact, two clarifying comments on ‘strategy’ are necessary. Although we use the term strategy in our framing question, we should properly speak of tactics in many cases. Strategy can be understood as the autonomous space that an organisation or individual creates for itself. Tactics, in contrast, are undertaken on the space or terrain of the ‘other’ to advance the strategy. In addition, strategies tend to be of a medium- to longer-term nature, whereas tactics are customarily short term. As social movements and community formations usually have broad mandates, clearly beyond the plausible ‘space’ of rights, they will by necessity choose a diverse range of tactics. The question, therefore, is, to what extent they have chosen rightsbased tactics as opposed to alternatives? In the case of professionalised human rights NGOs or specific human rights campaigns, one can more easily speak of strategies. For these organisations, socio-economic rights strategies are often embedded in the overall objective or in the framing of their autonomous space – although it would not necessarily preclude them from making different tactical choices that go beyond the frame of rights. Additionally, we need to distinguish civil society strategies from those of the government or other actors. This is more easily said than done. Governmental behaviour may be the result of a diverse range of inputs. A particular output of government, Parliament, or the courts (e.g. legislation, policy reform) may have its roots in a civil society initiative (e.g. a campaign or lawsuit). Thus, civil society interventions end up embedded in the broader domain of actions concerning socio-economic rights. Thus, in assessing the impact of organisational strategies an appreciation of the contribution and contingency of actors is important. 3.2. Assessing Impact The attempt to measure the impact of human rights standards, judgments and approaches has gained fast currency in the last decade. Researchers have tracked the effects of treaty ratification (e.g. Hafner Burton and Ron, 2007; Simmons, 2009a), the constitutionalisation and the legislation of rights (Heymann et al., 2012; M¨akinen,

Introduction

21

2001), court judgments (e.g. Epp, 1998; Hirschl, 2004), and civil society strategies (e.g. Foweraker and Landman, 1997; Risse, Ropp, and Sikkink, 1999). This research has traditionally focused on civil and political rights, but that is changing (Gauri and Brinks, 2008; Simmons, 2009a; Yamin and Gloppen, 2011). Donors have also embraced the ‘impact paradigm’ by commissioning evaluations of civil society grantees (see the overview by Gready 2009), while civil society itself has carried out self-evaluations (Oxfam and Care USA, 2007). This growing ‘social scientification’ of human rights has rung some alarm bells. Human rights are by definition resistant to consequentialism: human rights are to be claimed, and violations are to be named regardless of whether doing so contributes to some utilitarian good. Moreover, there is the worry that the value-based dimension of human rights strategies will be lost in mechanical reductionism – the seeking of simplistic relationships between interventions and effects. This anxiety can be amplified when there is an obsession with finding short-term effects, as human rights practice tends to have its eye on the long run and broader social change (Gready, 2009). Nonetheless, it is arguable that the consequentialist task of assessing impact is valid if there is a range of actions that can be taken to secure different normative objectives (Hafner Burton and Ron, 2007). Moreover, the challenges of measuring impact are not unique to human rights practice: the same problems arise in analyses of criminal law or environmental activism. Therefore, perhaps the most important task is to be aware of the customary pitfalls and to exercise caution in the selection and use of different methods. With this in mind, we turn to the key issues in measuring impact. Defining Impact Initial studies on impact, particularly of court judgments, adopted what Rodr´ıguezGaravito (2011) calls a neorealist approach: an intervention is effective when it produces an “observable change” in the conduct of those it targets. Simmons (2009a) makes the same observation on previous research on the effects of international treaties. One of the most classic studies in this genre is Rosenberg’s (1991) The Hollow Hope. He argues that political mobilisation and broader economic, political and demographic factors not US Supreme Court judgments were responsible for major advances on civil rights. In South Africa, this neorealist perspective is most evident in the discussion of the effects of the Grootboom case (Pieterse, 2007; Swart, 2005) and the comparison of it with the seemingly more effective TAC case (Heywood, 2005). This sole focus on material impact has been challenged by sociologists such as McCann (1994). In the case of US trade union litigation on equal pay for equal work, his “primary finding” was the following: [T]he political advances in many contexts matched or exceeded the wage gains. One important advance was at the level of rights consciousness. . . . Legal rights thus

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Malcolm Langford became increasingly meaningful both as a general moral discourse and as a strategic resource for ongoing challenges to the status quo power relations. (McCann, 1994: 281)

Thus, researchers have increasingly added other impacts to their arsenal; crucial outcomes that are part of an important causal chain towards direct and sustainable impact. One should take a critical perspective to measurement over a longer period, but these effects arguably deserve the moniker of ‘impact’. In the case of socioeconomic rights, it might be the change in policy change or legal principles (Gauri and Brinks, 2008; Langford, 2003) or the stimulus for creating or sustaining a social movement or personal empowerment (McCann, 1994; Muralidhar, 2008). Such impacts can also be negative, as Wynberg and Fig show in Chapter 11 – litigation may mobilise one set of actors but demobilise another. Rodr´ıguez-Garavito (2011) argues that we need to particularly separate out what he calls symbolic impacts (and what others such as Fraser [2000] call recognition impacts) from the material impacts. This echoes the earlier work of Scheingold (1974: 9) who argued, “It is necessary to examine both the symbolic and the coercive capabilities which attach to rights.” The aim (or sometimes consequence) of rights strategies is to shift collective and self-perceptions, such as stigma attached to a marginalised group. Authors in this volume were therefore encouraged to look at some of the ‘symbolic’ dimensions of the strategies.31 One example is Jones and Chingore (Chapter 8) on health rights. They are critical of the lack of the attitudinal effects of the TAC judgment and campaign at the local level. However, Rodr´ıguez-Garavito’s (2011) matrix over-emphasises the sociological dimension of impact to the detriment of political effects, which tend to be lumped into the black box of ‘indirect material impact’. Of particular importance is transformation in power relations. Following Gaventa (2006) and others, Andreassen and Crawford (2013) urge researchers to look for a range of power transformations within civil society and in its relations with the state and other actors. They ask whether civil society formations have succeeded in transforming external power structures (‘power to’), developing alternative sources of power (e.g. through networking and alliance building – their ‘power with’), and increasing their capacity to engage with powerful actors (their ‘power within’). Quite a few authors in this book devote considerable attention to these various power dimensions. These different types of impacts can be graphically plotted for visual effect. Table 1.1 follows Rodriguez-Garavito (2011) by plotting different elements, but it adds a layer of political effects. The example used is that of litigation. It should be noted that the division between direct and indirect effects is contingent on the 31

This acceptance of ‘symbolic’ impact perhaps mocks the choice of the title of the book, in which we counter-pose substance and symbols, but this is not necessarily a contradiction. If the symbolic effects are of significance, and not just mere window dressing, then we can view them as substance.

Introduction

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table 1.1. Material and symbolic impacts (example of litigation)

Material Political

Symbolic/recognition

Direct

Indirect

New public policy as ordered by the decision Legal mobilisation places pressure on authorities to change policy Defining and perceiving the problem as a rights violation

Decision creates jurisprudence that is useful in other cases Judgment triggers organisation of activists to support litigation or implement decision Public opinion transformed about the problem’s urgency and gravity

dependent variable for assessment. What is a direct effect for an NGO litigation strategy may be only an indirect effect of the adoption of a policy or court judgment. Another way to slice impact is to separate the more intermediate impacts from the ultimate desired effects.32 As discussed, this acknowledges that social impact and transformation often first requires affecting the mediating multiple actors, policies, and discourses. Such intermediate impacts are not just outcomes, as commonly conceived in ‘programme theory’ – they play an important and ongoing role in rights realisation. Of course, one must be careful about over-emphasising these intermediate impacts if they produce little tangible gain in the long term. Intermediate effects can be divided into material (institutions and policies), political (actors and power relations), and symbolic (ideational facts such as discourses, attitudes, goals, and values) impacts, whereas long-term desired effects are reflected as the actual rights themselves, as either outcome or process entitlements. In searching for possible impacts, authors were encouraged to look for both positive and negative effects, and for unintended consequences of both varieties of effect (Horowitz, 1977). The potential negative effects are particularly investigated in the chapters on social movements, rural livelihoods, housing rights, basic services, and environmental rights. For instance, rights-based strategies undermine the political power of marginalised groups or narrow the frame of social justice. In addition, authors were prompted to consider cases of reforms in the ‘shadow’ of socio-economic rights strategies. A case may be settled before judgment and thus escape the attention of legal scholars, or a policy may be reformed before the campaign becomes fully public. Baselines The standard against which such improvements (or regressions) are measured was not set in advance for authors. Some authors use a before-and-after approach – a ‘no regime counter-factual’ – looking for changes that have occurred since the strategy 32

This comes from discussions with Dan Brinks and Peris Jones.

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was adopted. This backwards-looking and diachronic method may be problematic, however, because it ignores greater advances that might have occurred if an alternative strategy or tactic were adopted. But finding an ‘alternative regime’ is difficult because of the impossibility of randomised controlled experiment; all one can do is examine the likelihood of successful alternatives in light of opportunities and constraints. Other authors tend to use a model of ‘idealist’ expectations that measures impacts against a future expectation of effect. On its face, this approach permits a more objective assessment: contrasting the promise of a particular rights strategy with its eventual outcome. But this method suffers from the challenge of nailing down an acceptable expectation. For instance, Feeley (1992: 751) criticises Rosenberg for mounting his entire idealist expectations baseline on the public statements made by lawyers in public-interest litigation: the bombast of media sound bites may not be a reliable indicator for the real expectations of the litigants. Analysis based on idealist baselines needs to take into account political, economic, and legal constraints and the necessary time span. In this volume, the choice of baseline was left open because of natural divergences over the appropriate method. However, in developing synthetic conclusions, there is a tendency to combine them. In the conclusion to the book, we essentially adopt this fused approach: charting the post-intervention effects of strategies but assessing them in light of opportunities and constraints, whether legal, political, economic, or institutional. Causation The most challenging element of impact analysis is perhaps causation (Dessler, 1991). Many of the authors in this book are able to point to correlations between civil society action and impact. But unpicking the causal chain is more difficult. Yet where authors have tried, the results are interesting. The attribution of some ‘successes’ to civil society is less clear while the pursuit of possible chains of causation has opened up the possibility of previously unidentified impacts. In determining attribution, it is useful to develop hypotheses in advance. These provide a theoretical justification or brake on findings of correlation. In the main, we have left the development of specific hypotheses to the authors. However, there are a number of general hypotheses for the book that are inherent in the claims and critiques of socio-economic rights strategies. The principal premise is that we should expect positive material and symbolic impacts from the adoption of socio-economic rights strategies by civil society in the new constitutional dispensation (the transformative hypothesis). This claim not only has been made by South African civil society actors but also is supported by comparative quantitative evidence. Neumayer (2005) finds that the impact of the ratification of an international human rights treaty is greatest when there is a significant level of civil society activity.

Introduction

25

In responding to this prediction, we could formulate a broad counter-hypothesis based on the realist critique: impact cannot be expected because the formalism of rights makes them poor instruments in shifting power and economic relations (the realist counter-hypothesis). Institutions, from executives to courts, will narrow the space for rights claims unless significant pressure is applied to them. If this is the principal counter-hypothesis, then the task of showing causation is relatively simple. If we find correlation, causation may follow – and vice versa. However, the realist perspective also posits that although social change may occur contemporaneously, it is as a result of shifts in power relations, not rights interventions. If a social change follows a judgment or a rights-flavoured political campaign, we must ask whether there were other explanatory factors, such as political and economic changes or alternative civil society strategies, that could have achieved a better result. To disprove the counter-hypothesis, greater attention must therefore be given to the causal pathways. Some of the critiques discussed in Section 2 also touched on indirect negative impacts. Thus, we need to include two other counter-hypotheses that capture longer-term regressive consequences. The first is that rights strategies have a disempowering impact on individuals and movements as more control is granted to elites and institutions, and they crowd out alternative strategies (the disempowerment counter-hypothesis). The second is that rights create dependency or divisions in society and thus have a negative impact on social progress (the over-empowerment counter-hypothesis). 3.3. Conditions for Effectiveness The third research question involves a consideration of the deeper conditions that determine the effectiveness of socio-economic rights strategies. In this sense, there is an attempt to gesture towards possible generalisations that are more common in political science or the rules of thumbs carried by human rights practitioners. One of the most common conclusions in South Africa (and elsewhere) is that social movements are necessary for the success of rights strategies (Epp, 1998; Marcus and Budlender, 2008). A broader social base increases the chances of official, political, or judicial empathy; expands the symbolic influence of an outcome; and mobilises coalitions for implementation. However, does the rule always apply? What if the aim is to simply change the law, the affected group is deeply unpopular, or social mobilisation is expensive or time consuming? Also, are social movements or NGOs always the critical actors in the analysis? What is the role of other actors, particularly local communities and religious groups or loose associations of rights holders? A second area of interest is the general external conditions that may make rights strategies more effective. Banik (2010) argues that human rights approaches to development are less effective in rural Africa because literacy is lower and the State is

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less present, whereas the reverse appears to be the case in urban areas. Epp (2009) similarly notes that one needs to take account of the bureaucratic contingency – the extent to which a strategy relies on large as well as day-to-day decisions by government officials. Bruce Wilson (2009) goes further and argues that the supply-side design of institutions significantly affects the leverage power of civil society. Some rights may also be more difficult to push forward. Political campaigns and litigation for the right to health and education appear to be more effective than rights to housing and some forms of social security since the middle class are more likely to be co-beneficiaries for the former (Langford, 2003). Polzer Ngwato and Jinnah, in Chapter 14 of this book, question whether rights strategies are less useful for nonnationals, and Liebenberg, in Chapter 3, considers the hypothesis that advancing socio-economic rights in the private sector is more challenging than the public. 4. STRUCTURE OF THE BOOK

In seeking to answer these questions, this volume draws together authors from a wide array of disciplines, including law, social anthropology, geography, and politics. The importance of such interdisciplinary collaboration in ‘impact’ analysis is underlined by Foss Hansen and Rieper (2009: 159): “Different approaches to review practice reflect different views on what constitutes evidence and is deeply rooted in the epistemological tradition of professions and scientific basis of the education of professions.” In some cases, authors from different disciplines have paired themselves, and a number have also been deeply involved in different strategies as protagonists or advisers. A wide range of research designs and methods are used, although almost studies are comparative and qualitative in nature: they analyse different strategies for one or more socio-economic rights. The authors draw on pre-existing empirical and secondary material, but they also generate new evidence through interviews, surveys, statistical analysis, and the unearthing of lesser-known cases. The remainder of the book is structured in two substantive parts. The subsequent part, ‘Context and contestation’, sets out the context for the development of civil society strategies on a national scale, in law, politics and economy. In addition, it introduces many of the key institutional and civil society actors and provides some insight into the broader impacts. It begins narrowly with a focus on the Constitutional Court’s jurisprudence on socio-economic rights (Wilson and Dugard, Chapter 2) and the private sphere (Liebenberg, Chapter 3) before broadening to examine the role of rights and law in social movement trajectory (Madlingozi, Chapter 4) and the nature of political economy in light of the post-apartheid political configuration and the new face of trade unionism (Habib, Chapter 5). The following part, ‘Thematic areas’, contains an analysis of eight specific rights and analyses the intersection of equality and socio-economic rights for women and migrants. This coverage is certainly not exhaustive, and the book lacks a focus

Introduction

27

on education rights, children’s rights, and rights of persons with disabilities, and more attention could have been given to socio-economic strategies based on racial understandings of justice. Cousins and Hall (Chapter 6) begin by examining a broad range of strategies to improve rural land tenure, from rights-based bargaining over evictions to litigation in the Constitutional Court against the Communal Land Rights Act. Langford (Chapter 7) argues that the scholarship on the different impacts of the Grootboom case has been largely misguided and presents a revisionist picture. Jones and Chingore (Chapter 8) move the attention on health rights from the TAC to examine how the right to health for persons with HIV/AIDS plays out at the local level and whether rights-based strategies at this level are effective. Goldblatt and Rosa (Chapter 9) examine four different campaigns for improved social security that had different levels of success. Dugard (Chapter 10) digs into the wave of service delivery protests and examines the effects of protest- and litigation-based strategies for rights to water, sanitation, and electricity. Wynberg and Fig (Chapter 11) shift the attention to the socio-economic dimensions of environmental rights and follow the trajectory of strategies to tackle genetic crops and nuclear power. The idea of leveraging socio-economic rights through other rights is continued by Bentley and Calland (Chapter 12) as they examine the role and impact of the right to information in civil society strategies. Gerntholtz and MacLeod (Chapter 13) examine the intersection of women’s and socio-economic rights through four case studies on gender-based violence and the right to health. Polzer Ngwato and Jinnah (Chapter 14) take a similar approach to non-nationals by contrasting the effects of a range of strategies (some of which are not rights based). The conclusion in Chapter 15 draws together the broad themes in the volume and tries to assemble a sense of which conditions make rights strategies most or more effective.

references Alexander, Peter (2010), ‘Rebellion of the poor: South Africa’s service delivery protests – A preliminary analysis’, Review of African Political Economy, Vol. 37, No. 2, pp. 25–40. Alston, Philip (2008), ‘Foreword’, in Malcolm Langford (ed.), Social rights jurisprudence: Emerging trends in international and comparative law (Cambridge: Cambridge University Press), pp. ix–xiii. Andreassen, B˚ard A., and Gordon Crawford (eds.) (2013), Human rights, power and nongovernmental action: Comparative analyses of rights-based approaches and civic struggles in development contexts (London: Routledge). Bakker, Karen (2007), ‘The “Commons” versus the “Commodity”: Alter-globalization, Antiprivatization and the human right to water in the global South’, Antipode, Vol. 39, pp. 430– 455.

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Ballard, Richard, Adam Habib, and Imraan Valodia (eds.) (2006), Voices of protest: Social Movements in post-apartheid South Africa (Scottsville: University of KwaZulu-Natal Press). Banik, Dan (2010), ‘Support for human rights–based development: Reflections on the Malawian experience’, International Journal of Human Rights, Vol. 14, No. 1, pp. 32– 48. Berger, John (2008), ‘Litigating for social justice in post-apartheid South Africa: A focus on health and education’, in Varun Gauri and Daniel Brinks (eds.), Courting social justice: Judicial enforcement of social and economic rights in the developing world (Cambridge: Cambridge University Press), pp. 38–99. Bhorat, Haroon (2007), ‘Unemployment in South Africa: Descriptors and determinants’, available at http://siteresources.worldbank.org/INTEMPSHAGRO/Resources/ Bhorat Unemployment SouthAfrica.pdf. Bolnick, Joel (2009), ‘Slum-friendly approach: SDI letter to the Witness in response to article by Ndivhuwo Wa Ha Mabaya’, available at http://pambazuka.org/en/category/comment/ 54739. Bond, Patrick (2008), ‘Macrodynamics of globalisation, uneven urban development and the commodification of water’, Law, Social Justice & Global Development Journal (LGD), No. 1 available at http://www2.warwick.ac.uk/fac/soc/law/elj/lgd/2008 1/bond/. (2010), Fighting for the Right to the City: Discursive and Political Lessons from the Right to Water, Conference on Right to Water, Syracuse University 2010. Brand, Danie (2009), ‘Courts, socio-economic rights and transformative politics’, (Dissertation, Stellenbosch University). Budlender, Geoff (2003), ‘Interview’, in Malcolm Langford (ed.), Litigating economic, social and cultural rights (Geneva: COHRE), pp. 96–99. Butler, Anthony (2009), Contemporary South Africa, 2nd ed. (London: Palgrave Macmillan). Chatterjee, Partha (2004), The politics of the governed: Reflections on popular politics in most of the world (Leonard Hastings Schoff Lectures) (New York: Columbia University Press). Chong, Daniel (2010), Freedom from poverty: NGOs and human rights praxis (Philadelphia: University of Pennsylvania Press). Cousins, Ben, and Ian Scoones (2010), ‘Contested paradigms of “viability” in redistributive land reform: Perspectives from Southern Africa’, Journal of Peasant Studies, Vol. 37, No. 1, pp. 31–66. Dembour, Marie-B´en´edicte (2010), ‘What are human rights? Four schools of thought’, Human Rights Quarterly, Vol. 32, No. 1, pp. 1–20. Dessler, David (1991), ‘Beyond correlations: Toward a causal theory of war’, International Studies Quarterly, Vol. 35, No. 3, pp. 337–55. D’Souza, Radha (2008), ‘Liberal theory, human rights and water-justice: Back to square one?’, Law, Social Justice & Global Development Journal, Vol. 1, No. 1, available at http://www2. warwick.ac.uk/fac/soc/law/elj/lgd/2008 1/desouza/. Dugard, Jackie (2008), ‘Rights, regulation and resistance: The Phiri water campaign’, South African Journal of Human Rights, Vol. 24, pp. 588–606. Dugard, John (2004), ‘Twenty years of human rights scholarship and ten years of democracy’, South African Journal on Human Rights, Vol. 20, pp. 345–354. Du Toit, Alex (2005), Chronic and structural poverty in South Africa: Challenges for action and research, CPRC Working Paper 56, Manchester: Chronic Poverty Centre. Ebrahim, Hassen (1999), Soul of a nation: Constitution-making in South Africa (Oxford: Oxford University Press).

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Eide, Asbjørn (1987), The right to food (final report) (Geneva: United Nations). Epp, Charles (1998), The rights revolution: Lawyers, activists and supreme courts in comparative perspective (Chicago: University of Chicago Press). (2009), Making rights real: Activists, bureaucrats, and the creation of the legalist state (Chicago: University of Chicago Press). Feeley, Malcolm (1992), ‘“Hollow hopes, flypaper, and metaphors”, review of The hollow hope: Can courts bring about social change? by Gerald N. Rosenberg’, Law & Social Inquiry, Vol. 17, No. 4, pp. 745–60. Foss Hansen, Hanne, and Olaf Rieper (2009), ‘The evidence movement: The development and consequences of methodologies in review practices’, Evaluation, Vol. 15, pp. 141– 63. Foweraker, Joe, and Todd Landman (1997), Citizenship rights and social movements: A comparative and statistical analysis (Oxford: Oxford University Press). Fraser, Nancy (2000), ‘Rethinking recognition’, New Left Review, Vol. 3, pp. 107–20. Freedom of Expression Institute (2006), Annual report – 2005/2006 (Johannesburg: Freedom of Expression Institute). Gauri, Varun, and Daniel Brinks (2008), Courting social justice: Judicial enforcement of social and economic rights in the developing world (New York: Cambridge University Press). Gaventa, John (2006), ‘Finding the spaces for change: A power analysis’, IDS Bulletin, Vol. 37, No. 6, pp. 26–33. (2010), ‘Foreword’, in Lisa Thompson and Chris Tapscott (eds.), Citizenship and social movements: Perspectives from the global South (New York: Zed Books). Gelb, Stephen (2006), ‘The RDP, GEAR and all that: Reflections ten years later’, Transformation: Critical Perspectives on Southern Africa, No. 62, pp. 1–8 Government of South Africa (2008), South Africa’s country report to the Human Rights Council’s Universal Periodic Review Mechanism (Pretoria: Government of South Africa). (2005), South Africa: Millennium Development Goals Country Report, available at http://www.sarpn.org/documents/d0001538/RSA MDG report2005.pdf. Green, P. ‘100 days, 100 issues.’ City Press (19 August), available at http://152.111.1.87/argief/ berigte/citypress/2009/08/17/CP/17/Green-Zuma-Aug16.html. Gready, Paul (2009), ‘Reasons to be cautious about evidence and evaluation: Rights-based approaches to development and the emerging culture of evaluation’, Journal of Human Rights Practice, Vol. 1, No. 3, pp. 380–401. Hafner Burton, Emilie, and James Ron (2007), ‘Human rights institutions: Rhetoric and efficacy’, Journal of Peace Research, Vol. 4, No. 4, pp. 379–83. Hall, Ruth, and Michael Alibar (2010), ‘The case for re-strategising spending priorities to support small-scale farmers in South Africa,’ Working Paper 17, Cape Town: PLAAS, University of Western Cape. Handler, Joel (1978), Social movements and the legal system: A theory of law reform and social change (New York: Academic Press). Handmaker, Jeff, and Remko Berkhout (eds.) (2010), Mobilising social justice in South Africa: Perspectives from researchers and practitioners (Pretoria: Pretoria University Law Press). Heymann, Jody et al. (2012), ‘Data-based accountability mechanisms for human rights: Testing a new methodology’, Nordic Journal of Human Rights, Vol. 30, No. 3, pp. 279– 296. Heywood, Mark (2003), ‘Preventing mother to child HIV transmission in South Africa: Background, strategies and outcomes of the TAC case against the minister of health’, South African Journal on Human Rights, Vol. 19, No. 2, pp. 278–315.

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(2005), ‘Shaping, making and breaking the law in the campaign for a national HIV/Treatment plan’, in Peris Jones and Kristian Stokke (eds.), Democratising development: The politics of socio-economic rights in South Africa (Leiden: Martinus Nijhoff), pp. 181–212. (2009), ‘South Africa’s Treatment Action Campaign: Combining law and social mobilization to realize the right to health’, Journal of Human Rights Practice, Vol. 1, No. 1, pp. 14–36. Hirsch, Alan (2008), The employment challenge in South Africa: To grow, to share growth, to change path, available at www.oecd.org/dev/poverty/40600650.ppt. Hirschl, Ran (2004), Towards juristocracy: The origins and consequences of the new constitutionalism (Cambridge, MA: Harvard University Press). Horowitz, Donald (1977), The courts and social policy (Washington, DC: Brookings Institution). International Monetary Fund (2010), World Economic Outlook, available at http://www.imf. org/external/pubs/ft/weo/2010/01/pdf/text.pdf. Jain, Hirsh (2010), ‘Community protests in South Africa: Trends, analysis and explanations’ (Cape Town: Local Government Working Paper Series No. 1, Community Law Centre). Jones, Peris, and Kristian Stokke (eds.) (2005), Democratising development: The politics of socio-economic rights in South Africa (Leiden: Martinus Nijhoff). Kegley, Charles W. and Shannon L. Blanton (2011), World politics: Trends and transformations, 2010–2011 (Boston, MA: Wadsworth Cengage Learning). Koselleck, Reinhart (1989), ‘Social history and conceptual history’, Politics, Culture, and Society, Vol. 2, No. 3, pp. 308–24. Lancet (2009), ‘Health in South Africa’, Vol. 374, Special Issue. Langford, Malcolm (ed.) (2003), Litigating economic, social and cultural rights: Achievements, challenges and strategies (Geneva: Centre on Housing Rights & Evictions). (ed.) (2008), Social rights jurisprudence: Emerging trends in international and comparative law (Cambridge: Cambridge University Press). Larsen, Eirinn (1996), Gender and the welfare state: Maternalism, a new historical concept?, available at http://www.ub.uib.no/elpub/1996/h/506002/eirinn/eirinn.html. Liebenberg, Sandra (2008), ‘South Africa: Adjudicating social rights under a transformative constitution’, in Malcolm Langford (ed.), Social rights jurisprudence: Emerging trends in international and comparative law (Cambridge: Cambridge University Press), pp. 75–101. (2010), Socio-economic rights: Adjudication under a transformative constitution (Claremont, SA: Juta). Lobel, Orly (2007), ‘The paradox of extralegal activism: Critical legal consciousness and transformative politics’, Harvard Law Review, Vol. 120, No. 4, pp. 937–88. Lodge, Tom and Bill Nasson (1992), All here and now: Black politics in South Africa in the 1980s (Cape Town: David Philip). Madlingozi, Tshepo (2007), ‘Post-apartheid social movements and the quest for the elusive “new” South Africa’, Journal of Law and Society, Vol. 34, No. 1, pp. 77–98. M¨akinen, Amy (2001), ‘Rights, review, and spending: Policy outcomes with judicially enforceable rights’, European Journal of Political Research, Vol. 39, pp. 23–52. Marais, Hein (2010), South Africa pushed to the limit: The political economy of change (Claremont: University of Cape Town Press). Marcus, Gilbert, and Stephen Budlender (2008), ‘A strategic evaluation of public interest litigation in South Africa’ (Boston: The Atlantic Philanthropies). Mbazira, Christopher (2008), ‘Non-implementation of court orders in socio-economic rights litigation in South Africa’, ESR Review, Vol. 9, No. 4, pp. 2–7.

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McCann, Michael (1994), Rights at work: Pay equity reform and the politics of legal mobilization (Chicago: University of Chicago Press). Mchangama, Jacob (2008), ‘The war on capitalism: Human rights, political bias’ (London: Briefing Paper, Adam Smith Institute). Muralidhar, S. (2008), ‘India: The expectations and challenges of judicial enforcement of social rights’, in Malcolm Langford (ed.), Social rights jurisprudence: Emerging trends in international and comparative law (Cambridge: Cambridge University Press), pp. 102– 24. National Treasury (1998), National budget review (Pretoria: Government of South Africa). (2008), National budget review (Pretoria: Government of South Africa). Neocosmos, Michael (2009), ‘Civil society, citizenship and the politics of the (im)possible: rethinking militancy in Africa today’, Interface: A Journal for and about Social Movements, Vol. 1, No. 2, pp. 263–334. Neumayer, Eric (2005), ‘Do international human rights treaties improve respect for human rights?’, Journal of Conflict Resolution, Vol. 49, No. 6, pp. 925–53. Oxfam and Care USA (2007), ‘Rights-based approaches: Learning project’ (Atlanta: Care USA and Oxfam America). Pieterse, Marius (2007), ‘Eating socioeconomic rights: The usefulness of rights talk in alleviating social hardship revisited’, Human Rights Quarterly, Vol. 29, No. 3, pp. 796–822. Porter, Bruce (2009), ‘The reasonableness of Article 8(4) – Adjudicating claims from the margins’, Nordic Journal of Human Rights, Vol. 27, No. 1, pp. 39–53. Risse, Thomas, Stephen Ropp, and Kathryn Sikkink (eds.) (1999), The power of human rights: International norms and domestic change (Cambridge: Cambridge University Press). Robins, Steven (2008), Revolution to rights in South Africa: Social movements, NGOs and popular politics after apartheid (London: James Currey). Rodr´ıguez-Garavito, C´esar (2011), ‘Beyond the courtroom: The impact of judicial activism on socioeconomic rights in Latin America’, Texas Law Review, Vol. 89, pp. 1669–1698. Rosenberg, Gerald (1991), The hollow hope: Can courts bring about social change? (Chicago: University of Chicago Press). Roux, Theunis (2004), ‘Pro-poor court, anti-poor outcomes: Explaining the performance of the South African Land Claims Court’, South African Journal of Human Rights, Vol. 20, pp. 511–43. Russell, Anna (2010), ‘International organizations and human rights: Resisting, realizing or repackaging the right to water?’ Journal of Human Rights, Vol. 9, No. 1, pp. 1–23. Scheingold, Stuart (1974), The politics of rights: Lawyers, public policy and social change (New Haven, CT: Yale University Press). Seekings, Jeremy (2007), ‘Poverty and inequality after apartheid’ (Working Paper No. 2000, University of Cape Town Centre for Social Science Research, Cape Town). Seekings, Jeremy, and Nicoli Nattrass (2006), Class, race, and inequality in South Africa (Durban: University of Kwa Zulu Natal Press). Shue, Henry (1980), Basic rights: Subsistence, affluence and US foreign policy (Princeton, NJ: Princeton University Press). Simmons, Beth (2009a), Mobilizing for human rights: International law in domestic politics (New York: Cambridge University Press). (2009b), ‘Should states ratify? Process and consequences of the optional protocol to the ICESCR’, Nordic Journal of Human Rights, Vol. 27, No. 1, pp. 64–81. Skinner, Quentin (1998), ‘Rhetoric and conceptual change’, Finnish Yearbook of Political Thought, Vol. 2, pp. 60–73.

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South African Institute of Race Relations (2009), South Africa Survey 2008/2009 (Johannesburg: South African Institute of Race Relations). Sunstein, Cass (1993), ‘Against positive rights: Why social and economic rights don’t belong in the new constitutions of post-communist Europe’, East European Constitutional Review, Vol. 2, pp. 35–38. (2004), The second Bill of Rights: FDR’s unfinished revolution and why we need it more than ever (New York: Basic Books). Swardt, Corbus de (2004), Cape Town’s African Poor, Chronic Poverty and Development Policy Working Paper, No. 3, PLAAS, University of Western Cape. Swart, Mia (2005), ‘Left out in the cold? Crafting constitutional remedies for the poorest of the poor’, South African Journal of Human Rights, Vol. 21, p. 215. Szczepanski, Kallie (2008), ‘Poverty and inequality in South Africa’, http://www.helium.com/ items/1002622-poverty-and-inequality-in-south-africa. Theron, Jan and Shane Godfrey (2000), Protecting workers on the periphery (Cape Town: Working Paper No. 1/00, Institute of Development and Labour Law). Thompson, Lisa, and Chris Tapscott (2010), Citizenship and social movements: Perspectives from the global South (New York: Zed Books). Tissington, Kate, Marc Dettmann, Malcolm Langford, Jackie Dugard, and Sonkita Conteh (2008), Water services fault lines: An assessment of South Africa’s Water and Sanitation Provision across 15 municipalities (Johannesburg: Centre for Applied Legal Studies). UN Development Programme (2006), Beyond scarcity: Poverty, power and the global water crisis (New York: UN Development Programme and Oxford University Press). UN Habitat (2008), State of the World’s Cities Report 2008–2009 (Nairobi: UN Habitat). UN OHCHR (2002), Draft Guidelines: A Human Rights Approach to Poverty Reduction Strategies, 10 September 2002, available at http://www1.umn.edu/humanrts/instree/ povertyreductionguidelines.html#preface. Verwey, Len, Kate Lefko-Everett, Ahmed Mohamed, and Musa Zamisa (eds.) (2009), Parliament, the budget and poverty in South Africa: A shift in power (Pretoria: Idasa). Wegerif, Marc, Bev Russell, and Irma Grundling (2005), Still searching for security: The reality of farm dweller evictions in South Africa (Polokwane North and Johannesburg: Nkuzi Development Association and Social Surveys). Wilson, Bruce (2009), ‘Rights revolutions in unlikely places: Costa Rica and Colombia’, Journal of Politics in Latin America, Vol. 1, No. 2, pp. 59–85. Wilson, Stuart (2011), ‘Litigating housing rights in Johannesburg’s inner city: 2004–2008’, South African Journal on Human Rights, Vol. 27, No. 3, pp. 127–151. Yamin, Alicia Ely, and Siri Gloppen (2011), Litigating health rights: Can courts bring more justice to health? (Cambridge, MA: Harvard University Press).

Context and Contestation

2 Constitutional Jurisprudence The First and Second Waves Stuart Wilson* and Jackie Dugard*

1. INTRODUCTION

South Africa’s constitutional project will fail if the country’s vast inequalities and deep poverty are not addressed. This much has been acknowledged by the Constitutional Court itself: We live in a society in which there are great disparities in wealth. Millions of people are living in deplorable conditions and in great poverty. There is a high level of unemployment, inadequate social security, and many do not have access to clean water or to adequate health services. These conditions already existed when the Constitution was adopted and a commitment to address them, and to transform our society into one in which there will be human dignity, freedom and equality, lies at the heart of our new constitutional order. For as long as these conditions continue to exist that aspiration will have a hollow ring.1

Regrettably, little progress has been made in economic transformation since these words were written twelve years ago. South Africa is more unequal now than it was then (Seekings, 2007: 11). An increasingly multiracial elite has prospered, but South Africa’s (largely black) poor remain unemployed, and without access to adequate health care, education, housing, and basic municipal services. The judicial enforcement of socio-economic rights is one limited means of addressing their needs. In this chapter we consider the role South Africa’s Constitutional Court (the Court) has forged for itself in enforcing these rights,2 and in * Wilson and Dugard are the co-founders of the Socio-economic Rights Institute of South Africa (SERI), where Wilson is the executive director and Dugard is the former executive director, and currently a senior researcher. Wilson and Dugard are both visiting senior fellows at the University of the Witwatersrand’s School of Law. Both authors have been involved in litigating most of the second wave of socio-economic rights cases. Author contact information: Stuart Wilson ([email protected]), Jackie Dugard ([email protected]). 1 Soobramoney v Minister of Health, KwaZulu-Natal 1998 (1) SA 765 (CC) (Soobramoney), para. 8. 2 There have been a number of powerful and precedent-setting socio-economic rights cases below the Constitutional Court level that we do not address in this chapter. Examples include City of Cape

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essence, we examine how and to what extent litigation strategies have affected the shaping of the legal construction of constitutional socio-economic rights. Such an examination is timely. Before February 2008, the Court’s last major socio-economic rights decision was handed down in October 2004.3 That decision was itself the last of a string of six cases dating back to 1999, when the Court delivered its first socio-economic rights judgment.4 We refer to these cases as the first wave of socioeconomic rights decisions. In 2008 and 2009, the Court revisited socio-economic rights in five decisions dealing with the rights of access to water, electricity, adequate housing, and basic sanitation. These recent decisions – or the second wave,5 as we refer to them – have received little attention.6 There has been no attempt yet to sum up what the decisions mean for socio-economic rights litigation in South Africa in terms of past and future impact. This is what we hope to achieve here. We take an analytic approach to the Court’s jurisprudence.7 Our aim is to characterise the scope and limitations of the Court’s interpretations of socio-economic rights and what these mean for litigants seeking redress. In doing so, we are able to partly address the questions in this book concerning the role and impact of socio-economic strategies, in this case litigation, and the contextual possibilities and limitations in this arena. However, the chapter does not focus on the remedial powers the Court has exercised, the effectiveness of the implementation of its decisions, or the specific strategies adopted by litigants before it. Many of these issues are addressed elsewhere in this volume. Our purpose is more modest: to evaluate the meaning assigned to socio-economic rights by the Court itself and to comment on the impact that the Court’s interpretive moves will likely have on the prospects of future socio-economic rights litigation.

3 4

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6 7

Town v Neville Rudolf 2004 (5) SA 39 (C); EN and Others v Government of the Republic of South Africa and Others 2007 (1) BCLR 84 (D), and Modder East Squatters v Modderklip Boerdery (Pty) Ltd 2004 (6) SA 40 (SCA). Jaftha v Schoeman; Van Rooyen v Scholtz 2005 (2) SA 140 (CC) (Jaftha). The string of cases we refer to as first wave cases are: Soobramoney (supra n. 1); Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) (Grootboom); Treatment Action Campaign v Minister of Health (No. 2) 2002 (5) SA 721 (CC) (TAC); Khosa and Others v Minister of Social Development and Others 2004 (6) SA 505 (CC) (Khosa); Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC) (Port Elizabeth Municipality); and Jaftha (ibid.). The string of cases we refer to as second-wave cases are the following: Occupiers of 51 Olivia Road Berea Township and 197 Main Street Johannesburg v the City of Johannesburg and Others 2008 (3) SA 208 (CC) (Olivia Road); Residents of the Joe Slovo Community, Western Cape v Thubelisha Homes and Others 2010 (3) SA 454 (CC) (Thubelisha Homes); Nokotyana and Others v Ekurhuleni Municipality 2010 (4) BCLR 312 (CC) (Nokotyana); Joseph v City of Johannesburg 2010 (4) SA 55 (CC) (Joseph); Abahlali base Mjondolo v Premier of KwaZulu Natal Province and Others 2010 (2) BCLR 99 (CC); and Mazibuko and Others v City of Johannesburg and Others 2010 (4) SA 1 (CC) (Mazibuko). For exceptions, see Ray (2008); Mbazira (2009); McLean (2009); Liebenberg (2010). In doing so, we are mindful of the comments of Stuart Woolman (2008: 11) “courts are rarely moved by charges that their politics are too conservative or too progressive.” Analytic approaches to jurisprudence are most effective when directed towards exposing internal contradictions or teasing out the likely consequences of a court’s approach with which a court itself may be uncomfortable.

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In the first part of this chapter (Section 2), we review the most important features of the first-wave jurisprudence. We distinguish between the approach of the Court in enforcing positive obligations and in protecting against negative infringements of socio-economic rights. We describe the role of a substantive, contextualised reasonableness test in defining the State’s positive socio-economic rights obligations, and we show how the Court has given some a-contextual content to socio-economic rights when adjudicating negative aspects of each right. We also emphasise, as other authors have done, the extent to which the Court has borrowed from administrative law to construct a scheme for evaluating the State’s compliance with its positive obligations. In the second part of the chapter (Section 3), we show how the Court has persisted with the reasonableness standard and with its willingness to borrow from administrative law in its second-wave decisions. The Court also continued to give socio-economic rights substantive content when asked to adjudicate cases of negative infringements or the adoption of regressive measures. We point out, however, that the reasonableness standard has taken on three characteristics that appear to us to weaken the potential of socio-economic rights litigation to produce substantial benefits for poor people. First, the Court has developed the reasonableness test in an a-contextual manner, which takes little account of the lived experience of poverty. Second, the Court’s focus on the reasonableness standard appears at times to have displaced other, more determinate constitutional and statutory rights. Third, the Court’s focus on the reasonableness standard has led to a denuded conception of the role of socio-economic rights litigation in developing the State’s socio-economic rights obligations. We conclude the chapter by pointing out that the flexibility of the reasonableness standard makes the success of any socio-economic rights claim difficult to predict. This means that the inevitability risk-averse poor litigant will hesitate before turning to the Court for relief. As a consequence, the number of positive socio-economic rights claims brought by poor litigants will likely continue to be very low in the future. 2. THE FIRST-WAVE JURISPRUDENCE

In its first socio-economic rights decisions, the Court faced the dual task of finding an interpretive paradigm within which to enforce socio-economic rights while at the same time maintaining its institutional stability. As Theunis Roux (2004) has pointed out, new constitutional courts that have been quick to antagonise executives in transitional societies have seen their powers curtailed or their judges replaced. In South Africa, socio-economic policy and service delivery lay at the heart of the African National Congress’s claims to legitimacy. Members of South Africa’s new Constitutional Court may have felt that adopting a strongly critical and interventionist approach to the enforcement of socio-economic rights was incompatible with the Court’s institutional consolidation.

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In addition, socio-economic rights were, in the mid-1990s, still conceptually novel. There was very little experience in other common law jurisdictions on which the Court could draw in interpreting and enforcing general socio-economic rights guarantees contained in a constitutionally entrenched Bill of Rights.8 The only directly relevant and reasonably well-developed conceptual framework was the 1966 International Covenant on Economic, Social, and Cultural Rights (ICESCR) and the General Comments from the Committee on Economic, Social, and Cultural Rights (CESCR).9 However, at the time of the first wave of socio-economic rights cases in South Africa, the ICESCR had found limited direct application in local jurisdictions. Moreover, because South Africa had not ratified the ICESCR, it had no direct application through Section 231(2) of the Constitution of the Republic of South Africa Act 108 of 1996 (the Constitution), which states that international agreements are binding only once ratified by a resolution of the National Assembly.10 A further problem was South Africa’s conservative legal culture. Mired in traditions of judicial deference and legal positivism, South Africa’s dominant strains of legal thought were ill suited to new open-text provisions that required purposive, valueladen interpretation. The task of evaluating socio-economic policy on the basis of complex factual assumptions against substantive norms was quite alien to South African jurists and scholars. This was especially the case because all those norms required definition from scratch. 2.1. Reasonableness in Context and the Apparent Rejection of the Minimum Core For all of these reasons, it is unsurprising that the Court opted for a flexible approach that would allow it to construct the State’s positive obligations under the socioeconomic rights jurisprudence cautiously and incrementally. The reasonableness standard was adopted by the Court in Grootboom. It has been adhered to, in name at least, ever since. The test focuses on the fairness or appropriateness of government action to give effect to socio-economic rights. It leaves out of account the objective norms promoted or the specific goods and services guaranteed by the rights themselves. This approach was foregrounded in the Court’s first socio-economic rights decision, Soobramoney. There, the Court considered health-care rationing. Mr Soobramoney was denied access to dialysis because he suffered from chronic renal 8

9

10

The possible exception is the Indian Supreme Court, but there is anecdotal evidence to suggest that the South African Court did not want to emulate the Indian Supreme Court, especially insofar as its public-interest litigation record was based on advancing direct access. International Covenant on Economic, Social, and Cultural Rights (adopted 19 December 1966, entered into forced 3 January 1976), 993 UNTS 3 (ICESCR). Nevertheless, the Court can still use the ICESCR and the General Comments of the CESCR as an aid in interpreting socio-economic rights. It should be noted that, on 11 October 2012, Cabinet announced that it would ratify the ICESCR. However, at the time of publication of this book, no timetable had been provided for the ratification in Parliament.

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failure and was not a candidate for a kidney transplant. He would need kidney dialysis for the rest of his life, and his condition was incurable. The KwaZulu-Natal Department of Health’s policy was to limit access to dialysis to persons suffering from acute renal failure or chronic renal failure patients awaiting a kidney transplant. This was necessary to ensure that those whose kidneys could be completely cured were given the best chance of eventually living without dialysis. In the Court, Mr Soobramoney claimed that the Department’s decision amounted to a violation of his right, under Section 27(3) of the Constitution, not to be refused emergency medical treatment. In the alternative, he argued that it breached his right of access to health-care services in Section 27(1)(a). The Court rejected the challenge based on Section 27(3) because Mr Soobramoney sought access to treatment of an on-going, chronic condition. Section 27(3), the Court held, was intended primarily to ensure that “a person who suffers a sudden catastrophe which calls for immediate medical attention” is not denied ambulance services or access to hospitals which are, in principle, able to provide the necessary treatment (para. 20). What Mr Soobramoney claimed was, in essence, the lifting of the exclusion from State renal dialysis facilities of persons with chronic renal failure who do not qualify for a transplant. That meant requiring the State to reallocate resources to meet the cost of doing so or to ration existing resources in a manner that would prejudice those to whom renal dialysis was not merely palliative but also potentially curative. The Court declined to weigh up these competing needs explicitly. It simply found that the decision to limit access to dialysis in these circumstances was rational and that “a court will be slow to interfere with rational decisions taken in good faith by the political organs and medical authorities whose responsibility it is to deal with such matters” (para. 29). It is relatively easy to justify the Court’s general conclusion. Health-care rationing is widespread and, on some level, unavoidable. On any account of the right of access to health-care services, it would be difficult to fault the view that, absent a challenge to the adequacy of the allocation of resources to a particular service, it is far better to treat those who can be cured than those who cannot. However, the Court’s approach was indicative of its reluctance to delve into a substantive account of what entitlements fall within the scope of the right of access to health-care services, and particularly how these may affect the allocative decisions taken by the State. To be justifiable, a decision to limit access to health care need only be “rational” and taken honestly by a lawful authority. In principle, this statement of the law left any claimants under Section 27 no better off than they would have been had they challenged the decision to deny them a health-care benefit in terms of existing legislation using the administrative common law in force at the time. In its second socio-economic rights decision, however, the Court was more expansive in its approach. This is partly because it faced not a resource allocation decision taken in the context of an existing State programme but a failure to have a programme at all. The lacuna identified by the Court in Grootboom was the failure

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to take any steps to assist those in desperate and immediate need of housing. The State’s failure to take steps was isolated and analysed by reference to the new Constitutional value of reasonableness. Consistent with its approach in Soobramoney, the Court rejected the contention – at least for the purposes of that case – that the right to housing in Section 26(1) had any interpretive content independently of the duty to take reasonable measures under Section 26(2) of the Constitution (paras. 34–46; see also TAC para. 39). In particular, the Court rejected an interpretive approach urged by the amicus curiae on the basis of the idea that socioeconomic rights had a minimum core content, consisting of a basket of goods and services to which all rights bearers were entitled. This approach was based on the CESCR’s General Comment 3 on the nature of States parties’ obligations, under the ICESCR.11 Rather, the Court found that the State’s positive obligation under Section 26 of the Constitution was primarily to adopt and implement a reasonable policy, within its available resources, which would ensure access to adequate housing over time. Much of the Grootboom judgment is devoted to defining reasonableness. The Court held that, to qualify as “reasonable”, State housing policy must r Be comprehensive, coherent, and effective (para. 40) r Have sufficient regard for the social economic and historical context of widespread deprivation (para. 43) r Have sufficient regard for the availability of the State’s resources (para. 46) r Make short-, medium-, and long-term provision for housing needs (para. 43) r Give special attention to the needs of the poorest and most vulnerable (para. 42) r Be aimed at lowering administrative, operational, and financial barriers over time (para. 45) r Allocate responsibilities and tasks clearly to all three spheres of government (para. 39) r Be implemented reasonably, adequately resourced, and free of bureaucratic inefficiency or onerous regulations (para. 42) r Respond with care and concern to the needs of the most desperate (para. 44) r Achieve more than a mere statistical advance in the numbers of people accessing housing, by demonstrating that the needs of the most vulnerable are catered for (para. 44) On their own, however, these criteria are insufficient to define a reasonable housing policy, as they do not state what the ends of such a policy are. The Court’s innovation in Grootboom lay in its remedy for this difficulty. The Court held that the reasonableness of State measures is determined by the context in which they are taken. The Court found that the minimum core content assigned socio-economic 11

Committee on Economic, Social, and Cultural Rights, General Comment No. 3 on the Nature of States Parties’ Obligations (5th Session, 1991), U.N. Doc. E/1991/23. The Court considered and rejected the approach again in TAC at paras. 26–39.

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rights in General Comment 3 of the CESCR may possibly be relevant to what is reasonable in any given context, but it would not be determinative of the State’s obligations. The question is whether state policy, having regard to the CESCR, the principles set out here, and the context in which it is sought to be implemented, is a reasonable measure capable of giving effect to the right. The Court’s shift in Grootboom towards a contextualised account of reasonableness was significant. The interpretive scheme it developed allowed it to steer clear of developing concrete entitlements of universal application while at the same time setting a meaningful standard by which to evaluate State action. This standard could take account of what Sandy Liebenberg (2010: 59) has called the “values and interests” promoted by the right in a specific context. The Court in Grootboom decided that it was contextually unreasonable not to at least have a policy that would provide relief for people with “no access to land, no roof over their heads, and who were living in intolerable conditions or crisis situations” (para. 99). On the face of it, the Grootboom judgment obliged the State, within its available resources, to provide temporary shelter for those who have been evicted or who face imminent eviction and who cannot find alternative shelter with their own resources. They are the most vulnerable members of society. Although the Court had shied away from the idea that Section 26 could give rise to a right to housing on demand, its focus on the need for the State to alleviate the plight of those in desperate circumstances suggested that, in certain situations, Section 26 could ground a fairly immediate claim for shelter. Because of this, Grootboom is arguably the farthest reaching of the Court’s socio-economic rights decisions. It has resulted in the adoption of a national emergency housing policy.12 It has also led to a line of decisions in which poor people have successfully resisted evictions that would lead to their homelessness and have claimed alternative shelter from the State (Wilson, 2009: 270–90). In our view, it represents the high-water mark of the Court’s socio-economic rights juris prudence. 2.2. Negative Obligations and the Content Approach It is instructive to compare the Court’s interpretive approach in positive obligations cases with cases dealing with a negative invasion of a socio-economic right. In Jaftha, the Court considered whether the attachment and sale in execution of residential property without judicial oversight constituted a violation of the right of access to adequate housing. The Court found that it did. It declared Section 66(1)(a) of the Magistrate’s Court Act 32 of 1994 unconstitutional because it allowed residential property to be declared executable without judicial oversight. The failure to provide judicial oversight was, the Court held, an unjustifiable limitation of the right of access to adequate housing guaranteed in Section 26(1) of the Constitution. 12

See Volume 4, Part 2, of the South African National Housing Code (2009). See discussion of the implementation and broader impact of this judgment in chapter 7, by Langford, in this volume.

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The Court rejected a finding by Mr. Justice Van Reenen, in the High Court, that the right of access to adequate housing protected occupation of only residential property, and that, as a result, a mere deprivation of ownership could not amount to a violation of the right. The Court held instead that ownership was an incident of security of tenure. Relying directly on the extensive international law on the minimum core content of the right to housing – which had been treated with circumspection in Grootboom – the Court held that security of tenure is constitutive of the right of access to adequate housing. Accordingly, to deprive a person of security of tenure, or to weaken a person’s existing tenure rights, is to infringe his or her right of access to adequate housing. Such an infringement may be justified under Section 36 of the Constitution, but the fact remains that tenure rights form part of the right of access to adequate housing (paras. 25–34). A similar approach appeared to motivate the Court’s decision in Port Elizabeth Municipality. In that case, the Court considered an application for leave to appeal against a decision of the Supreme Court of Appeal (SCA). The SCA set aside an eviction order on the basis that it would not be “just and equitable” within the meaning of Section 4(7) of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE Act) to relocate a community of sixtyeight informal settlers to a place where they would not enjoy a measure of tenure security. In an expansive decision that provided a sensitive, generous, and pro-poor interpretation of the duties of local authorities in eviction cases, the Court held that it would not be just and equitable to evict a community without prior consultation with its members and without at least considering the possibility that they could be provided with tenure security on any relocation site (para. 55). Although it is true that the Court in Port Elizabeth Municipality was not directly considering the content of Section 26 of the Constitution, the decision is clearly an attempt to interpret the PIE Act through the prism of Section 26 of the Constitution and the Grootboom decision. The Court’s concern for the need to provide the occupiers with some measure of tenure security is clear throughout the judgment (see especially paras. 17 and 18). Port Elizabeth Municipality accordingly reinforces the view that security of tenure is a constituent of the right of access to adequate housing. 2.3. The Administrative Law Paradigm Aspects of the Court’s first-wave jurisprudence have led some commentators to suggest that the Court has adopted an “administrative law model” for the enforcement of socio-economic rights.13 In its attempt to balance the need to hold the State accountable to the Constitution with deferring to its socio-economic policy choices, 13

For a critique of the administrative law model for socio-economic rights, see Bilchitz (2002, 2003); Brand (2003); Liebenberg (2004); and Liebenberg (2008). For an endorsement of the administrative law model (especially just after Grootboom), see Sunstein (2004).

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the Court has borrowed from administrative law in constructing a framework for evaluating compliance with the State’s positive obligations (Brand, 2003). We consider that the contextual reasonableness test set out earlier, read with the Court’s willingness to give socio-economic rights some content in cases of negative infringement, is an indication that the Court’s jurisprudence cannot simply be reduced to an application of an adapted conception of administrative law. However, there are aspects of the Court’s jurisprudence that indicate that it has been willing to deploy the administrative law concepts of rationality, reasonableness, and procedural fairness in testing State policy. Soobramoney, TAC, and Khosa are examples of this in that they all focus on the rationality of conscious decisions to exclude classes of persons from socio-economic programmes. In TAC, the Court was asked to consider the reasonableness of government policy in facilitating access to antiretroviral treatment to prevent mother-tochild transmission of HIV. It found that the decision to limit access to antiretroviral treatment to a few test sites was irrational because there was no compelling reason to not provide treatment where it was medically indicated outside a limited number of research and testing sites. Likewise, Khosa characterised the exclusion of South African permanent residents from State social assistance programmes as irrational (paras. 53 and 85). The Court in that case was guided by the impact of the exclusion on the applicants’ right to equality. The right to social security, the Court held, vests in “everyone”. To exclude permanent residents from its social security programme affected the applicants’ rights to dignity and equality in material respects. Without sufficient reason being established to justify such an impairment of the applicants’ equality rights, the exclusion was irrational and unconstitutional. Soobramoney, as we have pointed out, was about the rationality of a health-care rationing decision. In Port Elizabeth Municipality, the Court appeared moved by the lack of adequate consultation with the occupiers before an eviction order was made against them. The deployment of administrative law concepts in this way has provided another device with which the Court can evaluate State policy without creating novel entitlements or designing new tests to which socio-economic policy may be subjected. It has also created an apparent overlap between the constitutional and administrative law concepts of reasonableness. Both the constitutional and administrative law concepts of reasonableness require more than a simple connection between means and ends; they admit of a range of possibly reasonable decisions or policies within which the court will defer to the executive.14 The question a court will ask in both cases is, on the facts placed before it has the State adopted measures or taken a decision that can reasonably achieve the relevant legislative or constitutional purpose?15 Yet there is a crucial difference. In the case of the exercise of administrative power, the legislation in terms of which the decision is taken will normally define the 14

15

Compare, for example, Grootboom, para. 41, with Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs 2004 (4) SA 490 (CC) (Bato Star), para. 49. Again, compare Grootboom, para. 41, with Bato Star, para. 48.

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purpose of the exercise of the power, and the interests to be taken into account, with some precision. This is almost never the case when considering the reasonableness of measures to give effect to socio-economic rights, because the purpose of the rights in question, or the needs they exist to satisfy, are not defined in the Constitution. The Court must identify them through interpretation. In doing so, the Court may (and, as we argue here, often does) consider the content of legislation passed to give effect to various aspects of individual socio-economic rights. However, the Constitution assigns the power to determine the meaning of socio-economic rights not to the legislature but to the Court itself, and the Court has appeared reluctant to exercise this power with any enthusiasm. In TAC, Soobramoney, and Khosa, the Court was able to come to a conclusion by weighing up the facts before it and making a value judgment as to whether the measures under scrutiny were rational or reasonable. It did so without importing any particular conception of the purposes served by the rights to health-care services and social assistance. Jaftha and Grootboom are different, because they saw the Court appeal to second-order principles, which gave some definition and purpose to the right of access to adequate housing. These principles were that a limitation of tenure security always must be justified (in Jaftha) and that the desperately poor must be provided with temporary shelter (in Grootboom). Outside these two decisions, the Court’s borrowings from administrative law have assisted it in forging remedies for socio-economic rights claimants without much transformative jurisprudential adjudication, at least at the interpretive level.16 It is accordingly clear that the reasonableness standard is sufficiently flexible to allow the Court to defer to the executive’s policy choices (as it did in Soobramoney) but also, if it chooses, to define the purposes served by specific socio-economic rights much more closely (as it did in Grootboom). 3. THE SECOND-WAVE JURISPRUDENCE

The returns to effort for the individual claimant in the first wave were relatively low. As the Court itself held in TAC, a socio-economic right does not “give rise to a self-standing and independent positive right” enforceable independently of whether the State’s policies to give effect to the right in question are reasonable (para. 39). This inevitably means that the prospects for an individual litigant approaching the court to claim specific benefits are particularly bleak, and the incentive to litigate is relatively low. As a consequence, socio-economic rights claims in the second wave have been exclusively brought by, or with the co-operation of, a small number of movements and organisations seeking to vindicate group interests. They have also required an 16

The remedial, as opposed to interpretive, record of the Court is beyond the scope of this chapter (see e.g. Pillay, 2004).

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expert command of the detail of State policy, to frame a case by reference to the reasonableness standard. In addition, movement building and strategising around legal processes within and between these groups is necessarily time consuming. This might explain why there was an apparent hiatus – almost three and a half years – between the Jaftha and the Olivia Road decisions. In the second wave, the Court persisted with its reasonableness standard. However, much greater emphasis was placed on developing the procedural aspects of socioeconomic rights rather than on deepening the contextual reasonableness standard set out in Grootboom. On the contrary, the second-wave decisions have seen the reasonableness standard applied, more often than not, to justify the Court’s deference to the executive’s socio-economic policy choices. In addition, the Court often chose to reach its desired outcome by enforcing procedural rights through both directing the implementation of pre-existing policy and directing the State to keep promises it was alleged to have made to the claimants in a particular case. Where it can, the Court has also relied on applicable legislation and policy to give content to rights. The Court has, though, avoided providing much direction to the State on the impact of particular socio-economic rights on the design and implementation of policy that gives effect to positive obligations. 3.1. Meaningful Engagement Nowhere was this habit more in evidence than in the case of Olivia Road. In this case several hundred desperately poor people (the occupiers) approached the Court to set aside an order that they be evicted from buildings in the inner city of Johannesburg that the City of Johannesburg alleged were unfit for habitation. The occupiers conceded that conditions in the buildings were far from ideal, but that the buildings presented their only alternative to homelessness. The City had refused to offer the occupiers any alternative accommodation. In those circumstances, the occupiers said that an order for their eviction should not have been granted (as it was by the SCA).17 The occupiers also pointed out that the municipality’s eviction proceedings against them were part of a broader strategy to evict an estimated sixty-seven thousand people from 235 allegedly unsafe properties in the inner city of Johannesburg. The City had no plan in place to find alternative accommodation for these people. The occupiers claimed that the absence of such a plan was a violation of Section 26(2) of the Constitution and that the Court should declare so. They also asked the Court to supervise the formulation of a reasonable housing policy by means of a structural interdict. By the time the matter reached the Court, the City had taken some steps to develop a policy that might create housing opportunities for the poor in the inner city, but 17

See City of Johannesburg v Rand Properties (2007) (6) SA 417 SCA.

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it did very little to suggest that it intended to provide alternative accommodation to poor people it intended to evict in future. The Court was astute to note the very first defence the occupiers raised to the municipality’s eviction application. This was the procedural unfairness of the decision to evict. The City had taken no steps to ascertain the identity or housing needs of the occupiers. Nor had it sought representations from them on what the consequences of an eviction might be before taking the decision to evict. This, coupled with the City’s indications at the hearing of the matter that it may be willing, finally, to consider the occupiers’ demand for alternative shelter, led the Court to issue its first engagement order. The order required the municipality and the occupiers to “engage meaningfully” with one another in an attempt to resolve the dispute. Subsequently, an agreement was reached in terms of which the occupiers agreed to vacate the buildings in return for secure tenure in a municipally managed property elsewhere in the inner city. Rent was to be calculated at 25 per cent of the occupiers’ income, and the occupiers were allowed to stay in the property until permanent accommodation became available to them. This agreement, the Court held, obviated the need for a decision on the constitutionality of the municipality’s failure to plan and implement a policy to meet the housing needs of the broader class of sixty-seven thousand persons whom the occupiers claimed to represent. Instead, the Court’s judgment was devoted almost entirely to the importation of the concept of “meaningful engagement” into socio-economic rights jurisprudence. The Court held that meaningful engagement is a constituent of reasonableness and accordingly a procedural requirement imposed by Section 26(2) of the Constitution. Meaningful engagement is, in essence, a particularly strong form of the administrative common law principle of audi alterem partem. The Court held in Olivia Road that, before seeking an eviction, an organ of State will normally be required to show that it has engaged “individually and collectively” with the occupiers who may be rendered homeless by an eviction and to have “respond[ed] reasonably” to the needs and concerns articulated in the process. The Court was reluctant to define what a reasonable response to potential homelessness is, but it stated that the range of reasonable responses stretched from providing permanent alternative housing to the occupiers to providing no alternative accommodation at all (para. 18). The Court’s decision in Olivia Road is a classic example of the proceduralisation of socio-economic rights through the adoption of administrative law norms. Rather than ground the right to housing in substantive norms, the Court chose instead to create the space in which concrete entitlements could possibly be negotiated and implemented by agreement. This is a significant resource for poor people, but its exercise relies on them being well organised, appropriately resourced, and properly informed about the possibilities inherent in a process of engagement. It also requires

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the State to act in good faith with sympathy and respect towards the poor. As the Court held: Engagement has the potential to contribute towards the resolution of disputes and to increased understanding and sympathetic care if both sides are willing to participate in the process. People about to be evicted may be so vulnerable that they may not be able to understand the importance of engagement and may refuse to take part in the process. If this happens, a municipality cannot walk away without more. It must make reasonable efforts to engage and it is only if these efforts fail that a municipality may proceed without appropriate engagement. It is precisely to ensure that a city is able to engage meaningfully with poor, vulnerable or illiterate people that the engagement process should preferably managed by careful and sensitive people on its side. (Para. 15)

The problem is that without a sense of what the community engaged with can reasonably expect to receive from the State, engagement may often degenerate into the enforcement of a pre-determined policy that is inappropriate to the needs of the community engaged with. This is especially so if the State is not sensitive to the needs of the relevant community and is not willing to respond flexibly to those needs. Although engagement, as a prerequisite to an eviction, provides an important resource around which a community may mobilise, it is not sufficient to ensure that housing appropriate to the community’s needs is provided. 3.2. Giving Effect to Promises and Expectations This problem was thrown in to sharp relief by the decision of the Court in Thubelisha Homes. In this case, twenty thousand people (the occupiers) appealed to the Court to set aside an order for their eviction granted by the Cape High Court. The eviction was sought by Thubelisha Homes, the minister of housing and the member of the Executive Committee (MEC) for Housing in the Western Cape, all of whom argued that the eviction was necessary to implement the N2 Gateway housing project. The project involved the development of formal housing for low-income families on the site of the Joe Slovo informal settlement where the occupiers resided. Thubelisha Homes, the housing company employed by the State to implement the project, applied for the occupiers’ eviction to implement the project. They tendered to provide temporary accommodation at a new housing development near Delft, some fifteen kilometres away from the settlement, where the occupiers could live until they were provided with permanent housing. Crucially, Thubelisha Homes did not undertake to ensure that the relocated occupiers would be provided with permanent housing within the N2 Gateway project. Thubelisha Homes was unable to say where or when permanent accommodation would be provided to the occupiers after they had been relocated.

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The occupiers’ case was divided into three broad assertions. The first was that they were not unlawful occupiers and therefore could not be lawfully evicted. The second was that the eviction was being sought to avoid giving effect to their legitimate expectation that 70 per cent of the houses to be provided in the upgraded settlement at the N2 Gateway project would be allocated to them. The third was that the eviction order would not be just and equitable for two reasons. First, the eviction was sought without meaningful engagement, particularly on the option of upgrading the Joe Slovo settlement in situ without relocation. Second, the eviction would, in any event, cause considerable hardship, because the site to which they were to be relocated lacked social amenities, such as hospitals and clinics. It also took them far away from their existing access to jobs and livelihoods. In most cases, the cost of commuting back to the occupiers’ jobs every month would likely double. Given the meagre incomes already earned by the occupiers, these costs could add up to half or more of their monthly incomes. The Court apparently found the Thubelisha Homes case difficult. It took ten months to decide the matter and delivered five separate judgments. In the end, however, all the members of the Court agreed to an order that authorised eviction and relocation on conditions that staggered the eviction over forty-five weeks, sought to ensure that sufficient schools and clinics were provided at the relocation site, and laid down stringent conditions on the nature of the temporary houses and available services at Delft. The order also specified that the alternative accommodation to be provided must be ready and available for occupation at the point of eviction. Finally, the Court directed the government to give effect to the occupiers’ expectations that 70 per cent of the houses to be constructed at Joe Slovo would be allocated to the people relocated to Delft. This was also pursuant to a concession made by counsel for Thubelisha Homes at the hearing of the matter. The Court also required the government to engage with the individual households in occupation of Joe Slovo and to report back to the Court at regular intervals on the progress with the implementation of the order. The eviction order has now been discharged.18 In the period between the hearing of the case and the handing down of the judgment, political control of the Western Cape Provincial Government (and accordingly control over the funding of subsidised housing projects in that province) passed from the African National Congress (ANC) to the Democratic Alliance (DA). The DA had always been critical of the implementation of the N2 Gateway project and soon agreed to revisit the relocation to Delft. Largely because of the difficulty it would have in complying with the stringent conditions set out in the order of the Court, the provincial government soon agreed to look again at upgrading the settlement in situ – an option it had previously told the Court was impossible but one that the applicants had sought all along. 18

Residents of Joe Slovo Community, Western Cape v Thubelisha Homes and Others 2011 (7) BCLR 723 (CC).

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The Court dealt with the Thubelisha Homes application explicitly on the basis of reasonableness. All the judges of the Court reduced the question of whether the eviction would be just and equitable to the question of whether it constituted a reasonable measure to give effect to the right of access to adequate housing. That question itself seemed to have been split into two parts. The first was whether, in the absence of meaningful engagement, the eviction was reasonable. The second was whether the eviction was reasonable in light of the broader housing policy it was intended to implement. The Court answered both these questions in the affirmative, but its judgment was notable for the limited consensus among the judges as to why the eviction was considered reasonable. All five separate judgments agreed that the fact that adequate housing (as defined by the Court’s order) was to be provided at Delft, and that the occupiers’ expectation to be allocated 70 per cent of the N2 Gateway units to be provided at Joe Slovo would be given effect to, went a long way towards establishing the reasonableness of the eviction, even though there had been no meaningful engagement. Deputy Chief Justice Moseneke, Justice Yacoob, Justice Sachs, and Justice O’Regan appeared to consider this dispositive of the question of reasonableness. They accepted that the relocation would be “an inevitably stressful process” (para. 399) and would “entail immense hardship” (para. 107). However, as Yacoob J put it, “There are circumstances in which there is no choice but to undergo traumatic experiences so that we can be better off later” (para. 107). Moseneke DCJ appeared explicitly to hold that the eviction would not be reasonable if there were no prospect of the occupiers returning to Joe Slovo after the completion of the N2 Gateway project (para. 138). Notable in these judgments is the inability of the reasonableness test, as formulated and applied in the context of the Thubelisha Homes case, to account for or adequately incorporate the admittedly drastic consequences the eviction would have for the occupiers. These hardships are dealt with summarily or ignored altogether. They were, in the main, connected to the difficulty the occupiers would have sustaining their incomes, access to livelihoods, jobs, and social services after the relocation. They were largely written off as unfortunate consequences of policy choices over which the Court was unable to exercise any scrutiny (para. 381). Moseneke DCJ’s judgment did acknowledge the need for “special concern where settled communities face the threat of being uprooted to other neighbourhoods distant from employment, schooling and other social amenities” (para. 165). However, this concern seemed only to add up to a need to ensure that the negative consequences of the eviction were ameliorated insofar as was practical and that adequate alternative accommodation was provided, consistent with the expectations created by the State’s housing plans for Joe Slovo. Only the judgment of Justice Ncgobo appeared to address head- on the hardships caused by Delft’s distant location. He held that, on the facts of the Thubelisha Homes case, these hardships were justified. However, he suggested that this would not always

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be so. The government is under a duty to “have regard to the proximity of schools and employment opportunities when it seeks to relocate people for the purposes of providing them with decent houses” (para. 256). Where it is not possible to choose a location with adequate access to social amenities and employment, the government must do what it can to ameliorate the impact that eviction to a poor location will have on the community “by providing access to schools and other public amenities, as the government has done in this particular case” (para. 257). For the most part, however, the Court appeared to conceive of its role as one of requiring the government to implement the best possible version of the policy it had presented. Reasonableness was about giving effect to the expectations of the Joe Slovo community that were consistent with that policy. It was not about delving into the question of whether the policy was appropriate to the community’s objectively established needs. Yet the fact that the Court was willing to hold the government to its own account of what the policy was meant to provide, and to ensure that it was implemented accordingly, ultimately proved decisive. As noted already, for practical and political reasons, the government has, to date, found itself unable to implement the Court’s detailed and exacting order. Accordingly, the Joe Slovo community has been given another opportunity to press for an in situ upgrade. The Court’s approach was similar in another case involving an informal settlement: Nokotyana. In this matter, occupiers of the Harry Gwala informal settlement near Johannesburg approached the Court to compel the provision of toilets and high-mast street lighting pending a decision on whether the settlement was to be upgraded in situ or relocated to formal housing. The High Court had, by agreement between the parties, ordered the municipality to expand provision of potable water in the settlement and then dismissed the occupiers’ claims to toilets and street lighting. Before the matter reached the Constitutional Court, the municipality adopted a new policy in which every informal settlement within its jurisdiction would be provided with one chemical toilet per ten households. The occupiers criticised this policy as unreasonable in two respects. First, it was claimed that expecting ten households to share one toilet compromised the occupiers’ dignity. Second, it was argued that the occupiers should be given ventilated improved pit latrines (VIPs), which was their preferred choice of toilet. By the time the case reached the Court, the national minister of housing, the director-general of housing, and the MEC for housing in Gauteng province had been joined to the proceedings. In light of the adoption of municipality’s new policy on the provision of chemical toilets to informal settlements, the minister, the director-general, and the MEC offered to provide additional funding to ensure that one chemical toilet be provided to every four households in the Harry Gwala settlement. The occupiers and the municipality both rejected this offer on the basis that it would be unfair to other informal settlements within the municipality’s jurisdiction (paras. 53–54).

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The occupiers also persisted in their demand for VIP toilets, provided at a frequency of one or two toilets per household. In buttressing this argument, the occupiers relied on Chapters 12 and 13 of the National Housing Code.19 Chapter 12, adopted in response to the Court’s decision in Grootboom, regulates the provision of funds to municipalities to deal with emergency housing situations by providing temporary shelter and access to services. Chapter 13 deals with the upgrading of informal settlements. The occupiers also placed general reliance on multiple provisions of the Constitution. The Court did not decide the issues placed before it by the occupiers. It noted that reliance on Chapter 12 of the National Housing Code was misplaced because the occupiers found themselves not in a state of emergency but rather in an ongoing state of need. Reliance on Chapter 13 of the code was misplaced because that instrument provided for the installation of interim services only once a decision to upgrade an informal settlement had been taken. Having found that neither Chapter 12 nor Chapter 13 created the rights relied on by the occupiers, the Court found that they could not rely directly on the Constitution either, because they had not challenged the failure of Chapter 12 or 13 to provide for interim services to an informal settlement pending a decision on whether to upgrade it (paras. 37–44). Although the occupiers challenged the new policy introduced on appeal, the Court did not entertain this. The Court did, though, identify what it considered one of the “root causes of the applicants’ plight” (para. 61). This was the failure of the MEC to take a decision on whether to upgrade the settlement in terms of Chapter 13. The Court directed that a decision be taken within fourteen months of the date of its order (para. 62). At the time of writing, some two months after the deadline to take a decision in terms of the Court’s order had passed, the MEC had still not done so. It was understood that a decision would be made by July 2011. However, high-mast street lighting had been installed at the settlement.20 The Court also noted the municipality’s new policy (undoubtedly developed as a consequence of the litigation) and the municipality’s intention to implement it speedily. The Court may have been persuaded to incorporate the new policy into its order, had the occupiers agreed to its implementation (paras. 51–52). Nokotyana is another example of the Court giving effect to socio-economic rights by identifying pre-existing government policy and requiring its prompt implementation. The case also illustrates the Court’s reluctance to exercise its power to evaluate policy by reference to a Grootboom-type standard of substantive reasonableness. To be fair, the way in which the occupiers’ case was framed limited the Court’s ability 19

20

The National Housing Code has since been repackaged. For the “new” Emergency Housing Policy and Informal Settlement Upgrading Policy (which are substantially the same) see Volume 4 of the South African National Housing Code, 2009. Personal communications with Moray Hathorn (attorney to the residents) and Marie Huchzermeyer (a researcher following the case), 22 February 2011.

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to do this. The reasonableness test, even at its most expansive, was never intended to address the questions the occupiers’ legal representatives chose to place before the Court. The reasonableness test simply cannot tell us how many toilets should be provided per informal settlement households pending a decision to upgrade. Nor is it really intended to assist in deciding whether VIPs or chemical toilets are best suited to give effect to constitutional rights. All it can do is tell us whether the measures actually taken are sufficient. The applicants in Nokotyana framed their case as a demand for specific, prescribed measures to be taken. There was little by way of an attack on the sufficiency of measures actually taken by the State. A court that limits itself to enquiring into the reasonableness of State action will find it difficult to respond to a claim for a detailed prescription of steps to be taken to give effect to a particular right. In any event, the Court declined to take into account the contextual evidence placed before it on the relative suitability of VIP and chemical toilets, ruling the evidence inadmissible. It did so on the grounds that it fundamentally changed the issues between the parties, making the Court one of first and final instance in relation to a new policy adopted after the hearing in the High Court (para. 19). 3.3. Creating New Entitlements The Court has persisted with its approach in creating new entitlements in the context of adjudicating alleged negative infringements of rights. In Joseph, the Court was asked to decide whether the tenants of a block of flats in Ennerdale, to the south of Johannesburg, were entitled to notice before the City’s electricity utility, City Power (Pty) Ltd (City Power), disconnected their supply. The tenants had paid their rent, which included electricity, to the owner of the property, who controlled the building’s electricity account with City Power. Despite payment from the tenants, the owner allowed substantial arrears to run up on the account. City Power accordingly disconnected the property. It gave the owner notice of its intention to do so but did not notify the tenants – nor did the owner. The tenants argued that their electricity supply was unlawfully disconnected because the right of access to adequate housing implied a right to electricity in appropriate circumstances. Whatever those circumstances were, a disconnection of an existing electricity supply to a residential property affected their constitutional right of access to adequate housing. At the very least, they argued, they were entitled to procedural fairness before the decision to disconnect them was taken. This should include notice and a reasonable opportunity to make representations. City Power argued that the tenants had no right to electricity that was enforceable against it. While the owner of the property had a right to receive electricity in terms of his contract with City Power (and accordingly the right to notice before the disconnection of their supply), tenants had no such right in the absence of a direct contractual nexus between them and City Power.

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The Court did not decide whether the right to housing implied a right to electricity. It did, though, find that the duty of the Johannesburg Municipality to provide services in terms of Section 152 of the Constitution, Sections 4(2)(f) and 73 of the Municipal Systems Act 32 of 2000, and Section 9(1)(a)(iii) of the Housing Act 107 of 1997 all implied a correlative general public law right to receive electricity on the part of the tenants, and the public generally (paras. 34–40). Whatever the obligations imposed by this right, on the facts of the Joseph case, City Power was at least obligated to observe the basic precepts of procedural fairness before disconnecting the tenants’ supply. The creation of a constitutional right to electricity in Joseph was a significant advance in the interpretation and enforcement of socio-economic rights. The positive obligations correlated to the right are likely to be at least as circumscribed and difficult to define and enforce as they are with other socio-economic rights. However, the Joseph judgment opens up a range of new possibilities for holding electricity providers accountable. At the very least, the steps taken by electricity utilities, which might affect existing supply, will have to be taken in a procedurally fair manner. In addition, it is possible that, in the future, utilities will attract the obligations to act reasonably in deciding whether or not to disconnect an electricity supply, by at least considering the consequences of doing so. The Joseph decision further raises the possibility of reviewing inaccurate billing practices and unjust disconnections that follow from them (paras. 41–47). Indeed, during 2010, the Socio-Economic Rights Institute of South Africa secured the reconnection of electricity to 420 low-income residents of Soweto, relying directly on the Joseph precedent.21 New entitlements were also created in Abahlali. There, the Court was asked to consider the constitutionality of the KwaZulu-Natal Elimination and Prevention of Re-Emergence of Slums Act 6 of 2007 (Slums Act). Section 16 of the Slums Act authorised the MEC for housing in KwaZulu-Natal to issue a notice directing that eviction proceedings be instituted by municipalities and landowners against all informal settlements listed in the notice within a period determined by him. The applicants argued that Section 16, read together with various other provisions of the Slums Act, constituted a regressive measure that retarded access to adequate housing, contrary to Section 26(2) of the Constitution. In theory, it allowed the MEC to set a deadline for the eviction of every single unlawful occupier in the province in one notice. The applicants brought their challenge to Section 16 before the MEC had purported to act in its terms. This was because they dared not wait until a notice requiring their eviction had already been issued. They argued that Section 16 was facially incompatible with Section 26 of the Constitution. In addition, however, they tendered into evidence a report on widespread unlawful evictions carried out by the 21

Residents of Chiawelo Flats v Eskom Holdings Limited and City of Johannesburg unreported case no. 2010/35177, http://www.seri-sa.org/images/stories/order 10sep10.pdf.

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eThekwini Municipality.22 They argued that Section 16 of the Slums Act would merely encourage more State officials to take the law into their own hands. They also argued, on the basis of the report, that Section 16 was incapable of implementation consistent with the applicants’ constitutional rights. The Court agreed that Section 16 was unconstitutional but decided that it need not have regard to the report tendered into evidence. It held that Section 26 of the Constitution, the PIE Act, and the cases decided under these provisions had constructed a “dignified framework for the eviction of unlawful occupiers” and that Section 16 was, on its face, incapable of an interpretation consistent with the framework (para. 122). In reaching this conclusion, the Court suggested that eviction must normally be a measure of last resort, after all reasonable alternatives have been explored through engagement (paras. 113–15). The Court also suggested that where it is possible to upgrade an informal settlement in situ, this must be done (para. 114). In addition, Yacoob J’s dissent affirmed that the obligation to meaningfully engage fell on private parties seeking eviction, and not just on the State, as had previously been thought (para. 69). Although these principles might have been considered implicit in the jurisprudence on evictions before the Abahlali decision, their articulation by the Court confirmed relatively novel entitlements for poor people seeking to affirm their housing rights. After Abahlali, the failure to consider an upgrade of an informal settlement (as opposed to an eviction or relocation) probably renders the decision to evict or relocate reviewable at administrative law. Poor people will also be able to propose alternatives to their eviction if these exist. These alternatives must now be explored before the institution of proceedings. The Court was driven to make these principles explicit precisely because it was required to say exactly how the Slums Act infringed Section 26 of the Constitution. In doing so, it was required to develop, albeit incrementally, the scope and content of the right itself. 3.4. Reasonableness and Deference: Mazibuko and Others v City of Johannesburg and Others Mazibuko illustrates how the flexibility of the reasonableness test has allowed the Court to defer the executive’s socio-economic policy choices to a degree that appears to us to be inappropriate. In this case, the Court had to consider whether the City of Johannesburg’s Free Basic Water (FBW) policy – which limited FBW provision to six kilolitres of water per household per month regardless of household size – was reasonable in terms of Section 27(1)(b) of the Constitution, which guarantees 22

Business as Usual? Housing Rights and Slum Eradication in Durban, South Africa, Centre on Housing Rights and Evictions (September 2008).

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everyone’s right of access to sufficient water. It also had to consider whether the installation of pre-payment water meters as a means of delivering a residential water supply was lawful. The applicants were five poor households from Phiri, Soweto, who brought their case in the public interest. They argued that the City’s FBW policy was unreasonable because it was insufficient to meet the basic needs of poor, multi-dwelling households. There are two main reasons for this argument. First, it was based on a calculation of twenty-five litres per person per day, whereas the international standard in the CESCR’s General Comment 15 on the right to water suggests that fifty litres per person per day is the minimum amount of water to meet basic human health and dignity needs.23 Second, the six-kilolitre FBW policy was based on a calculation of eight persons per household (defined as the number of persons living on a stand), whereas in Phiri there were commonly fifteen or more people per household, as most stands had backyard shacks that also had to share the one monthly FBW allocation. It was common cause that the twin effect of the installation of pre-payment meters and implementation of the FBW policy was that the applicants’ water supply ran out around halfway through each month. This happened in circumstances in which they could not afford to pay for more water to meet their basic washing, cooking, drinking, health, and sanitation needs. In challenging the pernicious effects of these measures, the applicants’ main arguments were the following: r The FBW policy was not a reasonable policy capable of giving effect to the applicants’ right of access to sufficient water. r The decision by Johannesburg Water (Pty) Ltd (Johannesburg Water) to install pre-payment water meters in Phiri amounted to administrative action and, because it was taken without consultation, violated Section 4(1) of the Promotion of Administrative Justice Act 3 of 2000. r The automatic disconnection of pre-payment water meters violated Section 4(3)(b) of the Water Services Act 108 of 1997 (Water Services Act), which requires reasonable notice and an opportunity to make representations before the limitation or discontinuation of water services. The Court rejected these claims. Its judgment was remarkable for its apparent retreat from the contextual reasonableness standard adopted in Grootboom. It attached little significance to the facts that the applicants were desperately poor, had inadequate access to water especially in the context of waterborne sanitation, and suffered greatly as a result. These undisputed facts relating to the applicants’ circumstances received almost no attention in the judgment. The Court did not ask whether the City had a 23

Committee on Economic, Social, and Cultural Rights, General Comment No. 15, The Right to Water (29th Session, 2002), U.N. Doc. E/C.12/2002/11 (2003), n. 14.

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reasonable programme that was “capable of facilitating the realisation of the right” in the context of its implementation (Grootboom, para. 41). It focused instead on a plethora of bureaucratic data on the difficulties the City said it faced in supplying water to Soweto. Liebenberg (2010: 470) has noted that, whereas the Grootboom reasonableness standard required State conduct to be “assessed in the light of the rights entrenched in the first subsections” of Section 27, in Mazibuko, the Court was only prepared to use reasonableness as an over-flexible, abstract, and decontextualised standard of governance. In Mazibuko, this rendered the reasonableness standard – on which the applicants had based much of their claim – virtually meaningless. Having adopted this approach, the Court was easily able to conclude that the City’s FBW policy fell “within the bounds of reasonableness”. It did so largely on the basis that in the course of the lengthy litigation, the City had changed features of the policy. The Court took this to be evidence of flexibility (paras. 9 and 93).24 It was able to reach this conclusion by admitting vast quantities of new evidence tendered by the City on appeal. This was a novel departure from the approach the Court usually adopts and from the especially strict approach it took to the new evidence sought to be introduced by both of the main parties in Nokotyana. It was explained in the judgment by reference to the special nature of socio-economic rights litigation, in which the introduction of the evidence was said to promote the values of responsiveness, accountability, and openness (para. 161). The Court also rejected the applicants’ contention that the decision to install pre-payment water meters should have been preceded by either a public enquiry or a notice and comment procedure as required by Section 4 of the Promotion of Administrative Justice Act. It did so by interpreting the executive powers of a municipality extremely broadly, finding that the decision to install pre-payment water meters amounted to executive rather than administrative action (para. 131). This is inconsistent with the interpretation of executive action advanced by O’Regan J in, for example, Permanent Secretary, Department of Welfare, Eastern Cape v Ed-U College (PE) (Section 21) Inc.25 The provision of water services, including the conditions under which water services may be disconnected or limited, is comprehensively regulated by the Water Services Act. Accordingly, decisions related to the installation of pre-payment water meters clearly constitute decisions relation to the implementation of a pre-existing policy framework, codified in legislation. These decisions constitute “policy formulation in a narrow rather than a broad sense” (para. 21). This kind of policy formulation in the “narrow” sense, so the Court held in Ed-U College, is administrative rather than executive action. 24

25

In paragraph 95 the Court held that, had the City not increased the amount of FBW available to some residents, it “may well have been concluded that the policy was inflexible and therefore unreasonable”. Yet the Court did not inquire whether the increased allocation, as part of the City’s indigent policy, was operational and readily available or whether it met the basic water needs in the context of Phiri. Permanent Secretary, Department of Welfare, Eastern Cape v Ed-U College (PE) (Section 21) Inc 2001 (2) SA 1 (CC).

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In addition, the Court held that pre-payment meters did not result in unlawful disconnections. Explaining that the “ordinary meaning of ‘discontinuation’ is that something is made to cease to exist”, the Court found: [T]he water supply does not cease to exist when a pre-paid meter temporarily stops the supply of water. It is suspended until either the customer purchases further credit or the new month commences with a new monthly basic water supply whereupon the water supply recommences. It is better understood as a temporary suspension in supply, not a discontinuation. (Para. 120)

It is difficult to understand the Court’s finding that a water supply “does not cease to exist” when a pre-payment meter “temporarily stops” the supply. That line of reasoning relies on a form of sophistry that appears to us inappropriate to the task of characterising the practical effect of State policy on access to fundamental human needs. That aside, in coming to this conclusion, the Court had to virtually ignore the use of the word limit in the Water Services Act. The Act provides that the City may not “limit or discontinue” a water supply without notice and an opportunity to make representations. Had the Court given consideration to the meaning of the word limit, it may have been driven to the conclusion that its meaning must encompass ‘temporarily suspend’. On the Court’s reasoning, the Water Services Act’s procedural protections are rendered nugatory in most cases, because all disconnections of an existing metered water supply can be considered “suspensions” rather than “discontinuations” or “limitations”. In this context, it is worth remembering that, as Yacoob J held in his dissent in Abahlali, “words should not be ignored” (para. 61). These features of Mazibuko – the decontextualised reasonableness test, the relaxation of rules relating to new evidence, the failure to apply the Court’s own prior jurisprudence on executive action, and the Court’s restrictive approach to the concept of a discontinuation or limitation of a water supply – lead us to conclude that the Court’s dismissal of the applicants’ claims cannot be explained simply by reference to the submissions they advanced. The Court’s attitude was, in our view, a function of the Court’s consciousness of the limited role it has adopted in the enforcement of socio-economic rights. The Mazibuko judgment contains strong and overt statements of deference to the executive (para. 61). However, the approach the Court adopts to the purpose of socioeconomic rights litigation – at least insofar as positive obligations are concerned – towards the end of its judgment is perhaps the clearest indicator of the limitations under which the Court has placed itself. There, the Court holds that the purpose of socio-economic rights litigation is served simply because the State has been given an opportunity to justify and revise its policy. Litigation is less a process through which claimants enforce entitlements than a particularly elaborate (and expensive) form of participation in policy making (paras. 159–69). If it persists in future decisions, this conception of the purpose of socio-economic rights litigation – coupled with

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the minimal interpretive meaning the Court is willing to give to the State’s positive obligations – makes the prospect of future positive obligations litigation an unedifying one for the poor. 3.5. New Trends in Reasonableness From the analysis of second-wave cases set out here, we suggest that reasonableness review, as an interpretive instrument, has undergone at least three changes. First, it appears to have been shorn of any potential to define the interests and goods protected by the right in question.26 This is partly because the Court has shown itself unwilling to take into account contextual evidence of the difficulties the poor face in accessing socio-economic goods. In Mazibuko, it ignored such evidence. In Abahlali and in Nokotyana, it ruled such evidence inadmissible (in Abahlali because the evidence was not relevant to the interpretive exercise that the Court considered itself seized with; in Nokotyana because the evidence had not been properly introduced or integrated into the argument). In Nokotyana and Mazibuko, considering this evidence might have changed the result, if the Court had stuck to the letter of its decision in Grootboom. In the second wave’s positive obligations decisions, the Court has developed reasonableness more by assertion than by analysis. Moreover, the concept of reasonableness has become too flexible and has enabled the Court to defer too easily to the executive. Second, reasonableness review has even displaced some of the more substantively developed administrative law rights. In Mazibuko, the right to a hearing before disconnection was all but ignored because the Court found the City’s policy to fall “within the bounds of reasonableness”. In Thubelisha Homes, the right to meaningful engagement was significantly watered down because the Court was convinced (after much agonising) that the housing policy to be implemented in that case was reasonable overall. Third, the Court appears to characterise socio-economic rights litigation on positive obligations as doing little more than presenting the State with an opportunity to reformulate its plans in a manner which the Court will find reasonable (Mazibuko paras. 159–69). It does not, apparently, present poor litigants with the opportunity to expand and give meaning to the idea of reasonableness by reference to their own needs, purposes, and lived reality. This is unfortunate. To expect the poor (and those who represent them) to put up with lengthy and costly litigation for the sake of giving the State an opportunity to reformulate its policy on paper will have a chilling effect on future litigation – especially if the Court will order the State neither to implement its reformulations nor to show that they have actually been implemented.27 26

27

A similar point is made by Pieterse (2007), in which the author refers to the “emptiness” of the socio-economic rights jurisprudence of the Court. The Court declined to order the implementation of revised policy in Mazibuko and Nokotyana.

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4. CONCLUSION: REASONABLENESS ENTRENCHED

For better or worse, it seems that reasonableness review is here to stay. The Court has demonstrated itself immune to many ingenious attempts to get it to set normative standards towards which the State must strive in the progressive realisation of socioeconomic rights. However, socio-economic rights litigation can still achieve some progressive impact. The Court is willing to give rights content when dealing with a negative infringement (it prefers to say what is being infringed, not whether the infringement is reasonable), or when requiring the State to take steps provided for in, or consistent with, its own policy, or when expanding on the content given to the right by applicable legislation.28 We consider that litigators in future cases would be well advised to colour their claims by references to the concrete entitlements contained in legislation. Claims based on the failure to implement existing policy or to give effect to policy are, in our view, the most likely of socio-economic rights claims to succeed. Claims that seek to impose a duty to act fairly in the implementation of socio-economic programmes, and in limiting access to those programmes, also stand good prospects of success. It may also be possible to use the content the Court has given to socio-economic rights in cases of negative infringement to give definition to future claims seeking to impose positive obligations on the State. The real difficulty is in compelling the State to respond to the objective needs of the poor in formulating and implementing policy. What needs must be met and what purposes served for a policy to be considered a reasonable measure to give effect to socio-economic rights? The Court has simply not considered this question since Grootboom. There is no indication that the Court is willing to revisit it in the near future. In considering the possibility of pursuing litigation to give effect to positive socio-economic rights obligations, the poor are, it seems, left with the rather thin statement of the Court’s role set out in paragraph 67 of Mazibuko: Thus the positive obligations imposed upon government by the social and economic rights in our Constitution will be enforced by courts in at least the following ways. If government takes no steps to realise the rights, the courts will require government to take steps. If government’s adopted measures are unreasonable, the courts will similarly require that they be reviewed so as to meet the constitutional standard of reasonableness. From Grootboom, it is clear that a measure will be unreasonable if it makes no provision for those most desperately in need. If government adopts a policy with unreasonable limitations or exclusions, as in Treatment Action Campaign No 2, the Court may order that those are removed. Finally, the obligation of progressive realisation imposes a duty upon government continually to review its policies to ensure that the achievement of the right is progressively realised. 28

Although, as we point out, in Mazibuko, the Court all but ignored the substantive entitlements contained in the Water Services Act.

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This passage makes it fairly obvious that, where the State takes no steps or excludes a class of persons from its policy, the Court will intervene. Beyond this, the passage begs more questions than the Court is willing to answer. The biggest one is exactly what the constitutional standard of reasonableness is. This is important, because it allows poor people to predict in advance whether litigating positive rights obligations bears any prospect of success. The failure to give any contextual meaning to reasonableness hinders the poor in making these choices. Without a “substantive analysis of the normative purposes and values underpinning the relevant socio-economic rights” (Liebenberg, 2010: 467), the options open to future socio-economic rights litigants are likely to be limited. Socio-economic rights litigation will, however, continue to have some potential, especially when combined with other progressive strategies and forms of organisation, to achieve pro-poor outcomes. Those strategies and outcomes, and how they have been pursued, are examined in the chapters that follow. Postscript: City of Johannesburg v Blue Moonlight Properties As this book went to press, the Court handed down its decision in City of Johannesburg v Blue Moonlight Properties.29 We deal with the decision in the briefest terms here. We do so to make three points. First, the decision may be analysed squarely within the boundaries of the interpretive approach to socio-economic rights we impute to the Court in this chapter. Second, Blue Moonlight nonetheless advances the Court’s housing rights jurisprudence in crucial respects. Third, the outcome in Blue Moonlight underscores the power and the peculiarity of the interpretive approach the Court adopted in Grootboom. The main question before the Court in Blue Moonlight was whether a policy of the City of Johannesburg that excluded poor people evicted by private landowners from the provision of temporary shelter was consistent with Section 26(2) of the Constitution. The City’s policy was to provide shelter to people it removed from unsafe buildings but to exclude from consideration for such shelter people evicted by private landowners. This was despite the existence of the national Emergency Housing Policy (itself a response to Grootboom), intended to benefit everyone facing housing crises as a result of eviction. The City had adopted a narrow interpretation of the Emergency Housing Policy, which, it said, precluded it from funding emergency housing for those evicted from their homes by private landowners. The Court found that the line drawn by the City amounted to an unreasonable exclusion, in breach of Section 26(2) of the Constitution. This was so because “to the extent that eviction may result in homelessness, it is of little relevance whether removal from one’s home is at the instance of the City or a private property 29

[2011] SA ZACC 33 (Blue Moonlight). Stuart Wilson appeared as one of the counsel in this case.

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developer”.30 We consider that this finding is simply another application of the ‘unreasonable limitation or exclusion’ category of socio-economic rights violation we identify above. The Court also rejected the City’s interpretation of the Emergency Housing Policy. It instead favoured an expansive interpretation of the policy that entitled people evicted by private landowners to shelter, provided at the City’s expense, if need be.31 This is a clear example of the Court requiring the State to give full effect to its existing policies – an interpretive move we also identify in this chapter.32 However, in several crucial respects, Blue Moonlight does advance the Court’s housing rights jurisprudence. It makes clear that evictions that lead to homelessness will not normally be permitted.33 It confirms the duty of the State to make shortto medium-term emergency accommodation available to poor people who would otherwise be rendered homeless by eviction.34 A property owner’s right to possession of the property is limited until the State is reasonably able to provide an alternative to people who would otherwise be rendered homeless by an eviction.35 Perhaps most significant, Blue Moonlight separates the consideration of whether the state has an obligation to fulfil a socio-economic right from whether it has planned and budgeted to do so. It is not possible for the State to rely on the absence of a budget for a particular obligation to claim that it lacks the resources to fulfil that obligation: “In other words, it is not good enough for the City to state that it has not budgeted for something, if it should indeed have planned and budgeted for it in the fulfilment of its obligations.”36 Nonetheless, after Blue Moonlight, the advanced state of South Africa’s housing rights jurisprudence stands in greater contrast than ever to the normative emptiness of its other socio-economic rights. Whether this will change depends on whether the Court is willing to rediscover the conceptual resources it deployed in Grootboom. That decision, alone among the Court’s socio-economic rights judgments, developed a substantive principle of general application that gave free-standing content to the right of access to adequate housing. Blue Moonlight, though significant, can be understood at its most basic as a mere elaboration of the Grootboom principle. Because the Court has declined to give the other socio-economic rights litigated before it the substance it gave the right to housing in Grootboom (at least when giving effect to the positive obligations the rights impose on the State), the scope for doing so is neither broader nor narrower than it was before Blue Moonlight was decided. 30 31 32

33 34 35 36

Ibid., para. 95. Ibid., para. 67. This is, in itself, no criticism of the Court. The case was litigated self-consciously within these boundaries. The rights claimants in Blue Moonlight got exactly what they asked for. Blue Moonlight, paras. 39–40; see also para. 95. Ibid., para. 67. Ibid., para. 40. Ibid., para. 74.

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references Bilchitz, David (2002), ‘Giving socio-economic rights teeth: The minimum core and its importance’, South African Law Journal, Vol. 118, pp. 484–581. (2003), ‘Towards a reasonable approach to the minimum core: Laying the foundations for future socio-economic rights jurisprudence’, South African Journal on Human Rights, Vol. 19, pp. 1–26. Brand, Danie (2003), ‘The proceduralisation of South African socio-economic rights jurisprudence or “What are socio-economic rights for?”’, in Henk Botha, Andr´e Van der Walt, and Johan Van der Walt (eds.), Rights and democracy in a transformative constitution (Stellenbosch: Sun Press), pp. 33–56. Liebenberg, Sandra (2004), ‘The interpretation of socio-economic rights’, in M. Chaskalson et al (eds.), Constitutional law of South Africa (Cape Town: Juta), Ch. 33: 1–66. (2008), ‘South Africa: Adjudicating social rights under a transformative constitution’, in Malcolm Langford (ed.), Social rights jurisprudence: Emerging trends in international and comparative law (Cambridge: Cambridge University Press), pp. 75–101. (2010), Socio-economic rights: Adjudication under a transformative constitution (Cape Town: Juta). Mbazira, Christopher (2009), Litigating socio-economic rights in South Africa: A choice between corrective and distributive justice (Pretoria: Pretoria University Law Press). McLean, Kirsty (2009), Constitutional deference, courts and socio-economic rights in South Africa (Pretoria: Pretoria University Law Press). Pieterse, Marius (2007), ‘Eating socioeconomic rights: The usefulness of rights talk in alleviating social hardship revisited’, Human Rights Quarterly, Vol. 29, No. 3, pp. 796–822. Pillay, Kameshni (2004), ‘Addressing poverty through the courts: How have we fared in the first decade of democracy?’, paper presented at the conference ‘Celebrating a Decade of Democracy’, Durban, 23–25 January, organised by the Foundation for Human Rights. Ray, Brian (2008), ‘Occupiers of 51 Olivia Road v City of Johannesburg: Enforcing the right to adequate housing through “engagement”’, Human Rights Law Review, Vol. 8, No. 4, pp. 703–13. Roux, Theunis (2004), ‘Legitimating transformation: Political resource allocation in the South African Constitutional Court’, in Siri Gloppen, Roberto Gargarella, and Elin Skaar (eds.), Democratization and the judiciary: The accountability function of courts in new democracies (London: Frank Cass). Seekings, Jeremy (2007), ‘Poverty and inequality after apartheid’ (Working Paper No. 200, Centre for Social Scientific Research, University of Cape Town, Cape Town). Sunstein, Cass (2004), The second Bill of Rights: FDR’s unfinished revolution and why we need it more than ever (New York: Basic Books). Wilson, Stuart (2009), ‘Breaking the tie: Evictions, homelessness and a new normality’, South African Law Journal, Vol. 126, No. 2, pp. 270–90. Woolman, Stuart (2008), ‘Category mistakes and the waiver of constitutional rights: A response to Deeksha Bhana on Barkhuizen’, South African Law Journal, Vol. 125, No. 1, pp. 10–24.

3 Socio-Economic Rights Beyond the Public-Private Law Divide Sandra Liebenberg*

1. INTRODUCTION

One of the major paradigms in which human rights law is embedded, and from which it is only gradually emerging, is a disparity between public and private accountability for human rights violations.1 This is a manifestation of the general dichotomy between public and private law in many domestic legal systems, including South Africa, that are influenced by classic legal liberal ideas (Cockrell, 1993; Liebenberg, 2010: 59–63). A pervasive feature of classical liberal legal ideology is the denial of the constitutive nature of public power in private law and the maintenance of a conceptual and institutional divide between public and private law (Seidman, 2006: 578). Feminist legal scholars have provided a particularly rich and incisive critique of this distinction and have highlighted its deeply gendered character (see, for example, Olsen, 1983). Although the South African Constitutional Court (the Constitutional Court) has explicitly warned against attaching consequences or inferring solutions from the concepts of public law and private law when the validity of such distinctions are being seriously questioned,2 the influence of the dichotomy between public and private law is still very much evident in the jurisprudence of the constitutional era. One of its manifestations are the weaker forms of accountability imposed on private actors for the normative commitments of the Bill of Rights. As is argued later in this chapter, this is particularly apparent from the courts’ lack of engagement with the implications of socio-economic rights in the application and development of contract law. * H.F. Oppenheimer Professor in Human Rights Law, University of Stellenbosch Law Faculty. I thank Khulekani Moyo, Tarryn Bannister, Christine Botha, and Hugo Murray for research assistance on this chapter. I am also grateful to Beth Goldblatt, Geo Quinot, Jackie Dugard, and the other editors of this collection for helpful comments and suggestions. Author contact information: [email protected]. 1 For recent developments in this regard, see generally Clapham (2006) and Bilchitz (2008). 2 Fose v Minister of Safety and Security 1997 (3) SA 786 (CC), para. 57.

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In many contemporary market-based societies, the private sphere is associated with domestic institutions, such as the family, and with economic institutions, such as the marketplace, in which it is assumed that equal, autonomous individuals transact freely with one another. Traditionally these ‘private’ institutions are regarded in liberal theory as the ‘natural’ institutions for distributing social and economic resources. A key challenge for human rights scholarship is the development of a conception of human rights that is responsive to the underlying power relationships and impacts of resource exchanges on areas traditionally designated as ‘private’. Socio-economic rights present a unique opportunity to promote a substantive interpretation of all human rights as opposed to a formalistic conception based on abstract constructs and reasoning. A formalistic approach is unresponsive to the political and social context and power relations in society. It reinforces the classic liberal view that State institutions are the main threat to individual autonomy and that the main purpose of human rights law is to restrain State institutions from interfering in spheres traditionally regarded as ‘private’, such as the family and the market. In contrast, a substantive approach to human rights seeks to advance and protect the core values and objectives of this tradition. The animating ethos of this tradition entails the pursuit of a range of political, social mobilisation, and other strategies aimed at transforming both public and private relations and institutions in a more egalitarian, participatory and dignity- and freedom-enhancing direction.3 This approach is attuned to the potential impact of all exercises of power on human rights, whether they emanate from State or non-State actors. However, socio-economic rights scholarship, litigation, and advocacy in South Africa has primarily concentrated on developing the normative and remedial apparatus for imposing duties on organs of State. Many of the landmark socio-economic rights cases – Soobramoney,4 Grootboom,5 Treatment Action Campaign,6 Khosa,7 Olivia Road,8 Joe Slovo,9 and Mazibuko10 – have required the Constitutional Court to develop a model for reviewing the conduct, legislation, and programmes of various organs of the State for compliance with the positive and negative obligations imposed by socio-economic rights (for an analysis of this jurisprudence, see chapter 2, by Wilson and Dugard). Less sustained attention has been paid to the implications of socio-economic rights for the vast areas of law – whether common law or indigenous or customary 3 4 5 6 7

8

9

10

See Klare (1998: 150). Soobramoney v Minister of Health, KwaZulu-Natal 1998 (1) SA 765 (CC) (Soobramoney). Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) (Grootboom). Minister of Health v Treatment Action Campaign (No 2) 20002 (5) SA 721 (CC) (TAC). Khosa v Minister of Social Development; Mahlaule v Minister of Social Development 2004 (6) SA 505 (CC) (Khosa). Occupiers of 51 Olivia Road, Berea Township and 197 Main Street, Johannesburg v City of Johannesburg 2008 (3) SA 208 (CC) (Olivia Road). Residents of Joe Slovo Community, Western Cape v Thubelisha Homes 2010 (3) SA 454 (CC) (Joe Slovo). Mazibuko and Others v City of Johannesburg 2010 (4) SA 1 (CC) (Mazibuko).

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law – classified as ‘private law’. This body of law is traditionally concerned with the legal regulation of the relationships between private parties – whether in the sphere of family law (e.g. responsibility towards children, marriage, inheritance), property law, contractual dealings, and liability for wrongful acts (delict). The designation of these bodies of law as ‘private’ is misleading, as, in fact, it is public power – largely in the form of legislation, judicial interpretation of such legislation, and the development of the common law – which creates, controls, and legitimates the relevant rules and doctrines. Traversing the more familiar and accepted terrain of promoting duties of public accountability and responsibility for human rights norms was perhaps understandable as an initial move to garner legitimacy for socio-economic rights as human rights. However, the consequences of replicating and reinforcing the dichotomy between public and private law are significant. The effect of this dichotomy is frequently to immunise many private actors and relationships from human rights scrutiny and evaluation. It also conceals the distributional function of common law doctrines, rules, and precedents (the ‘background rules’) (see Williams, 2002: 113). In addition, this approach undermines the ability of human rights law to challenge the commodification of basic services in an era in which many public services are being outsourced to private companies and public utilities are being privatised or made subject to market mechanisms such as costs recovery (see De Feyter and Gomez Isa, ´ 2005; Kok and Langford, 2004; Pieterse, 2003).11 In analysing the role and impact of socio-economic strategies by civil society actors, this chapter seeks to make two contributions. The first is to illustrate the extent to which litigation has reconfigured or transformed legal relationships within the private sphere, and the second is to provide a sense of the potentially unexplored territory by civil society organisations. The first section of this chapter lays the groundwork for an analysis of the application of socioeconomic rights in private law by reviewing the relevant constitutional provisions and the jurisprudence pertaining in general to the application of the Bill of Rights to private conduct and law in South Africa. A brief historical and comparative analysis of the horizontal application of fundamental rights is included in this section. The following section examines to what extent socio-economic rights have influenced the development of common law12 and customary (indigenous) 11

12

These entities would fall within the broad definition of “organ of State” in Section 239 of the Constitution, which includes functionaries or institutions “exercising a public power or performing a public function in terms of any legislation”, and would also be subject to the administrative justice rights in Section 33 of the Constitution and the Promotion of Administrative Justice Act 3 of 2000. Nevertheless, the point remains that a strong conceptual divide between public and private law is likely to shield the ‘commercial’ practices of such entities from rigorous scrutiny in terms of the normative commitments of human rights law. The South African common law consists of an uncodified body of rules derived from Roman-Dutch civil law that has been developed through South African case law. Elements of English law were also introduced and had a strong influence in certain spheres of the common law. Thus, the South African common law is a mixed legal system.

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law13 in three traditional areas of private law: personal and family law, property law, and contract law. It also explores the implications of introducing a socio-economic rights dimension in such cases. Within the constraints of this chapter it has not been possible to review all the applicable areas of law and jurisprudence, and the selection is intended to illustrate broad trends as opposed to being a comprehensive survey. The chapter concludes by evaluating the influence of socio-economic rights in the selected three areas of private law and by highlighting some of the implications and challenges in developing strategies for the advancement of socio-economic rights beyond the public-private divide. 2. APPLICATION OF HUMAN RIGHTS TO PRIVATE LAW AND CONDUCT UNDER THE CONSTITUTION

The 1996 South African Constitution departs from a classic liberal model of constitutionalism in which fundamental rights guarantees are primarily applicable to State institutions. The classic example in this regard is the United States, where the conduct subject to constitutional challenge must be attributable to the State in some way for the Bill of Rights to be applicable (see Ellmann, 2001: 445). The African National Congress and Pan African Congress, as well as many trade unions and civil society organisations, did not wish to see the vast inequalities of private power and access to resources – the colonial and apartheid legacy in South Africa – shielded from constitutional scrutiny. In an important decision under the transitional 1993 Constitution, Du Plessis v De Klerk,14 the Constitutional Court held that the fundamental rights in Chapter 3 of the transitional constitution did not generally have direct application to legal disputes between private parties. However, Section 35(3) of the transitional Constitution (the precursor to Section 39(2) of the 1996 Constitution) provided for the development of common law rules in the light of the ‘spirit, purport and objects’ of the fundamental rights chapter. Commentators have regarded this interpretation as insufficient to ensure that the rights in the Bill of Rights were binding on private parties and that they could thus be held accountable for human rights violations. 13

14

Customary law is not defined in the Constitution but is defined in the Recognition of Customary Marriage Act 120 of 1998: the “customs and usages traditionally observed among the indigenous African peoples of South Africa and which form part of the cultures of those peoples” (Section 1). During the colonial and apartheid eras in South Africa, customary law was extensively codified in legislation such as the Black Administration Act 38 of 1927 and various provincial codes. This not only resulted in a distorted version of customary law but also inhibited the inherent flexibility of customary law to evolve in response to changing political, social, and economic contexts and community values. This resulted, in the words of the Constitutional Court, in “formalisation and fossilisation of a system which by its nature should function in an active and dynamic manner” (Bhe v Magistrate Khayelitsha; Shibi v Sithole; South African Human Rights Commission v President of the Republic of South Africa 2005 (1) SA 580 (CC), para. 90). In terms of the Constitution, the courts are obliged to apply customary law “when that law is applicable, subject to the Constitution, and any legislation that specifically deals with customary law” (Section 211(3)). Du Plessis v De Klerk 1996 (3) SA 850 (CC).

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The 1996 Constitution incorporated provisions which sought to clarify that the rights in Chapter 2 of this Constitution (the Bill of Rights) applied directly to legal disputes between private parties in which the legal rule or conduct complained of infringes the substantive rights entrenched in the Bill of Rights. In addition, the courts are enjoined to interpret legislation and develop the common law and customary law in ways that promote the overall value system of the Bill of Rights (frequently described as ‘indirect horizontal application’ of rights). During the certification process,15 the provisions providing for direct horizontal application were challenged by a number of business- and libertarian-oriented civil society organisations, as well as the Congress of Traditional Leaders of South Africa. The three primary grounds on which these provisions were challenged were, first, that they would require courts to exercise a legislative function thereby contravening the separation of powers doctrine; second, that the horizontal application of the Bill of Rights would bestow on the courts the task of balancing competing rights, which, the objectors argued, was not a proper judicial role; and, third, that the constitutional principles envisaged that individuals would be bearers of only rights, and not of obligations. The latter, it was argued, would necessarily result in individuals suffering a diminution of their rights. The Constitutional Court rejected the first objection on the basis that the courts have always had the power to develop the common law, and there could be no separation-of-powers objection to them retaining this jurisdiction. Furthermore, they are empowered to declare legislation invalid only when it is inconsistent with the Constitution, and they do not possess a general power to alter legislation in ways they consider desirable. The Court thus held that it was a misconception to argue that the horizontal application of the Bill of Rights would necessarily entail a greater intrusion into the legislative sphere than a strict vertical application of the Constitution.16 It went on to point out that judicial review frequently required courts to balance competing rights such as freedom of expression and the rights of dignity and equality. The fact that the courts would be required to perform this balancing in circumstances where the bearer of the obligation is a private individual did not give rise to a conflict with the constitutional principles.17 Finally, the Court observed that constitutional rights affect private law in various jurisdictions without necessarily implying that individual rights are undermined. In general, courts are 15

16 17

The 1996 Constitution had to comply with the Constitutional Principles set out in Schedule 4 of the transitional (1993) Constitution and could not come into force until the Constitutional Court had certified that all the provisions of text complied with the Principles. The Constitutional Court refused to certify the initial text of the Constitution submitted to it by the Constitutional Assembly: see Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa, 1996 1996 (4) SA 744 (CC) (First Certification judgment). An amended text was ultimately certified by the Constitutional Court: see Certification of the Amended Text of the Constitution of the Republic of South Africa, 1996 1997 (2) SA 97 (CC). The 1996 Constitution entered into force on 4 February 1997. First Certification judgment, para. 54. Ibid. para. 55.

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required to balance and reconcile competing rights, and rights may be justifiably limited in certain circumstances to protect the rights of others.18 The Court accordingly dismissed the objections to the horizontal application of the Bill of Rights. The 1996 South African Constitution contains a number of explicit textual signals in favour of the application of fundamental rights to private parties. This is significant as many comparative courts have tended to be restrictive in their approach to the application of fundamental rights guarantees to private parties.19 Nevertheless, courts in a number of other jurisdictions make use of interpretative devices, such as a broad interpretation of the ‘State action’ doctrine in the United States,20 and indirect application under the German Basic Law21 to permit fundamental rights to influence the interpretation of codified bodies of private law or uncodified common law rules and doctrines (see generally Tushnet, 2003). There are a number of provisions in the 1996 Constitution that signal the express horizontality of the Bill of Rights.22 In terms of Section 7(2), the State is required to “respect, protect, promote and fulfil the rights in the Bill of Rights”. The Constitution thus explicitly affirms the regulatory and protective duty of the State under international human rights law. One of the methods of implementing this duty is to make provision for the horizontal application of the rights in the Bill of Rights. Thus, Section 8(1) states that the Bill of Rights “applies to all law, and binds the legislature, the executive, the judiciary and all organs of state”. All law in this context incorporates all forms of legislation, the common law and customary law. Sections 8(2) and (3) indicate how the Bill of Rights is to be applied in disputes between private parties (where State conduct such as legislation is not involved). Section 8(2) specifies that a provision in the Bill of Rights “binds a natural or juristic person if, and to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right”. To give effect to the horizontal application of a right in the Bill of Rights, Section 8(3)(a) states that a court “must apply, or if necessary develop, the common law to the extent that legislation does not give effect to that right”. Section 8(3)(b) permits the courts to develop “rules of the common law to limit the right provided that the limitation is in accordance with Section 36(1) [the general limitations clause]”. 18 19

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Ibid. para. 56. See, for example, the Canadian Supreme Court decision in Retail, Wholesale & Department Store Union Local 580 et al v Dolphin Delivery Ltd (1986) 2 SCR 573, holding that the Canadian Charter of Rights and Freedoms applied to all law (including the common law) but only to the extent that the case entailed governmental actors (involving the legislative, executive, and administrative branches of government). In the celebrated case of Shelley v Kraemer, 334 US 1 (1948), the enforcement of a racially restrictive covenant not to sell property to African Americans was declined on the basis that court enforcement of such a covenant would constitute ‘State action’. In this way, a racially discriminatory contract between private parties was denied legal sanction. ¨ 7 BVerfGE 198 (1958). The German Basic Law was held to embody an objective value See Luth system whose influence should radiate throughout public and private law norms (Drittwirkung). For a comprehensive analysis of these provisions, see Woolman (2005: chapter 31).

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The Constitutional Court has not developed a complete or final test for determining when a right in the Bill of Rights should be applied to non-State actors. However, the drafting of Section 8(2) suggests that this is a contextual inquiry informed by whether the vindication of the values and purposes served by particular rights requires application in disputes between private parties. In a significant decision, Khumalo and Others v Holomisa23 , the Constitutional Court held that the right of freedom of expression (Section 16) was applicable to the common law rules of defamation invoked against a media defendant. Justice O’Regan held: Given the intensity of the constitutional right in question, coupled with the potential invasion of the right which could be occasioned by persons other than the State or organs of State, it is clear that the right to freedom of expression is of direct horizontal application in this case as contemplated by Section 8(2) of the Constitution. (Para. 33)

The impact of this application of the right to freedom of expression was to confirm previous developments in the Supreme Court of Appeal (see National Media Ltd v Bogoshi24 ). In this way the common law rules of defamation were developed to allow greater latitude to the media whilst balancing this latitude against the legitimate need to protect an individual’s human dignity against defamatory publications (Khumalo v Holomisa, paras. 28, 39–42). The textual formulation of certain rights in the Bill of Rights also clearly indicates that they were intended to be of horizontal application. Thus, Section 9(4) of the Bill of Rights, which forms part of the equality clause, clearly indicates that the obligation not to unfairly discriminate binds all persons. Similarly, in terms of Section 12(1)(c), everyone has the right “to be free from all forms of violence from either public or private sources”. Important legislation has been enacted to give effect to these guarantees, such as the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 and the Prevention of Domestic Violence Act 116 of 1998. Another significant constitutional provision (which has in fact been relied on to a much greater extent by the courts in applying the Bill of Rights to private law) is Section 39(2) of the Bill of Rights. This provision requires courts “when interpreting any legislation, and when developing the common law or customary law[,] . . . to promote the spirit, purport and objects of the Bill of Rights”. The Constitutional Court has held that this provision requires the “objective normative value system” of the Bill of Rights to infuse and direct the development of rules of customary and common law.25 Every common or customary law rule or doctrine must be closely scrutinised for its consistency with the value system of the Bill of Rights, and 23 24 25

2002 (5) SA 401 (CC). National Media Ltd v Bogoshi 1998 (4) SA 1196 (SCA). See Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC), para. 56; S v Thebus 2003 (6) SA 505 (CC), paras. 27–28; K v Minister of Safety and Security 2005 (6) SA 419 (CC), paras. 16–17.

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where found to be inconsistent, judges must develop this body of law to foster those objectives. The objectives include the purpose of advancing the goal of universal and equitable access to the socio-economic rights entrenched in the South African Bill of Rights. In the area of socio-economic rights jurisprudence, the Constitutional Court has held that the first sub-section of Section 26 (the right of everyone to have access to adequate housing) imposes negative duties on both the State and private parties “to desist from preventing or impairing the right of access to adequate housing” (Grootboom, para. 34). In TAC, the Court confirmed that this negative duty was also applicable to the rights protected in Section 27(1) of the Constitution, specifically the right of everyone to have access to health-care services (para. 46). The scope of these negative duties imposed by Sections 26 and 27 was not elaborated on by the Court in the Grootboom or TAC decisions. However, in its subsequent decision in Jaftha,26 the Court held that “any measure which permits a person to be deprived of existing access to adequate housing, limits the rights protected in Section 26(1)” (para. 34). Such measures will pass constitutional muster only if they pass the stringent reasonableness and proportionality requirements of the general limitations clause in the Bill of Rights (Section 36). Jaftha involved a constitutional challenge to provisions in the Magistrates’ Court Act 32 of 1944, which permitted sales in execution of people’s homes without judicial oversight in order to satisfy unrelated judgment debts. The Constitutional Court held that the relevant provisions were not justifiable in that they could result in the loss of a person’s home when it would be reasonable to expect the creditor to pursue other less drastic methods of executing the judgment debt. By way of remedy the Court ‘read in’ provisions requiring judicial oversight over sales in execution of people’s homes. In its judgment the Court also elaborated on the circumstances in which a court should refuse authorising the sale in execution on the grounds that it would be “grossly disproportionate”: This would be so if the interests of the judgment creditor in obtaining payment are significantly less than the interests of the judgment debtor in security of tenure in his or her home, particularly if the sale of the home is likely to render the judgment debtor and his or her family completely homeless. (Para. 56)

As I discuss later, the Jaftha reasoning has had ongoing implications for legal proceedings declaring mortgaged homes executable. The situation is less clear in relation to the positive duties imposed by socioeconomic rights. The wording of Sections 26(2) and 27(2) requires the state to take “reasonable legislative and other measures, within its available resources, to achieve the progressive realisation” of the relevant rights. This appears to imply that the positive duties imposed by socio-economic rights are exclusively binding on the State. 26

Jaftha v Schoeman; Van Rooyen v Stoltz 2005 (2) SA 140 (CC).

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However, as Ellmann (2001: 461) observes, “Section 27(2) [and by implication, Section 26(2)] states part of what the state must do to implement these rights; it does not tell us that only the state need do anything.” This interpretation is supported by the first sub-section of Sections 26 and 27, which entrenches everyone’s right to have access to the relevant socio-economic rights. The Constitutional Court has indicated that this first sub-section imposes “at the very least” a negative duty. However, it has not held that this negative duty is exhaustive of the obligations imposed by Sections 26 and 27. Such an interpretation would run counter to a substantive interpretation of socio-economic rights that seeks to protect and promote the material preconditions of a life of freedom, dignity, and equality. From the perspective of claimants, it makes little difference whether threats to their social and economic security emanate from institutions formally classified as public or private. Both types of institutions are capable of wielding the power to either facilitate or obstruct claimants’ access to socio-economic rights.27 In any event, in the case of private parties, there are no bright lines between negative and positive duties, and the distinction is fluid and context dependent (see Craven, 2005: 34–36; Fredman, 2008: 98–100; Liebenberg, 2010: 54–59). The Constitutional Court itself has held that the socio-economic rights specifically guaranteed to children in Section 28(1)(c) of the Constitution are binding in the first instance on their parents and families, and on the State only when such care is lacking (Grootboom, paras. 70–79). Many private entities in South Africa and across the globe, such as families, banks and other credit providers, medical-aid schemes, pharmaceutical companies, insurance companies, private hospitals, private landlords, and traditional authorities, have the power to control and determine the terms under which large numbers of people have access the services and resources protected by socioeconomic rights. Given this social reality, a purposive approach to the interpretation of socio-economic rights would require the adoption of regulatory legislative as well as judicially developed common law rules to ensure that equitable and effective access to socio-economic rights is not impeded by the conduct of these groups and entities. If it proves impossible in particular contexts to regulate these entities effectively, the realisation of socio-economic rights may require State institutions to assume the primary responsibility for delivering these rights (see Pieterse, 2009: 204–7). Sections 8(2) and 39(2) of the Constitution envisage an approach to horizontal application that is sensitive to the values and purposes underpinning the relevant constitutional rights, as well as the measures required to promote and protect them effectively in diverse contexts.28 Formally classifying rights as negative or positive or potential duty bearers as public or private should not be dispositive of whether 27

28

On the variability and contingency of the concept of ‘the State’ in legal and political theory, see Quinot (2009: 6–9). The phrase ‘organ of state’ is defined relatively broadly in Section 239 of the South African Constitution, and includes functionaries and institutions exercising public power or performing a public function in terms of any legislation (Section 239(b)(ii)). This is the overarching obligation imposed on the State by Section 7(2) of the Constitution.

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legal duties should be recognised and enforced in a particular context. Under South African constitutional law, such duties can be enforced either through the adoption of regulatory legislation or through the application or development of the common law under the Constitution. As noted earlier, the protective duty of the State is recognised under international human rights law. For example, in its “General Comment No. 15 on the Right to Water”, the UN Committee on Economic, Social and Cultural Rights states: Where water services (such as piped water networks, water tankers, access to rivers and wells) are operated or controlled by third parties, States parties must prevent them from compromising equal, affordable, and physical access to sufficient, safe and acceptable water. To prevent such abuses an effective regulatory system must be established, in conformity with the Covenant and this General Comment, which includes independent monitoring, genuine public participation and imposition of penalties for non-compliance.29

The question to be considered is whether, in the specific context of socioeconomic rights, the potential of these provisions has been realised through civil society advocacy and judicial interpretation.30 The remainder of this chapter explores the extent to which the socio-economic rights in the Bill of Rights have had an influence on three traditional areas of private law. 3. PERSONAL AND FAMILY LAW

The prevalent contemporary form of social organisation that assigns the meeting of certain fundamental needs to the domestic sphere has profound implications for gender. It is largely through the unpaid domestic work of women, particularly in impoverished communities, that many social needs are satisfied – child care, care for elderly and the ill, health care, water collection.31 The effect of this work is to alleviate or remove entirely the burden on public institutions for meeting those particular needs. The broader implications of this pervasive form of social organisation is that the relevant needs and their satisfaction come to be viewed as naturally ‘belonging’ in the private or domestic sphere (in this regard, see generally Fraser, 1989: 299; Brand, 2005: 19–20; Dugard and Mohlakoana, 2009: 546–71). The distribution of resources within this domestic and family sphere is regulated by private law governing areas such as marriage, inheritance, and maintenance. The sources of such law may be common law; customary law; or statutes such as the 29

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UN Doc No E/C 12/2022/11, para. 24. See also the decision of the African Commission on Human and Peoples’ Rights in The Social and Economic Rights Action Centre (SERAC) and the Centre for Economic and Social Rights v Nigeria, Communication No 155/96 (2001) AHRLR 51 (ACHPR 2001). For an excellent analysis and critique of the record of the South African courts in developing the common law and customary law to give effect to the transformative commitments of the Bill of Rights, see Davis and Klare (2010). For an experimental exploration of alternative modes of social organisation that could better promote gender equity, see Fraser (1996).

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Marriage Act 25 of 1961, the Recognition of Customary Law Marriages Act 120 of 1998, the Intestate Succession Act 81 of 1987, and the Maintenance Act 99 of 1998. This body of law both constitutes family relationships and distributes resources among the participants in such relationships. These rules influence the extent to which various family members can gain access to socio-economic rights either directly, such as land and housing, or indirectly, through acquiring the financial resources (such as maintenance payments32 ) to enable the purchase of those goods and services.33 Children are particularly dependent on both the means and the willingness of their family primary caregivers to provide for their basic needs (see Bonthuys, 2008). This impact of rules of private law on women and children’s access to resources was acknowledged by the Constitutional Court in Bhe,34 where the African customary law rule of male primogeniture35 was declared unconstitutional. The Constitutional Court held that the rule of male primogeniture violates both the dignity and the equality rights of women, all female children, and extramarital children (Bhe, paras. 92–93). In relation to the dignity rights of the women, the Constitutional Court held that the effect of such rules was “to subject these women to a status of perpetual minority, placing them automatically under the control of male heirs, simply by virtue of their sex and gender” (Bhe, para. 92). In addition, the Constitutional Court held, their dignity is “further affronted by the fact that, as women, they are also excluded from intestate succession and denied the right, which other members of the population have, to be holders of, and to control property” (Bhe, para. 92). The Court observed that the rule of primogeniture served important functions in traditional agrarian economy and society, such as ensuring that the successor (indlalifa) assumed responsibility for the support of dependants and the preservation of family units and property. However, in the context of rapidly changing economic and family forms, the effect of the male primogeniture rule exposes women and children to profound economic vulnerability. As then Deputy Chief Justice Langa observed: Modern urban communities and families are structured and organised differently and no longer purely along traditional lines. The customary law rules of succession 32

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On the practical difficulties entailed in the enforcement of the private maintenance obligations, and remedial responsibilities of the courts, see Bannatyne v Bannatyne 2003 (2) SA 363 (CC). For an exploration of the development of customary law to facilitate women’s land rights, see Claassens and Mnisi (2009). Bhe v Magistrate Khayelitsha; Shibi v Sithole; SA Human Rights Commission v President of the RSA 2005 (1) SA 580 (CC) (Bhe). The system of intestate succession followed by many African indigenous communities in which the eldest male son of the family head becomes heir, and failing him, the eldest son’s eldest male descendant. Where the eldest son has predeceased the family head without leaving male issue, the second son becomes heir, and so on through the sons of the family head. Where the family head dies leaving no male issue, his father succeeds. See Mthembu v Letsela 2000 (3) SA 867 (SCA), para. 8. In the Bhe judgment, Justice Ngcobo (as he then was) in a separate partially concurring and partially dissenting judgment expressed doubt about whether this version of African customary law reflected customary law as it was currently being lived and practiced on the ground in a many communities – the so-called living customary law (para. 177). On ‘living’ customary law, see Bhe, paras. 81–87.

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As an interim remedy the Court declared that a modified version of the Intestate Succession Act 81 of 1987 would apply to intestate deceased estates that formerly devolved according to the customary law codified in Section 23 of the Black Administration Act 38 of 1927. In polygynous customary marriages, each surviving spouse would inherit a child’s share of the intestate estate. Parliament has since enacted the Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009 (which came into operation on 20 September 2010) to give effect to the Bhe decision. The Bhe case is a good example of how customary law rules can determine women and children’s access to housing and property rights. The Constitutional Court has decided a range of cases involving the exclusion of parties to customary or religious relationships from various financial, social security, and proprietary benefits provided to spouses by legislation. This legislation has included relevant provisions of the Recognition of Customary Marriages Act 120 of 1998,37 the Intestate Succession Act 81 of 1987, the Maintenance of Surviving Spouses Act 27 of 1990,38 and the Multilateral Motor Vehicle Accidents Act 93 of 1989.39 36 37

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See also the judgment of Justice Ngcobo at paras. 156–75. Gumede v President of the Republic of South Africa 2009 (3) SA 152 (CC) (declaring invalid the relevant provisions of the Recognition of Customary Marriages Act that exclude women in monogamous customary marriages entered into before the commencement of the Act from the more equitable proprietary regime of marriage in community of property; declaring invalid relevant provisions of the KwaZulu Act on the Code of Zulu Law 16 of 1985 and the Natal Code of Zulu Law providing that the family head is the owner of and has control over all family property and has marital power over his wife). Daniels v Campbell NO 2004 (5) SA 331 (CC) (interpreting the word spouse in the abovementioned acts to include persons married according to Muslim rites in a de facto monogamous marriage); Hassam v Jacobs NO 2009 (5) SA 572 (declaring that the benefits afforded by the aforementioned legislation to spouses whose partner died intestate should also extended to spouses in polygynous Muslim marriages). In South African law, Muslim marriages have not been recognised owing to their potentially polygynous nature. Such marriages were regarded as contra bonos mores. This is all set to change profoundly with proposed legislation pioneered by the South African Law Commission in which Muslim marriages will receive legal recognition and their proprietary consequences will be expressly regulated. See South African Law Reform Commission (2003)(Project 59) Islamic Marriages and Related Matters Report. Amod v Multilateral Motor Vehicle Accidents Fund [1999] 4 All SA 421. A claim for damages for loss of support under the Act was extended to surviving spouses in monogamous Muslim marriages.

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In a long line of cases, the Constitutional Court and other courts have also extended the benefits conferred in a range of statutes to couples in same-sex relationships.40 This development culminated in the Constitutional Court’s landmark decision Fourie,41 where it declared that the common law and statutory definitions of marriage were unconstitutional to the extent that they did not permit same-sex couples to enjoy the status and benefits or the responsibilities accorded to heterosexual couples. Parliament subsequently adopted the Civil Union Act 17 of 2006 to give effect to this judgment. However, in Volks NO v Robinson,42 the Constitutional Court has refused to extend the claim for reasonable maintenance needs against the estate of the deceased spouse in terms of the Maintenance of Surviving Spouses Act 27 of 1990 to the surviving partner in a heterosexual permanent life relationship. The amicus curiae in the case, the Centre for Applied Legal Studies, University of the Witwatersrand, made submissions regarding the prevalence of long-term cohabitating couples as well as the financial vulnerability and lack of power of many women in such relationships. However, Skweyiya J and Ngcobo J essentially found that the benefits of marriage should not be extended to those who have not voluntarily entered into the marriage contract, which imposes specific rights and duties such as a reciprocal duty of support. This approach is based on “a libertarian notion of autonomy”, which is not attuned to the underlying gender power relations and the economic and social context in which women must negotiate their relationships (see Goldblatt, 2003: 616; see also Kruuse, 2009, who points out the anomalies in the courts’ treatment of same-sex life partnerships and opposite-sex life partnerships). Sachs J in his dissenting judgment argued for the case to be looked at from “the wider perspective of family law rather than within the rigid confines of matrimonial law” (para. 152). What matters from this perspective is the nature of the relationship and the condition of need of the survivor, particularly when that need arises

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42

See, for example, National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (2) SA 1 (CC) (benefits of immigration legislation conferred on foreigners married to South African citizens or permanent residents extended to permanent same-sex life partners); Satchwell v President of the Republic of South Africa 2002 (6) SA 1 (CC) (financial benefits accorded to surviving ‘spouses’ of deceased judges extended to deceased judge’s surviving permanent same-sex life partner); Langemaat v Minister of Safety and Security 1998 (3) SA 312 (T) (medical scheme regulations declared unconstitutional for not allowing for the registration of a permanent same-sex life partner as a dependant under the scheme); Du Plessis v Road Accident Fund 2004 (1) SA 359 (SCA) (action for damages for funeral expenses and loss of support under the Multilateral Motor Vehicle Accidents Fund extended to permanent same-sex life partners who had undertaken a contractual duty to support each other); Gory v Kolver NO and Others 2007 (4) SA 97 (CC) (benefits under the Intestate Succession Act 81 of 1987 extended to partners in permanent same-sex life partnerships who had undertaken reciprocal duties of support). Minister of Home Affairs and Another v Fourie (Doctors for Life International and Others, Amici Curiae); Lesbian and Gay Equality Project and Others v Minister of Home Affairs 2006 (1) SA 524 (CC) (Fourie). Volks NO v Robinson 2005 (5) BCLR 446 (CC) (Volks NO v Robinson).

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precisely because of the lack of legal recognition of the particular family form (see also the joint dissenting judgment of O’ Regan and Mokgoro JJ).43 Most of the cases discussed here have been argued and decided primarily within an equality paradigm. Thus, it has been alleged that the relevant common law rules and statutes discriminate unfairly in terms of Section 9 of the Constitution on grounds such as race, gender, marital status, sexual orientation, religion, and culture. In none of these cases has it been specifically argued that the relevant laws deprive people of access to socio-economic rights such as land, housing, and social security. The substantive and contextual equality jurisprudence developed by the courts arguably allows sufficient scope for the social and economic implications of these bodies of law to be explored in litigation (in this regard, see Albertyn, 2007, 2009; Albertyn and Goldblatt, 2009: 5–14). As Nkabinda J observed in Hassam v Jacobs NO: The effect of the failure to afford the benefits of the Act to widows of polygynous Muslim marriages will generally cause widows significant and material disadvantage of the sort which it is the express purpose of our equality provision to avoid. (Para. 34)

Nevertheless, the neglect of socio-economic rights arguments in these cases represents a missed opportunity to highlight the implications of these private law rules for this set of constitutional rights. In many of the cases referred to earlier, the effect of the relevant rules and provisions is to prevent disadvantaged groups from gaining and retaining access to critical social and economic resources. Formulating socio-economic rights arguments in the context of such cases could also destabilise the notion that socio-economic rights are exclusively a matter of public law and have no role to play in private law disputes. Such arguments assist in highlighting the fact that all rules of law have distributional consequences and ultimately affect people’s material and social well-being and security. The State is ultimately responsible for ensuring that private law rules enhance, and do not impede, access to socio-economic rights. In this way, the ambit of socio-economic rights would be gradually broadened beyond the paradigm of welfare commodities delivered by the State to impoverished communities. 4. PROPERTY LAW AND EVICTIONS OF PEOPLE FROM THEIR HOMES

Ownership of property enjoys very strong protection in South African private law. This protection is based on “a central incident of ownership, namely the owner’s right to undisturbed and exclusive possession of her property” (Van der Walt, 2009: 53). Under Roman-Dutch law landowners have a particularly powerful remedy, the rei 43

The South African Law Reform Commission is engaged in an ongoing project on the legal regulation of domestic partnerships: ZALC Domestic Partnership Project 118 Report (2006). However, to date no legislation has been adopted in this regard.

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vindicatio, at their disposal to evict unlawful occupiers from their property. In terms of this remedy, the owner is required to “do no more than allege and prove that he is the owner and the defendant is holding the res – the onus being on the defendant to allege and establish any right to continue to hold against the owner” (Chetty v Naidoo 1974 (3) SA 13 (A) at 20A). In the absence of proof of a valid legal right of possession, the landowner is entitled to an eviction order regardless of the impact of the eviction on the personal circumstances of the occupier or his or her family. The fact that an eviction might lead to destitution and homelessness was not considered relevant in determining whether a court should grant an eviction order. The introduction of a right of access to housing in Section 26 of the Constitution (Section 26(1) read with 26(2)), coupled with the prohibition against the eviction of people from their homes, or the demolition of homes, “without an order of court made after considering all the relevant circumstances” (Section 26(3)), fundamentally changes the legal paradigm governing evictions law in South Africa. A range of legislation has been enacted to give effect to these constitutional guarantees. Of particular importance is the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE), which contains detailed procedural and substantive safeguards for unlawful occupiers facing eviction from land throughout South Africa. In a long line of cases, the Constitutional Court has established three fundamental principles that should be considered by courts in determining whether it is ‘just and equitable’44 for an eviction order to be granted in the particular circumstances of the case.45 The first principle is that persons should generally not be evicted into a situation of homelessness. Thus, the availability of suitable alternative accommodation is a highly relevant factor in determining whether, and subject to which conditions, an eviction order should be granted.46 The second principle is that those facing eviction from their homes should be given a voice and an opportunity to participate actively in the resolution of eviction disputes. This may take the form of mediation,47 or ‘meaningful engagement’. The objectives and character of such engagement were elaborated on by the Court in Olivia Road.48 The requirement of dialogic engagement is based on the insight that, 44

45

46

47 48

Justice and equity are the overarching criteria for guiding a court’s discretion regarding whether to grant an eviction order and, if so, on what terms. See Sections 4–6 of PIE. For an analysis of the implications of this jurisprudence, see Wilson (2009); Liebenberg (2010: Chapter 6). Port Elizabeth Municipality v Various Occupiers (2005) 1 SA 217 (CC) (PE Municipality), para. 28; Olivia Road, paras. 42–46; Joe Slovo, paras. 105(c)–107 (per Yacoob J), paras. 170–72 (per Moseneke DCJ), para. 214 (per Ngcobo J), para. 313 (per O’Regan J). PE Municipality, paras. 39–47. Olivia Road, paras. 9–23. In Joe Slovo, although an eviction order against the community was granted in terms of PIE, the Court required meaningful engagement in relation to various aspects of the eviction process, the relocation to the temporary resettlement area in Delft, and the alternative accommodation to be provided there. See the Order of the Court set out in para. 7 of the judgment, particularly paras. 5 and 11.

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in seeking to resolve the conflicts that arise between property and housing-related interests in eviction disputes, “the procedural and substantive aspects of justice and equity cannot always be separated” (PE Municipality, para. 39). As Justice Sachs elaborated: [O]ne potentially dignified and effective mode of achieving sustainable reconciliations of the different interests involved is to encourage and require the parties to engage with each other in a proactive and honest endeavour to find mutually acceptable solutions. Wherever possible, respectful face-to-face engagement or mediation through a third party should replace arms-length combat by intransigent opponents. (Para. 39)

In the most recent of this line of cases, Abahlali,49 the Constitutional Court declared Section 16 of the KwaZulu-Natal Elimination and Prevention of Reemergence of Slums Act 6 of 2007 unconstitutional on the basis that it obliged landowners and municipalities to institute proceedings for the eviction of unlawful occupiers when notified to do so by the responsible Member of the Executive Council of the province. No express provision was made for the safeguards developed through constitutional interpretation and legislation for the protection of unlawful occupiers, including the requirement of reasonable engagement with affected communities before the institution of eviction proceedings.50 The third major principle that has emerged from the eviction jurisprudence is that the eviction of people from their homes – even where the landowner is a private party – can no longer be considered a purely private law matter. It has inescapable human rights dimensions that put such disputes firmly in the realm of public law. This principle was confirmed in Modderklip.51 The case involved a landowner’s unsuccessful attempts to execute an eviction order he had obtained in the High Court against an impoverished community of some 40 000 people who had established a settlement on his farm. On appeal, the Constitutional Court held that the State’s failure to take steps to assist the landowner to vindicate his property and, simultaneously, to avoid the large-scale social disruption caused by the eviction of a large, vulnerable community was inconsistent with the principle of the rule of law enshrined in Section 1(c) of the Constitution and the right of access to courts protected in Section 34. In these circumstances the State was obliged to assist in resolving the dispute by taking reasonable measures to assist both the landowner and the community. The Constitutional Court essentially confirmed the remedy awarded by the Supreme Court of Appeal and ordered the State to 49

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Abahlali BaseMjondolo Movement SA v Premier of the Province of KZN 2010 (2) BCLR 99 (CC) (Abahlali). Abahlali, paras. 113–29. Compare the minority judgment of Yacoob J, who held that the Slums Act was capable of being interpreted to include the relevant constitutional principles such as meaningful engagement. President of the Republic of South Africa v Modderklip Boedery (Pty) Ltd 2005 (5) SA 3 (CC) (Modderklip).

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compensate the landowner for the period that his property remained unlawfully occupied. It was further ruled that the residents were entitled to remain on the land until alternative land was made available to them by the relevant national, provincial, or local authorities. 52 In City of Johannesburg Metropolitan Municipality v Blue Moonlight,53 the Supreme Court of Appeal declared unconstitutional the City of Johannesburg’s policy to the effect that it provides only temporary emergency accommodation to those evicted from unsafe buildings by the City itself, or at its instance, and does not cater to those evicted by private landowners. The Court held that the City’s refusal to consider emergency housing assistance for impoverished occupiers evicted by private owners was arbitrary and irrational, and infringed the human dignity and equality rights of such occupiers.54 The principle that the State cannot abdicate its responsibilities for evictions from private land that will lead to homelessness has found expression in case law affirming that municipalities are necessary parties and must be joined to eviction applications in terms of Section 4 of PIE. As noted already, one of the mechanisms through which private parties can be held accountable for human rights is through ensuring that the State complies with its protective and regulatory duties. As the Supreme Court of Appeal held in Occupiers of Erf 101, 102, 104 and 112 Shorts Retreat, Pietermaritzburg v Daisy Dear Investments (Pty) Ltd:55 The municipality’s position in eviction proceedings under PIE differs from that of a third party in ordinary litigation because it has constitutional obligations it must discharge in favour of people facing eviction. It should therefore not be open to it to choose not to be involved. (Para. 14)

The two main purposes of such joinder are to report on whether mediation or other forms of engagement between the parties can facilitate a suitable resolution to the dispute and to report on the steps can be taken to ensure alternative accommodation to persons who would be homeless if an eviction order were granted.56 Section 26 of the Constitution has thus had a profound impact on generating a new paradigm for the eviction of unlawful occupiers, particularly through the provisions and interpretation of PIE by the courts. However, Section 26, particularly 26(3), of the Constitution has not had a fundamental impact on the common law action for ejectment described here. The leading case in this regard is Brisley,57 52 53 54

55 56

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Modderklip, Order of Court, para. 68. 2011 (4) SA 337 (SCA). This decision was upheld on appeal by the Constitutional Court in City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties (Pty) Ltd [2011] ZACC 33 (1 December 2011); 2012 (2) BCLR 150 (CC). 2010 (4) BCLR 354 (SCA). See Cashbuild (South Africa) (Pty) Ltd v Scott 2007 (1) SA 332 (T); Blue Moonlight Properties (Pty) Ltd v Occupiers of Saratoga Avenue 2009 (1) SA 470 (W); Occupiers of Erf 101, 102, 104 and 112 Shorts Retreat, Pietermaritzburg v Daisy Dear Investments (Pty) Ltd 2010 (4) BCLR 354 (SCA); The Occupiers, Shulana Court, 11 Hendon Road, Yeoville v Mark Lewis Steele 2010 (9) BCLR 911 (SCA). Brisley v Drotsky 2002 (4) SA 1 (SCA) (Brisley).

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which concerned a tenant remaining in possession of the property (‘holding over’) after cancellation of the lease agreement by the landlord. The tenant did not frame her claim in terms of PIE. The Supreme Court of Appeal gave a particularly narrow interpretation of the requirement in Section 26(3) of the Constitution that a court consider “all the relevant circumstances” before granting an order evicting a person from his or her home. It held that, although Section 26(3) does apply to an ejectment application brought by a private party, it does not introduce new considerations to the conventional common law requirements for ejectment. Thus, factors such as the personal circumstances of the occupier and the impact of an eviction on his or her access to housing are irrelevant, and a court has no discretion to refuse an order for eviction if the applicant proves ownership of the premises and the occupier fails to prove a valid common law or statutory right to remain in occupation. This interpretation denudes Section 26(3) of substantive, independent content and effectively insulates the common law rules of eviction from the purposes and values that Section 26 seeks to promote. In the subsequent case of Ndlovu v Ngcobo; Bekker v Jika 2003 (1) SA 113 (SCA), the Supreme Court of Appeal held that PIE applies to tenants holding over and is not restricted to those whose occupation of the property is initially unlawful. Although it is arguable that the consequences of the Brisley decision are thus negated by PIE and similar legislation, it nevertheless remains problematic that the common law doctrinal framework for ejectment has not been developed to give effect to the ‘spirit, purport, and objects’ of Section 26. In this situation, unlawful occupiers will remain vulnerable to possible future legislative amendments repealing or amending the procedural substantive protections provided by PIE.58 Finally, Section 26 is having an increasing influence on the law and procedures applicable to declaring mortgaged property executable in circumstances where people default on their home loans. Thus, in Saunderson,59 the Supreme Court of Appeal acknowledged that execution against mortgaged residential property can potentially affect a mortgagee’s right of access to adequate housing. As part of its order the Court issued a practice direction requiring that all summonses initiating proceedings for declaring mortgaged property executable must henceforth draw the defendant’s attention to Section 26(1) of the Constitution. The summons must furthermore inform the mortgagee that should he or she claim that the order for execution of the property will infringe his or her right of access to adequate housing, it is incumbent on him or her to place information supporting this claim before the court. Unfortunately, the Supreme Court of Appeal indicated that the circumstances in which execution against bonded property would infringe the right of access to 58

59

For criticisms of Brisley, see Roux (2004); Van der Walt (2005: 422–24); Liebenberg (2010: 344– 49). Standard Bank of South Africa Ltd v Saunderson 2006 (2) SA 264 (SCA) (Saunderson).

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adequate housing “were likely to be rare”.60 The Court also upheld the provisions of Rule 31(5) of the Uniform Rules of Court, which permits the registrar of the Court, in granting default judgments, to declare immovable property specially executable. Thus, the registrar (who is not a judicial officer) may enter a judgment that has the effect of mandating the sale in execution of the bond debtor’s home without regard to the particular circumstances leading of the case. All that is required, according to the Supreme Court of Appeal in Saunderson, is “a formal evaluation of whether the summons discloses a proper cause of action” (para. 24). This approach runs contrary to the principle established in the Jaftha and Olivia Road cases, which entails that procedures resulting in people being deprived of access to their homes must be subject to judicial oversight and control (see Olivia Road, paras. 47–51). The purpose of such judicial oversight is to enable a contextsensitive balancing of the rights and interests at stake in the light of the particular facts of the case. A proper appreciation is required not only of the applicable contractual and property rights of the bank but also of the impact ordering a sale in execution on the housing and property rights of the bond debtor. In the case of Gundwana v Steko Development CC,61 the Constitutional Court ultimately decided that it is unconstitutional for a registrar of a high court to declare immovable property specially executable when ordering default judgment under Rule 31(5) to the extent that this permits the sale in execution of the home of a person. Froneman J held as follows: [C]onstitutional considerations not in existence earlier . . . caution courts that in allowing execution against immovable property due regard should be taken of the impact that this may have on judgment debtors who are poor and at risk of losing their homes. If the judgment debt can be satisfied in a reasonable manner without involving those drastic consequences that alternative course should be judicially considered before granting execution orders. (Para. 53)

This constitutes an affirmation of the principles of a contextual assessment of the impact of the deprivation of a home on a judgment debtor and the undertaking of a proper proportionality analysis as outlined in Jaftha. 5. CONTRACT LAW

Whereas it is evident that the housing rights in Section 26 of the Constitution have had a significant impact on the law pertaining to evictions, the influence of socio-economic rights in the sphere of contract law has been weak. The South African courts have not applied or developed the common law of contract to grant a general equitable remedy against oppressive and unconscionable 60

61

See Saunderson, paras. 19–20. Compare the more substantive approach adopted by the High Court in Absa Bank v Ntsane 2007 (3) SA 554 (T). 2011 (3) SA 608 (CC).

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contractual terms.62 They have preferred to rely on the crystallised doctrines of contract law such as mistake, duress, and estoppel rather than on open-ended standards such as fairness and good faith.63 However, a significant open-ended principle of South African contract law is that contractual terms that are contrary to public policy are not recognised and may be declared invalid on that basis.64 In the constitutional era, the Constitutional Court has affirmed that the notion of public policy is “now deeply rooted in our Constitution and the values which underlie it”.65 This means that in assessing whether contractual terms are contrary to public policy and thus unenforceable, regard must be had for constitutional rights and the normative purposes and values they seek to promote. Section 39(2) of the Constitution has become the primary conduit through which the normative values of the Bill of Rights influence the interpretation of an open-ended concept such as public policy in contract law. Despite the inherent potential of using constitutionally moulded concepts of public policy and good faith to promote contractual justice, the general trend is to uphold the ‘sanctity’ of contracts, expressed in the maxim pacta sunt servanda (Bhana, 2008: 300–17). Litigants face a formidable burden in persuading a court to strike down a contractual term for allegedly conflicting with public policy or good faith. Even in the post-constitutional era the courts have cited with approval the dictum of Judge of Appeal Smalberger in the pre-constitutional decision Sasfin (Pty) Ltd v Beukes:66 The power to declare contracts contrary to public policy should . . . be exercised sparingly and only in the clearest of cases, lest uncertainty as to the validity of contracts result from an arbitrary and indiscriminate use of the power. . . . In grappling with this often difficult problem it must be borne in mind that public policy generally favours the utmost freedom of contract, and requires that commercial transactions should not be unduly trammelled by restrictions on that freedom.67 62

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64 65 66 67

In Bank of Lisbon and SA Ltd v De Ornelas 1988 (3) SA 580 (A), the old South African Appellate Division held that the Roman law remedy of the exceptio doli generalis was not part of the South African common law. For a recent affirmation of this position by the Supreme Court of Appeal in the constitutional era, see Bredenkamp v Standard Bank of SA Ltd 2010 (9) BCLR 892 (SCA), paras. 32–35. See, for example, the observations of Judge of Appeal Brand in Afrox Health Care (Pty) Ltd v Strydom 2002 (6) SA 21 (SCA), paras. 31–32. Sasfin (Pty) Ltd v Beukes 1989 (1) SA 1 (A) at 7I–9H (Sasfin (Pty) Ltd v Beukes). Barkhuizen v Napier 2007 (5) SA 323 (CC), para. 28 (Barkhuizen v Napier). Sasfin (Pty) Ltd v Beukes, at 9 B–F. Afrox Health Care (Pty) Ltd v Strydom 2002 (6) SA 21 (SCA) at para. 8 (portions of the quote omitted). See also the separate concurring judgment of Cameron JA (as he then was) in Brisley v Drotsky 2002 (4) SA 1 (SCA), in which he held that contractual freedom “shorn of its obscene excesses” also found expression in the constitutional values of dignity and freedom. These values “require that the courts approach their task of striking down contracts or declining to enforce them with perceptive restraint” (paras. 93–94).

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The leading Constitutional Court decision on the application of the Bill of Rights in contract is Barkhuizen v Napier, which dealt with the effect of the constitutional right of access to courts (Section 34) on the validity of a ninety-day time limitation clause for issuing summons in a short-term motor vehicle insurance contract. The insurance company repudiated liability under the contract for damages sustained to the insured motor vehicle when the plaintiff issued summons against the company some two years after the initial claim was lodged. On appeal, the Constitutional Court was required to address two fundamental questions. The first question concerned whether the relevant time-bar clause in the insurance contract was against public policy because it unreasonably limited the right of access to a court. The second question was whether it would be unreasonable for a court to enforce the relevant clause given the circumstances and reasons for non-compliance with its terms by the plaintiff. The majority of the Court found that the clause specifying a ninety-day time limit for issuing summons was not so “manifestly unreasonable” that it offended public policy. In this regard, there was no evidence “to suggest that the contract was not freely concluded between parties with equal bargaining power or that the applicant was not aware of the clause”.68 Furthermore, as the applicant had not provided reasons for his non-compliance with the time-bar clause, the majority held that it was unable to evaluate whether the enforcement of the clause would be unfair to the applicant and thus contrary to public policy.69 The requirement that the plaintiff proves that a clause is ‘manifestly unreasonable’ is clearly a high threshold to overcome. Moreover, there is a sharp discrepancy between the normal three-year prescription period for instituting legal proceedings in legislation such as the Prescription Act 68 of 1969 and the ninety days stipulated in the relevant time-bar clause. It is hard to avoid the conclusion that the Court failed to apply a substantive interpretation of the right of access to courts in evaluating whether the relevant time-bar clause was consistent with the new public policy grounded in constitutional rights and values.70 A particularly restrictive approach was followed by the Supreme Court of Appeal in a case that offered a significant opportunity to apply the health rights in Section 27 of the Constitution to the law of contract. The case, Afrox,71 concerned a challenge to a clause in a contract between a patient, Mr Strydom, and a private hospital exempting the hospital from liability for the negligence of its staff (a nurse in this case). A central argument was that the clause in question was contrary to public policy because it was inconsistent with the constitutional right to health-care services in Section 27(1)(a) of the Constitution.

68 69 70

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Barkhuizen v Napier, paras. 64–66. Ibid. para. 84. Compare the more robust evaluation of the constitutionality of the contract in the dissenting judgments of Deputy Chief Justice Moseneke and Justice Sachs. Afrox Healthcare Bpk v Strydom 2002 (6) SA 21 (SCA) (Afrox).

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The Supreme Court of Appeal held that the exemption clause was not inconsistent with Section 27(1)(a) because it did not prevent access to health-care services. Furthermore, Section 27 did not prohibit hospitals from insisting on legally acceptable conditions for the rendering of medical services.72 Furthermore, the values underpinning health-care rights had to be weighed against the competing value of contractual autonomy, which, the Court held, was also supported by constitutional values.73 This represents a particularly narrow and formalistic interpretation of Section 27(1)(a) and the values and interests it protects. A purposive interpretation of Section 27(1)(a) would extend well beyond simply accessing a basic level of health-care services through public institutions. The right to health in international human rights law incorporates a qualitative dimension and requires the rendering of services to appropriate professional and scientific standards.74 The rendering of health-care services affects a range of values and interests protected by the right to health, such as life, bodily integrity, and human dignity. The refusal of a judicial remedy against the negligent rendering of a health service on the basis that a prospective patient had signed admission documents exempting the hospital from liability is to disregard the unequal bargaining power inherent in such a situation. This is particularly the case in a context such as South Africa, where there is a large disparity in the quality and availability of services between the public and private health-care sectors, making the option of resorting to the public health sector problematic. To uphold an exemption clause against negligence in these circumstances is to elevate a laissez-faire notion of contractual freedom above people’s health and well-being.75 The failure to take adequate account of the values and purposes underpinning housing rights in landlord and tenant law is illustrated in the decision of the Supreme Court of Appeal in Maphango and Others v Aengus Lifestyle Properties (Pty) Ltd.76 This decision was appealed to the Constitutional Court, and at the time of writing judgment had not been handed down.77 This decision promises to be a significant test of the Constitutional Court’s willingness to develop the common law of lease so 72 73 74

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Ibid. para. 19. Ibid. paras. 22–23. See the interpretation by the UN Committee on Economic, Social, and Cultural Rights of the right to health in art. 12 of the International Covenant on Economic, Social, and Cultural Rights: General Comment No. 14 (22nd session, 2000), UN Doc. No. E/C.12/2000/4, para. 12 (d). See also Pieterse (2007: 166–67). Compare the more robust approaches adopted in the application of the right to health to private health-care providers by the Colombian Constitutional Court described by Sepulveda (2008: 152–155; ´ 157–158); and of the Argentinian courts described by Courtis (2008: 171–176). For an incisive critique of this judgment see Davis (2011: 857–860). [2011] ZASCA 100 (1 June 2011). An amicus curiae submission was argued in Court on behalf of the Inner City Resource Centre with research support by the Law and Poverty Project at Stellenbosch University Law Faculty. The submission sought to develop the implications of the right to housing in Section 26 of the Constitution for the common law of lease. See Submissions on behalf of amicus curiae: http://www.seri-sa.org/ images/stories/amicuscuriae submissions.pdf.

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as to better protect the housing rights of low-income tenants.78 (See Postscript for a brief account of the Constitutional Court judgment.) The area of contract law in which social rights have made the most sustained impact has been in relation to the labour rights protected in Section 23 of the Constitution. These rights incorporate the right of everyone to ‘fair labour practices’, the right of workers to form and join trade unions and to strike, the right of employers to form and join an employers’ organisation, and the right to bargain collectively. The Constitutional Court has interpreted the labour rights in the Constitution and the legislation enacted to give effect to them in a range of significant cases.79 However, contract law remains relevant and the dominant determinant of the conditions of work of a significant portion of workers in, what Theron (2000, 2001) describes as, “externalised” employment relationships. These workers are in satellite enterprises that provide a range of services to a core business. They are economically dependent on the core business, but the core business is not directly legally accountable to them, as it is not regarded as their ‘employer’ for the purposes of applying labour law protections. Their conditions of work are governed by an ordinary commercial contract entered into between the core business and their employer, and in terms of which these employees are physically or legally excluded from the workplace of the core business. Labour broking is but one aspect of this phenomenon. Contract law continues to be a powerful force in determining the conditions of employment of workers in externalised employment, and it operates to effectively undermine the principles of collective bargaining and other labour rights protected in the Constitution and in legislation such as the Labour Relations Act 66 of 1995 and the Basic Conditions of Employment Act 75 of 1997 (see generally Theron, 2011). There are also a range of vulnerable categories of workers, including the self-employed, sex workers, migrant workers, farm workers and home-based workers, who face considerable social, economic, and legal obstacles in seeking to invoke the rights and protections of Section 23 of the Constitution.80 The legislative 78

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The approach of the Supreme Court of Appeal in the Maphango case can be contrasted with the more rigorous analysis by the South Gauteng High Court of the implications of the housing rights in Section 26 for the common law remedies available to impoverished tenants when a landlord fails to maintain the leased premises. See Mpanga v Sithole 2007 (6) SA 578 (W), and the analysis in Liebenberg (2010: 365–66). See, for example, South African National Defence Union v Minister of Defence 1999 (4) SA 469; South African National Defence Union v Minister of Defence 2007 (5) SA 400 (CC); National Union of Metal Workers of South Africa and Others v Bader Bop (Pty) Ltd 2003 (3) SA 513 (CC); National Education, Health and Allied Workers Union v University of Cape Town and Others 2003 (3) 1 SA (CC); Sidumo and Another v Rustenburg Platinum Mines Ltd and Others 2008 (2) SA 24 (CC). For an analysis of these and other jurisprudence of the Labour Courts and Labour Appeal Courts, see Cooper (2006); Cheadle (2010). For a progressive judgment by Davis J affirming the right of a sex-worker to a remedy for unfair dismissal in terms of the Labour Relations Act, see Kylie v CCMA [2010] JOL 24478 (LAC). This litigation was spearheaded by the Sex Workers Education and Advocacy Taskforce and the Women’s Legal Centre.

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framework enacted to give effect to Sections 23 and 9 (equality) of the Constitution remains premised on a traditional model of binary employment relationships and fails to reflect the fundamental restructuring of employment that has gained momentum in the previous two decades. Despite the enactment of regulatory legislative measures in labour, consumer protection,81 health care, and a range of other spheres, the strong influence of the prevailing common law tradition is likely to continue in the absence of a concerted intellectual and advocacy strategy to infuse the values and purposes of socioeconomic rights into common law contractual doctrines. This tradition is strongly influenced by classic liberal notions of individual autonomy and an aversion to interventions aimed at mitigating the harsh consequences of contracts on the basis of unequal socio-economic power relationships. The effects of this classic liberal tradition will be felt not only in areas of contract law unregulated by statute but also in how the courts approach the interpretation of statutes that seek to introduce fundamental changes to existing doctrines of contract law. A libertarian approach to the interpretation of such statutes by the courts is likely to frustrate the regulatory and transformative objectives of legislation.82 Human rights, particularly socio-economic rights, have the potential to be valuable conceptual tools in revitalising the values of good faith, equity, and reasonableness that have been immanent in South African contract law. To date, this potential has not been fully explored in socio-economic rights advocacy and litigation. 6. CONCLUSION

Socio-economic rights have the potential to stimulate a more substantive mode of constitutional adjudication in South African law. Such an approach is attuned to the social and economic context in which rights disputes arise and to all exercises of power that entrench socio-economic marginalisation and inequality. This requires overcoming many of the formalistic distinctions prevalent in classic liberal legal theory, such as the positive-negative rights dichotomy and the public-private divide. However, if socio-economic rights are to fulfil their transformative potential, intensive research and advocacy is required into how various forms of private power and the rules of law that sanction the exercise of such power, affect people’s social and economic rights. Important work has been initiated in this sphere by organisations such as Treatment Action Campaign with the Aids Law Project (now called Section27), the Legal Resources Centre, the Centre for Applied Legal Studies, the Community Law Centre (Socio-Economic Rights Project), and recently the SocioEconomic Rights Institute of South Africa. 81 82

See, for example, the Consumer Protection Act 68 of 2008. On the implications of the common law tradition for constitutional and statutory interpretation, see generally Van Der Walt (2006).

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The impact of socio-economic rights in the area of family law has been more indirect, and the successes achieved in the cases reviewed in this chapter have been achieved largely through relying on a paradigm of gender or marital status equality. Litigation in this area has been largely driven by non-governmental organisations and social movements focusing on women’s rights, as well as by the gay and lesbian equality movement. The Women’s Legal Centre and the Gender Project of the Centre for Applied Legal Studies have played a significant role in the legal arguments advanced in the cases discussed in this chapter. Further research is required on the extent to which family law affects a range of vulnerable grouping’s access to socioeconomic rights such as housing, social security, education, and health care. A more explicit reliance on socio-economic rights may help make more transparent the extent to which private law rules – whether sourced in legislation, common law, or customary law – shape access to crucial socio-economic benefits and resources. As argued here, contract law has been largely insulated from the normative values and purposes of socio-economic rights. One can only speculate as to why the courts have been far more willing to apply socio-economic rights, such as housing, robustly in the area of evictions law while these rights have had a minimal impact in contract law. A possible explanation is that the courts are anxious to avoid the spectre of the forced removals from land and housing that epitomised apartheid race-based spatial engineering. Contract law is perhaps perceived as more ideologically neutral and less implicated in the race-based injustices of the South African past. However, as studies such as Martin Chanock’s illustrate, South African contract law was deeply implicated in racial exploitation across a wide spectrum of social and economic relations during the colonial and apartheid eras (Chanock, 2001: 169–84). But even if this were not the case, contract law is hardly ideological neutral. It constitutes the legal substructure of market economies at a particular juncture in history.83 This body of law has very particular and concrete consequences for those who are poor and economically marginalised. The challenge remains for socio-economic rights scholars, activists, and lawyers to make these consequences much more explicit and to develop an appropriate normative framework and remedies for promoting contractual justice. Socio-economic rights advocacy and litigation should undoubtedly aim to stimulate the adoption of a range of social programmes. As Marius Pieterse argues, State provisioning “both reduces pressure on private relationships to provide for the socio-economic needs of all the members and lessens the extent of people’s dependence on relationships for their enjoyment of socio-economic rights (Pieterse, 2009: 217). However in pursuing these strategies, care should be taken not to perpetuate the notion that socio-economic rights are exclusively about the provision of welfare benefits by the State to ‘the poorest of the poor’. This ignores or downplays 83

On the central role of a particular conception of private property and contractual autonomy in neo-liberal theory, see Harvey (2005: 64–67).

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the responsibility of the State in the vast areas of law governing the distribution of resources among various private parties. These areas of law cannot be neglected if socio-economic rights are to play a meaningful role in bringing about fundamental reforms to many of the central tenets of the South African legal system. Such reforms are essential to the development of a legal system that is, as a whole, more responsive to the claims of those marginalised by poverty and social inequality. Postscript On 13 March 2012, the Constitutional Court handed down its judgment in the case of Maphango & Others v Aengus Lifestyle Properties (with Inner City Resource Centre as amicus curiae) [2012] ZACC 2 (see section 5 above). The majority of the Court held that the High Court and the Supreme Court of Appeal had failed to give adequate consideration to the Rental Housing Act 50 of 1999. In particular, they held that the landlord’s conduct in exercising the bare power of terminating the leases for the sole purpose of securing higher rentals may have amounted to an “unfair practice” in terms of the Rental Housing Act. The Court held that one of the significant ways in which socio-economic rights can have a ‘ripple out’ to private relationships is when the State takes legislative and other measures to fulfil the relevant right. The Rental Housing Act was a prime instance of such a measure. The Court postponed the appeal, and gave both parties until 2 May 2012 to lodge a complaint with the Tribunal. It also allowed the parties to seek leave to apply to the Court following the Tribunal’s decision. The Constitutional Court thus interpreted relevant social rights legislation in a way which increases the protection of the housing rights of tenants. However, the development of the common law to give full effect to the underlying purposes and values of housing rights still remains major unfinished business for the courts.

references Albertyn, Catherine (2007), ‘Substantive equality and transformation in South Africa’, South African Journal on Human Rights, Vol. 23, pp. 253–76. (2009), “‘The stubborn persistence of patriarchy?” Gender equality and cultural diversity in South Africa’, Constitutional Court Review, Vol. 2, pp. 165–208. Albertyn, Catherine, and Beth Goldblatt (2009), ‘Equality’, in Stuart Woolman et al. (eds.), Constitutional law of South Africa, 2nd ed., Original Service (Claremont: Juta & Co), chapter 35, pp. 1–85. Bhana, Deeksha (2008), ‘The role of judicial method in the relinquishing of constitutional rights through contract’, South African Journal on Human Rights, Vol. 24, pp. 300–17. Bilchitz, David (2008), ‘Corporate law and the Constitution: Towards binding human rights responsibilities for corporations’, South African Law Journal, Vol. 125, pp. 754–89. Bonthuys, Elsje (2008), ‘Realizing South African children’s basic socio-economic claims against parents and the State: What courts can achieve’, International Journal of Law, Policy & the Family, Vol. 22, pp. 333–55.

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Brand, Danie (2005), ‘The “politics of need interpretation” and the adjudication of socioeconomic rights claims in South Africa’, in Andr´e Van der Walt (ed.), Theories of social and economic justice (Stellenbosch: SUN Press), pp. 17–36. Chanock, Martin (2001), The making of South African legal culture: 1902–1936: Fear, favour and prejudice (Cambridge: Cambridge University Press). Cheadle, Halton (2010), ‘Labour relations’, in Halton Cheadle, Dennis Davis, and Nicholas Haysom (eds.), South African constitutional law: The Bill of Rights (Durban: LexisNexis Butterworths), chapter 18, pp. 1–39. Claassens, Aninka, and Sindiso Mnisi (2009), ‘Rural women redefining land rights in the context of living customary law’, South African Journal on Human Rights, Vol. 25, pp. 491–516. Clapham, Andrew (2006), Human rights obligations of non-State actors (Oxford: Oxford University Press). Cockrell, Alfred (1993), ‘“Can you paradigm?” – Another perspective on the public law/private law divide’, Acta Juridica, pp. 227–47. Cooper, Carole (2006), ‘Labour relations’, in Stuart Woolman et al. (eds.), Constitutional law of South Africa, 2nd ed., Original Service (Claremont: Juta & Co), chapter 53, pp. 1–59. Courtis, Christian (2008), ‘Argentina: Some promising signs’, in Malcolm Langford (ed.), Social rights jurisprudence: Emerging trends in international and comparative law (Cambridge: Cambridge University Press), pp. 163–81. Craven, Matthew (2005), ‘Assessment of the progress on adjudication of economic, social and cultural rights’, in John Squires, Malcolm Langford, and Bret Thiele (eds.), The road to a remedy: Current issues in the litigation of economic, social and cultural rights (Sydney: Australian Human Rights Centre, University of New South Wales with Centre on Housing Rights and Evictions), pp. 27–42. Davis, Dennis (2011), ‘Developing the common law of contract in the light of poverty and illiteracy: The challenge of the Constitution’, Stellenbosch Law Review, Vol. 22, pp. 845–64. Davis, Dennis, and Karl Klare (2010), ‘Transformative constitutionalism and the common and customary law’, South African Journal on Human Rights, Vol. 26, pp. 403– 509. De Feyter, Koen, and Felipe Gomez Isa (eds.) (2005), Privatisation and human rights in an ´ era of globalisation (Antwerp: Intersentia). Dugard, Jackie, and Nthabiseng Mohlakoana (2009), ‘More work for women: A rights-based analysis of women’s access to basic services in South Africa’, South African Journal on Human Rights, Vol. 25, pp. 546–71. Ellmann, Stephen (2001), ‘A constitutional confluence: American ‘State action’ law and the application of South Africa’s socio-economic rights guarantees to private actors’, in Penelope Andrews and Stephen Ellmann (eds.), The post-apartheid constitutions: Perspectives on South Africa’s basic law (Johannesburg: University of the Witwatersrand Press; Athens: Ohio University Press), pp. 444–80. Fraser, Nancy (1989), ‘Talking about needs: Interpretive contests as political contexts in welfare-state societies’, Ethics, Vol. 99, pp. 291–313. (1996), ‘Gender equity and the welfare state: A postindustrial thought experiment’, in Seyla Benhabib (ed.), Democracy and difference: Contesting the boundaries of the political (Princeton, NJ: Princeton University Press), pp. 218–41. Fredman, Sandra (2008), Human rights transformed: Positive rights and positive duties (Oxford: Oxford University Press).

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Goldblatt, Beth (2003), ‘Regulating domestic partnerships – A necessary step in the development of South African family law’, South African Law Journal, Vol. 120, pp. 610– 29. Harvey, David (2005), A brief history of neoliberalism (Oxford: Oxford University Press). Klare, Karl (1998), ‘Legal culture and transformative constitutionalism’, South African Law Journal, Vol. 14, pp. 146–88. Kok, Anton, and Malcolm Langford (2004), ‘Water’, in Stuart Woolman et al. (eds.), Constitutional law of South Africa, 2nd ed., Original Service (Claremont: Juta & Co), chapter 56B, pp. 1–79. Kruuse, Helen (2009), ‘“Here’s to you, Mrs Robinson”: Peculiarities and paragraph 29 in determining the treatment of domestic partnerships’, South African Law Journal, Vol. 25, pp. 380–92. Liebenberg, Sandra (2010), Socio-economic rights: Adjudication under a transformative constitution (Claremont: Juta & Co). Olsen, Francis (1983), ‘The family and the market: A study of ideology and legal reform’, Harvard Law Review, Vol. 96, pp. 1497–1578. Pieterse, Marius (2003), ‘Beyond the welfare state: Globalisation of neo-liberal culture and the constitutional protection of socio-economic rights in South Africa’, Stellenbosch Law Review, Vol. 14, pp. 3–28. (2007), ‘Indirect horizontal application of the right to have access to health care services’, South African Journal on Human Rights, Vol. 23, pp. 157–79. (2009), ‘Relational socio-economic rights’, South African Journal on Human Rights, Vol. 25, pp. 198–217. Quinot, Geo (2009), State commercial activity: A legal framework (Claremont: Juta & Co). Roux, Theunis (2004), ‘Continuity and change in a transforming legal order: The impact of Section 26(3) of the Constitution on South African law’, South African Law Journal, Vol. 121, pp. 466–92. Seidman, Louis (2006), ‘Critical constitutionalism now’, Fordham Law Review, Vol. 75, pp. 575–92. Sepulveda, Magdelena (2008), ‘Colombia: The Constitutional Court’s role in addressing ´ social injustice’, in Malcolm Langford (ed.), Social rights jurisprudence: Emerging trends in international and comparative law (Cambridge: Cambridge University Press), pp. 144–62. South African Law Reform Commission (2003), Islamic Marriages and Related Matters Report, http://www.justice.gov.za/salrc/reports/r prj59 2003jul.pdf. South African Law Reform Commission (2006), Domestic Partnership Project 118 Report, http://www.justice.gov.za/salrc/reports/r prj118 2006march.pdf. Theron, Jan (2000), ‘Responding to externalisation (Part 1)’, South African Labour Bulletin, Vol. 24, No. 6, pp. 59–68. (2001), ‘Responding to externalisation (Part 2)’, South African Labour Bulletin, Vol. 25, No. 1, pp. 63–68. (2012), ‘Prisoners of a paradigm: Labour broking, the “new services” and non-standard employment’, Acta Juridica, pp. 58–83. Tushnet, Mark (2003), ‘The issue of State action/horizontal effect on comparative constitutional law’, Journal of International Constitutional Law, Vol. 1, pp. 79–98. Van der Walt, Andr´e (2005), Constitutional property law (Claremont: Juta). (2006), ‘Legal history, legal culture and transformation in a constitutional democracy’, Fundamina, Vol. 12, pp. 1–47. (2009), Property in the margins (Portland, OR: Hart Publishing).

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Williams, Lucy (2002), ‘Beyond labour law’s parochialism: A re-envisioning of the doctrine of distribution’, in Joanne Conaghan, Richard Fischl, and Karl Klare (eds.), Labour law in an era of globalization: Transformative practices and possibilities (Oxford: Oxford University Press), pp. 93–114. Wilson, Stuart (2009), ‘Breaking the tie: Evictions, homelessness and a new normality’, South African Law Journal, Vol. 126, pp. 270–90. Woolman, Stuart (2005), ‘Application’, in Stuart Woolman et al (eds.), Constitutional law of South Africa, 2nd ed., Original Service (Claremont: Juta & Co), chapter 31, pp. 1–161.

4 Post-Apartheid Social Movements and Legal Mobilisation Tshepo Madlingozi*

1. INTRODUCTION

This chapter focuses on the role and impact of socio-economic rights strategies on social movements. Specifically, it analyses the role and impact of socio-economic rights strategies on the emergence, sustenance, trajectory, and outcomes of social movements. In line with a legal mobilisation framework, this chapter eschews a court-centric, top-down approach for a bottom-up approach that investigates the when, why, how, and what of socio-economic rights mobilisation by post-apartheid social movements. Three central concepts must be specified before proceeding further. First, the term legal mobilisation is used here in a narrow sense to refer to those instances when social movements explicitly employ rights strategies and tactics in their interactions with the State and other opponents. In this regard, Zeemans offers a helpful definition: “law is mobilised when a desire or want is translated into a demand as an assertion of rights” (cited in McCann 1994: 6, my emphasis). This takes place when political challengers imbue their claims with ‘rights talk’, believing that ‘rights’ add a persuasive value to their political demands, that ‘rights’ clothe political demands with a moral urgency that separate them from ordinary interests (Rosenberg, 2009), and that ‘rights reasoning’ permits them to be right about their value judgment rather than just stating a preference (Kennedy, 2002). To state the obvious, then, not every demand or plea for a state resource or any other perceived entitlement is understood or conceived as a ‘rights-based claim’ by marginalised challengers. As we will see later, this distinction is important if we are to specify the distinct role and impact of socio-economic rights strategies in the complex ebb and flow of social movement struggles. * Senior Lecturer, Faculty of Law, University of Pretoria. I thank Michael Neocosmos for supervising the initial research upon which this chapter is based. I also thank Sanele Sibanda and my co-editors for helpful comments and suggestions.

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The second concept that needs to be specified is that of social movement. In his highly influential book Power in Movement, Sidney Tarrow (1998: 2) explains that he reserves the term social movement “for those sequences of contentious politics that are based on underlying social networks and resonant collective action frames, and which develops the capacity to maintain sustained challenges against powerful opponents.” Tarrow later explains that collective action becomes contentious when it “is used by people who lack regular access to representative institutions, who act in the name of new or unaccepted claims, and who behave in ways that fundamentally challenge others or authorities” (Tarrow, 2011: 7). Social movements are therefore made up of collectives of marginalised actors who develop a collective identity; who put forward change-oriented goals; who possess some degree of organisation; and who engage in sustained, albeit episodic, extra-institutional collective action (see also Snow et al., 2004). Social movement activity is therefore distinguishable from the kinds of ‘spontaneous’ community protests discussed by Dugard in chapter 10. These latter protests are usually not based on underlying social networks, they lack some degree of organisation, they fail to develop a collective identity, and they thus do not develop the capacity to maintain sustained challenges against the state and others.1 Moreover, ‘established’ movements are usually not involved in the instigation and coordination of these ‘spontaneous’ protests (Khanya College, 2011: 15–16). Last, social movements are distinguishable from non-governmental organisations (NGOs), NGO coalitions, interest groups, and modern trade unions – such as the ones discussed by Habib, Wynberg and Fig, and Goldblatt and Rosa in this volume – by the fact that the action repertoires of social movements are generally skewed in a non-institutional direction (Snow et al., 2004: 8). In particular, social movements mostly rely on disruptive protests and other novel, dramatic, and unorthodox forms of political expressions (Taylor and van Dyke, 2004: 263). Again, specifying social movements by the fact that they are collectives of marginalised actors who rely on and derive their potency from sustained extra-institutional, contentious collective action has implications about how we understand the relationship and tension between social movements and legal strategies. Finally, all references to law in this chapter refer to State law. I take the point of legal pluralists that in a single political unit, there is no one law; rather, State law intersects with, competes with, shapes, and is shaped by non-State normative systems, moral codes, and non-judicial legal orderings that could be considered law. This plurality extends beyond the well-known interaction between State law and ‘customary law’ (Wilson, 2000; Santos, 1995). Even though I do not address the influence of non-State law, the following quick point should be made: the workings of what could be called comrades’ law or activists’ law – to take from the widely held view by activists that the law is anti-poor and pro-capitalist (see 1

For examples of these struggles, see Karamoko (2011); Sinwell et al. (2009); Botes et al. (2007).

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Democracy Development Programme, 2010; Pithouse and Butler, 2007; Cassiem, 2005) – is evident when activists view unauthorised reconnection of water and electricity supplies and occupation of unused land to be “not illegal” acts;2 and when they invoke, and act on, ‘rights’ that have not yet received legislative or judicial approval, such as the right to land and the right to electricity. This point is well captured in this advice from the Western Cape Anti-Eviction Committee: “Make sure you break the government’s laws when necessary, but do not break your own laws” (2009: n.p.). Unless otherwise stated, in this chapter I limit myself to State law. The debate on the role and impact of legal strategies on social movement is not new and is one that is ongoing in other contexts (see Santos and Rodr´ıguez-Garavito, 2009; Sarat and Scheingold, 2006; McCann, 1994; Rosenberg, 1991; Gabel and Kennedy, 1984; Scheingold, 1974). Put crudely, two main positions can be discerned. On the one side are scholars who argue that the law is ideologically biased towards the preservation of the status quo (Gabel and Kennedy, 1984); that because law is a powerful part of the cultural repertoire individuals use in making sense of the world, its constitutive power can function to reify ongoing domination, transmute radical desires, lower expectations, and induce passivity (Brown and Halley, 2002); that legal tactics are detrimental to movement building because they deflect resources and attention from protest action and other forms of collective grassroots organising; that legal strategies could lead to the dominance of poor people’s organisations by lawyers and other elites (Jones, 2006; NeJaime, 2011); and that, in any case, courts are institutionally incapable of ushering in fundamental transformation, and as such court victories may offer merely hollow hope (Rosenberg, 1991). On the other side are scholars who, whilst acknowledging the limits of law and courtroom strategies, highlight the indirect and inspirational outcomes legal strategies can have for movements. Central to this view is the legal mobilisation framework (McCann, 1994). Scholars who adopt this framework urge critics to study more closely what lawyers and movements seek to achieve through legal strategies. Using this bottom-up approach, legal mobilisation scholars seek to show that rights strategies and other legal strategies can contribute to movement building in a variety of ways: by (re)activating oppressed and previously dispirited people (Sarat and Scheingold, 2006; Williams, 1987), by helping to frame a collective identity (Marshall, 2005), by helping to attract the sympathy of the media (Jacobs and Johnson, 2007), and by serving as a frame bridge between marginalised people and middleclass supporters (Levistky, 2006). This debate goes to the heart of this chapter. I combine insights from social movement studies and the law and society literature, supplemented with interviews and secondary sources, to tease out the context-specific and contingent factors that play significant roles in effective legal mobilisation by social movements in South Africa. I use the phrase ‘effective legal mobilisation’ in a normative sense to mean 2

Sibusiso Zikode, former President of Abahlali baseMjondolo, interview with the author, 15 August 2011, Durban.

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the strategic deployment of socio-economic rights discourse(s) and tactics in a way that does not lead to the co-optation, disempowerment, or demobilisation of social movements. In Section 2 I highlight the main political and cultural variables that, to a large extent, shape the effectiveness of the overall struggle of a social movement. These variables should always be factored in to avoid overestimating or underestimating the effects of legal strategies in movement struggles. Sections 3 and 4 are the main parts of this chapter. Through brief case studies of two of the most prominent post-apartheid movements, the Treatment Action Campaign and Abahlali baseMjondolo, I illustrate how the variables of political opportunities and threats, action repertoire, resources, and framing determine the role and impact of socioeconomic rights strategies on differently situated movements. Those sections also offer a general overview of the opportunities and constraints facing national and local movements. 2. LEGAL MOBILISATION IN CONTEXT

The analysis in this chapter begins from the basic premise that legal mobilisation is not an insular and autonomous social movement activity but takes place in context. With this premise in mind, I begin by highlighting the most pertinent conditions necessary for effective legal mobilisation by foregrounding four main variables emphasised in traditional social movement scholarship: political opportunities and threats, action repertoire, resources, and collective action frame. In this section I sketch out each of these variables in turn before turning to apply to them to the South African context. 2.1. Political Opportunities and Threats The core constituency of social movements is made up of individuals who lack resources and political clout, and who therefore find it hard to advance their collective interests (McAdam, 2004: 203). Tarrow’s (1998) seminal study shows that it is only when there are shifts in patterns of political opportunities and constraints that marginalised actors are able to embark on contentious campaigns, sustain contention, and eventually create social movements. Tarrow defines political opportunities as “consistent – but not necessarily formal, permanent, or national – dimensions of the political struggle that encourage people to engage in contentious politics” (Tarrow, 1998: 19–20). By ‘political constraints’ he means “factors like repression, but also like authorities’ capacity to present a solid front to insurgents – that discourage contention” (Tarrow, 1998: 20). Following on the work of Tarrow and others, Hanspeter Kriesi (2004) illustrates that political opportunities and constraints consist of two main aspects: formal political institutions and prevailing strategies. From the perspective of social movements, political institutions can either be closed or open, that is, making access to the

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political system easy or more difficult (Kriesi, 2004: 70). By ‘prevailing strategies’, Koopmans and Kriesi (cited in Kriesi 2004: 71–72) refer to procedures typically adopted by the State when dealing with challengers. From the perspective of social movements, prevailing strategies can be exclusive (repressive, confrontational, polarising) or integrative (facilitative, cooperative, assimilative) (Kriesi, 2004: 71). Taken together, political opportunities and constraints play a major role in shaping how episodes of contention progress, the kind of social movements that emerge, and their outcomes. It is important to note that because political opportunities and constraints are “not necessarily formal, permanent or national” they affect different groups differently – available to some groups but not to others, perceived and acted on by some groups but not others. How actual or perceived political opportunities and threats affect a specific movement will depend on the kind of action repertoire it adopts, the internal and external resources at its disposal, and the way the movement makes sense of the political context and how it frames its goals. 2.2. Action Repertoire Action repertoire is the array of means deployed by collective actors when engaged in contentious politics (McAdam et al., 2001: 1). Put differently, an action repertoire, or a tactical repertoire, is a set of routines that are learned, shared, and acted out by collective contentious actors (Tarrow, 1998: 30). To effectively respond to shifting political opportunities and constraints, movement agitators resort to learned action repertoires to mobilise and (re)activate excluded people. As mentioned in the introductory section, a unique feature of social movements is their use of disruptive tactics like road blockades, marches and protests: “this is not because movement leaders are psychologically prone to violence but . . . in appealing to new constituencies and asserting their claims, contention may be the only resource movements control” (Tarrow, 1998: 5). Moreover, disruption is the most potent weapon for social movements because it spreads uncertainty and gives leverage to weak and excluded actors (Tarrow, 1998). However, over time disruptions stop being novel and ‘newsworthy’ and/or authorities become adept at anticipating and controlling them (Taylor and van Dyke, 2004). When this happens, movements can take one of the following three common strategic routes: deploy more violent tactics, and so risk alienating mild-mannered members and supporters and suffering constant state repression; temper strategies and goals and negotiate on behalf of members within institutional settings and dominant ideological frameworks; or seek the difficult route of retaining a transgressive social movement identity while vacillating between institutional and extrainstitutional settings. Once again, the ‘choice’ a movement makes depends on the kinds of political opportunities and threats it faces, the resources at its disposal, and its interpretation and framing of the situation.

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2.3. Resources Incipient movements need resources to sustain collective protest, to build organisations, and to expand their campaigns trans-locally and trans-nationally. Edwards and McCarthy (2004) specify five types of resources: social-organisational, moral, cultural, human, and material. Social-organisational resources refer to “those collective vehicles, informal as well as formal, through which people mobilise and engage in collective action” (McAdam, 2004: 128). Extant social-organisational resources are the collective building blocks of a social movement. Moral resources usually originate from outside protesting groups and include legitimacy, respectability, and solidarity support from the general public, mainstream media, and State and nonState elites (Edwards and McCarthy, 2004: 125). In this regard, social movement scholars contend that marginalised groups hardly ever win policy changes without the support of elites within the State (e.g. Tarrow, 1998). By ‘cultural resources’, Edwards and McCarthy refer to “artefacts and cultural products such as conceptual tools and specialised knowledge that have become widely available, though not necessarily universally known” (Edwards and McCarthy, 2004: 126). These include tacit knowledge about accomplishing certain tasks, such as how to stage a protest, ‘work’ the mainstream media, create own media, and use the Internet. Human resources encompass resources like adroit leadership, permanent staff and/or volunteers, skills, and experience (Edwards and McCarthy, 2004: 127). Finally, material resources include things like money, offices, and equipment (Edwards and McCarthy, 2004: 127). Without the availability of and creative use of at least some of these resources, underprivileged collective actors are unlikely to succeed. 2.4. Collective Action Frame The shifts in political opportunities and threats, and the availability of resources are not enough to spark off a sustainable contentious collective action. For this to happen, certain cognitive mechanisms must be brought to bear to alter individual and collective perceptions and to provoke a break with passivity, fear, or resignation (McAdam et al., 2001). At a minimum, changing political opportunities and threats must be perceived as such for aggrieved collectives to have an incentive to engage in collective action (McAdam, 2004). Social movement actors therefore engage in ongoing sensemaking and construction of meanings to activate collective action. Social movement scholars have named this interpretive process ‘collective action framing’ (Snow, 2004). Collective action framing is necessary to dignify, justify, and animate collective action (Tarrow, 1998: 21). An adroit movement agitator combines culturally resonant collective action frames with new, electrifying frames to alter perceptions and to provoke contentious collective action while simultaneously amassing resources.

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To recap, actual and perceived shifts in political opportunities and threats offer an incentive to aggrieved marginalised actors to embark on protest. Using wellknown action repertoires, appealing to culturally resonant and electrifying collective action frames, and creatively mobilising resources, marginalised groups can embark on sustained interaction with powerful adversaries and extract some concessions. How does the law fit in to all of this? First, legal reforms can destabilise settled political and social relations and thus set in motion broad shifts in discursive and structural opportunities or threats. Second, state legal procedures and tactics can complement or distract from well-known collective action repertoire. Third, legal strategies can lead to generative cross-class alliances, or they can lead to deflection of scarce movement resources and elite domination. Fourth, because the law is a powerful part of the cultural ‘tool kit’ through which subjects make sense of their world, legal discourses and symbols can complement collective action frames, or they can silence and undermine radical collective action frames. In the rest of the chapter, I apply these theoretical insights in my analysis of legal mobilisation by post-apartheid movements. Leaving aside conservative social movements,3 I have divided this analysis into national movements and locally focused social movements. I devote more space and discussion to locally focused movements because they make up the majority of post-apartheid social movements. In line with a legal mobilisation framework, I place the socio-economic rights strategies of the Treatment Action Campaign and Abahlali baseMjondolo within the broader cultural and political context and alongside the other activities and strategies of the two movements. In each section I start by contextualising the overall national or local context before delving into the concrete case study of the movement. 3. LEGAL MOBILISATION BY NATIONAL MOVEMENTS

3.1. Overview of Political Opportunities, Framing, and Legal Mobilisation National social movements operate at a national level, where, overwhelmingly, the body politic is characterised by what Comaroff and Comaroff refer to as an “almost fetishized faith in constitutionality and the rule of law” (Comaroff and Comaroff, 2004: 515; see also Gibson, 2004; Mutua, 1997). These movements have benefitted from post-apartheid political liberalisation and from the discursive and institutional political opportunities that were produced by concerted international and 3

Although this chapter only focuses on legal mobilisation by progressive movements, legal mobilisation by conservative social movements should be noted. These movements have engaged in creative and successful mobilisation of socio-economic rights strategies to preserve the privileges of their constituencies, including campaigns to maintain Afrikaans-only schools, to obtain eviction orders, to thwart mixed-income settlements, and to set up gated communities.

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domestic efforts aimed at constructing a ‘human rights State’ and instilling in South Africans a ‘culture of human rights’.4 These efforts included various activities and spectacles that accompanied the constitution-making process, political re-education through the Human Rights Violations Committee of the Truth and Reconciliation Commission, and funding patterns that favoured civil society organisations that supported and promoted the values of liberal democracy. This transitional period was also marked by improving State–civil society relations under the integrative Mandela presidency. It was in this favourable context that, supported by NGOs, national social movements emerged campaigning for the constitutional protection of women’s rights, advocating against homophobia, and promoting the rights of victims and survivors of apartheid violations. The most active national movements include the Lesbian and Gay Equality Project (established in 1994), the Khulumani Support Group (for survivors of apartheid atrocities – established in 1995), and the Treatment Action Campaign (established in 1998). Most national movements could be said to be ‘rights based’ in that they are characterised by a “rights-based opposition [that] attempts to hold the government to constitutionally enshrined rights within the current liberal order” (Ballard, Habib, and Valodia, 2006: 400, my emphasis). Their ‘rights-based’ orientation is also evident in the fact that they employ the human rights discourse to frame their grievances and claims, to mould a collective identity, to catalyse their struggles, to secure elite support, and to extract resources from the State (Madlingozi, 2012; Heywood, 2009; Cock, 2003). Given the receptive discursive and institutional context outlined already, and having regard for the goals of these movements, this kind of collective action framing should be expected. As far as their action repertoires are concerned, although these movements do deploy extra-institutional tactics such as marches and sit-ins, overwhelmingly, they deploy these extra-institutional tactics to bolster ‘in-system’ tactics such as parliamentary submissions, lobbying, media campaigns, educational workshops, and litigation. Regarding organisational character, if the overarching political context and collective action framing influence the action repertoires adopted by these movements, then all three of these variables have a bearing on the movements’ organisational characters. In this regard, most national movements could be said to be ‘professionalised social movements’ in the sense that, even though they have a membership base that is generally marginalised, these organisations are often managed by a permanent, salaried staff; they have access to fixed and well-resourced offices; they rely on donor support; and they have registered themselves with the relevant State authorities as non-profit organisations or charities. The National Coalition for Gay and Lesbian Equality (NCGLE, now the Gay and Lesbian and Equality Project) is an example of how favourable institutional and 4

For an overview of the human-rights-friendly institutional and legislative opportunities that opened up for civil society organisations, see Section 1.1 of the introduction to this book.

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discursive opportunities favoured rights-based, national organisations. The NCGLE was formed in 1994 with the primary objective of lobbying for the retention of the anti-homophobia clause in the Final Constitution; an objective that was eventually achieved (Cock, 2003). Oswin (2007a) outlines at least three sets of favourable political opportunities that, in addition to the NCGLE’s effective strategy, could be said to be responsible for the success of this campaign. First, the political climate was favourable because, to put the evils of apartheid in the past, tolerance was the new order. Second, smaller ‘white’ political parties had to show commitment to gay and lesbian causes to compensate for the lack of support from black voters. Third, gay activists had well-placed sympathetic allies in the African National Congress (ANC) and the Congress of South African Trade Unions (COSATU). After this successful campaign, the coalition set about using this constitutional protection to launch a quick succession of successful test cases challenging discriminatory laws and policies. Oswin (2007b: 651) reports that, by 2007, eighteen pieces of legislation had been amended to ensure equitable treatment of homosexuals. An overwhelming number of these amendments involved socio-economic benefits in relation to medical aid, pension, parental rights, and immigration. These early legal gains eventually culminated in the enactment of the Civil Unions Act in 2006, which made South Africa the first African country to make provision for the legal recognition of same-sex unions.5 3.2. The Treatment Action Campaign The Treatment Action Campaign (TAC) is the most exemplary of the national social movements. Over the course of the past decade, it has emerged to become one of the world’s leading campaigners for the right to access to treatment for HIV/AIDS patients. The TAC mobilises socio-economic rights strategies to fashion a collective identity, to catalyse its struggle, to build alliances, to extract resources from the State, and to monitor policy implementation. With more than ten thousand members (TAC, 2010), six district offices, more than 130 branches, 230 organisers (TAC, 2011), and seventy-two full-time staff members (TAC, website), the TAC is one of the biggest and most successful post-apartheid civil society organisations. The TAC is well known for the decisive role it played, and continues to play, in the State’s decision to adopt a policy of universal access to antiretroviral (ARV) therapy treatment and to implement the largest roll-out of ARV therapy treatment in the world (AVERT, n.d.). As of May 2011, 1.4 million HIV/AIDS patients were on ARV therapy treatment (Motsoaledi, 2011). As a result of this and other successes, the TAC 5

On how the NCGLE’s strategy of focusing on institutional gains and formal equality hindered the possibility of building a strong social movement and growing gay activism beyond its base of white, male, middle-class membership, see Oswin (2007b); Cock (2003). For a good exposition on how despite formal and institutional gains poor, black, township-based lesbians continue to suffer from homophobia and even targeted “corrective rape”, see Mkhize et al. (2010).

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is viewed as a model of how social movements can effectively mobilise legal strategies to advance their causes (e.g. Marais, 2010; Heywood, 2009; Friedman and Mottiar, 2004; Jones, 2005). This sub-section recounts a well-known story to investigate the contextual variables that were central to TAC’s effective legal mobilisation. The TAC was launched in 1998 by a network of well-established organisations that constituted the AIDS Consortium – a coalition of doctors and NGOs. The TAC was initially set up as a targeted campaign for access to treatment for prevention-of-mother-to-child-transmission of HIV (PMTCT) for pregnant HIVpositive patients. In its first press statement, the TAC made reference to the fact that thousands of people in the global South were going through “unnecessary” suffering and AIDS-related deaths as a result of poverty and the unaffordability of HIV/AIDS treatment (TAC, 2010: 6). The TAC condemned these “human rights violations” and called on the state to make resources available for PMTCT treatment and universal access to HIV/AIDS treatment (TAC, 2010: 6). At that stage the State’s policy on HIV/AIDS had been characterised by poor coordination, limited inter-governmental collaboration, and lack of co-operation with civil society organisations (Budlender, cited in Jones, 2005: 427). Given the extent of the HIV/AIDS epidemic in South Africa, the State’s attitude and policy were literally costing thousands and thousands of lives. A 2000 government report captured the magnitude of the epidemic as follows: “Currently there are approximately 4.2 million South Africans living with HIV. It is estimated that in 1998 over 1,600 people were infected with HIV each day – translating to more than 550,000 people infected each year” (South African Government, 2000: 8). As far as framing and tactics are concerned, although the first TAC chairperson, Zackie Achmat, and some of the other ten founding members came out of the Marxist Workers Tendency of the ANC,6 the TAC took a strategic decision not to present itself as a “counter-hegemonic” or “left” movement (Buhlungu, 2006: 70). In fact, from the start TAC leaders emphasised their loyalty to the ANC and explained that they wished to partner with government. As we will see later, this kind of framing was important in ensuring that the TAC secure the support of valuable ANC and State elites. Zackie Achmat also brought with him a wealth of experience in the use of rights-based tactics and frames. As director of the NCGLE, Achmat had been part of a successful rights-based lobbying and litigation campaign. The TAC’s strategic and tactical orientation was also influenced by the prevailing and successful rights strategies adopted by international HIV/AIDS activist movements (Jacobs and Johnson, 2007). From its inception, therefore, the TAC mobilised socio-economic rights discourse to frame its demands and to ensure alliance building. Socio-economic rights discourse, together with a bio-medical science discourse, was also central to how the TAC recruited members. To recruit members and to 6

The Marxist Workers Tendency of the ANC was launched by a group of Trotskyist activists after they were expelled from the ANC in 1979. For more on this group see its official journal Inqaba ya Basebenzi: Journal of Marxist Workers Tendency of the ANC.

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make sure that the TAC became a broad social movement and not “just another NGO”, the TAC went about setting up branches in different provinces (Mthathi, cited in TAC, 2010: 30). Central to the success of the branches was, and still is, the TAC’s Treatment Literacy Programme (TLP). The TLP educated communities about the science of HIV/AIDS and its treatment as well as patients’ rights to treatment. With this programme TAC activists were able to demonstrate the efficacy of ARV treatment, to counter stigma, and to mobilise grassroots support. The State was initially sympathetic to calls for a policy and plan on PMTCT, and in April 1999 it released a joint statement with the TAC stating that the major barrier to implementation of a PMTCT program was the prohibitive cost of the required antiretroviral drug (Heywood, 2003: 281). In September 1999, when the TAC demanded the acceleration of the implementation of the PMTCT program, the minister of health stated that implementation was delayed because there were concerns with, amongst other things, the safety and efficacy of nevirapine and that the government was awaiting results of a clinical trial. In 2000, when it became clear that the government was just employing delaying tactics that appeared politically motivated, the TAC threatened to embark on litigation (Heywood, 2003). To put pressure on the State and drug manufacturers, in July 2000 the TAC announced that it was embarking on a series of civil disobedience campaigns. The first campaign, the Defiance Campaign against Patent Abuse and AIDS Profiteering, targeted the pharmaceutical company Pfizer over its refusal to lower the price of the ARV drug fluconazole (TAC 2010: 44). As part of this campaign, the TAC held a dramatic press conference in 2000 to announce that Achmat had just returned from Thailand with five thousand tablets of illegally imported generic fluconazole. The TAC then turned its attention to State authorities with its next campaign, the Dying for Treatment civil disobedience campaign. As part of this campaign TAC activists staged sit-ins at police stations and agreed to be arrested, and the TAC laid charges of culpable homicide against the minister of health and the minister of trade and industry for failing to unveil a treatment plan (TAC 2010). These well-publicised defiance campaigns stirred memories of anti-apartheid defiance campaigns and were very effective in growing the profile of the new organisation and in mobilising grassroots support. In April 2001 the TAC, assisted by the AIDS Law Project,7 submitted an amicus curiae brief in support of the State against forty multi-national pharmaceutical companies. This decision was a further sign of the TAC’s strategic nous, as it took 7

The TAC’s rights-based campaign is bolstered by the fact that right from the start, it could rely on the AIDS Law Project (ALP, now Section27) for support and mutual strategising. The relationship between the TAC and ALP is symbiotic. Achmat was ALP’s founding director and until 2008 its board member. The executive director of Section27 is Mark Heywood, who was the TAC’s treasurer until 2008 and is a member of the TAC Secretariat. The general secretary of the TAC, Vuyiseka Dubula, is chairperson of Section27’s board of directors. Last, Nonkosi Khumalo, a senior researcher at Section27, has been seconded to the TAC as its full-time chairperson. Unlike the TAC, most social movements do not have the benefit of a permanent legal advocacy organisation partner.

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place in the context of increasing public acrimony between the TAC and the State. These companies had launched a lawsuit to prevent the State from passing amendments to the Medicines and Substances Related Control Act, in order to enable it to import cheaper generic drugs. In the face of an immense TAC-led global rights campaign, the pharmaceutical companies relented and withdrew the case. The national and international prominence that the TAC garnered from this case catalysed the fledgling movement and helped solidify its local and international alliances with health professionals, scientists, NGOs, and donors. Returning to the PMTCT campaign, the State’s about-turn on PMTCT coincided with President Mbeki’s public critique of the prevailing scientific opinion about the best way to resolve the AIDS crisis. The TAC and its global partners responded to the president’s ‘genocidal denialism’ by drawing effectively from the discourses of science and human rights (see Robins, 2008; Jacobs and Johnson, 2007). Scientists, health professionals, academics, journalists, and cartoonists all came together to support the TAC and to fiercely contradict and ridicule the president’s ‘AIDS denialism’.8 Throughout this campaign, Zackie Achmat and other TAC leaders reiterated their loyalty to the ANC and argued that all they sought was to act as a partner and watchdog for government. These strategies enabled the TAC to attract the support of ANC supporters, including the powerful COSATU. Having secured this moral advantage, in August 2001, the TAC decided “that both morally and politically it had no other options than to launch a case against the government” (Heywood, 2003: 209). At this time the government had restricted the roll-out of nevirapine to a few research and training sites, arguing that it was investigating the efficacy and safety of the drug. The TAC argued that the government had acted unconstitutionally in refusing to make nevirapine available in cases when the attending doctor considered it medically indicated and in not setting out a time frame for a national program for PMTCT. In July 2002 the Constitutional Court upheld an earlier High Court decision and ordered the roll-out, ‘without delay’, of nevirapine at public hospitals and clinics beyond the few pilot sites where nevirapine was being offered.9 As can be gleaned from this brief account, the TAC’s effective rights-based campaign for PMTCT ensured that by the time it decided to engage in the courtroom battle, it had already won the moral high ground and mobilised consensus around the ‘right to treatment’. The media campaigns and social mobilisation activities that surrounded the two prominent and successful cases expanded discursive and political opportunities, attracted resources, and helped catalyse and consolidate the TAC’s 8

9

Support for TAC was not only in the form of moral resources such as legitimacy and solidarity; it also, and perhaps most important, extended to support in the form of material resources. Indeed, by 2004 TAC had roughly forty permanent staff members and a budget of about R40 million (Friedman and Mottiar, 2004). These resources enabled the TAC to undertake prominent mobilisation activities and extensive media campaigns to catalyse its socio-economic rights campaign. Treatment Action Campaign v Minister of Health (No. 2) 2002 (5) SA 721 (CC).

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struggle. The 2003 groundbreaking Cabinet decision to approve a bold national treatment plan – beyond the PMTCT – is often attributed to TAC’s rights-based campaign (e.g. Heywood, 2005; Jones, 2005). Although there are other factors that also contributed to the State’s decision,10 there is no doubt that the TAC’s moral hegemony and the public pressure that the TAC generated strengthened the position of ANC and State elites who were in favour of a comprehensive HIV/AIDS treatment program. Beyond the 2002 case, the TAC has continued to appeal to socio-economic rights norms and procedures to advocate for the implementation of the PMTCT judgment and the broader HIV/AIDS-treatment programme.11 It also deploys rights strategies against private actors, for example in campaigns against false advertising and the sale of unregistered medicine. Drawing from this rich experience, the TAC is currently collaborating with a range of civil society organisations on a number of social justice campaigns, including campaigns for the rights of refugees and against sexual violence and hate crimes. The TAC has also endeavoured to keep its rank-and-file members mobilised by involving them in joint campaigns with partner organisations and by expanding its support groups. It is on the basis of this ongoing activism and past successes that the TAC is regarded by many commentators as the most successful post-apartheid civil society organisation (e.g. Marais, 2010; Robins, 2008). However, more critical voices contend that the TAC’s ‘over-reliance’ on the human rights discourse – together with its uncritical adoption of orthodox biomedical science discourse – had detrimental indirect and symbolic impacts on the movement and its members. For example, Gibson (2006), Johnson (2007), and Neocosmos (2009) argue that the TAC’s reliance on rights strategies has led to its professionalisation or ‘NGO-isation’, de-radicalisation, de-mobilisation, and the disempowerment of those infected and affected by HIV/AIDS. Although all these claims might have some legitimacy, what needs to be borne in mind is that the TAC was never a ‘typical’ social movement. The TAC was established by middle-class activists “who [had] working-class roots” (TAC, 2010: 30). These activists mobilised the discourses of human rights and bio-medicine to mobilise a grassroots constituency, to establish cross-class alliances, and ultimately to set up a social movement (see Vandormael, 2007; Friedman and Mottiar, 2004). Therefore, it was not ‘overreliance’ on rights strategies that transformed the TAC into a professionalised, quasi NGO; that has always been its character. 10

11

In his brilliant biography of Thabo Mbeki, Mark Gevisser (2009, chapter 41) focuses on two meetings that were pivotal to the State’s turnaround: a Cabinet meeting that took place in January 2002 and an ANC National Executive Committee meeting that was held in March 2002. At these meetings ANC leaders such as Nkosazana Zuma (foreign minister) and Joel Netshitenzhe (government communication chief and a Mbeki confidant) convinced a reluctant Mbeki that the public debate into the causes of HIV/AIDS were sending mixed messages because the State’s own AIDS policy proceeded from the premise that HIV causes AIDS, and further that the cost of ARV treatment was cheaper than initially estimated. For examples of these campaigns, see TAC (2010: 71, 81, 88, 90).

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Similarly, to impugn rights strategies for the alleged de-radicalisation of the TAC is a mistake. The TAC’s collective action framing was never ‘radical’ – at least not in the manner that counter-hegemonic scholars and activists would like to think of it. As Zackie Achmat unequivocally put it: “we want to get medicines to people – we don’t want to cause a revolution” (cited in Friedman and Mottiar, 2004: n.p.). Moving from framing to tactics, it is also clear from this brief case study that the majority of the TAC’s tactics have always been of an ‘in-system’ character. The TAC deployed ‘radical’ tactics – as part of the defiance campaigns – only at specific moments when the State was not responsive to in-system tactics. In any case, these tactics, which the TAC always justified under a human rights frame, produced the desired effect of turning public opinion against the State while securing mass support, media sympathy, and elite support for the TAC. While the TAC continues to engage in protest marches to highlight key grievances, the TAC’s struggle takes place mainly on an institutional plane. This is because the TAC has succeeded in its goal of being considered a legitimate partner with government in the battle against HIV/AIDS. This conferral of legitimacy reached its zenith when Mark Heywood, TAC treasurer (until 2008) and member of TAC Secretariat, was appointed deputy chairperson of the National AIDS Council. The fact that the last two health ministers have been willing to collaborate with the TAC also means that, from the perspective of the TAC, mass mobilisation and other forms of extra-institutional action are not necessary. The important point here is that rights strategies did not ‘institutionalise’ the TAC; the TAC has always deployed extra-institutional tactics to bolster institutionally based tactics. To conclude this section, if one took the TAC’s own vision – universal and equal HIV/AIDS treatment – as the yardstick, one would have to conclude that socio-economic rights strategies have had positive material, indirect, and symbolic impacts on the TAC and its main campaign. The material impacts are evident in the fact that the State finally adopted, and is implementing, a comprehensive HIV/AIDS treatment policy. The TAC has declared this campaign a success, noting that although four million HIV-positive people still need treatment, “through the Treatment Action Campaign[’]s work for the right to health and ARV treatment we saved over a million lives” (Heywood, 2010: 1). The PMTCT campaign has had even more substantial success. A recent national survey conducted between June and December 2010 found that the rate of mother-to-child HIV transmission was only 3.5 per cent (Medical Research Council, 2011). The TAC’s rights campaign also led to robust trans-local and trans-national alliances. As a result of this campaign, South African medical practitioners, legal advocacy organisations, scientists, and researchers entered into permanent partnership arrangements with the TAC. At the same time, influential international NGOs, inter-governmental organisations, funding foundations, foreign politicians, and celebrities aligned themselves to the TAC’s cause. These alliances were indispensable in putting pressure on reticent but brand-conscious pharmaceutical

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companies as well as on the reluctant but internationally sensitive South African State. At the same time, alliances with these elite actors secured important human and material resources for the TAC, enabling it to expand and consolidate its campaign. Without these resources, the TAC would not have been able to engage in high-profile, rights-based campaigns and lawsuits. Alliance building and attendant resources, therefore, constitute the most important indirect impacts of the TAC’s socio-economic rights strategy. Last, the TAC’s ongoing moral hegemony over debates around HIV/AIDS is a very significant symbolic impact. These impacts were possible because the TAC operated in a favourable discursive and institutional political context, it had resources needed to pursue a high-profile rights-based campaign, and its tactical repertoire and collective action framing were such that it could mobilise both a grassroots following and State and nonState elite support. As we will see, these variables are not always available for locally focused, ‘counter-hegemonic’ social movements. 4. LEGAL MOBILISATION BY LOCAL MOVEMENTS

4.1. Political Context The two main aspects of the political context that shape the struggles of locally focused social movements are the hardships entrenched by austere macroeconomic policies and the truncated nature of local democracy. Locally focused movements respond to these political threats and constraints by employing learned action repertoires from the anti-apartheid era. These tactical repertoires include erecting barricades to prevent evictions and cut-offs, reconnecting disconnected water and electricity supplies, occupying unused private and public land, and campaigning for election boycotts. These movements are made up of unemployed and precariously employed township residents, they rely on membership contributions and donations by middle-class collaborators, and they generally direct their activism towards local authorities – even in respect of provincial and national policies. Most of these movements adopt a class-based collective action frame in terms of which the problem is neo-liberalism, and the solution is socialism.12 They frame their campaigns in self-consciously counter-hegemonic terms and claim to campaign for more than just ‘service delivery’ and inclusion in state-created institutions of governance.13 The avowed long-term visions of these movements include the abolition of both capitalism and liberal representative (‘bourgeois’) democracy. Their short- to medium-term goals are oriented towards compelling the State to expand welfare services – such 12

13

Movements that espouse an explicitly socialist vision include Abahlali baseMjondolo, the AntiPrivatisation Forum, Mandela Park Backyarders, the Soweto Electricity Crisis Committee, the Unemployed People’s Movement, and the Western Cape Anti-Eviction Committee. For a critique of the counter-hegemonic credentials of these movements, see Sinwell (2011); McKinley (2008). It is on the basis of these critiques and others that I use ‘counter-hegemonic’ in inverted commas.

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as free basic water and electricity supply, subsidised housing, and social security – while meaningfully engaging them. Political Opportunities and Threats: ‘Harsh’ Economic Policies The State’s embrace of a largely neo-liberal macroeconomic policy – formalised in 1996 with the adoption of the Growth, Economic, and Redistribution (GEAR) program – led to steady cutbacks in central government allocations to local authorities, leaving municipalities with little choice but to introduce cost-recovery and cost-cutting measures. In the months following the adoption of GEAR, non-paying residents were issued with eviction notices and water and electricity bills in line with the State’s intention to eradicate a so-called culture of non-payment (McDonald and Pape, 2002). Most of these threats were not carried out until after the 1999 national and provincial elections and the 2000 municipal elections (Desai, 2002). In many communities, residents first tried to reason with their local councillors and local ANC leaders by explaining that they were too poor to pay, but they found local leaders too busy, prevaricating, or dismissive (Desai, 2002). Faced with homelessness and a lack of access to basic amnesties,14 and having exhausted all avenues for dialogue, township residents employed a well-known action repertoire to mount resistance. Emboldened by sporadic successes and to sustain the resistance, various communities started organising regular meetings and forming concerned citizens’ forums and anti-evictions committees. These forums and committees marked the beginnings of many post-apartheid locally focused social movements including the Anti-Privatisation Forum, Mandela Park Anti-Eviction Committee, Soweto Electricity Crisis Committee (all formed in 2000), the Concerned Citizen’s Forum, and the Western-Cape Anti-Eviction Committee (both formed in 2001). The effects of “harsh” economic policies (Community Agency for Social Enquiry, 2003: 3) thus constitute the first aspect of the political context that shapes the struggles of these movements. Political Opportunities and Threats: Lack of Local Democracy The second aspect of the political context that shapes locally focused movements is the lack of genuine democracy at the local government level. Since 1993 the sphere of local government has been restructured to reflect its new role as the engine of redistribution and development, and the main locus of participatory democracy. Between 1996 and 2000, local government entities were restructured from weak and racially segregated units to the current system of united, single-tax-base developmental municipalities. As of May 2011, there were 278 municipalities, made up of 8 metropolitan councils, 44 district municipalities and 226 local municipalities (Mthethwa, 2011). The local faces and conduits of community voice to the 14

For an excellent evaluation of the early impacts of cost recovery programmes, see McDonald and Pape (2002).

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municipality, and ultimately to other spheres of government, are the 10,055 councillors who have been elected through either direct and/or constituency-based systems or proportional representation (Mthethwa, 2011). To enhance participatory governance at local government level, the Local Government: Municipal Structures Act of 1998 (Chapter 4, Part 4) makes provision for the establishment of ward committees in metropolitan and local councils. Ward committees are chaired by the ward councillor and include a maximum of ten committee members elected by the community and representing a ‘diversity of interests’. The main functions of ward committees are to act as the interface between the community and municipality, to provide advice to the councillor, and to make any recommendation on any aspect of their ward. Committee members are expected to act impartially, to make decisions based on merit, and to be accountable only to the ward community (South African Local Government Association, n.d.). In this way, ward committees are meant to be the central vehicles for community participation in decisions regarding the developmental priorities of the ward. In particular, the Local Government: Municipal Systems Act of 2000 obliges municipalities to cultivate a “culture of municipal governance that complements formal representative government with participatory governance” and to involve community members in the development of Integrated Development Plans (IDPs), annual budgets, and other strategic decisions of the municipality (Section 16(1) of the Municipal Systems Act). The way the system of local government works in practice constitutes, instead, a significant political constraint for social movements and other marginalised groups. First, ward committees are failing to play their role as non-partisan vehicles for community participation largely because political parties dominate and influence the process of nomination and election of committee members (Smith and de Visser, 2009; Piper and Deacon, 2008). The result is that instead of representing a diversity of interests, committee members are often drawn from the same party as the ward chairperson (Buccus et al., 2007). Various studies have thus found that the agendas of ward committees are ‘colonised’ and ‘hijacked’ by political parties and intra-party factions (Piper and Deacon, 2008; Hicks and Buccus, 2008; Low et al., 2007). Second, municipalities are not meaningfully engaging local communities when drafting medium- and long-term development plans, annual budgets, and other priorities of municipalities. In most cases, community ‘consultation’ takes place at advanced stages of policy formulation, and only for purposes of obtaining political buy-in and adhering to legislative requirements, rather than at the beginning of the process (Hicks and Buccus, 2008; Buccus et al., 2007; Mohamed, 2006). In their study of participatory decision making in KwaZulu-Natal, Hicks and Buccus (2008) found that poor people felt excluded and marginalised from these processes. Similarly, in her analysis of the IDPs of the then six metropolitan municipalities, Mohamed (2006: 43) concludes that “the policy agendas contained in these documents were set in the absence of strong voices of the informal settlement communities”.

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Available research shows that State and non-State elites are the most influential actors in the formulation of developmental plans and budgets for municipalities. For example, Ballard and colleagues (2007) found that the preparation of the eThekwini Long-Term Development Framework (twenty-year plan) and a detailed IDP (fiveyear plan) were heavily influenced by four sets of actors: officials in the metropolitan council, consultants, the local big business community, and senior provincial and national ANC politicians. Where civil society organisations are invited to participate in these processes, the neediest and most marginalised groups and individuals are still not represented (Ballard, 2008; Piper and Chanza, 2006). State Repression and Reactive Legal Mobilisation Locally focused social movements therefore operate in a political context marked by severe political constraints in the form of unresponsive and inaccessible government structures and prevailing strategies of exclusion and marginalisation. In this context, marginalised communities rely on direct action and other popular modes of participation to put forward their demands. Direct action tactics enable these resource-thin movements to win temporary concessions (by physically preventing an eviction, for example), generate a mass following, attract the attention of the media and State authorities, and build some form of counter-power against State and non-State elites. This counter-power is often fragile, though. Elites respond to struggles of these movements through a mixture of vilification, counter-movements, co-optation, criminalisation, and repression.15 Government officials, COSATU and the South African Communist Party (SACP) leaders, most of the media, and business elites often “present a solid front” (Tarrow, 1998: 20) and denounce these movements as ‘enemies of the people’, ‘white lackeys’, and ‘counter-revolutionaries’. By vilifying movements, State and non-State elites aim to delegitimise movements in the eyes of local communities so that disgruntled communities do not ‘defect’ to movements. The strategy of delegitimation is also aimed at making trans-local and cross-class alliances more difficult. In many cases, local elites set up local counter-movements to ‘compete’ with movements. These include local ANC branches, local chapters of the ANC-aligned South African National Civic Organisation, ratepayers associations, and pliant traditional authorities. Another strategy aimed at weakening movements is co-optation through ‘invited

15

There is a growing body of research that shows that, unlike their middle-class counterparts, poor township residents and movements are routinely subjected to a mixture of repression and patronage (Neocosmos, 2012; Pithouse, 2009; Robins, 2008; Pithouse and Butler, 2007; McKinley and Veriava, 2005). One scholar observes that poor township residents exist in a political domain where “rules are bent, political relations are often informal (if not downright illegal) and where the majority are only tenuously ‘rights-bearing citizens’” (Neocosmos, 2012: 374). Similarly, drawing from his research on local politics in Durban, Richard Pithouse also notes this split and concludes that the distinction has led to a dual political system, with a system of liberal democracy for the middle class and a politics of patronage and repression for the poor (Pithouse, 2009: 146).

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spaces’ such as city-wide crisis committees, developmental committees, and ward committees. When tactics of vilification, counter-movement, and co-optation are not effective, the State often resorts to criminalisation and suppression. Activists who belong to movements that mount forceful challenges against political and economic neo-liberalism often encounter intimidation, shooting, and arrest (Dawson, 2010). Reports indicate that members of Abahlali baseMjondolo, the Concerned Citizens Forum, the Landless Peoples’ Movement, the Orange Farm Water Crisis Committee, and the Soweto Electricity Crisis Committee are subject to routine criminalisation and State-supported repression (Chance, 2010; Sacks, 2010; Egan and Wafer, 2006; Pithouse, 2006; McKinley and Veriava, 2005; Desai 2002). All these strategies have the direct effect of depleting the already-meagre socio-organisational, moral, human, and material resources of locally focused movements. It is important to emphasise that legal strategies are the principal strategies the State employs to make collective action more arduous. First, there is evidence that the Regulation of Gatherings Act of 1993 (RAG) – the legislation that regulates marches and picketing – is often abused to prohibit protest marches and other forms of gatherings (Dawson, 2010; Memeza, 2006). A study that looked at how the Johannesburg Metro Police Division (JMPD) applied provisions of the RAG between 2002 and 2005 confirms the general point highlighted in this chapter that State authorities display a more repressive attitude towards ‘counter-hegemonic’ movements. The authors of that report summarised their findings as follows: While COSATU, TAC, and Jubilee South Africa have had almost no problems with their holding of gatherings, the APF [Anti-Privatisation Forum] and the [Landless Peoples Movement], as well as other groups with similar targets and tactics of struggle to these movements . . . have over time come to be slapped with blanket prohibitions. (Freedom of Expression Institute and Research and Education in Development, 2006: 9)

Second, State authorities often deploy the whole array of functions comprising the criminal justice system to counter local movement struggles. This fact is highlighted in a report titled Arresting Dissent (McKinley and Veriava, 2005), which shows that police officers, prosecutors, magistrates, and members of the National Intelligence Agency play significant roles in the suppression of local movements. The legal consciousness of local activists is thus structured by these negative encounters with the law.16 The early instances of legal mobilisation by many locally focused movements 16

The legal consciousness of locally focused movements is also structured by the fact that by most poor people have low levels of awareness of pertinent rights; a fact confirmed by many national surveys. A 1998 survey by the Community Action for Social Agency found that only 30 per cent of the population was aware of the existence of the Bill of Rights (Mubangizi, 2005: 41). More pertinent, knowledge of human rights was generally very poor amongst ‘Coloured’ people (30 per cent affirmative response) and Africans (24 per cent affirmative response) (Mubangizi, 2005: 41). A follow-up survey in 2000 found that although the situation had improved, still an alarming 36 per cent of respondents answered

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were therefore either geared towards securing legal representation for activists who had been arrested or charged under criminal law, or aimed at repudiating prohibition of marches. Turning to socio-economic rights, the predominant form of mobilising socioeconomic rights by these movements takes place when movements work with publicinterest litigation organisations or pro bono lawyers to invoke provisions of the Prevention of Unlawful Evictions and Illegal Occupation Act (PIE) to prevent or delay evictions, or to negotiate for alternative accommodation (see Langford’s chapter 7 in this volume). As is the case with the mobilisation of law in the criminal law sphere, most instances of mobilisation of law in eviction cases are reactive and arise after the State has served eviction notices and thus transferred the conflict into the institutional terrain. To be sure, even movements that set up legal units or committees complain that they have found it difficult to engage in proactive legal mobilisation (see Anti-Privatisation Forum, 2006; Cassiem, 2005). Only a handful of locally based social movements – social movement as defined earlier – have engaged in proactive legal mobilisation. The APF’s lawsuit challenging the installation of pre-paid water meters and the Abahlali baseMjondolo case regarding the constitutionality of the KwaZulu-Natal Elimination and Prevention of the Re-emergence of Slums Act are two prominent cases of proactive mobilisation of socio-economic rights. In both these instances, movements engaged in litigation after extra-institutional efforts had been defeated. The APF decided, as part of the Coalition against Water Privatisation (CAWP), to institute an unsuccessful lawsuit against the installation of pre-paid water meters in Phiri, Soweto, after a three-year resistance had been crushed.17 The following account by Dale McKinley of the APF is representative of the political and resource constraints and strategic dilemmas that ‘force’ ‘counter-hegemonic’ movements to mobilise State law: The battle of Phiri went on for weeks and weeks with people confronting the workers and the security. There were running battles and some property was destroyed. The response of the state was, of course, to launch a massive clampdown: deploying massive security, arresting people for anything, and making outrageous bail amounts. And then there was this court interdict which [restricted our activities]. . . . This clampdown had a huge impact because what it did is that it hit us quite hard not only on the organisational side where people were being arrested and were afraid of what was going on, but also financially because we had to expend huge resources on bail and lawyers and all sorts of other things just to defend community members. So it was out of that situation which was not particularly sustainable, that

17

that they were not aware of the existence of the Bill of Rights, and 20 per cent reported that they had heard about the Bill of Rights but were not sure what its purpose was (Mubangizi, 2005: 42). These results were confirmed in 2003 by a National Research Foundation–sponsored survey that reported that 33.2 per cent of the population did not know about the Bill of Rights (Mubangizi, 2005). Mazibuko and Others v City of Johannesburg and Others 2010 (4) SA 1 (CC) (Mazibuko). For more on this case, see Dugard, chapter 10, in this volume.

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we realised, ‘we cannot sustain this forever; it is not something that can go on. ow do we then continue the resistance without just backing off, losing and just accepting this thing?’.18

Impacts of Legal Mobilisation: Positive and Negative Even though litigation is not a learned action repertoire of counter-hegemonic movements, once the battle has shifted to the institutional legal terrain, strategically minded movement leaders have been able to utilise socio-economic rights litigation to obtain inspirational and movement-building impacts. I highlight only a few examples here. First, movements have used court cases as forums to expose and publicise injustices; for example, through the water meters case (Mazibuko) the APF was able to publicise the fact that rich (mostly white) suburban residents get credit for water usage while poor (black) township residents do not. Second, litigation compels evasive and dishonest local politicians and officials to engage with local communities and to disclose details of State policies. Reflecting on a case brought by the Concerned Citizens Group in Durban, Ashwin Desai concludes: “Litigation consumes the energies of the other side, ripping aside the mask of political rhetoric and forcing the council to reveal in sworn affidavits the brutality of its anti-poor policies” (Desai, 2002: 73). Third, movements have used court cases as rallying points and as a way to publicly display some counter-power. In this regard, Trevor Ngwane, then with the Soweto Electricity Crisis Committee, suggested that direct action and the violence it ‘invites’ from the State weaken a movement and frighten away supporters. Engaging in the ultimately unsuccessful Mazibuko case not only afforded a breathing space to besieged movement activists but also enabled ordinary residents to still be part of the movement without the fear of being caught up in violence (cited in Copper, 2010: 12). Fourth, successful anti-eviction cases have at times led to the consolidation of a movement’s support base and the recruitment of new members. Temporary court injunctions, when combined with other extra-institutional victories, can (re)energise the target community who then sees that the State can be defeated. Last, successful but very narrow court victories have been given wide interpretations by movement leaders to legitimise counter-hegemonic, extra-legal tactics. Consider the following statements by an APF member upon hearing the news that the High Court had declared the installation of pre-paid meters unlawful: “as we speak now, members of the community of Phiri are digging up the meters and bridging [by-passing] them, and they are allowed to do so because the court ruled in their favour” (Tshabalala, 2008). In this reading, the High Court ruling granted legitimacy to the movement’s Destroy the Meter/Enjoy Free Water campaign. Away from the courts, counter-hegemonic movements have mobilised socioeconomic rights by appropriating its discourse(s) to legitimise extra-institutional, 18

Telephone interview, 13 October 2010.

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extra-legal activities. Examples here include invoking claims to rights that are not explicitly provided for in the Constitution such as the ‘right to the city’ (Poor People’s Alliance), the ‘right to electricity’ (Soweto Electricity Crisis Coalition and AntiPrivatisation Forum), the ‘right to resist eviction’ (APF), the ‘right to a home’ (Western Cape Anti-Eviction Campaign), the ‘right to land’ (Landless People’s Movement), and the ‘right to work’ (Unemployed People’s Movement). It is important to note that in this guise, these movements do not invoke socio-economic ‘rights talk’ to frame a collective identity or to mobilise their target constituency, as is the case with rights-based movements. In these instances counter-hegemonic movements appropriate the language of socio-economic rights to animate and justify extra-legal, counter-hegemonic activities. At the same time, these resource-thin movements use rights discourse as a ‘frame bridge’ (Tarrow, 1998) between themselves and middle-class supporters. By deploying rights talk, counter-hegemonic movements are therefore packaging their message in a language understood by NGO and academic elites and the mainstream media and its middle-class readers. Such coverage could lead to relationships with NGOs, cause lawyers, academics, and other well-meaning middle-class people moved by the ‘understandable’ and ‘completely legitimate’ cause of poor people fighting for ‘their rights’. This elite support brings resources including T-shirts, banner-making material, computers, photocopiers, transport, alliances with progressive overseasbased organisations, and money. As in other places in the world, this elite support is not always benign and has led to accusations of vanguardism, paternalism, cooptation, ‘ventriloquism’, and racism (e.g. Alexander and Mngxitama, 2011; Bohmke, ¨ 2010). This takes us to some of the negative impacts of mobilising socio-economic rights. Whether engaging in proactive or defensive mobilisation of socio-economic rights strategies, some movement activists are aware of limitations and the dangers that the law and legal strategies portend for their long-term goals. These concerns include practical limitations of the law and the ever-present risks of co-optation and disempowerment. I have chosen a few quotes from activists to highlight this point. In the first quote, Trevor Ngwane (2008: n.p.) cautions his Anti-Privatisation Forum comrades against the risk of allowing the CAWP’s High Court victory to divert them from their socialist goals; warning that court victories might serve to co-opt movements into the dominant neo-liberal system, he says: “We must not allow the court victory to shift our struggle away from mass action. We must continue to destroy the meter and not fall into bourgeois legalism. We must celebrate the court victory but not allow the celebration to hide our mistakes and weaknesses. The struggle for socialism must continue.” Andile Mngxitama, formerly with the Landless People’s Movement, observes that legal tactics often create dependency on elites, and given South Africa’s entrenched history of State-driven racial domination, legal tactics often re-inscribe attitudes of racial supremacy:

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It [litigation] has been a majorly demobilizing thing and a factor that brings a conservative ethos into the struggle of our people. And it is very loved by the white liberals because again it gives them power. They will prepare the papers; they will come up with lawyers; they will get money from the funders; they will control the media outlets. It takes power away from the people.19

Mzonke Poni, chairperson of Abahlali baseMjondolo-Western Cape, points to fact that courtroom processes can be culturally and politically alienating and thus disempowering: When you go to court, let’s say you go to high court, you [are] not allowed to speak. . . . [W]hen they speak, they speak the language that we don’t understand. You are inside the court, but you don’t understand what is been said inside the court while you [are] inside the court with the issue that affects you and the community. (Poni, cited in DDP, 2010: 8–9)

Last, Abahlali-associated activist-intellectual Richard Pithouse highlights the potential for elitism and further community marginalisation inherent in legal mobilisation: I have been part of processes where lawyers: (a) they don’t want to take instructions from poor people, they want some kind of middle-class mediation, they want some NGO or academic to give them instructions; (b) they make their own decisions. They make deals that communities wouldn’t want to accept.20

The rest of this section looks at the case study of Abahlali baseMjondolo to demonstrate more concretely how the variables of political opportunities and threats, resources, action repertoire, and collective action framing determine the role and impact of socio-economic strategies in the struggles of locally focused movements. 4.2. Abahlali Base Mjondolo Abahlali baseMjondolo (Abahlali) is a shack dwellers’ movement that campaigns for land, housing, and genuine participatory democracy. This movement has suffered severe political threats and constraints since its launch in 2005. The State has responded to Abahlali’s extra-institutional struggle with disparagement, prohibition of protest marches, unlawful arrests, torture, and other physical attacks. Despite these threats and constraints, this grassroots movement has been able to secure some victories for shack dwellers. Some of these victories include contributing to the democratisation of affiliated settlements, forcing State authorities to consult with shack dwellers, exposing corruption in shack settlements, resisting unlawful evictions, thwarting aspects of a legislation that would have made it easier for State authorities to carry out mass evictions, and expanding their campaigns to other 19 20

Andile Mngxitama, interview with the author, 2 November 2008, Braamfontein. Richard Pithouse, telephone interview, 27 July 2010.

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provinces. It is on this basis that Abahlali is widely regarded as the most successful local, ‘counter-hegemonic’ movement (Kienast, 2010; Neocosmos, 2007; Gibson, 2006; Pithouse, 2006). The political threats that contributed to the emergence of Abahlali were the shortage of formal housing and land, and the absence of participatory democracy at the local level. Despite fair post-apartheid efforts at building formal housing, the housing situation remained dire in the early 2000s. In Durban, a 2003 study estimated that 33 per cent of the total metropolitan population and approximately half of the total African metropolitan population lived in informal settlements (Marx and Charlton, 2003: 6). At the local government level, shack dwellers were represented by unresponsive and uncaring councillors. Within shack settlements, slumlords and indunas (local ‘chiefs’) exercised political and social hegemony (Pithouse, 2006). One of these settlements is the Kennedy Road Informal Settlement (Kennedy Road), which has around seven thousand inhabitants (Tolsi, 2009b).21 In 2001 the residents of Kennedy Road had had enough, and they decided to democratise their settlement by replacing the autocratic induna with the democratically elected Kennedy Road Development Committee (KRDC) (Zikode, 2009). That same year (2001), the eThekwini municipality had announced the Slums Clearance Project, in which residents of identified informal settlements were going to be provided with formal houses. Kennedy Road was identified as one of the beneficiary settlements. Sibusiso Zikode, first president of Abahlali, describes 16 February 2005 as the “dawn of our struggle” (Zikode, 2006). On that day, and after many years of unfulfilled promises, the KRDC held a promising meeting with provincial and city officials. At this meeting, the community of Kennedy Road was promised a piece of vacant land next to their settlement on which formal houses would be built. However, a month later bulldozers started excavating the land, and when residents enquired about what was happening, they were informed that a brick factory for a local property developer was to be built. This betrayal mobilised the community, and on 19 March 2005 approximately 750 people blockaded a major road and had a stand-off with the police for more than four hours. Without knowing it, the participants in this revolt were starting a social movement.22 This revolt also marked the beginning of a very antagonistic relationship between Kennedy Road residents and State authorities. The day after the blockade Kennedy Road residents marched to the local police station to demand the release of fourteen activists who had been arrested during the blockade. This march was also violently dispersed, and a number of activists were arrested. Following these clashes and fuelled by a sense that institutions of representative democracy had failed, the KRDC declared 2005 a ‘Year of Action’, a year in which it was going to organise protest marches and other forms of direct 21

22

For a good discussion of the history of land dispossession, ‘slum eradication’, mass removals, and urbanisation in Durban, see COHRE, 2008. Sibusiso Zikode, interview, 15 August 2010, Durban.

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action to demand land, housing, and basic services, and to force the State to engage in meaningful dialogue with shack dwellers. From March to October 2005 the KRDC collaborated with other shack dweller groups to stage a series of marches. It is important to note that the KRDC and its allies did not, at this stage, wrap their collective action frame in a language of human rights, choosing instead to make a series of ‘demands’ of the State.23 In October 2005 the KRDC and twelve other Durban-based shack dweller groups decided to intensify their struggles by forming a united front simply called Abahlali baseMjondolo (“those who live in shacks”). This formalisation seemed to trigger even more hostility from State authorities. A month after it was formally constituted, Abahlali notified police authorities of its intention to march to the offices of the mayor of Durban. On the day before the march, police authorities sent a fax stating that the march was prohibited. The movement considered this ban to be without merit and decided to go ahead with a peaceful march. Once again, police responded with violence, injuring scores of activists and arresting some. This incident of police brutality is significant for number of reasons. First, it raised the profile of the new movement as local and international journalists drew comparisons with how the apartheid State had reacted to poor peaceful protestors. Second, it prompted a number of human rights organisations to associate themselves with the movement. In particular, the Freedom of Expression Institute and “50 of the world’s leading constitutional lawyers” (Abahlali, 2005a), who happened to be in Durban for an academic conference, issued statements condemning the city for violating Abahlali’s rights to freedom of expression. Third, perhaps for the first time in its history, Abahlali leaders began to explicitly refer to the rights of shack dwellers – in this case, their civil and political rights to hold peaceful protests. Fourth, this incident compelled the mayor of Durban to recognise Abahlali. A few days after this incident, the mayor of Durban tried to contain the political fallout from this incident by announcing a multi-million-rand housing development project. The mayor also extended an invitation to a meeting to Abahlali. When Abahlali letters to the mayor were ignored and the promised meeting did not materialise, Abahlali decided to organise a protest march to the offices of the provincial government on 20 February 2006. State authorities responded by declaring the march illegal and banning it. This ban was without merit, and Abahlali announced that it would defy the prohibition and proceed with the march on 27 February 2006. On the morning of the proposed march, police officers surrounded Kennedy Road and carried out pre-emptive arrests of four leaders. Unable to go ahead with the protest, Abahlali decided to turn to the courts for the first time in its history. With funding from the Foundation for Human Rights, Abahlali secured a team of lawyers and successfully applied for an interdict against the city. Protected by 23

In one of its first published ‘memoranda of demands’ (1 September 2005), apart from a single line in which it expresses solidarity with “everyone persecuted for standing up for the rights of the poor”, the memorandum contains a series of demands for housing, land, jobs, safety, water, and other basic necessities (see Abahlali, 2005b).

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the High Court interdict, Abahlali was able to proceed with its march and submit a memorandum of demands to the provincial ministry of housing. In July 2006, provincial officials eventually agreed to a meeting with Abahlali. At that meeting, provincial officials informed Abahlali that they were unable to respond to questions about the Slums Clearance Project and the housing project announced by the mayor. This time, instead of sending further requests for a meeting or staging another protest, Abahlali picked a different tactic. On 31 August 2006, Abahlali engaged with what could be regarded as one of its first instances of proactive legal mobilisation. Assisted by the Open Democracy Advice Centre, the movement announced that it would submit a Promotion to Information Act (PAIA) request to the Durban city manager to demand information about the housing project announced by the mayor, details of upgrade or relocation plans for settlements affiliated to Abahlali, and the details of housing budgets. At the time, Abahlali explained that it was adopting a legal tactic because all other attempts to engage with the mayor had failed: “The Municipality has consistently acted illegally to refuse us our basic constitutional rights and has simply refused to speak to us so we now have no choice but to use the Promotion of Access to Information Act, backed up with legal force, to compel them to disclose their plans for our communities” (Abahlali, 2006d).24 This tactic was effective as it caught state authorities by surprise and the following day Abahlali received a “sudden invitation” to a meeting with the head of department in the provincial ministry of housing (Abahlali, 2006b). The PAIA request and the subsequent meeting with provincial authorities did not, however, improve relations between Abahlali and the municipality. Abahlali complained that while it was still waiting to receive the requested information, the municipality continued with its ‘slums clearance’ plan by carrying out evictions from September to November 2006 in Motala Heights, an Abahlali-affiliated settlement (Abahlali, 2006c). Abahlali members had by then come to value legal tactics and they approached the Legal Resources Centre (LRC) to seek advice. During one of these illegal evictions the chairperson of the Motala Heights Development Committee was assaulted as he attempted to prevent it by presenting an LRC letter to municipal security officials. The following account by a Motala Heights resident captures succinctly the challenges poor township activist groups face when confronted by State authorities intent on acting illegally: When the evictions happened . . . the South African law and the constitution didn’t work for us. They were pointing guns at us, threatening us, meantime we were fighting for our rights [as guaranteed in the law]. One comrade came asking them “What about section 26?” but they didn’t say anything. . . . When our chairperson came to ask, “By what right and by what law can you do this?” Teargas just got thrown in his face. (Abahlali activist, cited in Pithouse and Butler, 2007: 1) 24

For a more in-depth discussion on how civil society actors have used PAIA to facilitate the realisation of socio-economic rights, see Bentley and Calland, chapter 12, in this volume.

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Abahlali eventually secured a court interdict in November 2006 preventing the municipality from continuing with illegal evictions. Abahlali activists were becoming adept at using the law to prevent illegal evictions. Indeed, a few weeks after this interdict, Motala Heights residents were able to halt an eviction attempt when they “reminded municipal workers of section 26 of the Constitution” (Abahlali, 2006e) and demanded to see a court order from municipal securities. It is important to point out that this act of legal mobilisation was made possible by legal knowledge the residents gained after they attended a housing rights workshop organised by the Geneva-based Centre for Housing Rights and Evictions and facilitated by Stuart Wilson, then of the Centre for Applied Legal Studies (Abahlali, 2006a). The foregoing account makes it clear that from the middle of 2006 Abahlali started to rely on legal tactics. This took place in a context in which State authorities responded to Abahlali’s collective and extra-institutional tactics with either silence or criminalisation. To put the scale of this criminalisation into context, Abahlali alleges that between 2005 and early 2007 more than 160 of its members were arrested on trumped-up charges (Lynch and Nsibande, 2008). Abahlali leaders also suffered numerous physical attacks during this movement-building phase (see Chance, 2010). Therefore, although the movement still engaged in mass mobilisation, it came to rely on legal tactics quite a lot. Resistance against the KwaZulu-Natal Elimination and Prevention of ReEmergency of Slums Bill/Act (Slums Bill) dominated Abahlali’s public mobilisation between 2007 and 2009. Abahlali’s resistance against the Slums Bill is emblematic of how the movement has combined socio-economic rights tactics and contentious collective mobilisation in the context of severe political threats and constraints. The Slums Bill was published in November 2006 with the aims of, amongst other things, eliminating ‘slums’, preventing the re-emergence of slums, and promoting intra-State cooperation in the elimination and prevention of the re-emergence of slums. As soon as Abahlali became aware of the Slums Bill, it vehemently opposed it, arguing that it was an attempt to “mount a legal attack on the poor” (Abahlali, 2007). Specifically, Abahlali argued that the Bill would enable municipalities to disregard existing constitutional and legislative safeguards and engage in mass evictions. Abahlali held regular meetings in affiliated settlements to discuss the Bill, reading it “together line by line” and discussing “each point” (Zikode, 2007). As part of this campaign, Abahlali took part in every State-created space to voice its opposition to the Bill. Abahlali also invited housing policy experts and Stuart Wilson of the Centre for Applied Legal Studies to prepare for litigation should the Bill become law (Abahlali, 2008). In June 2007 this indeed occurred, and in February 2008 Abahlali launched a constitutional challenge against the KwaZulu-Natal Elimination and Prevention of Re-Emergency of Slums Act at the Durban High Court. Abahlali explained that they were going to court because all avenues had been exhausted:

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r On 4 May 2007 hundreds of us crowded into the Kennedy Road Hall to tell the government that we are absolutely opposed to the Slums Act. We were ignored. r On 21 June 2007 we sent a delegation to the provincial parliament to oppose the Slums Act there. We were denied the right to speak. r On 28 September 2007 we marched against the Slums Act in our thousands. We were beaten and 14 of us were arrested. r We are going to court because we know that in court we will not be beaten, arrested, denied the right to speak or ignored. (Abahlali, 2008). In January 2009 the High Court dismissed Abahlali’s application. In October 2009 the Constitutional Court decided to uphold the Act but to nullify a Section that compelled an owner of a building or land or municipality, under whose jurisdiction the building or land exits, to institute evictions even in circumstances where the requirements of PIE were not met.25 Abahlali could claim victory because this Section was the most contentious. During this ‘eradication of the Slums Bill and Act’ period (2007–2009), Abahlali continued to mobilise, expand and engage with authorities. A few examples will suffice. In 2007, on the back of high-profile marches and numerous deaths caused by shack fires, the city began negotiating with the movement with the view of upgrading some settlements. These negotiations led to a historic 2009 Memorandum of Understanding in terms of which the city undertook to provide interim services to 14 settlements and the permanent upgrade of 5 settlements (Kienast, 2010). The movement also expanded its campaign to other provinces with Abahlali Western Cape launching in 2008. That same year, Abahlali formalised its alliances with other poor people’s movement by helping to establish the Poor People’s Alliance. This alliance is made up of Abahlali (in KwaZulu-Natal and in the Western Cape), the Landless People’s Movement, the Western Cape Anti-Eviction Campaign and the Rural Network. Abahlali membership continued to grow during the same period, such that in June 2011 Abahlali was said to have around ten thousand paid-up members and more than twenty-five affiliates in KwaZulu-Natal and the Western Cape. Given the severe political constraints and threats that Abahlali faced, these and other successes are remarkable. It is on this basis that Abahlali supporters consider Abahlali the “best organised of the poor people’s movements to have emerged in post-apartheid South Africa” (Pithouse, 2012: 206). Critics charge, however, that Abahlali’s decision to increasingly rely on socioeconomic rights tactics and discourse, and to seek out concomitant elite intervention, resulted in the lowering of the movement’s goals, its deradicalisation, and a shift from its counter-hegemonic and socialist vision to one that is simply about the provision of basic services to shack dwellers, respect for the dignity and voice of shack dwellers, and the inclusion of movement representatives in State-created institutions of decision making (Sinwell, 2011; Bohmke, 2010). One critic writes: ¨ 25

Abahlali baseMjondolo v Premier of KwaZulu-Natal Province and Others 2010 (2) BCLR 99 (CC).

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From around 2007 there was a definite turn to law, which seemed to juridify Abahlali’s public pronouncements. Their branding was reformulated to emphasise their being law-abiding, long-suffering protectors of the constitution. Their mission to achieve “dignity” and “voice” came to be calibrated in terms of due process rights the state owed them. The content of their demands and their methods of achieving them were cast within the boundaries of the law. Becoming primarily a national, rights-bearing subject also affected their organisational form. In Durban, it hardened, narrowed and professionalised. (Bohmke, 2010: 19n17) ¨

This critique echoes the following critique made in 2006 by one ‘counter-hegemonic’ activist: “Initially involved in militant, direct action, Abahlali has now become bureaucratised, lacks a clear programme and is chiefly pursuing legal remedies for municipal delivery” (Setshedi, 2006). Although it is true that Abahlali has come to rely on legal tactics and other institutional tactics to prevent illegal evictions and to achieve some of its strategic goals, as this brief case study has shown, Abahlali’s increasing, but not exclusive, reliance on legal tactics took place after extra-institutional, collective tactics proved more difficult. For its part, Abahlali continuously stresses the fact it is not a ‘rights-based’ movement because “being called rights-based depoliticises, like being called a charity. It avoids reality, which is that problems and solutions are political.”26 Accordingly, the movement engages in courtroom battles as a last resort because it is careful not to get demobilised and disempowered by legal tactics. Thus, the former president of Abahlali Sibusiso Zikode (a former law student) argues that when Abahlali engages with lawyers, it does so from a position of power, and the movement expect lawyers to remain under the political control of the movement: We are not going to give up our powers to lawyers. When we engage lawyers it is up to them to lend their ears and use their education to hear what we are saying. They must do what we instruct them to do. So we are saying we use lawyers last because if we use them at the start of a campaign or struggle we end up losing our power, we end up looking down on ourselves, we forget that power is with us. So we do have lawyers but we don’t put them in front and put all our trust in courts.27

Referring specifically to the Slums Act case, Richard Pithouse, long-time associate of Abahlali, argues that the lawsuit was important to the growth of the movement and did not lead to its demobilisation: The Slums Act case was not demobilising at all, on the contrary it was extremely useful. All these different settlements, some were negotiating with the city, some weren’t, so they are all facing these different issues. Now suddenly it gave them 26

27

Focus group discussion with Kate Tissington and Jackie Dugard, 25 April 2012, Durban. Transcript on file with the author. Sibusiso Zikode, interview, 15 August 2010, Durban.

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something in common they can mobilise around. There was good mobilisation around it [the case]. It was a really uniting thing.28

This Constitutional Court victory has also bolstered the confidence of Abahlali members; as one member put it: “For government to be defeated at the Constitutional Court by some shack dwellers; that is not a small thing!”29 In contrast, this high-profile Constitutional Court case led to a serious local backlash against the movement. A few days before the judgment was to be handed down, Abahlali was subjected to a vicious attack by a local militia allegedly aligned to the ruling party. Abahlali argues that one of the motivations for the attack was publicly expressed resentment by local elites over the movement’s decision to take the government to court.30 According to reports, this attack was preceded by a speech made by the provincial chairperson of the ANC two weeks earlier in which he charged that Abahlali was funded by “the West” and the movement’s mission was to “destabilise” the ANC-run government (Tolsi, 2009a). The attacks began with a violent disruption of a KRDC meeting. The marauding militia also targeted an all-night Abahlali youth camp. At the same time, a section of the militia descended on the homes of the former president and deputy president of Abahlali, vowing to kill them. Two people lost their lives. The militia then took over Abahlali headquarters, stealing the movement’s computers and campaign material. The shacks belonging to Abahlali leaders were destroyed, and more than one thousand people were displaced. All of this, it is alleged, took place under police watch and complicity (Chance, 2010). The following day police arrested twelve members of the KRDC, and the provincial safety and security minister declared that the settlement has been liberated from Abahlali. Those arrested spent many months in police custody before being released on bail. On 18 July 2011 a magistrate of the Durban Regional Court finally dismissed charges against all the accused. Although Abahlali continued to release press statements and to publicise the movement via conference presentations, the attack and violent expulsion of the movement meant that from late 2009 to mid-2011, Abahlali leaders had to ‘go underground’, and the movement could not hold open meetings or engage in mass mobilisation activities in Kennedy Road. At the same time, this well-reported attack helped focus domestic and international attention on the absence of local democracy and the repression of poor people’s movements in post-apartheid South Africa (see e.g. Amnesty International, 2009). To conclude, although Abahlali consciously endeavours to employ socioeconomic rights strategies in a way that does not lead to professionalization or ‘NGOisation’ and depoliticisation, there is no doubt that socio-economic rights strategies have played a role in (re)shaping the movement’s collective action frame, 28 29 30

Telephone interview, 27 July 2010. Focus group discussion, 14 August 2010, Durban. Sibusiso Zikode, interview, 15 August 2010, Durban.

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strategies, and tactics. From the goal of educating shack dwellers about their rights and how to defend them, to framing their collective identity and demands around the rights of the poor to speak for themselves, to be recognised and to have their dignity respected, to increasingly fighting evictions in courts, socio-economic rights strategies have become significant to this socialist social movement. Since 2006, Abahlali has employed socio-economic rights to prevent illegal evictions, securing interdicts against the State every time it went to court to contest unlawful evictions (COHRE, 2008). This is of enormous material significance to the struggle of Abahlali, as “most people” join Abahlali because they fear evictions (Abahlali, 2009). To put the scale of this activity into perspective, Richard Pithouse (2012) reported that in April 2010, Abahlali was dealing with ninety-nine eviction cases. Socio-economic rights tactics, especially through the use of PIE, were of great indirect significance to the movement after it was expelled from its headquarters in Kennedy Road, because with these tactics the movement could continue to serve and protect its constituency even while physically weakened. Another indirect impact is that Abahlali’s use of socio-economic rights discourse earned it support from elites before and after the 2009 expulsion. It is doubtful whether the movement could have survived and grown as much as it did without this middle-class support and ability to serve its constituency. 5. CONCLUSION The only way that we can get access to those rights are [sic] through bribery because if I bribe, I will get a house. I will get a social grant. – Nosisi, Gugulethu-based activist, cited in DDP, 2010: 9 Going to court can be demobilising, it can also be mobilising. But getting beaten up by the police can also be severely demobilising. – Richard Pithouse, telephone interview, 27 July 2010

This chapter has sought to analyse the role and impact of socio-economic rights strategies on post-apartheid social movements. I emphasised a context-specific approach to this analysis by placing the roles and impacts of socio-economic rights strategies in the mix of the main variables that shape social movement success or failure: namely political opportunities and threats, resources, action repertoire, and the collective action frame. This context-specific approach is important if analysts are to guard against overestimating or underestimating legal strategies. A context-specific approach is also essential to resist the temptation of making sweeping claims about the efficacy of socio-economic rights strategies for social movements and other poor people’s movements. With this mind, I distinguished national, rights-based social movements from locally focused, ‘counter-hegemonic’ movements. National movements face favourable political opportunities and have thus had more scope to mobilise and make an impact. These well-resourced movements

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have mobilised rights strategies to frame their demands, to fashion a collective identity, to secure elite support, and to achieve some of their rights-based goals. The Treatment Action Campaign is a good example here. The TAC’s politically connected and ‘rights-savvy’ leadership employed socio-economic rights strategies to expand favourable discursive and institutional context. This favourable context included the fact that the TAC could take advantage of civil and political freedoms to stage large protest campaigns and attract mass following and resources from elites.31 Without these resources, the TAC would not have been able to embark on highprofile media campaigns and lawsuits. Framing their struggle as mainly a struggle about rights (right to health care as well as the rights to life, equality, and dignity), employing well-known action repertoires while at the same time emphasising their loyalty to the ANC and the new democratic order ensured that TAC leaders could succeed in mobilising domestic and international consensus and in strengthening the voices of ‘champions’ of HIV/AIDS treatment within the ANC and the State. Socio-economic rights strategies therefore hold positive material, indirect, and symbolic impacts for social movements that operate in favourable political contexts, that possess resources necessary to launch test cases and engage in other institutional forums, and that adopt action repertoires and collective action frames that do not threaten the main aspects of the dominant political and economic order. In contrast, locally focused ‘counter-hegemonic’ social movements find it hard to achieve their goals in the context of inaccessible and unresponsive political structures and prevailing strategies that tend towards their exclusion. State repression, organisational weaknesses, lack of resources, and an inability to build durable translocal and trans-national alliances have also limited the impact of these movements. It is in this context that the movements turn to socio-economic rights strategies. Socioeconomic rights tactics have not helped, indeed cannot help, these movements achieve their goals of decommodifying basic necessities (by not subjecting them to market-based considerations) and of achieving radical redistribution of economic and political power. However, as shown in the chapter adroit ‘counter-hegemonic’ movement leaders have utilised socio-economic rights tactics to escape arrests and beatings, to publicise their struggles, to obtain information from evasive State officials, to animate their extra-legal tactics, and to extract occasional concessions from the State. These concessions are often temporary, taking place as they do within a hegemonic economic framework that de-emphasises radical redistribution and decommodification of basic services, and in a local context dominated by indifferent 31

TAC’s Mark Heywood (2010: 1) puts it as follows: “we are lucky that our government currently respects civil and political rights.” As shown in this chapter, such luck is not available to most locally focused movements who suffer constant repression and marginalisation from the realms of civil society and constitutionalism. This contrast in fortunes came out vividly in October 2010 when the TAC and its partners accused Abahlali Western Cape of “mindless violence and chaos” and of “helping the State to criminalise struggle and dissent” after Abahlali Western Cape called for disruptive, extra-institutional protests in Khayelitsha. See TAC and others, 2010.

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councillors, politically connected business leaders, counter-movements, and unaccountable and repressive State authorities. Therefore, even when locally focused movements win some respite through the courts, State authorities often ignore court orders (see e.g. Abahlali and SERI, 2012; Abahlali, 2006e; CAWP, 2008). Abahlali, the largest and most experienced of locally focused movements regarding the use of socio-economic rights tactics, has often encountered this issue. Thus, referring to its prominent and successful Constitutional Court case, Abahlali bemoans the fact that it “won the case against the Slums Act and yet government continues to build transit camps” (Abahlali, 2010). Nevertheless, socio-economic rights tactics have arguably helped sustain this movement in the face of vicious ongoing physical attacks and political exclusion. Although most locally focused ‘counter-hegemonic’ movements have slowly withered away, Abahlali has adopted socio-economic rights tactics to serve and protect its constituency, to raise its profile, to attract middle-class support, and arguably to sustain itself.

references Abahlali (2005a), ‘Campaign for the human dignity of shackdwellers’, Abahlali baseMjondolo, http://abahlali.org/node/859. (2005b), ‘Thousands to march on Councillor Yacoob Baig on 14 September 2005’, Abahlali baseMjondolo, http://www.abahlali.org/node/138. (2006a), ‘Lessons from Stuart Wilson’s presentation to Abahlali on housing rights’, Abahlali baseMjondolo, http://abahlali.org/node/509. (2006b), ‘MEC’s office instructs shack dwellers to stop all communication with the media’, Abahlali baseMjondolo, http://abahlali.org/node/72. (2006c), ‘Municipality violently and illegally evicts shackdwellers in Motala Heights’, Abahlali baseMjondolo, http://abahlali.org/214. (2006d), ‘Shack dwellers to demand full disclosure of the eThekwini municipality’s plans for them from Sutcliffe’, Abahlali baseMjondolo, http://abahlali.org/node/73. (2006e), ‘Victory for Motala Heights! An eyewitness report . . . ’, Abahlali baseMjondolo, http://abahlali.org/node456. (2007), ‘Operation Murambatsvina comes to KZN: The notorious elimination & prevention of Re-Emergence of Slums Bill’, Abahlali baseMjondolo, http://www.abahlali .org/node/1629. (2008), ‘Abahlali baseMjondolo take the provincial government to court over the notorious Slums Act’, Abahlali baseMjondolo, http://abahlali.org/node/3335. (2009), ‘Siyanda win in court: The struggle against corruption and transit camps continue’, Abahlali baseMjondolo, http://abahlali.org/node/4880. (2010), ‘Statement on the anniversary of the attack on Abahlali baseMjondolo’, Abahlali baseMjondolo, http://www.abahlali.org/node/7324. Abahlali and Socio-Economic Rights Institute (2012), ‘eThekwini Municipality disobeys court order to provide housing and investigate corruption’, Abahlali baseMjondolo, http://www. abahlali.org/node/8648. Alexander, Amanda, and Andile Mngxitama (2011), ‘Race and resistance in post-apartheid South Africa’, in Shereen Essof and Daniel Moshenberg (eds.), Searching for South Africa: The new calculus of social dignity (Pretoria: UNISA Press), pp. 50–77.

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Amnesty International (2009), ‘South Africa: Failure to conduct impartial investigation into Kennedy Road violence is leading to further human rights abuses’ http://www. amnesty.org/en/library/asset/AFR53/011/2009/en/53fce922-d49e-4537-b3bb-84060cf84c85/ afr530112009en.htm. Anti-Privatisation Forum (2006), ‘APF office bearers consolidated organisational report to the 2006 AGM’, Johannesburg, http://apf.org.za/spip.php?article197. Avert (n.d.), ‘HIV and AIDS in South Africa’, http://www.avert.org/aidssouthafrica.htm# contentTable3. Ballard, Richard (2008), ‘Between the community hall and the city hall: Five research questions on participation’, Transformation: Critical Perspectives on Southern Africa, Vol. 66, No. 1, pp. 168–88. Ballard, Richard, Debby Bonnin, Jenny Robinson, and Thokozani Xaba (2007), ‘Development and new forms of democracy’, eThekwini’ Urban Forum, Vol. 18, No. 4, pp. 265–87. Ballard, Richard, Adam Habib, and Imraan Valodia (2006), ‘Conclusion: Making sense of post-apartheid South Africa’s voices of protest’, in Richard Ballard, Adam Habib, and Imraan Valodia (eds.), Voices of protest: Social movements in post-apartheid South Africa (Pietermaritzburg: University of KwaZulu-Natal Press), pp. 397–417. Bohmke, Heinrich (2010), ‘The branding of social movements in South Africa’, Dispositions, ¨ Vol. 1, pp. 1–49. Botes, Lucius, Molefi Lenka, Marais Lochner, Zaccheues Matebesi, and Kholisa Sigenu (2007), The new struggle: Service delivery-related unrest in South Africa: Two case studies (Bloemfontein: Centre for Development Support). Brown, Wendy, and Janet Halley (2002), ‘Introduction’, in Wendy Brown and Janet Halley (eds.), Left legalism/left critique (Durham, NC: Duke University Press), pp. 1–37. Buccus, Imraan, David Hemson, Janine Hicks, and Laurence Piper (2007) Public participation and local governance (Durban: Centre for Public Participation). Buhlungu, Sakhela (2006), ‘Upstarts or bearers of tradition? The Anti-Privatisation Forum of Gauteng’, in Richard Ballard, Adam Habib, and Imraan Valodia (eds.), Voices of protest: Social movements in post-apartheid South Africa (Pietermaritzburg: University of KwaZuluNatal Press), pp. 67–87. Cassiem, Ashraf (2005), ‘The role of law and its ability to protect poor families facing evictions in the Western Cape’, RASSP Research Report, Vol. 1, No. 6, pp. 107–21. Chance, Kerry (2010), ‘The work of violence: A timeline of armed attacks at Kennedy Road’, School of Development Studies Research Report, Vol. 83, pp. 1–33. Coalition against Water Privatisation (2008), ‘Johannesburg Water defies court ruling on prepaid water meters’, Anti-Privatisation Forum, http://apf.org.za/spip.php?breve14. Cock, Jacklyn (2003), ‘Engendering gay and lesbian rights: The equality clause in the South African Constitution’, Women’s Studies International Forum, Vol. 26, No. 1, pp. 35–45. COHRE (2008), ‘Business as usual? Housing rights and ‘slum eradication’ in Durban, South Africa’, Centre on Housing Rights and Evictions, http://www.cohre.org/store/attachments/ 081007%20Business%20as%20Usual final.print.pdf. Comaroff, John, and Comaroff, Jean (2004), ‘Policing culture, cultural policing: Low and social order in postcolonial South Africa’, Law and Social Inquiry, Vol. 29, No. 3, pp. 513–545. Community Agency for Social Enquiry (2003), ‘Cost recovery in municipalities’, http://www. case.org.za. Copper, Megan (2010), ‘Citizenship in movements: Constructing alternatives’, HIVOS, http://www.hivos.nl/eng/Hivos-Knowledge-Programme/Themes/Civil-Society-Building/

126

Tshepo Madlingozi

Publications/Reviews/Citizenship-in-Social-Movements-Constructing-Alternatives-in-theAnti-Privatization-Forum-South-Africa. Dawson, Marcelle (2010), ‘Resistance and repression: Policing protest in post-apartheid South Africa’, in Jeff Handmaker and Remko Berkhout (eds.), Mobilising social justice in South Africa: Perspectives from researchers and practitioners (Pretoria: PULP), pp. 101–36. Democracy Development Programme (2010), ‘Report of the DDP roundtable discussion on socioeconomic rights’, http://www.ddp.org.za/information-material/research-unit/ research-themes/rights-and-citizenship. Desai, Ashwin (2002), ‘We are the poor’: Community struggles in post-apartheid South Africa (New York: Monthly Review Press). Edwards, Bob, and John D. McCarthy (2004), ‘Resources and social movement mobilization’, in David Snow, Sarah A. Soule, and Hanspeter Kriesi (eds.), The Blackwell companion to social movements (Malden, MA: Blackwell), pp. 116–52. Egan, Anthony, and Alex Wafer (2006), ‘Dynamics of a “mini-mass movement”: Origins, identity and ideological pluralism in the Soweto Electricity Crisis Committee’, in Richard Ballard, Adam Habib, and Imraan Valodia (eds.), Voices of protest: Social movements in post-apartheid South Africa (Pietermaritzburg: University of KwaZulu-Natal Press), pp. 45–65. Freedom of Expression Institute and Research and Education in Development (2006), ‘Establishing a Historical Record of Violations of the Regulation of Gatherings Act and the Right to Freedom of Assembly amongst Social Movements in Johannesburg’ http://www.fxi.org.za/PDFs/Legal%20Unit/FXI%20Research%20Report%20Gatherings%20 Act.pdf. Friedman, Steve, and Shauna Mottiar (2004), ‘A rewarding engagement: The politics of the Treatment Action Campaign’, Centre for Civil Society, http://ccs.ukzn.ac.za/files/ FRIEDMAN%20MOTTIER%20A%20MORAL%20TO%20THE%20TALE%20LONG% 20VERSION.PDF. Gabel, Peter, and Duncan Kennedy (1984), ‘Roll over Beethoven’, Standard Law Review Law, Vol. 36, No. 1, pp. 1–60. Gevisser, Mark (2009), Thabo Mbeki: The dream deferred (Cape Town: Jonathan Ball Publishers). Gibson, James L. (2004), ‘Truth, reconciliation and the creation of a culture of human rights in South Africa’, Law and Society Review, Vol. 38, No. 1, pp. 5–40. Gibson, Nigel (2006), ‘Introduction: Calling everything into question: Broken promises, social movements and emergent intellectual currents in post-apartheid South Africa’, in Nigel Gibson (ed.), Challenging hegemony: Social movements and the quest for a new humanism in South Africa (Trenton, NJ: African World Press), pp. 1–54. Heywood, Mark (2003), ‘Preventing mother-to-child HIV transmission in South Africa: Background, strategies and outcomes of the Treatment Action Campaign case against the minister of health’, South African Journal on Human Rights, Vol. 19, No. 2, pp. 278–315. (2005), ‘Shaping, making and breaking the law in the campaign for a national HIV/AIDS treatment plan’, in Peris Jones and Kristina Stokke (eds.), Democratising development: The politics of socio-economic rights in South Africa (Leiden: Martinus Nijhoff), pp. 181–212. (2008), ‘South Africa’s Treatment Action Campaign (TAC): An example of a successful human rights campaign for health’, Treatment Action Campaign, http://www.tac.org .za/community/node/2064. (2009), ‘South Africa’s Treatment Action Campaign: Combining law and social mobilisation to realize the right to health’, Journal of Human Rights Practice, Vol. 1, No. 1, pp. 14–31.

Post-Apartheid Social Movements and Legal Mobilisation

127

(2010), ‘Editorial’, Equal Treatment Magazine, No. 35, 1. Hicks, Janine, and Imraan Buccus (2008), ‘Crafting new democratic spaces: Participatory policy-making in Kwazulu-Natal, South Africa’, Transformation: Critical Perspectives on Southern Africa, Vol. 65, pp. 94–119. Jacobs, Sean, and Krista Johnson (2007), ‘Media, social movements and the State: Competing images of HIV/AIDS in South Africa’, African Studies Quarterly, Vol. 9, No. 4, pp. 127–52. Johnson, Krista (2006), ‘Framing AIDS mobilisation and human rights in post-apartheid South Africa’, Perspectives on Politics, Vol. 4, No. 4, pp. 663–70. Jones, Lynne (2006), ‘The haves come out ahead: How cause lawyers frame the legal system for movements’, in Austin Sarat and Stuart A. Scheingold (eds.), Cause lawyers and social movements (Stanford, CA: Stanford University Press), pp. 182–96. Jones, Peris (2005), ‘“A test of governance”: Rights-based struggles and the politics of HIV/AIDS policy in South Africa’, Political Geography, Vol. 24, No. 2, pp. 419–47. Karamoko, Jelani (2011), ‘Community protests in South Africa: Trends, analysis, and explanations’, Multi-Level Government Initiative http://www.mlgi.org.za/publications/ publications-by-theme/local-government-in-south-africa/community-protests/ Community Protests SA.pdf. Kennedy, Duncan (2002), ‘The critique of rights in critical studies scholarship’, in Wendy Brown and Janet Halley (eds.), Left legalism/left critique (Durham, NC: Duke University Press), pp. 178–227. Khanya College (2011), ‘Annual report 2010,’ Khanya College, http://khanyacollege.org.za/ sites/default/files/kc-annual-report10.pdf. Kienast, Gerhard (2010), ‘Abahlali baseMjondolo – How poor people’s struggle for land and housing became a struggle for democracy’, http://suedafrika.habitants.de/?p=15. Kriesi, Hanspeter (2004), ‘Political context and opportunity’, in David Snow, Sarah A. Soule, and Hanspeter Kriesi (eds.), The Blackwell companion to social movements (Malden, MA: Blackwell), pp. 67–115. Levistky, Sandra R. (2006), ‘To lead with the law: Reassessing the influence of legal advocacy organisations in social movements’, in Austin Sarat and Stuart A. Scheingold (eds.), Cause lawyers and social movements (Stanford, CA: Stanford University Press), pp. 145–63. Low, Murray, Richard Ballard, and Bril Maharaj (2007), ‘Dilemmas of representation in post-apartheid Durban’, Urban Forum, Vol. 18, pp. 247–64. Lynch, Stefanie, and Zodwe Nsibande (2008), ‘The police and Abahlali baseMjondolo’, libcom.org, http://libcom.org/tags/south-africa?page=11. Madlingozi, Tshepo (forthcoming), ‘How the law shapes and structures social movements: Case study of Khulumani Support Group’, in Marcelle Dawson and Luke Sinwell (eds.), Contesting transformation: Problematizing resistance in post-apartheid South Africa (London: Pluto Press). Marais, Hein (2010), South Africa pushed to the limit: The political economy of change (London: Zed Books). Marshall, Anna-Maria (2005), ‘The legal consciousness of injustice: A theoretical framework’, Ashgate, http://www.ashgate.com/pdf/SamplePages/Confronting Sexual Harassment Ch1.pdf. Marx, Colin, and Sarah Charlton (2003), ‘The case of Durban, South Africa’, in Global report on human settlements: The challenge of slums, University College London, http://www.ucl. ac.uk/dpu-projects/Global Report/pdfs/Durban.pdf. McAdam, Doug (2004), ‘Revisiting the U.S civil rights movement: Toward a more synthetic understanding of the origins of contention’, in Jeff Goodwin and James J. Jasper (eds.), Rethinking social movements: Structure, meaning, and emotion (Oxford, UK: Rowman and Littlefield), pp. 201–32.

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Tshepo Madlingozi

McAdam, Doug, Sidney Tarrow, and Charles Tilly (2001), Dynamics of contention (New York: Cambridge University Press). McCann, M. Michael (1994), Rights at work: Pay equity reform and the politics of legal mobilization (Chicago: University of Chicago Press). McDonald, David A., and John Pape (eds.) (2002), Cost recovery and the crisis of service delivery in South Africa (Pretoria: Human Sciences Research Council). McKinley, Dale (2008), ‘Crisis of the left in contemporary South Africa’, Mediations, Vol. 24, No. 1, pp. 68–89. McKinley, Dale, and Ahmed Veriava (2005), Arresting dissent: State repression and postapartheid social movements (Braamfontein: Centre for the Study of Violence and Reconciliation). Medical Research Council (2011), ‘SA PMTCT evaluation shows that virtual elimination of paediatric HIV is possible with intensified effort’, http://www.mrc.ac.za. Memeza, Mzi (2006), ‘A critical review of the implementation of the Regulation of Gatherings Act 205 of 1993 – A local government and civil society perspective’, Freedom of Expression Institute, www.fxi.org.za/PDFs/Legal%20Unit/RGAReport-Mzi.pdf. Mkhize, Nonhlanhla, Jane Bennet, Vasu Reddy, and Relebohilie Moletsane (2010), The country we want to live in: Hate crimes and homophobia in the lives of black lesbian South Africans (Pretoria: Human Sciences Research Council). Mohamed, Salah Elzein (2006), ‘From ideas to practice: The involvement of informal settlement communities in policy-making at city level in South Africa’, South African Review of Sociology, Vol. 37, No. 1, pp. 35–47. Motsoaledi, Aaron (2011), ‘Health budget vote policy speech presented at the National Assembly by Minister Motsoaledi’, 31 May, Politicsweb, http://www.politicsweb.co.za/ politicsweb/view/politicsweb/en/page71656?oid=238984&sn=Detail&pid=71616. Mthethwa, Nathi (2011), ‘Budget vote 2011/2012 in Parliament on 31 May 2011’, Department of Provincial and Local Government, http://www.dplg.gov.za/index.php/news/ 173-press-a-media-releases/222-address-by-the-acting-minister-for-cooperative-governanceand-traditional-affairs-honourable-nathi-mthethwa-on-the-budget-vote-20112012-inparliament-on-31-may-2011.html. Mubangizi, John (2005), ‘Know your rights: Exploring the connections between human rights and poverty reduction with specific reference to South Africa’, South Africa Journal on Human Rights, Vol. 21, pp. 32–46. Mutua, Makua W. (1997), ‘Hope and despair for a new South Africa: The limits of rights discourse’, Harvard Human Rights Journal, Vol. 10, pp. 63–114. NeJaime, Douglas (2011), ‘Convincing elites, controlling elites’, Studies in Law, Politics and Society, Vol. 54, pp. 175–211. Neocosmos, Michael (2009), ‘Civil society, citizenship and the politics of the (im)possible: Rethinking militancy in Africa today’, Interface: A journal for and about social movements, Vol. 1, No. 2, pp. 263–334. (2012), ‘Transition, human rights and violence: Rethinking a liberal political relationship in the African neo-colony’, Interface: A journal for and about social movements, Vol. 3, No. 2, pp. 359–99. Ngwane, Trevor (2008), ‘Water victory: Lessons to strengthen our struggle’, Debate listserve, http://lists.fahamu.org/pipermail/debate-list/2008-August/015898.html. Oswin, Natalie (2007a), ‘The end of queer (as we know it): Globalization and the making of gay-friendly South Africa’, Gender, Place & Culture Vol. 14, No. 1, pp. 93–110. (2007b), ‘Producing homonormativity in neoliberal South Africa: Recognition, redistribution, and the equality project’, Signs, Vol. 32, No. 3, pp. 649–69.

Post-Apartheid Social Movements and Legal Mobilisation

129

Piper, Laurence, and Nonhlala Chanza (2006), ‘Too “raw” to represent: The marginalization of youth in Msunduzi ward committees’, Critical Dialogue: Public Participation Review, Vol. 2, No.1, pp. 18–23. Piper, Laurence, and Roger Deacon (2008), ‘Party politics, elite accountability and public participation: Ward committee politics in the Msunduzi Municipality’, Transformation: Critical Perspectives on Southern Africa, Vol. 66, No. 67, pp. 61–82. Pithouse, Richard (2006), ‘“Our struggle is thought, on the ground”, running: The University of Abahlali baseMjondolo’ (Centre for Civil Society Research Report No. 40), Centre for Civil Society, University of KwaZulu-Natal, http://www.ukzn.ac.za/ccs/files/RREPORT VOL106 PITHOUSE.pdf. (2009), ‘Shifting the ground of reason’, in Jacklin Heather and Peter Vale (eds.), Reimagining the social in South Africa: Critique, theory and post-apartheid society (Pietermaritzburg: University of KwaZulu-Natal Press), pp. 141–75. (2012), ‘Move from and out of the occult zone (where people dwell): An argument for political solidarity with popular (and largely situated) mobilisation by the poor over transnational organisation by civil society’, in Stefan Kr¨atke, Kathrin Wildner, and Stephan Lanz (eds.), Transnationalism and urbanism (London: Routledge), pp. 197–225. Pithouse, Richard, and Mark Butler (2007), ‘Lessons from eThekwini: Pariahs hold their ground against a state that is both criminal and democratic’, pp. 1–53 http://abahlali.org/ files/AFRAreport.final .doc. Robins, Steven (2008), From revolution to rights in South Africa (Pietermaritzburg: University of KwaZulu-Natal Press). Rosenberg, Gerald (1991), The hollow hope: Can courts bring about social change (Chicago: University of Chicago). (2009), ‘Much ado about nothing? The emptiness of rights claims in the twenty-first century United States’, Studies in Law, Politics and Society, Vol. 48, pp. 1–41. Sacks, Jared (2010), ‘Two deaths, a dozen of injuries and counting . . . : Investigation into politically motivated violence in eTwatwa (Gauteng) and other landless people’s movement affiliated settlements in May 2010’, Abahlali baseMjondolo, http://www.abahlali.org/ node/7148. Santos, Boaventura de Sousa (1995), Towards a new common sense: Law, sciences, and politics in a paradigmatic transition (New York: Routledge). Santos, Boaventura de Sousa, and C´esar Rodr´ıguez-Garavito (2009), Law, politics and the sub-altern in counter-hegemonic globalization (Cambridge: Cambridge University Press). Sarat, Austin, and Stuart Scheingold (2006), ‘What cause lawyers do for, and to, social movements: An introduction’, in Austin Sarat and Stuart A. Scheingold (eds.), Cause lawyers and social movements (Stanford, CA: Stanford University Press), pp. 1–34. Scheingold, Stuart A. (1974), The politics of rights: Lawyers, public policy and political change (New Haven, CT: Yale University Press). Setshedi, Virginia (2006), ‘SA movements in crisis’, Debate listserve, http://lists.fahamu.org/ pipermail/debate-list/2006-December/003853.html. Sinwell, Luke (2011), ‘Is another world possible? Re-examining counter-hegemonic forces in post-apartheid South Africa’, Review of African Political Economy, Vol. 38, No. 127, pp. 61–76. Sinwell, Luke, Joshua Kirshner, Kgopotso Khumalo, Owen Manda, Peter Pfaffe, Comfort Phokelo, and Carin Runciman (2009), Service delivery protests: Findings from a quick response research in four “hotspots” – Piet Retief, Balfour Thokoza and Diepsloot (Johannesburg: Centre for Sociological Research, University of Johannesburg).

130

Tshepo Madlingozi

Smith, Terence, and Jaap de Visser (2009), Are ward committees working? Insights from six case studies (Cape Town: Creda Press). Snow, David (2004), ‘Framing process, ideology and discursive fields’, in David Snow, Sarah A. Soule, and Hanspeter Kriesi (eds.), The Blackwell companion to social movements (Malden, MA: Blackwell), pp. 380–412. Snow, David, Sarah A. Soule, and Hanspeter Kriesi (2004), ‘Mapping the terrain’, in David Snow, Sarah A. Soule, and Hanspeter Kriesi (eds.), The Blackwell companion to social movements (Malden, MA: Blackwell), pp. 3–16. South African Government (2000), ‘HIV/AIDS strategic plan for South Africa: 2000– 2005’, South African Government Information, http://www.info.gov.za/otherdocs/2000/ aidsplan2000.pdf. South African Local Government Association (n.d.), ‘Code of conduct’, http://salga.org.za/ pages/Knowledge-Hub/Guidelines-for-Municipalities. Tarrow, Sidney (1998), Power in movement: Social movements and contentious politics, 2nd ed. (Cambridge: Cambridge University Press). (2011), Power in movement: Social movements and contentious politics, 3rd ed. (Cambridge: Cambridge University Press). Taylor, Verta, and Nella van Dyke (2004), ‘Get up, stand up: Tactical repertoires of social movements’, in David Snow, Sarah A. Soule, and Hanspeter Kriesi (eds.), The Blackwell companion to social movements (Malden, MA: Blackwell), pp. 262–93. Tolsi, Niren (2009a), ‘Ethnic tensions boil over’, Mail & Guardian, 3 October 2009, http:// mg.co.za/article/2009-10-03-ethnic-tension-boils-over. (2009b), ‘Kennedy olive branch a sham’, Mail & Guardian, 11 October 2009, http:// mg.co.za/article/2009-10-11-kennedy-olive-branch-a-sham. Treatment Action Committee (2010), Fighting for our lives: The history of the Treatment Action Campaign 1998–2010 (Cape Town: Treatment Action Campaign). (2011), ‘The Treatment Action Campaign (TAC) will have to close in January 2012 – unless the Global Fund meets its contractual agreement’, press statement, 23 November. Treatment Action Campaign and others (2010), ‘Reject Abahlali baseMjondolo’s call for violence and chaos!’ Treatment Action Campaign, http://www.tac.org.za/community/node/ 2952. Tshabalala, Thembilihle (2008), ‘Jo’burg water meters under spotlight after court ruling’, 10 May, Mail & Guardian, http://mg.co.za/article/2008-05-10-joburg-water-meters-underspotlight-after-court-ruling. Vandormael, Alain (2007), ‘The TAC’s “Intellectual Campaign” (2000–2004): Social movements and epistemic communities’, Politikon, Vol. 34, No. 2, pp. 217–33. Western Cape Anti-Eviction Committee (2009), ‘Fighting foreclosure in South Africa’, The Nation, http://www.thenation.com/article/fighting-foreclosure-south-africa. Williams, Patricia (1987), ‘The alchemical notes: Reconstructing ideals from reconstructed rights’, Harvard Civil Rights-Civil Liberties Law Review, Vol. 22, No. 2, pp. 401–33. Wilson, Richard (2000), ‘Reconciliation and revenge in post-apartheid South Africa: Rethinking legal pluralism and human rights’, Current Anthropology, Vol. 41, No. 1, pp. 75–98. Zikode, Sibusiso (2006), ‘We are the third force’, Abahlali baseMjondolo http://www.abahlali. org/node/17. (2007), ‘Meaningful engagement’, http://abahlali.org/node/5538. (2009), ‘Resisting all degradations and divisions – Interview with Richard Pithouse’, Interface: A Journal for and about Social Movements, Vol. 1, No. 2, pp. 22–47, http:// interfacejournal.nuim.ie/.

5 Political Power Social Pacts, Human Rights, and the Development Agenda Adam Habib*

1. INTRODUCTION

Rights-based approaches have increasingly become attractive among South African social activists for realising the socio-economic aspirations of poor and marginalised communities. This intellectual and strategic gravitation by social activists to a rightsbased approach is understandable. After all, South Africa’s civic activists succeeded at the dawn of the democratic transition in codifying socio-economic and political rights in the Constitution. Rights-based approaches, therefore, are a natural extension of these earlier successes in that they enable civil society activists to cohere together to demand what has already been promised in the constitution. The problem, however, is that these approaches implicitly assume that these rights are not being fully granted because of the failure of individual leaders (Bond, 2000; Congress of South African Trade Unions [COSATU], 2006; South African Communist Party [SACP], 2006a, 2006b). These leaders are seen to have betrayed their earlier promises and calling because they have become enticed by the trappings of power and the material benefits that it endows. Yet what these activists do not explicitly recognise is that these leaders are constrained by the relations of power in South African society. If power is configured against the poor and marginalised, then leaders are unlikely to be successful in fulfilling political and socio-economic rights that advance those interests. This means that there is an urgent need for some reflection on the politics that enable the progressive realisation of rights. This politics involves a big P, meaning that it needs to ask questions about relations of power, which enable the realisation of * Deputy Vice-Chancellor and Principal, University of Witwatersrand, Johannesburg. This chapter is substantively drawn from two earlier studies, Habib (2008, 2010), although it has been updated and edited. Author contact information: [email protected].

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rights and how to bring this about. There is currently too little reflection on this in the academy and among social rights activists. Within the academy the preoccupation is with policy, whereas among rights activists the focus is on the political leadership and its failure to honour promises. Yet both policy and leadership failures are inextricably tied to power, and there is therefore merit in trying to understand how to bring about this progressive realisation of rights. This chapter attempts to embrace this understanding. It first reflects on comparative experiences of successful democratization and development and tries to learn the lessons of these for enabling the progressive realisation of rights in South Africa. It should be noted that rights-based approaches are conceived here as the ensemble of strategies and tactics that are directed towards citizens and others progressively realising the rights to which they are entitled by virtue of either their belonging to or having a presence in a State. There is, of course, a heated debate in the literature on the legitimacy of one or the other strategy – legal remedies versus social and political mobilization – and even on whether the use of a rights discourse detracts poor people from a more radical emancipatory project (see chapter 1, by Langford). But is this debate not a pointless one? After all, the real dilemma of development is that it needs to be directed towards a sector of the population without power. If that sector’s power were evident and deployed, then political and economic elites would have become responsive to their interests. The interests of the poor are not respected, because the poor do not exhibit power. Unlocking the logic of development requires enabling poor people to discover and develop leverages, so that their power can be displayed and be evident to other stakeholders, so that political and economic elites as a result become responsive to their interests. The legitimacy of individual strategies and tactics, or the ideological discourse deployed to motivate or support a struggle, must be assessed in relation to this goal: does it enhance the leverage of poor and marginalised communities, thereby creating substantive uncertainty among elites and forcing them to become accountable to the interests of the former? Whether this is the case cannot be determined in the abstract but rather requires a concrete analysis in a concrete context. One exemplar of such strategies is social pacts. In contexts with a balance of power between business and labour, or where political elites are not able to unilaterally implement their agendas because of the power of social organisations representing distinct interest groups, social pacts can lead to inclusive development within society. In other cases, where power is not so evenly deployed among social forces, and where business or political elites have enormous leverage, then social pacts can become co-optive mechanisms that ultimately can lead to neo-liberal outcomes. This chapter, then, investigates whether social pacts can serve as a strategic mechanism for advancing these rights, and it concludes with an assessment of the prospects for the emergence and success of a social pact in contemporary South Africa.

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2. DEMOCRACY AND DEVELOPMENT: SOME COMPARATIVE REFLECTIONS

A wealth of scholarship has been built up over the past decade on the South African transition. Much of it is ideologically driven and policy oriented (Hirsh, 2005; Alexander, 2002; Desai, 2002; Terreblanche, 2002; Marais, 2001; Bond, 2000), some of it is comparatively located (Bratton and Van der Walle, 1997; Mamdani, 1996), and very little of it is sufficiently grounded in quantitative data (Bhorat and Kanbur, 2006; Seekings and Nattrass, 2006; May, 2000). Although this body of academic work has enabled some understanding of the dynamics of the transition and its evolution, it does not adequately investigate the political conditions that enable human-oriented development, a development that is inclusive and leads to the progressive realisation of rights for all of the country’s citizens. Instead, this literature is focused either on legitimising or critiquing the present development trajectory, and where alternatives are advanced, these are largely constructed at the level of policy. This, together with the fact that the leadership battle within the African National Congress (ANC) is organised mainly around personalities, indicates that there is an excessive focus on agency and very little reflection on how institutional and structural location constrains agential behaviour and choice. Moreover, there is currently little realistic thinking on how institutional and structural constrains can be transformed. This is a pity, since there are a number of historical cases across the world in which economic and political elites were prompted to undertake a human-oriented development trajectory. Does it not make sense, then, to establish a research agenda on the politics of policy making, with the express aim of trying to understand under which conditions elites can be made to behave in systemically beneficial ways? Indeed, this is reflected in the third research question of this book, namely, are certain strategies more effective than others and under what conditions? There is, of course, a substantial body of literature that addresses this issue. And despite their varied foci, there is a surprising amount of unanimity among them on the political conditions that prompt elites to behave in human-oriented and systemically beneficial ways. Two distinct sets of literature are relevant in this regard. First is the literature on the development States of East and South-East Asia (Evans, 1995; Johnson, 1999; Doner, Ritchie, and Slater, 2005). This literature has different orientations. Some of it has a policy bent and is mainly descriptive, detailing the particular policies that generated the positive socio-economic outcomes in these development States. Other studies tend to have a more institutional focus, emphasising the embedded but relatively autonomous character of the State, which speaks to the structural linkages and social interactions between political and economic elites (Evans, 1995). But a description of policies, institutions and networks cannot explain why elite coalitions adopt national development agendas. Nor can it explain why international political elites would allow these development States to implement a

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series of policies that discriminate again foreign capital. Yet some of the explanation for this is evident in the development literature itself. Chalmers Johnson (1999) for instance, explicitly accounts for the rise of the Japanese economic model by arguing that it was essentially a product of the cold war and the competitive relations between the United States and Soviet political elites. Other more recent accounts speak of systemic vulnerability generated by specific political, security, and financial conditions (Doner, Ritchie, and Slater, 2005), and yet others highlight the role of social mobilization and extra-institutional popular action in prompting these elite coalitions in the direction of broader developmental outcomes. The second set of literature relevant to this concern is that which focuses on the consolidation of democracy. Returning to the classic elements of democracy, this literature highlights the necessity of competitive political systems for making political elites accountable to their citizens. Robert Dahl (1966) made the case for democratic oppositions three decades ago in his pioneering study Political Oppositions in Western Democracies. Indeed, his central thesis has not been persuasively challenged since then, but it has been supported and corroborated by a range of other studies that followed the publication of his comprehensive work (Blondel, 1997; Huntington, 1991; Barker, 1971; Epstein, 1967; Moore, 1989). Most recently, Dahl’s thesis about the centrality of challenge and opposition for accountability in democratic systems has re-emerged in the work of Andreas Schedler (2001). Schedler, following Dahl, argues that political uncertainty is the essence of democracy. He proceeds on the basis of this foundation to draw a distinction between what he calls institutional and substantive uncertainty. The former, which Schedler views as involving the rules of the game, is bad for democracy, whereas the latter, which relates to political elites being uncertain about their continuity in office, is good for democracy. It is precisely this uncertainty, Schedler argues, that forces political elites to become responsive to the needs and wishes of citizens, and therein lay the benefits of a more equitably shared development trajectory. Both sets of literature, then, suggest that a substantive uncertainty for political elites is positive for a more human-oriented development trajectory. Of course, this uncertainty has to be conditional for it to have developmental effects. It must occur within an overall context of commonality – a democratic constitution widely supported by the citizenry, for instance – if the uncertainty is not to produce instability and dictatorship. Moreover, the literature indicates that this beneficial substantive uncertainty is normally a product of two distinct political processes: (1) social mobilisation and extra-institutional action and (2) elite contestation. Both political processes have the net effect of dispersing power in society. And it is precisely this dispersal of power that enhances citizens’ leverage over national political elites and that of the latter over their international counterparts. It needs to be noted that elite contestation that generates substantive uncertainty can occur at different levels. For much of the period between the end of World War II and the collapse of the Berlin Wall in 1989, this contestation occurred on

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the international plane between two relatively even matched superpowers. It was precisely because this uncertainty was generated on the international plane that it was possible for even authoritarian regimes like those in South-East Asia to embark on human-oriented development trajectories. After all, the resources mobilised for their development trajectories, the export orientation of these economies without their subjection to reciprocal trade flows, and their policy agendas (including radical land reform and appropriations) would not have been possible without the blessing of at least one of the superpowers (Johnson, 1999). The erosion of the bipolar world and the absence of robust competition between two relatively equal sets of international elites, however, have circumscribed the potential for human-oriented development outcomes to emerge from authoritarian political systems. This is because the absence of international elite contestation also eroded the leverage of national elites vis-`a-vis their international counterparts (Wade, 1999).1 Elite contestation, at least for the foreseeable future, can be realised only at the national level. In this sense, Amartya Sen (1999) is correct to argue that political freedom (read, democracy) is necessary for economic growth and development. But the statement requires qualification because his insistence on the positive value of democracy to economic growth and development is founded, as was that of an earlier generation of philosophers, on it having an instrumental and constructive value: instrumental in the sense of “enhancing the hearing the people get in expressing and supporting their claims” (Sen, 1999: 5), and constructive in that it helps build a democratic culture of discussion, debate, and the exchange of ideas (Sen, 1999). This presupposes, however, that these democracies always achieve their primary purpose, to diffuse power in society, and as a result enhance the leverage of citizens, thereby promoting the accountability of State elites to their citizenry. But what if such diffusion of power does not take place and such accountability is not realised? Indeed, this is the essential conclusion of much of the later literature on the third wave of democratization, which laments the rise of the phenomenon of illiberal and delegative democracies, which as Guillermo O’Donnell (1993, 1994) has maintained, are political systems in which representative political structures are weakened sufficiently to enable power to be centralised in and delegated to a leader and/or leadership. Elite contestation can therefore not be assumed; rather, it must be actively promoted in both new and established democracies. This is because such contestation is necessary, as is social mobilisation, for enhancing the leverage of citizens visa` -vis their political elites, thereby promoting the substantive uncertainty that is so necessary for prompting these actors to embark on a human-oriented development trajectory. This strategic lesson goes against the grain of much of the democratisation literature on the third wave of transitions, which has tended to urge political caution 1

There are countries like China that have retained significant leverage vis-`a-vis international economic elites particularly because of their market size. This has enabled them to marshal investment in ways that enhance not only an inclusive national development but also poverty alleviation.

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and socio-economic pragmatism instead of robust political engagement (O’Donnell and Schmitter, 1986; Huntington, 1991). But the lesson also goes against the strategic perspective of significant components of the liberation movement in South Africa that tend to emphasise unity or winning the heart and soul of the ANC (COSATU, 2006; SACP, 2006a, 2006b). This strategic perspective leads to an emphasis on unity through the establishment of the Tripartite Alliance and an excessive focus on the role of agency. The net effect is that an inordinate amount of time is spent on ensuring that the right candidates get into positions of influence in both the ruling party and the State. This strategic perspective also enables these stakeholders to ignore the necessity of a competitive political party system at this historical juncture for making political elites accountable to their citizens, thereby creating the political condition for human-oriented development. But how is this political condition to be created? What are the precise actions, behaviour, reforms, and strategies that could generate the substantive uncertainty, which has been identified as so necessary at this historical juncture? The character of the contemporary international system is unlikely to assist in this regard. Not only are the impulses to substantive uncertainty severely weakened as a result of the erosion of the bipolar world; the economic and technological transformation of the past two decades hitherto captured under the term globalization has also strengthened predictability through a concentration of power in favour of transnational capital and international financial agencies and to the disadvantage of national political elites and marginalised social groups (Marglin and Schor, 1992). Neither a revolution nor a national revolt on the scale of that which occurred in South Africa in the 1980s or in Malaysia in 1969 is in the cards for the foreseeable future. After all, the ANC still commands overwhelming support in the country. The revolts that do spontaneously occur, though numerous, are sporadic, localised, largely oriented towards accessing rights, and not an immediate political challenge to national elites (see Ballard, Habib, and Valodia, 2006; chapter 10, by Dugard, in this volume). Substantive uncertainty has to be created within the framework of the democratic political system, which not only is an advance on apartheid but also the product of the endeavours of poor and working people. There is also a long tradition of thought in progressive and socialist circles on how to advance the interests of workers and the poor within democratic non-socialist contexts. The most recent scholarly conceptual exercise on South Africa in this regard was undertaken by John Saul (1991), who, following Boris Kagarlitsky (1990), essentially made the case for what he called structural reform, or reforms that have a snowball effect, facilitating the emergence of other reforms, all of which collectively constitute a project of selftransformation. In addition, such reforms are, in Saul’s words, “rooted in popular initiatives in such a way as to leave a residue of further empowerment – in terms of growing enlightenment/class consciousness, in terms of organisational capacity – for the vast mass of the population, whom thus strengthen themselves for further

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struggles, further victories” (Saul, 1991: 6). But he then floundered when it came to specifying the reforms that had to be defined as structural. Caught up in the euphoria of the transition, and the rhetoric of intellectuals, progressive academics, and union leaders, he proceeded to give credence to a whole slew of policies, both economic and other, that would by no stretch of the imagination be described as transformative (Desai and Habib, 1994). Nevertheless, Saul’s conceptual departure point, structural reform, can be usefully harnessed to an understanding of how to advance a human-oriented development trajectory. For reforms to warrant the label ‘structural’, they must enhance the leverage of working and marginalised communities, diffuse power in favour of these social groups in society, and promote the substantive uncertainty of political elites. Which actions, behaviours, policy reforms and strategies can advance this agenda? Elsewhere I identified electoral reform (specifically the ‘mix member proportional system), the development of a viable opposition party, and a vibrant civil society as necessary ingredients for configuring the relations of power that would enable the progressive realisation of rights (Habib, 2008). I also expressed scepticism about social pacts in South Africa facilitating this end. But is such scepticism warranted in the post-Polokwane era when COSATU and the South African Communist Party have underpinned the political alliance that brought to power, and sustained in power, Jacob Zuma? Can social pacts be one mechanism among others to enable the progressive realisation of rights for poor and marginalised communities? This question is then addressed in the sections that follow. 3. THE RISE AND DECLINE OF SOCIAL PACTS

South Africa’s democratic transition, like most of the third wave of democracies (Huntington, 1991), has been characterised by two distinct transitional processes, political democratisation and economic liberalisation.2 The goal of the former is representative government. The latter has as its aim the integration of South Africa into the global economy. Both processes pose dilemmas and raise challenges. The leadership of COSATU and its officials were refreshingly aware of the dilemmas spawned by this Janus-faced transition from very early in the 1990s. And through the first few years of the negotiations period, they groped their way towards a new strategic vision that COSATU’s September Commission formally labelled ‘social unionism’ (COSATU, 1997). The term was borrowed from the writings of a number of labour sociologists loosely associated with the federation, who, since the mid1990s, had toyed with terms such as strategic, social, and social movement unionism to describe what was, by then, the path that COSATU had begun to tread (Webster, 1988; Von Holdt, 1992; Webster and Von Holdt, 1992).

2

This section is drawn from Habib and Valodia (2006): 238–44.

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There are important conceptual differences in these terms, particularly within the industrial sociology discipline. Social movement unionism is defined in this discipline as “a highly mobilised form of unionism which emerges in opposition to authoritarian regimes and repressive workplaces” (von Holdt, 2002: 285). The concept is often used to explain COSATU’s involvement in the wider anti-apartheid struggle and its close relationship with the United Democratic Front. Strategic unionism, however, refers to a form of trade unionism that involves itself in social pacts and seeks to strategically influence economic and social policy by participating in forums where those policies are formulated. The objective is to influence policies to the advantage of workers and other marginalised communities. Strategic unionism emerged in South Africa during the early 1990s, when COSATU began to engage in economic policy discussions in the National Economic Forum. In the post-apartheid period, COSATU continued this form of engagement, and even increased its role substantially in institutions like the National, Economic Development, and Labour Council (NEDLAC). The post-apartheid engagement of COSATU has been described by the federation’s leadership as social unionism. The term officially promulgated by the September Commission describes the federation’s unionism as follows: social in the sense that it is concerned with broad social and political issues, as well as the immediate concerns of its members. It aims to be a social force for transformation. Its goal is democracy and socialism. Its influence on society is based on its organised power, its capacity to mobilise, its socioeconomic programme and policies and its participation in political and social alliances. It is committed to workers control and democracy, and to maintaining its character as a movement. It is proactive and effective. It is able to negotiate and monitor complex agreements with government and employers. It is able to make important contributions to national economic and social development. (COSATU, 1997)

Whilst recognising the importance of these conceptual differences in certain academic traditions, it is not necessary for them to be highlighted for the purposes of this reflection. After all, the focus of this study is on the evolution of social pacts in South Africa, their successes and failures, and their viability in the current era. As a result, this chapter holds the view that COSATU’s adoption, through the September Commission, of ‘social unionism’ is consistent with and informed by its early practices of social movement and strategic unionism. The September Commission had as its mandate the determination of a strategic orientation for COSATU. Confronted with the economic and political challenges of the transition, the federation’s leadership established the commission to inform on organisational renewal and strategic political alliances. The commission premised its reflections on three scenario-building exercises. Scenario 1 was defined as involving no economic growth, the abandonment of the Reconstruction and Development Programme (RDP) by the ANC, high levels of political instability, and increasing

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industrial strife. Economic growth and modest delivery distinguished scenario 2. In this option racial divisions continued, but the black middle class was empowered. Scenario 3 was defined by massive growth and development, with significant job creation and delivery as per the RDP. Unions were imagined in this option as engaging in joint decision making. The commission viewed a combination of the second and third scenarios as most likely and argued for a programme of social unionism so as to increase the trade union movement’s influence on the political and socio-economic outcomes of the transition. In the words of the commission, social unionism is the strategy which will enable COSATU to . . . proactively contest the transition. . . . The aim is to harness the organised power of COSATU, its capacity to mobilise, its socio-economic programmes and policies and its participation in political and social alliances to make important contributions to national, economic and social development. . . . It was hoped through this strategic orientation to increase the influence of the working class . . . so that labour can move to “c’-owning the transformation project’ and therefore realise a more inclusive and human-oriented development. (COSATU, 1997)

The social unionism strategic vision had its roots in three related but distinct reflective exercises. First, there was the attempt by a number of senior unionists and some labour sociologists to legitimise COSATU’s increasing involvement in tripartite forums that also involved representatives of both the business community and the State.3 The exercise began with two public interventions in the South African Labour Bulletin by Geoff Schreiner and Adrienne Bird, who theorised the federation’s participation in tripartite forums as an example of a social contract and suggested that this should not only be continued but also intensified under a new democratic government (Schreiner, 1991; Bird and Schreiner, 1992). Their intervention spawned a debate both within and outside the labour movement that was to go on for years (Godongwana, 1992; Webster and Keet, 1992; Callinicos, 1992; Baskin, 1993; Schreiner, 1994; Desai and Habib, 1994) and that eventually culminated in COSATU’s adoption of most of their original recommendations and its participation in corporatist institutions. Second, there was the initiative of a number of economists associated with the Economic Trends Group and the Industrial Strategy Project, which were contracted on behalf of COSATU to investigate an alternative, more labour-friendly industrialisation strategy. Their research also generated a fair amount of controversy, since their recommendations were premised on the view that South Africa’s economic 3

This followed the successful anti-LRA campaign that resulted in a restructured tripartite National Manpower Commission and in the establishment of the National Economic Forum.

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growth depended significantly on whether the country became internationally competitive in its manufacturing sector. Their formal recommendations included industrial beneficiation, the creation and development of South Africa’s manufacturing exports, and ultimately South Africa’s integration into the global economy (Gelb, 1991; Joffe et al., 1995). Finally, and ironically, the least controversy was generated by COSATU’s decision to enter into a strategic alliance with the ANC in the 1994 elections. To be fair, the controversy in this regard had taken place some years earlier, when COSATU entered an alliance with the United Democratic Front. In any case, COSATU’s electoral pact with the ANC came with preconditions, which the federation codified in a reconstruction accord, commonly known as the Reconstruction and Development Programme, which the ANC adopted as its electoral platform (ANC, 1994).4 These three initiatives, then, or at least their recommendations, served as the basis of what eventually came to be known as social unionism. Social unionism is thus defined by three elements. First, it involves a corporatist strategy, with the labour movement participating in tripartite forums and entering into social pacts with the State and the business community. Second, it involves an assumption that integration into the global economy is inevitable, maximalist outcomes are not realisable, and a strategic economic compromise between capital and labour is necessary. Such a compromise would involve, in Glenn Adler’s and Eddie Webster’s words, a “bargained liberalisation”: liberalisation, because the changes involve opening up to the global economy; bargained, because agreements are subject to the institutionally structured interplay of societal interests. “Bargained liberalisation”, in their view, “may provide workers and marginalized social strata with an opportunity to engage the State and capital over the form and pace of adjustment, allowing the extension of some measure of social regulation to those whose livelihoods are threatened by economic restructuring” (Webster and Adler, 1999: 351). Finally, social unionism requires COSATU to politically align itself with the ANC. Such an alliance is legitimised through the conceptual banner of the national democratic revolution, which implies that the immediate outcome is a democracy essentially defined by a combination of a representative political system and a Keynesian-type economic strategy. The high point of social unionism is without doubt the period between 1994 and 1996. Labour recorded significant successes in those years. NEDLAC was established in February 1995, and the Labour Relations Act, which greatly enhanced organised workers’ bargaining position, was agreed to by the social partners, subsequently passed in the national legislature, and promulgated by the president in 1995 (Habib, 1997; Marais, 2001). A raft of other legislation, like the Skills Development Act, which benefitted workers in a variety of ways, also originated in this period, even 4

For different critical reflective summaries of the RDP, see Lodge (1999); Bond (2000); Habib and Padayachee (2000); Marais (2001).

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though it was passed in subsequent years. And the final draft of the Constitution that was promulgated in 1996 addressed many of the concerns raised by labour and enshrined socio-economic rights, even if those were restricted by various limitations.5 For a while it did seem as though South Africa would defy the odds and that social unionism would succeed. But this was not to last. The symbolic turning point came with the emergence of the Growth, Employment, and Redistribution Strategy (GEAR), which violated all three of the central tenets of social unionism. It by-passed the corporatist structures and was imposed by the Cabinet without any discussion with the social partners (Adam, Moodley, and Slabbert, 1997; Bond, 2000; Marais, 2001; Alexander, 2002). Even President Mandela acknowledged this in his speech at COSATU’s sixth congress: “It was unfortunate that here in GEAR we did not have sufficient consultation with other members of the alliance. In fact even the ANC learnt of GEAR when it was almost complete. . . . We ignored those who put us in power” (Mandela, 1997). Its economic strategy violated the compromise ethos described by Adler and Webster (1995) and Webster and Adler (1999) as the hallmark of social unionism. And, finally, its passage suggested that the Tripartite Alliance was not an effective mechanism to ensure COSATU’s influence on the ANC. Indeed, the passage of GEAR suggested that COSATU’s influence was waning. If there remained any doubt on this, it was put to rest with what in effect was Thabo Mbeki’s State and Social Transformation document. This document, released in 1996, explicitly identified the high government debt, the mobility of capital, and a changing global environment as features that limited the abilities of the government to implement democratic transformation on its own. On the basis of this, Mbeki argued that the ANC needed to transcend its previous antipathy to the business community; abandon its wish for “the total defeat and suppression of the national and class forces responsible for . . . apartheid”; and focus on the establishment of a democratic State, which would involve “a dialectical relationship with private capital as a social partner for development and social progress” (ANC, 1996: 22). This call for a strategic alliance between the State and capital was a milestone, because it signalled a significant departure from the ANC’s traditional approach to alliances, which tended to prioritise labour and other marginalised sectors in the black population. The effects of this economic trajectory were catastrophic for workers. Between 1985 and 2002, the wage share of output as a percentage of gross domestic product declined significantly from 57.1 per cent in 1985 to 51.4 per cent in 2002. In the same time period, profit share increased from 42.9 per cent to 51.4 per cent (Gelb, 5

A number of cases in the Constitutional Court were founded on the second-generation rights clause of the Constitution. The most prominent of these are the Grootboom case, involving the issue of housing and evictions in the Western Cape, and the Treatment Action Campaign’s legal challenge, which focused on compelling government to roll out antiretroviral medication for Mother-To-ChildTransmission. See discussion in chapters 2 and 7.

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2003: 21). This trend almost certainly consolidated in the boom years between 2003 and 2007. In the public sector, the situation is even more serious. Public-sector salary increases have lagged inflation for decades, with the result that it has become impossible to attract adequately qualified and trained staff to crucial professions in the public sector, including, among others, teachers, nurses, and doctors. This has long been recognised, and the government more recently promised to address this through the implementation of the Occupation-Specific Dispensation (OSD). Yet one year later, when nothing had still happened, public-sector workers took to the streets, sparking the upsurge in labour activity after the April 2009 elections. In any case, there can be no doubt that workers have benefitted far less than business from the growth of the South African economy in the past fifteen years. The political consequences of workers benefitting less than business were dramatic. The relationship of COSATU with the ANC has deteriorated badly since 1996, and the trade union federation has since embarked on a series of high-profile public stay-aways against one or another aspect of government policy. Person-days lost in this period increased from 650,000 in 1997 to 1.25 million in 2001 (Andrew, Levy, & Associates, quoted in Devey, Valodia, and Velia, 2004). These public protests outraged the ANC leaders, who on a number of occasions explicitly challenged COSATU to leave the alliance.6 Increasingly, left-leaning activists in the ANC were pressured to publicly toe the leadership’s line, a process that culminated in the public humiliation of Jeremy Cronin by some members of the ANC’s National Executive Committee in 2002.7 The heady optimism of social unionism advocates also dissipated, such that their assessments on the prospects for unions and workers became more sober, and realistic, as the Mandela presidency came to its end. This is most evident in comparing Glenn Adler and Eddie Webster’s two interventions on labour and democracy in South Africa. The first, written in 1994 and published in 1995, is largely an actorbased theory of the transition that prioritises agency over structure, even though the authors deny this, and demonstrates the central role of COSATU in the transition and its evolution. Their central message was that “the South African transition may constitute the first significant challenge to the predictions of orthodox transition theory, [which suggested] . . . that the democracy resulting from the transition process is conservative economically and socially” (Adler and Webster 1995: 100). This perspective, they believed would be challenged if COSATU continued to adopt the strategy of radical reform whose constituent elements involved, among others, participation in corporatist forums, seconding COSATU leaders as ANC members of Parliament to national and regional parliaments, and participation in the formulation of the RDP. Their second intervention, written in 1998 and published in 1999, was theoretically and conceptually more nuanced, recognising the conditioning 6

7

Even Mandela publicly criticised those who were critical of GEAR and challenged them to leave the ANC if they uncomfortable with its direction (Habib, Daniel, and Southall, 2003: 4). For a reflective discussion of this, and its consequences for the Tripartite Alliance, see Southall (2003).

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effects of structures on actors, and comparatively more relevant, for it reflected on the experiences of both the developed and the developing worlds.8 Although the message was similar – that class compromise was still possible – they tended to be less sanguine about its realisability and more aware of the structural conditioning effects on the ANC to abandon the interests of workers and marginalised communities in favour of an ‘elite compromise’. The article still betrayed an exaggerated assessment of the capacities of the labour movement, which was reflected in the conclusion that South Africa was in the throes of a class stalemate (Webster and Adler, 1999). But their intervention suggested that social unionism advocates had graduated to a more sober assessment of the prospects for a worker-friendly political dispensation. Yet why was it that such politically astute labour leaders and experienced sociologists were so seriously misled? Why is it that the social pact that they had advocated so completely unravelled? How is it that the social constituencies COSATU represented had lost such significant ground in a democratic era? The answer lies in the motivation for the social pacts. Labour leaders cottoned to pacts as a mechanism to legitimise their alliance with the ANC and the soon-to-be leadership in the State. The sociologists were similarly driven by a desire to legitimise the decisions of the labour movement. As a result, there were no serious investigations into the conditions that generate pacts and enable their success. Comparative studies that were done were largely superficial, describing positive outcomes elsewhere and implying that these could emerge in South Africa, without investigating the specific conditions that facilitated them (Maree, 1993). Studies that investigated the conditions that generate pacts and warned about its dangers in the economic and political climate of the 1990s were brushed aside as ultra-leftist and ‘academic’ (Callinicos, 1992; Desai and Habib, 1994; Habib, 1997). The net effect was the unravelling of the social pacts, the political weakening of the unions, and the growth of poverty and inequality in society. If this outcome is to be avoided, then understanding the conditions under which social pacts emerge and succeed is imperative. 4. EXPLAINING THE EMERGENCE OF SOCIAL PACTS

The international literature on corporatism and social pacts emanates from three schools, each of which advances a distinct explanation for the prevalence of such arrangements in the modern world. The first, known as the historical continuity school, focused primarily on Latin America and argued that corporatist political features on the continent have their roots in a political culture historically grounded in hierarchy, status, and patronage. One of the most noted scholars of this school, Howard Wiarda (1981: 52) suggested that there is a distinct continuity between the pre- and post-colonial periods. The 8

There is, for instance, a very useful reflection on the experiences of the Indian state Kerala and the lessons this may hold for democratic transitions in the South. See Webster and Adler (1999: 356–58).

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nature of society and the substantive character of the political and constitutional order extended, in an adapted form, from the pre-colonial into the post-colonial period. Corporatism was thus conceived as having its roots in an elitist, historical, and authoritarian heritage that was imparted to Latin America by its colonial powers. A second related but distinct interpretation of corporatism emerged from the societal reflection school, which suggested that corporatist political arrangements were merely a reflection of the natural organisation of particular societies. Ronald Rogowski and Lois Wasserspring, two proponents of this thesis, argued that it was natural for groups to emerge in socially segmented societies. The State was excluded from their analysis of how groups emerged. In any case, because these groups were relatively self-directed in their political actions, Rogowski and Wasserspring maintained that corporatist arrangements automatically emerged to govern the political interactions among these naturally evolved groups (cited in Stepan, 1978: 59–66). Corporatism was thus a natural political arrangement in socially segmented societies. Both the ‘historical continuity’ and ‘societal reflection’ explanations of the origins of corporatism have been subjected to substantial criticism by Alfred Stepan. The essential weakness of the historical continuity explanations was their failure to account for the diversity of political outcomes in geographical areas that were considered to have experienced similar cultural influences (Stepan, 1978: 54). Stepan’s criticisms also extended to explanations of the societal reflection school. His principal argument against this interpretation of corporatism was its treatment of society as the independent variable and the political system as the dependent variable. It was this erroneous conception, he believed, that enabled the school to conceive of group formation as a natural process not influenced by political factors. The alternative interpretation of corporatism and social pacts advanced by Stepan, Schmitter, Maier, and Panitch can be labelled ‘crisis response’. This perspective suggested that corporatist institutional arrangements were simply State creations in times of crisis. Stepan analysed the emergence of State corporatism by reviewing the political programs of corporatist regimes in Peru, Brazil, Chile, and Mexico. He suggested that the programmatic goal of elites in these societies was to realise an “integral security” that would serve to connect national security and development. State economic elites, he maintained, entered into an alliance with the military and multinational corporations to achieve the social peace that was required for the realisation of their national development plans. Stepan also argued that corporatism appealed to elites throughout the third world because “there is a widespread elite fear that the old modes of domination are breaking down, and they search for new mechanisms to link the lower classes to the State and new formulas to legitimize such mechanisms” (Stepan, 1978: 58). He suggested that a corporatist and statist ideology was the natural political response of elites in Africa and Latin America, once they rejected liberal and Marxist ideas because of their legitimation of conflict. Although Stepan’s ‘crisis response’ explanation focused on the origins of State corporatism, it is also relevant to an understanding of the emergence of societal

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forms of corporatism. One application of this explanation to societal corporatism is Charles Maier’s (1984) Preconditions for Corporatism, which suggested that the origins of societal corporatist features in Western Europe could be understood only within the context of the rise of mass labour movements and their political challenge to the liberal constitutional order. Maier contended that, during and after World War I, the production demands imposed by the war effort and the need to minimise labour unrest prompted State elites to establish corporatist arrangements. These arrangements were maintained into the period of, and after, World War II. The renegotiation of corporatist arrangements in the post–World War II period was motivated, he argued, by State elites’ sense of political and economic vulnerability. Sustaining these corporatist features in subsequent decades was facilitated by the strength of social-democratic parties and the legitimation of social-democratic ideology, which “was built upon the premise of continued bargaining among class actors for political and social gains” (Maier, 1984: 49). On balance, then, it seems as if the crisis response explanation is the more useful one in explaining the rise of social pacts and societal corporatism in contemporary South Africa. The newly emerging ANC-aligned State elites, believing that prudent management of the South African economy in the post–Cold War era required generating and maintaining business confidence, enhancing the competitiveness of South African firms, and convincing foreign and domestic business communities to increase their levels of investment in the productive side of the economy, recognised that they could not immediately address the material grievances of their constituencies and deliver on the electoral promises they made to those constituencies. Recognising that COSATU, as the largest trade union federation, had the capacity to destabilise this agenda by resorting to mass strikes and protests, they sought to neutralise this threat by embarking on a social pact and a corporatist strategy. On its side, COSATU felt ideologically disarmed in the immediate years following the collapse of the Berlin Wall. This was most dramatically captured by Adrienne Bird and Geoff Schreiner, senior unionists in National Union of Metal Workers of South Africa and COSATU, suggested in COSATU at the Crossroads that the collapse of Eastern Europe and the Soviet Union necessitated a rethink on the meaning of socialism. They argued that the failure of the communist experiment proved “that modern day economies . . . do not permit the possibility that all functions of the market can be replaced. The market and private enterprise have to be allowed a significant role in a future socialist society” (Bird and Schreiner, 1992: 23). On the basis of this, they proceeded to identify a range of corporatist institutions, like the National Economic Forum and the National Manpower Commission, and suggested that these “become permanent institutional features of a democratic socialist South Africa” (Bird and Schreiner, 1992: 23–24). Social pacts therefore seemed a reasonable solution in a world where more radical solutions were not on the cards. And the idea of a social pact neatly dovetailed with the tradition of the Tripartite Alliance among the ANC, COSATU, and the SACP. The pact was thus considered

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a logical step forward for the alliance under conditions in which it occupied State power. The preceding theoretical reflections explain not only the emergence of social pacts but also the conditions in which they are successful. Social pacts were most successful, especially for enhancing the livelihoods of ordinary citizens, in democratic Western Europe. This was the case because the Cold War on the international plane and the strength of unions in the domestic context predisposed international political elites, and the political leadership in the United States in particular, to facilitate Western European development through the provision of the Marshall Plan aid, massive State-to-State aid including investment for reconstructing economies, and the provision of collective security through the establishment of the North Atlantic Treaty Organisation. This international and domestic context also created the political will among these elites for the establishment of a Keynesian macroeconomic environment within which social pacts and social democracies were cocooned. Social pacts therefore facilitated social democracy in Western Europe particularly because of the Keynesian macroeconomic environment, itself a product of a particular configuration of power in the global order (Maier, 1984: 49; Panitch, 1986). This must not be interpreted to imply that social democracies in Western Europe are homogeneous. Indeed, as Esping-Andersen (1990) has demonstrated, there are significant differences among Western European social democracies that exhibit very different social pacts and social welfare capacities. Nevertheless, despite their differences, their collective genesis lay in a Keynesian global economic environment and a domestic context in which labour was a significant political actor. Social pacts in more neo-liberal economic climates like South Africa of the mid-1990s were unlikely to lead to the same outcome. Indeed, as Przeworski (1991) maintained, social pacts and corporatist institutions became mechanisms of co-optation in this era, paving the way for a conservative economics, resultant political tensions, and the ultimate failure of the strategy itself.9 5. A SOCIAL PACT IN THE ZUMA ERA?

Is a social pact feasible in the current context? After all, COSATU and the SACP are in a much more empowered position in the post-Polokwane era. This is especially evident in the fact that there are a number of Cabinet ministers in the post–April 2009 Cabinet who either have been deployed by COSATU and the SACP or are partial to their interests, policy proposals, and ideological leanings. This must not be interpreted to suggest that the ANC and the State are controlled by COSATU and the SACP. Indeed, this is far from the case. The appointment of Trevor Manuel 9

One could similarly note that the social accords in Australia in the 1980s paved the path to neoliberalism and the conservative Howard government in the new millennium.

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and Pravin Gordan as ministers of national planning and finance, respectively, is testimony to the ongoing leverage of business. After all, these appointments were simply made to placate the markets. Nevertheless, there are also other ministers appointed in the economic corridors of power – Rob Davies and Ebrahim Patel in trade and industry and economic planning, respectively – who suggest a much greater plurality of ideological thought in the economic portfolios than in the Mbeki era. This relative equalisation of economic voice between labour and business is evidence of the enhanced power of labour and implies that political and economic elites are uncertain of their futures and may be more disposed towards viable and equitable social pacts. This does not imply that the engagement over economic policy within the ANC is free of acrimony. Indeed, the singling out of Trevor Manuel at the COSATU congress in September 2009 suggested that the union federation and the SACP were not yet confident that their political gains would not be reversed. This was the real sub-text of the General-Secretary of COSATU, Zwelinzima Vavi’s criticism in 2009 that Manuel was making a power play to become the de facto prime minister through the establishment of the National Planning Commission. After all, the Green Paper: National Strategic Planning made clear in multiple places that a strong partnership between social actors, in effect a social pact, was necessary for the process to be successful (Presidency, Republic of South Africa 2009: 11, 19). This would have conceded a key demand of COSATU, namely that civil society play a central role in long-term government thinking and prioritisation. Given this, the only explanation for COSATU’s criticism is that it did not and still does not trust Manuel as the central player in the initiative. Concerned that the politics and economics of the Mbeki camp would return to dominate government thinking through Manuel and the National Planning Commission, Vavi essentially launched a pre-emptive critique signalling that the left was on guard to ensure that policy victories in Polokwane would not be thwarted. There are some, particularly in the business community, who question the viability of the social pact given this internal conflict within the ANC and the possibility that a new succession battle may be emerging in the party. But abstention on the grounds of fear of future political battles cannot be an answer. It needs to be borne in mind that the value of equitable social pacts can be demonstrated only in practice. Should this be done, and should benefits accord to all social partners, then such a pact would take on a life of its own and transcend the political battles between left and right, as has occurred in Western Europe during much of the period since World War II. In any case, the international environment also seems to be more conducive to equitable social pacts. The global economic crisis – probably the second most serious in a century – has weakened the power of multinational corporations and has, as a result, implicitly enhanced the leverage of States and national political elites. This changed circumstance has enabled a substantive change in the global

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macroeconomic policy environment. Beginning under Bush, and especially under Obama, the American establishment threw out the precepts of the Washington Consensus and intervened significantly in the markets. The U.S. banks were virtually nationalised through the largest bailout in history. Similar bailouts were facilitated for motor vehicle and other conglomerates. Effectively, the American State addressed this crisis in exactly the way it and the International Monetary Fund had prevented developing nations from managing their own crises. And the Americans were not alone. Similar interventions in the market were undertaken by the United Kingdom, France, Germany, China, Japan, and almost every other major economy in the world. The net effect was a shift of the global macroeconomic environment in a quasi-Keynesian direction. South Africa had already begun to move down this path even before the crisis. Economic policy had shifted to the left in the last few years of Thabo Mbeki’s reign. Privatisation was no longer a national priority, as it had been in the late 1990s. Since 2001 there had been a significant increase in social support grants, so that twelve million people, a quarter of the population, received such aid towards the end of Mbeki’s presidential tenure. In addition, the health and education budgets had been rising steeply for a number of years (Habib, 2008). Moreover, since 2004, South Africa had a major State-led infrastructural investment program, to the tune of R780 billion. The official rhetoric, both under Mbeki and under Zuma, speaks of the developmental State. Economic policy under Zuma has maintained this gradual trend to the left. It has not constituted a radical departure from Mbeki’s agenda. South Africa is unlikely to see the nationalisation of Sasol or Mittal, as the SACP had called for. The shifts that are occurring are likely to be in line with what already exists. They have been directed at both protecting and spreading the benefits of the democratic transition. This is reflected in a number of recent developments. It is reflected in the State’s drive to fix up service delivery. It is reflected in the Department of Trade and Industry’s industrialisation plan – Industrial Policy Action Plan 2 – which is directed at growing industrial sectors with greening potential and labour-absorbing capacity. It is also reflected in Ebrahim Patel’s release of the New Growth Path, which envisages both a greater role for the State in stewarding the economy and an income policy (including for executives) to be negotiated through a social pact. It is reflected in the minister of higher education and training Blade Nzimande’s concerns about affordable tertiary education and in the rebuilding of the post-secondary training and college sector to absorb the three million unemployed youth who are not in universities (Habib, 2009). And it is reflected in the proposed National Health Insurance, which is likely to come on line in 2013. As a result of a changing global economic environment, an upsurge in civic protest and social struggles, and political divisions in the ANC leadership, South Africa’s economic environment had begun to move in a Keynesian direction in the last years of the Mbeki presidency, and this trend is increasingly being consolidated under the Zuma administration.

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The balance of power and broader structural dynamics, including economic developments in both the global and the national settings, are therefore much more facilitative of equitable social pacts than they were in the 1990s. But structural conditions alone do not enable the emergence of social pacts. Such pacts also require political will and leadership. And South Africa’s current political leadership has been lacking in this regard. This was most clearly evident in President Zuma’s first State of the Nation address. Confronted by a set of rolling labour strikes and service delivery protests, Zuma responded by promising everything to everyone. There is not much that one could have disagreed with in his speech. He gave business what it wanted. He gave labour what it wanted. Students got what they wanted. Middle- and uppermiddle-class citizens got what they wanted. But by saying everything, he in effect said nothing. No choices were made. No trade-offs were undertaken. In the process, he missed an important opportunity to define his political administration and establish the essential precondition for a social pact. Social pacts, it must be understood, are established by State elites with the willing participation of the organised expressions of relevant social actors. They are essentially about managing the expectations of citizens, workers, and even the business community. In this, Zuma, his ministers, and the leadership of the ANC have essentially failed. This is because the ANC’s and the government’s responses have not been all that imaginative. Gwede Mantashe responded by chastising COSATU workers for compromising the image of the Zuma administration. Trevor Manuel accused business of cowardice and asked it to stand up to the might of the unions. President Zuma remained silent on the issue, characteristically promising everything to everyone in his State of the Nation addresses. None of this has or will enable the management of popular expectations. It can be truly addressed only by astute political management. This does not mean berating workers for populism or compromising Zuma’s image. Rather, it would have required the president and his Cabinet to demonstrate that they would also be prepared to make sacrifices through the modest cars they procure and the perks they decline. It would also be demonstrated by the State convincing corporate executives to curtail their lavish packages, forgo their bonuses, and take lower-thaninflation increases. Ultimately, astute political management requires recognising that sacrifices in this recession should not be made only by workers, the poor and marginalised, and ordinary citizens but also by the rich and the upper middle classes. After all, poor peoples’ expectations are inextricably tied to those of political and economic elites. It would be impossible to moderate the expectations of the former without the latter. This at long last has been recognised by the South African Cabinet, which in the last months of 2010 adopted the New Growth Path, which explicitly called for caps on executive remuneration and bonuses. Obviously, the plan has generated significant opposition from business and is the subject of negotiations among business, labour, and the State. It will survive only if the respective stakeholders exercise leadership to

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curb their short-term interests and enable the economy to take a more sustainable growth path that is in the interests of everyone. In summary, the social pact attempted in the 1990s, remnants of which still exist today, failed because structural conditions were not facilitative of it realising equitable outcomes for all social partners. In essence, it became a co-optive mechanism to emasculate labour’s demands. However, structural conditions seem to be shifting – COSATU’s leverage in the State has been enhanced, political and economic elites are more uncertain as a result of Zuma’s success at the Polokwane conference, the global and national macroeconomic environment is moving in a Keynesian direction – all of which creates the potential for a social pact to succeed. Yet for this to happen, bold political leadership is required. Such leadership needs to manage the expectations of both citizens and workers and the business community. The ANC and government leaders have tried the former and are only beginning to engage the latter. Paralysed by a fear of markets and their reaction, political elites have been reluctant to engage, even timidly, with reigning in the expectations of business executives and the upper middle classes. But as long as they fail to do so, or are perceived to be failing to do so, they will fail to rein in popular expectations. Popular and privileged expectations are tied together, and neither can be reined in without the other. And so long as this is not done, a social pact cannot be realised. The irony is that whereas the social pact of the 1990s failed because of structural conditions, that of the post-April 2009 era may be stillborn unless government develops the political courage and imagination to engage the markets and the upper classes in a more robust form. 6. CONCLUSION

Can the social pact be a mechanism for the progressive realisation of rights? The investigation and reflections detailed suggest that this can be the case under only two conditions. First, it requires a structural configuration of power in which there is a relative equity in the leverages of both business and labour. Second, it requires that the political elite – the ANC in this case – have the political courage, imagination, and will to contain elite aspirations, so as to enable popular expectations to also be moderated. The first condition emerged in South Africa as a result of political developments at the Polokwane conference in December 2007. The second has only begun to emerge, as is evident in the New Growth Path and in the public debate that it has spawned. How this debate evolves, whether the Zuma administration continues to unanimously endorse the New Growth Path and support Ebrahim Patel’s initiatives in this regard, and ultimately whether the economic elite accedes to an income policy will all determine the prospects of a successful social pact emerging in South Africa in the years to come. If such a successful social pact does come to pass, we have the potential for the progressive realisation of rights for poor and marginalised communities that was promised at the dawn of South Africa’s

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democratic transition. If not, then the political and economic elite may be sowing the seeds of future revolt.

references Adam, Heribert, Kogila Moodley, and Frederik Van Zyl Slabbert (1997), Comrades in business: Post-liberation politics in South Africa (Cape Town: Tafelberg). Adler, Glenn, and Edward Webster (1995), ‘The labor movement, radical reform, and transition to democracy in South Africa’, Politics & Society, Vol. 23, No. 1, pp. 75–106. African National Congress (1994), The reconstruction and development program: A policy framework (Johannesburg: Umanyano Publications). (1996), ‘The state and social transformation’ (Discussion document). Alexander, Neville (2002), An ordinary country: Issues in the transition from apartheid to democracy in South Africa (Pietermaritzburg: University of Natal Press). Ballard, Richard, Adam Habib, and Imraan Valodia (2006), Voices of Protest: Social Movements in Post-Apartheid South Africa (Pietermaritzburg: UKZN Press). Barker, R. (1971), Studies in Opposition (London: Macmillan). Baskin, Jeremy (1993), ‘The trend towards bargained corporatism’, South African Labour Bulletin, Vol. 17, No. 3, pp. 63–69. Bhorat, Haroon and Ravi Kanbur (2006) Poverty and Policy in Post-Apartheid South Africa (Cape Town: HSRC Press). Bird, Adrienne, and Geoff Schreiner (1992), ‘COSATU at the crossroads: Towards tripartite corporatism or democratic socialism?’, South African Labour Bulletin, Vol. 16, No. 6, pp. 22–32. Blondel, J. (1997), ‘Political Opposition in the Contemporary World’, in Government and Opposition, Vol. 32, No. 4, pp. 462–487. Bond, Patrick (2000), Elite transition: From apartheid to neoliberalism in South Africa (Pietermaritzburg: University of Natal Press). Bratton, Michael and Nicolas van de Walle, (1997), Democratic Experiments in Africa: Regime Transitions in Comparative Perspective (Cambridge, Cambridge University Press). Callinicos, Alex (1992), Between apartheid and capitalism (London: Bookmarks). Congress of South African Trade Unions (2006), ‘COSATU political discussion document: Possibilities for fundamental change’, prepared for the 9th National Congress, 18–21 September, Johannesburg. (1997), ‘Report of the September Commission’, http://www.cosatu.org.za/shop/shop 0604.htm#September. Dahl, Robert (1966), Political Oppositions in Western Democracies (New Haven, CT: Yale University Press). Desai, Ashwin (2002), We are the Poors: Community Struggles in Post-Apartheid South Africa (New York: Monthly Review Press). Desai, Ashwin, and Adam Habib (1994), ‘Social movements in transitional societies: A case study of the Congress of South African Trade Unions’, South African Sociological Review, Vol. 6, No. 2, pp. 68–88. Devey, Richard, Imraan Valodia, and Myriam Velia (2004), ‘Constraints to growth and employment: Evidence from the Greater Durban metropolitan area’ (Research Report No. 64, School of Development Studies, University of KwaZulu-Natal). Doner, R., K. Ritchie, and D., Slater (2005) ‘Systemic Vulnerability and the Origins of Development States: Northeast and Southeast Asia in Comparative Perspective’, International Organization, Vol. 59, No. 2, pp. 327–361.

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Epstein, L. (1967), Political Parties in Western Democracies (New York: Praeger). Esping-Andersen, Gøsta (1990), The three worlds of welfare capitalism (Princeton, NJ: Princeton University Press). Evans, Peter (1995) Embedded Autonomy: States and Industrial Transformation, (Princeton, NJ: Princeton University Press). Gelb, Stephen (ed.) (1991), South Africa’s economic crisis (Cape Town: David Philip). (2003), ‘Inequality in South Africa: Nature, causes and responses for DfID policy initiative on addressing inequality in middle-income countries’ (Johannesburg: Edge Institute). Godongwana, Enoch (1992), ‘Social contract: Which way for South Africa?’, South African Labour Bulletin, Vol. 16, No. 4, pp. 64–67. Habib, Adam (1997), ‘From pluralism to corporatism: South Africa’s labor relations in transition,’ Politikon, Vol. 24, No. 1, pp. 57–75. (2008), ‘Substantive uncertainty: South Africa’s democracy becomes dynamic’, African Analyst, Vol. 3, No. 2. (2009), ‘A blot on Zuma’s stellar report’, Sunday Tribune, 16 August. (2010), ‘Reflections on Building a Sustainable Social Pact: Business, Labour and the State under Jacob Zuma’, 2009 Transformation Audit (Cape Town: Institute for Justice and Reconciliation). Habib, Adam, John Daniel, and Roger Southall (2003), ‘Introduction: The state of the nation 2003–2004’, in John Daniel, Adam Habib, and Roger Southall (eds.), The State of the Nation 2003–2004 (Cape Town: HSRC Press), pp. 1–24. Habib, Adam, and Imraan Valodia (2006), ‘Reconstructing a social movement in an era of globalisation: A case study of COSATU’, in Richard Ballard, Adam Habib, and Imraan Valodia (eds.), Voices of Protest: Social Movements in Post-Apartheid South Africa (Pietermaritzburg: University of KwaZulu-Natal Press), chapter 11, pp. 225–253. Habib, Adam, and Vishnu Padayachee (2000), ‘Economic policy and power relations in South Africa’s transition to democracy’, World Development, Vol. 28, No. 2, pp. 245–63. Hirsch, Alan (2005), Season of Hope: Economic Reform under Mandela and Mbeki (Pietermaritzburg: UKZN Press). Huntington, Samuel (1991), The third wave: Democratization in the late twentieth century (Norman: University of Oklahoma Press). Joffe, Avril, David Kaplan, Raphael Kaplinsky, and David Lewis (1995), Improving manufacturing performance in South Africa: Report of the Industrial Strategy Project (Cape Town: University of Cape Town Press). Johnson, Chalmers (1999), ‘The Development State: Odyssey of a Concept’, in WooCumings, M. (ed.), The Developmental State (Ithaca: Cornell University Press), pp. 32–61. Kagarlitsky, Boris (1990), The Dialectic of Change (London: Verso). Lodge, Tom (1999), South African politics since 1994 (Cape Town: David Philip Publishers). Maier, Charles (1984), ‘Preconditions for corporatism’, in John Goldthorpe (ed.), Order and conflict in contemporary capitalism (Oxford, UK: Clarendon Press), pp. 39–59. Mamdani, Mahmood (1996), Citizen and Subject: Contemporary Africa and the Legacy of Late Colonialism (Princeton, NJ: Princeton University Press). Mandela, Nelson (1997), Speech at the Sixth National Congress of COSATU, Mafikeng: 16–20 December, http://www.sadtu.org.za/press/speeches/2001/16-9-1997.0.htm. Marais, Hein (2001), South Africa: Limits to change: The political economy of transition (London: Zed Books). Maree, Johann (1993), ‘Trade unions and corporatism in South Africa,’ Transformation, No. 21, pp. 24–54.

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Marglin, S. and J. Schor (1992), Golden Age of Capitalism: Reinterpreting the Post War Experience (Oxford: Oxford University Press). May, Julian (2000), Poverty and Inequality in South Africa: Meeting the Challenge (Cape Town: David Philip). Moore Jr., Barrington (1989), Liberal Prospects under Soviet Socialism: A Comparative Historical Perspective (New York: Averell Harriman Institute). O’ Donnell, Guillermo (1994), ‘Delegative democracy’, Journal of Democracy, No. 5, pp. 55–69. (1993), ‘On the state, democratization and some conceptual problems: A Latin American view with glances at some Post-Communist Countries’, World Development, Vol. 21, No. 8, pp. 1355–1369. O’Donnell, Guillermo and Phillipe Schmitter (1986), Transitions from Authoritarian Rule: Tentative Conclusions about Uncertain Democracies, Vol. 4 (Baltimore: Johns Hopkins Press). Panitch, Leo (1986), Working class politics in crisis: Essays on labour and the State (London: Verso). Presidency, Republic of South Africa (2009), ‘Green paper: National strategic planning’, September (Pretoria: Republic of South Africa). Przeworski, Adam (1991), Democracy and the market (Cambridge: Cambridge University Press). Saul, John (1991), ‘South Africa: Between ‘Barbarism’ and ‘Structural’ Reform’, New Left Review, No. 188. Schedler, Andreas (2001) ‘Taking Uncertainty Seriously: The Blurred Boundaries of Democratic Transition and Consolidation’, Democratization, Vol. 8, No. 4, pp.1–22. Schmitter, Philippe (1974), ‘Still the century of corporatism?’ Review of Politics, Vol. 36, No. 1, pp. 85–131. Schreiner, Geoff (1991), ‘Fossils from the past: Resurrecting and restructuring the National Manpower Commission’, South African Labour Bulletin, Vol. 14, No. 7, pp. 32–40. (1994), ‘Restructuring the labour movement after apartheid’, South African Labour Bulletin, Vol. 18, No. 3, pp. 43–49. Seekings, Jeremy and Nicoli Nattrass (2006), Class Race and Inequality in South Africa, (Pietermaritzburg: UKZN Press). Sen, Amartya (1999), ‘Democracy as a Universal Value’, in Journal of Democracy, Vol. 10, No. 3. South African Communist Party (2006a), ‘Class, national and gender struggle in South Africa: The historical relationship between the ANC and the SACP’, part 1, Bua Komanisi, Special Issue, May, pp. 3–16. (2006b), ‘Class struggles and the post-1994 State in South Africa’, part 2, Bua Komanisi, Special Issue, May, pp. 16–31. Southall, Roger (2003), ‘State of the political parties’, in John Daniel, Adam Habib, and Roger Southall (eds.), State of the Nation 2003–2004 (Cape Town: HSRC Press), pp. 53–77. Stepan, Alfred (1978), The state and society: Peru in comparative perspective (Princeton, NJ: Princeton University Press). Terreblanche, Sampie (2002), A History of Inequality in South Africa 1652–2002 (Pietermaritzburg: University of Natal Press). Vavi, Zwelinzima (2005), ‘Keynote address of the general secretary to the COSATU Conference to celebrate 10 years of democracy’, Midrand, 5–8 March. Von Holdt, Karl (1992), ‘What is the future of labour’, South African Labour Bulletin, Vol. 16, No. 8, pp. 30–37.

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(2002), ‘Social movement unionism: The case of South Africa’, Work Employment and Society, Vol. 16, No. 2, pp. 283–304. Wade, R. (1999), Governing the Market: Economic Theory and the Role of Government in East Asian Industrialization (Princeton, NJ: Princeton University Press). Webster, Edward (1988), ‘The rise of social movement unionism: The two faces of the black trade union movement in South Africa’, in Phillip Frankel, Noam Pines, and Mark Swilling (eds.), State, resistance and change in South Africa (London: Croom Helm), pp. 174–96. Webster, Edward, and Glenn Adler (1999), ‘Towards a class compromise in South Africa’s “double transition”: Bargained liberalization and the consolidation of democracy’, Politics and Society, Vol. 27, No. 3, pp. 347–85. Webster, Edward, and Dot Keet (1992), ‘National Economic Forum: Parallel to CODESA?’, interview with Sam Shilowa, South African Labour Bulletin, Vol. 16, No. 3. Webster, Edward, and Karl Von Holdt (1992), ‘Towards a socialist theory of radical reform: From resistance to reconstruction in the labour movement’, paper delivered to the Ruth First Memorial Symposium, University of the Western Cape, 17–18 August. Wiarda, Howard (1981), Corporatism and national development in Latin America (Boulder, CO: Westview Press).

Thematic Areas

6 Rural Land Tenure The Potential and Limits of Rights-Based Approaches Ben Cousins* and Ruth Hall**

1. INTRODUCTION

Dispossession of land belonging to black people was integral to the formation of modern South Africa and a key feature of the apartheid era. Legal frameworks to address the legacies of racialised dispossession and the insecure land rights of the majority were hotly contested during the mid-1990s in the transition to democracy. One of the first laws passed by the first democratic parliament in November 1994 was the Restitution of Land Rights Act 22 of 1994, and its approval was “greeted by cheers and a standing ovation in Parliament” (Walker, 2008: 5). Contestation over land questions continued, however, with representatives of white landed property arguing for constitutional protection of their rights, and as a result the property clause of South Africa’s new Constitution was agreed to at the last possible moment before the deadline for negotiations expired in 1996. The historic compromise expressed in the property clause, set out in Section 25 of the Bill of Rights, allows for expropriation of property in the public interest, which can include land reform but also protects existing property owners. The compromise has been a source of controversy ever since (Ntsebeza, 2007). Based in part on constitutional provisions, an ambitious and wide-ranging land reform programme was developed by the Mandela administration after 1994. Nineteen years later, land reform is in trouble. Only about 7 per cent of commercial farmland has been redistributed or restored through land restitution, against a target of 30 per cent by 2014 (Department of Rural Development and Land Reform, 2010), and ownership of rural land remains highly skewed. Many land reform projects have

* Ben Cousins holds a DST/NRF Research Chair in Poverty, Land and Agrarian Studies at the University of the Western Cape. Email: [email protected]. ** Ruth Hall is a associate professor at the Institute for Poverty, Land and Agrarian Studies (PLAAS) at the University of the Western Cape. Email: [email protected].

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seen declines in farm production, in part because of the absence of effective postsettlement support for beneficiaries. The land rights of many black South Africans, both in communal areas (the former reserves) and on commercial farms (where they reside as farm dwellers or farmworkers), remain insecure (Greenberg, 2010). It is clear that the ‘land question’ remains largely unresolved. For many South Africans this symbolises the limitations of post-apartheid transformation more widely and renders the politics of land potentially volatile (Gibson, 2009; Kepe et al., 2008). In May 2009 a new administration under Jacob Zuma announced that land reform and rural development would be key priorities for the African National Congress–led government. By 2013, four years later, however, this new political impetus remained uncertain: new policy frameworks promised by the minister for rural development and land reform had yet to be made public; budget allocations remain low; and in the absence of agreed-on policy direction, acrimonious debates on the weaknesses of land reform policy continue to erupt in Parliament and the media.1 South African land reform policies strongly emphasise rights and duties in relation to land and its governance (Department of Land Affairs, 1997). This may be largely because the civil society organisations that assisted rural communities to fight forced removals in the 1980s made extensive use of legal and rights-based strategies to resist such dispossession, and members of these organisations then played central roles within policy-making processes in the 1990s (James, 2007; Walker, 2008). Given the experience of dispossession overseen or directly engineered by an authoritarian State, securing the land rights of black South Africans against possible abuse by powerful actors and agencies, including the State, loomed large in the eyes of these policy makers. This background also helps explain the inclusion of land reform provisions in the Bill of Rights, which explicitly refers to all three programmes of land reform (redistribution, tenure reform, and restitution): The State must take reasonable legislative and other measures, within its available resources, to foster conditions that enable citizens to gain access to land on an equitable basis. A person or community whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an act of Parliament, either to tenure that is legally secure or to comparable redress. A person or community dispossessed of property after 19 June 1913 as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an act of Parliament, either to restitution of that property or to equitable redress (Republic of South Africa, 1996: Sections 25(5)–(7)). 1

See, for example, ‘Land reform: A road to nowhere’, Financial Mail, 29 July 2011; J. Herskovitz, ‘S. Africa’s Malema calls for massive land grab’, Reuters Africa, 5 May 2011, http://afreuters.com/ topNews/idAFJOE7740LL20110505.

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This chapter focuses only on the second of these: tenure reform and its objectives of securing the land rights of two rural constituencies: residents of the former ‘reserves’, or Bantustans, now known as communal areas, and farmworkers and farm dwellers living on privately-owned land.2 We summarise the trajectory of tenure policy and lawmaking from 1994 through the present and show how it has been framed by discourses of rights, citizenship, and democracy. The chapter assesses these policies and their outcomes, and argues that the degree to which legally defined rights to land have been realised in practice depends in large part on the outcome of local-level struggles within shifting relations of power, but also on the wider context in which these struggles take place. Local arenas are not, however, hermetically sealed off from wider power relations, discourses, and institutional contexts, including those of law and policy, which mediate the operation of power. This means that the impacts of land rights defined in law can be direct and indirect, material and symbolic. Constraining their direct impact is inadequate State capacity for implementing law and policy, but it is also the nature of structural poverty in rural South Africa, which tends to weaken the substantive content of rights. Nevertheless, a focus on rights can help defend people from dispossession, open political space for mobilisation, provide a grounded critique of unjust social orders, and help articulate a vision of an alternative social order (Cousins, 2009). Although inherently limited in their systemic impacts, rights in law are a potentially useful “weapon of the weak”3 along with other strategies, and should not be abandoned. Following Hunt (1991: 248), we refer to this as a “rights-without-illusions” approach, which can inform mobilisation, advocacy, litigation, and research in relation to land-tenure reform. 2. COMMUNAL TENURE REFORM

Insecure land tenure in communal areas is a key legacy of apartheid, but how to address it has proved one of the thorniest problems facing tenure reform policy makers. The legislation that government promulgated as its response to Section 25(6) of the Bill of Rights was the Communal Land Rights Act (CLARA) of 2004. By early 2010, however, the Act had been declared unconstitutional, and it was not at all clear how government intended to fill the legal vacuum. The passage of the Act through Parliament in 2003 and 2004 was accompanied by fierce public debate and community mobilisation, which formed the basis of the successful legal challenge by four rural community groupings some six years later. Key controversies included 2

3

Space limitations preclude analysis of land redistribution and restitution policies, but our arguments are relevant in these contexts, too, because the content, form, and security of property rights strongly influences the effective use of land transferred through land reform (Lahiff, 2009; Pienaar, 2000). See Scott (1985) for an illuminating study of the variety of indirect and disguised strategies employed by the poor and powerless to resist, subvert, or deflect the actions of the rich and powerful within relations of oppression and exploitation.

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the powers over land to be wielded by traditional leaders and traditional councils, the nature and content of communal land rights, gender equality, and whether or not lawmaking processes and procedures had allowed for sufficient consultation. Contrasting interpretations of rights, citizenship, and customary law were at the core in these controversies (Claassens and Cousins, 2008). 2.1. Communal Tenure Reform – A Contested Terrain According to the White Paper on South African Land Policy that set out the fundamentals of post-apartheid land reform policy, the underlying problem that tenure reform in communal areas must confront is the second class status of black land rights in law (DLA, 1997: 57–67). Rights of occupation and use in black rural areas were not adequately recognised in South African law before 1994, with limited rights being granted in the form of a conditional permit – usually a Permission to Occupy (PTO) certificate. Weak legal status is exacerbated by the overcrowding and forced overlapping of rights that resulted from South Africa’s history of forced removals and evictions in pursuit of policies of segregation and apartheid. Particular problems are experienced by groups of black South Africans who purchased farms in the late nineteenth and early twentieth centuries but were not allowed to hold title deeds because of legal restrictions on black ownership. Some owners were dispossessed and have lodged restitution claims; others still occupy their land, but title deeds continue to show the minister as trustee-owner. Whether dispossessed or not, these groups were often placed under the jurisdictional authority of neighbouring chiefs, some of whom have abused their authority by allocating land to outsiders in return for cash payments. Another key problem identified in the White Paper is the partial breakdown of communal tenure systems as a result of the lack of legal recognition and declining administrative support. This has been accompanied by corruption and abuse by some traditional leaders (DLA, 1997: 32). Lack of clarity on land rights constrains infrastructure and service provision in rural areas, and there are tensions between local government bodies and traditional leaders over the allocation of land for development projects. Discrimination against women in land allocation is a particular problem; in the past, PTOs were issued only to men, and widows and divorcees often are evicted from family land. These problems are exacerbated by the exclusion of women from decision-making structures. As outlined earlier, communal tenure reform in South Africa is a constitutional imperative. In 1996 the Interim Protection of Informal Land Rights Act (IPILRA) was passed as a ‘holding measure’, but this has had to be extended annually since then because of the absence of any other law. The IPILRA requires only that occupiers and users of land who have informal rights to that land be consulted before any disposal of such land can take place. It does not provide legal certainty on the nature

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of these rights, and it appears to have been used to secure rights in only a limited number of cases.4 In 2004 the Communal Land Rights Act (CLARA) was approved by Parliament, but its implementation was never initiated, in part because of a legal challenge mounted in 2005. The Act provided for the ‘transfer of title’ from the State to a community, which would have to register its rules before it could be recognised as a juristic personality legally capable of owning land (Smith, 2008). Individual community members would be issued with a deed of communal land right, which could be upgraded to freehold title if the whole community agreed. Before transfer of ownership could occur, the boundaries of ‘community’ land had to be surveyed and registered, and a rights enquiry held to investigate the nature and extent of existing rights and interests in the land. Community rules also had to be drawn up. These rules would be enforced by a land administration committee, which would exert ownership powers on behalf of the ‘community’. Section 21(2) of the Act specified that a traditional council established under the Traditional Leadership and Governance Framework Act (TLGFA) 41 of 20035 “may” act as such a committee.6 According to the Department of Land Affairs, people could choose which body, a traditional council or some other institution, would act as the land administration committee, but in another interpretation of the relevant sections, traditional councils, wherever they exist, would automatically become the land administration committee, and rights holders would not be able to exert choice.7 CLARA did not set out any procedures for exercising choice about which structure should act as a land administration committee. This suggests that the term may was permissive only, allowing traditional councils to exercise land administration powers. The TLGFA specifies that the roles and functions of traditional councils may include land administration. Passage of the Communal Land Rights Bill (CLRB) through Parliament was stormy. A variety of civil society groups, including representatives of twelve rural communities, contested its appropriateness and constitutionality during portfolio committee hearings in 2003 (Claassens, 2003). Particularly contentious were the Bill’s provisions for the land administration powers of traditional leaders and for gender equality. Critics argued that the CLRB failed to provide for a democratic version of communal tenure: it did not allow for choice by rural people (with respect to both the overall nature of the tenure system to be adopted and which local institution would have responsibility for land administration); it failed to provide 4 5

6 7

Henk Smith, personal communication, 10 September 2010. Tribal authorities established under the Bantu Authorities Act 68 of 1951 are reconstituted as traditional councils under the Framework Act. For more detail, see Smith (2008), pp. 60–65. Communal Land Rights Act 11 of 2004, Section 21(2). This was a key argument in the constitutional challenge to CLARA; see Claassens (2008: 266–67); Smith (2008: 60–65). The Department of Provincial and Local Government, also a respondent to the legal challenge, agreed with this interpretation, and not with that of the Department of Land Affairs. See the CD attached to the book by Claassens and Cousins (2008) for copies of these affidavits.

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for downward accountability of land administrators to rights holders; and it failed to adequately address gendered inequalities inherent in the ‘old order rights’ (e.g. PTOs), which would be upgraded to ‘new order rights’ in the new law. It was argued that traditional leaders would in effect have more powers over land than ever before (Cousins and Claassens, 2004). The traditional leader lobby, led by the Congress of Traditional Leaders of South Africa (Contralesa), was fully in support of the draft law, which it saw as providing recognition of its customary role as ‘trustees’ of community land.8 Also contested was whether government had adequately consulted rural people before drafting the new law. The Constitution requires Parliament to facilitate public involvement in legislative processes.9 Civil society groupings organised a number of large workshops in rural areas in different provinces, which were attended by an estimated seven hundred people. Some communities selected representatives to make submissions on the CLRB to parliamentary hearings.10 At the hearings, speakers from non-governmental organisations (NGOs) and community groupings alleged that, although it was clear that government had held several meetings with chiefs and members of Contralesa, there was little evidence of any consultation with ordinary rural residents. In addition, contentious sections providing traditional councils with powers over land were inserted into the draft only a few days before public hearings began, thus allowing no time for public discussion (Claassens and Ngubane, 2008: 161–62). Several authors have argued that the rapid passage of CLARA through Parliament was the result of a political deal between the ruling party, the African National Congress (ANC), and the traditional leader lobby (Mokvist Uggla, 2006: 302; Murray, 2004). In 2005 a constitutional challenge to CLARA was launched by four rural communities: Dixie, Kalkfontein, Mayaeyane, and Makuleke (Claassens and Cousins, 2008). A history of interference with the land rights of groups and individuals by traditional leaders informed the applicants’ arguments on the constitutionality of CLARA. In their view, transfers of title from the State to ‘communities’ following the implementation of CLARA would result in control of land being vested in traditional councils, thereby rendering insecure the rights of current occupiers and users. In two of the four communities, the jurisdiction of large tribal authorities over smaller groups or communities, an apartheid legacy, was deeply contested. Legal papers also argued that CLARA was unconstitutional because the nature and content of the ‘new order rights’ to be created were not clearly defined. The minister was given wide and discretionary powers to determine those rights, without clear criteria to guide the minister’s decisions. In addition, CLARA failed to create 8 9

10

See affidavits on the CD attached to the book by Claassens and Cousins (2008). Section 59(1) of the Constitution applies to the National Assembly and Section 72(1) to the National Council of Provinces. For details of these meetings and the wide range of views on communal land rights that were expressed at them, see Claassens (2003).

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opportunities for community members to participate in making crucial decisions in relation to their land rights or to challenge such decisions. A crucial omission was the lack of consultation with rights holders on whether they desired transfer of title from the State. It was also argued that CLARA undermined the tenure rights of female household members who occupy and use land other than as wives, such as mothers and divorced or unmarried adult sisters or daughters. Another core argument was that the incorrect procedure was followed in passing the law, in that the draft bill was wrongly tagged as a Section 75 bill rather than a Section 76 bill, which would have required wider processes of public consultation and participation at provincial level (Murray and Stacey, 2008). In October 2008 the North Gauteng High Court declared fifteen key provisions of CLARA to be invalid and unconstitutional, including those providing for the transfer and registration of communal land, the determination of rights by the minister, and the establishment and composition of land administration committees.11 The judgment did not find the parliamentary process to have been procedurally flawed, and it did not strike down CLARA as a whole. In May 2010, however, the Constitutional Court struck down the act in its entirety.12 The court accepted the applicants’ arguments on the procedural issues, and therefore did not consider the substantive arguments made by the applicants or contained in the findings of the High Court. Before the hearing, the new minister of rural development and land reform, Gugile Nkwinti, declared that government would not defend CLARA in court because it was no longer considered consistent with government policy. How government intends to approach communal tenure reform remains unclear. 2.2. Impacts of the Legal Challenge to CLARA Government made no attempt to implement CLARA at any time between its passage into law in 2004 and the Constitutional Court ruling in 2010, in part because of the pending legal challenge. There is little information available on the extent to which IPILRA has been used to defend land rights in communal areas, but it appears to be limited. The direct impacts of communal tenure reform policy and law since 1994 are thus minimal. The legal challenge to CLARA, however, has had a number of impacts, both material and symbolic. The Constitutional Court judgment means that immediate threats to the land rights of residents of Dixie, Kalkfontein, Mayaeyane, and Makuleke have been headed off. The long-term security of their rights, however, has not yet been addressed. This is in part because of the legal vacuum that exists in relation to communal land, but also because implementation of the TLGFA means that apartheidera tribal authorities have been deemed to be traditional councils. These bodies 11

12

Tongoane and Others v Minister for Agriculture and Land Affairs and Others, Case No. 11678/2006, Gauteng High Court, Pretoria. Tongoane and Others v Minister for Agriculture and Land Affairs and Others, Case No. 100–09, 11 M.

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continue to administer land within the jurisdictional boundaries laid down in the 1960s, and the legal status of sub-groups or communities located within these boundaries against their will has not been clarified as yet. This affects many sub-groups under the authority of traditional councils, and the applicant communities comprise only a small sub-set of a larger population in this predicament. The direct material impacts of the legal challenge on tenure security are thus somewhat ambiguous. Indirect impacts are likely, but the evidence is somewhat impressionistic. In many local community contexts, claims to land or efforts to protect access to land are made with explicit reference to notions of freedom, democracy, and rights (see, for example, the Rakgwadi case analysed by Claassens [2001, 2008], and the submissions in 2003 by community representatives to parliamentary hearings on the Communal Land Rights Bill13 ). Local-level appeals to democratic rights may have been strengthened to a degree by media reports on the legal challenge. Submissions by community representatives to parliamentary hearings on the Black Authorities Act Repeal Bill (B9-2010)14 suggest that this is so for groups who are in contact with NGOs or public-interest lawyers. But the reach of media reports on matters such as this in deep rural areas is probably limited. Another indirect impact of the legal challenge may be the caution with which government is proceeding in relation to the Traditional Courts Bill, which was originally planned to be approved by Parliament in 2009 but has been delayed to 2013. Such caution is likely to be, at least in part, a response to the court’s declaration of CLARA as unconstitutional on procedural grounds. It may also reflect the influence of Constitutional Court judgments on the importance of a “living customary law” approach to the question of the compatibility of customary law and democracy.15 These judgments were quoted at length in the legal challenge, in support of an argument that chiefly control of land is a distortion of pre-colonial land-tenure systems, imposed by colonial and apartheid regimes, and inconsistent with postapartheid democracy and the Bill of Rights. A similar argument can be made in relation to the Traditional Courts Bill, which centralises control of a traditional court in the person of a “senior traditional leader”, fails to recognise the wide range of traditional dispute resolution processes and forums that exist, denies people choice of court jurisdiction when lodging a complaint, constrains women’s participation in hearings, and allows draconian and oppressive sanctions to be imposed (Mnisi, 2010). The success of the legal challenge may also have encouraged civil society formations, such as the Rural Women’s Movement and the Land Access Movement of South Africa, to continue to press for gender equality in the holding of land rights 13

14

15

See Parliamentary Monitoring Group website (http://www.pmg.org.za/minutes/20031110-communalland-rights-bill-hearings). See Parliamentary Monitoring Group website (http://www.pmg.org.za/report/20100720-publichearings-black-authorities-act-repeal-bill-b9-2010). Alexkor Ltd & Another v Richtersveld Community and Others 2003 (12) BCLR 1301 (CC); Bhe & Others v Magistrate Khayelitsha & Others 2005 (1) SA 580 (CC), 2005 (1) BCLR1.

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in communal areas. Representatives of these groupings organised meetings in rural areas between 2009 and 2011 to discuss the Traditional Courts Bill, and they sent delegations to Parliament to present submissions to portfolio committee meetings on both the Traditional Courts Bill and the Black Authorities Act Repeal Bill. In the absence of success in the legal challenge, such mobilisation and advocacy may not have occurred. This may be another indirect impact of the legal challenge. Claassens and Ngubane (2008: 181) argue that “laws are powerful at a symbolic level, regardless of whether they are implemented or not”. Litigation may also have powerful symbolic impacts. The direct symbolic impacts of the legal challenge and associated public debates are, we surmise, the following: (1) increased public support for the idea that tenure reform in the communal areas should take the form of a democratised and adapted version of customary land tenure, rather than private, individual title, and (2) increased levels of ambivalence within the ANC on the question of the role of traditional leaders within South Africa’s democratic order. Ambivalence within the ANC is evident in contradictory statements on traditional leadership in recent years by the ruling party and by senior government leaders. On the one hand, there is support for a democratised version of communal tenure, as in the resolution on land reform and related issues adopted by the ANC at its 2007 conference in Polokwane. This states that government must “ensure that the allocation of customary land be democratised in a manner which empowers rural women and supports the building of democratic community structures at village level. . . . The ANC will further engage with traditional leaders, including Contralesa, to ensure that disposal of land without proper consultation with communities and local governments is discontinued” (ANC, 2007: 7). On the other hand, there is the authoritarian and patriarchal version of ‘traditional justice’ embodied in the Traditional Courts Bill, together with statements by President Zuma and Cabinet ministers that government will seek to “recognize and promote the institution of traditional leadership” (cited in Mnisi, 2010: 2). Minister Nkwinti’s statement to the Constitutional Court in March 2010 that CLARA was no longer in line with government thinking has not been followed by any indication of new policy directions on communal tenure reform, and this may reflect the ANC’s ambivalence. 2.3. ‘Rights’ as a Medium of Struggle at the Local Level Do people living in communal areas use the notion of socio-economic or human rights in efforts to claim or defend their rights to land? In contrast to the national policy engagement terrain, in these everyday contexts rights are sometimes appealed to, but often it is customary norms and values that are invoked. This is no doubt because land rights are deeply embedded in a variety of social identities, networks, and relationships (Cousins, 2008). But “custom” is not rigid and unvarying in character – it tends to evolve over time, its underlying principles being re-interpreted and adapted to fit altered conditions and circumstances (Bennett, 2008). In communal

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tenure systems, claims to land are often relational and processual in character rather than being defined by a clear set of entitlements and duties (Berry, 1993). This might be described as the ‘living customary law’ of land, or perhaps what Oomen (2005: 203, 233) calls “living law”, a hybrid of the different ideas, identities, and resources available to people seeking to secure their interests, that is inherently flexible and dynamic. The extent to which such claims can be successful, however, is also dependent on the structure of power relations within which they are mounted (Claassens, 2008; Lund 2002; Oomen, 2005). These in turn can be influenced by shifts in power relations and in wider social and political contexts and expressed in policies and laws. Recent research in Msinga, KwaZulu-Natal, illustrates the processes at work (Cousins et al., 2011). Here, there is a pent-up demand for land by unmarried women with children, which a patrilineal system cannot easily accommodate (see Case 1 below). In response, customary land allocation is beginning to be re-interpreted by local institutions, in an uneven and contested manner. The influence of a wider political discourse of equal rights for women can be discerned, however, subtly influencing local understandings and helping to shift power relations at the local level. The communal tenure system in Msinga is readily described by local residents, and its underlying principles and procedures appear to be widely understood and accepted. The key principle is that married couples with children should be allocated land so that they can gain access to the natural resources that are required to support their families and establish a homestead (umuzi, in isiZulu). Single people cannot be allocated land and must reside with either their parents or other family members. Land is allocated to a family, under the authority of the household head, rather than to individuals, and the household head is seen as a senior male (umnumzane). There is a strong association between landholding and the necessity of supporting a family from land-based livelihoods. Descent is traced primarily through men, in a patrilineal kinship system deeply concerned with the surname, which is established at an umuzi. However, this idealised and normative version of land tenure, as with many other aspects of ‘custom’, is often contradicted in practice. The flexibility of custom is also evident in relation to changing marriage practices. Case 1: A single woman who wants land of her own Hlengiwe Mbatha is thirty-five years old and lives at her father’s homestead with her father, her mother, three brothers, her brothers’ four wives, and fourteen children. She has two children herself, a ten-year-old and a two-year-old, the latter by her current boyfriend, who paid her father three cattle as damages. At some point she moved to live at her boyfriend’s homestead, but her father called her back home because her boyfriend had not finished paying lobolo (bridewealth). She receives two child support grants and earns money by selling poultry. When

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she began to earn her own income, she asked her father if she could build her own house and cook separately, because of constant conflict between her and the wives of her brothers over food and cooking. Hlengiwe says, “I want land to build my own house because the conflict does not end, and I do not know if I will get married any time soon. I approached my father and told him I wanted land, but he told me that people in the area do not allow a single woman to have her own house, even if she has children. I know two other single women in the area who also want land, but the community does not allow a woman to get land on her own.” Survey research indicates that marriage rates amongst black South Africans have been in decline for many years (Mhongo and Budlender, 2009). The reasons for this are clearly complex, and there is no consensus on this issue in the academic literature. In Msinga relatively few couples are ‘properly’ married according to custom (ugidile), with a complete set of rituals and ceremonies around courtship, betrothal, and marriage being performed, and lobolo (bridewealth) of around eleven head of cattle paid to the bride’s family by the groom’s family. This version of marriage is known locally as ugidile. Much more common currently than ugidile is uganile,16 a truncated version of customary marriage in which much fewer animals pass from the husband’s family to the wife’s. For example, if a young woman becomes pregnant, sometimes only the customary fine for damages (inhlawulo) is paid to her family by the man or his family, in the form of two or three cattle, accompanied by the slaughter of three goats, and this is termed uganile.17 Today, there are many cases in which no damages at all are paid when a woman becomes pregnant, and the couple simply begins to live together. Many unmarried women live with their children at their parents’ homes, and this can lead to tensions within large and crowded homesteads. Some women are being allowed to build a home for themselves at the edge of the homestead (umuzi) – not fully integrated into the homestead but not independent either. Many single women with children want land to establish a homestead of their own, and a few are beginning to use the language of rights and gender equality in arguing their case. Claassens and Ngubane (2008: 177) suggest that “single mothers are challenging tribal authority structures to allocate them land so they can establish independent households. Gradual, uneven processes of change in land allocation practice are under way. . . . Women use a range of arguments to advance their claims. Many are couched in terms of ‘customary’ values . . . [but] often the principle of equality is asserted, and women refer to the Constitution and the new government”. They urge attention to “the nature of rights and claims as they are asserted, used and contested in practice” when new laws are formulated (Claassens and Ngubane, 2008: 176). 16 17

From gana, an early stage in the marriage process described by Vilikazi (1965: 59) as “formal betrothal”. These terms are specific to isiZulu-speaking areas; different terms are used in other areas.

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Courtesy of Rauri Alcock.

Law is important because “people act within the constraints of local power relations, which are in turn significantly affected by the stance of government” (Claassens and Ngubane, 2008: 181). This argument resonates strongly with research findings in Msinga (Cousins et al., 2011). The possibilities for change in land tenure practices arising from the intersection of local pressures and external influences are well illustrated in one locality in Msinga. In July 2009 a meeting of the Mchunu Traditional Council, the traditional leadership structure in the large Mchunu area, decided that single men and women, whether or not they have children to support, should be allowed to apply for land. This radical departure from custom was justified by councillors as a response to the need to adjust the land-tenure system to the fact of declining rates of marriage but also because of the changing laws and policies of the country in relation to gender equality. In 2010 the council made a further decision: to facilitate the registration of customary marriages by the Department of Home Affairs by providing couples with a letter attesting to the validity of their marriage under customary law – even when no customary procedures have been followed. This was in response to the widely felt need of rural women to register their marriages so that they can claim their husbands’ death benefits or life insurance claims. Informing both of these decisions by the Traditional Council was a series of workshops over the previous two years that had focused on new national laws and policies in relation to land, traditional governance, and customary marriage. These

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workshops were organised by a local NGO, the Mdukutshani Rural Development Programme, as part of a three-year action-research project on the potential impact of CLARA in Msinga District, which had facilitated discussion on the issue of women’s land rights in the context of changing marriage practices (Cousins et al., 2011). The presence of a number of women on the Traditional Council, as required by the TLGFA, may also help explain these decisions. 2.4. Agendas for Advocacy, Litigation, Mobilisation, and Research Filling the legislative vacuum in relation to communal tenure reform is urgent, and pressure on government to do so is likely to mount. Civil society advocacy could focus on four key issues: the rights of ordinary residents to exercise choice in relation to the form and content of land rights, as well as the local institutions that administer land; mechanisms to ensure the accountability of traditional leaders and councils on land issues; acknowledgment of the contested boundaries of ‘traditional communities’ and sub-groups; and measures for gender equality. These will probably be linked to advocacy around the linked issues of traditional courts and the imposition of increased tribal levies by traditional leaders, and to the struggles of communities in areas where mining companies have been granted mineral rights. Litigation against aspects of the Traditional Leadership and Governance Framework Act, or its provincial versions, is a distinct possibility. There is definite potential for larger-scale mobilisation efforts focused on securing communal land rights. Evidence from the community mobilisation that preceded the legal challenge to CLARA suggests that significant numbers of people experience insecurity and are willing and able to present their case to government departments and traditional leaders. Representatives of community-based organisations are generally clear about the problems they face, able to relate these to policy and legal frameworks, and confident and articulate in presenting their views in settings such as Parliament. The potential for influencing decision makers is greatly enhanced when such groups join forces or form issue-based alliances, as in the recent lobbying of the parliamentary portfolio committee on justice in relation to the Traditional Courts Bill, and the effective networking, alliance building, and litigation that has occurred in recent years around mining on communal land. What is clear, however, is that local groupings need both funds and external organisational support to link up with one another and to mount public events. Whether such support will be available is unclear. In relation to research, clear needs are to document the full range of situations in which insecurity of rights is experienced and to develop a clearer understanding of the scale of such problems. The manner and degree to which communal tenure systems are adapting to changed circumstances and needs, in either positive or negative ways, is another key research topic that needs to inform policy and lawmaking.

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3. FARM-TENURE REFORM

An estimated three million black South Africans (6 per cent of the population) live on privately owned farms in the former white commercial farming areas. They are among the poorest South Africans – and in some districts their ranks are swelled by an influx of citizens from neighbouring States. Among those living on farms are workers who are there as wage workers and may have homes elsewhere, but in addition, many live on farms because they have always lived there and regard these farms as their only family home, the site of identity, and a place to bury their dead (Du Toit 1993). The forced eviction of black people from farms in successive waves through the twentieth century, in response to the prohibitions imposed on sharecropping and labour tenancy, and arising from long trends towards mechanisation and farm consolidation, was part of the wider process of racialised dispossession (Jeeves and Crush, 1997; Keegan, 1986; Marcus 1989). Traditionally, most farmworkers lived on the farms where they were employed, although some people living on commercial farms are not employed but involved in independent cultivation and grazing through a range of tenure arrangements. The category of ‘farm dwellers’, as opposed to ‘farmworkers’, therefore refers more generically to all who live on farms owned by others, the term being a discursive innovation appropriated by dwellers themselves. From as recently as the late 1990s, the term has become widespread, the product of a struggle for the recognition of their prior connection to land, and therefore their right to remain on the farm, and to de-emphasise the distinction between those who are and those who are not employed. Although efforts to secure the rights of farm dwellers in practice have foundered, the mainstreaming of the term itself in policy discourses constitutes a symbolic victory. 3.1. Policies and Progress Since 1994 The White Paper framed the problem of tenure insecurity as not only a human rights issue but also an obstacle to political stability in rural areas. The objectives of policy were that arbitrary and unfair evictions should be prevented, existing rights of ownership should be recognised and protected, tenants should be guaranteed basic human rights, and reform should promote long-term security through governmentbrokered locally-based solutions to which all parties contribute (DLA, 1997: 57). Farm-tenure reform would aim to balance the rights and interests of owners and occupiers. Government has a duty to intervene to remedy the situation. It recognises that sweeping interventions to upgrade occupational rights could have unintended consequences and result in even more evictions by landowners and the casualisation of farm labour. It is seeking therefore to accommodate the mutual interests of both occupiers and owners (DLA, 1997: 33).

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The most significant law to reform tenancy on commercial farms was the Extension of Security of Tenure Act 62 of 1997, widely known as ESTA, applicable to all people living on land zoned for agriculture with the consent of the owner. Its provisions regulate tenure conditions, setting out the rights and duties of both farm occupiers (Section 6) and farm owners (Section 7), and prescribe the procedures through which an occupier may be evicted and the factors to be considered before the granting of an eviction order (Section 8). More restrictive conditions are established for the eviction of ‘long-term occupiers’ – those older than age sixty who have resided on the farm for ten years or more (Section 8.4). Less well known is the earlier section of the Act, originally its main focus, which provides for farm dwellers to acquire long-term independent tenure rights by purchasing land with State support (Section 4). Another law, the Land Reform (Labour Tenants) Act 3 of 1996 (LTA), similarly regulates the terms of tenancy for those who have historically worked on farms in return for access to their own land to cultivate and to graze livestock (Williams 1996). It affirms their rights to continued use of the land (Sections 3–4), stipulating how and through which processes these rights may be legally terminated (Sections 5–15), and it allows labour tenants to obtain ownership of the land they currently use (Sections 16–28), or alternative land, through an application or claim-based process – more akin to the land restitution process than to the more discretionary and vague prescriptions of ESTA. By the deadline for such applications in March 2001, 19,416 labour tenant applications were lodged. It is not known how many have been resolved; 41,791 hectares had been transferred to 7,834 labour tenants by 2004 (Hall, 2004: 45), and no more recent data are available. Indeed, it appears that formal and procedural implementation of the Act ceased in the early 2000s, with the government arguing that notifying landowners of claims initiated legal challenges – potentially towards twenty thousand court cases – for which the State was unprepared.18 Arguing that the drafters of the LTA had not anticipated this, and with the apparent agreement by the Land Claims Court, in 1999 the department ceased issuing notices informing landowners of claims on their land, which Section 17 of the Act required be served “forthwith”. Nearly a decade after this tacit agreement, landowners in Mpumalanga managed to get claims to their land nullified by the courts on the basis that the State had not adhered to steps prescribed in the LTA – a ruling that could potentially unravel the entire labour tenant programme. The impetus behind both these laws came from land rights NGOs, in convergence with their ex-colleagues who had become the new cadre of senior departmental officials. They collaborated to frame these rights in law and, after their promulgation, to implement them, conducting rights education campaigns, monitoring evictions, intervening in threatened evictions, and brokering long-term solutions. With attention focused on evictions, though, the ‘developmental’ dimension of ESTA was most 18

Mduduzi Shabane, personal communication, 10 August 2004.

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poorly implemented. Provision of long-term secure tenure rights involves upgrading rights to ownership in situ or providing for off-site settlement, and it was envisaged as a mechanism available to all farm dwellers, but in practice it has been provided almost exclusively in response to evictions – in the form of ‘alternative accommodation’ usually funded by the State – and even then, only to a very small percentage of all those evicted (probably fewer than 0.5 per cent of those evicted). Several extensive grazing projects were established on 53,390 hectares in the Northern Cape, whereas in five other provinces a total of about 5,000 hectares had been transferred to farm dwellers, largely in the form of low-cost housing in settlement schemes (Hall, 2004). ‘Equity sharing’ schemes, where farmworkers became shareholders in the enterprises where they worked, have been favoured by agribusinesses in the capitalintensive wine and horticultural sectors, particularly in the Western Cape (Mayson, 2003). At the same time, evictions gathered pace, in part prompted by the promulgation of the Acts themselves but also by wider economic conditions and the strategic concerns of farmers. The only major national survey on evictions, by the Nkuzi Development Association and Social Surveys, found that approximately 940,000 people were evicted in the ten years from 1994 to 2003, out of 2.5 million who moved off farms for a variety of reasons (Wegerif et al., 2005). Only approximately 1 per cent of them were evicted legally through a court order, as prescribed by Section 26(3) of the Bill of Rights. Those evicted lost access to their homes, to land, and to assets such as livestock. Evictions spiked in years coinciding with droughts and with the promulgation of tenure and labour laws. The sale of farms, liquidations, and changes in land use also led to job losses, prompting both displacement and forced evictions, as did cost price squeezes experienced in particular industries, for instance in the apple industry in the late 1990s. If one sets the number of people who have been evicted against the number who have benefitted from land reform, it is apparent that many more black South Africans have lost their tenuous hold on land in the white farming areas since 1994 through evictions than have gained land through land reform. Some may have acquired residential or farmland through the redistribution programme, although it is not possible to say how many have been supported in this way. Others were able to stave off threatened eviction. Less well documented, but very significant, are unilateral changes in tenure conditions. Until the 1990s, farm dwellers had very limited rights, and those employed were excluded from labour legislation applying to all other categories of workers. Commercial farms were effectively excised from many areas of government regulation. Although policy attention with respect to farm dwellers’ rights has focused on tenure (and labour) rights, their access to other socio-economic rights, and the services and amenities widely accessed in urban areas (e.g. housing, health, education, legal representation, water and sanitation, electricity, transport), continues to be constrained and in some respects has deteriorated since the advent of democracy

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(Human Rights Watch, 2004; Wisborg et al., 2013). Those who remain on farms live in insecure arrangements, insulated from government services. How to provide public services to indigent people living on privately owned farmland has been left unclear in policy, and a stand-off is evident between line departments and municipalities on the issue of how to provide support and services to farm dwellers (Hall et al., 2007). In practice, government has no coherent and coordinated response to the situation of farm dwellers. 3.2. Declining Priority and Shifting Politics For the past decade, the legal frameworks on farm tenure have remained in a perpetual state of review, with the result that implementers themselves appear unsure to what degree they are expected to implement it – and if so, how. A 1998 review recommended revision of the LTA, noting that it was prompting loss of tenure rights (e.g. the withdrawal of grazing land) and evictions. In 1999, a national review of ESTA concluded that the problems being experienced were not merely problems of implementation but also were inherent to the law itself. In 2001, at the National Land Tenure Conference, the minister undertook to review ESTA and the LTA and to ‘consolidate’ them into a single law, hinting that this would strengthen substantive rights and resolve legal loopholes. Between 2003 and 2005, successive drafts of a Tenure Security Bill proposed a category of ‘non-evictable occupier’, yet the minister herself rejected this, arguing that it would amount to de facto expropriation of farm owners’ property rights. From 2006 to 2010, the Departments of Land Affairs (later the Department of Rural Development and Land Reform) and Housing took initiatives to revise the urban-focused Prevention of Illegal Eviction and Unlawful Occupation of Land Act 19 of 1998 (PIE), with the idea of producing one consolidated ‘evictions’ law applicable across both urban and rural contexts. Amending PIE was itself spurred by the Bredell land occupations in 2001 and the call by the ANC to criminalise land occupations and those who initiate and lead them. A PIE Amendment Bill to this effect was sent back by Parliament in 2008 and by 2013 has not been reintroduced. In a third initiative towards legal reform, by late 2010, the South African Law Reform Commission (2010: 19–20) recommended that ESTA be repealed in its entirety (and the LTA retained), and in December 2010 a new Land Tenure Security Bill was published for public comment. It reiterated the key provisions of ESTA, adding to these several vague provisions entitling farm dwellers to own and graze livestock and to cultivate on the farms where they live. The key change introduced was the promotion of off-farm ‘agri-villages’, where those evicted from farms would acquire ‘temporary permits’ to land and housing but could later be removed to make way for others who can show better ability to use the land. Now, instead of focusing on providing secure tenure on farms, including options for long-term tenure rights (Chapter 4 of ESTA), the new Bill proposed resettlement without secure tenure in

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State-managed agri-villages (Chapters 6–8, and the appended Draft Tenure Security Policy). How is one to explain this dramatic reversal of efforts during the 1990s to secure tenure rights and the apparent shift away from on-farm tenure security to off-farm resettlement? One explanation is that ESTA in particular was ill conceived, in that it attempted to legislate the terms of social relations and in so doing to ‘fix’ existing tenure at a moment in time – an attempt that was undermined not only by resistance from landowners but also by economic pressures arising from the deregulation of agriculture and the far-reaching changes this precipitated (Atkinson, 2007, Zamchiya 2008). Compounding this was the variation in tenure arrangements across the country, from the largely proletarianised Western Cape to parts of Limpopo, Mpumalanga, and KwaZulu-Natal, a variation that was overlaid by uniform legislative measures. A second explanation is that, despite the growing importance of farm dwellers in political discourse, within the ruling party there remained a fundamental ambivalence about how (and even whether) to address their situation. A core finding of the investigation into land tenure and labour rights on farms by the South African Human Rights Commission (SAHRC) in 2008 (following a 2003 inquiry) was that “the objectives of government policy with respect to farm workers and dwellers in the current context appear unclear. This is a fundamental problem currently preventing the emergence of practical solutions with the majority support of all role-players” (SAHRC, 2008: 9). Farm dwellers are not an important political constituency, yet the patent failure on farm dwellers’ rights has proved a political embarrassment – a liability. Growing evidence of the scale of illegal evictions has proved useful to the ANC, embattled over its wider failures in land reform, as signifying the hostility and intractability of white farmers and their unwillingness to support reform and become ‘willing sellers’. Since the ANC’s Polokwane conference, new directions in the ruling party’s thinking about land reform raise the question of who should benefit, with farm dwellers frequently mentioned among the categories of potential beneficiaries of wider redistribution efforts (ANC, 2007), apparently instead of (rather than in addition to) renewed efforts to make tenure reform work. Tenure reform and the language of rights have been on the wane in the land reform programme in recent years. The primary focus of newfound political energy around rural development and ‘agrarian reform’ focuses on dualism between commercial and communal areas – on production and employment in the former, and on small-scale farming in the latter. The widespread recognition of ongoing evictions from (and poor conditions on) farms has prompted proposals for organisation and unionisation of farm ‘workers’, service delivery to them (raising questions about appropriate divisions of labour between farm owners and municipalities in rendering such services on privately owned land), and ambiguous proposals regarding the enforcement or amendment of tenure laws.

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3.3. Why is Progress Towards Rights Realisation Slow? Why has the right to secure tenure on farms been so widely violated, and why has so little progress been made towards upgrading and securing long-term rights? Responding to these questions, we distinguish between policy design itself (and the resources and institutional capacity deployed in its implementation) and the wider context (and the structural constraints, power relations and inequalities) in which this sphere of rights is to be realised. Resources, Capacity, and Policy Design The Extension of Security of Tenure Act is best described as an ‘unloved law’: several enforcement and implementation mechanisms have been undeveloped, and even rolled back, in recent years. For example, although designated ‘ESTA officers’ were appointed in each provincial land reform office by the late 1990s, by the mid-2000s these posts had been disestablished, and project officers dealing with land redistribution projects were expected to address evictions issues. Their performance appraisals, though, were based on hectares transferred and budgets spent rather than on the slow and complex work of resolving tenure disputes or preventing evictions, which produced less tangible outcomes. This was compounded by the failure to create any dedicated budget line for tenure reform; funding is fungible within a wider ‘land reform’ budget, which has de facto proved to be a redistribution budget. Where actual transfers of land to farm dwellers have taken place, this has seldom been through the legally prescribed processes of ESTA and the LTA. The requirement that the minister ‘shall’ make available funds to secure and upgrade tenure rights (Section 4 of ESTA) has been equated in practice with redistribution grants, but in a context in which access to these funds is open to any black South African, many of whom are better placed than farm dwellers to know of these opportunities and to be able to pursue them effectively. The DLA established provincial ESTA forums to promote cooperation among line departments (Land Affairs, Labour, Justice, Housing, Agriculture, and Social Development) as well as land rights NGOs, the Human Rights Commission, rural advice offices, farmworker trade unions, and farmer associations. These forums monitored evictions, enabled referrals, coordinated responses to threatened evictions, liaised with relevant local authorities, and initiated training of South African Police Service officials and public prosecutors. By the mid-2000s these had ceased to exist in any of the nine provinces. Structural and Contextual Constraints, Inequality, and Power A first defining impediment to realising rights on farms centres on the major structural transformation in the agricultural sector that has been under way for two decades. As farmers adjust to deregulated markets with the removal of centralised marketing boards, subsidies, and trade protection, they have adopted risk mitigation

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strategies in the face of volatile demand and pricing in both input and output markets – prime among which has been reduction and casualisation of employment, which has aggravated long-term trends towards job-shedding and led to the rapid inversion in the ratio of permanent to seasonal labour. The widespread agreement that ESTA has ‘failed’ – a view shared by the ministry, farmworker unions, land rights NGOs, and commercial farmer associations – has fed into scepticism in some quarters about the transformative potential of imposing a rights framework on tenure relations on farms. Atkinson (2007: 89), in her study on farm workers in ‘arid South Africa’, epitomises this view when she laments the ways in which ESTA has contributed to the rupturing of “organic and inclusive” social systems on farms, and the consequences that have flowed from this. Atkinson’s view depicts social relations on farms as naturally cooperative and mutualistic, and the imperative of enabling international competitiveness of commercial farmers as the precondition for any reforms to improve the situation of farm workers. The terminology is instructive; in this economistic view, people on farms are there as ‘workers’, not ‘dwellers’. Other variants of this argument focus on the role of paternalism on farms as protective as well as exploitative and oppressive; Du Toit (2003) for instance, emphasises how paternalism buffered farmworkers from the harshness of market forces, agreeing with Atkinson’s view that ESTA has rendered more vulnerable the very farmworkers and dwellers whom it sought to protect. A second constraint arises from shifting demographics and changes in patterns of household formation. The closure of farm schools (noted in HRW 2004) and demand for access to schools and other services has led in some parts of the country to ‘split’ households, between commercial farms and communal areas. Wisborg et al (2013) document the common practice in Limpopo of farm owners and managers evicting children (usually teenagers, but often pre-teens as well), ostensibly for their own benefit, so that they can attend school in nearby communal areas. Neither the owners nor the farm dwellers (the parents of those evicted) used any language of rights to explain or object to this practice. Evictions of teenagers also serve to prevent claims to independent tenure rights by non-workers and the transfer of tenure rights to a new generation. They also served, as some farm owners and managers conceded, to ensure that those living on farms were more directly under their control through employment. A more general and enduring constraint is that the social relations into which this sphere of ‘rights’ has been inserted remains fundamentally untransformed. Mngxitama (2001) describes farm dwellers in South Africa as “citizens without rights”, embedded in “semi-feudal” relations with landowners and, alluding to Mamdani’s (1996) delineation of ‘citizen and subject’, he concludes that, without the realisation of rights of citizenship, “most South African farm dwellers remain subjects in the new democracy. It is only when countryside relations have been altered that we can speak of them as part of the nation” (Mngxitama, 2001: 14). This brings us to the question of how the presence of rights is evident in daily relations and power struggles on farms.

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3.4. ‘Rights’ as a Medium of Struggle Between Farm Dwellers and Owners Even where rights may not be realised, their existence has had impacts nonetheless. Widespread ignorance among both farm dwellers and farm owners about the detail of their rights and duties in law, and what is contained in ESTA, combined with an awareness that there are certain tenure rights and restrictions on evictions, has contributed to a range of new engagements among these asymmetrically located actors. Unanticipated by the legal drafters has been the widespread ‘marketisation’ of rights; ‘rights’ have been monetised. Cases have been widely documented of landowners inducing farm dwellers to ‘voluntarily’ vacate their homes and the land they occupy in return for cash payments, often considered equivalent to a lowcost Reconstruction and Development Programme (RDP) home or sufficient for allocation of a stand in a communal area – instead of pursuing a legal route. The rates vary markedly across the country and even within provinces, with households being paid between R2,000 and R10,000 in the Western Cape to give up their homes, although higher amounts of up to R40,000 for a family have been offered in KwaZulu-Natal, where farm dwellers could plausibly claim stronger rights as labour tenants (Hall, 2003). The phenomenon of people contracting out of their tenure rights appears to be a function of the aversion of farm owners to pursuing court processes to acquire a legal eviction – although as Shirinda (2012) argues in his study ‘In or Out of Court’, dwellers may also prefer to avoid alienating legal proceedings, leading to a convergence of interests among owners and dwellers: to recognise in broad terms that some kind of rights exist and, rather than abiding by the letter of the law, to negotiate settlements. In this way, he argues, farm dwellers have used the presence of ESTA as the basis to leverage out-of-court negotiation with landowners, with some success – but only because of awareness of rights in law and mutual aversion to courts. The growing ease with which landowners have been able to secure eviction orders, and the reduced time and cost required, could well affect ‘going rates’, thus leading owners to prefer the court route, from which they are likely to emerge without major costs. This translation of rights into bargaining between owners and occupiers signals both the success of legal rights in changing practices and their inability to find traction and the implausibility for many occupiers of invoking their full rights, given the absence or weakness of official enforcement. Struggles over tenure rights are embedded in wider struggles for survival and for livelihoods. ‘Rights’ might leverage power and enable negotiation, but delinked from wider livelihood entitlements, tenure is liable to be rendered unsustainable. The story of the Mathabane family on a game farm in Limpopo illustrates these connections in practice between rights to tenure and wider socio-economic rights and livelihoods (Wisborg et al., 2013). Theirs is an unusually successful case in which ESTA was repeatedly invoked to insist on rights being respected. In the face of repeated threats, legal support from a land rights NGO, a legal NGO and – through them – DLA officials enabled the family to reverse these illegal and unilateral

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changes in tenure conditions. It is a story of great tenacity, of resisting eviction and rejecting cash offers to move, in favour of continuously threatened access to a homestead, water, and (a little) land for grazing livestock and growing food – but their victory was nevertheless circumscribed. Tenure security turned out to be a limited right, and not the basis for a livelihood; rather, it enabled them to remain in their homestead, surrounded by game fencing, without jobs, and without enough land on which to sustain themselves (Wisborg et al., 2013). 3.5. ‘Rights’ as a Medium of Struggle: Civil Society Strategies Civil society organisations have adopted three major strategies to support farm dwellers’ tenure (and other) rights. They have tested the law through litigation and secured precedent-setting judgments. They have challenged the justice system to provide greater support to farm dwellers, in the form of State-provided legal representation. Through campaigns, building local area-based farm dweller committees, and the discursive appropriation of the term farm dweller, they have supported mobilisation and shifted the terrain of political engagement among farm dwellers (and their organisations), farm owners (and their organisations), and State institutions. Each strategy is discussed briefly in the following sections. Testing the Law Through Litigation Much of the strategic litigation on ESTA, particularly by Lawyers for Human Rights, has focused on gender equality and the rights of women farm dwellers. The precedent-setting case of Hanekom v Conradie clarified that women’s tenure rights are not contingent on their husbands’ or partners’ rights, and that their rights cannot be extinguished as a result of their partners receiving eviction orders in terms of ESTA (Land Claims Court, 1999: LCC8R/99). Further jurisprudence undermined this victory: when a State institution (the Agricultural Research Council) applied for an eviction order in the case of Landbounavorsingsraad v Klaasen, the LCC’s ruling restricted the precedent of Hanekom v Conradie. Judge Gildenhuys found that women farm dwellers who are not (regularly) employed – the majority of women on farms – are not ESTA occupiers themselves, having not received ‘actual consent’, but reside on the basis of derivative consent via a family member (LCC, 2001a: LCC83R/01). Despite concerted legal activism to redress gender inequalities in tenure rights, and some successes, the framing of the law and its interpretation by the courts has missed the mark. Contesting Rights to Legal Representation Using the courts effectively as a forum to contest evictions hinges on access to legal support. The ‘Nkuzi judgment’ was a successful bid to shift the onus for access to legal representation for farm dwellers (and other indigent people) onto the State, in a context where farm dwellers were being evicted following legal proceedings without

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any legal defence. This became the focus of an application by Nkuzi Development Association to the Land Claims Court in 2001 for a declaratory judgment on the State’s responsibility to provide free legal representation to farm dwellers, citing the Government of the Republic of South Africa (as first respondent) and the Legal Aid Board (as second respondent) (LCC, 2001b: LCC10/01). Judge Moloto upheld the application. In response, and in view of the demise of the Legal Aid Board (LAB), NGOs with government support formed the Rural Legal Trust (RLT) in 2000 as a pilot project to provide farm dwellers with immediate access to affordable or free legal services with a view to lobbying the State to provide such services through justice centres in the future. The RLT placed attorneys within land rights NGOs and university legal aid clinics across most provinces to mediate and litigate land rights cases, and extend paralegal services. The RLT model is in decline after the withdrawal of several NGOs from it, and the State’s new Land Rights Management Facility is based on a ‘judicare’ model, paying private non-specialist attorneys to take on cases. Neither initiative has been able to mount a coherent response to the ‘Nkuzi judgment’ to assure farm dwellers affordable or free legal services, and undefended court proceedings continue. Farm Dweller Identity: Reframing Rights Beyond Tenure Civil society strategies in support of farm dwellers’ rights have emphasised the indivisibility of tenure rights from wider civil and political and socio-economic rights. In 2006, the national Farm Dweller Campaign was launched by local farmworker committees and some trade unions, with support of land NGOs. With reference to Mngxitama’s arguments about ‘citizens’ and ‘subjects’, campaign leaders took the unusual step of publishing draft legislation, the Farm Dweller Citizen Bill, to be forwarded to Parliament. Its aim was to establish that farm dwellers are the construct and legacy of apartheid – and that citizenship rights cannot be realised in absence of independent tenure. The Bill recognised that, because of farm dwellers’ particular history, transformation of their tenure rights must provide the right to exclusive real rights to land rather than ‘negotiated or dependent’ rights. Only exclusive access to and control over use of land in farming areas for family life and provision of food and other natural resources will achieve a change in the unequal power relationships in farming areas (Farm Dweller Campaign, 2006). The Bill’s strategic purpose was to set the terms of debate and identify principles that should underpin new legislation. Despite being endorsed at the launch of the Farm Dweller Campaign, it did not gather national momentum because of a lack of campaign funding; contested leadership (particularly the role of the Landless People’s Movement); and strategic differences over whether to focus narrowly on the eviction issue and the (unlikely) demand for a moratorium or to locate this within a wider alternative vision for social justice and livelihoods, which would turn

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on alternative economic development priorities, land uses, production systems, and settlement patterns. Civil society organisations have been unable to mount a concerted and multifaceted intervention on farm dweller rights at a national level, combining impact litigation with policy advocacy and political organisation. Obstacles to organisation in pursuit of rights among farmworkers include political obstacles, in an environment in which control over privately-owned land has traditionally involved extensive control by farmers over all aspects of life for those living on farms; logistical and geographical factors, as most parts of the country typically have a low concentration of workers, the population is dispersed, and access to farms is difficult (and sometimes dangerous) for outsiders supporting worker organisation; and the restructuring of the rural labour force and demise of permanent employment, which renders organising farmworkers a limited strategy (Jara and Hall, 2009: 217). More creative area-based movements of people in farming districts, along the lines attempted by the informal trade union Sikhula Sonke, link demands of farmworkers to wider sets of socio-economic rights and livelihood opportunities both for those living on and off farms. Since 2005, Sikhula Sonke, supported by the NGO Women on Farms Project, has organised local committees of women (and men) in the Western Cape around their problems and demands that extend beyond labour conditions, to access to services, notably water, electricity, housing, health, and education – issues that transcend ‘the farm’ – and in these ways, has sought to organise people as rural communities rather than as workers per se. In a study on farm dwellers’ tenure, livelihoods, and social justice in Limpopo province, supported by the Norwegian Centre for Human Rights, Wisborg et al (2013) suggest that one may conceptualise tenure security as nested within livelihoods, in turn framed by wider concerns about and contestations over social justice. The problem of insecure tenure has been conceived in a narrow and limited way, both in the legislation itself and also, more markedly, by those tasked with implementing it. They found that a rights discourse was markedly unevolved in relation to tenure, among farm dwellers, owners, and institutions responsible for rights enforcement and realisation. Invoking tenure rights on farms has turned out to be risky where the very existence and content of these rights remain contested, and the likelihood of them being enforced ‘from above’ is low. This draws into question the appropriateness of the legislation itself, and the assumptions on which it was based about State capacity and willingness to enforce its provisions and so to alter social relations between owners and occupiers. Agendas for Litigation, Research, Activism, and Advocacy In the struggle to realise the rights of farm dwellers to secure tenure, and to a spectrum of rights and entitlements which hinge on secure tenure, the emergence of large-scale organisation and mobilisation is the essential prerequisite. As discussed here, building such momentum is complex, faces structural and strategic challenges,

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and will take time. Ultimately, it is farm dwellers themselves who will (or will not) be able to counter the political turnabout on the question of rights as the foundation for a new dispensation for farm dwellers. At the same time, legal interventions to challenge the State to give effect to rights already enshrined in law are still necessary and possible, if pursued in alliance with social movements and supported by rigorous research and on the basis of carefully selected cases. Three issues stand out as priorities for joint action. First, the failure of the State to take reasonable steps to enforce the provisions of ESTA and to take action where violations have occurred is arguably a criminal justice issue, in which the widespread and systemic violation of Section 26(3) of the Constitution constitutes the breakdown of the rule of law.19 Second, the positive obligation on the State to provide “tenure which is legally secure or . . . comparable redress” (Section 25(6)) in relation to farm occupiers has not yet been legally tested. Section 4 of ESTA states that “the Minister shall” make funds available for this purpose; in this context, legal opinion is that shall is prescriptive as opposed to permissive. Third, core to realising rights for those living on privately-owned farms is to challenge the limits of the ‘private’: farm dwellers are isolated from the ‘public’ and from entitlements to services because they live on privately owned land. Questions need to be asked about how the State is delivering on its obligations to enable farm dwellers to access basic services and about the implications of the State approach of using farm owners as ‘service delivery agents’, as evident in the intermediary model of water services and housing that has gained ground in recent years. The premise must be to recognise the rights of farm dwellers to the same entitlements as other citizens (and non-citizens) and in this way link struggles in two directions: to extend the demands for secure tenure to wider socioeconomic rights and, by establishing partnerships and alliances, to link the struggles of farm dwellers to those of other poor people living with insecure tenure in other contexts, in communal areas and in urban and peri-urban informal settlements. 4. EVALUATION: THE POTENTIAL AND LIMITS OF A RIGHTS FRAMEWORK

Realising land rights – the systemic violation of which has been so central to the evolution of the contemporary South African countryside – was bound to be complex and fraught with political and practical difficulties. Doing so in a society characterised by both rapid change and striking continuities with the past has produced unanticipated complexities, involving deep-seated tensions between the imperatives of rights, on the one hand, and the constraints of economic structures and processes, on the other hand. In relation to communal areas, continued marginality and structural disadvantages mean that securing land rights is only one amongst many interventions needed 19

We owe this insight to Malcolm Langford.

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to improve livelihoods. In contrast, the commercial farming context is one marked by dramatic shifts in land ownership and values, agricultural production, and employment, most of which are in directions antithetical to the redistributive vision of tenure reform embraced in the White Paper of 1997. For both contexts, a major constraint is institutional inertia within a wide range of State institutions responsible for the defence and realisation of rights – an inertia permitted by political priorities to appease both white landowners (in the commercial farming areas) and black traditional leaders (in the communal areas of the ex-Bantustans). As indicated in this chapter, we distinguish the realm of rights as contained in law and policy, the wider economic contexts of a changing commercial agriculture and communal areas with few economic opportunities, and the local contexts and personal relations in which rights are to be realised. Experience over the past nineteen years suggests that at the intersections of these realms are opportunities to form new connections and to build institutions capable of ensuring that rights have traction at the local level. To date, however, the absence of even the basic institutional architecture envisaged by the drafters of legislation and policy has led to a profound disconnect between the realm of rights and the local realities inhabited by rights holders. Land rights and legal NGOs have attempted to address this gap through litigation, rights education, provision of services, and mobilisation – a range of activities that have produced valuable insights and often defended rights in practice. But their reach has been limited, and a degree of substitutionism has taken place. A more strategic link between legal activism and local strategies for mobilisation might open the way to more productive outcomes. Structural and contextual constraints are real and need to be more widely acknowledged, but they are not bound in iron. They are shaped by choices – most fundamentally, political choices – about the trajectory of rural South Africa and its core productive sector, agriculture. Such choices, at the time of writing in 2013, were being made behind closed doors, as the two most relevant departments, Rural Development and Land Reform, and Agriculture, Forestry and Fisheries, developed new policy frameworks most of which are yet to be published for public comment – the exception being a short, 11-page ‘green paper’ on land reform released in August 2011. These processes would do well to bear in mind the very real trade-offs that exist between different development paths, as shown in the agricultural employment scenarios developed by Aliber et al (2009). Discussion of the choices about the country’s economic growth path needs to be challenged to engage with the ways in which these choices are also about rights. In our view, rights are a useful weapon in the politics of agrarian change and a necessary component of agrarian reform policies. But they should not divert attention from the need for deeper, structural change, which is needed to give substantive content to the rights defined by law – in this case, by redistributing access to highquality land and other resources, as well as enhancing market access, so that secure

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rights become one of the bases for improved incomes and livelihoods for the rural poor. As Hunt (1991: 247) writes: Rights take shape and are constituted by and through struggle. Thus, they have the capacity to be elements of emancipation, but they are neither a perfect nor exclusive vehicle for emancipation. Rights can only be operative as constituents of a strategy of social transformation as they become part of an emergent “common sense” and are articulated within social practices. . . . They articulate a vision of entitlements, of how things might be, which in turn has the capacity to advance political aspiration and action.

references African National Congress (2007), Resolution on rural development, land reform and agrarian change, Conference resolution (52nd National Conference, Polokwane, 16–20 December). Aliber, Michael, Mompathi Baiphethi, and Peter Jacobs (2009), ‘Agricultural employment scenarios’, in Ruth Hall (ed.), Another countryside? Policy options for land and agrarian reform in South Africa (Cape Town: Institute for Poverty, Land and Agrarian Studies), pp. 133–63. Atkinson, Doreen (2007), Going for broke: The fate of farm workers in arid South Africa (Cape Town: Human Sciences Research Council). Bennett, Tom (2008), ‘“Official” vs “living” customary law: Dilemmas of description and recognition’, in Aninka Claassens and Ben Cousins (eds.), Land, power and custom: Controversies generated by South Africa’s Communal Land Rights Act (Cape Town: University of Cape Town Press; Athens: Ohio University Press), pp. 138–53. Berry, Sara (1993), No condition is permanent: The social dynamics of agrarian change in sub-Saharan Africa (Madison: University of Wisconsin Press). Claassens, Aninka (2001), ‘“It is not easy to challenge a chief”: Lessons from Rakgwadi’ (Research Report No. 9, Programme for Land and Agrarian Studies, University of the Western Cape, Cape Town). (2003), ‘Community views on the Communal Land Rights Bill’ (Research Report No. 15, Programme for Land and Agrarian Studies, University of the Western Cape, Cape Town). (2008), ‘Power, accountability and apartheid borders: The impact of recent struggles over land rights’, in Aninka Claassens and Ben Cousins (eds.), Land, power and custom: Controversies generated by South Africa’s Communal Land Rights Act (Cape Town: University of Cape Town Press; Athens: Ohio University Press), pp. 262–92. Claassens, Aninka, and Ben Cousins (eds.), (2008), Land, power and custom: Controversies generated by South Africa’s Communal Land Rights Act (Cape Town: University of Cape Town Press; Athens: Ohio University Press). Claassens, Aninka, and Sizani Ngubane (2008), ‘Women, land and power: The impact of the Communal Land Rights Act’, in Aninka Claassens and Ben Cousins (eds.), Land, power and custom: Controversies generated by South Africa’s Communal Land Rights Act (Cape Town: University of Cape Town Press; Athens: Ohio University Press), pp. 154–83. Cousins, Ben (2008), ‘Characterising “communal” tenure: Nested systems and flexible boundaries’, in Aninka Claassens and Ben Cousins (eds.), Land, power and custom: Controversies

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generated by South Africa’s Communal Land Rights Act (Cape Town: University of Cape Town Press; Athens: Ohio University Press), pp. 109–37. (2009), ‘Capitalism obscured: The limits of law and rights-based approaches to poverty reduction and development’, Journal of Peasant Studies, Vol. 36, No. 4, pp. 893–908. Cousins, Ben, Rauri Alcock, Ngididi Dladla, Donna Hornby, Mphethethi Masondo, Gugu Mbatha, Makhosi Mweli, and Creina Alcock (2011), ‘Imithetho Yomhlaba yaseMsinga: The living law of land in Msinga, KwaZulu-Natal’ (Research Report No. 43, Institute for Poverty, Land and Agrarian Studies, University of the Western Cape, Cape Town). Cousins, Ben, and Aninka Claassens (2004), ‘Communal land rights, democracy and traditional leaders’, in Munyaradzi Saruchera (ed.), Securing land and resource rights in Africa: Pan-African perspectives (Cape Town: Programme for Land and Agrarian Studies, University of the Western Cape), pp. 139–54. Department of Land Affairs (1997), White paper on South African land policy (Pretoria: Department of Land Affairs). Department of Rural Development and Land Reform (2010), Comprehensive Rural Development Programme (Pretoria: Department of Rural Development and Land Reform) April. Du Toit, Andries (1993), ‘The micropolitics of paternalism: Discourses of management and resistance on the Western Cape fruit and wine farms’, Journal of Southern African Studies, Vol. 19, No. 2, pp. 314–36. (2003), ‘The externalisation and casualisation of farm labour in Western Cape horticulture’ (Research Report No. 16, Programme for Land and Agrarian Studies, University of the Western Cape, Cape Town). Farm Dweller Campaign (2006), Memorandum on the objects of the Farm Dweller Citizen Bill, draft proposal for discussion, unpublished document. Gibson, James L. (2009), Overcoming historical injustices: Land reconciliation in South Africa (New York: Cambridge University Press). Greenberg, Stephen (2010), ‘Status report on land and agricultural policy in South Africa 2010’ (Research Report No. 40, Institute for Poverty, Land and Agrarian Studies, University of the Western Cape, Cape Town). Hall, Ruth (2003), ‘Evaluating land and agrarian reform in South Africa: Farm tenure’ (Occasional Paper Series No. 3, Programme for Land and Agrarian Studies, University of the Western Cape, Cape Town). (2004), ‘Land and agrarian reform in South Africa: A status report 2004’ (Research Report No. 20, Programme for Land and Agrarian Studies University of the Western Cape, Cape Town). Hall, Ruth, Moenieba Isaacs, and Munyaradzi Saruchera (2007), ‘Land and agrarian reform in integrated development plans (IDPs)’ (Research Report No. 23, prepared for German Technical Cooperation, Gesellschaft Technische Zusammenarbeit (GTZ) in collaboration with the Department of Provincial and Local Government, Programme for Land and Agrarian Studies, University of the Western Cape, Cape Town). Human Rights Watch (2004), ‘Forgotten schools: Right to basic education for children on farms in South Africa’, 3 June, http://www.unhcr.org/refworld/docid/412ef4c94.html. Hunt, Alan (1991), Explorations in law and society: Towards a constitutive theory of law (New York: Routledge). James, Deborah (2007), Gaining ground: “Rights” and “property” in South Africa’s land reform (Abingdon, UK: Routledge-Cavendish and University of the Witswatersrand Press). Jara, Mazibuko, and Ruth Hall (2009), ‘What are the political parameters?’, in Ruth Hall (ed.), Another countryside? Policy options for land and agrarian reform in South Africa

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(Cape Town: Institute for Poverty, Land and Agrarian Studies, University of the Western Cape), pp. 206–29. Jeeves, Alan H., and Jonathan Crush (eds.) (1997), White farms, black labor: The State and agrarian change in Southern Africa, 1910–5 (Oxford, UK: James Currey). Keegan, Timothy (1986), Rural transformations in industrializing South Africa: The southern highveld to 1914 (Johannesburg: Ravan Press). Kepe, Thembela, Ruth Hall, and Ben Cousins (2008), ‘Land’, in Nick Shepherd and Steven Robins (eds.), New South African keywords (Johannesburg: Jacana; Athens: Ohio University Press), pp. 143–56. Lahiff, Edward (2009), ‘With what land rights? Tenure arrangements and support’, in Ruth Hall (ed.), Another countryside? Policy options for land and agrarian reform in South Africa (Cape Town: Institute for Poverty, Land and Agrarian Studies, University of the Western Cape), pp. 93–120. Land Claims Court (1999), Hanekom v. Conradie. Case no. LCC8R/99, 22 April. Land Claims Court (2001a), Landbounavorsingsraad v. Klaasen. Case no. LCC83R/01, 29 October. Land Claims Court (2001b), Nkuzi Development Association v. Government of South Africa and Legal Aid Board. Case no. LCC10/01, 6 July. Lund, Christian (2002), ‘Negotiating property institutions: The symbiosis of property and authority in Africa’, in Kristina Juul and Christian Lund (eds.), Negotiating property in Africa (Portsmouth, NH: Heinemann), pp. 11–43. Mamdani, Mahmood (1996), Citizen or subject? Contemporary Africa and the legacy of late colonialism (Princeton, NJ: Princeton University Press). Marcus, Tessa (1989), Modernising super-exploitation: Restructuring South African agriculture (London: Zed Books). Mayson, David (2003), ‘Evaluating land and agrarian reform in South Africa: Joint ventures’ (Occasional Paper Series No. 7, Programme for Land and Agrarian Studies, University of the Western Cape, Cape Town). Mhongo, Christine and Debbie Budlender (2009), ‘Declining rates of marriage in South Africa: what do the numbers and analysts say?’ Unpublished manuscript. Law, Race and Gender Research Unit, University of Cape Town. Mngxitama, Andile (2001), ‘Farm dwellers: Citizens without rights, the unfinished national question’, paper presented at the Southern African Policy Research Network conference ‘Land Reform and Poverty Alleviation in Southern Africa’, Human Sciences Research Council, 4–5 June, Pretoria. Mnisi, Sindiso (2010), Initial submission on the Black Authorities Act Repeal Bill (B9–2010), on behalf of Law, Race and Gender Unit of the University of Cape Town, unpublished document. Mokvist Uggla, Annika (2006), ‘Democratisation, traditional leadership and reform politics in South Africa’, DPhil diss., Uppsala University, Uppsala, Sweden. Murray, Christina (2004), ‘South Africa’s troubled royalty: Traditional leaders after democracy’ (Law and Policy Paper No. 3, Federation Press in association with the Centre for International and Public Law, Australian National University, Canberra). Murray, Christina, and Richard Stacey (2008), ‘Tagging the Bill, gagging the provinces: The Communal Land Rights Act in Parliament’, in Aninka Claassens and Ben Cousins (eds.), Land, power and custom: Controversies generated by South Africa’s Communal Land Rights Act (Cape Town: University of Cape Town Press; Athens: Ohio University Press), pp. 72–91.

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Ntsebeza, Lungisile (2007), ‘Land redistribution in South Africa: The property clause revisited’, in Lungisile Ntsebeza and Ruth Hall (eds.), The land question in South Africa: The challenge of transformation and redistribution (Pretoria: Human Sciences Research Council Press), pp. 107–31. Oomen, Barbara (2005), Chiefs in South Africa: Law, power and culture in the post-apartheid era (Oxford, UK: James Currey; Pietermaritzburg: University of KwaZulu-Natal Press; New York: Palgrave). Pienaar, Kobus (2000), ‘Communal property arrangements: A second bite’, in Ben Cousins (ed.), At the crossroads: Land and agrarian reform in South Africa into the 21st century (Cape Town: Programme for Land and Agrarian Studies, University of the Western Cape and National Land Committee), pp. 322–39. Scott, James (1985), Weapons of the weak: Everyday forms of peasant resistance (New Haven, CT: Yale University Press). Shirinda, Shirhami (2012), ‘In or out of court? Strategies for resolving farm tenure disputes in Limpopo Province, South Africa’, MPhil thesis, Institute of Poverty, Land and Agrarian Studies, University of the Western Cape. Smith, Henk (2008), ‘An overview of the Communal Land Rights Act 11 of 2004’, in Aninka Claassens and Ben Cousins (eds.), Land, power and custom: Controversies generated by South Africa’s Communal Land Rights Act (Cape Town: University of Cape Town Press; Athens: Ohio University Press), pp. 35–71. South African Human Rights Commission (2003), Final report on the inquiry into human rights violations in farming communities (Pretoria: South African Human Rights Commission). (2008), Progress made in terms of land tenure security, safety and labour relations in farming communities since 2003 (Johannesburg: South African Human Rights Commission). South African Law Reform Commission (2010), ‘Statutory law revision (legislation administered by the Department of Rural Development and Land Reform’ (Discussion Paper No. 118, Project 25, August). Pretoria: South African Law Reform Commission. Vilikazi, Absolom (1965), Zulu transformations: A study of the dynamics of social change (Pietermaritzburg: University of Natal Press). Walker, Cherryl (2008), Landmarked: Land claims and land restitution in South Africa (Johannesburg: Jacana; Athens: Ohio University Press). Wegerif, Marc, Beverly Russell, and Irma Grundling (2005), Still searching for security: The reality of farm dweller evictions in South Africa (Polokwane: Nkuzi Development Association; Johannesburg: Social Surveys). Williams, Gavin (1996), ‘Transforming labour tenants’, in Michael Lipton, Mike De Klerk, and Merle Lipton (eds.), Land, labour and livelihoods in rural South Africa, Vol. 2, KwaZuluNatal and Northern Province (Durban: Indicator Press), pp. 215–37. Wisborg, Paul, Ruth Hall, Shirhami Shirinda, and Philani Zamchiya (2013), Farm workers and farm dwellers in South Africa: Struggles over tenure, livelihoods and justice (Cape Town: Institute for Poverty, Land and Agrarian Studies, University of the Western Cape). Zamchiya, Phillan (2008), ‘Changing labour, land and social relations on commercial farms: A case study from Limpopo, South Africa’, MPhil thesis, Institute of Poverty, Land and Agrarian Studies, University of the Western Cape.

7 Housing Rights Litigation Grootboom and Beyond Malcolm Langford*

1. INTRODUCTION I can sleep without fear for the first time. . . . But now we must begin a new fight. – Resident, Gabon Settlement, after the Modderklip judgment1

Housing rights litigation bequeathed a juridical face to socio-economic rights in South Africa. In the landmark Grootboom case, an impoverished community facing displacement (for the third time) turned to the law. The Constitutional Court responded by establishing the general contours of the State’s obligations: policy must be reasonably directed towards realising socio-economic rights, particularly for those in desperate need.2 As much as the Grootboom judgment has been lauded for its lucidity and progressivity, it has spawned a series of critiques. Some of these are doctrinal. The Court has been chastised for failing to impose immediate obligations to ensure a minimum level of socio-economic rights or institute a more robust form of review (Bilchitz, 2007).3 Conversely, and more rarely, the judgment has been faulted for illegitimately intruding into the sphere of Parliament and the executive (Flanagan, 2008; Friedman, 2000). A more persistent concern in the scholarship is the apparent lack of enforcement or impact. Pieterse (2007: 808) concludes that “there was limited compliance with * Malcolm Langford is a Research Fellow at the Norwegian Centre for Human Rights, University of Oslo and formerly a researcher at its South Africa Programme. The author particularly thanks Evan Marcus for research assistance on some of the cases; Steve Kahanovitz, Kate Tissington, and Cesar Garavito Rodriguez, and fellow editors for comments on a first draft; and the University of Stellenbosch for a visiting fellowship, during which time the bulk of the empirical research was carried out. Author contact information: [email protected]. 1 Interview by author with focus group of residents, Gabon settlement, June 2010. 2 Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) (Grootboom). 3 See discussion in chapter 2, by Wilson and Dugard, in this volume.

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the order”, and more “significantly, the order did not result in the alleviation of the housing needs of the successful litigants”. This critique was heightened by the death of the lead applicant. In August 2008, Mrs Grootboom died “homeless and penniless” in her shack in Wallacedene (Joubert, 2008: 1). These perceptions of the judgment’s effects have elicited a range of reactions and proposals. Some have dismissed the capacity of socio-economic rights litigation in South Africa to improve the plight of the poor (Hirschl, 2004) or have called for stronger remedies and supervisory jurisdiction to ensure compliance (Mbazira, 2008). In discussions over public interest litigation strategy, the case is often held up as an example of ‘what not to do’. Unlike the case of Treatment Action Campaign,4 the Grootboom litigation was accompanied by no significant social mobilisation and follow-up (Marcus and Budlender, 2008). Although there is some truth in all these perspectives about impact, this chapter argues that they require deeper interrogation. They obscure different methodological assumptions and the evidence is second-hand and out-dated: newspaper articles from 2004 and 2005 are the most commonly cited source or just presumptions about no impact (see Berger, 2008; Hirschl and Rosevear, 2012). Moreover, the research has failed to test the conclusions against almost identical cases that have subsequently emerged. Engaging in such an endeavour may lead us to a more nuanced picture of impact. Using a range of sources (e.g. interviews, statistics, policy documents, jurisprudence), this chapter sets out to assess the impact of different housing rights strategies from Grootboom onwards and the appropriate lessons to be drawn. In doing so, the study has two limitations. First, the focus is restricted to case studies involving courts even though the nature of civil action varies. This is partly because of the attention generated by the Grootboom judgment but also because of the central role of adjudication in the field: Forced evictions generate litigation more quickly because of the perceived urgency; the ease of community mobilisation; and the lack of concrete political alternatives for many isolated settlements. However, in each case, litigation was complemented by other strategies. It is these shades of difference between the cases that form a key focal point for analysis. Second, for the sake of manageability, the focus is on cases involving informal settlements in urban areas.5 The first half of the chapter briefly sets out the historical and policy context of housing in South Africa (Section 2) which is followed by an in-depth analysis of the background and impact of the Grootboom judgment (Section 3). It then moves on 4 5

Treatment Action Campaign v Minister of Health (No. 2) 2002 (5) SA 721 (CC) (TAC). There are many other groups in urban areas that face significant housing rights challenges, particularly renters, backyard dwellers, hostel dwellers, farm dwellers, low-income property owners facing eviction, and those in the ‘gap market’ who do not qualify for RDP housing or private housing loans because their income is too high for the former and too low for the latter. For an overview of the challenges for these groups, see Tissington (2011b: 30–42). In some cases, litigation has been used, particularly for small property owners facing eviction. See Jaftha v Schoeman; Van Rooyen v Scholtz 2005 (2) SA 140 (CC).

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with the observation that the Grootboom case began as a forced eviction struggle and is comparable to a range of other eviction cases. In many of these, positive obligations by the State were asserted as a counter-claim, or the litigation process was used as a lever to negotiate for improved housing. A selection of eight cases are thus briefly described in Section 4 and analysed in terms of their background; characteristics; and degree of impact. The chapter concludes in Section 5 by arguing that the results of these comparative analyses and experiences should make us rethink both housing policy and civil society strategy. 2. HISTORICAL AND POLICY CONTEXT

Within a global perspective, the rapid growth of informal settlements and the presence of spatial segregation on racial grounds is not unique. However, the determination of the apartheid State in South Africa to control the flow and form of urban development was more steadfast and pernicious than elsewhere. From the end of nineteenth century, influx controls and various policies were systemically used to exclude black South Africans from the rapidly growing cities (Van Onselen, 2001). In 1901, the first segregated and planned township was formally created in Cape Town, and Africans and Indians were expelled from Johannesburg in 1904 and settled in what is present-day Soweto. After that came a cascading series of laws and policies that sought to stem the urban tide. The Natives (Urban Areas) Act of 1923 dramatically reduced legal tenure options for Africans outside the townships: the Slums Act 53 of 1934 facilitated large-scale inner-city clearances and dumping of residents outside the city on ‘health and safety grounds’, and the application of the Group Areas Act of 1950 and development of Bantustans created areas to which the apartheid State could ‘repatriate’ Africans who were surplus to the labour requirements of ‘white’ cities and farms. By the end of the 1970s, the result was the following: [W]hile some Africans still managed to live illegally in white urban areas, and thousands more lived illegally in townships outside the Bantustans, the racial scheme of spatial apartheid had reached its most advanced state. (Centre on the Housing Rights and Evictions (COHRE), 2005: 16)

As these controls were lifted during the 1980s, the inevitable result was rapid urban growth in former white urban areas. This phenomenon was amplified by limited economic opportunities and ongoing displacement in rural areas,6 the collapse of the already-meagre level of support to townships, and enhanced political confidence and activism amongst black South Africans. By 1990, the racial composition of inner-city areas was undergoing a dramatic transformation as black South Africans rented apartments or occupied abandoned buildings while the number of informal settlements, often on the periphery of urban areas, rose steadily. 6

See discussion in chapter 6, by Cousins and Hall.

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Before the formal transition in 1996, post-apartheid housing policy was taking shape (Government of South Africa (GOSA), 1994). A multi-stakeholder National Housing Forum had debated whether to aim deep (quickly providing formal fourroom housing for some) or broad (facilitating some housing improvement for all) (Tissington, 2011b); and whether to prioritise home ownership or rental housing. Although the broad approach was initially adopted in the form of ‘starter houses’ in the early 1990s (Tissington, 2011b: 58–61), the national policy settled on depth and ownership. This was chiefly based on the premise that the State should not facilitate second-class housing for black South Africans. Under the new National Housing Subsidy Scheme (NHSS), a capital subsidy was made available to enable the building of one million housing units over five years for low-income South Africans. At that pace, the backlog would be eradicated in ten years and new demands satiated. The exact form of these ‘RDP’ (Reconstruction and Development Programme) houses has varied but has evolved in the main to 30 square metres of floor space on a 250-square-metre stand. The construction of RDP houses represented the Government’s flagship housing strategy but was complemented by other policies and laws. Institutional subsidies were provided to housing organisations (private, governmental, and NGOs) to provide social housing. In 1997, framework legislation in the form of the Housing Act was passed along with the more regulatory oriented Prevention of Illegal Evictions from and Unlawful Occupation of Land Act 19 of 1998 (PIE), the Extension of Security of Tenure Act 62 of 1997 (primarily for rural areas), the Rental Housing Act 50 of 1999, and the National Norm and Standards for Construction of Stand Alone Residential Dwellings (1999). The PIE legislation was notable for its attempt to provide a robust procedural framework to prevent forced eviction of informal occupants without adequate alternative housing. In 1998, the People’s Housing Process was adopted by the housing minister after pressure from the South African Homeless People’s Federation: Communities could supervise and drive the housing delivery process themselves. Their ‘sweat equity’ would be provided in lieu of the own capital contribution required by the NHSS. By early 2001, the housing policy showed signs of mixed success. Almost on schedule, the Government had provided a total of 1.1 million housing subsidies covering 5 million of the 12.5 million South Africans requiring housing (Lodge, 2003). But the backlog was growing faster than delivery. The programme also appeared to accentuate the apartheid spatial divide. Housing was largely built on the peripheries of cities, and building quality was questionable, leaving what the Unicity Commission (2003: 3) described as a space “full of racial, political and social divisions”. And no effort was expended on taking the People’s Housing Process to scale. So far, it has enjoyed only a brief period of popularity in the mid-2000s in selected municipalities (Tissington, 2011b: 63). One of the principal consequences was the spectacular growth in informal settlements. By 1999, there were three hundred informal settlements in the Gauteng

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table 7.1. Total population living in informal settlements, 2001 Informal Pop. Eastern Cape Free State Gauteng Province KwaZuluNatal Limpopo Province Mpumalanga Northern Cape North West Western Cape Total

Percentage of Total Pop.

Percentage of Urban

Planned Units

416,956 257,068 1,011,387

6.64 % 9.50 % 11.02 %

23.06 % 19.47 % 14.80 %

237,765 104,046 999,190

1,016,596

10.61 %

31.27 %

303,081

70,415

1.41 %

21.20 %

146,908

190,782 31,405

5.67 % 3.17 %

23.45 % 12.47 %

155,434 42,730

212,443 353,331

6.65 % 7.81 %

29.40 % 11.07 %

149,690 228,789

330,3572

7.37 %

17.83 %

2,367,633

Source: Total and urban population figures are from the 2001 census (http://www.citypopulation .de/SouthAfrica-Mun.html). Total urban population was calculated by adding the population of urban areas in all provinces (towns exceeding twenty thousand persons).

province, a 1,500 per cent increase from a decade earlier, and more than two hundred buildings in downtown Johannesburg were informally occupied (COHRE, 2005). Nationally, the number of informal settlements had risen to more than one thousand (Moladi, 2010), with KwaZulu-Natal carrying the highest proportion. Table 7.1 shows the numbers of persons living informally in each province in 2001 (GOSA, 2004) and calculates the proportion of those persons to the total provincial population generally and those living in urban areas. The last column shows the number of planned housing units at that time (GOSA, 2004), although the ‘waiting list’ includes South Africans not living in settlements. What is notable is that, in almost all provinces, informal occupants account for a fifth to a third of urban dwellers, and the number of planned units is considerably lower than the informal population. The official response to settlement growth was increasingly one of eviction and a discourse that sought to criminalise ‘slum dwelling’. Although demolitions had continued from the apartheid era into the early and mid-1990s, Royston (1998) argues that they were largely driven by market forces (often involving tenants or private owners) rather than large-scale State-driven attempts to remove informal urban presence. She also claims that the Supreme Court, despite the presence of the Prevention of Illegal Squatting Act (‘PISA’) of 1951 on the statute books, were sympathetic to informal residents, such that it “was unusual to hear of a court ordering the removal of squatters unless alternative accommodation or land was available for resettlement” (Royston, 1998: Conclusion). Municipalities were also in a state of

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flux: local government was being re-born from the ashes of apartheid segregation, and some local governments, such as Gauteng, even adopted a rapid land-release policy. Nonetheless, COHRE’s (1998: 61) international eviction monitor reported a number of cases in this period, for example: On 19 December 1995, the same types of armoured vehicles that had inspired fear under apartheid were deployed in an operation to destroy at least 500 homes occupied by some 3,000 poor people in Gauteng Province (formerly Transvaal). The Gauteng government subsequently refused to provide alternative land for those made homeless on the grounds that this “would set a precedent”.

By the end of the 1990s as municipalities were consolidated, local urban and economic plans began to take shape. As the value of urban land began to rise with economic growth and commercial opportunity, a harsher and more consistent attitude appeared to emerge. Accurate numbers are difficult to obtain but there are many qualitative accounts of large-scale evictions in major urban areas. It is in this context that the Grootboom case arose. 3. GROOTBOOM

3.1. Origins of the Case and Judgment The Grootboom ‘community’ consisted of 390 adults and 510 children who originally resided in the Wallacedene informal settlement. Located on the eastern fringe of the Cape Metropolitan Area, the settlement’s residents were extremely poor, with 25 per cent in 1997 being assessed as having no income at all. Heavy winter rainfall had left their part of the settlement waterlogged, and in September 1998 they moved onto an adjacent vacant property. However, the land was privately owned and earmarked for low-cost housing. On 8 December 1998, the landowner secured a court order for an eviction, even though the community was unrepresented. The community decided to remain on the land, however, as the previous site in Wallacedene was then occupied. After securing funds to carry out an eviction, the landowner returned to court in March 1999 for a fresh eviction order. This time, the magistrate asked a local private lawyer to represent the community. The result was a negotiated agreement with the Oostenburg municipality: The community would vacate the land by 19 May 1999, and the municipality promised that it would seek to identify alternative land. The lawyer was under the impression (falsely, it seems) that there was little chance of legal success in fighting the eviction and that the municipality would negotiate in good faith: Oostenburg had earlier and privately concluded that no alternative sites were available. On 18 May 1999, the municipality sent in bulldozers to demolish and burn the settlement. Rendered homeless, the community members took shelter on the Wallacedene sports field.

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With the encouragement of a former African National Congress (ANC) councillor, the community marched on the local offices of the municipality, controlled by the New National Party. However, the only substantive response engendered was the request by municipality to an ANC politician to “sort out the problem” (Marcus and Budlender, 2008). During the subsequent discussions with this politician, it was decided that legal action would be taken against local, provincial, and national government. After one further attempt to settle, the case was launched on 31 May 1999. The applicants requested that the respondents “provide adequate and sufficient basic temporary shelter and/or housing for the applicants and their children” pending permanent accommodation and that “adequate and sufficient basic nutrition, shelter, health and care services and social services” be provided to all of the applicants’ children in the interim. Justice Davis conducted an in loco inspection and issued judgment on 17 December 1999. The rights of the children under Section 28 of the Constitution were upheld and the High Court ordered that “tents, portable latrines and a regular supply of water” be provided within three months to families. However, no order was given for adults without children. Section 26, which provides that everyone has the right of access to adequate housing, is expressly limited by the requirement of available resources. The municipality immediately appealed the order to the Constitutional Court, and the Community Law Centre, which had given some advice to the applicants, joined as amicus curiae (Liebenberg, 2003). This intervention proved influential given the eventual court order. At the start of the hearing, the Constitutional Court issued an order pursuant to an agreement between the parties. The municipality was to provide immediate funding for materials and delivery of temporary toilet and sanitation facilities, as well as materials to waterproof residents’ shacks. A unanimous judgment then addressed the broader issues. Writing for the Court, Justice Yacoob held that the nationwide housing program fell short of the obligations on the national government under Section 26 of the Constitution. There was a failure by the authorities to take into account or make provisions for the immediate temporary amelioration of the circumstances of those in desperate need. A declaratory order was issued to that effect, which stated that Section 26 of the Constitution imposes on the national government obligations to devise, fund, implement, and supervise measures to provide relief to those in desperate need.7 In passing, the Constitutional Court commented that the “manner in which the eviction was carried out” was a “breach” of the negative obligation not to forcibly evict enshrined in Section 26 of the Constitution. The High Court’s order under Section 28 was also struck out as

7

The programme must include reasonable measures such as, but not necessarily limited to, those contemplated in the Accelerated Managed Land Settlement Programme, to provide relief for people who have no access to land, no roof over their heads, and who are living in intolerable conditions or crisis situations.

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the Court read progressive realisation and the defence of available resources into the provision.8 The Constitutional Court noted that the second amicus curiae, the South African Human Rights Commission (SAHRC), had promised to “monitor and, if necessary, report in terms of these powers on the efforts made by the State to comply with its Section 26 obligations in accordance with this judgment.”9 Whether this statement by the Constitutional Court constituted an actual order is disputed (cf. Berger, 2008; Liebenberg, 2010: 402–3). The SAHRC nonetheless reported on the implementation. Pillay (2002a) and Liebenberg (2010) describe its extensive efforts to monitor local and provincial plans to provide permanent accommodation to the community and on 14 November 2001 the SAHRC made an extensive report to the Constitutional Court concerning the dispute between branches of government over responsibility for implementation and the lack of clarity over the content of the declaratory order; but the court refused to entertain it, saying that it did not possess an ongoing oversight role. However, many are critical of the commission’s failure to continue to monitor the broader declaratory order (Berger, 2008: 77). 3.2. Assessing Impact Assessing the impact of the Grootboom litigation is challenging. The case acutely raises the full gamut of methodological issues discussed at the beginning of this book. First, should one adopt a ‘before and after’ approach or an ‘idealist expectations’ approach to the baseline? The former approach permits the identification of a range of positive impacts; the latter presages a more pessimistic reading, particularly if emphasis is placed on the community’s short-term anticipations immediately after the judgment. Second, should the focus be on the impact for the Grootboom community (who were the authors of the litigation strategy) or the broader changes in housing and eviction policy (which was the focus of the judgment)? Third, how much weight should be given to the respective material (rights realisation and policies and institutional change), political (power relations), and symbolic (perceptive/attitudinal) impacts that emerged from the case? Fourth, what time period is reasonable for the assessment, particularly as some key impacts occurred five to ten years after the judgment? This chapter does not seek to resolve these tensions but rather to highlight the critical role of methodological choices. As to the baseline, the chapter adopts a hybrid approach. It uses neither the terms of the judgment nor the community’s interpretation of it, but rather the community’s original demands before the High Court for adequate temporary shelter pending permanent accommodation and basic nutrition and services for children. This baseline seems reasonable, as it represents a conscious attempt by the community and their lawyers to take into account the legal, 8

9

This interpretation has been much criticised from the perspective of children’s rights (Sloth-Nielsen, 2001). Grootboom, para. 97.

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table 7.2. Impacts of the Grootboom community’s legal strategy Grootboom Community Material

Systemic Effects

Building materials and services (2001–)

National Emergency Housing Policy (2005)

Protection from evictiona (2001–)

Western Cape and Wallacedene Housing Policy (2001–)

Permanent housing for community (2007–9)a

Socio-economic rights and eviction jurisprudence (2001–)a Slum Upgrading Policy (2005) Grootboom proofing of policiesa (2002–10)

Political

Increased leverage with municipality Some but marginal alliance building by community

Judgment used in mobilisation and leverage power in other communitiesa (see Section 4)

Less active after choosing litigation option?b Symbolic

a b

Community self-perceptions?b

Slum dwellers viewed as rights holders by some officials, media But marginal effects on broader perceptions of slum dwellers

An impact that can be viewed as significant. An impact that can be viewed as negative.

economic and bureaucratic constraints.10 In addition to the community’s baseline, the broader effects of the judgment are also recorded. These different impacts are set out in Table 7.2 with the columns divided between community and systemic impacts. The rest of this section analyses the reasons behind these conclusions for the Grootboom community and more broadly. 3.3. Grootboom Community Material What were the material effects of the judgment for the community measured against the original demand? On the eve of the Constitutional Court hearing, the community was successful in securing a settlement agreement for the first leg of their claim – temporary settlement. However, it was immediately breached by the municipality, which took no steps to provide the promised materials, water, and sanitation (Berger, 2008). This required a follow-up application to have the agreement made 10

Whether it reflected the community’s actual demand is difficult to know because of the involvement of lawyers.

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an order of court.11 The materials and facilities were then provided, but complaints emerged over the quality of the water and sanitation facilities, and overall conditions improved little (Langford, 2003). Community leaders complained of broken pipes, lack of cleaning materials, and being shunted between local and provincial governments when trying to solve maintenance problems.12 As Pillay (2002b: 2) put it, the “part of the order requiring once-off involvement” was fulfilled but “other parts of the order, which require continuous involvement – like maintenance and the provision of services – have not been”. Moreover, and critically, the original demand of the parties for accessible social services for children was very much lost in the settlement agreement and the Constitutional Court’s judgment. At the same time, the agreement facilitated security of tenure for the community. The litigation effectively removed the prior eviction threat and dissolved the community’s initial acquiescence to it. It was tacitly agreed amongst the parties that the community could reside on the sports field despite complaints from sporting associations (Liebenberg, 2010). Although this may seem like a marginal victory, it is to be contrasted with two other evictions that occurred in 2001. Huchzermeyer (2003) records the eviction of six thousand households from Alexandria and ten thousand from Bredell. Much of the debate over the judgment has focused on the slow progress of the community’s securing of permanent housing (Joubert, 2008; Pieterse, 2007). In 2002, the community leader said, “We won the championship, but where’s the trophy?”13 But there was, of course, no court order for the community to be given permanent housing, and it was not even claimed by the community when they first approached the High Court. The Constitutional Court even acknowledges, in largely glowing terms, the government’s broader efforts in building houses for the poor.14 Marcus and Budlender (2008: 63) conclude that the community’s “over-inflated expectations and consequent disillusionment” concerning the import of the judgment seem to have arisen from the “lack of clear communication between the lawyer and his clients about the likely and actual outcomes of the case”. However, progress on access to permanent housing is worth investigating, not only in terms of the community’s legitimate medium- to long-term expectations but also in light of the usefulness of constitutional rights–based litigation strategies. The Court has been particularly critiqued for “focusing on the coherence, rationality,

11

12

13 14

Grootboom v Government of the Republic of South Africa (unreported order in Case no. CCt/00), 21 September 2001. ‘Treated with contempt’, Times Live, 21 May 2004, http://www.timeslive.co.za/sundaytimes/article 88628.ece. Interview with Lucky Gwaza, February 2002. “What has been done in execution of this program is a major achievement. Large sums of money have been spent and a significant number of houses have been built. Considerable thought, energy, resources and expertise have been and continue to be devoted to the process of effective housing delivery”: Grootboom, para. 53.

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inclusiveness, and flexibility of legislative or policy measures” instead of “the alleviation of the concrete consequences of socioeconomic hardship” (Pieterse, 2007: 811). The full and entire story of the community’s attainment of permanent housing has been subject to little analysis. It is complicated. The initial obstacle was the lack of bureaucratic coordination. The City of Cape Town and the Western Cape provincial government took one year to decide on the ‘locus of responsibility’ for the implementation of the judgment (Pillay, 2002a). Interestingly, their first plan focused on the Wallacedene area – to ensure permanent resettlement for all residents there – rather than on the required broader reforms to emergency housing policy (which came later). Pillay (2002a) is actually critical of the municipality for this decision as the judgment was focused on ensuring emergence assistance to all persons within the remit of each level of political authority (see further Section 3.4 herein on the implementation of the actual declaratory order). But this policy development demonstrates that the litigation had an impact for the Grootboom community in terms of directing municipal attention to the needs of their locality. The Wallacadene plan involved a series of phased resettlements whereby residents could choose between contractor-built housing (RDP houses) and the People’s Housing Process. The nearby 130-hectare Blue Ridge Farm would be purchased for the construction of low-cost housing for 6,800 households while another 2,000 would be developed in existing Wallacedene (LRC, 2002). But in March 2002, when members of the Grootboom community were presented with the plan, their leader, Lucky Gwaza, expressed sadness: “relocating his people would only be undertaken during phase three of the development, which could be five or six years away” (LRC, 2002). The plan allowed for ten phases, and the Grootboom community was slated for phase 4 (to be completed in 2008). Other communities were deemed to be in greater need. This was clearly a let down for the Grootboom community but at least demonstrates that the principles of the judgment were being followed: the most disadvantaged were being prioritised. One of the other community leaders Mawethu Sila acknowledged that the community thought “that the ruling was going to be for thirty applicants” but they came to accept the need for a broader plan such that the “judgment, as much as it helped us, it didn’t only help us”.15 By 2008, the plan had been achieved for the community who had chosen the People’s Housing Process. Those who chose contractor-built housing, including Mrs Grootboom, were stuck encumbered with delays. While three thousand of these houses had been constructed in the Wallacedene area (Nicholson, 2008a), construction of the remainder had stymied repeatedly by myriad bureaucratic quagmires, most notably, the cancellation of a contractor’s tender due to allegations of corruption.16 There were also concerns over the quality of construction, type of 15

16

Interview with Mawethu Sila, Wallacedene, 2 June 2012. Carried out by Wilmien Wicomb, Legal Resources Centre for the author. Interview with Steve Kahanovitz, Legal Resources Centre, Cape Town, 17 April 2010.

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building foundation, location of houses, and availability of alternative accommodation during construction. As a consequence, in May 2008, when Mrs Grootboom died, she was still waiting for relocation (Joubert, 2008). But this group was informed that it would be included in the next round.17 In 2012, Sila advised that 90 per cent had accessed permanent housing although disagreements with contractors and the municipality over quality and location has meant a number of the remainder have refused the offers. Thus, the community managed to achieve permanent housing, and it was the judgment that accelerated this process by prompting the Wallacedene plan. At the funeral of Mrs Grootboom, tribute was given to her for precisely this. Her sixteenyear-old niece stated, “She was very loving and would do anything for anyone. She did a lot for the people in the community. If it wasn’t for her they wouldn’t have houses now” (Nicholson, 2008b: 1). At the same time, the community lived in appalling conditions for many years, and it is difficult to calculate by how many years the judgment reduced the likely attainment of permanent housing. But there is a clear causal connection between the judgment and the creation of the plan, and potentially its implementation, given the high-profile nature of the case. Political and Symbolic Impacts Beyond these material impacts, the ‘political’ and ‘symbolic’ impacts have been mixed or ambiguous. The litigation clearly shifted the power relationship between the community evictees and municipality; enhancing the community’s ‘power to’ in Gaventa’s (2006) terms. This is evident in the forestalment of the forced eviction and the development of a plan for permanent resettlement. However, it is clear that the shift only went so far. The community was not able to attain more political leverage from the victory. It was here that the particular circumstances of the case come into play. The community seemed to have missed the chance to expand their ‘power with’ and ‘power within’. They quickly lost access to their private lawyer, Julian Apollos: he merged his small law firm with a larger firm that represented the municipality, thus creating a conflict of interest. The LRC attempted to assist the community in negotiating with the authorities, but Marcus and Budlender (2008: 63) argue that there seems to be a “lack of effective leadership in the community which made the process extremely difficult”. The community was able to form alliances with civil society organisations such as Development Action Group and the housingoriented Community Organisation Resource Centre (CORC), but the cooperation did not always last, and the community was not connected to broader and emerging urban movements. However, in an interview, Sila indicated that the Wallacedene housing plan had facilitated the development of a broader Wallacedene community forum. A number of members of the Grootboom community were active in the 17

Ibid.

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forum leadership. In this respect, the judgment facilitated the creation of a new community organisation. Overall, the legacy of the litigation was more empowering than disempowering. If the baseline is the year 2000, it clearly helped unite a heavily marginalised community living in highly precarious conditions and give birth to a new representative entity that negotiated with the municipality. 3.4. Systemic Impact Although the community’s claim addressed its own situation, the judgment was focused on the broader obligations of the State, particularly towards all those in desperate need. The decision thus carried the seeds for catalysing a wider systemic impact. The BBC reported in October 2000, for example, that although the judgment was unclear in “practical terms”, it “could lead to a total overhaul of the government’s housing policy” (Barrow, 2000). With slightly less optimism as to housing policy, the representative for the amicus curiae in the case, the LRC, pointed towards the judgment’s latent destabilising role in housing policy and legal jurisprudence. The LRC noted that the case was a “watershed moment in [South Africa’s] constitutional democracy” and heralded political change: “something very fundamental has shifted subtly in South Africa: the power of desperately poor people to leverage assistance from the state” (LRC, 2002: 4). Each of these potential effects is examined in turn. Emergency Housing Policy In August 2003, two and half years after the judgment, the national and provincial ministers approved a new programme called Housing Assistance in Emergency Situations. The programme document explicitly acknowledges that it was devised as a direct result of the Grootboom judgment as well as the severe floods in Limpopo Province in 2000 (see page 5). It discusses the judgment in some detail, noting that the Court found that current programmes “do not satisfy the requirements of the Constitution” and “suggested that a reasonable part of the national budget be devoted to providing relief for those in desperate need”. In April 1994, the policy was incorporated in the National Housing Code:18 [It] deals with the rules for exceptional urgent housing situation . . . [for] people who, for reasons beyond their control, find themselves in a situation of exceptional and urgent housing need. . . . The assistance provided consists of funds in the form of grants to municipalities to give effect to accelerated land development, the provision of basic municipal engineering services and shelter.

Exceptional or urgent need was defined as an emergency housing situation (e.g. destruction or major damage to an existing shelter) or a situation that poses an 18

Section 4 of the National Housing Act 107 of 1997 provides for the publication of a National Housing Code by the Minister of Housing.

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immediate danger to life, health and safety, or eviction (or the threat of imminent eviction). Although the Court referred only vaguely to the provision of adequate budgetary support, the National Treasury Department undertook to allocate a fixed 0.8 per cent of the annual national housing budget to the implementation of the policy. This was gazetted, but was not ultimately implemented on the grounds that the Department of Housing was regularly failing to spend all of its existing budget so there would be no need to ringfence a particular allocation.19 In 2009, the programme provided R22,416 (US$2,741 at the time) for the repair of existing services and up to the individual subsidy quantum amount for the reconstruction of existing houses. For temporary assistance, R4,230 is provided for municipal engineering services and R47,659 for the construction of temporary shelters.20 For temporary settlements, guidelines mandate a maximum level of basic engineering services and shelter requirements, as the programme was not intended to constitute provision of formal or permanent housing.21 Although the policy was a direct response to the judgment, implementation has been hampered by numerous problems. Only municipalities (not communities) may apply for funding, and only when they can demonstrate an emergency situation. The use of the Emergency Housing Programme by municipalities has been minimal and largely ad hoc (Tissington, 2011b). Social Housing Foundation and Urban Landmark (2010) have demonstrated that only six of the nine provinces have so far claimed funds, and most grants were disbursed for disasters and floods in rural areas, although this does not reflect State-initiated uses of the funds. One of the core problems has been the narrow definition of emergency combined with burdensome institutional procedures, with processes taking up to eighteen months and sometimes leading to questionable rejection (Tissington, 2011b). This seems to confirm Liebenberg’s (2010) conclusion that the policy is not fully compatible with the judgment. The constitutionality of the programme was partly raised by applicants in Nokotyana before the Constitutional Court in 2010, but only in relation to the standard of temporary sanitation facilities and the provision of high-mast lighting.22 More problematic, where the policy has been deployed in urban areas, the primary purpose has been to evict residents. Residents are moved to temporary relocation areas (TRAS), or ‘transit camps’. Apparently, this is to help address housing backlogs, but Tissington (2011b: 96) argues:

19 20

21

22

Kahanovitz e-mail correspondence, October 2012. Department of Human Settlements, ‘Subsidy quantum – Incremental interventions’, Pt. 3, Vol. 4, National Housing Code (2009) 4. Access to water means a water point or tap for every twenty-five families; temporary sanitation facilities may vary from area to area; where possible ventilated improved pit (VIP) latrines must be provided as a first option on the basis of one per five families, whereas high-mast lighting may be provided in special circumstances. Nokotyana and Others v Ekurhuleni Municipality 2010 (4) BCLR 312 (CC) (Nokotyana). For discussion and criticism, see Wilson and Dugard, chapter 2, in this volume.

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Households are moved from shacks they have occupied, often for many years, to these areas where they are often left indefinitely with no timeline of when they will receive permanent accommodation. They are, in effect, off the “backlog radar” as they are neither informal nor occupants of formal RDP or bond houses. Because of their so-called temporary nature, City officials are unwilling to invest much in infrastructure in these areas and in fact, the Emergency Housing Programme explicitly discourages this.

One of the few exceptions has been the creative use of the policy to catalyse a relocation and in situ upgrade: this occurred in the Bardale litigation (see Section 4). But in the main, the appropriation of the policy to facilitate ‘relocations’ has been mostly devastating for urban residents, leaving them worse off than in their original situation (Hunter, 2010). But are there indirect policy effects? Has the judgment and national policy meant that municipalities are more likely to provide temporary services regardless of access to national funds? This is difficult to tell. In the case of Stellenbosch, there was high awareness of potential litigation against the municipality.23 Officials describe a policy of immediately providing water and sanitation points in the mushrooming informal settlements.24 In other municipalities, it seems that little progress has been made, particularly in KwaZulu-Natal, the Eastern Cape, and Ekurhuleni in Gauteng. Locating the data to gain precise figures on provision of basic water, sanitation, and electricity to informal settlements is not simple. Data from the Department for Water Services and Forestry suggests that its provision increased at a faster rate since at least 2008: ‘below RDP’ water service across the whole country was rising more quickly from 2000 than ‘above RDP’ service. By 2008 this had begun to taper off as the latter caught up. However, these figures include rural areas and small towns, making it difficult to interpret. But anecdotal evidence suggests a move to at least identifying informal settlements, providing services (often rudimentary and varying between settlements and municipalities), and sketching plans for the future development. Informal Settlements Programme and Housing Budget By 2001, there was widespread recognition that housing policy needed comprehensive reform. In 2002 and 2003, a government review process identified the problems across the sector, including the housing backlog and the continued growth of informal settlements. The emerging thinking was that local government should play a central role (Tissington, 2011b). Although the eventual outcome, Breaking New Ground (2004), broke only partially with existing policy, a new Informal Settlements Programme was adopted and included in chapter 13 of the Housing Code. Housing policy would be broad as well as deep. Informal settlements could be upgraded in situ, or relocations could occur in exceptional circumstances. Municipalities were 23 24

Kahanovitz e-mail correspondence, 2010. Interview with director of water and sanitation services, Stellenbosch Local Municipality, Stellenbosch, February 2008.

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to access grants for the four different phases of the upgrading with individual-based (or other) subsidies to be used in the final construction phase. It is likely that the Grootboom judgment played a part in influencing the development of the policy given its timing. In a recent decision, the Constitutional Court noted that the policy was an attempt by the government to implement the right to housing in the Constitution.25 However, such influence was perhaps minimal. The policy reflected the zeitgeist of the time – as many in the sector began to recognise that the RDP housing policy would not cope with the growing backlog. Nonetheless, the judgment at least contributed to legitimising the existence of informal settlements and their residents as constitutional rights holders. In any case, it is not clear that the policy has led to any significant achievements. Between 2004 and 2010, little upgrading has occurred in major urban areas (Huchzermeyer, 2010), although it has proceeded in some smaller towns.26 In those few cases where the programme commenced, it was soon stymied by attempts to evict the communities (e.g. the Joe Slovo upgrade) (see Section 4.3), or long bureaucratic delays and major breakdowns in the municipality-community relationship (e.g. Hangberg settlement, Cape Town) (see Soeker and Bhana, 2010). For the most part, local municipalities seem resistant to the policy, and it was largely overshadowed by State’s growing discursive emphasis on the eradication rather than the upgrading of informal settlements. Given the programme’s complexity and decentralised nature (Van Wyk, 2007), the mobilising or creation of local and provincial political will is decisive. Chapter 13 can be relied on only once the local Member of Executive Council (MEC) for Housing has made a decision to upgrade the settlement. Indeed, in Nokotyana, the Constitutional Court chastised the MEC for a three-year delay in making a decision, although it permitted a further fourteen months.27 Moreover, the Court stunningly interpreted the programme as not allowing services for the initial phases to be commenced while a final decision was awaited. This was despite such provision being expressly permissible under the policy (Huchzermeyer, 2009). One possible piece of hope was the presidential announcement in 2010 of a quantitative target for upgrading: four hundred thousand households by 2014. However, it is likely that most progress will come from mobilisation from below. Paradoxically, as we will see, in practice upgrading has principally occurred after resistance to eviction attempts by municipalities. Jurisprudence The LRC’s prediction of the Grootboom judgment’s importance for constitutional jurisprudence was largely on the mark. As Wilson and Dugard show in chapter 2 of 25 26 27

Nokotyana, para. 24. Kahanovitz e-mail correspondence, 2010. Nokotyana, para. 23.

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this volume, all of the key socio-economic rights cases in South African jurisprudence (from housing to health to social security) have built on the principles set out in Grootboom. Other NGOs and social movements have indicated their legal debt to the decision (Marcus and Budlender, 2008: 66). In the domain of housing rights and evictions, the decision has clearly formed the basis for an extensive range of jurisprudence. Some of these cases are analysed in Section 4 of this chapter,28 but suffice it to note here that they entrench the right to alternative accommodation in cases of eviction,29 extend constitutional protections against eviction to debt defaulters30 and occupiers of private land31 and housing,32 set out the minimum standards for alternative accommodation,33 establish a duty of the municipality to meaningfully engage with a community,34 provide the right to restoration of shelters and return to land after a forced eviction,35 and prevent retrogression in legislative protections against evictions.36 In some eviction cases, the Grootboom judgment has been proactively used as shield: the absence of an effective housing programme precluded the granting of eviction orders because occupiers would be left in desperate circumstances (see Section 4 for discussion of the Valhalla and Gabon cases). At the same time, High court judges have ordered evictions that do not meet these constitutional standards: see Huchzermeyer, 2003; Wilson, 2006; and discussion of Makause case later in this chapter. However, Geoff Budlender argues that over the decade, most urban-based judges have become conscious of the constitutional principles and the chances of avoiding a forced eviction through court action have improved markedly.37 Grootboom Proofing Social Policy Perhaps the most significant policy effect is one that is almost impossible to measure: the Grootboom-proofing of social policy. Senior officials in departments such as water and social security have acknowledged that the precedent affected policy 28 29

30 31 32

33

34

35

36 37

For a deep analysis of this jurisprudence, see Liebenberg (2010). In particular, see Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC) (Port Elizabeth Municipality). Jaftha v Schoeman; Van Rooyen v Scholtz 2005 (2) SA 140 (CC) (Jaftha). Modder East Squatters v Modderklip Boerdery (Pty) Ltd 2004 (6) SA 40 (SCA). City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd and Another (338/10) [2011] ZASCA 47 (30 March 2011) (note that this is the Supreme Court of Appeal’s judgment). Residents of the Joe Slovo Community, Western Cape v Thubelisha Homes and Others 2010 (3) SA 454 (CC) (Thubelisha Homes). Occupiers of 51 Olivia Road Berea Township and 197 Main Street Johannesburg v City of Johannesburg and Others 2008 (3) SA 208 (CC) (Olivia Road). Tswelopele Non-Profit Organisation and Others v City of Tshwane Metropolitan Municipality, 2007 SCA 70 (RSA) (note that this is the Supreme Court of Appeal’s judgment, but it was not appealed). Abahlali baseMjondolo v Premier of KwaZulu-Natal Province and Others 2010 (2) BCLR 99 (CC). Interview with Geoff Budlender, February 2010.

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calculations.38 If progress was not achieved fast enough, there was a concern that departments could be subject to litigation. Marcus and Budlender (2008: 66) found a similar effect amongst their respondents, concluding that “the government has begun factoring these issues into its budgetmaking processes and has become far more responsive to lawyers”. In the specific field of housing, a similar theme emerged in interviews in February and March 2010 with housing officials in Cape Town and Johannesburg municipalities. They viewed Grootboom (and some subsequent judgments) as helpfully pushing them to review the adequacy of policy. Although, the officials evinced a strong resistance to any potential ruling that would direct them in their budgetary allocations, there has also been a significant increase in the housing budget over the past decade. However, it is difficult to say whether this was due to the Grootboom judgment. The political temperature was rising in the sector as a result of growing ‘backlog’ and outbreak of ‘service delivery’ protests since 2004 (see Dugard, chapter 10, in this volume). It is also not clear how much Grootboom and its successors have affected the practice of forced evictions. No systemic data have been collected. But it is relatively clear that the number of large-scale government-initiated evictions has substantially decreased, if not disappeared. Evictions are cited as a cause of the service delivery protests since 2004 but they are nowhere near the leading cause compared to energy, water, and broader housing concerns (see Jain 2010). As the next section demonstrates, there are more accounts of evictions being successfully resisted with the use of legal tactics, which has led to an increase in the economic and political cost of an eviction. One sign of this is the targeting by municipalities of smaller or newer groups of residents (e.g. in Western Cape) or their encouragement of private landowners to take the lead in evicting.39 Politics and Perceptions The judgment arguably created a tool that could be used in the political arena. The Grootboom proofing of social policy and use of the precedent in subsequent cases is evidence that there has been a shift in power relations. However, the case has been more of a background variable in these developments, not the foreground on which particular achievements were fought for and established. In this respect, it is easy to accept the argument that the absence of a ‘social movement’ in this litigation meant that there was a lost opportunity to use the judgment to directly and quickly leverage other gains. The greater post-judgment outcomes in the TAC 38

39

See Caspar Human (2006), from the Department of Water Affairs and Forestry, and statements he made at the International Conference on Right to Water, Berlin, in October 2005. See also statements by Thabo Rakoloti, Chief Director of Social Assistance, Department of Social Development, at the International Conference on the Right to Social Security in Development, Berlin, 19–20 October 2009. Interview with Stuart Wilson, SERI, Johannesburg, April 2011.

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case – in material, political, and symbolic terms – is said to be attributed to the primacy of social movements in this case: the broad coalition of NGO, unions, communities, and churches. Already well-versed in legal mobilisation after its legalpolitical victory against pharmaceutical companies in 1999, the Treatment Action Committee persistently followed up on the decision and used the narrow order for the rolling out of nevirapine as a springboard to advance other agendas, such as access to antiretroviral medicines. This common narrative contains many truths. The importance of civil society organisations in determining the magnitude of the enforcement and impact of a decision pressure is partly corroborated by Berger’s (2008) survey of health, education, and social security rights litigation in South Africa. This result should not be surprising in the lawyer-led litigation and enforcement model of the common law.40 Strategy is very much in the hands of the parties at every stage. At the same time, one should be wary about using the TAC case as a rigid prototype (Dugard and Langford, 2011). First, there are precedents from India and Colombia that demonstrate how a ‘lonely’ judgment has helped catalyse a social movement for compliance (Muralidhar, 2008; Rodr´ıguez Garavito, 2011). In Grootboom, there was an emerging informal settlements movement, the Homeless People’s Federation, closely affiliated with the professional-based People’s Dialogue on Land and Shelter. They were engaged in negotiations on creating the People’s Housing Process as an alternative to RDP housing and worked to a certain extent in the Wallacedene area. However, this organisation is somewhat sceptical of rights-based approaches – as it complicated relationships with the authorities in their view – and did not view the judgment as a platform for transformative policy changes. Moreover, there were no policy-oriented NGOs or university law centres with a strong focus on housing, unlike health. Thus, it could be said that Grootboom fell on fallow ground, a mobilisation idea whose time had not yet come. Indeed, it was only in the second half of the 2000s that South Africa has witnessed bottom-up housing rights movements that moved beyond a locality, such as Abahlali base Mjondolo (ABM), Western Cape Anti-Eviction Campaign, and the Unemployed Peoples’ Movement. Only in later cases have communities been able to garner the strength of these growing alliances and develop more stable relationships with legally oriented civil society organisations. Second, it is not clear that the TAC model can be applied directly to the housing sector and informal settlements, which is highly local and provincial in nature, in both design and politics, and concerns collectives/communities rather than individuals and the general public. Although health is certainly complex, the variable of land in housing policy can create havoc when not properly managed – it is intimately connected with the market, it is limited, and it carries deep symbolic and cultural value. Even in highly successful social democratic countries like Norway, housing 40

Contrast the more judge-led litigation revolutions in the civil law systems of Colombia and Costa Rica (Wilson, 2009).

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has been described as a ‘shaky pillar’. Making cross-class and cross-sectoral alliances may also be more difficult. Access to housing is exclusively determined by socioeconomic status, unlike HIV/AIDS. However, it is interesting that newer movements like Abahlali baseMjondolo have formed alliances locally with the NGO Church Land Programme. But creating alliances with experts can be more difficult: many actors in the housing sector are profit oriented or tied to government consultancies. Third, housing litigation often arises in a different way. The initial concern of the Grootboom community was to simply avoid forced eviction. These types of cases are common and are driven by the acute concerns of local communities rather than broad movements. Thus, social movements often need to find ways to help maximise the results of such litigation rather than lead them. In this sense, the two cases may simply be incommensurable. Symbolic Effects Have there been any symbolic effects? It is hard to tell. In 2002, the LRC stated that the judgment had “changed the debate about social and economic rights – away from discussions about budgetary implications, towards the manner in which government approaches people living in dire circumstances” (LRC, 2002: 4). This is true to a certain extent. Within the national bureaucracy and some municipalities, Grootboom may have contributed to a more progressive view on the rights of those living in informal settlements and emergency situations. As is clear from the news media, Mrs Grootboom partly gave a human face to slum dwellers and may have boosted the journalistic focus and partly shifted the narrative on informal settlements. Moreover, the ability to whip up hysteria over land invaders as was done in 2001 during the Bredell eviction seems to have subsided. However, any symbolic victories from the Grootboom judgment, and other efforts to render informal settlers more visible, have run headlong into a new counterdiscourse. Pithouse (2009: 1–2) describes it as a shift to a “security driven approach to the urban poor”. Informal settlements are viewed through a criminal justice lens and seen as a threat; leading to an anti-poor discourse of “eradicating slums”, which may also explain the half-hearted change in policy in 2004. Some authors link this trend to the rising and assertive middle class, arguing that the “invaders distort the State’s normative vision of integration as predominantly middle class and its form in urban development” (Lemanski and Oldfield, 2009: 643). Although some attempts to legislate away from protections to slum dwellers were foiled by social movements in the Constitutional Court, the security discourse has meant that slum dwellers have struggled to maintain sufficient public standing. The attacks on the movements such as Abahlali baseMjondolo are indicative of a simmering and deep hostility against shack dwellers and social movements (Amnesty, 2009). Moreover, the growing jurisprudence on housing rights and evictions appears to have created some backlash itself amongst officials and some ANC leaders (Marcus and Budlender, 2008: 66) and explains attempts to roll back PIE.

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4. POST-GROOTBOOM HOUSING LITIGATION

4.1. Comparing Forced Eviction Cases Without over-playing the scale of the effects, the foregoing discussion indicates that the impact of Grootboom may be deeper and more diffuse than is popularly, or scholarly, imagined. The community prevented further eviction, improved access to basic services (to a limited extent), gained access to permanent housing, catalysed the development of an emergency housing policy (although poorly implemented), developed the jurisprudential foundation for socio-economic rights litigation and helped slow or eliminate a pattern of large-scale evictions. Even less analysed, though, is the impact of subsequent housing rights litigation that emerged from identical circumstances, that is, attempted forced evictions by public authorities.41 In addition, in many of these cases, a similar kind of jujitsu strategy was employed. Negative violations triggered positive demands: communities invoked the right to housing as they mounted counter-claims for better housing or improved alternative accommodation. These cases therefore present an opportunity to try to identify some broader trends in impact and conditions. The constitutional protections on the right of access to housing combined with legislation offers a potentially attractive legal opportunity structure for communities facing eviction. To a certain extent, a civil society support infrastructure, particularly in the form of not-for-profit legal services, has been available, with some lawyers experienced in fighting apartheid-era removals. Moreover, legal aid and university clinics represent thousands of potential evictees in courts every day, both magistrates’ courts and the High Court. However, the way in which communities have legalised their struggles has taken different routes. In the cases discussed here, communities contacted lawyers directly, or High Court judges called on lawyers to represent defendant communities (as in Grootboom). But in only one case (Olivia Road) was a proactive litigation strategy developed from the outset, with a broader civil society coalition as part of a larger city-wide strategy. The seven chosen cases emerged from attempted forced evictions of urban settlements in Western Cape and Gauteng. They are set out in Table 7.3 and described in Section 4.1. The selection was motivated by trying to ensure a variance in background characteristics: different courts, different legal outcomes, and size of community. Moreover, the cases vary in the distribution of variables that are commonly or sometimes said to influence impact (e.g. type of lawyers, presence of social movement). During the course of the research it also became apparent that the degree of community organisation may be key. The remainder of the section examines each case, the respective impact, and concludes with a comparative analysis. 41

The exceptions are Wilson (2006, 2011a, 2011b) on the Mandelaville and Olivia Road cases and Tissington (2011a) on Modderklip. Berger (2008) briefly analyses the latter.

table 7.3. Characteristics of forced eviction (FE) cases

Case Name

Year of FE threat

Western Cape Grootboom

1999

Settlement/ Building Grootboom

Size of settlement at time of threat

900

Court Level

Judgment

CC

Won

208

Rudolph Bardale Thubelisha/Joe Slovo Gauteng Olivia Road Modderklip

2003 2005 2008

Valhalla Bardale Joe Slovo

50 5000 20000

HC HC CC

Won Settled Draw

2003 2002

Olivia Rd Gabon

400 40000

CC CC

Won Won

Ndawoyache

2007

Makause

10000

HC

Partly won Lost

Mandelaville a 1500

households.

Mandelaville

7500a

HC

Follow-up

Social Movement or External Support

Lawyers

Amicus

Initial Community Organisation

Private

Yes

Medium

No

No

LRC LRC LRC

No No Yes

Strong Medium Strong

Yes Yes Yes

Yes No Yes

CALS Private

Yes Yes

Weak Medium

Yes No

Yes No

Medium Weak

Private

No

Medium

No?

No

n.a.

Private

No

Medium

No

No

Remedy

Medium Strong n.a. n.a.

Strong

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4.2. Forced Evictions Case in Western Cape Rudolph (Valhalla) In 2002, the City of Cape Town brought an urgent application to evict and demolish the homes of almost fifty individuals who were living unlawfully in shacks in a public park in the suburb of Valhalla Park. By resorting to ‘self-help’, the City claimed the respondents had effectively ‘jumped the queue’ and obtained an unfair advantage over the thousands on the waiting list. The residents and a local civic action group, United Civic Front, opposed the eviction request and responded with a counterapplication. They claimed that the City had failed to deliver adequate housing in Valhalla Park and that the City’s housing policy did not satisfy the requirements in Grootboom (Valhalla Park United Civic Front Organisation and Environment and Geographical Science Department, 2007). All the residents faced desperate housing situations: they were mostly unemployed and could not afford to pay nominal rent. Many had also been on the housing waiting list for more than a decade. Justice Selikowitz dismissed the City’s urgent eviction application on the basis that it did not meet various pre-requisites under the PIE. There was no real and imminent danger of substantial injury or damage to any person or property from the occupation, the balance of hardship did not favour the granting of the order, and there were other effective remedies available to City. He also upheld the counterapplication, finding that the City had failed to implement a program to address the immediate situation of people in crisis situations. Holding that a declaratory order alone would not suffice, as the City had already failed to comply with Grootboom, a structural interdict was made. The City was ordered to deliver within four months a report stating the steps it had taken and would take to comply.42 The City subsequently delivered four reports, but the adequacy of steps taken was contested by the residents. Justice Selikowitz found that City had acknowledged, albeit inconsistently, what needed to be done but had failed to implement the necessary measures. In particular, there was no evidence of any program in place intended to deal with those in desperate circumstances, including the applicants. A declaratory order was issued to this effect.43 However, Selikowitz declined to grant a further structural interdict, as the occupants no longer faced eviction and the City had at least recognised the applicants’ rights and commenced action. The impacts of the decision mirrored that of the Grootboom case. Interviews with the City in February 2010 indicated that housing policy was partly reformed in the aftermath of the judgment. Moreover, no occupants of Valhalla Park were evicted. The residents took action to improve the condition of the settlement, and interviews in 2007 indicated a certain communal pride in this achievement but 42 43

City of Cape Town v Rudolph and Others 2004 (5) SA 39 (C). The judge noted that the applicants could, of course, always approach the court in the future to assert their rights if they were dissatisfied with the City’s compliance and could show an unjustifiable disregard for those rights.

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also frustration that they could not go further (Valhalla Park United Civic Front Organisation and Environment and Geographical Science Department, 2007). In 2008, the City budgeted for the upgrading of the settlement and had begun formal low-cost housing development in the area for the applicants. It is pertinent to note that the City in its founding papers in the case stated that this was not possible. Bardale By 2001, a rapidly growing community of some 1,410 families was living alongside the main railway line in Khayelitsha, just outside Cape Town. The landowner, MetroRail, required the land to expand the rail services. For two years, the occupants repeatedly requested that different government authorities make alternative and safer land available for them, often citing Grootboom. The City of Cape Town did attempt to evict them but a human chain was formed. Despite injuries from police rubber bullets, the demolition was halted – and the community attained a new impetus in developing its leadership structures.44 By early 2003, MetroRail had received no response from the City and instituted court proceedings for eviction under PIE. The judge ordered that the papers be served on the SAHRC and the Legal Resources Centre (LRC), which then represented the new community committee. The community joined the three spheres of government in the litigation, requiring them to file reports setting out their programme for providing for those in desperate need as per the Grootboom judgment.45 The matter was set down for hearing in the High Court in 2005 but was settled shortly before. The settlement agreement sparked a number of innovations in housing policy and practice. Land was purchased at Bardale Farm for the relocation, and using funding from the Emergency Housing Programme (EHP),46 the City provided a higher level of services for the settlement to fulfil the requirements of phase 1 of the Informal Settlement Programme. This included installation of communal water and sanitation infrastructure (shared amongst five sites), tarred key roads, a primary school, and eventually electrification for each site. A multi-purpose centre for phase 1 and a secondary school for phase 2 have since been built, and the layout plan has provision for clinics, further schools, and day care centres (LandFirst, 2010). The process has also benefitted a much larger group: some 5,947 sites have been planned, with 3,787 households having moved in by 2010 from eight other informal settlements. However, not enough attention has yet been paid to livelihoods in the planning of the relocation and the sufficiency of bus services. 44 45 46

Interview with community leadership, Bardale Settlement, Cape Town, February 2010. Interview with Steve Kahanovitz, Legal Resources Centre, Cape Town, June 2010. It should be noted that the first attempt to relocate in December 2007 was unsuccessful, as residents from the Mfuleni community (in which the Bardale Farm is located) were opposed to the relocation of outsiders onto land that they believed should be used for the housing needs of people in their own community. After negotiations, the move was achieved in April 2008, and the Mfuleni residents were included in a much more advanced phase of the programme.

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The beneficiaries were to receive full tenure under the agreement. However, as the formal registration process took time, beneficiaries initially received confirmation of their right to occupy their respective sites.47 There is also no municipal plan for the development of formal housing – with the City citing the existence of 220 other informal settlements in Cape Town. But residents hope that a People’s Housing Process could be developed in the near future. With the assistance of the LRC, they also worked with the City to create a new procedure: an official application form to physically extend a shack. This would protect residents from threats by municipal officers to destroy extra rooms built for relatives, children or others.48 One aspect to note is that the eviction struggle and litigation clearly catalysed the emergence of strong community leadership and cohesion. The leaders played key roles in the often difficult process of land allocation, planning, and upgrading negotiations. But splits have since emerged in the community representation structures, partly along the lines of the different sections of the relocation. The community’s lawyer, Kahanovitz (2011: 2), put a more positive gloss on the issue: “The problems they now bring us are not of a threatened community facing eviction, but of a new community setting up home, settling into the school and coming across ordinary problems like the shortage of teachers, absence of speedbumps, leaking water taps, etc.” Joe Slovo The threatened eviction of the Joe Slovo settlement attained more publicity. Located on the N2 Gateway near the airport, the authorities proposed a rollover upgrading for the approximately twenty thousand residents. It was ostensibly motivated by an attempt to solve Cape Town’s ever-growing housing crisis and to provide a national pilot for the Breaking New Ground strategy through mixed housing (70 per cent of the houses were to be allocated to the community). But it was soon viewed as a highly politicised prestige project for the football World Cup (Millstein, 2011). Key to the plan was a relocation of the inhabitants of the informal settlement to Delft further out of the city. Although residents supported upgrading, they were aware that the temporary location site at Delft was plagued by controversy and there was a risk that they may never return from it. Resistance to the project bloomed, and the national and provincial ministers of housing together with the contracted housing company petitioned the High Court for an eviction. Justice John Hlophe assented to the request, but the community appealed directly to the Constitutional Court. Five of the judges wrote separate judgments, but all dismissed the appeal. They found there had been no consent to the occupation and that the eviction was reasonable even

47 48

Beneficiaries who are not qualified to receive a subsidy can possibly continue to rent their site. The use of the form has been extended to another settlement by the LRC.

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in the absence of meaningful engagement with the community.49 However, their order for eviction was conditioned on adequate alternative accommodation being provided and the original allocation of 70 per cent being met. Detailed orders for the temporary accommodation site were set out, including individual engagement with households before their move and the provision of adequate accommodation, basic services, schools, and clinics. The decision has been heavily criticised but the eviction order was never executed. In early 2011, the Court rescinded it as the authorities had failed to meet the timetable and circumstances had changed.50 This was partly due to the appointment of a new national minister of housing, and political control of the Western Cape Provincial Government had passed from the ANC to the Democratic Alliance, which had always opposed the project. Moreover, the stringent conditions for alternative accommodation made relocation relatively costly, and negotiating a relocation with a well-mobilised community was daunting. As these political, economic, and legal stars aligned, the provincial government agreed to look again at upgrading on site. This was an option it had previously told the Court was impossible but that the applicants had sought all along. By late 2009 an in situ upgrade was agreed on, as well as the fact that all houses would be for Joe Slovo residents. Thus, despite the formal loss in the Constitutional Court, the community achieved its original demands (and more). Although the broader political changes clearly helped, the community demonstrated a high level of internal organisation and an ability to make multiple alliances with civil society organisations, experts, and bureaucrats who were unhappy with the approach of the project to leverage what gains they made through the legal process. Although it is still too early to make any demonstrative conclusions on impact, the extent of the community’s control over the land is perhaps best illustrated by its recent hosting of, and becoming, the leased site for the production of a major Hollywood film. 4.3. Forced Evictions Case in Gauteng Mandelaville Between 1976 and 2002, a piece of open land in the centre of Diepkloof, Soweto, was steadily occupied, with the bulk of the more than 1,500 households arriving after the lifting of influx controls in the mid-1980s (Wilson, 2006). In 1996, a ward councillor promised community members that they would be relocated to formal housing on another site, and in 2001 it was announced that the site would be the Sol Plaatje Project. The site was in reality an abandoned mining compound – and after 49

50

Residents of the Joe Slovo Community, Western Cape v Thubelisha Homes & Others 2010 (3) SA 454 (CC). See discussion of legal dimensions of case in Chapter 2 by Wilson and Dugard. This was despite the authorities’ request for it to be maintained notwithstanding the political decision to begin the slum upgrading process: Residents of Joe Slovo Community, Western Cape v Thubelisha Homes and Others (CCT 22/08) [2011] ZACC 8 (31 March 2011).

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a visit the community discovered a complete absence of formal housing, facilities, schools, and social services. It was fifteen kilometres from Soweto and in the opposite direction from industrial and domestic work. Concerns were communicated to the municipality, which simply responded by launching of a court application for eviction in December 2001. Legal representation was quickly secured, but Wilson (2006) argues that a number of procedural decisions, made at the judge’s discretion, essentially predetermined the outcome. The hearing was held on an urgent basis – which prevented proper preparation – despite the community’s long tenure at Diepkloof and the lack of imminent danger to community members or others. It was then continued on an urgent basis even though there was dissensus between the parties on the facts, such as the condition of the Sol Plaatje site, which should have triggered a postponement for a full hearing. And the judge heard a witness from a municipality but refused to hear one from the community. Throughout, the judge was described as acting in a “belligerent way to the community and its lawyers, and adhering to an excessive formalism when it suited the municipality” (Wilson, 2006: 554). The upshot was that the characterisation of the case by the municipality was accepted: it was acting in good faith to provide alternative accommodation, even though ‘certain elements’ were stirring up resistance and Diepkloof was plagued by criminality and land invasions. The judge concluded: I take judicial cognisance of the fact that there are many poor people in this country living in informal settlements that are not satisfactory. . . . It will serve no purpose whatsoever for people to resist the government which is trying to address the problem.51

The impact of the judgment was dramatic for the community. The residents were displaced and dumped at Sol Plaatje (Dlamini, 2007). For five years, they lived without electricity, clean water, and municipal services, with unemployment rising to 70 per cent (Donnelly, 2007). Stuart Wilson (2006: 556) also describes the negative symbolic impacts on the community: “Common to the consciousness of both groups was a sense that the law had failed to take account of their particular needs and vulnerabilities, and had objectified them as faceless and anonymous social nuisance.” In addition, law was associated with the brutal way in which the residents were evicted and left to fend for themselves. Nonetheless, in 2007, the promised development finally arrived. Since then, the Sol Plaatje settlement has been gradually transformed into a full-fledged town, with houses, roads, and services, with the support of the Johannesburg Social Housing Company. Interviewed residents have expressed relief and delight over the development (Donnelly, 2007). By the end of 2009, 2,259 units were built, with the first families moving in early 2007. 51

City of Johannesburg v Unlawful Occupiers of the Mandela Informal Settlement (WLD, Case No. 2001/25440), p. 5.

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Gabon (Modderklip Case) In comparison, the Gabon community’s struggle against eviction was more successful in terms of mobilisation. In May 2002, a small group (about four hundred people) moved onto the Modderklip farm, east of Johannesburg, after being evicted from a larger and overcrowded settlement by the State. By October 2003 the community had grown to between sixteen thousand to eighteen thousand (later forty thousand) persons and the landowner, Duvenage, was unsuccessful in attempting to remove the occupiers or in persuading the City Council to expropriate it. He then secured an eviction order from the Johannesburg High Court but was not able to enforce it: the sheriff required a deposit of R1.8 million for the costs of removing the residents. Duvenage subsequently sued the State in the Pretoria High Court for failing to respect his property rights. The community was not initially included but later joined with a number of NGOs as amici. In this case, the community’s lawyers were private, but Berger (2008: 89) notes: [This is] a interesting example of how a small firm – led by a larger-then-life, tenacious attorney – collaborated with residents of the informal settlement: the disciplined Gabon community. . . . Making use of an outdoor “community office” where meetings were held, the community made decisions on the basis of consensusbuilding and inclusivity.

The eventual judgment in the Constitutional Court found that the State cannot fulfil property rights by simply establishing formal mechanisms and institutions. Duvenage’s right to the rule of law was infringed, as he could not enforce the initial court order; and it was unreasonable of the State not to assist when it was impossible for Modderklip to evict such a large group of occupiers whose dire circumstances had to be taken into account. The Constitutional Court held that the authorities should compensate Modderklip for the unlawful occupation and pay rent for the occupiers, the occupation of which would continue until the occupiers obtained suitable alternative accommodation. Although the judgment effectively halted the eviction order against the Gabon community, the requirement to pay ongoing compensation provided a ‘catalyst’ for the municipality to address the community’s needs (Liebenberg, 2010: 442). The Department of Housing developed a plan, and in 2006, work began on a new township, Chief Albert Luthuli Extension 6. It would provide 7,278 ‘housing opportunities’ in a mixed-housing environment to Gabon residents and those from neighbouring settlements and on the general waiting list (Tissington, 2011a). During that time, the community managed to extract extra concessions, “basic services – including fresh water and weekly refuse removal” and use of “a school and clinic in the nearby formal township of Daveyton” (Berger, 2008: 76–77). Although residents in interviews in June 2010 noted the continuing lack of sanitation and were critical of attempts to introduce chemical toilets.

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The development of permanent housing proceeded at a slightly faster pace than in Grootboom – possibly because of the compensation requirement – but it has been dogged by complications.52 A first phase of relocations to the new township occurred in 2009. However, the remaining community claimed that strangers to Gabon moved in the night before to secure the allocations – possibly up to 70 per cent of the first phase. Those carrying relocation papers – but who had been denied a house – faced sudden eviction. On 11 May 2010, the Red Ants and Metro police moved in to destroy the shacks of those who “had moved”. Sixty-nine families (350 persons) were evicted and 2 persons were shot with live ammunition. The current community leadership puts much blame on the older leadership – who were part of this first phase of relocation – for collaborating corruptly with municipal officials. There were also reports that some houses in the township were being sold on the private market by council officials. A new struggle has therefore emerged for the community, which lamented the lack of information, lack of responsiveness from the municipality, and inability to obtain media coverage despite promises from journalists. There is some hope that the community will be reallocated soon, but renewed litigation is emerging as a possible response. Ndawoyache (Makause Settlement) Makause settlement lies halfway between Gabon and Johannesburg in the East Rand, and its ten thousand residents live on land that is mostly owned by mining companies, which have ceased operations. In 2006, a woman fell down an old mine opening, which triggered a plan by the municipality to relocate the community using funds from the Emergency Housing Programme on the grounds of safety – although recent evidence suggests that the municipality may have been encouraged by a developer who bought one of the plots.53 In January 2007, the municipality vaguely announced its relocation plan, but some residents realised that a forced eviction was in the offing. A resident council was formed quickly (Makause Community Development Forum), and on 2 February 2007, when an eviction notice was issued, the community responded with a request to the court for an urgent injunction. On 11 February it obtained an order, but it was relatively weak: eviction was permitted if a resident consented in front of third-party observer police after an interview.54 The municipality and police subsequently took a bundle of pre-signed eviction consent forms that were stamped in front of a high-ranking police officer.55 The forms were distributed to people under the pretence that they were food vouchers. The following day, members of the community marched to the council to present a memorandum but there was no official response. Instead, evictions began to gather 52

53 54 55

Based on interviews with Gabon residents, June 2010. Attempts to interview municipal officials have been unsuccessful. See Letter from Rose Acres to MEC for Local Government and Housing, February 2011. Mphambo Ndawoyache & Others v Ekurhuleni Metropolitan & MEC Housing. Interview with General Moyo, Community Development Forum, Makause Settlement, June 2010.

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pace with the hiring. Residents were moved to the resettlement site – Tsakane Extension 10 – forty kilometres away from Makause (and their livelihoods), where plastic tents were provided on small plots. However, resistance grew as stories came back from Tsakane. Residents began reading the original court order to security officials and using physical force to resist dispossession. On 19 May 2007, they marched and delivered a new memorandum to the municipality, which gave them fourteen days’ notice to reverse the evictions or face both resistance and new legal action (with a new lawyer). Six days later, a Mail & Guardian journalist published an article about the struggle that took the municipality by surprise. The municipality relented and said that residents could return if they wished. Of the 3,368 residents who had been evicted by that stage, two-thirds returned permanently, and others reside at Tsakane only on the weekends. In the past three years, the Community Development Forum (CDF) at Makause has begun to take steps to improve living conditions and secure tenure. Although this municipality has been heavily resistant to any informal settlement upgrading (ostensibly on the structural grounds of dolomite and mining holes), the community has been able to advance in some areas. They negotiated better access to water and electricity (although the municipality provided only half the water points and masts agreed on), created a community centre (mostly for local dispute resolution), and commenced negotiations for direct purchase of the land from the owners. The CDF has a relatively broad-based leadership across the settlement, with a high representation of women: according to the chairperson, “Women became more involved after the eviction[;] it was seen as man’s job as having to fight before that.”56 The community has also formed alliances with other settlements, NGOs, and increasingly lawyers as it became involved in land negotiations.57 Although the court order was weak, the community leadership credited it with giving them a basic level of rights to secure tenure.58 It is clear that the eviction itself was the key catalyst for the mobilisation of the community, and the community was aided some by the emergence of some strong leaders such as General Moyo. But the litigation appears to have strengthened rather than diminished the struggle. The community viewed the weak judgment as primarily the fault of the lawyer (who was quickly dismissed), and the community planned to secure a new one should it have to return to court. Moreover, what is noticeable is that community demands were increasingly framed in constitutional rights and legal terms. For instance, the May memorandum reads, “This is against the law. . . . [I]t is illegal for Ekurhuleni Housing to evict us without a court order,” and “We are asking for our rights to be implemented in fairness” and in “accordance with the Bill of Rights in our Constitution.” 56 57 58

Ibid. Interview with General Moyo, Community Development Forum, Makause Settlement, March 2011. Interview with members of the Community Development Forum, Makause Settlement, March 2010.

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Olivia Road The communities in the Olivia Road case were occupants of two buildings that came under eviction threat from the Inner City Regeneration Strategy, which sought to stimulate inner-city private-sector investment (Wilson, 2011a). By 2006, it was estimated that ten thousand of the sixty-seven thousand residents in such ‘bad buildings’ had been evicted, often without notice and by force, under apartheid-era health and safety laws and regulations (Wilson, 2011b). Residents usually found themselves homeless or living in settlements on the periphery of the city (COHRE, 2005). In 2003 and 2004, with the assistance of the Inner-City Resource Centre – a residents’ rights organisation – and the Centre of Applied Legal Studies (CALS), occupants were able to convince judges in three urgent cases brought by the municipality that eviction orders should not be granted.59 In 2005, despite these successes and a growing public debate and criticism by civil society organisations, the eviction campaign accelerated. However, when the City sought to remove residents from Olivia Road and Joel Street in Berea, the organisations and CALS lawyers developed a more strategic response. A full defence was mobilised, together with a counter-claim by the communities, on behalf of all persons living in such buildings, that the municipalities’ policy was unconstitutional. The High Court agreed and ordered a halt to the evictions until alternative accommodation was provided. A year later, the Supreme Court of Appeal upheld the appeal of the municipality but ordered the City to provide alternative shelter (consistent with the post-Grootboom Housing Code) to those who need it upon eviction. The occupants appealed, but after hearing argument and before handing down its decision, the Constitutional Court ordered the parties to engage in a meaningful dialogue to see whether they could agree on a mutual solution. In November 2007, the parties reached a partial agreement. The occupiers were to be provided with affordable and safe alternative accommodation in the inner city of Johannesburg, secure against eviction, and several policy issues were referred back to the Constitutional Court. The Constitutional Court addressed only some of them. Importantly, it found that the City must engage meaningfully with occupants if an eviction is likely to result in homelessness and ongoing occupation can be considered illegal only after a court has ordered an eviction. This precedent has subsequently proved critical in other cases. The impact of this case for the community has been significant: 450 residents were successfully temporarily relocated within City-owned ‘communal’ housing in one year. An empty building was partly refurbished, with one room per family and shared cooking and sanitation facilities. The rent is subsidised, and basic services have been provided. 59

Occupiers of Junel House & Others v City of Johannesburg (2003); Chancellor House (2003) and Park Court (2004). See further discussion of the case in Chapter 2, by Wilson and Dugard, and Chapter 4, by Bentley and Calland, in this volume.

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However, tensions have emerged over the lack of thoroughgoing maintenance and the lack of engagement on a permanent housing solution. This is partly because the case has had only a limited effect, so far, on Johannesburg’s broader housing strategy. During the Constitutional Court hearings, the City demonstrated at least a change of heart and adopted the Inner City Regeneration Charter, which would provide ‘inclusionary housing’ in the inner city. However, there has been little progress in implementation. Instead, what has emerged is a new eviction strategy driven by owners (often new owners) of the buildings. As Stuart Wilson commented in an interview, the Olivia Road decision compressed the eviction “balloon” in one place but “exposed” it in another.60 This has required a new round of strategic litigation against private owners, which has been so far successful. In Blue Moonlight, the Supreme Court of Appeal drew on the Constitutional Court’s decisions in Olivia Road (and Modderklip) to limit the ability of private owners to carry out evictions and require the municipality to provide support for alternative accommodation.61 One may therefore need to wait for the municipality to exhaust all its eviction options before it begins to effectively address inner-city housing issues for lowincome residents.62 4.4. Synthesising the Case Outcomes In drawing together what we know about the different cases – largely material and political impacts – we can plot them in binary form. Table 7.4 lists five types of direct impacts for communities together with two broader indirect impacts. A score of 1 is given if there was a substantial change in these dependent variables after litigation and 0 if there was not. The results suggest that, in the majority of cases, litigation has helped prevent evictions, immediately improve basic services (although to varying degrees), strengthened community organisation, and forced local municipalities to innovate their policies. In the cases that commenced more than five years ago, permanent housing has been achieved, and in each case the litigation appears to have played a role in accelerating the timetable. However, the impact is more inconsistent for the other factors, particularly the securing of permanent or formal housing in a shorter period. The last column of Table 7.4 also gives the average score across all factors. If we use Grootboom as a yardstick, it is notable that these seven impacts – if weighted equally – were greater in some of the subsequent cases, such as Gabon, Olivia Road, and Joe Slovo. However, the Makause and Mandelaville cases have had much less impact, particularly Mandelaville. 60 61 62

Interview with Stuart Wilson, SERI, Johannesburg, April 2011. See supra n. 30. Whether this is inevitable is obviously an open question. The state’s failure to provide low-cost rental housing is now readily apparent and could soon result in a crisis as private landlords refuse to wait any longer before enforcing evictions orders. The return of the conflict to the courts is more likely in the short-term than a policy solution.

table 7.4. Community and systemic impacts of eight ‘evictions’ cases

Case 219

Grootboom Valhalla Modderklip Olivia Road Bardale Joe Slovo Makause Mandelaville

Not Evicted or Relocated to Lower Standard

Improved Services or Emergency Housing in Short Run

Formal Housing in 5 Years

Formal Housing in 10 Years

Improved Community Organisation

Policy Change or Innovation

Legal Precedent Used

Average

88 %

63 %

50 %

100 %

69 %

75 %

63 %

65 %

1 1 1 1 1 1 1 0

1 1 1 1 1 0 0 0

0 1 1 0,5 1 0,5 0 0

1 1 1 n.a 1 n.a n.a. 1

0 1 1 1 0,5 1 1 0

1 1 1 1 1 1 0 0

1 1 1 1 0 1 0 0

0.71 0.64 1 0.92 0.71 0.83 0.25 0.14

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What is not captured in this summary is the collective contribution of all these cases and others to the decrease in evictions and demolitions that many interviewees pointed towards. An interview with Abahlali baseMjondolo in Durban revealed that defensive litigation was having a similar impact in KwaZulu-Natal – litigation and resistance were tactically combined with considerable success.63 Wilson has also noted that the number of inner-city evictions was dramatically reduced after the Olivia Road case.64 As with Grootboom, assessing the symbolic impact of this litigation is challenging. For many respondents, it tends to be highly correlated with perception of impact at any time. It is also possible that symbolic impact is driven through the material change: for example, forced innovation due to court orders could transform some of the political and technocratic discourse. The recent tactical use of both the ANC and the Democratic Alliance of courts in the ‘open toilets’ case suggests a certain legitimation amongst the political elite of rights discourse and litigation for those living in informal settlements.65 If we also recall the characteristics of these communities, it is notable that the degree of community organisation and support are the most highly correlated with the level of impact. Community organisations that possessed strong leadership or cohesion, or achieved this through the litigation process and managed to build alliances with social movements and/or professional or grassroots NGOs, were more likely to achieve higher impacts. Enhanced effects were also leveraged in cases involving specialised public-interest litigation NGOs (such as the LRC and CALS), but this is not always the case (e.g. Modderklip). 5. CONCLUSION

This chapter set out to examine the impact and lessons learned from urban communities living in informal settlements that turned to courts in the face of the eviction. The seminal case of Grootboom reveals that a degree of impact was achieved at the community level in preventing an eviction, improving basic services (to a limited extent), and accelerating the provision of permanent housing. It also forced authorities to innovate their policies (particularly on emergency housing) and to develop the jurisprudential foundation for socio-economic rights litigation, and it 63 64 65

Interview with S’bu Zikode, President of Abahlali baseMjondolo, 31 May 2010. Interview with Stuart Wilson, SERI, Johannesburg, April 2011. Beja and Others v Premier of the Western Cape and Others [2011] 3 All SA 401 (WCC)) [2011] ZAWCHC 97, 21332/10 (29 April 2011). The ANC Youth League launched a legal challenge against the persistence of unenclosed toilets in an informal settlement, Khayelitsha, in the City of Cape Town which is controlled by the national opposition party, the Democratic Alliance. Justice Erasmus issued a strong judgment in the Western Cape case upholding almost all claims of the applicants and significantly pushing the government policy further than it currently existed. The Court decided that one toilet per five families during a slum upgrading process could not be justified under existing legislation and that unenclosed toilets provided on this basis violated constitutional safeguards.

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helped slow or eliminate a pattern of large-scale evictions. In the other seven similar cases studied, a higher level of impact was sometimes achieved, particularly in relation to political impact, in the provision of temporary and permanent housing. Of course, if one has idealist expectations or uses the early results of the TAC case as a benchmark, the results seem less impressive. But if the baseline is the community´s situation on the eve of eviction, one can be more optimistic. An interview with the S’bu Zikode, president of Abahlali baseMjondolo, suggests that these experiences are not sui generis: The Durban municipality is using new tactics of divide and rule by selectively relocating some members to RDP housing and using land invasions to register people but then demolish or relocate, or targeting just parts of settlements. . . . However, the communities have earned respect from using the courts in five recent cases – telling the municipality or security guards to speak to their lawyers! But they have starting to couple this with much more with political action, pressure, marches etc. Lawyers are expensive and are only a last resort so we are trying to strengthen the political strategies. The Constitutional Court did have a major impact, more than expected, and has been a very important mobilising tool. It has helped people gain respect: they were working with the law, not just the lawyers, and challenging it.66

In sifting through the various casual factors behind patterns of impact, two stand out, and neither concerns victory in the courts. The first is bureaucratic and legislative contingency. The enforcement or leveraging of the judgment quickly slowed once applicants came in contact with the core of the ‘housing system’. Its dysfunction and, to a lesser extent, economic limitations soon became apparent, particularly in relation to the provision of permanent housing and improved services. The second is political – both ‘power over’ and ‘power with’. The degree of internal community cohesion and the extent of external alliances appear critical. To this can be added the party politics of local government (particularly in the Grootboom and Joe Slovo cases) and the lottery of the allocation of High Court judges to a case (with their different political temperaments). These key themes suggest a number of ways forward for improving the effectiveness of housing rights strategies when courts are implicated or available. The first is the development of a responsive model of litigation (and broader advocacy). Social movements, experts, lawyers, and NGOs need to be ready to work with communities to ‘snatch victory from the jaws of defeat’ in eviction cases. Indeed, the model developed in the Olivia Road litigation can be considered partially illustrative: early scattered and tactical legal representation later developed into city-wide strategic litigation. Another is the case taken against the KwaZulu-Natal slum clearance law (see the discussion in chapter 2, by Wilson and Dugard, and chapter 4, by Madlingozi), where this broad responsive litigation model was used to great effect 66

Interview with S’bu Zikode, President of Abahlali baseMjondolo, 31 May 2010.

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by Abahlali baseMjondolo in alliance with experts and NGOs.67 Moreover, it is important to stress that such a responsive model could begin with existing eviction cases but also with communities who need support in the post-judgment phase (see Dugard and Langford, 2011). Of course, courts could be pushed to play a greater role in providing stronger and supervisory remedies where the authorities appear to be less cooperative or the community lacks broader support. As part of this, one could wish for a broad and empowered national housing movement: a movement that stimulates broader transformation in the housing sector, leverages gains achieved in litigation, and even helps obviate the need for lengthy and expensive litigation in the first place. However, such a movement does not exist. The closest is ABM which now covers a number of provinces. It has been able to leverage significant gains from its defeat of the Slums Act in the Constitutional Court (see analysis by Madlingozi in chapter 4). But one should guard against excessive optimism in the housing sector. Even with the outbreak of local protest across the entire country, which has increasingly defined local and national elections, movement building and the garnering of sustained public support is challenging. Even blossoming local social movements and NGOs face multiple challenges in seeking to work with the thousand-plus informal settlements in South Africa. Transforming the housing sector from the bottom is likely to be a task for decades, not years. Second, the case studies do reveal the role that a rights framework can play in shifting the attention of the top-down and State-centric housing model to the voices and demands from the bottom. This suggests that the model needs to be made more community-centric, which can be partly achieved through a rights-based approach. For example, unlike South Africa’s People’s Housing Process or Informal Settlement Upgrading Programme, Brazilian legislation allows slum dwellers to initiate slum-upgrading processes with the backing of administrative courts. Thailand has established an independent housing agency that works with communities to upgrade housing according to a city-wide plan and matching funds. In their early years some Scandinavian social welfare States developed and funded aggressive social housing agencies. Fusing rights-based strategies with the emancipatory potential of community struggle and the flexible resources of State may be a more hopeful way forward.

references Amnesty International (2009), ‘South Africa: Failure to conduct impartial investigation into Kennedy Road violence is leading to further human rights abuses’ (Public Document AI Index: AFR 53/011/2009, 16 December). Barrow, Greg (2000), ‘South African squatters win battle’, BBC News Online, 4 October, available at http://news.bbc.co.uk/2/hi/africa/956507.stm. Berger, John (2008), ‘Litigating for social justice in post-apartheid South Africa: A focus on health and education’, in Varun Gauri and Daniel Brinks (eds.), Courting social justice: 67

Abahlali baseMjondolo v Premier of KwaZulu-Natal Province and Others 2010 (2) BCLR 99 (CC).

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Judicial enforcement of social and economic rights in the developing world (Cambridge: Cambridge University Press), pp. 38–99. Bilchitz, David (2007), Poverty and fundamental rights: The justification and enforcement of socio-economic rights (Oxford: Oxford University Press). COHRE (1998), Violations of human rights 1994–1997 (Geneva: COHRE). (ed.) (2005), Any room for the poor? Forced evictions in Johannesburg, South Africa (Geneva: COHRE). Dlamini, Ndaba (2007), ‘Times are changing at Sol Plaatje’ (official website of the City of Johannesburg), available at http://www.joburg.org.za/index.php?option=com_content& task=view&id=1741&Itemid=198. Donnelly, Lynley (2007), ‘Sol Plaatje gets a facelift’, Mail & Guardian, 4 September. Dugard, Jackie, and Malcolm Langford (2011), ‘Art or science? Synthesising lessons from public interest litigation and the dangers of legal determinism’, South African Journal on Human Rights, Vol. 27, No. 1, pp. 39–64. Flanagan, Brian (2008), ‘Judicial review: Can minority protection justify a constitutionalisation of the economy?’, in Penelope Andrews and Susan Bazilli (eds.), Law and rights: Global perspectives on constitutionalism and governance (Lake Mary, FL: Vandeplas Publishing), pp. 65–78. Friedman, Steven (2000), ‘Public policy in the hands of the courts’, Mail & Guardian, 13 October. Gaventa, John (2006), ‘Finding the spaces for change: A power analysis’, IDS Bulletin, Vol. 37, No. 6, pp. 26–33. GOSA (1994), White paper: A new housing policy and strategy for South Africa on housing. (Pretoria: National Department of Housing). (2004), South Africa’s progress report to the UN Commission on Sustainable Development: Human settlements (Pretoria: GOSA). Hirschl, Ran (2004), Towards juristocracy: The origins and consequences of the new constitutionalism (Cambridge, MA: Harvard University Press). Hirschl, Ran, and Evan Rosevear (2012), ‘Constitutional law meets comparative politics: Socio-economic rights and political realities’, in Tom Campbell, K. D. Ewing, and Adam Tomkins (eds.), The legal protection of human rights: Sceptical essays (Oxford: Oxford University Press), pp. 207–228. Huchzermeyer, Marie (2003), ‘Housing rights in South Africa: Invasions, evictions, the media, and the courts in the cases of Grootboom, Alexandra, and Bredell’, Urban Forum, Vol. 14, No. 1, pp. 80–107. (2009), ‘Constitutional Court misunderstands Chapter 13 of the Housing Code’, Abahlali, 19 November, available at http://www.abahlali.org/node/6074. (2010), ‘Pounding at the tip of the iceberg: The dominant politics of informal settlements eradication’, Politikon, Vol. 37, No.1, pp. 129–48. Human, Caspar (2006), ‘The human right to water in Africa: The South African example’, in Eibe Riedel and Peter Rothen (eds.), The human right to water (Berlin: Berliner WissenschaftsVerlag), pp. 83–93. Hunter, Mark (2010), ‘The difference that place makes: Some brief notes on the economic implications of moving from an informal settlement to a transit camp’ (Case study, Department of Geography, University of Toronto). Jain, Hirsh (2010), ‘Community protests in South Africa: Trends, analysis and explanations’ (Local Government Working Paper No. 1, Cape Town, Community Law Centre). Joubert, Pearlie (2008), ‘Grootboom dies homeless and penniless’, Mail & Guardian, 8 August. Kahanovitz, Steve (2011), ‘SARCC: Khayelitsha Rail residents: Annual internal report’ (Cape Town: Legal Resources Centre).

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LandFirst (2010), Towards managed land settlement: A review of 5 South African case studies (LandFirst, Urban LandMark, Afesis-corplan, and NPM Geomatics, Johannesburg). Langford, Malcolm (ed.) (2003), Litigating Economic, Social and Cultural Rights (Geneva: COHRE). Legal Resources Centre (2002), Annual report for the Period 1 April 2000 to 31 March 2001 (Johannesburg: Legal Resources Centre and Legal Resources Trust). Lemanski, Charlotte, and Sophie Oldfield (2009), ‘The parallel claims of gated communities and land invasions in a southern city: Polarised state responses’, Environment and Planning, Vol. 41, No. 3, pp. 634–48. Liebenberg, Sandra (2003), ‘Interview’, in Malcolm Langford (ed.), Litigating economic, social and cultural rights: Achievements, challenges and strategies (Geneva: Centre on Housing Rights and Evictions), pp. 100–2. (2010), Socio-economic rights: Adjudication under a transformative constitution (Claremont: Juta). Lodge, Tom (2003), Politics in South Africa: From Mandela to Mbeki (Cape Town: David Philip). Marcus, Gilbert, and Stephen Budlender (2008), A strategic evaluation of public interest litigation in South Africa (Boston: Atlantic Trust). Mbazira, Christopher (2008), ‘Non-implementation of court orders in socio-economic rights litigation in South Africa’, ESR Review, Vol. 9, No. 4, pp. 2–7. Millstein, Marianne (2011), ‘Urban governance transformations and the first two years of the N2 Gateway project in Cape Town’, Transformation, Vol. 76, pp. 22–43. Moladi (2010), ‘Squatter sites rise – Informal settlements double’, Human Settlements South Africa Forum, 2 August, http://human-settlements.blogspot.com/2010/08/squattersites-rise-informal.html. Muralidhar, S. (2008), ‘India: The expectations and challenges of judicial enforcement of social rights’, in Malcolm Langford (ed.), Social rights jurisprudence: Emerging trends in international and comparative law (Cambridge: Cambridge University Press), pp. 102– 24. Nicholson, Zara (2008a), ‘Foreign shopkeepers: Tensions run high’, IOL News, 31 August. (2008b), ‘Hundreds say farewell to housing heroine’, IOL News, 10 August, available at http://www.iol.co.za/news/south-africa/hundreds-say-farewell-to-housing-heroine-1. 411865. Pieterse, Marius (2007), ‘Eating socioeconomic rights: The usefulness of rights talk in alleviating social hardship revisited’, Human Rights Quarterly, Vol. 29, No. 3, pp. 796–822. Pillay, Karisha (2002a), ‘Implementation of Grootboom: Implications for the enforcement of socio-economic rights’, Law, Democracy and Development, Vol. 6, pp. 255–77. (2002b), ‘Implementing Grootboom: Supervision needed’, ESR Review, Vol. 3, No. 1, pp. 13–14. Pithouse, Richard (2009), ‘A progressive policy without progressive politics: Lessons from the failure to implement “Breaking New Ground”’, Town Planning Journal, Vol. 54, pp. 1–14. Rodr´ıguez Garavito, C´esar (2011), Un pa´ıs inconstitucional (Bogot´a: Siglo del Hombre Editores). Royston, Lauren (1998), ‘The struggle for access to the city in the Witwatersrand region’, in Antonio Azuela, Emilio Duhau, and Enrique Ortiz (eds.), Eviction and the right to housing (Ottawa: International Development Research Centre). Sloth-Nielsen, Julia (2001), ‘The child’s right to social services, the right to social security, and primary prevention of child abuse: Some conclusions in the aftermath of Grootboom’, South African Journal of Human Rights, Vol. 17, No. 2, pp. 210–31.

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Social Housing Foundation and Urban-LandMark (2010), An investigation into an apparent increase in evictions from private rental housing (Pretoria: Social Housing Foundation and Urban Landmark). Soeker, Ardiel, and Kailash Bhana (2010), ‘Hangberg: A question of land denied’, Pambazuka News, 6 June. Tissington, Kate (2011a), ‘Demolishing development at Gabon Informal Settlement: Public interest litigation beyond Modderklipp’, South African Journal of Human Rights, Vol. 27, No. 3, pp. 192–205. (2011b), A resource guide to housing in South Africa: Legislation, policy, programmes and practice (Johannesburg: SERI). Unicity Commission (2003), Building a unified city for the 21st century (Cape Town: Unicity Commission). Valhalla Park United Civic Front Organisation and Environment and Geographical Science Department (2007), Booklet, University of Cape Town. Van Onselen, Charles (2001), New Babylon, new Nineveh: Everyday life on the Witwatersrand 1886–1914, 2nd ed. (Johannesburg: Jonathan Ball). Van Wyk, J. (2007), ‘The complexities of providing emergency housing assistance in South Africa’, TSAR, Vol. 1, pp. 35–55. Wilson, Bruce (2009), ‘Rights Revolutions in Unlikely Places: Costa Rica and Colombia’ Journal of Politics in Latin America, Vol. 1, No. 2, pp. 59–85. Wilson, Stuart (2006), ‘Judicial enforcement of the right to protection from arbitrary eviction: Lessons from Mandelaville’, South African Journal on Human Rights, Vol. 22, No. 4, pp. 535–62. (2011a), ‘Litigating housing rights in Johannesburg’s inner city’, South African Journal on Human Rights, Vol. 27, No. 3, pp. 127–51. (2011b), ‘Planning for inclusion in South Africa: The state’s duty to prevent homelessness and the potential of meaningful engagement’, Urban Forum, Vol. 22, No. 3, pp. 265–82.

8 Health Rights Politics, Places, and the Need for ‘Sites for Rights’ Peris Jones* and Nyasha Chingore**

1. INTRODUCTION

Since 1994, the official leitmotif of South Africa’s post-apartheid development path has been one of transformation of the State and deployment of resources to give all citizens equal access to rights and to provide services of equality to all (Government of South Africa, 2008). Tackling deeply entrenched patterns of colonial- and apartheid-derived inequality in access and fragmentation in governance of services has been a particularly acute challenge. South Africa has one of the most progressive constitutions in the world, which specifically recognises the right to access health care, including reproductive health care. It imposes an obligation on the State to take reasonable legislative and other measures, within available resources, to progressively realise this and other social and economic rights.1 Health has been the subject of many notable legislative and policy interventions over the past sixteen years. Some of the major achievements of post-apartheid governments include interventions such as the National Health Act 61 of 2003, which gives women and children access to free health-care services in the public sector. It also gives special protection to people needing emergency treatment by outlawing the refusal to provide such treatment. Another example is the Choice on Termination of Pregnancy Act 92 of 1996, which has transformed access to abortion services. The * Peris Jones: Senior Researcher at the Norwegian Institute of Urban and Regional Research (NIBR), Oslo. ** Nyasha Chingore: Project Manager and Researcher at the Centre for the Study of AIDS, University of Pretoria. 1 Sections 27(1)(a) and 27(2). The Constitution also recognises other health-related rights, such as the right to bodily and psychological integrity, the right to an environment that is not harmful to health or well-being, and the right to emergency medical treatment (Section 27(3)). It imposes duty on the State to respect, protect, promote, and fulfil the rights in the Bill of Rights (Section 7(2)). The phrase ‘sites for rights’ in the title of the chapter is borrowed from Stuttaford, Lewando Hundt, and Vostanis (2009). Author contact information: Peris Jones ([email protected]), Nyasha Chingore ([email protected]).

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government has also taken steps to ensure that health-care services are affordable. The Medical Schemes Act 131 of 1998 attempts to ensure affordability of health-care services, whereas the Pharmacy Amendment Act 88 of 1997 includes measures to encourage the setting up of pharmacies in rural and other underserved areas. The Medicines and Related Substances Control Act 90 of 1997 was passed with the aim of making medicines affordable through price controls, parallel importation, promotion of generic substitution, and the prohibition of incentives by drug companies. The National Patients Rights Charter aims at improving the quality of health care.2 Other significant achievements since 1994 include the expansion of the primary health-care infrastructure, with a doubling of government spending by the late 2000s (Lancet, 2009). Indeed, primary health care has been a particular mainstay of post-apartheid health policy. A massive antiretroviral treatment roll-out programme has also been a considerable achievement, albeit one taking place in the wake of protracted conflict between civil society and government. Considerable progress has been made in terms of providing access to antenatal care (94 per cent coverage) and skilled attendance at birth (84 per cent); prevention of mother-to-child transmission (PMTCT) is widely available (90 per cent of facilities), with a 66 per cent uptake in 2007; and a large segment of the population has access to an essential package of interventions within an hour of a health facility (80 per cent) (Lancet, 2009). Despite these impressive achievements the paradox – inspite of these supportive policies with moderate spending on health having been introduced – health outcomes have visibly worsened (Brand and Russell, 2002; Ngwena and Cook, 2005; Ngwena, 2007; Jones and Stokke, 2005; Lancet, 2009). Since 1994, life expectancy had fallen by almost twenty years – mainly because of the rise in HIV-related mortality; child mortality rates have also risen, and no significant changes can be claimed in reducing maternal deaths (Lancet, 2009). There are other communicable epidemics, especially tuberculosis (TB), including multi- and extreme-drug-resistant TB(s) causing particular challenges to health. A so-called new epidemic is also emerging in terms of non-communicable diseases, such as diabetes, cancers, kidney disease, and mental illness, not to mention a high level of violence and injury-related causes of death (the second leading cause in South Africa) (Lancet, 2009). Notwithstanding the increased maternal mortality from AIDS, the fourth ‘Saving Mothers’ report (Pattinson, 2008) found that almost 60 per cent of maternal deaths were avoidable. Of those, 55 per cent were attributed to health systems failures. The ‘Saving Babies’ report for the same period (2005–2007) concluded that the quality of perinatal care in district hospitals was “particularly bad”, with more than a third of perinatal deaths

2

Other significant laws in the health sector introduced in the past fifteen years include the Nursing Amendment Act 1995; the Communicable Diseases Act 1997; the Medical, Dental, and Supplementary Health Service Professions Amendment Acts of 1995, 1997, and 1998; the Sterilisation Act 1998; the Tobacco Products Control Amendment Act 1999; the National Health Laboratory Service Act 2000; the Mental Health Care Act 2002; and the Traditional Health Practitioners Act 2004.

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due to avoidable health systems failures.3 It is also important to note that the shift in focus to primary care has taken funding out of public-sector hospitals, with fewer nurses, vacancies left unfilled, and a general deterioration of the quality of services available. For some observers, these structural factors, together with shifts in the governance of hospitals, have served to render them “highly stressed institutions” (von Holdt and Murphy, 2007: 315). More generally across the entire health service, public spending has been characterised as “stagnant” since 1994, whereas private sector spending has increased substantially (Lancet, 2009). Indeed, a major issue is how to reconcile a system of total health spending that is heavily skewed towards the private sector. Fourteen per cent of South Africans have access to the private sector, which constitutes more than 60 per cent of total spending on health. The overwhelming majority of the population is therefore dependent on the public-sector health service, which receives approximately 10.8 per cent of total government spending (Lancet, 2009), a proportion well below the 15 per cent target set by the Abuja Declaration of the Organisation of African Unity and African Commission (2001). The paradox indeed speaks to a more general challenge to human rights in South Africa and, more broadly, to implementation, which is the substantive issue of this chapter. The reasons for the uneven and non-implementation of human rights are undoubtedly as varied as the conditions that determine good health. A major question for this chapter and the book as a whole is, how do civic actors – and in the case study here, particularly local and peripheral ones in materially constrained contexts – use the discursive and strategic resource of rights-based approaches? The chapter analyses the experience of one particular human rights intervention premised on the human right to health. It does so not only to assess its role and impact but also to illustrate the challenges involved in local interpretation and implementation of the rights-based approach. A case study is used to highlight the complex variety of ‘local worlds’ confronting human rights approaches. If both health and rights can be considered sub-sets of social, economic, cultural, and political relations, then some awareness of the importance of that broader context is required and the implications must be fed into the (re)framing of rights-based approaches. Section 2 provides the theoretical and empirical overview that situates the right to health, particularly concerning access to HIV/AIDS treatment, in global, national, and local contexts. It foregrounds the issue of the precise constellation of 3

Health issues during the Mbeki presidency were deeply politicised. The dismissal of the deputy minister of health, Madlala-Routledge, also brought to the fore the issue of poor-quality health care. Madlala-Routledge visited a State hospital in the Eastern Cape after hearing reports on an extremely high level of infant mortality – two thousand stillbirths in fourteen years – in the maternity ward. Apparently shocked at the poor standards of care she saw at the Frere hospital, with chronic shortages, very high staff turnover, and lack of equipment, Madlala-Routledge shared her alarm with the national press: “It really shows what is a national emergency in my view, particularly with infant mortality seen as an important human development indicator”; Frere, ‘A national emergency,’ Daily Dispatch, http://www.dispatch.co.za/specialreports/article.aspx?id=167088. For appearing critical of her own government on this issue, especially concerning HIV/AIDS, she was dismissed by former President Mbeki.

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obstacles to the implementation of human rights. Advancing rights encounters, for example, specific legal, policy, and political challenges. In addition, socio-economic conditions and socio-cultural perceptions also pose fundamental issues for the relevancy of rights, and therefore in defining appropriate strategies. Section 3 discusses the case study: the Tswelopele project is in Temba Hammanskraal, a peri-urban area in Tshwane Municipality, situated approximately forty kilometres north of Pretoria. This is a community-based para-legal intervention of the AIDS and Human Rights Research Unit (a collaboration between the Centre for the Study of AIDS [CSA] and the Centre for Human Rights [CHR] at the University of Pretoria). The goal of the project has been to ensure that the local communities take ownership of human rights and are able to access and enforce their rights. In its initial conceptualisation, the project had a specific focus on challenging HIV-related stigma and discrimination. It was to do so by using the human rights discourse, particularly the rights embedded in the Bill of Rights of the South African Constitution, namely the rights to equality, dignity, privacy, fair labour practices, and access to health-care services. The methodology for the overview of the Tswelopele intervention itself is, first, based on the context provided by a larger qualitative study (Jones, 2009), including interviews and focus groups with people living with AIDS and key stakeholders working with the project in Temba Hammanskraal. Second, various dimensions of the Tswelopele project itself are assessed, drawing on programme documentation of aims and objectives, methods and activities of the project, and evaluations of its performance. Third, an examination of the para-legal case load of the Tswelopele project is used to identify key emerging themes and to group cases according to the thematic issue being addressed and the method for resolving it. Finally, ongoing observations in the field and discussions with beneficiaries and other actors in the area provide additional sources for assessing Tswelopele. 2. STRATEGIES IN ADVANCING THE RIGHT TO HEALTH

2.1. Global Norms The global-level response to health issues and HIV/AIDS in particular has been vigorously cast in the language of human rights. This response is epitomised by the strong rights-based approach taken on HIV/AIDS, framed by key human rights such as Article 12 of the International Covenant on Economic, Social, and Cultural Rights 1966 (ICESCR), which recognises “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health”. General Comment No. 14 on the Right to Health elaborates further on health as “a fundamental human right indispensable for the exercise of other human rights”.4 Other relevant human rights 4

Committee on Economic, Social and Cultural Rights (2000), General Comment No. 14: The Right to the Highest Attainable Standard of Health, U.N. Doc. E/C.11/08/2000, para. 1.

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mechanisms (including regional ones) and ones more specific to the epidemic itself include the United Nations General Assembly Special Session (UNGASS) meetings addressing HIV/AIDS and the Joint UN Programme on HIV/AIDS (UNAIDS) and the Office of the United Nations High Commissioner for Human Rights (OHCHR), International Guidelines on HIV/AIDS and human rights (as consolidated in 2006), both of which provided significant policy breakthroughs concerning the right to access antiretroviral medication. Researchers, activists, and policy makers use these human rights standards. These developments are part of a considerable array of international human rights law developed in the past three decades that gives specific substance to rights in the form of standards that elaborate on those rights and map out the corresponding obligations of States (Eide, 2003). Such measures have provided increasingly concrete coordinates by which to implement human rights. Better clarification of the meaning and content of the right to health in terms of the normative content, State obligations, and violations of the right and implementation of the right has resulted. Some of these guiding coordinates concern availability, accessibility, quality, and equality, and they provide important tools for leveraging, monitoring, and therefore understanding ‘access’ to health-related goods, services, and information. A critical issue is the operationalization of these global norms at the country level. In the context of health rights, South Africa has imported considerably from the ICESCR. An important difference, however, is that whilst the ICESCR recognises the right to the highest attainable standard of health, the South African Constitution recognises the narrower aspect of health as the “right of access to health care services”. That said, perhaps not too much should be made of the differences, especially given the broad provisions for other socio-economic rights in South Africa’s Constitution that also influence attainment of health (Chapman, 2002).5 2.2. Legal and Policy Means The legal sphere is often viewed as a key arena for the operationalization of universal human rights norms. In South Africa the legislative and policy framework for the realisation of health rights has to a large extent been developed (Pillay, 2002). But national and local implementation still require urgent attention to obstacles. These exist on many levels. Broadening access to legal aid and courts is a major challenge for implementation. A civil society submission to a government committee dealing with legal services in South Africa highlighted the gap emerging in service provision. Legal aid, for example, is almost exclusively allocated to criminal rather than civil and human rights issues. Furthermore, many advice centres, dependent on donor funding, are closing, which will potentially undermine access to justice. More generally, there is lack of information on rights and of effective mechanisms for the 5

That is, of course, leaving to one side South Africa’s non-ratification of ICESCR.

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realisation of rights (AIDS Law Project, 2006). A range of factors therefore shapes access to justice. Legal services, including provision of legal aid, the culture of judges, and the willingness and ability of the State to implement judgments are all important considerations. The broad range of factors involved indicates that, following Gloppen (2005: 173), “a great deal” is required for social litigation to actually succeed. Litigation and other adversarial human rights strategies can be powerful tools. It is also important to note, however, the sometimes unintended ‘side effects’ of such strategies, including provocation and alienation of duty bearers that can have a counter-productive impact. Tushnet (1984) provides an important line of critique of rights, suggesting that there is a danger that rights-based approaches become technical, demobilising, legal exercises that serve to take our eye off the bigger goal of social justice and more immediate needs. These concerns do present challenges to rights. Much contemporary analysis, however, increasingly points to how human rights struggles have since evolved in a more nuanced fashion to tackle poverty, social inequality, and low status as key areas of exclusion, identified as ‘structural violence’ by Farmer (2005). Legal arenas often provide a highly visible platform for such engagement, again, under specific circumstances and with success linked also to non-legal tactics, such as social and political mobilisation (Heywood, 2005; Kapczynski and Berger, 2009). 2.3. Struggles over Health Rights in South Africa Understandably, HIV/AIDS has received considerable attention in legislation, policy development, and litigation in South Africa. More generally, at a global level, such attention to HIV/AIDS has served struggles for the right to health. The Treatment Action Campaign (TAC) is often cited as one of the best examples of a successful campaign for better health. Formed in 1998, the TAC has become a large civil society organisation with hundreds of local branch structures in predominantly poor communities across South Africa, provincial structures, and ultimately a national committee. The TAC campaigns have had a significant, positive impact on national policy on HIV in South Africa. High-profile court cases such as Minister of Health and Others v TAC and Others6 (‘TAC’) concerning access to nevirapine as well as other cases litigated by the TAC and the AIDS Law Project (ALP) are well known for the impact they have had.7 Use of the law has led to significant debate around the impact of litigation and other rights-based strategies on law and policy, and ultimately to concrete practice. Though regarded as utilising favourable legal systems, the TAC’s real significance is the political power it generated by use of human rights activism as a platform for 6 7

Minister of Health and Others v TAC and Others (1) 2002 (10) BCLR 1033 (CC). Other significant cases include South African Security Forces Union and Others v Surgeon-General and Others (North Gauteng High Court Case No. 18683/07) and EN and Others v Government of the Republic of South Africa and Others (Westville) 2006 (6) SA 575 (D), 2007(1) BCLR 84 (D).

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engaging with public opinion, medical expertise, and ultimately the State (Robins, 2008; Kapczynski and Berger, 2009). According to key protagonists directly involved in the TAC case, what emerges as critical to the TAC’s success was a highly strategised social and political campaign based on constructing a movement in alliance with key actors. This approach illustrates the richness in blending social activism and litigation to create ‘social’ litigation (Kapczynski and Berger, 2009; Heywood, 2005). It is a tactic that is increasingly being used by other social movements and for other socio-economic rights issues. The social force behind the case was undoubtedly a significant factor. But other important factors include the specific, even special, nature of the issue. In particular, some researchers suggest that despite the difficult political climate, the case was deemed relatively ‘easy’ for the Constitutional Court to rule against the government because the issue was interpreted in terms of the State’s negative obligations rather than more expansive (and expensive) positive ones (Ngwena, 2007). In other words, the government’s position was deemed unreasonable because of the unfairness of restrictions it placed on accessing nevirapine. The government’s refusal to allow access and its very controversial refutation of the orthodox science of HIV/AIDS (its transmission and treatment) precipitated the issue of access as one that was made starkly black and white – for or against. Whether this approach can be applied to other socio-economic rights issues more grey in nature, where government is more accommodative and less confrontational, remains to be seen. Nonetheless, it should be remembered that it was the TAC’s highly skilful campaigning and strategy to out-flank government’s opposition, and therefore change the difficult political context, that enabled an outcome that was anything but ‘easy’ (Kapczynski and Berger, 2009). In addition, TAC’s single-issue-led emphasis on treatment also contributed to reinforcing the government’s polarised understanding of antiretroviral (ARV) treatment and HIV/AIDS, as well as some confusion within communities. That said, it was a necessary political battle and one that provided impetus for a historic policy announcement in 2003 by the South African government to provide ARVs in the public sector. With the subsequent Comprehensive Plan for HIV and AIDS Care, Management, and Treatment, South Africa arrived in the treatment era. The TAC case therefore illustrates that there is often a fine line between negative and positive obligations. Although there may be instances of legislation being overturned or realigned with human rights norms, there appears to remain a disconnection between rights-based approaches and instances of the government enacting positive duties in the terrain of policy making (Jones, Langford and Smith, 2010).8 The broader impact of the TAC on health policy therefore underscores how rights-based 8

Where these are emphasised, such as Mazibuko and Others v City of Johannesburg and Others (Centre on Housing Rights and Evictions as amicus curiae) [2009] ZACC, it has proved much harder for courts to rule unconstitutionality. Even in the TAC case, Kapczynski and Berger (2009) note that because it was not directly interventionist, the Constitutional Court order also placed a great of responsibility for State compliance on the TAC’s own ability to monitor compliance rather than the State itself.

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outcomes result not only from court cases but also from sustained pressure on States on a number of fronts. The People’s Health Movement – South Africa (PHM-SA) is increasingly engaging in the broader campaign for the right to health in South Africa. The campaigning of PHM-SA has reaffirmed a global commitment to revitalising primary health care and a view of health that recognises the social determinants of health as much broader than just health care; but rather as also including, socio-economic resources, such as adequate housing, clean water, provision of safe sanitation, and access to basic nutrition essential to good health. Its understanding of the right to health therefore embraces a wide range of claims to socio-economic entitlements beyond access to health care, notwithstanding the importance of health services. Although its activities have primarily been located in the Western Cape, PHM-SA has both a local and national focus, for example, in providing input to civil society lobbying on the health charter and labour action in the health sector in the past two years, as well as being increasingly acknowledged in southern Africa as an important grouping in health civil society. Broadly speaking, PHM-SA sees itself as providing a forum for mobilising progressive health professionals, advocating for the primary health-care approach, increasing information flows and knowledge on global and local issues impacting health and health care, and promoting participation in the development and monitoring of key health policies. In addition to the terrain of law and policy making, however, and despite some national-level changes in the wake of high-profile cases and campaigns as highlighted earlier, rights-based approaches often founder on the rocks of local implementation. Translating results into tangible changes in the face of inequality and challenges in health-care delivery at the local level is a more general concern raised in this chapter. Notwithstanding laws, policies, and high-impact litigation, there is still a real problem of ‘making rights real’ and of translating legislative and policy gains into tangible and accessible health benefits with real impact for ordinary South Africans. The brunt of disease and the ill-health burden are still carried by the poorest families; these are felt most acutely by those who are already marginalised, such as poor people living in rural areas and townships. Some structural changes have taken place, and in addition, there is a broader democratic benefit that accrues from rightsbased processes in terms of instilling democratic norms and accountability (Jones, Langford and Smith, 2010; Jones and Stokke, 2005). However, over and above the TAC impact highlighted here, to what extent are rights-inspired approaches and gains felt in communities across South Africa? 2.4. Failure to Implement or Legitimate? The transition to the post-apartheid era has an additional paradox that complicates the discussion of human rights implementation. Post-apartheid liberal democratic norms enshrined in the Constitution confer, following Posel (2005: 129),

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“a stability and authority attached to these new rights, which [in theory] renders them unassailable.” Despite an array of rights-based provisions, high levels of violence are directed at woman; children; and most recently, immigrant communities. There are undoubtedly many explanations for this – not least the violent history of South Africa, as well as the political economy, which has structured power relations and entrenched inequality, historically dividing families and featuring a generally endemic level of criminality. But the encounter between liberal democratic values and illiberal forces also manifests itself in the extremely high levels of domestic violence, which are increasingly perceived as a crisis of masculinity. In addition, an array of cultural practices, some newly invented, others representing something of a ‘comeback’ – like the practice of virginity testing – clash uneasily with more overtly top-down liberal human rights discourses in South Africa. It follows that human rights interventions and reactions to them are often part of the search for greater security, identity, and the preservation of power by the more powerful against the less powerful. The era of constitutional-based human rights may have pried open the domestic sphere of sexuality and sexual relations, for example, to make them public matters, but in doing so it has heightened anxieties and contested views associated with those rights. The concept of universalism implicit in human rights still encounters the particularities of culture. This is not to suggest that incompatibility is inevitable, but rather that compatibility must be engineered. This throws down very specific challenges to tackling issues that must be cognisant of political, cultural, economic, and social contexts. Furthermore, whether human rights interventions – because of their confrontational and adversarial approaches – serve to exacerbate or ameliorate these tensions is not clear. Some of these broader tensions are illustrated in a discussion of the obstacles identified in an ARV treatment program in the province of Mpumalanga, South Africa. Observing the programme, Robins poses the following conundrum: Were the socio-cultural obstacles in places like Mpumalanga largely due to the absence of the forms of AIDS activism and health citizenship and subjectivities promoted by TAC and MSF? Could TAC and MSF overcome these obstacles to biomedical interventions through their grassroots mobilisation and treatment literacy campaigns? (Robins, 2005: 668).

The conundrum therefore becomes something of a chicken-or-egg scenario. Would having a TAC branch in every community overcome socio-cultural ‘obstacles’ to move forward the right to health? No doubt Robins has in mind the beneficial ways in which TAC activism and health citizenship have brought a critical vibrancy to responses to health challenges. The question appears to be equally valid for many other such communities. But contained in Robins’s comment is a hint that there are pre-existing social and cultural systems in communities that actually serve to challenge the scope and content of human rights armoury as espoused by the TAC and others. The point is whether the overall legitimacy of rights, namely the

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perceptions of rights and especially how they are used, may be as much an issue for implementation (and therefore strategies deemed appropriate) as legal and political avenues. To reiterate, these obstacles are not necessarily insurmountable, and often problematic fixed understandings of culture are invoked against rights. But there is a need to acknowledge that rights are neither neutral nor value-free. Liberalism, upon which human rights are premised, can end up being more about asserting its own authority rather than freedoms. This leaves human rights open to a criticism that there is somehow an ideal citizen that we should all aspire – even be forced – to become, and this renders rights a necessary abstraction (Englund, 2006). Human rights principles, following this interpretation, risk floating in the ether, high above the messiness of context. Whereas current debates focus primarily on the formal legal and political obstacles regarding implementation of rights, much work in socio-legal studies and, more recently, the social sciences seeks to contextualise rights practices in terms of their cultural negotiation and social and political context. Although the boundaries between the two camps are not absolute – and notwithstanding important work by anthropologists (including Merry, 2006; Englund, 2006) and some political scientists (Gloppen, 2005) and human geographers (Jones, 2009) – there is a tendency to separate out the formal legal sphere from social contexts. Power dynamics, as suggested, are closely related to both the promotion of and reactive challenges to human rights. Discourses surrounding rights, according to Englund (2006), remain the preserve of nongovernmental organisation (NGO) elites who prefer to maintain their own status and interests rather than tackling underlying inequalities. Although Englund tends to overplay the disconnection between NGOs and other social actors (who may approach the former in seeking support), he does identify an over-reliance on legalism in approaches to human rights, which runs the risk of rendering them technical exercises that serve to disempower the groups supposedly targeted by these interventions for empowerment. According to Englund, “[O]ne of the most disconcerting findings . . . is the extent to which an NGO’s legal officers used their apparently exclusive legal knowledge to avoid confronting the exploitation that many [Malawians] endured” (Englund, 2006: 125). Other interesting work on the borders of sociology and anthropology and law has begun to analyse the shifting nature of human rights discourse in the context of how it is challenged and capable of transformation on the ground. Merry (2006) has contributed to this debate with calls to focus on the social processes of human rights implementation and resistance and how, in resisting rights, new ideologies are formed. Looking at the role of human rights intermediaries (for example, those who mediate global rights discourses and local translation) shows how rights are contested and changed, but often in ways not expected by the prevailing socio-cultural values that resisted that change. The notion of sites for rights further sharpens focus on the messiness of, and importance of, context and how rights must be conceived as literally sitting in

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places: “Individuals and collectives interact with their surrounding physical and metaphorical landscapes and cannot be separated from the landscapes in which rights are invoked and which provide the sites for the intersections of substantive and procedural rights” (Stuttaford, Lewando Hundt, and Vostanis, 2009: 156). These recent approaches also highlight non-legal obstacles to human rights implementation and localised efforts to circumvent them, whether for good or for bad. The case study from Temba Hammanskraal that follows contributes to these debates in unpacking the norms associated with human rights to position them in a locally accessible way by creating sites for rights. 3. TEMBA HAMMANSKRAAL AND THE TSWELOPELE PROJECT

Like many other areas in post-apartheid South Africa, Temba Hammanskraal is characterised by its highly complex political, socio-economic, and cultural geography.9 Much of the transformation post-1994 is directed towards untangling the intricate spatial webs of the apartheid era – namely provincial, Bantustan, and municipal boundaries. Post-apartheid municipalities were demarcated in 2000. In the amalgamation some places in former Bophuthatswana (a nominally ‘independent’ Bantustan created in the apartheid era) areas were transferred to the newly formed City of Tshwane (Pretoria) Metropolitan Council, whereas incorporated areas were still under provincial jurisdiction of North West Province. This resulted in what are called ‘cross-border’ municipalities, forming a northern and western peri-urban fringe to Pretoria. The official motivation for the amalgamation was to meet the developmental needs of these disadvantaged areas by including them within the tax base and local economy of a well-serviced conurbation (City of Tshwane, 2005). Undoubtedly, these were important efforts to create geographies of inclusion rather than exclusion, but despite these worthy intentions some localities have remained caught between jurisdictions. One effect was that certain areas of service provision, especially health, suffered as a result of falling between different jurisdictional responsibilities. Temba Hammanskraal is an extensive geographic area that is often taken by locals and others to also include several surrounding villages and settlements, with a total population of approximately 150,000. The area is extremely ethnically diverse and with cultural practices (such as traditional marriage and traditional leadership) that tend to be associated more with rural South Africa. It also has profound developmental challenges, with large variations in access to water and electricity that are based on proximity to the ‘urban’ core of the settlement. Economically, it is estimated that across the area, approximately 66 per cent of adults are either unemployed or not 9

The methodology for this section draws mainly on the work of Jones (2009), which was based on interviews, focus groups, previous studies, and project documentation, but was also supplemented with observations and follow-up visits in 2010.

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officially economically active. The area is therefore, in general, ‘peri-urban’ socioeconomically and in terms of access to services (see Zuberi, Jones, Brouard, Viljoen, 2004; Jones, 2009). Indeed, the poor economic status and high unemployment levels have featured consistently in project-related interviews and discussions since 2004. 3.1. Background to the Tswelopele Project The Tswelopele project (Tswelopele means ‘moving forward’ in Setswana) started in 2004 as a joint research initiative, between the Norwegian Centre for Human Rights and the Centre for the Study of AIDS at the University of Pretoria on HIV stigma and human rights at a local community level. The presence of the University of Pretoria’s satellite campus in Temba Hammanskraal provided an important foothold in the community to follow up on rumours of AIDS-related discrimination in the area. The following paragraphs explain the objectives of the initial study (Zuberi, Jones, Brouard, Viljoen, 2004: 10–11). The first objective was to attempt to clarify how the process of HIV and AIDS stigmatisation and concomitant discrimination played itself out in a traditional setting in South Africa, including an examination of how stigma was manifested and the consequences such stigmatisation had on local community members. The project thus looked at which human rights were consequently violated or otherwise compromised. The second objective was to establish which organisations and institutions played a role in the promotion of human rights at local level, the role of democratically elected representatives and traditional leaders, and whether people living with HIV and AIDS (PLHA) played a role in governance at this level. The research examined whether a culture of human rights had been absorbed into governance at the local level and whether, what, and where support was being provided. The third objective was to examine the impact, or lack thereof, of the human rights discourse on individuals, families, and communities, including why individuals were, or were not, enforcing their rights or using the services provided for them. It also tried to determine whether the rights-based approach led to community activism and empowerment, and why this had, or had not, occurred. It examined whether or not PLHA viewed the human rights discourse as helpful, namely whether the ‘insertion’ of human rights in itself was helpful or problematic in overcoming stigma and discrimination. The fourth objective was to examine the impact of the human rights discourse on service delivery in the health sector, if any, and the linkages to the government’s Batho Pele campaign and other initiatives focused on patients’ rights. The research looked at whether there was a place for a human rights perspective in these ventures and what opportunities there were for intervention to reduce HIV/AIDS stigma in the health sector.

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Fifth, and finally, the goal of the research was to offer recommendations on how to best increase accessibility to, and use of, human rights support services and programmes at the local level, and to enhance service delivery in various sectors such as health services. An important component of the study was the development of a training manual to improve human rights literacy. The research found that people living with HIV/AIDS were facing a range of violations and stigma at the community level, despite the protections in the Constitution and laws. Issues concerning breach of patient confidentiality and testing procedures devoid of counselling (and caring attitude) were widespread violations. People also did not know what their rights were, or what institutions could help them. In fact, the people and institutions, such as police stations, available complaints mechanisms at hospitals, and existing traditional conflict management mechanisms (such as chiefs and other tribal leaders), were seen as a problem rather than as a source of assistance or redress relating to HIV. Interestingly, the research also found that TAC and other organisations played little, if any, role in the area (Zuberi, Jones, Brouard, Viljoen, 2004). With particular reference to access to health care, the research found that community members complained about the treatment that they received at the hospital and clinics in the area. Participants in the research complained about the waiting period, the lack of doctors, and the unavailability of drugs in the pharmacy. They were generally dissatisfied with the treatment they received at the hospital. They alleged that it was useless to complain, because the suggestion boxes at the hospital were opened and the suggestions reviewed by the clinic supervisors, who simply removed all complaints (Zuberi, Jones, Brouard, Viljoen, 2004).The findings suggested that, although global and national strategies have been in place for many years, the rights-based approach had made little difference in the lives of people in the Temba community. The struggle against apartheid was framed in human rights language, whereas the constitution-making period and the post-apartheid government focused on the realisation of human rights for all as a cornerstone to the building of a post-apartheid South Africa. But the findings showed an apparent disjuncture between this rights discourse and reality. Although some people knew their rights and how to exercise them – including the rights of the infected or affected – the lived reality of people living with HIV/AIDS and communities from which they came could be quite different. People were still subject to human rights violations and had difficulties in making their rights real. While people’s conceptualisation of service delivery cannot be said to be ‘rights based’ in terms of identifying duty bearers, there was nonetheless a deep sense of frustration and injustice about degrading treatment received in the public-sector hospital. Some explanation of these findings was deemed important when it came to designing a ‘real-time’ human rights intervention as a follow-up. Therefore, awareness raising and a degree of knowledge transfer were considered important. However, it became clear that just informing people of their rights and the rights of others would not be sufficient to challenge the deeply embedded social

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constructions of the ‘other’ and the rationalisation of mistreatment. As expressed by one key informant who fell victim to misconduct of nurses, awareness is also linked to power and governance and structural issues: [T]he main problem at Jubilee [the local hospital] is bad management. . . . People don’t realise they have rights and a right to health care, people don’t have knowledge and health is not considered an immediate need – therefore people don’t come forward [to complain]. (Lawyer, in Jones, 2009: 108)

Importantly, people often believed that human rights were either a burden or a luxury, and relevant only to those who can enforce them. An array of negative views of rights were held by the police (concerning the rights of criminals), men (particularly a traditional leader, concerning women’s rights), parents (concerning children’s rights), a social worker (concerning the lack of time needed to enforce rights), in some instances health-care providers (concerning patient rights as a barrier in providing care), and so on (Jones, 2009). These findings indicate that much still needs to be done to ensure that people understand and benefit from a human rights approach. The recognition that this gap in implementation has as much to do with the deeply socially ingrained fears and apprehension associated with HIV serves to raise the significance of local context for rights, particularly when legal definitions do not consider concrete experiences. Turning human rights into an effective AIDS response means intervening at the level of community – in personal gossip, at the places where the perceptions are formed – and locating the challenge there. This can include targeting people and institutions that shape attitudes and beliefs, including churches, workplaces, schools, and the media. Support is needed through formal action at hospitals and through the courts, with para-legal training and wide public education – through ways in which a different social construction can be developed to make people trust the law and appreciate that rights can work for the broader social good. 3.2. Post-2005: Creating the Para-legal Advice Centre Following its research phase, in 2005 the Tswelopele project started to address the challenges it had identified. An important step was to present the findings in the local community and to invite discussion and suggestions for an appropriate follow-up intervention. As a result of community engagement, the project resolved to engage in training on human rights (i.e. awareness raising) and to establish an office – the para-legal advice centre (PLACE) – to provide practical assistance in the case of human rights violations in the target communities. Members of the community were trained as para-legals in 2005 and ‘graduated’ in January 2006. Thus, the intervention has provided practical legal assistance, advice, and referrals on various matters such as social assistance and workplace-related issues for members of the community.

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In addition, ongoing training for community members and various sectors (such as those providing community-based home care) has been provided. 3.3. Training One component of the project was to provide knowledge on HIV and human rights through community workshops and training initiatives. Staff and volunteers of the project, members of the Temba Hammanskraal community trained by the AIDS and Human Rights Research Unit at the University of Pretoria, carried out the training. The workshops addressed negative experiences of HIV, the challenges faced in addressing issues relating to the pandemic, and the rights-based approach to addressing instances of abuse. At the workshops, communities were encouraged to openly discuss the disease and to recognise that changing attitudes, behaviours, and perceptions could help contain the impact of the pandemic. The workshops also raised awareness of the dangers and legal implications and consequences of disclosure without the consent of a person with HIV/AIDS. Despite being generally well received, in the trainings, tensions and selective understandings of rights manifest. Trainers often found themselves faced with the challenge of negotiating cultural norms while trying not to compromise the basic message of the training, especially in relation to discrimination and equality. Traditional leaders on one occasion complained vehemently and threatened to not return to the next day of training after a woman wearing trousers had facilitated the first day. On another occasion, Christian church elders vetoed any talk about sexual orientation rights if the training session was to continue and threatened to walk out and have nothing to do with PLACE in the future if their demand was not taken seriously. In other training sessions, parent participants were extremely uncomfortable with PLACE’s position on sexuality training and understanding of sexual and reproductive health rights. Children’s rights and a completely different interpretation of provisions of the Children’s Act No. 38 of 2005, which came into effect in July 2007, particularly the provisions on access to contraceptives, HIV testing, and abortion services, have been the source of heated and emotional outbursts. In the words of one workshop participant: This American money is making you people sell your souls. First, it was this thing about setabane (homosexuality). Now – God forbid – I hear they want to allow them to marry in church, in our church we will not allow that . . . and as if that is not enough now you want to encourage our children to sleep around by giving them condoms and let them get away with immorality by having abortions without us [their parents] knowing.10 10

Zion Christian Church elder, Religious Leaders Workshop on HIV and Human Rights, 7–10 October 2008. American money is the term used to refer to any international funding, particularly for NGOs.

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Over time, in view of such sentiments, project staff took a conscious step to adapt the language of the training so that it also placed emphasis on citizenship, responsibilities, and participation rather than only claiming rights and government responsibility. We believe this had two advantages. First, it made the training more acceptable to a range of stakeholders. These included, for example, local ANC leaders and officials, who were less threatened in this area, where more than 80 per cent of the local vote goes to the ANC (Jones, 2009). Second, it enabled a longer-term focus on citizenship participation (i.e. beyond election periods), which is intrinsic to a functioning democracy. The approach taken represents CSA’s more general attitude to training, one that includes stakeholder participants as not just duty bearers but also citizens in need of protection. In dealing with besieged healthcare workers, for example, themselves subject to violations, the approach enabled participants to view the initiative as more than just another attack on them and the services they provided. Community conversations and dialogue were more generally used as a strategy to ensure a sense of community ownership of solutions to problems. For example, during and after the xenophobic attacks that took place on foreigners in 2008, the training re-emphasised issues and dangers of prejudice. But the more interesting interventions were those of the Hammanskraal Advocacy Team, which facilitated dialogues appealing to notions of ubuntu and African humanity. Despite strongly felt personal opinions about the issue of foreigners ‘flooding’ the country, community leaders and others struggled to attack or justify departure from these generally held and highly esteemed ‘cultural notions’ in the meetings. Community consensus that violent attacks could not be tolerated was based on these generally accepted values. We recognise that such adaptation is not without challenges, including presenting trade-offs for rights-based approaches. These themes are developed in the following sections. 3.4. Advocacy An important step, particularly in the absence of a local TAC,11 was the formation of an advocacy committee to provide assistance to others with respect to their rights to health care. The Hammanskraal Advocacy Team (HAT) was created in March 2007 on the back of training activities for other support groups and organisations, which then sent representatives to join HAT. The team has greatly assisted the goals of the project, to ensure that local communities take ownership of human rights and are able to access and enforce their rights. The team comprises members of the 11

As mentioned earlier, the TAC has hundreds of local branches and provincial structures, but inevitably some areas are served better than others. Attempts had been made over the years to establish a local TAC branch but with limited presence. It is also interesting to note that at the TAC’s 2010 National Congress, of 290 voting delegates from the provinces, the North West Province sent no delegates (see http://tac.org.za).

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community who are living with and affected by HIV. The existence of the team was significant, as it enabled communities to accept the reality of the epidemic in their homes, societies, and communities, and to understand and accept that the disease can be contained through family support. The advocacy team has been able to ensure that several people living with HIV/AIDS have access to ARVs with dignity. Their immense courage and confidence in openly acknowledging the epidemic in the community has had the knock-on effect of inspiring more openness about the disease and made it easier for AIDS service organisations to reach more people. The following example, however, illustrates the more general challenges of rights-holding citizens demanding accountability from duty bearers in the area. On 20 August 2008 about thirty-two members of the community arrived at PLACE, singing and toyi-toyi-ing (a South African form of dance often associated with protest), essentially holding a mini-protest outside PLACE’s offices. They had been in a queue for social grants at the Department of Social Welfare. By their account, on several occasions they had woken up very early to be in the queue, usually by five o’clock in the morning, but had been turned back without being attended to. On this particular day, a member of the staff had again counted out the people who would be served that day and told the rest to come back another day. The group presenting at PLACE included disgruntled individuals who had (again) fallen outside the count. Their complaints were mainly related to bad service provision by the staff members at the department, and the complaints ranged from issues such as the office opening late (sometimes as late as nine-thirty in the morning instead of the indicated eight-thirty when workers are supposed to start seeing clients); the staff working very slowly (they all went on tea and lunch at the same time); and the staff not giving proper assistance and generally being callous and rude. The group sought assistance from PLACE to get better service from the department. The group was given suggestions by project staff on how to engage duty bearers: to ask which avenues they had taken to resolve this issue before presenting at PLACE. It was interesting to note that they had not considered either approaching the department first with their issues or laying a formal complaint. Nor had anyone requested to see the most senior manager or thought to stage the mini-protest at the department’s premises instead of the PLACE office. The group members indicated that they had decided to come directly to PLACE, as they felt the personnel at the department would have never paid attention to them anyway, whereas they anticipated the intervention by PLACE would get a reaction. While attaching importance to the role of the PLACE, the example is also symptomatic of the role of local political culture, which also shaped both the previously mentioned training and advocacy and therefore the HAT itself. The Hammanskraal Advocacy Team has taken what some might consider a non-confrontational approach to its work. It has held many on-the-spot mediations between patients and health workers at treatment centres. Although always wielding the threat of law and legal intervention by the Para-legal Advice Centre, it has often chosen to take the approach of appealing to the hearts and minds of health

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workers through quick, on-the-spot discussion about stigma, human rights, and obligations of health workers where cases of bad service delivery or perceived or actual discrimination have arisen. Members of HAT continuously reported incidents of on-the-spot mediations being conducted from their clinic visits. When requested to properly document incidents, they would write down a detailed summary of the incident and the name of the client if possible. In addition, whereas HAT members were asked to note the name and position of the clinic staff member with whom they had had to intervene, these volunteers were not always forthcoming. This omission perhaps suggests unease about placing official complaints against health professionals even amongst the project’s volunteers, who have undergone extensive human rights theory and advocacy training. 3.5. Other Outcomes There have been several other training and advocacy outcomes that have had an impact on access to health in the area. An increased number of people have come forward to claim their right to access basic health-care services as well as insisting on better service from health-care workers. There has been increased engagement with duty bearers and increased networks with institutions and organisations that operate with a similar ethos and promote and protect the rights of the vulnerable, such as people living with HIV/AIDS, women, and children. Staff and volunteers from several home-based care organisations, orphanages, places of safety, and other organisations have been trained and form part of a larger referral network for the project. The intervention illustrated that by targeting both community members and duty bearers such as social workers and health-care workers, judicial and court officials, and the police, people were able to assert and claim their rights rather than waiting for their rights to be provided at the discretion of the State. Police officers and magistrates in Temba and Hammanskraal received training on HIV and human rights, and mutually beneficial referral relationships have been established and are ongoing. An interesting change is that the police have referred a significant number of complaints of HIV-related harassment, particularly verbal abuse, to PLACE. According to PLACE, these are common occurrences. This shows that the community is empowered to do something about perceived violations of rights and to approach duty bearers for protection. An initial investigation into the communities revealed that many of the households did not welcome visits by home-based carers, as they were associated negatively with HIV, and thus the work that they did was heavily stigmatised in the communities. As a result of the outreach and awareness education and training, though, home-based carers no longer face as much difficulty in being accepted into homes as they did previously. More generally, the application of information received from training is evident. Following a training for shop stewards, for example, one Congress of South African

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Trade Unions (COSATU) member was able to use the knowledge to challenge an employer who had been pressuring an employee to disclose the employee’s HIV status. The COSATU representative was able to confront the employer and demonstrate why this was wrong, as it violated confidentiality.12 Awareness raising and capacity building in communities has also led to the establishment of support groups for HIV and human rights in those communities that play vital roles. The project continually supports these groups by empowering them and building capacity via workshops and training initiatives to enable them to respond to requests and to detect and attend to instances of abuse. As a result of ongoing engagement through workshops on HIV with health-care workers in the community, a better relationship has been established between people living with HIV/AIDS and health service providers. An initially tense relationship between the project and the major district hospital in the area is fast turning into a fruitful working relationship with all parties, helping to realise that the goal is better health service for the local community. But this realisation is also a product of the change in provincial jurisdiction of the hospital, which shifted from North West to Gauteng, which appears to be an important catalyst for improved community and hospital relations (Jones, 2009). The project has been able to train health workers (nurses and counsellors) on several occasions. One indicator of the change in relations is that the district health office requested that HAT assist with follow-up house visits to clients defaulting on treatment, which suggests a willingness to engage with the Tswelopele project. Overall, the fact that many people present at PLACE, which has a billboard with a red ribbon that clearly associates the project with HIV/AIDS, may indicate that stigma associated with the disease is indeed on the wane and that rights-based tolerance is increasing. Most volunteers of the project openly live with HIV and lead by example in the communities where they conduct outreach and advocacy work. Although attributing the decline in stigma is problematic to ascertain – the engagement of PLACE activities (e.g. radio-based information, door-to-door visits of volunteers, case load, referrals, training) appears to be correlated with changing attitudes in the community. One indicator is the rapid increase in numbers enrolling at the local hospital for medication. A HAT volunteer said, “Lots of people are coming forward to Jubilee [the local hospital] and no longer waiting for the 11th hour [until very sick]. Whereas it was only 20 a day, now over a hundred a day are enrolling.” The uptake of ARVs in the area has increased significantly, from 966 adults in 2006 to 8,729 adults and children currently enrolled in treatment as of 31 April 2010. The project cannot claim sole credit for this, but health workers at Jubilee Hospital have indicated that they believe that the intensive human rights campaign of the project has played its part in encouraging more members of the community to start treatment, knowing that it is ‘safe’ to do so.13 12 13

Interview with beneficiaries, PLACE, Hammanskraal, April 2010. Interview with (and statistics from) senior registrar in charge at Jubilee ARV Clinic, Temba, April 2010.

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labour-related cases human rights cases mediation cases provident and death benefit cases road accident fund cases social grants home affairs cases family law cases criminal law cases

figure 8.1. Cases opened by PLACE, 2006–10

3.6. Para-legal Cases The other area of significant outcomes and impacts concerns the para-legal cases. Despite the initial focus on HIV and human rights abuses and violations and the redress of such, it was soon noted that most of the cases presented to PLACE were not classic access-to-health cases. Indeed, as the project progressed, fewer cases were even HIV related. The project has seen a phenomenal increase in its caseload since inception, which has resulted in the need to adapt and adjust its focus to be sensitive to local needs. The trend of the caseload indicates that although health care per se may not be the most immediate consideration, health matters are when they are related to socio-economic benefits. A significant proportion of PLACE’s clientele are clients from the district hospital’s Centre for People Living with HIV/AIDS and other ARV clinics in the area. Although these clients are living with HIV, they are most likely to present to the para-legals with cases involving unfair dismissal and employment discrimination, as well as concerns related to the unemployment fund, the provident fund, and social services. As of 30 April 2010, PLACE indicated a total of 916 cases that have been opened since the inception of the project. The overwhelming number of cases, as mentioned, concerns socio-economic issues such as social grants, accident and employment related potential payments to clients. The distribution of cases is as shown in Figure 8.1. As their relationships with the para-legal officers grow, these same clients often, as an aside, tell the stories of their interaction with the public health system and of poor quality of care, stigma, and subtle discrimination. Despite the intentions of the project, rarely is it the client’s initial intention at first contact with PLACE to bring cases relating to violation of rights in relation to the client’s interface with the public health system. There are several possible explanations for this trend. The first is the possibility of improved health provision at the public health centres, as cases of health service provision discrimination, lack of confidentiality, and unauthorised testing

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300 250

250

200 150 100 50 0

70 30

40

48

36 3

14

1

2

3

1

10

10

4

15

10

1

) t r n t s r r t rt s c SA tals our und riffs tions und cato ur ur ai r MA lini vice bou ou ecto sma i e F Co Aff e C a t a Co HPC ospi m C nt F r d d t h t CC w C o L r e u u y t r e S n S j f u e P mb lit H m e lai cide tra La ial S nt o abo Ad ua lic vid O Ho agis ublic c c ll C e L Po (Pro und Eq So r tm P M ma ad A F t a S C n p Ro NB vide De ro P l na tio Na Series1

figure 8.2. Cases referred, 2006–10

rarely occur anymore. This could partly be a result of the stigma and human rights training provided to health-care workers. Indeed, it is rare to hear stories of overt HIV-related discrimination, particularly breach-of-confidentiality issues, anymore. Most accounts also indicate possible attitudes of stigma by health workers, and they sometimes indicate the possibility of internalised stigma and thus shame people living with HIV/AIDS have had that prevents them identifying these issues as rights violations. Common complaints are related to general public health system failures, such as excessively long wait times, low stocks of medication by pharmacies, and lack of staff. The second possibility – and in our opinion the more probable one – is that the first priority of people in resource-constrained environments such as Temba Hammanskraal is gaining tangible economic improvements to their lives. This can be through getting reinstated in a job, getting provident funds paid out, and accessing social grants. Thus, PLACE is seen first as an avenue for advancing more immediate economic needs, and only secondarily as an avenue to confront duty bearers on human rights issues such as privacy and confidentiality. However, PLACE does receive many cases of harassment and abuse relating to family members and friends gossiping about one’s HIV status, as well as stigma and discrimination cases amongst community members. The interesting observation – especially in light of the previous discussion concerning perceptions of rights-based processes – is that clients often request that these cases be handled in preference, as mediation cases, despite the fact that some of them would qualify for referral to the Equality Court. There was also a referral system in place whereby arrangements were made with social services for advice on access to the various State grants and social welfare relief (see Figure 8.2). This partnership arrangement created awareness of the different social grants and how to appropriately access them. This included the entire process from filling in a grant application through the actual award of the grant. PLACE has

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table 8.1. Cases resulting in financial pay-out, 2006–10

Provident fund, estate, death benefits

Disability fund, child support grant, etc.

Road accident fund

Financial pay-out

Financial pay-out

Financial pay-out

48 cases

17 cases

3 cases

Labour: UIF, sick-leave pay, severance pay, compensation for occupational injuries and diseases Financial pay-out and reinstatements 108 cases and 17 cases, respectively

Human rights, mediation, contract, maintenance, other Financial pay-out

46 cases

referred many people to social welfare services to apply for and access the various grants, and it then follows up on the referrals to ensure that the appropriate action has been pursued by the client and taken up by officials at the Department of Social Welfare. Referrals were also made to the Department of Labour regarding matters involving the Unemployment Insurance Fund; unfair labour practices; and discrimination relating to the labour industry, unfair dismissals, and workplace benefits. A small but significant number of the unfair labour practice and unfair dismissal matters were HIV/AIDS related. The number of referrals reflects the cultivation of relationships with various institutional actors. One of the intervention’s most significant outcomes is the provision of access to justice for people living in poverty, especially people living with HIV/AIDS. One indicator is the rapid increase in the number of cases brought to PLACE. Another, as shown in Table 8.1 is the large number of cases (of approximately five hundred completed cases) in which a financial benefit has been realised by clients in pay-outs through the Unemployment Insurance Fund, provident funds, severance, notice pay, and so on, since the para-legal intervention began in 2006. 4. CONCLUSION The community knows their rights now. Whereas before there was discrimination, now people listen to training. – Project volunteer.14

What are some of the lessons from the strengths and weaknesses of different strategies in pursuit of health rights implementation? An overall dilemma for rights-based approaches is how to maintain a clear-cut focus on specific aspects of the right to access to health-care services in a context 14

Beneficiaries, PLACE, Hammanskraal, April, 2010.

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of poverty, inequality, and poor service delivery. Such contextual pressures tend to override both local prioritisation of health issues and a rights-based conceptualisation of them. As evidenced in the Tswelopele project, it is important to become responsive to, and mindful of, this broader context that foregrounds the challenge of making rights relevant. In this context of poor economic conditions, para-legal intervention by the project has meant that many people have an opportunity – through mediation by PLACE directly with employers or through referrals – to receive just compensation and to retain their jobs or social grants. Thus, to some extent, people can improve their social and economic conditions or prevent them from deteriorating. The direct financial payments for many clients at the local level in the PLACE project, moreover, demonstrate that direct impact resulting from legal approaches is possible. Amongst the weaknesses, however, one programmatic concern is the need for a more systematic analysis of cases. Although according to PLACE the clients deem the outcomes very satisfactory, of all cases opened, almost half are lost to follow-up (i.e. uncompleted) for various reasons. Another apparent weakness is the lack of cases taken forward either through litigation or through campaigns mobilising specific issues. Under certain circumstances, as reflected in the TAC strategy, litigation can be an important social and political tool.15 The Tswelopele project, however, has a distinctive local style in dealing with conflicts in the community that PLACE serves. Whether though training, para-legal support, or advocacy, there has been an emphasis on building partnerships and mediating with institutional structures rather than confrontational tactics (such as those associated with the TAC during the Mbeki administration). People appear to prefer to approach PLACE for mediation rather than, for example, taking the issue to the Equality Court. Furthermore, the project manager for Tswelopele based at the Centre for the Study of AIDS and the management at the latter tended to allow the PLACE office to make its own decisions about how to respond to specific issues as they arose, such as the aforementioned protest incident, because ultimately, as the people on the ground, the workers at PLACE are those who must work meaningfully with the local community. This raises a paramount consideration for rights-based approaches that may constitute a weakness. To what extent does the community – including the project intervention itself as powerful actor and translator of human rights – actually challenge authority that is integral to rights-based accountability? Power holders tend not to be directly challenged, and there are not any strong advocacy campaigns, 15

Heywood (2005) also advances that it is possible to gauge broader structural changes from TAC’s strategies. Analysing the transfers of economic resources that resulted from TAC campaigns and legal successes provides another interesting way of assessing the outcomes of TAC’s litigation-driven rightto-health campaign. Through price reductions, cost of care of people who would have been sick since averted due to medication, and increases in budgetary allocations, it is possible to reveal the tangible benefits of mobilisation for a human right. See Mark Heywood, ‘South Africa’s Treatment Action Campaign (TAC): An Example of a Successful Human Rights Campaign for Health?’, http://www .tac.org.za/community/node/2064.

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which are more familiar terrain to rights-based NGO lobbying and social movement strategies. This may reflect a more generalised tendency in the area towards mediation, whether involving traditional leaders or local ANC political structures that have tended to channel and defuse frustration.16 To take one example, when the police refer domestic violence issues to PLACE, this may in fact be a weakness, in that it represents a failure by law enforcement agencies to recognise domestic violence as a criminal offence. Other examples include the tendency for the advocacy approach not to systematically address gender issues, unlike its response to xenophobia. And, though not by programme design, when informal methods were used to address other sensitive issues such as homosexuality, less successful outcomes were evident. Alternatively, the failure to find cases to litigate or even take to the Equality Court may not constitute any failure at all; rather, it may reflect local perceptions and use of human rights and the law. Whereas challenging employers is considered legitimate, mediation is more generally the preferred mode of engagement. We argue that one of the strengths of Tswelopele’s strategic approach is the ability to be flexible in local adaptation. Thus, the pitfalls of abstracting universal rights, which sometimes is a deliberate strategy to avoid conflict (Englund, 2006), can potentially be avoided by using a contextualised approach. Unlike Englund (2006), we provide a more upbeat account not only of how rights-based discourses can be adapted to local contexts but also of how sites for rights are required for implementation (Stuttaford, Lewando Hundt, and Vostanis, 2009). The adaptation in the language of training sessions was shown to be more in line with local norms and local decision makers, and to place emphasis on responsibilities not only of duty bearers but also of rights holders. But the dilemma, then, remains whether this adaptation dilutes and weakens the foundations of a rights-based approach. Does it tend to let decision makers off the accountability hook? Is the trade-off too big? The example mentioned earlier concerning the problems of imagining citizenbased engagement with health professionals, senior public sector managers, and other duty bearers highlights two contradictory but related elements. One concerns individual and community requests to the project intervention that reflect the confidence the community places in PLACE. Another, however, is the sad reality of a community that has overlooked the potential of ordinary citizens collectively making demands on duty bearers and instigating change. In the words of Nelson Mandela, “It is not kings and generals who make history. It is the ordinary people.”17 With future funding for the continued existence of PLACE uncertain, there are concerns about the impact the intervention will have had when PLACE no longer exists. Though unintended, PLACE runs the risk that it may have become another group

16

17

This also explains why, until relatively recently, the area appears to have forgone service delivery protests. These did erupt, however, in 2007 concerning access to new housing stock. Full text of speech by Nelson Mandela at the Parliament of the World’s Religions, Cape Town, South Africa, December 1999, http://www.teosofia.com/mandela.html.

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doing things for the community, but leaving the intervention nonetheless unsustainable. Given these qualifications, we can conclude that all these characteristics serve to reflect, if not the self-generated nature of the project, then a degree of embeddedness and therefore the locally appropriate adaptation of the rights-based approach. Overall, PLACE supported community members in becoming better able to recognise and claim their rights from duty holders, including the police, health-care workers, and others, by working towards increasing legal capital in the community. Legal capital, like the notion of social capital, is a form of social cohesion based on knowledge of and confidence in the law and the human rights framework in a society, as well as the attainment of those rights. These rights are considered intrinsic to the full attainment of humanity. The evidence of the impact of increased legal capital is evident in the exponential increase in client intake at PLACE since the office opened its doors in 2006 and in the figures for referrals (see Figure 8.2). A significant finding is therefore how the implementation of rights is also contingent on the ability of any intervention to ‘grow’ legal capital in ways that build trust among project approaches and concepts and communities, who often find these alien. Such an approach asks probing questions about how to avoid a ‘shallowness’ of civil society interventions (Friedman and McKaiser 2009) and especially those concerning rights-based approaches, what these may look like when community driven, and whether they then become more conducive to enhancing the longevity of South Africa’s constitutional future. There is also a place for more mainstream and specialist NGO approaches that may be less embedded in communities. Urbanbased and elite NGOs are nonetheless capable of allying effectively with grassroots organisations, which they also often draw on to provide legal and other support. Whether we can call these strategic linkages a strength or a weakness often depends on the quality of the alliance in question (Jones, Langford, and Smith, 2010). On balance, in its planning and focus the project has attempted to stay rooted in community-driven processes. This is also reflected in the wide degree of decision making delegated by CSA to PLACE in how to respond to various issues as they emerge. The overall conclusion is that local ownership and the instrumental use of the law – and non-legal methods to engage with human rights – is more likely to make rights relevant to communities. Local relevance may be considered necessary but not sufficient for advancing rights. Perhaps PLACE itself would have benefitted from being scaled up to national-level campaigns and strategising. And certainly these experiences do not suggest any substitute for other tactics such as litigation and social activism that have gained such momentum elsewhere in South Africa. But they do suggest that if we wish for rights to be more relevant and popularised in order to maximise their impact and sustainability, then the community variable, in all its complexity, should be integral to any human rights strategic formula.

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references AIDS Law Project (2006), Submission on the Legal Service Charter (Johannesburg: ALP). Brand, Danie, and Hillary Russell (eds.) (2002), Exploring the core content of socioeconomic rights: South African and international perspectives (Pretoria: Protea Book House). Chapman, Audrey (2002), ‘Core obligations related to the right to health and their relevance for South Africa’, in Danie Brand and Hillary Russell (eds.), Exploring the core content of socio-economic rights: South African and international perspectives (Pretoria: Protea Book House), pp. 35–60. City of Tshwane (2005), Integrated Development Plan (Pretoria: City of Tshwane). Eide, Asbjørn (2003), ‘Making human rights universal in an age of economic globalisation’, in Sabine von Schlorlemer (ed.), Praxishandbuch UNO: Die Vereinten Nationen im Lichte globaler Herausforderungen (Berlin: Springer), pp. 241–62. Englund, Harri (2006), Prisoners of freedom: Human rights and the African poor (Berkeley: University of California Press). Farmer, Paul (2005), Pathologies of power: Health, human rights and the new war on the poor (Berkeley: University of California Press). Friedman, Steven, and Eusebius McKaiser (2009), Civil society and the post-Polokwane South African State: Assessing civil society’s prospects of improved policy engagement (Berlin: Heinrich Boll Stiftung). Gloppen, Siri (2005), ‘Social rights litigation as transformation: South African perspectives’, in Peris Jones and Kristian Stokke (eds.), Democratising development: The politics of socioeconomic rights in South Africa (Leiden: Martinus Nijhoff Publishers), pp. 153–80. Government of South Africa (2008), Country report: Human Rights Council’s universal periodic review mechanism, (Pretoria: Government of South Africa). Heywood, Mark (2005), ‘How South Africa’s HIV/AIDS National Treatment Plan was won: Sustaining a civil society campaign for socio-economic rights’, in Peris Jones and Kristian Stokke (eds.), Democratising development: The politics of socio-economic rights in South Africa (Leiden: Martinus Nijhoff Publishers), pp. 181–212. Jones, Peris (2009), AIDS treatment and human rights in context (New York: Palgrave Macmillan). Jones, Peris, with Malcolm Langford and Tara Smith (2010), Final programme report on the South Africa Programme 2005–2009 (Oslo: Norwegian Centre for Human Rights). Jones, Peris, and Kristian Stokke (eds.) (2005), Democratising development: The politics of socio-economic rights in South Africa (Leiden: Martinus Nijhoff Publishers). Kapczynski, Amy and Jonathan Berger (2009), ‘The story of the TAC case: The potential and limits of socio-economic rights litigation in South Africa’, in Deena Hurwitz, Margaret Satterthwaite, and Douglas Ford (eds.), Human rights advocacy stories, Law Stories Series (New York: Foundation Press), pp. 43–80. Lancet (2009), ‘Health in South Africa’, Vol. 374, Special Issue. Merry, Sally (2006), ‘Transnational human rights and local activism: Mapping the middle’, American Anthropologist, Vol. 108, No. 1, pp. 38–51. Ngwena, Charles (2007), Health and human rights (Farnham: Ashgate Publishing). Ngwena, Charles, and Rebecca Cook (2005), ‘Rights concerning health’, in Danie Brand and Christof Heyns (eds.), Socio-economic rights in South Africa (Pretoria: Pretoria University Law Press) pp. 107–51.

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Pattinson, Robert (ed.) (2008), Saving mothers, 2005–2007: Fourth report on confidential enquiries into maternal deaths, carried out by the National Committee on Confidential Enquiries into Maternal Deaths (Pretoria: Tshepesa Press). Pillay, Karrisha (2002), ‘South Africa’s commitment to health rights in the spotlight: Do we meet the international standard?’, in Danie Brand and Hillary Russell (eds.), Exploring the core content of socio-economic rights: South African and international perspectives (Pretoria: Protea Book House), pp. 61–70. Posel, Deborah (2005), ‘Sex, death, and the fate of the nation: Reflections on the politicization of sexuality in post-apartheid South Africa’, Africa, Vol. 75, No. 2, pp. 125–53. Robins, Steven (2005), ‘From “medical miracles” to normal(ised) medicine: AIDS treatment, activism and citizenship in the UK and South Africa’ (Working Paper No. 252, October, Institute of Development Studies, (Brighton: IDS). (2008), From revolution to rights in South Africa (Oxford, UK: James Currey). Stuttaford, Maria, Gillian Lewando Hundt, and Panos Vostanis (2009), ‘Sites for health rights: The experiences of homeless families in England’, Journal of Human Rights Practice, Vol. 1, pp. 257–76. Tushnet, Mark (1984), ‘An essay on rights’, Texas Law Review, Vol. 62, pp. 1363–1412. UNAIDS (2006), HIV/AIDS and human rights international guidelines, Revised Guideline No. 6 (Geneva: UNAIDS). Von Holdt, Karl, and Mike Murphy (2007), ‘Public hospitals in South Africa: Stressed institutions, disempowered management’, in Sakhel Buhlungu, John Daniel, Roger Southall, and Jessica Lutchman (eds.), State of the nation: South Africa 2007 (Pretoria: HSRC Press), pp. 312–41. Zuberi, Farhana, Peris Jones, Pierre Brouard, and Frans Viljoen (2004), HIV/AIDS stigma and human rights – A localised investigation of Hammanskraal communities: A report of the Tswelopele Research Project of the Centre for the Study of AIDS (Pretoria: Centre for the Study of AIDS, University of Pretoria).

9 Social Security Rights Campaigns and Courts Beth Goldblatt and Solange Rosa*

1. INTRODUCTION

Almost one third of the South African population (16 million people out of a total population of 50 million) benefit from social assistance grants as at 30 September 2012 (South African Social Security Agency [SASSA], 2012). The social security system in South Africa has grown dramatically over the past decade and a half. It is considered by government and non-government sectors to be the most successful poverty alleviation programme in the country, given its wide reach and developmental impact on high levels of poverty and unemployment. This chapter tries to understand which strategies were most effective in ensuring that the government met and increased its obligations to realise the right to social security in South Africa’s Bill of Rights. The chapter suggests that litigation played an important role, in combination with advocacy and lobbying by civil society, to both pressure the government and support progressive elements within it to implement and expand the reach of the right to social security (through extending existing grants). Efforts to introduce new grants within anti-poverty campaigns and through lobbying and advocacy strategies were less successful in achieving realisable results, although they may have contributed to change in symbolic and political terms by raising awareness of socio-economic rights provisions and of the high levels of unmet needs in poor communities. These strategies are explored through four case studies. The chapter considers two successful efforts to extend social assistance grants: the Child Support Grant to all children up to the age of eighteen and the Old Age Pension to men between the * Beth Goldblatt is a Visiting Fellow at the Australian Human Rights Centre in the Faculty of Law at the University of New South Wales and an Honorary Senior Research Fellow at the School of Law, University of the Witwatersrand. Solange Rosa is a Doctoral Candidate at the University of Stellenbosch and a Senior Policy Analyst in the Premier’s Department, Western Cape Provincial Government. Author contact information: Beth Goldblatt ([email protected]), Solange Rosa ([email protected]).

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ages of sixty and sixty-five. In contrast, the chapter explores two still unsuccessful efforts to secure the right to social security for people with chronic illnesses and for those members of the poor not encompassed within the social assistance net (the call for a chronic illness benefit and the campaign for a basic income grant [BIG], respectively). The chapter evaluates the impact of strategies by looking at the resulting policy and legal changes, the increased or improved delivery of grants, progressive shifts in government attitudes and approaches, and public awareness of rights and entitlements. How strategies cause change to occur is examined by looking at the relationship among the various actors pushing for change, the strategies they use, and the impact these have. The causal links are explored through seven qualitative interviews with key players in civil society and government, through participant observation, and with reference to literature and press coverage of the events described. The chapter uses interviews with government officials from the Department of Social Development and officers of non-governmental organisations (NGOs), together with relevant documents, to support its arguments. The authors were also directly involved in some of the litigation and advocacy strategies and draw on their own experiences to inform their arguments.1 This chapter does not claim to provide a comprehensive overview of all strategies employed within the realm of the right to social security. It focuses on four case studies dealing with different existing and proposed grants. It has not entered into an examination of the range of administrative justice court challenges and campaigns that have also had a profound impact on the realisation of the right to social security in South Africa (see de Villiers, 2002; de Villiers, 2006; Liebenberg, 2005; Jagwanth, 2004; Plaskett, 2000). For example, litigation brought by the Black Sash to force the Department of Social Development to make back payments to grant recipients who had waited for long periods before receiving their grants, resulted in people being paid from date of application rather than date of approval.2 This led to more than R2 billion (US$250 million) being made available from the budget to ensure implementation.3 Attempts by others to understand these strategies are encouraged. 1

2 3

The following interviews were conducted: Selwyn Jehoma, Deputy Director-General of social security, Department of Social Development, Pretoria, 16 July 2010 (Goldblatt and Rosa); Wiseman Magasela, Deputy Director-General of policy, Department of Social Development, Pretoria, 17 July 2010 (Goldblatt and Rosa); Ratula Beukman, advocacy program manager, Black Sash Trust, Cape Town, telephone interview, 11 August 2010 (Goldblatt); Sarah Sephton, attorney, Legal Resources Centre, Grahamstown, telephone interview, 17 August 2010 (Goldblatt); Jonathan Berger and Umunyana Ragege, Section27, Johannesburg, telephone interview, 19 August 2010 (Goldblatt); Paula Proudlock, manager of child rights, Children’s Institute, Cape Town, telephone interview, 7 September 2010 (Rosa); and Neil Coleman, strategies coordinator, COSATU, Cape Town, telephone interview, 9 September 2010 (Rosa). Although only two government officials were interviewed, we believe that this is sufficient given their central, high-level positions and knowledge of historical events. The interviews showed consistency with one another regarding key events and developments within the department. Jehoma interview, 2010. Jehoma interview, 2010.

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2. SOCIAL SECURITY REFORM IN POST-APARTHEID SOUTH AFRICA

2.1. Historical Background During the apartheid era a welfare system was created primarily for whites, to protect them against risk and poverty by means of social insurance (Van der Berg, 2002). South Africa’s first social assistance programme was initiated with the enactment of the Children’s Protection Act of 1913,4 which provided maintenance grants largely for white children. Very few of these grants reached black people, and none was given to black people residing in rural areas (Bhorat, 1999). The Old Age Pension Act of 19285 provided grants in the form of social (noncontributory) pensions for Coloureds and Whites. Blacks and Indians were initially excluded but were covered in 1944. Coloureds and Whites also benefitted from a disability grant, which was introduced in 1937. Disability grants were extended to Blacks and Indians in 1947. The State Maintenance Grant, to support poor parents and their children, was mainly of benefit to White, Coloured, and Indian families, with black Africans largely falling outside of its reach. 2.2. Social Security Reform after Democracy The new South African Constitution provided for the right to social security in Section 27 as follows: (1) Everyone has the right to have access to – . . . (c) social security, including, if they are unable to support themselves and their dependants, appropriate social assistance. (2) The State must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights. After the advent of democracy in 1994, a racially integrated social security system was introduced to cover the population as a whole. Various policy processes followed to consider reforms to the major features of the system. The Lund Committee for Child and Family Support, which met in 1996, recommended the replacement of a family benefit with a new cash grant for poor children. This led to the introduction of the Child Support Grant in 1997. The grant has since become the largest social assistance grant in terms of the number of people it reaches. The White Paper for Social Welfare of 19976 dealt with key substantive issues in the restructuring of social welfare services, programmes, and social security. It used 4 5 6

Children’s Protection Act, 1913 (No. 25 of 1913). Old Age Pension Act, 1928 (No. 22 of 1928). White Paper for Social Welfare, August 1997, http://www.info.gov.za/view/DownloadFileAction?id= 127937.

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the concept of developmental social welfare as the new policy framework for the restructuring of the social service delivery system. It was an important document in providing a progressive, though contested, framework for social development (Hassim, 2006). In 2002, a commission was established under Professor Vivienne Taylor to examine the social security system and make recommendations for policy and law reform. Prominent labour, church, and civil society organisations, such as the South African Council of Churches (SACC), the Congress of South African Trade Unions (COSATU), and the Black Sash, as well as academics and research institutes, contributed research and made submissions on a comprehensive social security system for South Africa. The Taylor Committee Report7 called for a comprehensive social assistance scheme to meet the medium- to long-term goals of social and economic transformation in South Africa, which included the extension of the Child Support Grant, a BIG, the equalisation of the Old Age Pension, and a grant for people with HIV/AIDS. This was the scheme recommended in the context of high levels of unemployment in South Africa, in particular amongst the African population. There was no wholesale acceptance of the report, but a number of its findings have found their way into government policy and legislation. In 2004 a new Social Assistance Act8 was legislated, which defines social assistance as income transfers in the form of grants that are provided by the government to vulnerable groups. The grants provided for in the Act and their rand values in 2012 were as follows: the disability grant (R1200); a grant for older persons (R1200 or 1220 if over 75 years); a war veterans’ grant (R1220); a foster child grant (R770); a care dependency grant (R1200); child support grant (R280), and a grant-in-aid (R280).9 The South African Social Security Agency Act of 200410 was enacted to provide for the establishment of the South African Social Security Agency as an agent for the administration, management, and payment of social assistance. In 2005, the Constitutional Court in the Mashavha11 case defined “social grants” as “welfare services” in Schedule 4 of the Constitution. The assignment of the Social Assistance Act to provinces thus reverted to a national competency. The national minister was vested with clear national control over social assistance to set national policy in relation to the administration of social grants and to establish clear regulations, norms, and standards in relation to matters such as grant-processing time, administrative requirements, eligibility requirements, and suspension and termination procedures. 7

8 9

10 11

‘Transforming the Present – Protecting the Future,’ report of the Committee of Inquiry into a Comprehensive System of Social Security for South Africa, March 2002, http://www.cdhaarmann .com/Publications/Taylor%20report.pdf. Social Assistance Act, 2004 (Act No. 13 of 2004) as amended. South African Government Services ‘Social Benefits’ . South African Social Security Agency Act, 2004 (Act No. 9 of 2004). Mashavha v President of the Republic of South Africa and Others 2005 (2) SA 476 (CC); 2004 (12) BCLR 1243 (CC).

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2.3. Impact of the Social Security System During the past two decades, extensive fiscal space and sweeping reforms have enabled South African policy makers to develop an unusually large social grants system. South Africa had the ninth-highest value in a recent comparison of the ratios of social assistance spending to gross domestic product in seventy-four developing and transition countries (Weigand and Grosh, 2008). This redistribution of R80.4 billion in 2009–10 through the fiscus has substantially improved conditions in poor households. The share of households that reported that pensions and social grants formed their main source of income rose from 23 per cent to 34 per cent between 2002 and 2005 (Siebrits and Van der Berg, 2010). The developmental impact of grants has been the subject of much debate in South Africa, in particular in the local context of the desired shift from a welfare State to a developmental State, as well as globally. The debate revolves around the financial sustainability and developmental outcomes of social grants. Commentators have argued that the widening net of social grants is unsustainable, that grants are squandered by the poor on such things as alcohol, and that grants create high levels of dependency that disincentivise people from searching for employment opportunities. However, the evidence shows that social grants do have developmental attributes. Studies on developmental outcomes of grants have shown that grants boost the food spending of beneficiaries (Community Agency for Social Enquiry, 2008) and increase nutritional benefits to children (Aguero et al, 2007; Yamauchi, 2005; Williams, 2007). They also show that households that receive grants spend relatively more on basic necessities (food, fuel, housing, and household operations) and relatively less on medical care, debt service, and tobacco than households that do not receive grants (Samson et al, 2004). In addition, grants encourage school attendance among recipients of child support grants and children living with pensioners (Case et al, 2005; Budlender and Woolard, 2006; Leibbrandt et al, 2010). 2.4. Policy Gaps and Inequities Despite reforms and the extensive reach of the social security system post-apartheid and up to and including the introduction of the Social Assistance Act of 2004, a number of policy gaps and inequities existed. First, different age thresholds were applicable to men and women eligible for the Old Age Pension – it was made available to men from the age of sixty-five and women from the age of sixty. Second, only children younger than age seven were initially eligible for the Child Support Grant. Third, no provision for social assistance for ‘able-bodied’ persons of working age (between the ages of eighteen and sixty) existed, despite the large number of poor, unemployed people facing long-term joblessness in the context of massive structural unemployment. Fourth, persons with chronic illnesses such as HIV/AIDS were not covered by the disability grants. Fifth, non-citizens were excluded from the grant system. And sixth, problems with the administration of grants (for example, delays on

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appeals, requirements of birth certificates and identification documents, application of financial eligibility criteria) caused delays, uncertainties, and inequities in access to social grants. As a result, civil society organisations lobbied and advocated for a comprehensive social security system to address these issues and to ensure that all people who could not support themselves or their dependants would be covered by the social safety net. This was considered especially important in the context of the lack of basic services and limited realisation of other socio-economic rights, such as housing and health care, as discussed elsewhere in this book. This is the subject of the following section, which provides an analysis of the strategies utilised by these organisations and campaigns to progressively realise the right to social security with regard to the first four gap areas listed earlier. The fifth and sixth issues are not discussed in this chapter. Nonetheless, the issue of non-citizen access was raised in the Constitutional Court case of Khosa in relation to the social security rights of permanent residents, and its impact is discussed in Chapter 14, by Polzer Ngwato and Jinnah. The issue of grant administration, though strongly challenged with a range of strategies by civil society groups such as the Legal Resources Centre and the Black Sash, is not discussed in this chapter. 3. STRATEGIES FOR SOCIAL SECURITY RIGHTS

3.1. Child Support Grant Turning to the first policy gap, the Child Support Grant (CSG) was introduced in 1997 to provide social assistance to the country’s vulnerable children. It initially covered only children younger than seven years of age, thus leaving many children living in poverty without financial support. In 2005 the CSG was extended incrementally to children younger than fourteen years of age, and then to eighteen years in 2010.12 The grant, currently R280 per month, is payable to the child’s primary caregiver, who qualifies on the basis of a means test. The means test is calculated as the amount of the grant multiplied by ten. More than 11 million children currently benefit from the Child Support Grant.13 The gradual extension of the coverage of children eligible for the Child Support Grant over the past few years, from children younger than the age of seven to all children younger than the age of eighteen,14 is considered, by governmental officials 12

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In terms of Section 6(1) of the amended Social Assistance Act of 2004, the government extended the Child Support Grant in phases to children younger than the age of eighteen years over a period of three years, from 1 January 2010 (younger than age sixteen on or after 1 January 2010; seventeen years on or after 1 January 2011; and eighteen years on or after 1 January 2012). South African Government Services ‘Social Benefits’ . The definition of a child in the Constitution, Section 28(3).

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and community organisations alike, a huge success because of the advocacy efforts of civil society and the commitment of the then Minister of Social Development, Zola Skweyiya, to poverty alleviation.15 The Alliance for Children’s Entitlement to Social Security (ACESS) was established in March 2001 at a workshop attended by NGOs, community-based organisations, faith-based organisations, service providers, members of Parliament, and representatives of government. It was believed that an alliance representing the children’s sector would be an effective way to promote a comprehensive social security system. The initial focus of ACESS was largely on advocating for the extension of the Child Support Grant to all children younger than the age of eighteen, as part of a comprehensive package of cash grants, social welfare services, health care, education, nutrition, and water and sanitation. It also placed a lot of emphasis on ensuring access to grants for those children who were already eligible, through grant jamborees and advocacy on administrative barriers to access (for example, children without birth certificates). The alliance grew to more than a thousand community-based and NGO member organisations in just a few years. The advocacy strategies utilised by ACESS from its inception included policy research, campaigns (including a protest march at the African National Congress (ANC) Policy Conference in Stellenbosch in 2002); a letter-writing campaign to the Minister of Social Development, submissions on legislation, lobbying of the Department of Social Development and the Portfolio Committee on Social Development and the Minister for Social Development, media publicity, and litigation. The Basic Income Grant Coalition, and its members, which included COSATU and the SACC, also lent their weight to the extension of the Child Support Grant to children up to the age of eighteen years. The grant was extended from age seven to fourteen because of substantial pressure from ACESS and its partners (Proudlock, 2010). According to a senior government official: “ACESS has done a lot of work in reinforcing our commitment as a country and understanding of the importance of children’s rights.”16 The ANC National Policy Conference in June 2007, as well as the National Conference in Polokwane in December 2007, passed a resolution calling for the gradual expansion of the Child Support Grant to children younger than the age of 18. Although the Department of Social Development had previously voiced strong support for the extension, it had stopped short of making the regulatory changes to facilitate this. The Children’s Institute, a child rights policy think tank at the University of Cape Town, consequently supported the launch of a High Court challenge by a mother of a fourteen-year-old boy, on the basis that the Department of Social Development was denying impoverished fourteen- to eighteen-year-olds their constitutional right to social security, the right to equality, and other related children’s socio-economic 15 16

Jehoma interview, 2010. Magasela interview, 2010.

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rights. The applicant was Florence Mahlangu, who lived in Ga-Motle Village (fifty kilometres from Pretoria) in North West Province. Mrs Mahlangu had three children who were too old to qualify for the CSG. She was employed as a domestic worker and earned up to R1000 per month. Her income fluctuated because of the casual nature of her employment. Her husband was unemployed and had been so for seven years. Mrs Mahlangu was therefore the sole provider for her family. She used her income to pay for all the household expenses, including water, electricity, transport, food, and school fees. Her disabled daughter attended a special school with fees of R225 per month.17 Mrs Mahlangu was supported by lawyers at the Legal Resources Centre and a number of civil society organisations that work on children’s rights, including the Children’s Institute and the Centre for Actuarial Research, both at the University of Cape Town, the Community Agency for Social Enquiry, the Black Sash, and ACESS. Mrs Mahlangu’s lawyers argued that the Constitution guarantees everyone the right to have access to social assistance (grants) if they are unable to provide for themselves and their children. The Social Assistance Act of 2004 gives effect to this right by providing for a range of social grants for people in need. The Child Support Grant was introduced primarily to provide income support to caregivers of children; however, the regulations to the Act said that children had to be younger than the age of fifteen years to qualify. The result was that there was no social grant for poor caregivers caring for children between the ages of fifteen and eighteen. This is despite the fact that approximately 2.4 million of the children in this age group live in poverty and would qualify under the Child Support Grant means test as eligible for the grant. Many caregivers desperately need income support to ensure that their children have food and clothes. The grant is also needed to pay for transport to schools and clinics; to pay for school supplies; and to use towards payment for rent, water, and electricity. Mrs Mahlangu’s lawyers thus argued that the limitation of the age of the Child Support Grant to age fifteen infringed on a number of constitutional rights: the rights to social assistance, food and nutrition, social services, basic education, equality, dignity, and life.18 The government’s responses emanated from two quarters: the Minister of Finance and the Department of Social Development. The Minister of Finance opposed the Mahlangu case on the basis that there are finite resources and that these have to be shared between a number of competing social policies. The minister was not yet convinced that the extension of the grant to older children was the appropriate policy intervention for this particular vulnerable group, and chose to instead consider vocational training and other options. In addition, it was argued that it was not the prerogative of the judiciary, but of the executive, to decide on such complex matters 17 18

Proudlock interview, 2010. Ibid.

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of policy.19 The Department of Social Development, in contrast, did not argue very strongly against the extension of the Child Support Grant because it was in fact in favour of it. The case was heard in March 2008 before Judge Mavundla, and at the time of writing, judgment was still pending (more than four years overdue). On 31 December 2009 and in March 2010, the Minister of Social Development gazetted amendments to the Social Assistance Act 2004 that extended the Child Support Grant to all poor children younger than eighteen who were born on or after 31 December 1993. This effectively extended the grant in a phased manner, with the result that by the end of 2012, all poor children younger than eighteen were eligible for it. The court case has thus become moot, as the government has essentially granted Mrs Mahlangu the relief she was seeking. Mrs Mahlangu’s lawyers are in talks with the State attorneys to suggest a settlement, as judgment is no longer necessary.20 The Children’s Institute and ACESS took two other cases regarding the CSG to court: one focused on barriers to access to the grant (lack of birth certificates and identity documents) and the other on the retrogressive nature of eligibility for the grant (the means test had not been adjusted for inflation since its inception). In both of these instances, litigation was a last resort; years of research, dissemination, dialogue, and campaigning had failed to achieve the requisite reforms. Litigation in these cases resulted in the almost immediate revision of the regulations to the Social Assistance Act, in line with the arguments from civil society. The Children’s Institute and ACESS were co-applicants in both cases. A lawyer involved in the cases said that the “government works hard to avoid judgments against them”.21 She expressed frustration at the amount of time spent on these cases and in reaching agreement with the government, only to have agreements break down, which requires court challenges and immediate legislative changes before judgment is given. All three of the cases related to the reach of the CSG and its implementation illustrate that litigation is undoubtedly a powerful tool for bringing about legislative and policy change. The Children’s Institute believed that in the case of the identity documents, without the pressure of litigation, the reform would not have been made, and similarly in the cases of the means test threshold and the age threshold (Children’s Institute, 2007–8). 3.2. Old Age Pension22 The Old Age Pension, now known as the Older Person’s Grant, is a means-tested grant paid at a relatively high rate to almost 80 per cent of the relevant age group in South Africa. It is a highly effective poverty alleviation tool that assists millions 19 20 21 22

Ibid. Ibid. Sephton interview, 2010. This section is drawn in part from Goldblatt (2009: 460–62).

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of older persons and many members of their households (Duflo, 2003; Moller and Ferreira, 2003). It provides this group with status and respect, as well as some authority over household spending. Until recently, the Old Age Pension was provided to women who had reached the age of sixty and men who had reached the age of sixty-five. This distinction was a legacy from the 1930s in recognition of women’s earlier marrying age and shorter working lives. When the new government came to power under democracy in 1994, there was an acknowledgment that retaining the policy was problematic in terms of the constitutional commitment to equality. This was, however, the subject of debate, with some considering the privileging of women to be an appropriate response to their greater disadvantages (Minister of Welfare, 1995). Despite the recommendation of the Taylor Committee of Inquiry (Taylor, 2002: 98) to equalise the Old Age Pension, nothing was done to change the legacy of age-differentiated pension benefits. It was only in 2005 that the government was forced to confront this issue when a group of men between the ages of sixty and sixtyfive (supported by the State-funded Legal Aid Board) brought an application to the High Court to declare the legislation, differentiating between men and women on the basis of age for the purpose of the Old Age Pension, unconstitutional on the basis of an infringement of the rights to equality and social security (the Roberts case). The government’s response to the case (by the ministers of social development and finance) was that the age differentiation was not unfair discrimination or a violation of the applicant’s rights to social security, but it was a positive measure designed to advance the rights of women as an economically, socially, and politically vulnerable group in society. Women’s rights and human rights organisations, aware that this was a case that might benefit from amicus curiae interventions, debated the merits of the arguments on both sides. There was a concern that a court might find that the appropriate remedy was a ‘downward’ equalisation to, say, sixty-three, thus removing the grant from a group of women in need. Some organisations felt, like government, that women should be advantaged over men through early provision of the grant and so chose not to intervene. Others chose to intervene to argue against a remedy that might harm women and because they viewed the case as important in extending the social security system to an additional group of disadvantaged people.23 The case was heard in September 2007, but before any judgment was given, the President announced in his State of the Nation speech at the beginning of 2008 that the Old Age Pension was to be equalised at age sixty over a period of three years, ending in April 2010 (Mbeki, 2008). He said this would benefit about half a million men. The Minister of Finance confirmed this soon after in his budget speech, when he explained that “the progressive extension of social security is a central element 23

The Centre for Applied Legal Studies at the University of the Witwatersrand and the Community Law Centre at the University of the Western Cape were admitted as amici curiae. The South African Human Rights Commission also intervened but with respect to different arguments concerning the rights of same-sex couples.

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of our anti-poverty strategy, made possible by the fiscal space created over the past decade” (Manuel, 2008). The government’s decision, in all likelihood a response to pressure from the court case, was framed as part of “the country’s war against poverty, in pursuit of socioeconomic inclusion” (Mbeki, 2008). The decision by government to extend the Old Age Pension to men younger than sixty-five appears to have been based on the belief that the government was in violation of the Constitution. Government then waited until challenged before addressing the violation. Interestingly, government chose to oppose the equalization case in court but proceeded, in any event, to change the law before judgment was handed down. This may have been based on a fear that the judgment would go against government and on a desire to increase public support. This view was confirmed by a government interviewee who suggested that the government believed that it was in the wrong and would lose the case, and that bringing men in was supported within sections of the ruling party and was an election issue.24 Another government interviewee also felt that it was likely that the litigation pushed the government to make the changes.25 It is also possible that the government wished to pre-empt the judgment so as to control the remedy. Had a decision come from the court requiring immediate increase of the pension to all eligible men, the government would not have had the space to phase in the increase over time. The role of civil society was relatively limited in this case. Individual men affected by the inequality approached the Legal Aid Board, which prepared the test case. Although certain organizations joined as amici curiae, there was not an organised campaign around the issue or any advocacy or lobbying of any kind. The litigation was the site of the struggle and appeared to directly and effectively influence the government’s subsequent decision. The impact of the decision was the immediate inclusion of thousands of men into the grants system and the longer-term inclusion of millions more. In March 2010, two and a half years after the hearing in the Roberts case, a judgment was finally given by Justice Mavundla.26 The judge dismissed the application for equalisation of the pension on the basis that women were discriminated against unfairly, that the government did not have sufficient resources for such a change, and that the Court should not interfere in the “legislative domain”. The judgment did not consider the right to social security. The judgment also made no mention of the fact that the law had changed in the period between the hearing and the judgment, a clear indication that the change was in fact affordable. Thus, the case created the strange situation in which the Court has ruled against equalisation but the government has already legislated for it. Had the government failed to change

24 25 26

Jehoma interview, 2010. Magasela interview, 2010. Roberts and Others v Minister of Social Development and Others (unreported decision of the Transvaal Provincial Division, Case Number 32838/05).

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the law, it is likely that this judgment would have been appealed with the strong possibility that the Constitutional Court would have come to a different conclusion. 3.3. Chronic Illness Benefit During the past decade there has been a huge increase in the uptake of the Disability Grant, from 600 000 in 2000 to 1.3 million in 2006. (This has since dropped somewhat, which may reflect the government’s tightening up of grant approvals.) The grant is provided to people who are unable to work as a result of their disability. The AIDS epidemic is likely the reason for this huge increase, but poverty, changes to the grant system, and large-scale structural unemployment have also led to people turning to State assistance wherever possible (Nattrass, 2006). Commentators have noted the potential danger of perverse incentives in which people, fearing the loss of their Disability Grants if they go onto antiretroviral medication, may purposefully fail to do so to stay ill enough to continue receiving the Disability Grant (Hardy and Richter, 2006; Nattrass, 2006). The Disability Grant was not designed for people with chronic illnesses whose health conditions vary over time and are sometimes, at least in theory, able to work. The difficulty is that poverty coupled with chronic disease creates a group of particularly vulnerable people who have additional associated costs, such as frequent travel to clinics; the need for more nutritious food; medication; and the need for shelter, warmth, and hygiene facilities beyond those required by healthy people. The social assistance system does not address the needs of this group. This gap in provision led to calls for a basic income grant (Nattrass, 2006; Hardy and Richter, 2006), as recommended in the Taylor Committee Report (Taylor, 2002) as a possible response. Another idea to emerge was the suggestion of a social assistance grant specifically designed to meet the needs of people with chronic illnesses. The Department of Social Development, mindful of this gap and the huge increase in the Disability Grant, in 2007 commissioned a study of the possibility of creating a chronic illness grant. The department, aware that the Department of Health was trying to address the broader needs of HIV-positive patients through nutritional and related support, felt that it was best placed to offer direct material support to such people.27 The department also saw the importance of assisting people with diseases other than HIV/AIDS such as tuberculosis and diabetes. This was politically important in the context of the battle between civil society groups working on the issue of AIDS and the Mbeki government. The study, prepared by the Human Sciences Research Committee (HSRC) proposed a chronic illness grant of a smaller size than the Disability Grant (Schneider et al, 2007). It seems that the Department of Social Development considered promoting the proposal to Cabinet but decided against this; however, the issue may be raised again in the future. 27

Jehoma interview, 2010.

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The idea of a chronic illness benefit seems to have emerged from government but was picked up by NGOs. It was included in the National Strategic Plan for HIV & AIDS and STI 2007–2011 of the South African National AIDS Council (SANAC, 2007: 120–1). In 2007 the Centre for Applied Legal Studies (CALS) at the University of the Witwatersrand held a workshop on social assistance, disability, and chronic illness (Goldblatt, 2007b). The HSRC was invited to present its findings, and the Department of Social Development also attended, along with a number of representatives of non-governmental organisations. The government speaker saw constitutional compliance as a challenge, but civil society representatives framed their arguments for a chronic illness benefit in rights terms. Advocacy following this workshop included letters to the Minister of Social Development from the workshop participants and a meeting with the department in 2007 to call for a chronic illness grant. At that meeting, members of the department expressed concern that civil society was not providing a united voice on what it wanted government to do about chronic illness. They said that the disability sector in particular needed to be more vocal on the issue (Goldblatt, 2007a). In June 2008 the SANAC Technical Task Team (TTT) for Treatment, Care, and Support released a discussion paper advocating the implementation of a Chronic Diseases Grant. The discussion paper was adopted in principle by the Programme Implementation Committee (PIC) of SANAC, and the TTT was mandated to develop a proposal for its implementation. It set up a working group with expert sub-committees on health, law and policy, economics and costing, and community mobilisation. Despite this ambitious approach, little appears to have been done since then.28 In 2009 the Minister of Social Development introduced the Social Assistance Amendment Bill to Parliament (Parliamentary Monitoring Group, 2010). The Portfolio Committee considered the Bill in 2010, and public hearings were held. It appears from the introduction of the Bill by the Director-General of the Department of Social Development that the purpose of the Bill was to tighten the definition of disability so that people with chronic illnesses would no longer be able to benefit from the Disability Grant. This was required following the exponential rise in Disability Grant applications. Despite submissions from organisations such as Black Sash, the Aids Law Project, and the Treatment Action Campaign concerned about the plight of the chronically ill, the committee accepted the Bill without major change. The result is that rather than moving towards a chronic illness grant, chronically ill people are being “squeezed out of the system”.29 The Bill also added a step in the process of appealing a decision to refuse a Disability Grant. This appears to have made the process more cumbersome, added to the burden on applicants, and lengthened the already extremely long appeals 28 29

Berger and Ragege interview, 2010. Beukman interview, 2010.

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backlog.30 The Legal Resources Centre is involved in planned litigation on the length of the appeals backlog. According to Selwyn Jehoma, Deputy Director-General of Social Security in the Department of Social Development,31 the grant did not succeed at the Cabinet level for two reasons: first, because of territorialism between the Departments of Health and Social Development, with the former wanting to prevent the latter from getting a larger share of the budget for a group that it felt was its responsibility; second, because the HSRC calculations did not take account of income levels in relation to disease types, which resulted in a very large number of people in need of the grant. This was because of a lack of adequate health data. The result was that the Department of Social Development felt that it would be asking for an unaffordable amount to cover this new grant. Wiseman Magasela, the Deputy Director-General, Policy in the Department of Social Development noted that chronic illness, while though an issue, has not yet been finalised in government, as government “seems somewhat unconvinced that they need to support people with chronic illnesses [that] . . . these people need to take their medication”.32 Magasela also noted that organisations such as the National Association of People Living with Aids have not been strategic in their advocacy on the issue by failing to compromise and by occupying government offices. Activists felt that the challenge to the Bill was unsuccessful because of the lack of careful and coordinated strategies between organisations on the issue of a chronic illness benefit and because of the weakness of the portfolio committee, whose members lack the hard skills to be able to deal with the policy complexities of HIV/AIDS, chronic illnesses, and barriers to access services.33 Civil society’s efforts to secure a chronic illness grant appear to have been responsive (rather than proactive) to government’s own commissioned research, to SANAC’s statement and to the Social Assistance Amendment Bill 2010. They have also been sporadic (the CALS workshop and the SANAC working group) and uncoordinated (the various parliamentary submissions). Divisions in government on this issue and the lack of proper costing also created obstacles to success. The Black Sash is committed to taking this issue forward,34 but its ability to overcome these various obstacles remains to be seen. 3.4. Basic Income Grant From as early on as the development of the White Paper on Social Welfare in 1997, COSATU had called for an incremental approach to building on the pre1994 social security system and for a comprehensive social security system. These 30 31 32 33 34

Sephton interview, 2010. Jehoma interview, 2010. Magasela interview, 2010. Berger and Ragege interview, 2010. Beukman interview, 2010.

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elements were incorporated into the final white paper. In an effort to build on that commitment, COSATU subsequently tabled a Basic Income Grant (BIG) for the first time at the Jobs Summit in 1998. The BIG concept was based on research commissioned by COSATU that looked at the options of a BIG and comprehensive unemployment insurance. The notion of a comprehensive social security system was placed on the agenda as a contrast to the patchwork social security system that left out most people. As discussed earlier, the idea of a comprehensive social security system was proposed by the government-appointed Taylor Committee of Inquiry. COSATU played a key role in shaping the conclusion of the committee, through its lobbying efforts and submissions to the committee.35 The adoption of this concept by an official government committee of inquiry meant that it increasingly began to resonate and have legitimacy in society more broadly. Also, COSATU went further to embrace comprehensive social protection beyond social security. The Basic Income Grant Coalition was formed in 2001 to develop a common platform among advocates of a universal income support grant and to mobilise popular support for the introduction of the grant. It was set up by representatives of various sectors of civil society, namely church, labour, human rights, HIV/AIDS, children’s rights and youth organisations, as well as the elderly. Proponents of a BIG based their argument on Section 27 of the Constitution, which provides for a right to social security and social assistance for those who are unable to support themselves and their dependents. They argued that workingage adults were not able to support themselves because of a shortage of available employment in the economy. These adults thus needed assistance from government to support themselves and their families. More substantial, incorporating a BIG as part of a comprehensive social security reform was argued to be developmental in nature.36 The extensive research clearly documented that comprehensive social security reform could effectively reduce poverty while potentially contributing to social development and economic growth (Samson, 2003). Effectively addressing poverty in a developmental manner supports job-creating economic growth. Income grants support workers’ productivity as they bolster consumption: better nutrition, health care, housing, and transportation all support the increased productivity of workers (Samson, 2003). They also calculated the costs to the fiscus and proposed tax models to recoup those costs (Samson, 2003), to counter the National Treasury’s argument that a BIG was an unaffordable policy option and would “bankrupt the country” (Manuel, 2008). After much lobbying by members of the BIG Coalition, in 2002 the Taylor Committee Report recommended the extension of the CSG and the foundation of a BIG

35 36

Coleman interview, 2010. Ibid.

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as integral to a comprehensive social assistance scheme to meet the medium- to long-term goals of social and economic transformation in South Africa.37 The BIG Coalition used various strategies to promote a BIG, such as mobilisation; campaigning; protest marches; a national conference; submissions on legislation; research reports; the People’s Budget campaign;38 lobbying of government, parliamentarians, and ministers; and the media. The BIG campaign was very important because it provided a focus on poverty and social security. Although it did not succeed in having a BIG implemented, the policy changes to other grants such as the Child Support Grant and the Old Age Pension resulted from the public debate about poverty levels and the economic policies that were worsening the situation of poverty in communities. Many of the gains, particularly in relation to the Child Support Grant, were a response to the national campaigns around the BIG and other campaigns that were connected to these.39 The BIG campaign incorporated the Child Support Grant as part of a continuum of increasingly comprehensive social security measures. It saw the extension of the Child Support Grant as an interim position. The COSATU spokesperson said, “I believe quite strongly that the BIG Coalition’s support for the extension of the Child Support Grant helped push the Child Support Grant forward.”40 The BIG campaign stated that everyone has a right to income transfers and that the Constitution provides for progressive realisation in this regard. However, litigation on the issue was not taken up partly because there was a belief that the case would be lost because of the Treasury’s arguments on the lack of ‘available resources’, and also because moves to extend the Child Support Grant had been on the cards for a number of years, as had extensions to the social insurance system. These moves were considered incremental victories for the social safety net, and the BIG campaign did not want to impede them. Eventually, the BIG Coalition collapsed for a number of internal reasons, including the lack of both personnel resources for the campaign and the required support from member organisations. The coalition faced the difficulty of a single-issue campaign that struggled to diversify and adapt in the face of serious obstacles to progress. At a certain point, the issue and the coalition ran out of steam. 4. ASSESSING THE IMPACT OF STRATEGIES

This chapter suggests that changes to social security provision have come about through pressure from outside of the State in the form of litigation, advocacy, 37 38

39 40

Ibid. The Peoples’ Budget Campaign is a civil society coalition consisting of COSATU, SACC, and the South African National NGO Coalition that, for the past twelve years, has tabled proposals on spending and revenue. The Peoples’ Budget Campaign bases its proposals on a pro-poor perspective within the framework of the realisation of socio-economic rights, including but not limited to the rights to life and human dignity. Coleman interview, 2010. Ibid.

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lobbying, and campaigning. Public opinion also contributed to change. An added factor was the progressive role played by Minister Skweyiya and certain officials in the Department of Social Development in challenging more conservative forces within the government. These conditions allowed non-governmental groups to win key victories related to the extension of existing grants. The Child Support Grant extension resulted from a combination of sustained advocacy and litigation, whereas the extension of the Old Age Pension followed a court challenge and perceived public pressure on the State. The demand for a chronic illness benefit has not yet resulted in success, in part because of the lack of cohesive lobbying and campaigning by activists. The BIG campaign has also failed to deliver a new grant. It would be simplistic to assume that the lack of litigation with regard to the chronic illness benefit and BIG is the reason for the lack of positive change. A number of contextual factors have weighed against the establishment of these new grants. Primary among these is the fiscal conservatism of the dominant elements in the government. The Minister of Social Development during the period of the case studies here, Zola Skweyiya, fought difficult battles within the Cabinet about the overly restricted budget. He was jokingly referred to as a member of the Black Sash by the then finance minister when a challenge by that organisation resulted in billions of rand being set aside in the Department of Social Development’s budget to make back payments on grants.41 Litigation on a BIG could have been argued on the basis of the strong Section 27 right of access to social assistance for those who are “unable to support themselves or their dependants”, given the high rate of unemployment in the country. But a BIG would have required a huge financial commitment, and the government would have argued a lack of ‘available resources’ with which to implement it. The case studies here point to a pattern of the government succumbing to pressure from the courts or sometimes, as illustrated in this chapter, to the mere threat of litigation. In the case of the extension of the Old Age Pension to men of age sixty to sixty-five, the court challenge seems to have been the direct trigger for government action. Jehoma acknowledged that this extension was not a policy priority for the government, but when faced with a court challenge, it felt compelled to act.42 In the Child Support Grant means test and the accompanying identification cases, the instigation of litigation led to prompt action by government where all other forms of pressure had proved fruitless. In all three cases the government avoided waiting for adverse judgments against it. In the case of the Child Support Grant, significant lobbying and campaigning contributed to the extension of the grant to age fourteen. Continued campaigning coupled with a court challenge pushed the government to extend the grant to the age of eighteen. Again, this occurred before the judgment was given but after the government had opposed the application. A lawyer who worked on many of these

41 42

Jehoma interview, 2010. Ibid.

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cases said that lawyers and civil society organizations needed one another because of their distinct roles and contributions to changing laws and policies.43 Government officials interviewed also pointed to the importance of the role of civil society in supporting the efforts of progressive elements of government against the more conservative factions.44 Magasela emphasised that government is not monolithic and that there are tensions within the State. Jehoma described the relationship between advocacy groups and government as “symbiotic” because “we needed them to strengthen our arm” within government. At the same time, these groups also engaged and challenged government and continued to fight the battles that these officials sometimes lost to the government. The same officials also stressed the important role of the former minister of social development, Zola Skweyiya. They felt that his status in the ANC gave him the credibility within the Cabinet to push for reforms where there was significant opposition from the Treasury and other quarters in areas such as the extension of the Child Support Grant from age fourteen to age eighteen. Jahoma also pointed to the minister’s seniority, stature, and awareness of the poverty and hardship facing ordinary South Africans, which motivated his approach. The Department of Social Development has consistently arranged public forums in which ministers and officials engage with members of the public around the country. The feedback from some of these forums appears to be influential in directing policy developments.45 With regard to the BIG campaign, the lack of success in achieving a grant does not indicate a complete failure of the strategy. Both the activists involved and the government officials interviewed viewed the BIG Coalition as influential in the national poverty debate. Magasela noted, “We don’t have the basic income grant in South Africa[,] but we cannot say that the coalition therefore never attained or achieved its objectives. There’s a very critical matter [at] issue here . . . about keeping an issue on the national agenda. . . . [W]e can never overlook that important contribution.” He went on to say that despite government’s refusal to accept a BIG, it did other things in response to the campaign, such as the expanded public works campaign and the reconfiguration of higher education to address youth unemployment.46 As mentioned, the massive cost of a BIG was a major barrier to the success of the campaign, given the economic stance of the Mbeki government. This economic approach was also coupled with an ideological framework held by many in government who saw social grants, and particularly a BIG, as promoting dependency on government. Magasela pointed out that the idea of universal social assistance as opposed to targeted grants has not been “entertained at all” in government.47 He noted that although government turned down a BIG, the campaign was very 43 44 45 46 47

Sephton interview, 2010. Jehoma and Magasela interviews, 2010. Magasela interview, 2010. Ibid. Ibid.

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important in putting the issue on the national agenda. It forced the government to consider and implement a number of other interventions to address the needs of the unemployed. The case study of the chronic illness benefit points to an issue initiated by government and inadequately responded to by civil society. Unlike the BIG campaign, this issue never achieved a high profile in the public realm. It also seems that conflict within the government over this issue led to its shelving. Problems with administration of the Disability Grant and its reliance on the Department of Health assessments may also have led to reluctance to introduce a grant of a similar sort. The future of this issue remains unclear. Greater legal and policy work, as well as coordinated efforts within civil society, are needed to ensure that this issue is promoted within the government. The case studies also point to an issue regarding the role of the courts and strategic impact litigation in the arena of the right to social security. The Old-Age Pension and Child Support Grant cases (as well as the Khosa case) dealt with the relationship between the right to social security and the right to equality in that they pointed to the unfair discrimination involved in keeping certain groups from existing grant entitlements.48 The courts have been (perhaps understandably) more comfortable entering the terrain of prohibiting discrimination than intervening to require the government to create new policies, laws, and grants where none exist. 5. CONCLUSION

Civil society, in the form of coalitions of advocacy organisations, research and advocacy bodies, public-interest litigators and others, has played a major role in efforts to realise the right to social security. It has used a variety of strategies, including campaigns, advocacy, lobbying, and litigation to challenge the government to direct greater resources to the poor and disadvantaged in South Africa. Elements within the government were sympathetic to many of the issues raised by these groups, and they worked hard to advance their own agendas within a sometimes-divided State. The courts, and the threat of litigation, also played an important role in extending rights to groups of people who were denied access to social security. However, the broader political and economic context meant that there were strong forces against change within the government, which limited the effectiveness of the range of strategies employed. Despite this, the result of these strategies has been major growth in the number of social assistance grants in South Africa and budgetary allocations to this crucial area. The larger social assistance net has had an important impact on alleviating poverty and has had some impact on development. The constitutional right to 48

See Liebenberg and Goldblatt (2007) for a discussion of the relationship between the right to equality and social and economic rights.

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social security and the discourse around a comprehensive social security system, as well as the idea of developmental social welfare, continue to shape new strategies.

references Aguero, Jorge, et al (2006), ‘The impact of unconditional cash transfers on nutrition: The South African Child Support Grant’, (Working Paper No. 8, South African Labour and Development Research Unit, University of Cape Town). Bhorat, Haroon (1999), ‘Public Expenditure and Poverty Alleviation in the South African Labour Market’ Working Papers 99026, University of Cape Town, Development Policy Research Unit. Budlender, Debbie, and Ingrid Woolard (2006), ‘The impact of the South African Child Support and Old Age Grants on children’s schooling and work’ (Geneva, International Labour Office). Case, Anne, et al (2005), ‘The reach and impact of child support grants: Evidence from KwaZulu-Natal’ in Development Southern Africa, Vol. 22, No. 4, pp. 467–82. Children’s Institute (2007–8), Annual report. Children’s Institute, Cape Town. Community Agency for Social Enquiry (2008), Review of the Child Support Grant: Uses, implementation and obstacles, Report compiled for the Department of Social Development, the South African Social Security Agency, and the UN Children’s Fund, Johannesburg, Community Agency for Social Enquiry. De Villiers, Nick (2006), ‘Procedural fairness and reasonable administrative action within the social assistance system: Implications of some settled class actions’, South African Journal on Human Rights, Vol. 22, No. 3, pp. 405–37. Duflo, Esther (2003), ‘Grandmothers and granddaughters: Old age pension and intrahousehold allocation in South Africa’, World Bank Economic Review, Vol. 17, No. 1, 1–26. Goldblatt, Beth (2007a), Report of a meeting held between Mr Selwyn Jehoma and Dimakatso Pooe, Department of Social Development and Beth Goldblatt, Johannesburg: Centre for Applied Legal Studies, University of the Witwatersrand (on file with author). (2007b), Social assistance, disability and chronic illness workshop report (Johannesburg: Centre for Applied Legal Studies, University of the Witwatersrand). (2009), ‘The right to social security – Addressing women’s poverty and disadvantage’, South African Journal on Human Rights, Vol. 25, No. 3, pp. 442–66. Hardy, Chloe, and Marlise Richter (2006), ‘Disability grants or antiretrovirals? A quandary for people with HIV/AIDS in South Africa’, African Journal of AIDS Research, Vol. 5, No. 1, pp. 85–96. Hassim, Shireen (2006), ‘Gender equality and developmental social welfare in South Africa’, in Shahra Razavi and Shireen Hassim (eds.), Gender and social policy in a global context (New York: Palgrave MacMillan/UNRISD), pp. 109–29. Jagwanth, Saras (2004), ‘The right to administrative justice: The impact of litigation on the poor’, paper presented at the Foundation for Human Rights Conference Celebrating a Decade of Democracy: A Focus on the Last Ten Years of South Africa’s Democracy and the Advancement of Rights (Durban, 22–25 January). Leibbrandt, Murray, et al (2010), ‘Trends in South African income distribution and poverty since the fall of apartheid’ (OECD Social, Employment and Migration Working Paper No. 101, Paris, Organisation of Economic Co-operation and Development). Liebenberg, Sandra (2005), ‘The judicial enforcement of social security rights in South Africa: Enhancing accountability for the basic needs of the poor’, in Eibe Riedel (ed.),

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Social security as a human right: Drafting a General Comment on Article 9 ICESCR – Some Challenges (Berlin: Springer), pp. 66–90. Liebenberg, Sandra, and Beth Goldblatt (2007), ‘The interrelationship between equality and socio-economic rights under South Africa’s transformative constitution’, South African Journal on Human Rights, Vol. 23, No. 2, pp. 335–61. Manuel, Trevor (2008), ‘Budget speech to Parliament’, Polity.org.za http://www.polity.org.za/ print-version/national-budget-speech-2008-by-south-african-finance-minister-trevor -manuel-20022008-2008-02-20. Mbeki, Thabo (2008), ‘State of the Nation Speech to Parliament’, South African Government Online, http://www.info.gov.za/speeches/2008/08020811021001.htm. Minister of Welfare (Hansard) (1995) 20/6/1995 col 3042. Moller, Valerie, and Monica Ferreira (2003), Getting by . . . Benefits of non-contributory pensions for older South African households (Cape Town: Institute of Ageing in Africa). Nattrass, Nicoli (2006), ‘Trading off income and health: AIDS and the Disability Grant in South Africa’, Journal of Social Policy, Vol. 35, No. 1, pp. 3–19. Parliamentary Monitoring Group (2010), Reports on Social Assistance Amendment Bill B5– 2010. Plaskett, Clive (2000), ‘Standing, welfare rights and administrative justice’, South African Law Journal, Vol. 11, pp. 647–61. Proudlock, Paula (2010), ‘Lessons learned from the campaigns to expand the Child Support Grant in South Africa’, in Sudhanshu Handa, Stephen Devereux, and Douglas Webb (eds.), Social Protection for Africa’s Children (London: Routledge), pp. 149–75. Samson, Mike (2003), ‘Breaking the poverty trap: A response to Business Day’, Basic Income Grant Coalition, http://www.big.org.za/index.php?option=articles=Itemid=3=topid=1. Samson, Mike, et al (2004), The social and economic impact of South Africa’s social security system, report commissioned by the Economics and Finance Directorate of the Department of Social Development, Economic Policy Research Institute, Research Paper No. 37, Cape Town. Schneider, Margie, et al (2007), Developing a policy response to provide social security benefits to people with chronic diseases (Pretoria: Human Sciences Research Council). Siebrits, Franz Krige, and Servaas Van der Berg (2010), Social assistance reform during a period of fiscal stress, report prepared for the Financial and Fiscal Commission, Stellenbosch. South African National Aids Council (2007), National Strategic Plan for HIV/AIDS and STIs 2007–2011 (Pretoria: South African National Aids Council), http://www.doh.gov .za/docs/misc/stratplan-f.html. South African National Aids Council Treatment, Care and Support Technical Task Team (2008), A draft briefing document for the establishment of a Chronic Diseases Grant (on file with author). South African Social Security Agency (2012), Fact sheet: Issue no. 9 of 2012 – 30 September 2012, A statistical summary of social grants in South Africa, http://www.sassa.gov.za/Portals/ 1/Documents/90081a2d-c3c8-4329-a0ce-d2e5a04d0ee2.pdf. Taylor, Vivienne, et al (2002), Transforming the present – Protecting the future, report of the Committee of Inquiry into a Comprehensive System of Social Security for South Africa (Pretoria: Department of Social Development). Van der Berg, Servaas (2002), ‘Education, poverty and inequality in South Africa’, Paper to the conference of the Centre for the Study of African Economies on Economic growth and poverty in Africa, Oxford, March 2002. Weigand, Christine and Margaret Grosh (2008), ‘Levels and Patterns of Safety Net Spending in Developing and Transition Countries’, (SP Discussion Paper No. 0817, Washington, DC, World Bank).

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Williams, Martin (2007), ‘The social and economic impacts of South Africa’s Child Support Grant’ (Economic Policy Research Institute, Working Paper No. 39, Cape Town). Yamauchi, Futoshi (2005), Early childhood nutrition, schooling and within-sibling inequality in a dynamic context: Evidence from South Africa (Food Consumption and Nutrition Division, Discussion Paper No. 203, International Food Policy Research Institute, Washington, DC).

10 Urban Basic Services Rights, Reality, and Resistance Jackie Dugard*

About 1,000 residents of Maboloka Township outside Brits, North West Province, took part in a service delivery protest to complain about the poor quality and scarcity of their water. The residents, who live near Hartebeespoort Dam, said they have been without running water since December [2009] and the water which the Madibeng Municipality supplies in trucks is insufficient, dirty, and makes them ill. Jan Motaung, protest organiser and chairman of the Maboloka Community Organisation, said: “We followed protocol. We marched to the Madibeng Municipality on February 9 to hand in our memorandum and nothing has been done; picketing was our plan B.” Residents told The Times that Maboloka has 18 sections with 100 residents each. Every three days one truck makes a water delivery. Sikho Sikhosana, a resident, said: “We were told to boil water that we get from the river, but we have no electricity.” – Boikanyo and Tlhoaele, 2010

1. INTRODUCTION

From a human rights perspective, South Africa has a commendable legal and policy framework for urban basic services that explicitly recognises socio-economic disadvantage. The Constitution1 entrenches a right to water; there are national Free Basic Water, Free Basic Electricity, and Free Basic Sanitation policies; the Water Services Act 108 of 1997 stipulates basic minimum standards for water and sanitation; and there is a host of rights-friendly legislation, regulations, and policies. Yet at the local level where service delivery occurs, the reality is very different, with widespread

* Jackie Dugard is the former Executive Director of the Socio-Economic Rights Institute of South Africa (SERI), which she co-founded in January 2010 and directed from January 2010 through December 2012. She is currently a senior researcher at SERI and also a visiting senior fellow at the School of Law at the University of the Witwatersrand. I am grateful to my co-editors, as well as Laurence Piper and Jennifer MacLeod, for useful comments on this chapter. Author contact information: [email protected]. 1 Constitution of the Republic of South Africa Act 108 of 1996 (Constitution).

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failures in basic services delivery leading to rising discontent in many poor urban areas, as well as several test litigation cases. This divergence between framework and practice is largely related to the limitations of South Africa’s macroeconomic model, which has failed to advance inclusive economic and human development. This has had serious ramifications at the local government level, which is considered the developmental arm of government. In line with the broader neo-liberal economic policies pursued since the democratic transition, central government has devolved the responsibility for basic services to the local government sphere and has emphasised a cost-recovery driven approach to basic services (McKinley, 2005). In this model, municipalities are under considerable financial pressure to limit services to households that cannot pay for services, as the income derived from water, electricity, and sanitation services is the most important source of revenue for local government (Makgetla, 2006). As such, and despite a degree of cross-subsidisation, basic services are viewed more as a commercial revenue stream than as related to public health, development, or poverty eradication (Hemson, 2008). The consequential preoccupation with maximising profits from basic services has resulted in inadequate extension of basic services and insufficient maintenance of infrastructure, along with an overly technocratic approach to service delivery. It has also led to widespread limitation and disconnection of existing services in poor urban areas, which has in turn rolled back many of the gains made in connecting poor households to basic services’ grids in the postapartheid era. On top of this, there is increasing evidence of corruption, incapacity, and incompetence in municipal governance.2 During 2010, collapses in municipal governance resulted in more than twenty municipalities being placed under administration following Section 139 of the Constitution. Such malaise is aided by both the list system of political representation and the party-political dominance of local vehicles for public participation such as ward committees (Piper and Deacon, 2009), which have the effect of constraining formal participation at the local level.3 As observed by Laurence Piper and Lubna Nadvi, it is notable that the non-governmental organization (NGO) sector has “tended to disengage from the local state and focus on provincial and national levels” while local communities and social movements “resort to forms of popular protest to become heard by local government” (Piper and Nadvi, 2010: 212–38).4 2 3

4

See e.g. Local Government Briefing (April 2010), pp. 6–7. Peter Alexander (2010) argues that an underlying determinant of the political crisis of local democracy is the party-list system of national and provincial legislatures, in which members of Parliament and members of provincial assemblies do not have constituencies and are largely absent from the direct political realm (local government). There are exceptions to the NGO non-involvement pattern: Planact and the Socio-Economic Rights Institute of South Africa (SERI) are heavily involved in local capacity building and social movement mobilisation, and litigating NGOs such as the Legal Resources Centre – and SERI – are engaged in litigation related to basic services against local government.

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In this political vacuum, growing dissatisfaction with basic services has manifested as escalating protest in many poor urban areas, and several cases have been articulated by protestors and litigators in social justice terms. Much of the litigation and protest are recent and ongoing, so it is too early to properly assess either their strategic value or impact. Nevertheless, this chapter provides a preliminary examination of the rising discontent in urban areas to inadequate basic services. The chapter first provides an overview of the socio-economic rights framework (Section 2) and the systemic problems associated with urban basic services (Section 3), before examining resistance to such problems (Section 4) with a focus on protest (Section 5), and a selection of test case litigation: Mazibuko,5 Joseph6 and Nokotyana7 (Section 6). The chapter concludes that the multiple, linked failures of local government and governance – some related to economic constraints and some to political ones – have fatally undermined the promise of national legislation and policy at the local level, thus resulting in inadequate services. At the same time, the malfunctioning of local democratic institutions has rendered local government increasingly unaccountable and unresponsive to the needs of poor residents, thereby displacing dissatisfaction onto the streets and into the courtrooms. Yet to date, it seems that the national realm (and formal politics) has been relatively insulated from the mushrooming crisis at the local government level. Indeed, in local communities’ burgeoning resistance to inadequate basic services, remote government, and deplorable living conditions, the chapter is unable to draw linear connections between specific instances of local activism and positive structural outcomes. However, in advocating for a longer-term frame of analysis, it suggests that currently disparate struggles and actions need to be linked together to contribute to the kind of progressive mass mobilisation that might overcome the current impasse of political and economic governance and result in greater socio-economic equality and genuine democracy. It is possible that rights-based struggles can play a tactical part in such a movement, but it is unlikely that discreet struggles, rights based or not, will be able to overcome structural inequalities or the political status quo. 2. SOCIO-ECONOMIC RIGHTS FRAMEWORK

In South Africa’s legislative and institutional framework, the Municipal Systems Act8 was enacted to “provide for the core principles, mechanisms and processes that are necessary to enable municipalities to move progressively towards the social and economic uplifting of local communities, and ensure universal access to essential

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Mazibuko and Others v City of Johannesburg and Others 2010 (4) SA 1 (CC) (Mazibuko). Leon Joseph and Others v City of Johannesburg and Others 2010 (4) SA 55 (CC) (Joseph). Nokotyana and Others v Ekurhuleni Metropolitan Municipality and Others 2010 (4) BCLR 312 (CC) (Nokotyana). Local Government Municipal Systems Act 32 of 2000 (Municipal Systems Act).

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services that are affordable to all”.9 According to the Act, the concept of basic municipal service is defined as “a municipal service that is necessary to ensure an acceptable and reasonable quality of life and, if not provided, would endanger public health or safety or the environment”.10 In municipal practice and policy, as well as national standards, basic services most commonly include water, electricity, and sanitation services, which I focus on in this chapter. 2.1. Water Services In recognition of the importance of water to life, health, and dignity, Section 27(1)(b) of the Constitution guarantees everyone’s “right to have access to . . . sufficient water”. And to provide meaning to the constitutional right, Section 3 of the Water Services Act provides that “everyone has the right of access to basic water supply” and that “every water services institution must take reasonable measures to realise” this right. Basic water supply is defined in Section 1(iii) of the Act as “the prescribed minimum standard of water supply services necessary for the reliable supply of a sufficient quantity and quality of water to households, including informal households, to support life and personal hygiene”. Moreover, regulations clarify that the minimum standard for basic water supply is, inter alia, a minimum quantity of potable water of twenty-five litres per person per day, or six kilolitres per household per month available within two hundred metres of a household.11 Giving further effect to these legal iterations, and in recognition of the fact that greater physical access to water (through bringing water infrastructure closer to people’s households) is meaningless if water remains unaffordable, in 2002 the national Department of Water Affairs and Forestry (DWAF)12 instituted the Free Basic Water (FBW) policy. The Free Basic Water implementation strategy establishes a national policy (to be effected at municipal level) to provide at least six kilolitres of free basic water per household per month, to be implemented through local municipalities (DWAF, 2002). However, calculated at twenty-five litres per person per day in a household of eight persons (based on estimates of average household occupancy), this amount falls short of the internationally recognised minimum required for a healthy and dignified existence – estimated at a minimum of fifty litres per person per day without waterborne sanitation13 – and is vastly insufficient in the 9 10 11

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Object of the Municipal Systems Act. Section 1, Municipal Systems Act. Regulations Relating to Compulsory National Standards and Measures to Conserve Water made under Sections 9(1) and 73(1)(j) of the Water Services Act 108 of 1997, GN R509 of 8 June 2001 (Water Regulations), Regulation 3. In May 2009 the Department of Water Affairs and Forestry became the Department of Water and Environmental Affairs, but it is referred to as DWAF in this chapter. The international expert on the sufficiency of water, Peter Gleick (1996), president of the Pacific Institute for Studies in Development, Environment, and Security in Oakland, California, recommends at least fifty litres of water per person per day (excluding waterborne sanitation) to guarantee human

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multi-dwelling households often found in poor urban townships. The insufficiency of the FBW allocation to meet the basic needs of poor households in multi-dwelling township areas is expanded on in Section 3, and it is also one of the issues that was taken up in the Mazibuko water rights case discussed in Section 6. 2.2. Electricity Services Unlike water, in South Africa there is no explicit right to electricity (nor is there an explicit right to energy). However, this right might be inferred from, inter alia, the right of access to adequate housing, found in Section 26(1) of the Constitution, as is the approach pursued in General Comment 4 on the right to adequate housing of the UN Committee on Economic, Social, and Cultural Rights.14 That the right to housing implies more than merely having a roof over one’s head was discussed by the Constitutional Court in the Grootboom judgment.15 According to the Court, the “state’s obligation to provide adequate housing depends on context, and may differ from province to province, from city to city, from rural to urban areas and from person to person”, and although “some may need access to land and no more[,] . . . some may need access to services such as water, sewage, electricity, and roads”.16 This means that, in the Court’s view, one of the factors relevant to a consideration of the right to housing is electricity provision. Recently, however, the Constitutional Court muddied this interpretation of the right to electricity in its judgment in Joseph, summarised in Section 6. In terms of legislation, since the repeal of the Electricity Act 41 of 1987 by the Electricity Regulation Act of 2006, electricity services have been governed mainly by municipal bylaws. Most electricity bylaws stress equity considerations in electricity service provision. In terms of policy, since 2003, there has been a national Free Basic Electricity (FBE) policy at the national level. Like DWAF’s FBW policy, the Department of Minerals and Energy’s FBE policy of 2003 was formulated to assist impoverished households that could not afford electricity services.17 Informed by the generally low levels of energy consumption in (mostly rural) newly electrified areas, the fifty kilowatt hours (kWh) to be provided for free per month enable a household to power four electricity lights for four hours per day and to play a small

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health and dignity. And, in a report for the World Health Organisation (WHO), Jamie Bartram and Guy Howard warn that access to fewer than twenty litres of water per person per day carries “a high level of health concern” and is insufficient to cover laundry/bathing unless carried out at source (Bartram and Howard, 2003, p. 1). Committee on Economic, Social, and Cultural Rights, General Comment 4, The right to adequate housing (6th session, 1991), U.N. Doc. No. E/1992/23, annex III at 114 (1991). Government of the Republic of South Africa and Others v Grootboom and Others 2001 (1) SA 46 (CC) (Grootboom). Ibid., para. 37. The Department of Minerals and Energy recently split into the Department of Energy and the Department of Mineral Resources.

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radio and black-and-white television (Mlambo-Ngcuka, 2001). Self-evidently, the FBE allocation is not sufficient to meet the basic needs of poor households in urban areas, especially where home industries are being supported. This is elaborated on in Section 3. 2.3. Sanitation Services Despite the critical importance of sanitation to poverty, health, and development (not to mention dignity),18 sanitation has traditionally been viewed as a lesser priority in the area of basic services. A reason for this is that it has not been clear what standard of sanitation the government advocates for households. More recently, there have been indications that waterborne sanitation will be pursued only in urban areas (see e.g. DWAF, 2008). Nevertheless, and notwithstanding basic sanitation services having moved in May 2009 from the DWAF to the Department of Human Settlements (i.e. housing),19 national standards for sanitation are found in the Water Services Act. Section 3 of that law provides that “everyone has the right of access to basic water supply and sanitation” and that “every water services institution must take reasonable measures to realise” the right. This means that in spite of the Constitution’s silence regarding sanitation, there is a legal basis for a State obligation to provide basic sanitation, which the Water Services Act defines in Section 1(ii) as “the prescribed minimum standards of services necessary for the safe, hygienic and adequate collection, removal, disposal or purification of human excreta, domestic waste-water and sewage from households, including informal households”. Further, Regulation 2(b) of the Water Regulations provides that the minimum standard for basic sanitation services is a safe, environmentally sound toilet that is “easy to keep clean, provides privacy and protection against the weather, well ventilated, keeps smells to a minimum and prevents the entry and exit of flies and other diseasecarrying pests”. Nevertheless, it was only in October 2008 that the Free Basic Sanitation (FBS) policy was finalised, recommending an ongoing FBS component to be added to waterborne sanitation of fifteen litres per person per day, calculated as three or four kilolitres of additional FBW per household per month on top of the existing allocation. At the time of writing, few municipalities had adopted this policy. In any event, even when the additional amount has been incorporated, and if based on the national policy, fifteen litres per person per day for waterborne sanitation are insufficient to cover this function (the average toilet flush in inefficient toilets uses 18

19

According to Zafar Adeel, chair of UN-Water, a coordinating body for the twenty-seven UN agencies that work on water and sanitation, for every US dollar spent on sanitation, the return on investment is between US$3 and US$34 realised through reduced poverty and health costs as well as improved productivity (“UN experts call for sanitation for all by 2005’, WASH News International, 15 April 2010, http://washinternational.wordpress.com). Before May 2009, the Department of Human Settlements was called the Department of Housing.

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thirteen litres of water). This means that for the most part, poor households with waterborne sanitation are not adequately subsidised. At the same time, as outlined in Section 3, millions of poor households still have inadequate access to sanitation and use the ‘bucket’ system or chemical toilets. The insufficient provision of basic sanitation services was one of the issues that prompted the residents of the Harry Gwala informal settlement to go to court in the Nokotyana case, discussed in Section 6. .

2.4. The Principles of Non-Discrimination and Just Administration Regardless of the commercialisation or corporatisation of municipal services entities, all policy choices in relation to water, electricity, and sanitation provision must comply with Section 9 of the Constitution – which stipulates the right to equality. This means that basic services provision may not unfairly discriminate between groups on the grounds listed in Section 9(3).20 Supplementing the framework for equitable services, Section 33 of the Constitution provides everyone with the right to just administrative action that is “lawful, reasonable and procedurally fair”. The Promotion of Administrative Justice Act 3 of 2000 (PAJA) was promulgated to give effect to that right. There are two aspects of PAJA that are particularly relevant to water and electricity services, as they are public services falling within PAJA’s definition of administrative action. First, Section 4(1) of PAJA stipulates that all administrative decisions that materially or adversely affect the public must be preceded by public participation, such as public enquiry or commentary processes. Second, in terms of existing services, Section 3(2)(b) of PAJA sets out the requirements for procedural fairness, including adequate notice of proposed action and reasonable opportunity to make representations. Principles of administrative justice also extend to other relevant legislation. For example, Section 4(3) of the Water Services Act reproduces the requirements for notice and opportunity to make representations before the limitation or discontinuation of water services. The Electricity Act provided similar protection against the non-procedural disconnection of electricity supply.21 With the repeal of the Electricity Act, most municipal bylaws reinforce the requirements for notice and opportunity to make representation before disconnection.22 These administrative justice requirements are particularly important in the context of disconnections of water and electricity services (for non-payment 20

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22

Grounds listed in Section 9(3) of the Constitution include race, gender, and sexual orientation. The list of grounds in Section 9(3) is not exhaustive. In terms of Section 11(b) of the Electricity Act, electricity supply cannot be discontinued without written notice of the intention to do so. However, until the Joseph litigation, Bylaw 14(1) of the Greater Johannesburg Metropolitan Council: Standardisation of Electricity By-Laws Provincial Gazette (Gauteng), GC 16 GN 1610, 17 March 1999, published in terms of Section 101 of the Local Government Ordinance 17 of 1939 (City of Johannesburg’s electricity bylaws), permitted the disconnection of electricity supply without notice. Section 4 explains how the Constitutional Court cured this defect in Joseph.

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of municipal bills), which must comply with the notification and representation elements of PAJA and other legislation outlined here. Yet in reality, municipalities routinely disconnect basic services in unfair and nonprocedural ways (ways that are also non-transformative and anti-development). Such disconnections were taken up in two test cases, Mazibuko and Joseph, discussed in Section 6. More generally, in reality basic services are often not used to their full developmental and transformative potential as directed by the legislative and policy framework. 3. REALITY

Despite the rights-based framework for basic services set out here, millions of poor South Africans (and non–South African residents) still do not access adequate basic services.23 This reality belies the official statistics, which paint a much rosier (though not perfect) picture, and they are not included here, as they do not capture the lived conditions of basic services, particularly in poor areas.24 There are four main reasons for this unrealistically rosy picture. First, national statistics on household connections to basic services derive from municipal data, which in many instances are not properly verified. Second, most data are aggregated, which means that entrenched inequalities of whole sectors or areas remaining under-serviced are not readily highlighted. Third, in most municipalities there is a high rate of disconnection of water and electricity services for non-payment (particularly in poor residential areas), which means that infrastructure connection does not translate to ongoing access to basic services – that is, statistics on household connection to basic services do not reflect how many households at any specific time are currently disconnected from electricity or water services (or where sanitation is waterborne, by implication of water disconnection, this too).25 Fourth, the data for infrastructural connections are 23 24

25

Section 3 draws from Dugard and Mohlakoana (2009), as well as a report by Tissington et al (2008). According to the South African Institute of Race Relations (2009: 546, 544), of a total 13.4 million households, 11.9 million had access to piped water, 11 million had access to electricity, and 8 million had access to flush or chemical toilets, with an average of 3.6 persons per household in 2008. On the basis of the available data, it is not possible to accurately quantify basic service disconnections, and the true scale of disconnections is simply not known. Most municipalities, as well as national government, do not keep data on disconnections or are reluctant to share such information. Furthermore, in municipalities that have installed pre-paid meters in poorer residential areas, any disconnection is ‘outsourced’ as a private disconnection in the person’s own home and not part of the municipality’s administrative record (community organisations refer to such disconnections as ‘silent’). Nevertheless, some authors have managed to track water disconnections for specific periods. For example, using national household data and data collected in a 2001 national survey, David McDonald (2002) estimated that between 1994 and 2001, up to 7.5 million people experienced both water and electricity disconnections, which amounts to up to or more than 1 million people per year. There has been some debate about this figure, including contestations by Mike Muller (2004), former director general of water affairs, that the figure is too high. However, as pointed out by Bond and Dugard (2008a), Muller’s (2007) complicated reinterpretation of McDonald’s figures seems to validate McDonald’s assertions. Thus, although Muller concedes that in 2003 alone, 275,000 households were disconnected

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quantitative and do not incorporate critical qualitative aspects of the services that affect their adequacy, particularly from a human rights perspective. These qualitative aspects include access by women and disabled people (physical access) and affordability (economic access). Undoubtedly, rural areas are objectively worst affected by non-delivery of basic services, with vast areas having no formal services at all. However, the problems of non-delivery and/or under-delivery also affect poor urban areas, the focus of this chapter, particularly people living in urban informal settlements, townships, and inner-city areas. In informal settlements, houses typically do not have in-house water and sanitation services, so people must rely on water tankers or communal taps and woefully inadequate toilets (including bucket toilets, chemical toilets, or the bushes). And most informal houses do not have access to a legal electricity supply, but those that do usually have a low-amperage electricity supply (usually 2.5 to 10 amperes), which provides only enough electricity for lights, a small television or radio, and sometimes an additional small appliance for a limited number of hours. Turning to formal township areas, these usually have in-house water and electricity connections, as well as waterborne sanitation. However, as with informal settlements, township households often receive a low-amperage electricity supply, albeit higher than informal settlements (usually twenty amperes). This supply allows the additional usage of a small heating element for cooking or a fridge, but these can often not be used in combination with other appliances. In addition, in many townships municipalities have installed technical mechanisms to attempt to minimise loss of revenue due to non-payment of basic services. These include water-flow restrictors (a metal disk with a tiny hole in the middle that is inserted snugly inside the diameter of the pipe and allows only a trickle of water through) and water and electricity pre-paid meters (which require households to purchase water or electricity credit in advance of using the service; the service automatically discontinues when the credit runs out). The City of Johannesburg was one of the first municipalities to impose pre-paid water meters on poor communities, initiating a pilot project in Phiri, Soweto, at the end of 2003. The roll-out of pre-paid water meters in Soweto was strongly resisted and resulted in a protracted battle involving community organisations and an associated social movement, the Anti-Privatisation Forum (APF), which ultimately led to the Mazibuko case being pursued by several applicants on behalf of the community and APF. In inner-city areas, water and electricity supply is usually in-house (multi-storey apartment), with waterborne sanitation. However, landlords typically mediate poor from water services at least once because of inability to pay, Bond and Dugard point out that with an average occupancy of around three to four people per low-income household, 275,000 households represents an average of between 825,000 and 1.1 million people disconnected from water services at least once in that year because of inability to pay (excluding disconnections by pre-paid water meters). David McDonald (2003) stands by his figures and has challenged the government to research and provide more accurate figures. Thus far, the government has not taken up this challenge (e-mail from David McDonald, 24 February 2012).

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tenants’ access to basic services, which can compromise access in two critical ways. First, where landlords have abandoned buildings (i.e. absentee landlords), the occupiers generally are not able to contract directly with the municipality for services, as most municipalities require a letter of permission from the landlord before they will contract directly with tenants for services. This leaves many inner-city buildings, particularly those housing unlawful occupiers, but also those in which tenure security has not been regularised or has been disrupted,26 without any formal access to basic services.27 Second, where landlords incorporate charges for basic services as part of rental, as is common practice, complications can arise, especially when landlords do not pass on the electricity or water payments to municipal authorities. As demonstrated in the Joseph case, relying on landlords to pay the municipality for services can result in the disconnection of tenants’ electricity supply, even when they have been regularly paying their landlord for such services. Beyond inadequate availability of services, there are endemic problems relating to affordability of services that mainly affect township and inner-city households rather than households in informal settlements (in informal settlements, all formal services are usually communal and provided for free, and any in-house connections are usually illegal – or ‘free’). First, many municipalities simply do not provide FBW, FBE, or FBS (Tissington et al, 2008), and where they do, the amounts are almost always woefully inadequate for advancing socio-economic development, particularly in urban settings. The insufficiency of the free basic amounts is exacerbated in urban townships, where typically one property contains multiple poor households, all of which must rely on the one FBW or FBS and FBE allocation. Finally, beyond these free basic policies, water and electricity tariffs are often too expensive for low-income households, despite a degree of cross-subsidisation, especially for water tariffs (Bond and Dugard, 2008b), which means that they must pay a disproportionate amount of household income for relatively low levels of consumption or suffer chronic disconnections to services as a result of non-payment. The basic services-related realities outlined here are poignantly illustrated in a description of the living conditions in the Harry Gwala informal settlement. Detailing the conditions for the applicants in Harry Gwala at the time that the Nokotyana litigation was launched in the South Gauteng High Court in July 2008, Kristen Kornienko, an architect from the US firm Polvadera, described the following: r There were only six communal taps for the entire informal settlement of 1,500 households; r None of the taps was situated in the large central area of the informal settlement between Dube Street and the storm water channel; 26

27

A similar problem occurs in collapsed sectional title schemes where there is no longer a formal mechanism (body corporate) to effect payments for municipal services, thus leading to massive debt and disconnection of basic services. For a Johannesburg-based study of such problems, see Wafer et al (2008).

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r The only toilets were pit latrines, which the residents of Harry Gwala had dug and furbished themselves, and for which the residents purchased chemicals to maintain some semblance of hygiene; r There had been no municipal refuse collection since 2005; r There was no household electrification and no public lighting.28 4. RISING DISSATISFACTION AND RESISTANCE

In urban areas across the country there is evidently growing dissatisfaction with such conditions. Although NGOs continue to engage in policy and legislative advocacy at the provincial and national levels to ensure optimum frameworks for delivery, this is not the main fault line – for the most part, there are no major problems with the legal and policy frameworks outlined thus far in the chapter. Consequently, this chapter does not examine policy or legislative advocacy of civil society formations as a tactic. Rather, the problems lie in municipal implementation (or lack thereof) of the frameworks. Accordingly – and because of the constraints of local political institutions – grassroots discontent over basic services (broadly defined) has been channelled against breakdowns at the local government level, which manifest as protest and instances of test case litigation. The protests have occurred mainly in urban township or informal settlement areas and include marches, gatherings, and the handing over of petitions or memoranda (usually aimed at local authorities); road blockades; and attacks on public property. Test case litigation challenging systemic problems with basic services has occurred over urban water (Mazibuko), electricity (Joseph), and sanitation (Nokotyana) services. The phenomenon of protests related to service delivery in post-apartheid South Africa is a relatively recent one, beginning in 200429 and escalating in 2009,30 when there were an estimated average of 19.8 protests per month (Jain, 2010).31 Similarly, 28

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Affidavit of Kristen Kornienko provided by Nokotyana applicants’ lawyer, Moray Hathorn, of Webber Wentzel Attorneys, Johannesburg. Although there are grounds to trace current protests back to the apartheid era, most commentators on local protests date the beginning of the contemporary protest phenomenon to 2004 (see e.g. Booysen, 2007). It is possible that the onset in 2004 of the current wave of protests relates to the consolidation of the powers of local government and the first round of local government elections in December 2000, as well as civil society’s growing dissatisfaction over the subsequent months and years with the failures of the local government. There is evidence that protests have escalated since the election of President Jacob Zuma in April 2009. According to Municipal IQ, a private research company, there were more ‘service delivery’ protests in the first seven months of the Zuma administration than in the last three years of the Mbeki administration (Municipal IQ, 2010). Explanations for the rise in protests relate to the raised, and then dashed, expectations for his presidency (he took over from President Thabo Mbeki, considered a technocrat and removed from ‘the people’). The same study notes that in 2007 there was an average of 8.73 protests per month, which in 2008 rose modestly to 9.83. Admittedly, there is some disagreement over the statistics, but the CLC study provides conservative figures. For a discussion of protest statistics and problems with these, see e.g. Alexander (2010).

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the three test cases examined in this chapter all initiated between 2004 and 2008. Undoubtedly, it is therefore too early to assess the longer-term, wider-reaching impact of these resistance tactics. It is also particularly difficult to draw causal links between specific protests and demonstrable changes in service delivery, especially in such a short time horizon. And although more connections can be made between litigation and changes in service delivery, it is still too soon to assess the full impact of litigation. Therefore, unlike other thematic areas examined in this book for which there has been a campaign or a case to change national policy (e.g. the efforts to lower the age for male pensioners or child support grants), it is not possible to make any definitive claims about the effectiveness of different tactics in relation to basic services.32 To date, in general terms and despite indications that service delivery was a key campaigning issue in the May 2011 local government elections, local governments have appeared curiously immune to the reality of escalating protest and high-profile litigation. It might simply be too soon for the full effects to take hold. As suggested here, the gaps between local and national, and between sector specific and structural, might need to be bridged by activists for real resonance to be achieved. Nevertheless, that there is so much resistance begs the question of what is going on with local democracy, an issue that is not taken up directly here but that indirectly affects the analysis of resistance in the remainder of this chapter. 5. PROTEST

5.1. Understanding the Phenomenon Since 2004, South Africa has experienced a movement of local protest amounting to a rebellion of the poor. This has been widespread and intense, reaching insurrectionary proportions in some cases. On the surface, the protests have been about service delivery and against uncaring, self-serving, and corrupt leaders of municipalities. A key feature has been mass participation by a new generation of fighters, especially unemployed youth but also school students. Many issues that underpinned the ascendancy of Jacob Zuma also fuel the present action, including a sense of injustice arising from the realities of persistent inequality. (Alexander, 2010: 25)

During 2009, in the wake of “the latest round” of locally organised protests in urban areas, a debate was waged in the South African mainstream media about the nature of the grassroots protests (Friedman, 2009).33 Commentators such as Steven Friedman 32

33

The one possible exception, not dealt with in this chapter (it occurred almost a decade ago), is the resistance and protests by social movements against the threatened privatisation of public services, which occurred around 2000 and effectively halted further outright privatisations to date (see Bond and Dugard, 2008b). I do not include trade union campaigns and strikes in the analysis in this section. Nor do I cover the extent to which social movements and campaigns, as examined in chapter 4, by Madlingozi, intersect

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cautioned against the crude reduction that the protesters were demanding ‘service delivery’ – for Friedman, protesters in townships such as Diepsloot (on the outskirts of Johannesburg) “are demanding public service, not delivery” (Friedman, 2009). Friedman notes that the trigger for the Diepsloot protests was the news that some households were to be evicted from their homes to make way for planned upgrading of sewage works and that, far from being about slow service delivery, protest was about ‘delivery’ being too quick and overwhelmingly non-consultative (Friedman, 2009). Similarly, in the recent media release ‘Serving our life sentence in the shacks’, members of the shack dwellers’ social movement Abahlali baseMjondolo wrote: Waiting for ‘delivery’ will not liberate us from our life sentence. Sometimes ‘delivery’ does not come. When ‘delivery’ does come it often makes things worse by forcing us into government shacks that are worse than the shacks that we have built ourselves and which are in human dumping grounds far outside of the cities. ‘Delivery’ can be a way of formalising our exclusion from society. (Zikode and Nsibande, 2010)

However, although there is clearly a need to view the protests through a wider lens, it is inescapable that protesters have framed their actions as relating to service delivery and that the protests at least in part relate to inadequate services, even if the protests are triggered only following specific interventions or, more commonly, non-interventions by local authorities. It is also worth noting that protests about evictions – though perhaps directly relating to a negative infringement (too much ‘delivery’ of the top-down, autocratic kind that entails relocating communities to urban peripheries without proper consultation) – sometimes obscure underlying problems related to the government’s failure to implement its positive obligations to provide basic services and appropriate housing or to upgrade existing services in a coherent way (too little ‘delivery’).34 In short, it is likely that the protests are about both poor service delivery and unresponsive or remote government. As argued by Richard Pithouse, the protests are best understood as being about “the material benefits of full social inclusion . . . as well as the right to be taken seriously when thinking and speaking through community organisations” (Pithouse, 2007). In the words of members of Abahlali baseMjondolo: But we have not only been sentenced to permanent physical exclusion from society and its cities, schools, electricity, refuse removal and sewerage systems. Our life

34

with and possibly assist in organising and coordinating the kinds of local protests examined here – I could not find any evidence or studies of this intersection. Evidently, not all the immediate triggers relate directly to basic services. Specifically, housing, which is examined in chapter 7, by Langford, is considered neither formally a basic service nor technically part of local government service delivery. However, there is a close link between basic services and housing, especially in poor areas. In addition, local government is increasingly being called on to provide housing solutions through the leveraging of provincial finances. Notwithstanding the inclusion (and sometimes prominence) of housing-related claims, I have analysed the protests in this chapter because problems with basic services feature most commonly among expressed grievances, and the protests are characterised as related to service delivery.

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sentence has also removed us from the discussions that take place in society. (Zikode and Nsibande, 2010)

And further: In as much as you [the government] need to deliver services, you cannot do that without engagement, or direct engagement. . . . If people were engaged and consulted about development, then people become a vital tool in their own development and such developments will also be owned at a community level, you know?35

Thus, when Imraan Buccus, on the recent burning of schools in the North West Province (ostensibly because people were unhappy when a gravel road was not tarred), writes that the protests are “in response to a crisis of local democracy rather than what has often been referred to as a crisis of service delivery”, he concedes the point that the two are inextricably linked: “in most instances failed service or misguided delivery is where things begin to go wrong” (Buccus, 2010). Interestingly, a recent study by the Community Law Centre (CLC) of local protests between 2007 and 2010 found a common mix of issues in the articulated concerns of protesters across the country, not all of which relate directly to basic services per se, but access to housing was the single most cited concern (36.33 per cent) After housing, the highest expressed concerns of protesters were access to water (18.36 per cent), access to electricity (18.16 per cent), poor service delivery in general (15.62 per cent), sanitation (13 per cent), and general corruption (11.47 per cent) (Jain, 2010: 29–30). To some extent, the debate around the terminology of the protests is a victim of a seemingly contradictory feature of the increasingly endemic phenomenon of ‘service delivery protest’ (hereafter called local protest). This is that, despite such protests becoming such a regular feature as to prompt speculation that South Africa experiences more protests per person than anywhere in the world (Bond, 2010: 17), there is very little in-depth qualitative research into the triggers, causes, framing, and organisation of local protests. As noted by Jane Duncan in March 2010, “images of violent protest action against poor service delivery have dominated the news in the past few weeks, signalling growing frustration with the Jacob Zuma administration’s failure to address the implosion of services in parts of South Africa”, yet: [A]ll too often, media coverage does not help us to understand the complex forces that gave rise to such protests. Coverage tends to be episodic, focusing on the moment of the protest, which does not explain why a community got to the point where they felt that the only way of communicating their message was to barricade roads, stone the mayor’s house or torch the library. . . . Journalists are not alone in generalising about protest action. Often, researchers have not helped matters either. While some sketchy statistics are available about the number of gatherings taking 35

Interview with Abahlali baseMjondolo (Western Cape) by Marcelle Dawson in Cape Town, 10 September 2009 (Dawson, 2010: 113).

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place in South Africa year on year, too little is understood about the reliability of this data. . . . As there are significant gaps in the research, we do not really know how South Africa measures up to other countries as a protest ‘hotspot’, and whether we do, in fact have the highest rate of protest action in the world (as has been alleged). Given the centrality of protest in our national politics, it is a sad indictment on the priorities of our research institutions, especially our universities, that we know so little about protest action and its underlying processes. (Duncan, 2010)

So what, if anything, is known about the local protests? A useful starting point is one of the few examples of a thorough research project, undertaken by researchers at the Centre for Sociological Research at the University of Johannesburg (UJ). This research into the protests in Piet Retief,36 Balfour,37 Thokoza,38 and Diepsloot39 from June to August 2009 confirms that there are three interwoven features in all the protests studied: r High levels of poverty and unemployment (in the context of a middle income country with stark inequality) r Inadequate basic services including water, sanitation, electricity, street lighting, paved roads, as well as insufficient or inadequate housing. In all instances, protests occurred only following repeated unsuccessful attempts by community members to engage with local authorities over issues of failed service delivery. (Sinwell et al, 2009: 1, 6) In terms of other factors, in the instances of Balfour and Thokoza, the authors found that a brutal police response to the protests contributed to the violence. They also found that, although there were widespread attitudes of xenophobia, there was no evidence that xenophobia was the prime motivator behind any particular protest (Sinwell et al, 2009: 1).40 36

37

38

39

40

Thandakukhanya township in Piet Retief (Mpumalanga Province) was one of the first sites to experience a mass service delivery protest following the election of President Jacob Zuma, as part of a much longer struggle by the community to improve local material conditions and to try to instil greater political municipal accountability. Siyathemba township in Balfour (Mpumalanga Province) is a desperately poor township with approximately forty thousand residents, many of whom do not have access to water, electricity, or sanitation services. Thokoza, including Mpilisweni informal settlement and KwaMadala hostel, is on Johannesburg’s East Rand and is part of Ekurhuleni Metropolitan Municipality (Gauteng Province). Mpilisweni informal settlement has no toilets other than pit latrines built by the residents and no formal electricity connections. KwaMadala hostel has only a partial electricity connection, and although a small proportion of the hostel has been converted into family units, it retains the single-sex dormitories inherited from the apartheid past. Diepsloot is a large township and informal settlement to the north of Johannesburg (Gauteng Province). Originally conceived as a site of temporary relocation, it has ballooned in size since 1994 and contains both bond and Reconstruction and Development Programme housing, as well as informal shacks. Little upgrading has occurred, and its basic services infrastructure is inadequate. I do not deal with the question of whether the violence against foreigners that erupted across South Africa in May 2008 can accurately be called xenophobic violence or whether it can be regarded

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Perhaps the most interesting research finding relates to both the relatively modest, albeit persistent, demands expressed in the memoranda presented to relevant municipal officials in each case and to similar deep-seated problems. In the case of Piet Retief, the memorandum refers to inadequate service delivery, unaffordable tariff increases, and unresponsive officials. It demands investigations into various misappropriations and inappropriate usages of funds by the municipality, as well as the allocation of government-provided housing. And the Balfour memorandum’s demands include a training centre to develop skills, a police station, a mini-hospital, clean water, houses, streetlights, paved roads, storm-water drainage, and quarterly reports on development and expenditure from councillors (Sinwell et al, 2009: 9–12). For residents of Thokoza, the demands related to the abysmal living conditions, including inadequate access to water, electricity, and sanitation, and they called for the resignation of the mayor of Ekurhuleni, Ntombi Mekwegwe, given her failure to respond to the concerns of the community. In Diepsloot, residents wanted to be consulted about the upgrading of sewage works, as this was going to affect their access to housing and sanitation. Particularly alarming is the seemingly endemic indifference of government to the multiple concerns of residents. For example, in the case of Piet Retief, following three years of attempts to voice grievances over living conditions to the local council, the residents of Thandakukhanya township formed a “Concerned Group” in April 2009. The group drew up a memorandum with a list of demands previously communicated to the municipality, which it submitted to councillors in early June 2009. On 15 June 2009, community members staged a peaceful protest and marched to the town hall to deliver the memorandum. In the hope that provincial government might be more responsive than local government, a copy of the memorandum was sent to Mpumalanga’s Premier David Mabuza, who was given seven days to respond. The premier undertook to respond in an open meeting the following Sunday. However, he failed to attend the meeting, instead sending the Member of the Executive Council (MEC) for Cooperative Governance and Traditional Affairs, as well as the MEC for Sports and Recreation. Following the premier’s absence, the community staged a second march. At that march, community leaders struggled to contain the community’s rising antagonism: municipal buildings were burnt, and two residents were shot dead, allegedly by a traffic police officer and a security guard, respectively (Sinwell et al, 2009: 1–2). From the UJ research it seems that grievances are systemic within municipalities. It is also becoming apparent from the widespread incidences of such protests in poor urban communities all over South Africa,41 as confirmed by the more quantitative

41

as violence related to local service delivery. For the interplay and overlaps between these forms of violence, see e.g. Von Holdt and colleagues (2011). According to Municipal IQ, by February 2011, protests had “afflicted 40% of local and metropolitan municipalities” (Heese and Allan, 2011: 13).

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CLC study, that complaints are similar across municipalities. Protestors’ demands represent an attempt to forge a new, more inclusive, and expansive deal at the local level, which suggests the potential for linked-up protest to challenge the limits of the current political economy (but also the potential for greater State repression against protesters). Indeed, the common underlying determinants of the 2009 protests in Piet Retief, Balfour, Thokosa, and Diepsloot led the UJ authors to conclude that “frustrations with government service delivery and the protests which result from this will remain part of the South African political landscape as long as people do not have access to basic services and are unable to find effective channels through which to express their demands” (Sinwell et al, 2009: 1). 5.2. Rights Based? To what extent can such protests be regarded as rights based? More empirical research, including discourse analysis, is necessary to conclusively answer this question. However, it does seem that, though not always explicitly expressed as rights claims by protesters, rights often inform the struggles, and there is sufficient utilisation of the kind of rights frame set out in the introduction of this book – including articulation of demands that coincide with explicitly recognised rights and the conceptualisation of duty-bearing government and rights-bearing residents – to include the protests as a form of rights-based contestation in this chapter’s analysis. A recent example of a tragic, rights-based protest for access to water is the 13 April 2011 protest in Ficksburg, Free State, in which community activist Andries Tatane was brutally beaten and killed, following an altercation with the police.42 Commenting in the aftermath of the protest – which was organised by Maqheleng Concerned Citizens (a community organisation) in response to inadequate water and sanitation services in Maqheleng township (Setsoto municipality, Ficksburg) – The Times quoted Maqheleng Concerned Citizens’ Chair Sam Motseare as saying: Tatane sacrificed his life to free us from the shackles of the Setsoto municipality. If our rights for clean water had been respected, we wouldn’t be here. If our rights for a clean environment that is free of stinking sewage had been respected, we wouldn’t be here. When will this substandard life come to an end, just when? Maybe the day Tatane died marked a turning point in the history of Ficksburg, Maqheleng. (Masondo, 2011c)

As for the question of impact, regardless of the degree of rights framing by protesters, from the UJ research it appears that the causal chain in the build-up to protests follows this pattern: 42

At the time of writing, six police officers had been charged – four with serious assault and two with murder – following the televised broadcast of footage showing the police attacking Tatane, who collapsed and died, with multiple bruises and two rubber bullets in his chest. See e.g. Mahabane (2011) and Pithouse (2011).

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r Inadequate basic services and/or living conditions give rise to discontent. r Residents attempt to engage government regarding the problems. r When such overtures are ignored, protests occur. 5.3. Impact of Local Protests How does the chain of events operate in return? In other words, how do protests affect material conditions or, more instrumentally, what is the link between protest and politics? Interestingly, in terms of the political effect, the UJ researchers found that, although there is some evidence to suggest that protests in general have escalated since Jacob Zuma became president, there is no evidence that protesters’ demands are rooted in a campaign against the Zuma administration, the national policies of the African National Congress (ANC), or even local government electoral support for the ANC. Rather, they are linked to “the failure of the ANC to implement policy at a local government level” (Sinwell et al, 2009: 1). In fact, in Piet Retief, the community activists’ memorandum was at pains to demonstrate support for the ANC: We also would like to state it clear that the Mkhondo citizens’ concerned group are the members of the ANC. . . . We also want the ANC to win the local elections convincingly. We pledge that the councillors involved in misconduct be recalled to the structure with immediate effect. (Sinwell et al, 2009: 11)

What is happening on the ground, it seems, is a critical disjuncture between national and local politics. In this fractured reality, communities cling to the ANC promise and view local problems as arising from corrupt councillors who are betraying the ANC.43 Thus, they continue to remain loyal to and vote for the ANC while protesting against local officials. As explained by Peter Alexander, given the popular rise of Zuma, and regardless of whether local councillors support Mbeki, “opposition to local authorities is possible without it de-stabilising support for Zuma and his administration” (or the provincial governments also elected in April 2009, which are viewed as extensions of national politics) (Alexander, 2010: 33). The divide between national and local politics is reinforced when national leaders visit protest ‘hot spots’ – as in Balfour, where President Jacob Zuma paid an unexpected visit to some of the houses at the entrance of Siyathemba township on 4 August 2009, and Diepsloot, where Minister of Settlements Tokyo Sexwale infamously spent the night in a shack on 3 August 2009 following the violent protests there – but local conditions have not substantially improved.44 It is worrying that the most observable 43

44

However, Peter Alexander cautions that it would be simplistic to suggest that all protesters have precisely the same motivations. He notes that any particular protest can contain “both a popular antipathy to corruption and a struggle for patronage” (Alexander, 2010: 34). In February 2011, the press reported that Siyathemba was again “on the brink of exploding as residents’ simmering discontent and impatience with the government’s failure to deliver on its promises balloons” (Masondo, 2011b).

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medium-term reaction from the government in Balfour has been a crackdown against Siyathemba community organisations by the South African Police Service (SAPS). Yet although there is some evidence of a decreasing majority for the ANC at the national level,45 such is the opaque (and almost mystical) relationship between national leadership and local politics that communities – at least for the present – are still hopeful that national politicians will make a difference, as expressed by Balfour youth leader Lefu Nhlapo’s comments following President Zuma’s visit to Balfour: “For him to come here shows us that he cares about his communities” (Sinwell et al, 2009: 5). Although we are still in the early days, certainly in terms of the most recent wave of protests, it is possible that this artificial but perceived rupture between the national and the local, the ANC party and the individual ANC councillor, might inhibit any substantive political feedback, thus perpetuating local problems of non-delivery and unaccountability. After all, no political party speaks more directly to the poor than the ANC. Thus, at least in the short term, a local problem can be diffused, and rising dissatisfaction over poverty and inequality can be moderated, through the removal of specific councillors (although there are only sporadic instances of even this low-level accountability occurring) while the central political economy stays intact and the ANC remains overwhelmingly popular. At the same time, however, social tensions are undeniably rising. And with those rising tensions, the limits of South Africa’s transformative project are becoming increasingly evident, if not yet directly politically relevant. Although many of the protests remain local and concern immediate grievances, there are budding signs of linkages between working and non-working sectors of society, and between inadequate service delivery and structural socio-economic and political problems. An example of ‘connecting the dots’ was apparent in the protracted public-sector strike of August and September 2010, which reflected solidarity with poor people’s struggles, and was powerfully articulated in a statement by the National Education and Health and Allied Workers Union (NEHAWU) in response to the throwing of food by Stellenbosch University students at striking workers: The residents of Stellenbosch need to realise that as long as the people of South Africa are hungry and disillusioned no one in this country need feel secure. When poor people are hungry they tend to eat the rich and it will be na¨ıve for Stellenbosch residents to think because they are rich, the working class fight is not their fight. (NEHAWU, 2010)

There are also recent signs that the ANC is beginning to worry about the burgeoning protests. It is also evident that service delivery (and particularly the problem of open 45

The ANC lost seats and had a decline in the percentage share of the vote in 2009, after steady increases in the period 1994–2004 in both percentage of vote share and seats won (e-mail from Ebrahim Fakir, manager of Governance Institutions and Processes, Electoral Institute for the Sustainability of Democracy in Africa, 15 February 2011).

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toilets) was a key campaign issue in the run-up to the May 2011 local government elections,46 even if there is no clear indication yet of lasting structural improvements for protesters. Ultimately, as with the litigation outlined subsequently, it is in all probability simply too early to assess the efficacy of these tactics at affecting change. This is especially true if the analytical frame is widened to take into account the broader objectives of local protest (and litigation) of forging a more responsive and accountable political sphere and a more egalitarian economic deal. 6. LITIGATION

To date, three basic services-related test cases have come before the Constitutional Court: Mazibuko, Joseph, and Nokotyana.47 All three relate to common problems that poor people experience with basic services, and all three decisions were handed down in quick succession (Mazibuko on 8 October 2009, Joseph on 9 October 2009, and Nokotyana on 19 November 2009). One of these cases, Joseph, was a narrowly defined case brought by tenants to challenge a negative infringement of their right to electricity. In this case, the applicants were successful and obtained a favourable ruling from the Constitutional Court. The other two cases – Mazibuko and Nokotyana – involved articulations of the State’s positive obligations in respect of socio-economic rights. In both these cases, the Constitutional Court ruled against the applicants and did not order the substantive relief asked for. Nevertheless, in all three cases there has already been a demonstrable impact, which confirms that litigation can (and should) be about much more than simply winning or losing in court. This is particularly the case for Mazibuko, which was rooted in a much broader struggle by the Anti-Privatisation Forum (APF) to increase access to water and has had some quite surprising effects despite the judicial defeat. Indeed, Mazibuko illustrates that real gains can be made through legal mobilisation conducted in the wings of litigation, especially if such mobilisation is advanced as a means in itself beyond the spatial, temporal, and professional constraints of the courtroom. 46

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This is largely because the ANC – which had publicly lambasted the Democratic Alliance in Cape Town for delivering non-enclosed toilets in Makhaza informal settlement, Khayelitsha – was embarrassed after the media revealed that in the ANC-controlled Free State municipality of Moqhaka, residents of Rammulotsi township had been left with open toilets since 2003. An interesting aspect of the Rammulotsi case is that residents had not made much fuss about the toilet issue between 2003 and 2011; and it was only because of pre-elections media exposure the ANC moved in to rectify the situation, which indicates just how opaque the link is between material conditions and politics. It is also interesting that, when questioned as to why the toilets had remained open for so long, Moqhaka’s executive mayor Mantebu Mokgosi responded that he had requested funding from the province and national government in 2006 – “they haven’t responded, but we still have hope that they will respond” (Masondo, 2011a) – which points to the perennial problem of under-funding for services in poor municipalities and hints at problems of accountability and ineffective inter-governmental relations. It is important to note in this section that, while a senior researcher at the Centre for Applied Legal Studies, I was part of the legal team of the Mazibuko and Joseph applicants.

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All three cases have been discussed in chapter 2, by Wilson and Dugard, on the Constitutional Court’s socio-economic rights jurisprudence, but they are summarised here for the purposes of this chapter’s analysis. I begin with Joseph, as the only judicial victory of the three cases but one in which the impact was largely limited to the judicial process, as no legal mobilisation was entailed. I then move to Mazibuko, in which the Court ruled against the applicants on all grounds and did not order any relief. Yet in this case numerous benefits have derived from the litigation process, broadly defined as incorporating the associated mobilisation by the APF, including some material effects. I end with Nokotyana, which falls between the two in that there was a limited form of legal mobilisation by the Harry Gwala community, and although the Court did not grant the requested remedies, it did order some relief. In analysing the effects of these cases, and largely informed by Mazibuko, I propose an impact model for human rights litigation that goes beyond the effects of the judicial process to incorporate the effects of legal mobilisation – understood as the process whereby “a desire or want is translated into a demand as an assertion of one’s rights” (Zeemans, 1983: 690–703) and is championed as part of a broader social struggle – to the extent that there has been any mobilisation in the case under review. For the purposes of this model, I define legal mobilisation quite precisely as referring to a rights-based campaign by a social movement or social grouping that includes non-litigation tactics (even where this involves unlawful actions) and litigation. Thus, I do not consider the mere, and exclusive, uptake of litigation by individuals or a group (as occurred in Joseph) to be a mobilisation process. Although in general legal mobilisation might not involve litigation at all (e.g. the protests described earlier), here I am analysing legal mobilisation within a litigationinclusive model. It is possible that, at a later date, the legal mobilisation axis of impact could be applied to analysing local protests. For the moment, however, it is too soon to see any clearly identifiable causal effects. Given that the time frames for the current wave of protests and the cases examined in this chapter are similar, this possibly points to litigation being a quicker tactical path than non-litigation, but more research is necessary to draw such a conclusion (and not all issues can or should be litigated). I pursue this approach in line with the interpretive approach of Michael McCann (1994), to take into account the process whereby rights-based litigation, whether resulting in judicial victory or defeat, helps redefine the socio-political terms of engagement between the State or private actors and civil society, thereby creating the potential for transformative change. To this end, I have adapted C´esar Rodr´ıguezGaravito’s (2011) model outlined in the introduction of this book to expansively analyse the impact of rights-based litigation (broadly defined as the judicial process plus any parallel mobilisation processes to advance the claims made in the case).48 48

This schema and analysis has also been developed in Dugard and Langford (2011).

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table 10.1. A typology of impact for rights-based litigation Judicial process Enabling

r Crystallising issues and increasing the visibility of the problem

r Providing publicly accessible information r r r r r Material

relating to structural problems in the social, socio-economic, or political sphere Clarifying or redefining the litigation terrain in terms of problems, possibilities, and precedents Conferring perceptions of authority and/or legitimacy for rights-based initiatives Providing a dramatic platform for airing grievances Allowing greater tactical options for civil society formations Changing attitudes among civil society players towards rights-based options

r Direct changes to material conditions, law, or policy ordered by court; r Changes to material conditions resulting indirectly from judicial process

Legal mobilisation process

r Galvanising activists and creating new coalitions

r Sensitising the media

and raising public awareness about the validity of the problem r Politicising the problem r Monitoring any judicial orders to maximise enforcement

r Material effects of the enabling impacts of legal mobilisation

I see this process as comprising enabling and material components, as set out in Table 10.1. The parallel judicial and legal mobilisation processes that make up this expanded conceptualisation of rights-based litigation are reflected in the horizontal axis of Table 10.1. Obviously, not all rights-based litigation is accompanied by legal mobilisation. But legal mobilisation is included here because it was a relevant aspect in both Mazibuko and Nokotyana, and it might have more general traction in line with the tentative proposition that litigation rooted in legal mobilisation can achieve greater impact than that without. If the Mazibuko case is anything to go by, the focus of legal mobilisation need not be the judicial decision per se; rather, litigation can provide a stage to crystallise, highlight, publicise, and politicise struggles (i.e. litigation can be a means rather than an end). Certainly, from the three cases under review here, there is no correlation between mobilisation and judicial outcome, as evidenced by the fact that in Joseph there was no legal mobilisation and the decision was favourable, whereas in Mazibuko there was substantial legal mobilisation and the decision was unfavourable. But, as detailed here, there seems to be an important correlation between legal mobilisation and broader impact. Whereas Rodr´ıguez-Garavito sees effects on the vertical axis as material or symbolic, I use the term enabling for the latter category, as it denotes more assertively the

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empowering effect of litigation as creating the potential for transformative change. Like the symbolic effects in Rodr´ıguez-Garavito’s model, this category refers to changes in ideas, perceptions, and collective social constructs (Rodr´ıguez-Garavito, 2011), but I include changes in opportunities as well. Enabling impacts are therefore understood as changes in socio-political assets (resources available for social groups) that have the potential to contribute to political and ultimately structural change by providing greater leverage in civil society’s engagement with the State (or private power). Material impacts are changes in material conditions, including living conditions, and changes in law and policy. I have excluded Rodr´ıguez-Garavito’s direct and indirect effects axis of comparison. In this more fluid model with parallel processes and tactics, it is hard to delineate direct and indirect effects, not least because the enabling effects of the judicial process can contribute to the enabling effects of the mobilisation process, and the enabling effects of the mobilisation process certainly influence the material impact of the mobilisation. 6.1. Joseph On 8 July 2008, City Power (Pty) Ltd disconnected the electricity supply to the Ennerdale Mansions residential building in Johannesburg. The low-income residents of Ennerdale Mansions received no prior notice of the disconnection. As it transpired, although residents had been keeping up with their electricity payments, paid to the landlord in terms of their rental agreements, the landlord had not passed on the payments to the City and owed City Power approximately R400,000. Finding themselves without electricity and being told by the City that they would have to pay the entire arrears before their electricity supply would be restored, the applicants approached the South Gauteng High Court seeking the reconnection of the electricity supply and an order declaring that they were entitled to procedural fairness in the form of notice and an opportunity to make representations to City Power before it terminated the electricity supply. The High Court (in both Part A and B applications)49 denied the applicants such relief, and they appealed to the Constitutional Court. As summarised in the Constitutional Court judgment, the crux of the case was “whether any legal relationship exists between the applicants and City Power”,50 or what “relationship, if any[,]” there was “between City Power as a public service provider and users of the service with whom it has no formal contractual relationship”.51

49

50 51

Part A was an urgent application for the immediate reconnection of electricity supply. Part B again sought the reconnection of the electricity supply, as well as an order declaring that the disconnection of the electricity supply without notice was unlawful. Joseph, para. 2. Ibid., para. 24.

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The applicants argued that, even if they were not protected by the utility contract, a relationship existed between the tenants and the City, and the tenants had a right to notice before disconnection of electricity services, under Section 3 of PAJA, by virtue of electricity being a component of their right, inter alia, of access to housing. The Constitutional Court ruled in the applicants’ favour, finding that they could rely on PAJA’s procedural protections, ordering the tenants’ electricity supply to be reconnected, and eliminating the phrase “without notice” from Bylaw 14(1) of the City of Johannesburg’s electricity bylaws. Somewhat surprisingly, the Court did not base its decision on linking electricity to the right to housing, as the applicants had argued. Instead, the Court essentially created a new socio-economic right – the right to basic municipal services (including the right to electricity).52 Nevertheless, in creating this new right, the Court opened up the potential to base a claim on the right to basic municipal services. Unfortunately, however, this has not brought any direct relief to the applicants, who remain without electricity. This is because, in the time it took for the case to reach the Constitutional Court, vandals stripped the building of its electrical cables, so it was no longer possible for the City to reconnect without incurring considerable expenses, which it was unwilling to incur. Yet on the enabling axis, access to electricity has been defined as a rights issue, a new right to municipal services has been created, assumedly with all the administrative justice protections of public services, and a precedent has been created to challenge subsequent electricity disconnection cases, starting with Chiawelo.53 Moreover, Joseph publicised systemic problems with the City’s billing, thereby raising awareness of the links between service delivery and municipal governance. There was also a wide-reaching material change: the City of Johannesburg can no longer lawfully disconnect tenants’ electricity supply without notice. These effects are represented in Table 10.2. 6.2. Mazibuko In 2001, the City of Johannesburg formulated a project to limit unpaid-for water consumption in Soweto by means of the mass installation of pre-paid water meters (PPMs). Called Operation Gcin’Amanzi (meaning ‘to conserve water’ in isiZulu), the project started with a pilot in Phiri, one of the poorest suburbs of Soweto. Unlike the conventional meters available throughout Johannesburg’s richer suburbs, which provide water on credit with numerous protections against unfair disconnections, PPMs automatically disconnect once the (inadequate) Free Basic Water (FBW)

52

53

Joseph, paras. 34–55 (the Court based the right to basic municipal services on Section 73 of the Municipal Systems Act, read with Section 152 of the Constitution). Consent order: Residents of Chiawelo Flats v ESKOM Holdings Limited and City of Johannesburg Case No. 2010/35177, http://www.seri-sa.org/images/stories/order 10sep10.pdf.

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table 10.2. A typology of impact for Joseph Judicial process Enabling

r Publicised systemic problems in municipal

Mobilisation process

r None

governance relating to credit control

r Defined electricity as a rights issue r Created new right to municipal basic services and a public order electricity right

r Created a precedent for litigating other electricity disconnection cases

Material

r City bylaws changed to remove ability to

r None

disconnect tenant’s electricity supply without notice

supply is exhausted, unless additional water credit is purchased and loaded, thus leaving poor households without water for days on end each month. Determined not to accept PPMs, the Phiri community embarked on a course of direct resistance against the roll-out, attempting to physically stop contractors from installing the PPM infrastructure. However, the resistance was critically undermined after the City secured a wide-ranging interdict that prohibited activists from coming within fifty metres of any PPM operations and authorising private security companies to assist in managing any infringements of those terms, which effectively put an end to the direct activism. As this avenue of protest appeared to be closed off, the community turned to the option of rights-based litigation as a tactic to challenge PPMs (along with the ‘standpipe’ yard taps that the City offered some residents as an alternative to PPMs).54 In doing so, they embarked on a legal mobilisation process in which the litigation formed part of a wider rights-based struggle against PPMs that included meetings, marches, media exposure, and by-pass (a form of civil disobedience that entails removing the offending technology – whether PPM or standpipe – and connecting to the main water supply, thereby restoring the unlimited water supply).55 Although five residents brought forward the litigation, it was explicitly framed as public-interest litigation and it was supported by the APF, a leftist social movement that opposes the privatisation, commercialisation, and corporatisation of basic services. The crystallisation of matters as an issue of right to water also gave rise to a 54

55

For an analysis of the interplay between direct resistance and the Mazibuko legal battle, see Dugard (2009). The true scale of PPM and standpipe by-pass in Soweto is not known, but it has been unofficially estimated that by early 2010 approximately a third of all PPMs and standpipes installed in Soweto between 2003 and 2006 had been by-passed. I include by-pass as part of legal mobilisation because, certainly following the uptake of litigation, it was articulated in terms of being necessary to advance the right of access to sufficient water (i.e. a criminal justice “necessity” defence). The incidences of by-pass rocketed after the High Court victory, with many residents perceiving the judgment as providing legal authority to destroy PPMs and standpipes.

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new social movement, affiliated with the APF, the Coalition against Water Privatisation (CAWP). The legal case was formulated around two aspects of the City’s water services that adversely affected residents’ access to water: PPMs and the City’s FBW policy, which was insufficient to meet the basic needs (including waterborne sanitation) of poor, multi-dwelling households in which as many as twenty people shared the single six-kilolitre FBW allocation. Thus, the applicants approached the court to have PPMs declared unlawful56 and the FBW policy reviewed and set aside as unreasonable because it was insufficient to meet basic needs in the Phiri context.57 The case was launched in the Johannesburg High Court on 12 July 2006 and heard between 3 and 5 December 2007. The ruling of 30 April 2008 found in the applicants’ favour on all grounds, declaring PPMs unlawful and unconstitutional, declaring the City’s FBW policy unreasonable, and ordering the City to provide the applicants and all similarly positioned residents with fifty litres of FBW per person per day.58 However, the judgment was immediately appealed to the Supreme Court of Appeal (SCA), where it was heard from 23–25 February 2009. The resultant SCA judgment59 of 25 March 2009 upheld the appeal but ruled in favour of the Phiri residents on the two substantial grounds: finding PPMs unlawful (largely on the grounds that the City’s bylaws did not allow their installation as a first measure but only when a household had contravened the conditions of service of a standpipe) and the City’s FBW policy unreasonable, and ordering the City to reformulate its policy with a view to providing forty-two litres per person per day to indigent residents of Phiri.60 Notwithstanding the SCA’s ruling against the City on both PPMs and the FBW policy, the Phiri residents decided to appeal the judgment to the Constitutional Court because they believed that there were serious problems with the SCA’s order, particularly its suspension of the order of invalidity regarding PPMs.61 The appeal was heard in the Constitutional Court on 2 September 2009. 56

57

58

59

60 61

The applicants’ PPM challenge was based on several legal arguments: the decision to install PPMs in Phiri without any prior consultation with residents violated Section 4(1) of PAJA; the roll-out of PPMs only in poor black areas, despite evidence of bad debt in all areas, amounted to unfair race-based discrimination, prohibited by Section 9(3) of the Constitution; the PPM’s automatic disconnection mechanism contravenes the procedural protections (reasonable notice and opportunity to make representation before disconnection) of Section 4(3) of the Water Services Act; and the City’s water bylaws do not allow for the installation of PPMs, except as a punitive measure for contravening the terms of a standpipe supply. This list is not exhaustive – see applicants’ heads of argument in the Constitutional Court (available at http://web.wits.ac.za/NR/rdonlyres/61317CD0–6821–4DC6-A1E6– 7823D3140981/0/MazibukoApplicantsfinalwrittensubmission24July2009.pdf). The FBW challenge was based mainly on Section 27 of the Constitution. The applicants, supported by the amicus curiae – the Centre on Housing Rights and Evictions – argued for fifty litres per person per day, in line with international standards. The judgment of the High Court: Mazibuko and Others v City of Johannesburg and Others Case No. 06/13885 (Mazibuko High Court judgment). The judgment of the SCA: City of Johannesburg and Others v Mazibuko and Others Case No. 489/08 (Mazibuko SCA judgment). For a critique of the SCA judgment, see Dugard and Liebenberg (2009). The SCA suspended its order of invalidity regarding PPMs, giving the City two years to “legalise the use of prepayment water meters in so far as it may be possible to do so” (para. 62 of the SCA judgment): http://www.saflii.org.za/za/cases/ZASCA/2009/20.html.

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On 8 October 2009 the Constitutional Court delivered its judgment, ruling against the Phiri residents on all grounds.62 Nevertheless, despite the judicial defeat, there have been some unanticipated outcomes of the case that confirm the analyses of legal mobilisation as being about more than simply the judicial outcome. Notwithstanding the judgment, the litigation has had a positive impact on the APF and CAWP, and possibly on water campaigns more broadly, by reinvigorating and energising struggles against the commercialisation of basic services (not least by delaying for several years the roll-out of pre-paid water meters across the country while municipalities waited for the outcome of the litigation). In the words of APF founder Dale McKinley, Mazibuko “provided something to organise around; hope and recognition after having been fucked over by the police – it became the centre of mobilisation and reinvigorated the struggle, as well as catalysing political discussions and refining strategy”.63 Other unanticipated outcomes of the litigation were highlighted by Mazibuko applicant Grace Munyai. When I tearfully phoned her from the Constitutional Court to tell her that we had lost, Grace’s response was “I’m so sorry for you”, followed by a short pause, and “but do you know I’m going to be on TV tonight?” Grace’s response speaks to her muted concern about the judgment per se – along with most Phiri residents who destroyed their pre-paid water meters (or standpipes), she had by-passed her standpipe following the victorious High Court judgment and so was able to access sufficient water. But more than this, her response indicates the value she placed on her struggle having been acknowledged in the mainstream media: the litigation provided a voice to her and to the community of Phiri when the political realm had failed them. Finally, in something of a surprise, there have been material impacts deriving from the Mazibuko judgment, despite the judicial defeat and clearly as a direct result of the politicisation of the issues during the legal mobilisation process. These include the fact that, as a direct result of the politicisation surrounding the litigation, the City has raised the amount of FBW it provides to the poorest households in Johannesburg to fifty litres per person per day (the amount the applicants asked for),64 and it has indicated that the new generation of PPMs it plans to install from the end of 2010 will have a ‘trickler’ device, meaning that following the exhaustion of the FBW allocation, the water supply will not completely cease but rather will 62

63 64

Mazibuko is the second judgment in the Court’s history of socio-economic rights adjudication in which it did not grant any relief to the applicants (the first was Soobramoney v Minister of Health, KwaZulu-Natal 1998 (1) SA 765 (CC) (Soobramoney), the Court’s first socio-economic rights case). For a critique of the Mazibuko judgment, see Liebenberg (2010: 466–80) and De Vos (2009), who argues that a reason for the seemingly contradictory stance on water disconnections in Mazibuko and electricity disconnections in Joseph is that the Court endorsed a “pay as you go” model of municipal services and was more inclined to rule in favour of residents who were paying for services (Joseph) than those that were not (Mazibuko). Interview with Dale McKinley in Johannesburg on 10 July 2009, cited in Dugard (2010: 94). This is in terms of the City’s Expanded Social Package and applies up to a monthly household limit of fifteen kilolitres. When the case was launched, the City provided a maximum of six kilolitres of FBW per household per month to poor households.

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come out as a trickle until further credit is loaded or the subsequent allocation arrives. Finally, the City has undertaken, as part of the new roll-out of PPMs, not to prosecute anyone for by-passing a PPM or standpipe. In effect, this means that the applicants and community received the relief they litigated for but through legal mobilisation rather than the judicial process. The APF is alive to the reality that the litigation process delivered much more than the judicial decision – in terms of both material outcomes and tilting the balance in favour of the community through politicising the ongoing process of engagement and contestation between civil society and government. Acting on this, the APF pursued more rights-based litigation in the year following the Mazibuko judicial defeat than ever before, including mounting several cases related to proactive housing rights that challenged the use of trespass legislation as a way to get around evictions proceedings. For a movement that has traditionally been highly sceptical of rights,65 the APF has conceptualised a tactical approach to rights-based mobilisation through its Law and Organising programme, which provides training to social movement leadership in how to use rights to advance struggles for socio-economic justice. The categories of impact for Mazibuko are represented in Table 10.3. 6.3. Nokotyana In the Constitutional Court, Nokotyana was an application for leave to appeal against the judgment of the South Gauteng High Court. The applicants, residents of Harry Gwala informal settlement in Ekurhuleni, had approached the High Court for an order against the Ekurhuleni Metropolitan Municipality to install communal water taps, temporary sanitation facilities, refuse collection, and high-mast lighting in key areas pending a decision by the MEC for Local Government and Housing, Gauteng, on whether the settlement would be upgraded to a formal township. The residents had been mobilising for years to have the settlement upgraded, through the Harry Gwala Civic Committee and going back to the Tent-Town Residents Committee in 1993 (which had secured a written undertaking from the then Wattville Town Council for an in situ upgrading on 24 November 1993).66 Following years of fraught engagement with the municipality, including an attempt to evict the residents without a court order, the Ekurhuleni municipality submitted a proposal to the MEC in August 2006, but no decision had been taken, thus prompting the residents to turn to the litigation. Because of an agreement by the municipality in the High Court to provide taps and refuse collection, the High Court ordered the provision of those services. However, the High Court dismissed the applicants’ claim for temporary sanitation and for high-mast lighting. 65

66

As a socialist movement, the APF has historically regarded rights as elite serving (see e.g. Dugard 2009). E-mail from Moray Hathorn, Webber Wentzel Attorneys, 21 February 2011.

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table 10.3. A typology of impact for Mazibuko

Enabling

Judicial process

Mobilisation process

r Crystallised community discontent against

r Created a new coalition:

PPMs as a rights violation

r Provided a high-profile and long-running platform for the struggle against PPMs

r Provided a huge amount of information on r r r r

Material

r

water services–related planning, budgeting, and problems Reinvigorated water rights activists and the APF specifically Gave voice to water rights struggles High Court victory legitimised struggle and conferred a sense of authority for destroying PPMs to access sufficient water APF decision to use litigation as one of its tactics – part of ‘law and organising’ agenda going forward Provided five years’ respite in imposition of PPMs elsewhere in South Africa, during which time some municipalities (notably eThekwini) took political decisions not to install PPMs

CAWP

r Raised public opinion about usage, pricing, and equity of water services r Sensitised the media to the poor’s struggles to access basic services r Politicised issues of PPMs and access to sufficient water in Soweto

r Additional FBW has been made available to the poorest households r PPMs have been fitted with a ‘trickler’ device so that there is no longer an automatic disconnection following the exhaustion of the FBW amount r The City has undertaken not to prosecute anyone for by-passing PPMs or standpipes

The applicants appealed the decision to the Constitutional Court, basing their claim, inter alia,67 on Section 26’s right of access to adequate housing as encompassing the rights to basic sanitation and electricity. In April 2009, in the run-up to the Constitutional Court hearing (September 2009), the municipality adopted a policy in which it offered residents one chemical toilet per ten families. During the Constitutional Court hearing, counsel for the municipality indicated that such toilets could be installed by October 2009 (one month following the hearing) and that the municipality would not object to the offer being made an order of Court. In the court proceedings, the residents rejected the offer, arguing for one ventilated improved pit (VIP) latrine per household (based on standards in Regulation 2 of the 67

The applicants also relied on Sections 2, 7, 10, 39, and 173 of the Constitution; Chapters 12 and 13 of the National Housing Code (published in terms of the Housing Act 107 of 1997); the Housing Act 107 of 1997; and the Water Services Act 108 of 1997.

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Water Regulations), as well as high-mast lighting to enhance security. Ultimately, despite ordering the MEC to take a final decision on Ekurhuleni’s application in terms of Chapter 13 of the National Housing Code to upgrade the status of the Harry Gwala informal settlement within fourteen months of the Court order,68 the Court dismissed the appeal. Almost a year after the judgment, the decision to upgrade Harry Gwala was held up by the need to investigate the environmental impact of the settlement on a local bull-frog population, and basic services remain as inadequate as ever.69 However, in February 2011, following persistent pressure from the community and its lawyers, the Gauteng Provincial Housing Department notified the applicants that the decision on an in situ upgrade would be made by June 2011. Notwithstanding this pending decision, on 4 February 2011, some high-mast lighting was installed in Harry Gwala,70 although it was not ordered by the judgment. Similarly, chemical toilets have been rolled out, with the municipality apparently making an exception and providing more than the one toilet per ten families that it had offered in court.71 Thus, although residents still do not have adequate access to housing or basic services, there have been limited material effects, including the two additional water taps and refuse collection secured in terms of the High Court order. More recently, chemical toilets and some high-mast lighting have been provided, seemingly a result of the ongoing mobilisation by the Harry Gwala community. There have also been enabling effects, including the public exposure in the court record of the unacceptably long time that the municipality sat without taking a decision on upgrading Harry Gwala and the framing of inadequate sanitation for the first time as a rights issue. It is also evident that the process of taking up litigation has exposed the residents of Harry Gwala to the possibility of holding government accountable by means of litigation, which might result in further rights-based mobilisation in the future. In the meantime, other communities in nearby informal settlements have viewed the decision as empowering them to ask for clarification on upgrading and basic services,72 and it seems that in the near future a decision will finally be taken about the settlement’s upgrading. These effects are represented in Table 10.4. *** As outlined here, there have been mixed results from the three basic services-related cases that have come before the Constitutional Court. In terms of the judicial outcome, in two of the three cases the applicants lost, but it is too early to draw conclusions about whether the seemingly erratic judicial outcomes reflect trends 68 69 70 71

72

Nokotyana, p. 30 (the Nokotyana judgment has page numbers, not paragraph numbers). E-mail from Moray Hathorn, Webber Wentzel Attorneys, 23 August 2010. E-mail from Moray Hathorn, Webber Wentzel Attorneys, 15 February 2011. E-mail from Professor Marie Huchzermeyer, School of Architecture and Planning, University of the Witwatersrand, 2 March 2011. E-mail from Malcolm Langford, 29 January 2012, on interviews with residents in Makause informal settlement. See also chapter 7, on housing rights, in this volume.

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table 10.4. A typology of impact for Nokotyana Judicial process Enabling

Material

Mobilisation process

r Highlighted the intransigent problem of

r Made community aware

municipal failure to take a decision regarding the upgrading of informal settlements r Defined sanitation as a rights-based issue r Required the municipality to report back on its decision on whether to upgrade

of potential gains from litigation in terms of securing executive decisions r Community monitoring of the report-back process and pressure on government to enforce the decision r Chemical toilets and high-mast lighting installed despite not being ordered by the judgment

r Two additional water taps and refuse bins provided under High Court order

r Notice that a decision will be taken on upgrading the settlement in June 2011

in the Court’s adjudication. In any event, in all three cases the broader impact has been more diverse than perhaps predicted. In Mazibuko, despite the judicial defeat, legal mobilisation has ensured approximately the same advances in access to water as were expected from the case itself. In Nokotyana, although the Harry Gwala residents continue to suffer with inadequate access to water and sanitation, it seems that the constant pressure of community mobilisation will secure a decision on upgrading in the near future. In Joseph, despite the judicial win, the reconnection of electricity to the building has not been possible because extensive damage caused in the interim. These cases indicate that litigation is unpredictable, but it has the potential for diverse and reverberating impact, especially when linked to legal mobilisation. This is not to suggest that litigation without legal mobilisation is without value or that litigation with mobilisation will result in a judicial victory. Certainly, the three cases examined in this chapter challenge such simplified assertions. Rather, I argue that litigation is always context specific and that judicial outcome is hard to predict. But mobilisation can play a role in politicising issues and leveraging power in society’s engagement with the State. Evidently, litigation – particularly rights-based litigation – is about much more than the judgment, and some of the enabling effects of the litigation (whether won or lost in the court) have been highlighted in this chapter. However, any conclusions about the medium- or longer-term impact of such litigation, especially in terms of its potential to affect structural change, is still at best tentative. 7. CONCLUSION

Writing in 2010, Richard Pithouse noted: “[O]ur democracy has failed in a variety of respects many of which come down to the fact that it has always been an elite

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deal that excludes the majority from substantive access to its political and economic benefits. . . . [T]he massive rate of popular protest is one sign that the time when an elite deal could be passed off as real democratisation will soon be up.” He warned, “[I]f we don’t find a way to move a serious and rational discussion of the question of substantive equality to the centre of our politics we’ll be left with the sorry spectacle of the politics of big men trying to rally their troop behind nothing but the promise of their protection on their turf ” (Pithouse, 2010). The fault lines Pithouse writes about are blatantly evident in water, electricity, and sanitation services, where there are vast inequalities within and between municipalities. Rich households enjoy abundant water for sprinklers and swimming pools while poor households share communal taps, pit latrines, and water tankers or suffer with pre-paid water meters and no electricity. Although basic service inequities are not the only factor behind local protest, they are a dominant common feature. Likewise, test case litigation related to basic services has begun to challenge the gulf between poor and rich in South Africa. The impact of these challenges is still unclear, and current incidents of resistance are still too loosely connected to one another and to the central political and economic sphere to directly affect national politics. However, there is potential in the contestation and politicisation of protest and test case litigation that political elites might become fragile and that structural concessions may be made. Whether this gives rise to genuine democratic alternatives or further polarisation and repression largely depends on the continued patient work “of democratising society from below” by organising “powerful and mass based democratic alternatives from the ground up” (Pithouse, 2010). Rights-based protest, litigation, and advocacy can play an important role in this still-unfolding revolution. And socio-economic rights, whether as symbols of a better society or as substantive tactics for activists to use in communities and in courtrooms, are part of the arsenal that civil society can use as both a shield and a sword in the ongoing struggle to transform South Africa.

references Alexander, Peter (2010) ‘Rebellion of the poor: South Africa’s service delivery protests – A preliminary analysis’, Review of African Political Economy, Vol. 37, No. 2, pp. 25–40. Bartram, Jamie, and Guy Howard (2003), Domestic water quantity, service level and health: What should be the goal for water and health sectors? (Geneva: World Health Organisation). Boikanyo, Refilwe, and Boitumelo Tlhoaele (2010), ‘Water protest ends with rubber bullets and arrests’, The Times (South Africa), 1 March, http://www.timeslive.co.za/local/2010/03/ 01/water-protest-ends-with-rubber-bullets-and-arrests. Bond, Patrick (2010), ‘South Africa’s bubble meets boiling urban social protest’, Monthly Review, June, pp. 17–28. Bond, Patrick, and Jackie Dugard (2008a), ‘The case of Johannesburg water: What really happens at the pre-paid “parish pump”’, Law, Democracy and Development, Vol. 12, pp. 1–28.

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(2008b), ‘Water, human rights and social conflict: South African experiences’, Law, Social Justice & Global Development, Vol. 1, http://www2.warwick.ac.uk/fac/soc/law/elj/ lgd/2008 1/bond dugard. Booysen, Susan (2007), ‘With the ballot and the brick: The politics of attaining service delivery’, Progress in Development Studies, Vol. 7, No. 1, pp. 21–32. Buccus, Imraan (2010), ‘Burning schools point to a disconnect between communities and the State’, South African Civil Society Information Service, 27 June, http://www.sacsis.org.za/ site/article/521.1. Dawson, Marcelle (2010), ‘Resistance and repression: Policing protest in post-apartheid South Africa’, in Jeff Handmaker and Remko Berkhout (eds.), Mobilising social justice in South Africa: Perspectives from researchers and practitioners (Pretoria: Pretoria University Law Press), pp. 101–128. Department of Water Affairs and Forestry (2002), Free basic water implementation strategy, August, http://www.dwaf.gov.za. De Vos, Pierre (13 October 2009), ‘Water is life (but life is cheap)’, Constitutionally Speaking, http://constitutionallyspeaking.co.za/water-is-life-but-life-is-cheap/. Dugard, Jackie (2009), ‘Rights, regulation and resistance: The Phiri water rights campaign’, South African Journal on Human Rights, Vol. 24, No. 3, pp. 593–611. Dugard, Jackie (2010), ‘Civic action and legal mobilisation: The Phiri water meters case’, in Jeff Handmaker and Remko Berkhout (eds.), Mobilising social justice in South Africa: Perspectives from researchers and practitioners (Pretoria: Pretoria University Law Press), pp. 71–99. Dugard, Jackie, and Malcolm Langford (2011), ‘Art or science? Synthesising lessons from public interest litigation and the dangers of legal determinism’, South African Journal on Human Rights, Vol. 27, No. 1, pp. 39–64. Dugard, Jackie, and Sandra Liebenberg (2009), ‘Muddying the waters: The Supreme Court of Appeal’s judgment in the Mazibuko case’, ESR Review, Vol. 10, No. 2, pp. 11–17. Dugard, Jackie, and Nthabiseng Mohlakoana (2009), ‘More work for women: A rights-based analysis of women’s access to basic services in South Africa’, South African Journal on Human Rights, Vol. 25, No. 3, pp. 546–72. Duncan, Jane (2010), ‘On protest hotspots and analytical blind spots’, South African Civil Society Information Service, 8 March, http://www.sacsis.org.za/site/article/439.1. Friedman, Steven (2009), ‘People are demanding public service, not service delivery, Business Day, 29 July, http://www.businessday.co.za/articles/Content.aspx?id=77115. Gleick, Peter (1996), ‘Basic water requirements for human activities: Meeting basic needs’, Water International, Vol. 21, pp. 83–92. Heese, Karen, and Kevin Allan (2011), ‘Are fiery street protests replacing the vote?’, Business Day, 18 February, http://www.businessday.co.za. Hemson, David (2008), ‘Water for all: From firm promises to “new realism”’, in David Hemson, Kassim Kulindwa, Haakon Lein, and Adolfo Mascarenhas (eds.), Poverty and water: Explorations of the reciprocal relationship (London: Zed Books), pp. 13– 46. Jain, Hirsh (2010), ‘Community protests in South Africa: Trends, analysis and explanations’ (Local Government, Working Paper Series No. 1, Community Law Centre, University of the Western Cape). Liebenberg, Sandra (2010), Socio-economic rights: Adjudication under a transformative constitution (Cape Town: Juta). Mahabane, Itumeleng (2011), ‘Death in Ficksberg shows how we value life’, Business Day, 15 April, http://www.businessday.co.za.

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Makgetla, Neva (2006), ‘Local budgets and development’, unpublished paper (available from author). Masondo, Sipho (2011a), ‘ANC roasts mayor over its open toilets’, The Times (South Africa), 10 May, http://www.timeslive.co.za/specialreports/elections2011/2011/05/10/ancroasts-mayor-over-its-open-toilets. (2011b), ‘Delivery too little, too late’, The Times (South Africa), 20 February, http:// www.timeslive.co.za/local/article925505.ece/Delivery-too-little-too-late. (2011c), ‘Tatane showered with praise’, The Times (South Africa), 20 April, http://www. timeslive.co.za/local/article1033130.ece/Tatane-showered-with-praise. McCann, Michael (1994), Rights at work: Pay equity reform and the politics of legal mobilization (Chicago: University of Chicago Press). McDonald, David (2002), ‘The bell tolls for thee: Cost recovery, cutoffs, and the affordability of municipal services in South Africa’, in David McDonald and John Pape (eds.), Cost recovery and the crisis of service delivery in South Africa, (Pretoria: Human Sciences Research Council (HSRC)), pp. 161–182. (2003), ‘Attack the problem not the data’, Sunday Independent (South Africa), 15 June. McKinley, Dale (2005), ‘The struggle against water privatisation in South Africa’, in Brid Brennan, Olivier Hoedeman, Philipp Terhorst, and Satoko Kishimoto (eds.), Reclaiming public water: Achievements, struggles and visions from around the world (Washington, DC: Transnational Institute), pp. 181–189. Mlambo-Ngcuka, Phumzile (2001), Minister of minerals and energy, Department of Minerals and Energy, notes for speech at the SAIDA Exhibition, Waterkloof, Pretoria, 11 May, http://www.search.gov.za/info/. Muller, Mike (2004), ‘Turning on the taps’, Mail & Guardian (South Africa), 25 June. (2007), ‘Parish pump politics: The politics of water supply in South Africa’, Progress in Development Studies, Vol. 7, pp. 33–45. Municipal IQ (2010), ‘Municipal IQ’s updated municipal hotspots results’, press release, 1 December, http:www.municipalIQ.co.za. National Education and Health and Allied Workers Union (2010), ‘When poor people are hungry, they eat the rich’, media alert, 8 September, http://groups.google.com/group/ nehawu-media-releases/browse thread/thread/0e1cd9e6251a7977/811fac91ba070b63. Piper, Laurence, and Roger Deacon (2009), ‘Too dependent to participate: Ward committees and local democratisation in South Africa’, Local Government Studies, Vol. 35, No. 4, pp. 415–33. Piper, Laurence, and Lubna Nadvi (2010), ‘Popular mobilisation, party dominance and participatory governance in South Africa’, in Lisa Thompson (ed.), Citizens and social movements: Perspectives from the global South (London: Zed Books), pp. 212–38. Pithouse, Richard (2007), ‘The University of Abahlali baseMjondolo’, http://www.abahlali. org/node/2814. (2010), ‘Enter a wide range of ranting, stupid men – Stage right’, South African Civil Society Information Service, 12 April, http://sacsis.org.za/site/article/460.1. (2011), ‘On the murder of Andries Tatane’, South African Civil Society Information Service, 16 April, http://www.sacsis.org.za/site/article/655.1. Rodr´ıguez-Garavito, C´esar (2011), ‘Beyond the courtroom: The impact of judicial activism on socioeconomic rights in Latin America’, Texas Law Review, Vol. 89, No. 7, pp. 1669–98. Sinwell, Luke, Joshua Kirshner, Kgopotso Khumalo, Owen Manda, Peter Pfaffe, Comfort Phokela, and Carin Runciman (2009), Service delivery protests: Findings from quick response research on four ‘hot-spots’ – Piet Retief, Balfour, Thokoza, Diepsloot (Johannesburg: Centre for Sociological Research, University of Johannesburg).

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South African Institute of Race Relations (2009), South Africa survey 2008/2009 (Johannesburg: South African Institute of Race Relations). Tissington, Kate, Marc Dettmann, Malcolm Langford, Jackie Dugard, and Sonkita Conteh (2008), Water services fault lines: An assessment of South Africa’s Water and Sanitation Provision across 15 municipalities (Johannesburg: Centre for Applied Legal Studies, Centre on Housing Rights and Evictions, Norwegian Centre for Human Rights). Von Holdt, Karl, Malose Langa, Sepetla Molapo, Nomfundo Mogapi, Kindiza Ngubeni, Jacob Dlamini, and Adel Kirsten (2011), The smoke that calls: Insurgent citizenship, collective violence and the struggle for a place in the new South Africa (Johannesburg: Centre for the Study of Violence and Reconciliation and Society, Work and Development Institute, University of the Witwatersrand). Wafer, Alex, Jackie Dugard, Muzi Ngwenya, and Shereza Sibanda (2008), A tale of six buildings: The lived-reality of poor people’s access to basic services in Johannesburg’s inner city (Johannesburg: Centre for Applied Legal Studies). Zeemans, Frances (1983), ‘Legal mobilization: The neglected role of the law in the political system’, American Political Science Review, Vol. 77, pp. 690–703. Zikode, S’bu, and Zodwa Nsibande (2010), ‘Serving our life sentences in the shacks’, 16 July, http://www.abahlaliorg/node/7187.

11 Realising Environmental Rights Civic Action, Leverage, and Litigation Rachel Wynberg* and David Fig**

[Despite strong arguments] against putting environmental rights on the already crowded agenda of struggle, the greening of our land is basic to its healing. – Former Constitutional Court Judge Albie Sachs (1990, p. 140)

1. INTRODUCTION

Environmental rights have been given new prominence by their inclusion in the South African Constitution (Act 108 of 1996)1 , which pronounces clearly on the imperative of ecologically sustainable economic and social development (Glazewski, 2005). Moreover, the constitutional shift laid the foundation for the development of specific principles of South African environmental law, including those relating to sustainability, public participation, and accountability. The necessity of such an approach is unequivocal. Accumulating evidence suggests a deterioration of the natural environment over the past decade (e.g. Wynberg, 2002; Department of Environment and Tourism, 2006; Green Drop Report, 2009) and a growing disparity between environmental sustainability and the drive for economic growth at all costs (e.g. South African Press Association, 2007; Curtis, 2008; Davenport, 2010; * Rachel Wynberg: Associate Professor, Environmental Evaluation Unit, University of Cape Town, Rondebosch 7700, South Africa. ** David Fig: Honorary Research Associate, Environmental Evaluation Unit, University of Cape Town, Rondebosch 7700, South Africa. Both authors greatly acknowledge the research assistance of Jaci van Niekerk and Johan Westberg and the support of the Norwegian Centre for Human Rights to enable the write-up of this chapter. We are grateful to reviewers for suggested improvements to the manuscript. Author contact information: Rachel Wynberg ([email protected]), David Fig ([email protected]). 1 The conceptualisation of environmental rights remains unresolved, with two main arguments presented: first, the rights of humans to a safe and healthy environment (the anthropocentric view), and second, the rights of the environment itself not to be degraded – the so-called intrinsic rights of the environment (the biocentric view) (Feris, 2008; Kidd, 2008a).

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Roberts, 2010). At the same time, the poorest have borne the brunt of environmental degradation and change, such as flooding, drought, and pollution (e.g. Meadows and Hoffman, 2002; Momba et al, 2006; Goebel, 2007). Adopting an environmental rights approach that incorporates human rights and socio-economic agendas is essential for the attainment of environmental goals. Few studies, however, analyse the extent to which environmental rights have been realised in South Africa, or the relationships between environmental rights and other constitutionally entrenched socio-economic rights, which, as Feris (2008) remarks, are extremely unclear. There has also been little discussion as to whether the current approach is sufficient to deal with the complexity of the trade-offs that are inevitably made when short-term powerful economic interests and long-term environmental imperatives coincide. In the popular media, a rather hackneyed version of environmental rights has been portrayed, pitching ‘environment’ as the antithesis of economic development rather than recognising the inter-relatedness of environmental sustainability and the enhancement of human well-being (Gough and McGregor, 2007). For example, a Constitutional Court case to consider the provision of accommodation for flooding victims in Kyalami2 presented housing and environment as conflicting rights rather than using the opportunity to assess sustainable development against the background of these interests (Kotz´e, 2003; Feris, 2008). A more composite view was taken in Hichange Investments (Pty) Ltd v Cape Produce Company (Pty) Ltd t/a Pelts Products.3 The judge, in considering the adverse impacts of pollution on well-being, noted that “no one should be obliged to work in an environment of stench”.4 Similarly, in BP Southern Africa (Pty) Ltd v MEC for Agriculture, Conservation, Environment and Land Affairs,5 an application to review a decision to develop a filling station considered ‘environment’ to broadly include socio-economic conditions. Dugard in chapter 10 of this volume also explores the intersection of water and socio-economic rights in a number of cases. Another common narrative has depicted environment as a white, middle-class issue, far removed from the grim realities of most of the population – but without recognising the significant alliances that have developed across race and class that defy this stereotype. Here we can cite the many poor communities engaged in opposing mining developments (e.g. Xolobeni in Eastern Cape Province, the Bafokeng in North West Province, communities mobilising against Angloplats outside Mokopane in Limpopo Province) when their land, water, ancestral graves, and livelihoods 2

3

4 5

Minister of Public Works and Others v Kyalami Ridge Environmental Association and Another (Kyalami Ridge) 2001 (7) BCLR 652 (CC). Hichange Investments (Pty) Ltd v Cape Produce Company (Pty) Ltd t/a Pelts Products and Others 2004 JDR 0040 (E). Ibid. p. 33. BP Southern Africa (Pty) Ltd v MEC for Agriculture, Conservation, Environment and Land Affairs 2004 (5) SA 124 WLD.

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are placed under threat. Other formations such as the South Durban Community Environmental Association and the Vaal Environmental Justice Alliance are but two of many exemplars of strong and active resistance by disadvantaged communities to industrial pollution. In this chapter, we explore two diverse and publicly prominent case studies to address this analytical void and to elucidate understanding about the evolving form of environmental rights in South Africa. Through investigation of two controversial technologies, nuclear energy and genetic engineering, both case studies examine the interface of civil society, State, and corporate actors, and how significant economic interests can shape, determine – and often undermine – environmental rights. Both case studies also focus on the use of legal action as a tool to defend environmental rights, in consort with wider political strategies. Table 11.1 provides a summary of the case studies, the actors involved, the strategies adopted, and the key issues that were taken up. The first is the so-called Biowatch case, in which a small South African non-governmental organisation (NGO) launched legal proceedings against the State to obtain information about the release of genetically modified (GM) crops into the environment. The case took an unexpected twist and a negative costs order led to the case being heard – and the costs order overturned – in the Constitutional Court. It is now one of the most widely cited cases of the Constitutional Court (Budlender, 2009). The case not only focuses on the right to a clean and healthy environment but also concerns the right to information needed to secure environmental rights and the rights of small whistle-blowing public-interest environmental organisations to make interventions without punitive legal measures being taken against them (in this case costs awarded to a rights-violating foreign corporation). The second case deals with an initiative of State electricity utility Eskom, which, between 1999 and 2010, attempted to develop a high-temperature nuclear reactor called the Pebble Bed Modular Reactor (PBMR). The case demonstrates the challenges and flaws of administrative systems set up purportedly to secure rights to a safe and healthy environment, in this case through the environmental impact assessment (EIA) process. In both cases, we describe and analyse the strategies used to articulate and defend environmental and related rights in South Africa, to interrogate the positive and negative impacts of these strategies, and to assess the outcomes achieved. The chapter compares and contrasts the different strategies adopted by non-State actors, and in addition to examining legal actions taken, it examines strategies of advocacy, resistance, and coalition building emerging within civil society. Whilst the cases chosen are not exhaustive, they are illustrative of some of the main conditions and contradictions faced by South Africans in securing their environmental rights. Information was gathered through a broad literature review of environmental rights in South Africa, case-specific information, and interviews with a range of key informants, including representatives from civil society groups, government officials, lawyers, academics, and private-sector representatives. Respondents were selected on the basis of their involvement in the case studies and their overall engagement with

table 11.1. An overview of case study actors, strategies and issues Non-State actors

State actors

Civil society strategies

Issues Rights to a clean and healthy environment Access to information about GM crops Rights of whistle-blowing public interest environmental organisations to make interventions without punitive legal measures being taken against them EIA process Absence of other policy arenas

Biowatch SA Monsanto Other seed companies LRC Amici (ODAC, Centre for Child Law, LHR, CALS)

Department of Agriculture Minister of agriculture Registrar of GMO Act

Litigation campaigning, advocacy, lobbying, coalition building

Pebble Bed Modular Reactor: nuclear power

Earthlife Africa

Eskom PBMR (Pty) Ltd Department of Environment and Tourism

Litigation, campaigning, advocacy, lobbying, coalition building

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Biowatch: genetically modified crops

Notes: ODAC = Open Democracy Advice Centre; LHR = Lawyers for Human Rights; CALS = the Centre for Applied Legal Studies at the University of the Witwatersrand, Johannesburg.

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issues relating to environmental rights. Where necessary, information was supplemented by archival material and court records. The chapter begins by providing an overview of the historical and policy context of environmental rights in South Africa and the engagement of civil society. A detailed description of each case study follows, and the chapter concludes with an integrative analysis of these cases and broader implications for environmental rights. 2. CONTEXT

2.1. A Historical Perspective Environmental rights were historically neglected – and indeed, abused – by the colonial and settler-dominated South African State, especially during the apartheid period (1948–94). Communities were forcibly relocated to make way for protected areas, restrictions were placed on access to natural resources, and a host of militaristic interventions were imposed to ‘protect nature’ – often at the expense of human rights. Moreover, little attention was given to broader perspectives of sustainability, and the inter-relatedness of economic development, social needs, and ecological sustainability. Unsurprisingly, environmental concerns were (and to some extent still are) perceived as middle-class, relevant only to those interested in conservation, and antagonistic to social justice and the development needs of the country (Cock and Koch, 1991; McDonald, 2002). Governance on environmental matters mirrored this traditionally narrow focus, and environmental protection in South Africa before 1994 was regulated in an extremely uncoordinated, fragmented, and polarised manner (Glazewski, 2005; Van der Linde, 2006). Almost a hundred laws, for example, dealt with environmental protection before 1990 (Van der Linde, 2006), and in the nature conservation sector alone, no fewer than seventeen government departments had a primary responsibility for the sector, many with divergent and sometimes conflicting laws (President’s Council, 1991; Wynberg, 2002). Civil society organisations that campaign around environmental issues were equally fragmented during this pre-democracy period. Until the mid-1980s, environmental organisations included those typically focused on traditional nature conservation issues, such as species and ecosystem loss (e.g. the then South African Nature Foundation, which is now the World Wide Fund for Nature, and the Wildlife and Environment Society of Southern Africa). Important new alliances, however, emerged during this period, reflecting heightened political consciousness and awareness of the links between environmental protection and social justice. These arose in the context of local democratic struggles and the global turn towards the notion of sustainable development (World Commission on Environment and Development, 1987) and included the emergence of the membership-based NGO Earthlife

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Africa. Earthlife Africa became active in numerous centres and gave birth to a wider structure, the Environmental Justice Networking Forum (EJNF), which, at its height, numbered five hundred participating organisations, including trade union branches. Progressive NGOs like the Group for Environmental Monitoring (Johannesburg), the Environmental Monitoring Group (Cape Town), and groundWork (Pietermaritzburg) drew attention to the need to see the environment as embedded in socio-political struggles (President’s Council, 1991; Cock and Koch, 1991; McDonald, 2002). Environmental rights were seen by this emerging wave of post-apartheid civil society organisations as part of an attempt to secure environmental justice. This concept had emerged from campaigns in the United States against the disproportionate siting of toxic manufacturing and waste-processing plants in or close to residential communities of colour. In South Africa, the notion of environmental justice mimicked the U.S. version but applied it to the question of apartheid social engineering, which located segregated black townships downwind of polluting mines and industries, perpetuated migrant labour, and confined the black majority to rural slums. This created ecological and food production crises and deliberately excluded black people from decision making, educational opportunities, and access to information. This notion of environmental justice thus sought to redress racial imbalances relating to the environment. It was evidenced, for example, by trade unions emerging as powerful allies to prevent mining at St Lucia and to protest toxic waste imports and landfills; communities such as those in the Richtersveld challenging the establishment of protected areas without consultation; and the establishment of progressive NGOs to take up issues of environmental rights and justice (Cock and Koch, 1991). Although some important victories were achieved through these ad hoc efforts, environmental organisations were stymied in their ability to secure justice through the courts. This was largely because of the absence of an articulated legal right, and the locus standi requirement to prove direct personal interest before being given access to the courts (Glazewski, 2005). 2.2. Legislative Mechanisms for Environmental Rights The landscape changed dramatically with the adoption of a new Constitution in 1996, and the inclusion both of an environmental clause in Section 24 of the Bill of Rights and the principle of cooperative governance, requiring cooperation among all three spheres of government and an approach to environmental protection, that strived to be more coordinated and integrated.6 Together this signalled an entirely new modus operandi of governance. 6

See Kidd (2008a) and Feris (2008) for a detailed analysis of environmental rights in the Constitution.

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Section 24 of the Constitution stipulated: Everyone has the right – (a) To an environment that is not harmful to their health or well-being; and (b) To have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that – Prevent pollution and ecological degradation; Promote conservation; and Secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.

A number of other constitutional clauses also had relevance due to the cross-cutting nature of environmental rights and the fact that ecosystems and natural resources play a vital role in providing food, water, and fuel; in regulating disease; in purifying water and air; and in controlling the climate. Socio-economic rights, such as the rights to food, health care, and water (Section 27), were thus inextricably woven together with the realisation of environmental rights. The environmental clause, for example, created a right to an environment not damaging to a person’s health, thus extending the right of access to health-care services as articulated in Section 27. Section 24(b) focused almost entirely on socio-economic rights, imposing a positive duty on the State to secure environmental quality for the benefit of present and future generations (Glazewski, 2005). Because environmental rights cannot be secured in a context within which rights to information, to administrative justice, and to intervene in litigation as part of the public interest are absent, it is pertinent that the Constitution also provided various entitlements and rights of a procedural nature. These included the right of access to information (Section 32), the right to administrative justice (Section 33), and the liberalisation of the locus standi principle (Section 38), thus enabling individuals and environmental groups to bring environmental actions. Most of these substantive and procedural rights were translated into statutes such as the National Environmental Management Act 107 of 1998 (NEMA), which serves as enabling legislation to give effect to the constitutional right to an environmentally sustainable society, as well as sector-specific legislation that can be used to uphold environmental rights. NEMA reflects a bold and progressive approach to environmental governance in South Africa, embracing a set of commonly agreedon sustainable development principles that are legally binding, to be applied by all organs of State to all planning and decision-making processes. These cover a wide range of norms, including sustainable development,7 sustainable resource use,8 the 7

8

NEMA (Section 1) describes sustainable development as “the integration of social, economic and environmental factors into planning, implementation and decision-making so as to ensure that development serves present and future generations”. Defined by Biodiversity Act 10 of 2004 as the use of a biological resource in a way and at a rate that would not lead to its long-term decline; would not disrupt the ecological integrity of the ecosystem in

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preventative principle,9 the precautionary principle,10 the polluter-pays principle,11 and the public trust doctrine.12 The Act was written by means of an extensive multistakeholder participation process. 2.3. A New Era of Environmental Rights The post-apartheid era witnessed a transformation, not only in the new laws and policies that emerged but also in the space created for civil society engagement. Redefinition of ‘environment’ to include both the ‘green’ issues of conservation and the ‘brown’ issues of human settlements and well-being led to a vibrant and inclusive environmental movement in South Africa, represented to a large extent by the EJNF and its member organisations (International Development Research Centre, 1995; McDonald, 2002). This new wave of civil society organisations signified a move away from earlier bodies that had been white dominated and middle class, and it represented a broader public interest in ways that acknowledged links between socio-economic and environmental justice. Through the active intervention of these groups, a highly participatory and inclusive policy process was initiated to formulate new environmental laws and policies. Significantly, civil society engagement in the implementation of environmental laws was codified in institutions such as the National Environmental Advisory Forum (NEAF) and the National Forests Advisory Council.13 However, from 1999, with the end of the Mandela presidency, limits were increasingly placed by the State on the influence of civil society, expressed in the beliefs that the democratically elected State acted on behalf of South African citizens and that ‘government should be left to govern’. Until 1999, the State had enjoyed co-operation from civil society, but as it professionalised with its own cadres (many of whom had been drawn into the bureaucracy from civil society), it no longer appreciated this kind of support. Civil society organisations were marginalised, distanced, or held with suspicion in some cases (e.g. Eastwood and Pschorn-Strauss, 2005). Agendas

9

10

11

12

13

which it occurs; and would ensure its continued use to meet the needs and aspirations of present and future generations of people. Meaning that “negative impacts on the environment and on people’s environmental rights be anticipated and prevented, and where they cannot be altogether prevented, are minimized and remedied” (NEMA Section 2(4)(a)(viii)). Meaning that “a risk adverse and cautious approach is applied, which takes into account the limits of current knowledge about the consequences of decisions and actions” (NEMA, Section 2(4)(a)(vii)). Meaning that “the costs of remedying pollution, environmental degradation, and consequent adverse health effects and of preventing, controlling, or minimizing further pollution, environmental damage, or adverse health effects must be paid for by those responsible for harming the environment” (NEMA Section 2(4)(p)). This stipulates that “the environment is held in public trust for the people, the beneficial use of environmental resources must serve the public interest and the environment must be protected as the people’s common heritage” (NEMA, Section 2(4)(a)(o)). Respectively, Section 3 of NEMA and Section 33 of the National Forest Act 84 of 1998.

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began to diverge as the State became more conservative. A clear example of this was the attitude of the State towards the Treatment Action Campaign, active in trying to support people with HIV/AIDS (Achmat, 2004). At the same time, the nature of environmental organisations in South Africa began to change. The EJNF all but collapsed in 2005 and was replaced by a multiplicity of activisms in various environmental arenas. For example, coalitions formed around specific resources such as water, biodiversity, land, energy, climate, and anti-mining, and other formations, such as the unemployed, shack dwellers, the urban poor, small farmers, and publicinterest lawyers, began raising environmental issues such as water and electricity provision, pollution, and genetic engineering. The environmental ‘movement’ thus became increasingly dispersed, segmented, and compartmentalised. Regressive policy positions by the State spilled over into the environmental arena. For example, despite widespread public participation in the initial development of NEMA, significant amendments were tabled, with little opportunity for public input. A similar pattern prevailed for the development of the Biodiversity Act 10 of 2004, as well as for amendments to the EIA regulations. Civic opportunities for policy influence increasingly closed, and in 2009 the NEAF was dismantled through an amendment to NEMA. In this restricted policy space, other strategies to secure environmental rights became more imperative. Litigation, which had not been possible before promulgation of the Constitution and relevant new environmental laws and administrative proceedings, opened opportunities and started to form part of the artillery used by civil society organisations to defend environmental rights. The two cases described in this chapter both involve a situation in which civil society organisations were forced to take legal recourse. The cases were prominent in the public discourse, involving issues directly or tangentially related to the realisation of environmental rights. A notable feature is that both involved litigation as part of a larger, multi-dimensional political campaign rather than as part of a frontline strategy. These wider political strategies had become necessary as the State became more hostile towards civil society formations, despite the fact that these groups had provided enormous assistance to (and personnel for) decision making during the earlier part of the democratic transition. As the new State became more consolidated and self-reliant, it veered away from prior alliances with civil society. Its agenda became more conservative, and it deviated from its roots in struggles. 3. BIOWATCH, MONSANTO, AND THE STATE: ACCESS TO INFORMATION ABOUT GENETICALLY MODIFIED CROPS

3.1. Introduction and Context One of the organisations born from the environmental policy processes in the mid1990s was Biowatch South Africa.14 A group of concerned activists and researchers, 14

Comprehensive analyses of this cased can be found in Eastwood (2012) and Wynberg and Fig (2013).

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aligned to progressive NGOs, such as the Environmental Monitoring Group, the Group for Environmental Monitoring, the Alternative Information Development Centre, and Earthlife Africa, had started the organisation in 1997 to monitor implementation of the Convention on Biological Diversity in South Africa, and in particular the introduction of GM crops to South Africa. This had stemmed from their involvement at the time in processes to develop new biodiversity laws and policies, and their recognition that the political and social dimensions of biodiversity had been sorely neglected. South Africa’s lax regulatory framework for GM crops, strong commercial seed sector, and active scientific lobby had, without public consent, positioned the country as the biotechnology hub of the African continent. Comprising a handful of volunteers at the time, Biowatch commenced research and advocacy work around these issues, investigating the adequacy of existing legal and permitting frameworks for genetically modified organisms (GMOs) and the potential environmental and social impacts that could arise from the commercialisation of GM crops. The organisation became increasingly alarmed at the permissive approach of the State towards the granting of permits for field trials and commercial releases of GM crops. There were increasing reports about the wide-ranging health impacts of GM crops, such as allergenicity, toxicity, and antibiotic resistance, and in particular the impacts of these crops on small farmers, including increased debt and dependency, contamination of traditional varieties, and threats to seed saving (Biowatch, 2004). Moreover, a number of studies had revealed the environmental impacts of these crops, including a loss of local biodiversity through toxic effects from Bacillus thuringiensis (Bt), engineered into plants as an insecticide; increased pesticide use due to the build-up of insect resistance; contamination of farmers’ varieties or landraces; harm to wildlife and soil organisms; the creation of invasive species; and the development of new or more harmful viruses (e.g. Hails, 2000; Tripp, 2000; Brush, 2001; Dale, Clarke, and Fontes, 2002; Garcia and Altieri, 2005). Biowatch was concerned that these aspects had not been adequately considered in the authorisation process, and thus that environmental rights to a healthy and safe environment were in jeopardy. Biowatch had substantial grounds for these concerns. Genetically modified crops had first become prominent on the South African agricultural landscape in 1992, when the apartheid government approved Monsanto’s field trials for transgenic cotton. At the time, there were no regulatory frameworks in place for these novel crops, which remained untested, and oversight was through a voluntary group of scientists, the South African Genetic Experimentation Committee, which had close ties to industries promoting the development and marketing of GM crops and seeds. These so-called industrial ‘gene giants’, including multi-national companies Aventis, DuPont, Monsanto, and Syngenta, were experiencing rapid growth through trade liberalisation, advances in biotechnology, and the granting of patents on GMOs. Together, just ten companies controlled virtually the entire market for GM seeds. There was immense pressure to commercialise new products and, in particular, to open new markets in Africa given European reservations about the technology

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(Wambugu, 1999; Wynberg, 2003). South Africa, with its relatively sophisticated infrastructure and research capacity, provided an ideal launch pad to do so. A model evolved whereby multi-national gene companies typically financed research and partnered with local research facilities to develop and promote GM crops. This laid a crucial foundation for the rapid adoption of GM crops in South Africa. Faced with a plethora of new policy imperatives, the newly elected government played a largely passive role in determining policy on genetic engineering. More pressing issues dominated the policy arena, providing the space for civil servants and those with vested interests to submit more peripheral laws and policies without following due process. One such law was the Genetically Modified Organisms Act 15 of 1997 (the GMO Act), tabled by the National Department of Agriculture, only after the first commercial planting of a GM crop in South Africa. In contrast to other laws and policies at the time, which adhered to a process of first determining stakeholder opinions, to enable comprehensive research and debate on the matter, and then crafting policy to reflect these priorities, and additionally favouring the precautionary principle, the GMO Act was promulgated without a policy in place and without a comprehensive programme of public participation. Structures set up to implement the GMO Act similarly excluded public-interest groups, but access to the State by major seed companies continued through scientists’ active promotion of genetic modification. Also noteworthy at this time was the establishment of AfricaBio, an organisation set up by the GM industry in 1999 to counteract growing civil society resistance to GM crops and to promote their uptake. Among its initial forty-seven members were some of the major gene giants, such as Monsanto, Pioneer, AgrEvo, and Novartis; research institutions engaged in genetic engineering, such as the Agricultural Research Council, the Council for Scientific and Industrial Research, and several universities; and producer organisations. Its primary objective was “to alleviate the fear and uncertainty surrounding biotechnology and promote its use in South Africa and throughout Africa”.15 Through significant industry funding, AfricaBio aggressively challenged any positions or organisations questioning the technology and, most notably, formed itself into a counter-movement, employing tactics typically utilised by civil society organisations. As an example, by touting itself as a non-profit support group, it joined SANGOCO, the South African NGO coalition. By claiming that it, too, was an NGO, and therefore entitled to a platform, this membership was used at the World Summit on Sustainable Development to intervene and, in some cases, disrupt civil society meetings convened to debate GMOs (AfricaBio, 2002a, 2002b; Freidberg and Horowitz, 2004). In another example at the summit, AfricaBio gathered a contingent of small-farmer spokespeople from South Africa, India, and Brazil to promote the virtues of the technology and, bearing placards, to march “on behalf of excluded NGOs and the interests of small farmers” (AfricaBio, 2002a: 20). 15

Jocelyn Webster, AfricaBio spokesperson, statement at launch of AfricaBio, 1999.

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Almost entirely, and very deliberately, it took on the language and strategies of the anti-GMO movement, although its effectiveness was ambiguous. Throughout the Biowatch court case, AfricaBio issued a series of vitriolic press statements against the organisation, claiming that by providing access to information the “door would be opened” for “thoughtless activists to continue to misinform and mislead the public” by “pok[ing] holes in all assessments and reviews previously conducted by experts in the field” (AfricaBio, 2005: 1). The increased lobbying from seed companies, a flood of permit applications for GM crop plantings, and the need for South Africa to engage in international negotiations for a biosafety protocol under the UN Convention on Biological Diversity, was not without consequence. The stance of government in regulating GM crops soon shifted from one of ‘convenient neglect’ towards one representing all the characteristics of a country strongly promotional of their uptake (e.g. Paarlberg, 2000). This reflected the strongly pro-business stance of the African National Congress (ANC) government, which had come to power not only with immense popular support but also with substantial backing from large capital (Marais, 2011; Sitas, 2011). Although this capital was not necessarily linked to companies promoting GM crops, it indicated government’s accommodating position with regard to business engagement in policy formulation and decision making. By 2000, GM crops covered one hundred thousand hectares of South African land, a 50 per cent increase from the previous year; 175 field trials were under way; and five commercial releases had been approved (Pschorn-Strauss and Wynberg, 2002).16 One of the first problems identified by Biowatch was a lack of transparency about the way in which decisions about GM crops were being made. The public had no access to information about these crops or to the risk assessments that were being used as the basis for approvals. Biowatch had become increasingly concerned that the authorities were permitting GM crops to be grown and sold without properly considering the environmental and socio-economic risks and without imposing appropriate permit conditions. In part this was a result of capacity constraints, but there were also concerns that lobbying from industry-funded AfricaBio and the inclusion of scientists with vested interests on decision-making committees were undermining precautionary approaches to this new technology. In 1999, using its constitutional rights of access to information,17 Biowatch thus began a process of requesting official information from the Department of Agriculture about the planting of GM crops in South Africa, the risk assessments that had been undertaken, and the decision-making process to approve such crops.

16 17

By 2011 this had grown to 2,3 million hectares (James, 2011). Section 32 states: “(1) Everyone has the right of access to – (a) any information held by the State; and (b) any information that is held by another person and is required for the exercise or protection of any rights. (2) National legislation must be enacted to give effect to this right, and may provide for reasonable measures to alleviate the administrative and financial burden on the state.”

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Protests outside Parliament against GMOs, 2004. Courtesy of Oryx Media / Biowatch.

3.2. Securing Access to Information about GM Crops Despite several requests to the Department of Agriculture over a two-year period, Biowatch received inadequate responses and a decision was subsequently taken to take the matter to the High Court. This decision evolved as part of an ongoing and multi-faceted strategy, including (unsuccessful) representations by Biowatch to be included on advisory structures for the GMO Act; ongoing work to raise public awareness and build alliances around the negative health, social, and environmental impacts of GM crops; and workshops with legal experts to debate procedural and substantive problems of the GMO Act. Significantly, this process was also broadened to include a range of civil society networks and the development of a wider public mandate for Biowatch to take the matter to the courts. This was achieved in a variety of ways but primarily by developing an informed and sympathetic climate across a range of constituencies in existing networks and alliances, building a support network and support base for the court case, and generating campaign materials for a range of different audiences to explain the facts and implications of the case. Importantly, a media company was employed, which provided invaluable assistance with the preparation of regular press statements, securing a high media profile for the case, and ensuring that the position of Biowatch and its allies received media prominence. Although Biowatch was not a membership-based organisation, it had been instrumental in setting up the South African Freeze Alliance on Genetic Engineering (SAFeAGE), which represented a wide network of concerned individuals and organisations across South Africa and

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was actively involved in the EJNF. Using these networks, in addition to existing alliances with COSATU (e.g. the Food and Allied Workers’ Union), farmers’ groups (e.g. the Participatory Ecological Land Use Movement, the Organic Agriculture Association of South Africa), faith groups, consumer groups, conservation organisations, and organisations such as the Treatment Action Campaign – faced with similar recalcitrance from government – Biowatch sought to raise awareness about the difficulties it faced in obtaining access to information, to argue for upholding the constitutional right to information, and to secure support in the event of having to litigate. Biowatch also drew on its global connections to NGOs across the developing and industrialised world that had a similar focus on food sovereignty, GMOs, farmers’ rights, and biodiversity, often framing these issues around rights to food and to food sovereignty. These international connections were invaluable in ensuring that the case received a high international profile and support. Also significant were the strengthened relationships formed between Biowatch and the parliamentary Portfolio Committee on Environment, stemming from the involvement of a number of concerned parliamentarians in the GMO debate. Combined, these alliances proved invaluable both during the court case and in the later unfolding of the Constitutional Court battle. As the lack of cooperation from the Department of Agriculture became clear, Biowatch sought legal advice about how to proceed, initially from the Legal Resources Centre (LRC) and a Cape-based advocate. Although Biowatch had no funds earmarked for litigation, it had supportive donors, and a private legal firm agreed to work for a reduced fee and was appointed to take up the matter with the Department of Agriculture.18 In February 2001, a final letter of demand was sent to the representative of the Department of Agriculture, the registrar of genetic resources, requesting access to eleven categories of information, including the location of field trials and commercial crops, risk assessments, and information about approved licenses. The schedule specifically identified certain records and categories of information to which access was sought but, significantly, also included general catch-all requests, because Biowatch did not know exactly which records the authorities held. It was anticipated that the registrar would respond by indicating the records he held and which parts of those were considered confidential so that the parties could seek to reach agreement on precisely which information Biowatch was entitled to see. In fact, the registrar merely indicated that he would take legal advice on the requests and then did not respond further. This seeming lack of precision about the information sought formed the basis for the later costs order against Biowatch. The timing of the information requests was crucial. The Promotion of Access to Information Act 2 of 2000 (PAIA) had been enacted in February 2000, before the requests being made. However, most of PAIA’s provisions commenced in March 2001, after the requests had been made. The initial requests for information thus 18

Following the High Court judgment and a depletion of Biowatch’s funds for litigation, the LRC agreed to take on the case because of its wider implications for public-interest litigation. The LRC had donor support for litigation and contracted advocates on a contingency basis.

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fell within the ambit of the Constitution. This was in part strategic. Because PAIA introduces a variety of grounds to refuse access, the Biowatch team considered it advantageous to lodge detailed requests for information when reliance could be placed on the wide access to information provision contained in Section 32(1)(a) of the Constitution. The legal basis for the request was thus framed in terms of the Constitution. The case was heard in May 2004.19 At the same time, a series of protests to demand access to GMO information were organised by allied organisations in Pretoria, outside the High Court, and in Cape Town, outside Parliament. Although the legal action was aimed at the State, the multi-national agricultural biotechnology company Monsanto and several other seed companies joined the State against Biowatch to protect information they considered confidential. The inclusion of Monsanto was especially noteworthy, causing alarm throughout civil society. The US$10 billion company, is the leading producer of GM seed and is infamous for its aggressive litigation, political lobbying, and bullying tactics. Formerly a chemical company, its main products included DDT and Agent Orange, a toxic defoliant used in the Vietnam War. Much of Monsanto’s seed products are genetically modified to make them resistant to Monsanto-produced herbicide, and it pursued a string of lawsuits against many farmers in North America for saving seed containing these patented genes. It was now actively seeking permits for the field trials and commercial release of GM crops in South Africa. In the (then) Pretoria High Court, now the North Gauteng High Court, Biowatch, joined by the Open Democracy Advice Centre as amicus curiae, won the right to eight out of eleven categories of requested information. The acting judge, however, felt that Monsanto had been forced to join the case to prevent Biowatch from having access to confidential information supplied to the State. Despite the fact that Biowatch had achieved considerable success, the NGO was, surprisingly, ordered to pay Monsanto’s legal costs based on the breadth of information requested, which Monsanto had remarked amounted to a “fishing expedition” (Snyckers, 2007). As Justice Sachs subsequently remarked,20 the High Court judgment sent a “shock wave” through the public-interest law community. At the organisational level, Biowatch would have faced almost certain closure were the costs order to be exercised, and a tainted public image for (inconceivably) paying the costs of a company notorious for its environmental abuses. The wider implications for publicinterest NGOs were considerable, suggesting that public-interest litigation could be jeopardised by the severe financial penalty that negative costs orders would impose on organisations. The anomalous costs order seemed to fly in the face of justice, but even so, Biowatch lost its appeal to set aside this costs order. Biowatch, with support from the 19 20

Trustees, Biowatch Trust v Registrar: Genetic Resources and Others 2005 (4) SA 111 (T). Biowatch Trust v Registrar Genetic Resources and Others (CCT 80/08) [2009] ZACC 14; 2009 (6) SA 232 (CC); 2009 (10) BCLR 1014 (CC) (3 June 2009).

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LRC, applied to the Constitutional Court for leave to appeal. Three public-interest organisations joined Biowatch’s application for leave to appeal in the Constitutional Court: the Centre for Child Law, Lawyers for Human Rights, and the Centre for Applied Legal Studies. In a unanimous judgment, Constitutional Court Justice Albie Sachs set aside the costs order awarded against Biowatch in favour of Monsanto and further awarded legal costs in the High Court hearings in favour of Biowatch and against the State. 21 Calling the case “a matter of great interest to the legal profession, the general public, and bodies concerned with public interest litigation”, Justice Sachs stated that the High Court had “misdirected itself in the whole matter of costs” through failing to consider the constitutional implications. 3.3. Key Impacts and Outcomes The Biowatch case had manifold impacts, both direct and indirect, summarised in Table 11.2. The primary intent of the case, however, was to use information as a ‘leverage right’ to secure information about GM crops, to enable Biowatch to act towards securing rights to an environment not harmful to health and well-being. Two aspects are relevant here: first, the significance of the information received and whether this materially affected Biowatch’s ability to ensure environmental protection, and second, whether Biowatch’s actions changed the behaviour of the Department of Agriculture in releasing information about GM crops. It is debatable as to whether the information that was obtained facilitated environmental protection. Despite Biowatch obtaining access to a substantial amount of information, the practical use and relevance of this information was limited. Most notably, by the time information was received by Biowatch, it was six years after the initial request. During this period more than 130 permits had been approved, a further 108 applications received, and more than 1 million hectares planted with GM crops in South Africa. At the same time, all records relating to GM crops between 1991 and 1999 had been disposed of, precluding any access at all to this information. Justice delayed in this case was thus justice denied (see also Roberts, 2000). Examination of the information that was received by Biowatch revealed serious contraventions of public administration policy. These included a failure by the decision maker to reveal reasons for the granting of permits or to communicate these decisions to interested parties, despite objections by these parties to applications, and a lack of procedural fairness and effective public participation in the process. The permits themselves were extremely permissive and vague, imposing standard conditions regardless of the GMO in question or the specific environmental or social context. Although risk assessments were conducted as a pre-condition for the permit, they were without exception prepared by the applicants themselves, 21

Ibid.

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Rachel Wynberg and David Fig table 11.2. Impacts of the Biowatch case

Material

Symbolic and/ or political

Direct impacts

Indirect impacts

Access to information about GM crops (but with limited relevance and, in some cases no access at all because of disposal of records) Improved understanding about the flaws in decision making about GM crops Public-interest organisations can litigate without expecting the ‘chilling effect’ of costs Guidance on when costs can be applied Negative organisational impacts because of demands on time, resources, and energy Victory against Monsanto and thus implicitly against the onslaught of GM crops Significant public profile and media attention for Biowatch and its issues Renewed vigour following the victory and a determination to overcome adverse impacts

Facilitated access to information for other organisations Greater responsiveness from government Legal reform: requirement for EIA for GMOs in Biodiversity Act, GMO Act amendment Possible increase in public-interest environmental litigation

David and Goliath symbolism is inspirational for many

raising questions of objectivity, independence, and bias. Further scrutiny of the risk assessments revealed a lack of scientific rigour, typically resembling ‘cut-and-paste’ versions from applications made elsewhere in the world, citing species that did not even occur in South Africa. They were also primarily desk based, drawing from existing literature rather than empirical work. There was no evidence of any EIA or socio-economic assessment having been done. These findings affirmed Biowatch’s premise that the proliferation of GM crops in South Africa had been based on weak decision making, which had used flawed information and had flouted public administration principles. It soon became apparent that many of these questions required legal follow-up, yet Biowatch already had its hands tied in challenging the negative costs order. A concern of becoming embroiled in endless (unfunded) legal interventions thus acted against comprehensive follow-up. Nonetheless, largely as a result of the judgment, successful lobbying spearheaded by Biowatch led to amendments of the GMO Act and the inclusion of a requirement for EIAs in the National Environmental Management: Biodiversity Act 10 of 2004. The impacts of the Biowatch case on information flow and government responsiveness are difficult to ascertain. Some NGOs report that information about GM

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crops was easier to obtain during and after the High Court action, largely because of greater awareness amongst civil servants of their responsibilities under the Constitution and PAIA.22 For the first time, information about GM crop permits was included on the Department of Agriculture website, and officials were very quick to respond to information requests. But at the same time, PAIA brought with it a new set of restrictions and bureaucratic obstacles, and this may well have clouded any victories achieved by Biowatch in the window that was used to assert rights to information under the Constitution. For example, although information flow has undoubtedly improved, much is classified and, arguably, hidden as ‘confidential business information’ to prevent disclosure under PAIA. From a government perspective, the Biowatch case helped to ‘streamline’ the administrative process for GM crop authorisations, and to enhance the capacity of the government to manage risk assessments and permit applications. The National Department of Agriculture has “definitely become more attuned and there has definitely been increased scrutiny over the years,”23 remarked Dr Julian Jaftha, Director of Genetic Resources in the National Department of Agriculture. There has also been a substantial increase in applications for access to information, although it is difficult to attribute this directly to the Biowatch case. “We haven’t changed because someone is watching us”, commented Jaftha, “It is no longer just your Biowatch’s that want access but also research institutions. Interest groups have evolved over the years. There are more substantive inputs now. NGOs are not just crying wolf and being anti-genetic engineering”. Ironically, the greatest impact arose not from the leverage rights gained by access to information but from the clarity provided for public-interest litigation by the ruling on costs.24 Civil society organisations, both in South Africa and elsewhere, rallied against what was perceived a travesty of justice, with more than two hundred organisations and individuals from twenty-six countries sending messages of support before the case was heard.25 The costs order in favour of Monsanto was interpreted by some as tantamount to a strategic litigation against public participation (SLAPP) suit designed to silence critical voices.26 The Constitutional Court victory has meant that organisations acting in the public interest will be able to litigate to gain their rights without necessarily expecting the ‘chilling effect’ of 22 23 24

25

26

Elfrieda Pschorn-Strauss, personal communication, 5 November 2010. Julian Japhta, Director of Genetic Resources, NDA, Interview, May 2011. Specifically, whether costs awards in constitutional litigation should be determined by the status of the parties or by the issue; what the general approach should be in relation to suits between private parties and the State; what the general approach should be in constitutional litigation where the State is sued for a failure to fulfil its constitutional and statutory responsibilities for regulating competing claims between private parties; and the role of appellate courts in appeals against costs awards. See Kotz´e and Feris (2009); Humby (2010); and the case judgment. See Biowatch.org.za, Messages of support – full list of organisations and individuals http://www. biowatch.org.za/main.asp?include=docs/pr/2007/pr0420list.html. See, for example, the recent (unsuccessful) defamation suit brought by the developers of a luxury golf estate, Wraypex, against four environmental activists representing the Rhenosterspruit Conservancy.

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costs orders against them. Noted one of the advocates for the amici: “Biowatch has revolutionised the law of costs – not so much in terms of the core principles but in terms of when that core principle is to be applied. It has opened up a whole area of litigation without fear of costs” (Budlender, 2009). In a wider context it has been regarded as an important victory against the tyranny of companies such as Monsanto, widely regarded as having little regard for the rights of consumers and farmers. The case had less positive impacts on the organisation itself. The nine-year experience was a gruelling one. Although staff and trustees were initially upbeat about winning access to information and fighting the negative costs order, the failure of the appeal, and subsequent rejection in the Supreme Court, began to take its toll. In 2007, the Biowatch Association was formed as a separate legal entity from which Biowatch could operate. This move was made to protect donor funding in the event of the appeals being unsuccessful and the Biowatch Trust having to pay the considerable (and crippling) legal costs of Monsanto. New donor funding went into this entity, and from 2008 most of the organisation’s work was undertaken through the Biowatch Association. Staff contracts were moved to the new entity and were shortened because of the insecurity of the pending case. Staff unease increased, reflected in the resignation of the director, office manager, and media officer just before the Constitutional Court hearing in 2009. There were also disagreements within the organisation about the vigour with which the case should be pursued. Some of the staff, mindful of their jobs and security, opted for a softer approach, such as approaching Monsanto to drop the costs order and paying Monsanto if this was not forthcoming. Monsanto, however, continued to insist on the “healing balm of costs”, and remarked that the money received from Biowatch would be donated “to an appropriate charity promoting sustainable agriculture” (Biowatch, 2008, p. 5). The Biowatch board of trustees, in contrast, felt that it was important to exhaust all legal remedies and that paying Monsanto’s costs not only was unjust in legal and moral terms but also would in practice have put an end to Biowatch’s activities. The emotional energy consumed in these processes, along with the diversion of time and resources and disjuncture between board and staff, had a significant negative impact on the organisation. The complexity of running two legal entities added to these pressures and still today has not fully been unravelled. One of the most interesting findings is that the groundbreaking legal precedents that were set with respect to the proper judicial approach to determining costs awards in constitutional litigation were not only entirely unforeseen but also far removed from the initial (and successful) intent to secure access to information to uphold environmental and other rights. This points to the difficulties of developing and planning legal strategies. It also yields important lessons about the need for multifaceted strategies to secure environmental rights, including strategic alliances, an astute media campaign, organisational resilience, and the importance of emergency financial reserves.

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The importance of such strategies is also revealed in the next case, which describes the challenges and flaws of using the EIA process to secure rights to a safe and healthy environment. 4. PEBBLE BED MODULAR REACTOR EIA CASE

4.1. Introduction and Context South Africa has been integrated into the world nuclear industry since the late 1940s and remains both a key supplier of uranium and a customer for the industry. As a uranium producer, it provided material for the American and British bomb programmes until the mid-1960s. From 1965 it operated a research reactor at Pelindaba, outside Pretoria, and from 1983 it managed two pressurised water reactors for energy production at Koeberg, outside Cape Town (generating 5 per cent of the country’s electricity). It maintained limited research and commercial activities at Pelindaba, a series of research laboratories linked to universities, and a facility for low-level and intermediate radioactive waste at Vaalputs in the Northern Cape. It also built conversion and enrichment facilities at Valindaba, adjacent to Pelindaba, and used the enriched uranium to build seven gun-type nuclear weapons (Fig, 2005). When the ANC took power in South Africa in 1994, it was initially unclear whether the nuclear programme and policy of the apartheid government would be continued. The new government was clearly committed to a policy of nuclear nonproliferation, developed during years of exile. In this matter it had been pre-empted by the apartheid regime’s outgoing president, F. W. de Klerk, who had cancelled the bomb programme in 1989 and 1990. Soon thereafter, the parastatal Atomic Energy Corporation embarked on the dismantling of South Africa’s uranium enrichment programme, closed down its conversion plant, and sold its reactor fuel fabrication plant to China. Uranium mining, once prosperous, was no longer economically viable as prices floored and production costs escalated. South Africa’s nuclear establishment was reduced significantly, yet it desperately needed to make the case to the ANC for its continued survival. The question was whether the new democratic regime would continue to subsidise its activities. A few months before the ANC took office, Trevor Manuel, head of the ANC economics desk, addressed a conference on the future of the nuclear industry. Although no pronouncement was made about the industry’s future, Manuel made clear assurances about nuclear governance: “We shall not tolerate circumstances in which policy on issues as critical as a nuclear programme be confined to experts in dark, smoke-filled rooms. The debate must be public and the actions transparent” (Environmental Monitoring Group and African National Congress Western Cape Science and Technology Desk, 1994: 5). Given the new State’s unambiguous commitment to non-proliferation, the real test of nuclear policy was the extent to which nuclear would be a component of the

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country’s future energy mix. This was a topic for debate at the 1995 national Energy Summit, which welcomed wide public participation. The resulting White Paper on Energy, published in July 1998, made expansion of the nuclear energy industry contingent on an integrated energy policy planning process, which would be subject to structured participation and consultation with all stakeholders. Furthermore, Koeberg Nuclear Power Station would be subjected to a full-scale investigation into its financial and technical performance, which would be made available for public scrutiny and comment (Department of Minerals and Energy, 1998).27 Anti-nuclear organisations have existed in South Africa since before the establishment of Koeberg, and they were dominated by the Cape Town based Koeberg Alert until the late 1980s. Activities were severely restricted under apartheid, with the National Key Points Act 102 of 1980 (still in place) preventing any demonstrations near nuclear facilities. By the early 1990s, the environmental justice movement had made advances and also took up an anti-nuclear stance. The key organisation was membership-based Earthlife Africa, which established Nuclear Energy Costs the Earth Campaigns in major cities. This was also echoed in anti-nuclear resolutions passed by the Congress of South African Trade Unions and the National Union of Mineworkers, which organised workers at all power stations. Community-based groups in Namaqualand, where nuclear waste is disposed, and near the sites earmarked for building new reactors have, more recently, coalesced into an organisation called the Coalition against Nuclear Energy. 4.2. Politics of the Pebble Bed In 1998, a number of South Africa’s nuclear engineers came together to pursue the idea of manufacturing a small nuclear reactor based on German technology, which it called the Pebble Bed Modular Reactor (PBMR). By the following year, they had formed a company, PBMR (Pty) Ltd, under the aegis of South Africa’s electricity utility, Eskom. The company aimed in the first instance at developing a demonstration model of the PBMR and a facility to produce the pebbles, which formed the fuel of the reactor. Following this, the company foresaw selling multiple units to Eskom and for export (PBMR (Pty) Ltd, 2006). The subsequent development of the PBMR seemed to fly in the face of prior national energy policy commitments. The reactor was being developed without any policy guidelines or popular consultation. No integrated energy planning had been undertaken as promised. The review of the existing nuclear power sector had not materialised. It seemed that the PBMR was being privileged instead of adopting more rational approaches to meeting South Africa’s electricity needs, for example, by devoting resources to developing more sustainable and less harmful forms of energy. Aside from numerous design changes, costs of the PBMR project accelerated rapidly. Design modifications were common, and the time frame in which the 27

Department of Minerals and Energy, 1998, White Paper on Energy, Sections 7.2 (iv) and (v).

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table 11.3. Pebble Bed demonstration plant and fuel fabrication plant: Design changes, time and cost overruns, 1998–2009

Year

Size (MWe)

Commencement of commercialisation

1998 1999 2001 2002 2003 2005 2006 2009

110a

2003

130 137 165a

2009

80

2013 2014 2025

Estimated cost R847 million R2 billion R4 billion R11,5 billion R14,9 billion R16 billion R31 billion R8,67 billion was spent by March 2010

a EIAs. Source: Fig, 2010: appendix 1, p. 32.

project was supposed to deliver kept being extended indefinitely into the future (see Table 11.3). The PBMR company had absorbed a number of engineers from South Africa’s former bomb programme, keeping them busy with a project inside the country. The company’s special pleading appealed to the new State by offering it a seat at the global table of vendors of nuclear technology, alongside France, the United States, Japan, China and Russia. The company also appealed to key figures on the Eskom board who, despite conflicts of interest, stood to gain from being shareholders in companies that would receive tenders from PBMR (Pty) Ltd (Fig, 2010). A crucial champion came in the form of Alec Erwin, appointed in 2004 as Minister of public enterprises, whose portfolio included oversight of Eskom and PBMR (Fig, 2010). Thus, the project went ahead independently of feedback from the public and with strong official support. At no stage did the State make it possible for the development of the technology to be questioned or challenged by ordinary citizens, parliamentarians, or those who had participated in good faith in the energy summit. On 26 June 2000, Eskom applied to the Director-General of the Department of Environmental Affairs and Tourism (DEAT) for an authorisation of the construction of a demonstration model of the PBMR at the site of the Koeberg nuclear power station. 4.3. The Flawed Environmental Impact Assessment (EIA) Process Under South African law, it had become compulsory to conduct an EIA for “nuclear reactors, and installations for the production, enrichment, reprocessing and disposal of nuclear fuels and wastes”.28 The EIA was obliged to include screening 28

Regulation 1182, Government Gazette, 18261, 5 September 1997.

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and scoping, and to assess the biophysical and social impacts of the development. Consideration of alternatives, including a no-go option, was mandatory. The EIA process had, under law, to take into account the views of all interested and affected parties. It was therefore the EIA process that provided critics of the PBMR with a legally sanctioned opportunity to comment on the project for the first time. The EIA regulations set out an administrative procedure that allowed for public expression on the merits of the project. It also allowed the public to comment on how the project’s existence deviated from earlier national policy on nuclear energy. The EIA process was launched at a time when the PBMR was based on a design providing an output of 110 megawatts of electricity per unit. However, many aspects of the design continued to be shrouded in secrecy, ostensibly to protect intellectual property, and the PBMR company seemed unable to present its current design for assessment. Normally, for an EIA, the blueprints of the development would already be known in order for its impacts to be evaluated during the process. Earthlife Africa engaged the LRC to act on its behalf. The LRC put forward a case against the conduct and content of the pebble bed EIA. This included the following objections: r A failure to establish the need for a demonstration model of the PBMR on which considerable public funds would be spent r A failure to assess any alternatives or the no-go option r Concern about grossly underestimated safety concerns, particularly because the design made no provision for containment of any radioactive emissions r The fact that it had not fully taken into account full costing of the project, ignoring the considerable costs needed for future decommissioning r The fact that it had made unjustifiable assumptions about demand for the reactor, including overly optimistic estimations of export potential r A failure to consider that the reactors would generate further amounts of highlevel nuclear waste in a situation in which the State had no clear policy on the management of such waste r The fact that it pre-empted the need for a national integrated energy plan r The fact that the EIA process had violated a number of laws and was administratively unfair in not allowing sufficient time for public comment (a key problem was the failure to release documents such as the Detailed Feasibility Report (DFR) until one week before comments were due; other documents such as the International Panel of Experts Review of the DFR, the Safety Analysis Report, and the Probabilistic Risk Assessment remained unreleased to the public) (Andrews and Pole, 2002) Earthlife Africa asked that, under these circumstances, the EIA be set aside and that the DEAT refuse the application for the development.

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However, the Earthlife submission was followed within a month by the EIA consultants’ issuing of the final EIA report. The final report differed substantially from the draft report. Earthlife requested a hearing with the Director-General to explain the serious nature of its objections. The department regarded public consultation at an end with the submission of the final report. Earthlife was also, in May 2003, refused an urgent application in the High Court for the decision to be set aside. Earthlife’s requests remained ignored, and the Director-General issued a Record of Decision in June 2003 giving authorisation to the development. 4.4. Legal Challenge and Outcome Arguing that the failure of the Director-General to consider Earthlife’s objections seriously was a breach of administrative justice, Earthlife lodged an appeal within the allotted thirty days, which remains unheard. However, it also successfully requested a judicial review, under the provisions of the relevant legislation in September 2003,29 with the Director-General of DEAT and Eskom as the two respondents. Judgment was delivered in January 2005 in the Cape High Court. Justice Dennis Davis acknowledged that “the present application concerns the very sensitive and controversial issue of nuclear power, which potentially affects the safety and environmental rights of vast numbers of people”.30 The Record of Decision authorising the pebble-bed demonstration reactor and the fuel plant was set aside. It was regarded as a matter of administrative justice that Earthlife deserved a thorough hearing from the Director-General as decision maker, before the resumption of a fairer EIA process. Matters of substance in relation to nuclear energy were not pronounced on. “It is an essential requirement,” declared Justice Davis, “that, before making his or her decision, the decision-maker should be fully informed of the submissions made on behalf of interested parties and he or she should properly consider them”.31 Before Eskom could go back to the drawing board with respect to the EIA, it announced that the EIA would fall away, and a new one would be initiated, arguing that the design of the reactor had changed substantially. The new EIA was commissioned in 2005, and only in 2009 were final submissions from interested and affected parties called for. In the interim, the new design allowed for a containment vessel to be placed over the reactor, and the Department of Energy saw to it that a draft policy on nuclear 29

30

31

Section 36 of the Environmental Conservation Act 73 of 1989, read with Section 6 of the Promotion of Administrative Justice Act 3 of 2000. Earthlife Africa (Cape Town) v Director-General of Environmental Affairs & Tourism and Eskom Holdings Limited, Case No. 7653/2003, High Court of South Africa, Cape Town 26 January 2005, para. 33. Ibid., para. 76.

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waste management was finalised. Although these safety and waste considerations were outside the ambit of Justice Davis’s judgment (he pronounced only on the administrative questions), it was clear that the concerns expressed by Earthlife Africa in documentation before the court (Andrews and Pole, 2002) had pointed out the safety inadequacies (in the PBMR’s initial design the reactor was not provided with a containment vessel) and the absence of a national policy on nuclear waste. The plugging of these gaps by the PBMR company and the Department of Minerals and Energy, respectively, could be argued to have resulted from Earthlife’s objections. They were undertaken as pre-emptive measures to stem material objections from being raised in the second EIA. In fact, the nuclear waste policy was to prove very agnostic on the question of the final disposal of high-level radioactive waste (Department of Minerals and Energy, 2005). 4.5. Follow-up – Repeat Problem During the course of the final stages of the second EIA, the PBMR company announced that the design had again changed dramatically. The project had attracted neither outside new foreign investment (in fact the US company Exelon had disinvested in 2002) nor any potential customers, with Eskom increasingly distancing itself from the project and becoming a reluctant client. The PBMR was consuming substantial sums of public money (see Table 11.3; Thomas, 2004), and the government, facing a deep recession, no longer wished to continue financing the project. A key champion, former Minister Alec Erwin, had left the political stage after the 2009 elections. In the March 2010 budget, the government announced that it would no longer support the project, and 75 per cent of the one thousand staff members were retrenched. By August 2010, no new investment had been attracted, and after many warnings to PBMR to secure investors and clients or face government withdrawal of finance, a final decision was made to close the PBMR project. It would have been interesting had the renamed Department of Water and Environmental Affairs authorised the second EIA, also based on an obsolete design of the PBMR. Like its predecessor, the EIA had ignored the safety issues relating to the reactor, assigning responsibility for this to the licensing process of the National Nuclear Regulator. This sleight of hand had been crafted in an earlier agreement between the DEAT and the National Nuclear Regulator during the first EIA. In the interim, EIA procedures had been ‘streamlined’ by the department, to be less of a burden on the developer. In reality, the integrity of the process had been somewhat compromised and diluted. Although the LRC had assisted Earthlife to challenge some of the procedures and content of the second EIA, as well as new and problematic EIAs on future large-scale nuclear reactors, it is not clear that the LRC will prioritise this matter in future. This may seriously jeopardise the legal battle to secure the public’s environmental rights in the face of further expansion of the nuclear energy industry. Meanwhile, unless there is a strong improvement in the conduct of EIA

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table 11.4. Impacts of the PBMR case Direct impacts

Indirect impacts

Material

Nuclear-waste policy designed Strengthening of the procedural rights of stakeholders in EIA process

Symbolic/ Political

Use of EIA as a political space in absence of other policy arenas

Wider awareness about the problems associated with the PBMR and greater questioning about nuclear energy Review of environmental assessment procedures Transforming public opinion about nuclear energy

processes by developers and their consultants, public trust in the integrity of the EIA as a fair and just decision-making tool may be fatally undermined. 4.6. Impacts and Outcomes We can surmise that, had it not been for the pressure from the participatory EIA process, the government would have felt no obligation to put a nuclear-waste management policy in place (Table 11.4). The case also demonstrates the responsiveness of the courts to procedural justice issues. The court acknowledged the need for fair administrative procedures and the rights of stakeholders to have their views taken into account by the State. The case drew public attention to the need for vigilance over the implementation of EIA procedures and further raised public awareness of the controversial nature of the PBMR project, not least because of the immense public subsidies accorded to it. To some extent, the EIA process also provided space for playing out policy debates, in the absence of broader opportunities to do so. Whilst the legal case hinged around questions of administrative justice, this came in a context in which civil society interested and affected parties were acting in the public interest to question the merits of the development. They were able to use their technical submissions to the EIA to raise problems of safety, inadequate costing, disclosure of information to the public, and ultimately the inability of the project to meet South Africa’s severe energy deficit. There had been no other statutory or public arena for such deliberations, and even Parliament took little interest in such a debate in a climate in which it continually deferred to the executive. The cancellation of the entire project in 2010 was a vindication to its objectors. It also signalled that the State was prepared to distance itself from protecting a small group of special pleaders in the industry. The project’s utility was under question, as its design had never reached finality and the project had not attracted additional investors or customers – even Eskom had become lukewarm about ordering it. Ultimately, its failure to restrain its expenditure in a period of increased recession (it had consumed more than R8 billion of public resources, and required another R24

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billion to realise a demonstration model) led to its demise (Fig, 2010). Although the project’s ultimate cancellation was due to costs, the success of the strategy hinged on the application of administrative justice in the case of the EIA. This project has been terminated, but that does not indicate that the government opposes other nuclear developments. In fact, the Minister of Energy, Dipuo Peters, signed off on a document that will allow for the ordering of 9 600 megawatts of nuclear power, amounting to six new pressurised water reactors (Energy Business Review, 2011). Many of the same issues raised in the first EIA will apply in the near future to the government’s intention to build a series of conventional reactors. There has similarly been little opportunity for public debate, and even an attempt to design an integrated resources plan has been marked by little public consultation, with an inadequate EIA process for the next reactor being pushed through. It remains to be seen whether the public will be able to make use of administrative processes such as the EIA to secure its environmental rights in the future. 5. DISCUSSION AND CONCLUSION

The complexity of environmental rights is demonstrated vividly by these wide-ranging case studies. They show that by their very nature, environmental rights spread tentacles into a multiplicity of sectors and need to be considered as ‘bundles’ of rights that are integral to the attainment of broader socio-economic rights, such as adequate health care and an environment that is not detrimental to health and well-being; livelihoods that generate sustainable jobs and incomes; clean water, safe food, and unpolluted air; and a climate future that is based on renewable resources and does not bring with it devastating change. The extent to which our legal system presently enables this integrative approach is debatable. Given the considerable linkages between environmental and other second- and third-generation rights, it could be argued that environmental rights create a somewhat artificial set of rights, especially in a developing-country context. In some Latin American countries, for example, cultural, social, economic, and environmental rights are often woven together rather than considered separate sets of rights. In particular, the human rights and environmental advocacy agendas are often not defined as environmental rights. Instead, legal practitioners often find it easier to address environmental matters by invoking more traditionally accepted human rights affected by environmental quality, such as the rights to life, property, or health (Taillant, 2004). Such an approach may help to reduce the chasm among so-called brown (i.e. human well-being), green (i.e. conservation and the natural environment) and red (i.e. labour and social justice) rights and lead to the emergence of a greater understanding about ways in which environmental resources underpin human well-being and economic development. Interlinkages between procedural rights and substantive rights are well demonstrated in the case studies presented in this chapter, which indicate that procedural

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issues often form a blockage towards the more effective realisation of environmental rights. In the Biowatch case this revolved around acquiring access to information about GMOs and their environmental impacts as a leverage right to secure environmental rights to a clean and healthy environment. The surprise judgment on costs, though not linked to substantive questions about the environmental risks of GMOs, led to a series of struggles to avoid the organisation having to close down and to prevent the chilling effect this may have had on other organisations wishing to litigate in the public interest. Almost the entire PBMR case revolved around the assertion of rights to fair and open environmental assessment procedures, as well as the question of asserting the right to a clean and healthy environment free of the dangers of nuclear waste and radioactivity. Both cases had significant implications for public-interest environmental litigation but were not necessarily framed around overly literal versions of the constitutional right. A clear finding to emerge from all two case studies is the critical role played by rights-based support organisations, typically represented by advocacy organisations working alongside or in combination with supportive legal firms or NGOs. This finding reinforces those of other studies conducted in South Africa (Marcus and Budlender, 2008) and elsewhere in the world (Epp, 1998, cited in Marcus and Budlender, 2008). Describing the growth of civil rights in the United States, Britain, India, and Canada, Epp (1998, in Marcus and Budlender, 2008: 205) remarks, “Without a support structure, even the clearest constitutional rights guarantees are likely to become meaningless in the courts: but a vibrant support structure can extend and expand the feeblest of rights.” The adequate resourcing of such organisations thus becomes critical, and trends towards dwindling support ever more alarming for the realisation of environmental and socio-economic rights. The case studies have revealed that environmental rights, though promulgated, are yet to become embedded within the South African national consciousness and, in particular, the legal culture. At times the judiciary – especially the High Court – has allowed commercial interests to trump the public interest relating to the environment: in the Biowatch case, this was especially evident in the High Court’s sympathy for Monsanto’s commercial interests as opposed to upholding the rights of the public to information affecting its environmental rights. The new wave of environmental and other rights has not been well integrated into recent jurisprudence. For example, it was clear that in the Biowatch case, judges in the lower courts had not fully understood the intentions of NEMA with respect to allowing for whistle blowing in the public interest. Transformations are required within the judiciary itself (Kidd, 2008b). More training of judges needs to occur in relation to realising environmental and related socio-economic rights enshrined in the Constitution and the law. In Mozambique, for example, there is an explicit and concerted effort, supported by the UN Food and Agriculture Organisation, to train the judiciary in areas of new land, land use, and environmental law.

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Equally important is the need to raise the awareness of citizens about the spate of environmental rights that have accrued to them. An aware citizenry can become the most ardent upholder of these rights. Public-interest law firms (and the pro bono sections of commercial firms), along with other concerned NGOs, need to assist citizens and communities to realise their rights. For it is only when all South Africans are empowered to defend their rights that there will be a sea change in the quality of justice received, as well as enhanced protection of our increasingly jeopardised environment.

references Achmat, Zackie (2004), ‘The Treatment Action Campaign, HIV/AIDS and the government’, Transformation: Critical Perspectives on Southern Africa, Vol. 54, pp. 76–84. AfricaBio (2002a), ‘Biotechnology as the basis for sustainable development in South Africa: Summary for the multi-stakeholder dialogue segment of the WSSD PrepComIV meeting’, http://www.africabio.addr.com/oldsite/wssd/prep4.htm. (2002b), ‘Update on week 1 of the WSSD’, AfricaBio Newsletter, No. 6, http://www. africabio.addr.com/oldsite/wssd/6.htm. (2005), ‘Thoughtless activists continue to misinform and mislead the public’, http:// www.africabio.addr.com/oldsite/press/Biowatch.pdf. Andrews, Angela, and Adrian Pole (2002), Submissions on the Pebble Bed Modular Reactor and associated fuel manufacture draft environmental impact reports: Analysis of legal compliance (Cape Town: Legal Resources Centre). Biowatch (2004), ‘Briefing 6: Six reasons why Africa is concerned about genetically engineered crops’, http://www.biowatch.org.za/pubs/briefings/2004/briefing06.pdf. (2008), ‘Annual report: January–December’, http://www.biowatch.org.za/docs/ reports/2008/report.pdf. Brush, Stephen (2001), ‘Genetically modified organisms in peasant farming: Social impact and equity’, Indiana Journal of Global Legal Studies, Vol. 9, No. 1, pp. 135–62. Budlender, Stephen (2009), ‘Victory at the Constitutional Court and the implications of the case for SA jurisprudence and public interest litigation’, paper presented at Biowatch Legal Workshop, Johannesburg, 25 November. Cock, Jacklyn, and Eddie Koch (eds.) (1991), Going green: People, politics and the environment in South Africa (Cape Town: Oxford University Press). Curtis, Mark (2008), Precious metal – The impact of Anglo Platinum on poor communities in Limpopo, South Africa (Johannesburg: Action Aid). Dale, Philip, Belinda Clarke, and Eliana Fontes (2002), ‘Potential for the environmental impact of transgenic crops’, Nature Biotechnology, Vol. 20, pp. 567–74. Davenport, Jade (2010), ‘Saldanha bulk iron-ore terminal expansion to be completed in June 2011’, Mining Weekly, 16 April, http://www.miningweekly.com. Department of Environmental Affairs and Tourism (2006), South Africa environment outlook – A report on the state of the environment (Pretoria: Department of Environmental Affairs and Tourism). Department of Minerals and Energy (1998), White paper on the energy policy of the Republic of South Africa (Pretoria: Department of Minerals and Energy). (2005), Radioactive waste management policy and strategy for the Republic of South Africa (Pretoria: Department of Minerals and Energy). Department of Water Affairs (2009), Green Drop Report South African waste water quality management performance (Pretoria: Department of Water Affairs).

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Eastwood, Josie (2012), The Biowatch case. A victory for access to information and a landmark decision on costs awards in public litigation. Biowatch Research Paper 1 of 2012. Eastwood, Josie, and Elfrieda Pschorn-Strauss (2005), ‘The Genetically Modified Organisms Act: Paying lip service to public participation sows seeds of dissent’, South African Journal of Environmental Law and Policy, Vol. 12, No. 2, pp. 123–49. Energy Business Review (2011), ‘South Africa plans to construct nuclear power plants’, Energy Business Review, 20 September, http://nuclear.energy-business-review.com. Environmental Monitoring Group and African National Congress Western Cape Science and Technology Desk (1994), The nuclear debate: Proceedings of a conference on nuclear policy for a democratic South Africa, 11–13 February 1994 (Cape Town: Environmental Monitoring Group). Feris, Loretta (2008), ‘Constitutional environmental rights: An under-utilised resource’, South African Journal on Human Rights, Vol. 24, No. 1, pp. 29–49. Fig, David (2005), Uranium road: Questioning South Africa’s nuclear direction (Johannesburg: Jacana). (2010), ‘Nuclear energy rethink? The rise and demise of the Pebble Bed Modular Reactor’ (Research Paper No. 210, Institute for Security Studies, Pretoria). Freidberg, Susanne, and Leah Horowitz (2004), ‘Converging networks and clashing stories: South Africa’s agricultural biotechnology debate’, Africa Today, Vol. 51, No. 1, pp. 3–25. Garcia, Maria Alice, and Miguel Altieri (2005), ‘Transgenic crops: Implications for biodiversity and sustainable agriculture’, Bulletin of Science, Technology and Society, Vol. 25, No. 4, pp. 335–53. Glazewski, Jan (2005), Environmental law in South Africa (Durban: LexisNexis Butterworths). Goebel, Allison (2007), ‘Sustainable urban development? Low-cost housing challenges in South Africa’, Habitat International, Vol. 31, Nos. 3–4, pp. 291–302. Gough, Ian, and Allister McGregor (2007), Wellbeing in developing countries: From theory to research (Cambridge: Cambridge University Press). Hails, Rosie (2000), ‘Genetically modified plants – The debate continues’, Trends in Ecology and Evolution, Vol. 15, No. 1, pp. 14–18. Humby, Tracy (2010), ‘The Biowatch case: Major advance in South African law of costs and access to environmental justice’, Journal of Environmental Law, Vol. 22, No. 1, pp. 125–34. International Development Research Centre (1995), Building a new South Africa, Vol. 4, Environment, reconstruction and development, a report from the International Mission on Environmental Policy (Ottawa: International Development Research Centre). James, Clive (2011), Global status of commercialised biotech/GM crops. Ithaca: ISAAA. Kidd, Michael (2008a), Environmental law (Cape Town: Juta). (2008b), ‘Greening the judiciary’, Potchefstroom Electronic Law Journal, Vol. 9, No. 3, pp. 1–15. Kotz´e, Louis (2003), ‘The Constitutional Court’s contribution to sustainable development in South Africa’, Potchefstroom Electronic Law Journal, Vol. 6, No. 2, pp. 81–95. Kotz´e, Louis, and Loretta Feris (2009), ‘Trustees for the time being of the Biowatch Trust v Registrar, Genetic Resources and Others: Access to information, costs awards and the future of public interest environmental litigation in South Africa’, Review of European Community & International Environmental Law, Vol. 18, No. 3, pp. 338–46. Marais, Hein (2011), South Africa pushed to the limit: The political economy of change (Cape Town: University of Cape Town Press; London: Zed). Marcus, Gilbert, and Stephen Budlender (2008), A strategic evaluation of public interest litigation in South Africa (Johannesburg: Atlantic Philanthropies). McDonald, David (ed.) (2002), Environmental justice in South Africa (Athens: Ohio University Press; Cape Town: University of Cape Town Press).

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Meadows, Michael, and Timm Hoffman (2002), ‘The nature, extent and causes of land degradation in South Africa: Legacy of the past, lessons for the future?’, Area, Vol. 34, No. 4, pp. 428–37. Momba, Maggy, Z. Tyafa, N. Makala, Barbara Brouckaert, and Larry Obi (2006),‘Safe drinking water still a dream in rural areas of South Africa – Case study: The Eastern Cape Province’, Water SA, Vol. 32, No. 5, pp. 715–20. Paarlberg, Robert (2000), ‘Governing the GM food revolution, Policy choices for developing countries’ (Discussion Paper No. 33, Washington, DC: International Food Policy Research Institute, Food, Agriculture, and the Environment), http://www.ifpri.org/sites/default/files/ publications/2020dp33.pdf. PBMR (Pty) Ltd (2006), PBMR: Powering the future (Centurion: PBMR (Pty) Ltd). President’s Council (1991), Report of the three committees of the President’s Council on a national environmental management system (Pretoria: Government Printer). Pschorn-Strauss, Elfrieda, and Rachel Wynberg (2002), The seeds of neo-colonialism: Genetic engineering in food and farming, South African People and Environments in the Global Market 4 (Pietermaritzburg: groundWork). Roberts, Alasdair (2000), ‘Less government, more secrecy: Reinvention and the weakening of freedom of information law’, Public Administration Review, Vol. 60, No. 4, pp. 298–310. Roberts, Janice (2010), ‘World Bank approves Eskom loan’, Mail & Guardian Online, 9 April, http://www.mg.co.za. Sachs, Albie (1990), ‘Conservation and third generation rights: The rights to beauty’, in Protecting human rights in a new South Africa (Cape Town: Oxford University Press), pp. 139– 48. Sitas, Ari (2011), The Mandela decade 1990–2000: Labour, culture and society in post-apartheid South Africa (Pretoria: UNISA Press). Snyckers, Frank (2007), Monsanto South Africa (Pty) Ltd Heads of Argument, 3 March, www. biowatch.org.za/docs/courtcase/monsanto heads.pdf. South African Press Association (2007), ‘PetroSA plans new oil refinery for Coega’, Mail & Guardian Online, 24 October, http://www.mg.co.za. Taillant, Jorge Daniel (2004), ‘Environmental rights: A nascent agenda for the Americas’, Human Rights Dialogue, Vol. 2, No. 11, pp. 28–29. Thomas, Steven (2004), The economic impact of the proposed demonstration plant for the PBMR design (London: Public Services International Research Unit, University of Greenwich). Tripp, Robert (2000), ‘GMOs and NGOs: Biotechnology, the policy process, and the presentation of evidence’, ODI Natural Resources Perspectives, No. 60, pp. 1–6. Van der Linde, Morn´e (2006), Compendium of South African environmental legislation (Pretoria: Pretoria University Law Press). Wambugu, Florence (1999), ‘Why Africa needs agricultural biotech’, Nature, Vol. 400, pp. 15–16. World Commission on Environment and Development (1987), Our common future (Oxford: Oxford University Press). Wynberg, Rachel (2002), ‘Tracking biodiversity conservation and use in South Africa: From the Rio Earth Summit to the World Summit on Sustainable Development’, South African Journal of Science, Vol. 98, pp. 233–43. (2003), ‘Biotechnology and the commercialisation of biodiversity in Africa’, in Beatrice Chaytor and Kevin R. Gray (eds.), International environmental law and policy in Africa, Environment and Policy Vol. 36 (Dordrecht: Kluwer Academic Publishers), pp. 83–102. Wynberg, Rachel and Fig, David (2013), A landmark victory for justice. Biowatch’s battle with the South African State and Monsanto. Biowatch South Africa, Durban, 79pp.

12 Access to Information and Socio-Economic Rights A Theory of Change in Practice Kristina Bentley and Richard Calland

1. INTRODUCTION

Claiming socio-economic rights inevitably requires a contest for resources. If one adopts Leftwich’s definition of politics as “all the many activities of cooperation, conflict and negotiation involved in decisions about the use, production and distribution of resources, whether these activities are formal or informal, public or private, or a mixture of all” (Leftwich, 2008: 6), then socio-economic rights advocacy and litigation is fundamentally concerned with politics and, therefore, with the power relations among different actors. Often, the information asymmetry between these actors is profound; ‘information poverty’ is a further inhibition on the capacity of the poor and marginalised communities to articulate their needs and interests.1 In a number of cases it has emerged that communities not only are disempowered by lack of access to resources to which they have a right but also are unable to pursue their rights’ claims through lack of both capacity and information.2 Often, the indignity of poverty is worsened by a lack of consultation and by the State’s and the government’s failure to ‘engage’ with the communities most directly affected by a particular policy or public service – notwithstanding the Constitutional Court’s development of a doctrine of meaningful engagement in recent cases on public participation and right to access to housing, in particular the case of Occupiers of 51 Olivia Road, Berea Township and 197 Main Street Johannesburg v City of Johannesburg & Others.3

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For a further exposition of this point, see Murdock and Golding (1989: 180), who argue that ‘where material inequality massively differentiates people’s access to goods and services, and those goods and services are themselves a necessary resource for citizenship, then political rights are the victim of the vicissitudes of the marketplace and its inegalitarian structure’. See Dugard’s Chapter 10, on urban basic services, in this volume. Occupiers of 51 Olivia Road, Berea Township and 197 Main Street Johannesburg v City of Johannesburg & Others [2008] ZACC 1.

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Hence, conceptualised in the way that we see it – as a ‘power’ right – the right of access to information is an important, if not essential, companion when claiming socio-economic rights. The case studies that are outlined in this chapter illustrate how some civil society organisations in South Africa have acted as champions of the right of access to information for poor communities, specifically as a tool to advance social and economic rights. This is particularly illustrated with an account of the work of the Open Democracy Advice Centre (ODAC) and how its strategies in seeking to link the right of access to information with socio-economic rights have evolved over the past ten years, thereby employing it as a so-called leverage right (see Jagwanth, 2002). The chapter thus builds on these examples to address the questions that form the focus of this book in the following ways. Focusing on the role of socio-economic rights in framing non-State actors’ strategies for the pursuit of social justice and poverty issues, we consider the problem of making these rights accessible and enforceable in the absence of expert interventions from civil society. The problem for the use of access to information (ATI) as a leverage right, as we see it, is whether the role of organised (and, by implication, professional or resourced) civil society is one that needs to be accepted as a perpetual feature of the human rights landscape in a country such as South Africa.4 To assess the impact of the strategies adopted by civil society in the case examples selected we have, on the one hand, profiled a leading non-governmental organisation (NGO) in this area (ODAC) and, on the other hand, analysed the key cases that point to an emerging jurisprudence in this area of socio-economic rights practice. Finally, we explore whether it is possible to begin to build a stronger theory of change in relation to the right of access to information that focuses on the right less as a stand-alone human right, but more as a means to end, whereby the right can be actively used by ordinary citizens to protect their ordinary daily interests and hold the State to account. The use of Hohfeld’s (1919) classic taxonomy of rights, in particular his formulation of rights as powers, is used as the theoretical basis for this analysis. 2. ACCESS TO INFORMATION AND THE ENFORCEMENT OF SOCIO-ECONOMIC RIGHTS

The inspiration for using ATI as a lever for the advancement of socio-economic rights comes principally from Rajasthan, India. The iconic work of Indian NGO Mazdoor Kisan Shakti Sangathan (MKSS) in promoting and using the right has been the subject of many studies,5 most recently by Professor Al Roberts (2010). Conceptually, it formed the bedrock for ODAC’s own approach in South Africa, 4

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The terms access to Information (ATI) and freedom of information are used interchangeably in this chapter. See the work of Jenkins, in particular: Jenkins and Goetz (1999).

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which is discussed in this chapter. The MKSS legend – for legend is now what it is – is built on the compelling narrative of their public hearings (jun sunwai).6 The MKSS’s own talismanic film, The Right to Know, the Right to Live, quickly became a must-have accessory for most ATI advocates seeking to bolster the assertion that ATI is about development and socio-economic justice and not (necessarily) about media freedom. The ATI community can tell a hundred stories; there is a rich portfolio of anecdotes that reveal the human dimension – about how freedom of information (FOI) has improved the life of an individual or a community. But the empirical data is patchy and poorly marshalled. Darch and Underwood (2010) are the most recent sceptics to add a scholarly note of caution to the debate about the potential of FOI to benefit the poor. Following a 2004 visit by ODAC to Rajasthan, its leadership sought to adapt the model to South Africa while keeping its essential core: namely the use of the ATI law as an instrument for creating political space and for requiring the authorities to pay greater attention to weaker social stakeholders. In turn, ODAC began to develop its own narrative, including the production of its own right-to-know film (The Right to Know: The Fight for Open Democracy in South Africa), based on its representation of the well-known shack-dwellers’ association in Durban, Abahlali baseMjondolo, whereby ODAC made a number of detailed access-to-information requests to the Durban metropolitan government, seeking information about housing policy and what specific plans, if any, there were for the development of the Kennedy Road information settlement where Abahlali is based. In this and in much of its casework, ODAC set out its stall: it wanted to be positioned and thereby seen as a progressive organisation contributing to the notion of transformative constitutionalism by helping poor communities to use The Promotion of Access to Information Act 2 of 2000 (PAIA) so that they could protect or exercise their socio-economic rights. How well has ODAC succeeded? Has the practice supported the theory? Section 5.2 examines the evidence from ODAC’s own cases and internal review processes, reflecting its emerging methodology based on a decade of experience. It presents, thereby, a case study of ATI in practice, in the context of the attempt to serve the realisation of socio-economic rights through the claiming of another right, the right of access to information. So it is with matters of housing, water, or welfare rights. Indeed, the South African Constitutional Court has picked up this thread in a number of recent socio-economic rights cases, linking the need for what it has defined as meaningful engagement with the delivery of services that relate to socio-economic rights.7 Thus, one can join the dots between the right of access to information, the thrilling idea of participatory democracy and the powerful idea of transformative constitutionalism that underpins the socio-economic rights contained within Chapter 2 of 6 7

For Calland’s own account of an MKSS hearing see Calland (2004). The leading case on meaningful engagement – Olivia Road – is outlined in Section 5.1.

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the South African Constitution. Section 5.2 presents the data gathered from one case, that of ODAC in South Africa, and the organisation’s attempt to use the South African ATI law to advance the interests of its clients’ need for decent housing, clean water, and social security. 3. ACCESS TO INFORMATION IN SOUTH AFRICA – LAW, POLICY, AND PRACTICE

In South Africa, the right of access to information is enshrined in Section 32 of the South African Constitution of 1996. There are two main aspects of Section 32 that deserve immediate note for this discussion. First, the right is ‘stand alone’, unlike in the case of its international law derivative (Article 19 of the International Covenant on Civil and Political Rights). It is not a part and parcel of the right of freedom of expression. Second, the right is branded as a right of access to information rather than as freedom of information. This may at first sight appear to be a semantic distinction, but as we discuss here, it relates to our understanding of this right as a power, rather than a liberty or a claim, the significance of which we discuss. In accordance with Section 32(2), the constitutional right was duly given effect to by a statutory right of access to information – the Promotion of Access to Information Act 2000 (PAIA). The act was subjected to a long and painstaking process – inside the executive, in the parliamentary process, and in terms of civil society advocacy. There has been more than one account of this process,8 and it does not bear recitation here, save to note – given that the final part of this chapter examines the role of civil society and the relationship between organised NGOs and the claiming of the ATI to enforce socio-economic rights – that a coherent and sustained civil society campaign coalition (the Open Democracy Campaign Group), comprising law centres, human rights groups, trade unions, and faith organisations, worked together for the whole of the five-year period during which the bill made its tortoise-like progress from green paper to white paper to bill to revised bill to the statute book. This ensured that there was a sense of ownership by civil society – an element that, it has been noted elsewhere, is often likely to be a significant factor in the success or otherwise of the law (Calland and Neuman, 2007: 209). More tangibly, it has meant that, thanks to the elongated nature of the process that was followed in passing the law, the civil society organisations that were engaged in the campaign developed a fairly clear idea of the benefits that could be accrued from an efficacious ATI law. Whether, however, that understanding translated into sustained engagement and usage of the law remained to be seen – and, as we discuss later in this chapter, although there has been a pocket of focused and specialist civil society energy

8

See Dimba (2002), for an account of the civil society campaign in South Africa.

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directed towards PAIA, it cannot be easily said that civil society as a whole has taken up the law as a part of its daily bread and butter. Far from it, in fact. Arguably, the practice of ATI in South Africa has been characterised and thereby undermined by the rather scanty uptake of the right.9 The principal points of diagnosis that one can deduce from the various thorough, if not exhaustive, studies that are available10 are, first, that the main challenge facing requesters of information is that requests are more likely to be ignored than responded to timeously, and second, that capacity for effective implementation is far from perfect. Thus, it is hard to conclude that there is wilful non-compliance; as with other areas of public life in modern South Africa, incapacity and incompetence rather than indifference or unwillingness tend to be the main drivers of performance and, thereby, of the realisation or otherwise of the rights contained within the Constitution. These obstacles, and the accompanying diagnosis, are not uncommon in the recent history of the right of access to information around the world. On the contrary, most countries have struggled to implement ATI laws effectively. Most of the literature suggests that passage of the law is the easy bit, and effective implementation is far harder (Calland and Neuman, 2007). But given that the purpose of this chapter is to examine the relationship between ATI and socio-economic rights, it stands to reason that the diagnostic analysis of the progress in the realisation of the right of ATI in South Africa is hardly encouraging: if the hope is that ATI is a tool for leveraging greater political space by poor and vulnerable communities to protect and advance their socio-economic rights, then the fact that requesting information under PAIA appears on the available evidence to be both a specialist and a demanding occupation is likely to fundamentally undermine the ability of citizens to use this lever to hold the State to account.

9

10

It should be noted that there are other methods to get information. For example, litigation on socioeconomic rights may allow litigants to access the information they want, and indeed, such might not result in an actual house, for instance, but will potentially give information more quickly about why houses have not materialised. This might be a result of a judgment or just initiating the litigation. The Grootboom case, which is referred to in Section 5.3, illustrates this point. Furthermore, service delivery protests are about not only a failure of the system but also information and governance issues. Although we are not suggesting that these are viable tactics in the pursuit of access to information, they do highlight how low uptake of the right under PAIA can exacerbate such protests. The figures presented at ODAC’s ten-year review of PAIA in March 2010 reveal the unevenness and shallowness of the usage (Tilley, 2010). The ODAC ten-year review is one of three main studies that shed some light on the practice of ATI in South Africa. The other two are ODAC’s five-year review and the study that was conducted by ODAC as a part of the wider international study organised by the Open Society Justice Initiative (2006). In addition, the annual reports of the South African Human Rights Commission provide further insight into the challenges that South Africa has encountered in its implementation of ATI, along with the reports that have accompanied the annual openness awards. See, for example, http://www.opendemocracy.org.za/ index.php?option=com_content&view=article&id=213:city-of-tshwane-wins-the-2010-rusty-padlockawards-&catid=2:press-statements&Itemid=98.

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4. HOHFELD’S ‘POWER’ AND ‘LIABILITY’

This section of the chapter seeks to propose a theoretical understanding of the right of access to information. Like Darch and Underwood (2010), we do so by making use of Wesley Newcomb Hohfeld’s (1919) classic exposition of the four so-called incidents of rights: claims, liberties, powers, and immunities. It is suggested that the rights enshrined in the South African Constitution have to date been understood exclusively as claims and liberties, the former applying to social and economic rights, and the latter to civil and political rights. However, access to information is a different species of right. It has as its object (the thing which it is a right to) neither a tangible outcome (such as health care or housing) nor the duty of forbearance on the part of the State and others (the hallmark of classic rights as freedoms). This chapter argues that by revisiting Hohfeld, and using one of his four ‘jural relations’ – that of a power – we can successfully shed some light on the right of access to information and what it entails in our current context. Hohfeld’s analysis of rights, while being a description of four different types of jural relation or legal rights, is nevertheless useful to the analysis of moral and human rights, too, as it indicates the protean forms that even this fairly narrowly defined category of rights can assume, and thus “remains a highly enlightening account of how the single term ‘right’ may be used to describe quite different sorts of jural relation” (Jones, 1994: 12). The rights enshrined in the South African Constitution are, of course, both moral and legal rights, and in the case of the right of access to information, the legal status of this right is buttressed by supporting legislation in the form of PAIA. According to Hohfeld, there are four alternative jural relations that all fall into the broader category of legal rights – claim rights, liberties, powers, and immunities – and each of these is distinct in character because of the “correlatives” and “opposites” that they generate correspondingly (Jones, 1994: 12–13). It is only rights as powers that are of concern to this discussion. Hohfeld’s rights as powers are “usually defined as the legal ability to change a legal relation” (Jones, 1994: 22), such as one does when making a will or casting a vote. The defining feature of such rights is that they “empower” the right holder to do something that he or she would otherwise have no enforceable right to do in the absence of the relevant provision (Jones, 1994: 12–13). It is a right in this sense that may be useful for understanding the precise nature of the right of access to information, as we explore here. We are concerned here with access to information as a leverage right, and so it is this Hohfeldian formulation of a right as a power that seems most appropriate to this kind of right. There are a number of features of the right of access to information that can be understood in this way. First, it is not a right to any specific concrete thing. As is illustrated in the following section, a number of recent access-to-information cases have dealt with socio-economic rights, in particular housing cases, but the right to information does not guarantee that the thing to which the right in question relates

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(the object of the right) will materialise. Rather, it changes the relationship between the parties – it empowers the right holder (the subject of the right) to demand information from the duty bearer (in this case the State) about how the right in question is being delivered. We will see in the following section where the Olivia Road case is outlined why this is significant to the delivery of social and economic rights, but the important point to note here is that empowering the right holders in this way creates a liability on the part of the duty bearer. It changes the balance of power between them such that the right holder can hold duty bearers to account as to how they are delivering on their other obligations (relevant to other rights). This is an enormously significant shift. In the case studies outlined in the following section, the point is made repeatedly that in the communities where these accessto-information requests were made, a tangible sense of empowerment has resulted, and people gain confidence in dealing with the State in upholding their rights and demanding information. 5. CASE STUDIES FROM CIVIL SOCIETY

It is important to note in light of the topic of this chapter that the majority of ATI requests do not relate to socio-economic rights. Indeed, the South African History Archives (SAHA), which has led a number of cases under PAIA, has primarily dealt with issues relating to the security apparatus of the apartheid era. The reported cases that have resulted in litigation do not relate to socio-economic rights directly, although some have an indirect element and/or could be described as concerned with the human dignity of the claimant;11 indeed, the single ATI case to have come ¨ before the Constitutional Court thus far (the Brummer case) deals with procedural issues to do with access to information, specifically the restrictive time limits placed on applicants in seeking information.12 What existing jurisprudence there is therefore does not relate directly to the subject of this chapter but rather to the general principles of access-to-information claims.13 11

12

13

We acknowledge a reviewer of this chapter for pointing out that the first PAIA case could be said to combine these two elements: the 2002 Cape High Court case between Khulumani Support Group (assisted by ODAC) and the President and Truth and Reconciliation Commission around the government’s reparation policy. Over the past two years, Khulumani has also used PAIA to obtain information about government policy on community reparations, the number of victims of apartheid who have been paid reparations, and the amount of money left in the President’s Fund. ¨ The case in question, Brummer v Minister for Social Development & Others, CCT25/09 [2009] ZACC, concerned a journalist who was seeking information from the minister pursuant to a story on the Oilgate affair, and allegations of corruption. The judgment of the court, handed down on 13 August 2009, effectively extends the time limit for bringing access to information claims from 30 days to 180 days in the interests of ‘accurate reporting’. The Court referred the matter back to Parliament to amend the relevant section of the Act, and the substance of Brummer’s case was referred back to the lower ¨ court, which had dismissed his earlier claim on the procedural basis that the thirty-day time limit had elapsed. For a summary of access to information cases, and the specific aspect of the right that they deal with, see Makhalemele (2005).

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However, this is not necessarily a failing on the part of the civil society bodies that take up these cases. On the contrary, at one level, keeping their clients out of court can be considered a victory for civil society and an illustration of how PAIA can be used by citizens without having to have recourse to the disempowering and costly device of professional litigation. In contrast, it does mean that the principles of the application of PAIA have to be inferred from the existing case law insofar as they apply to socio-economic rights matters. One important recent development, the Olivia Road case, which is discussed in the following section, is not in fact an ATI case as such, but the judgment of the Court bolsters PAIA in a significant sense in that it reinforces the right of access to information as a power, as part of what the Court says is a duty on the State to “meaningfully engage” with the citizen communities affected by its policies and resource allocations. The link between meaningful engagement and ATI is that such engagement requires a reasonable flow of information, and it therefore reinforces ATI as a right understood as a power. 5.1. Olivia Road: The Significance of “Meaningful Engagement” In February 2008, the Constitutional Court handed down judgment in the case of Occupiers of 51 Olivia Road, Berea Township and 197 Main Street Johannesburg v City of Johannesburg and Others ([2008] ZACC 1). The case was primarily concerned with the eviction of illegal occupants of inner-city buildings as part of an urban regeneration project on the part of the city. However the case established an important precedent in the form of a duty on the part of the State to “meaningfully engage” with evictees in housing rights cases (Ray, 2008: 703; see also Chapter 2 by Wilson and Dugard). Furthermore, the Court held that this duty applied generally to the government in dealing with citizens affected by its policies (Ray, 2008). In defining this engagement, the Court ruled that any development planning process required that the State engage with the affected parties from the beginning, and further that the State bears the responsibility of brokering the relationship with the parties that makes this engagement possible. The Court also recognised the role of civil society in this process as having a significant role to play in representing communities and facilitating their participation (Ray, 2008). The court went further however, and established what amounts to a public reporting requirement for the government following any engagement process. Emphasising that “secrecy is counter-productive to engagement,” the Court stated that, at least for municipal eviction proceedings, “the provision of a complete and accurate account of the engagement process including at least the reasonable efforts of the municipality with that process would ordinarily be essential.” Courts are then required to consider “whether there has been meaningful engagement between a city and the resident about to be rendered homeless,” when considering a challenge under section 26.14 (Ray, 2008: 708) 14

Section 26 of the Constitution relates to the right to housing.

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Although it could be argued that the Court’s reluctance to give substance to Section 26, and to make a substantive order for housing, makes this a disappointing finding, it is also important to note how the requirement of effective engagement changes the power relations between the parties and how it generates an additional duty to make information available, without the citizen being obliged to request it: By forcing government officials to pay attention to section 26 on a consistent basis, even absent litigation, and also by recognising civil society’s constitutional role in advocating for housing policy development, engagement may represent a powerful and innovative mechanism for enforcing socioeconomic rights. (Ray, 2008: 708)

And as Ray (2008: 709) goes on to point out, over the long term this requirement to engage with those affected by policy has the potential to “create incentives for government to develop the kind of multi-faceted and robust housing policies that section 26 arguably requires”. By being required to engage in this way, the State will have to up its game and come up with better and more effective policies rather than being able to hide behind a veil of secrecy and confusing policy language. Furthermore, engagement of this kind could have the potential to keep the parties to these kinds of cases out of court altogether, thus evening the playing field between them even more effectively and allowing for speedier housing remedies to be put into place (Ray, 2008: 709).15 So what Olivia Road effectively does is impose a liability to engage on the part of the State, and it empowers citizens who are on the receiving end of housing policy and the delivery of other services, to be a party to the process of planning and deliberation about how those policies are to be effected. It thereby gives substance to their right of access to information about policy and the enforcement of their socio-economic rights. But unlike in some of the earlier cases (which are referred to later in this chapter), they are entitled to this information and participation without having to have recourse to PAIA. This is a useful contribution, as it relates to some of the difficulties in activating PAIA that are referred to in the final section, some recent developments notwithstanding. 15

The engagement requirement laid down in Olivia Road was extended to water rights in a subsequent case. In Mazibuko and Others v City of Johannesburg and Others 06/13865 30 April 2008, the Witwatersrand High Court ruled that the installation of pre-paid water meters in Phiri was unconstitutional, as it had been forced on residents without meaningful consultation. Unfortunately, the Constitutional Court did not affirm the order, which Dugard, Chapter 10, in this volume describes in more detail. This is something of a disappointing outcome as this judgment “would [have] open[ed] the door to extending the remedial ‘bite’ of engagement to the other socioeconomic rights in the South African Constitution” (Ray, 2008: 713). The case of Residents, Joe Slovo Community, Western Cape v Thubelisha Homes and Others CCT 22/08 [2009] ZACC 16 is dealt with by Langford in Chapter 7, on housing rights litigation, and so is not referred to in detail here, except to note that this case also resulted in an order on the part of the court for constructive engagement with the community on the receiving end of eviction, in accordance with the right to housing.

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5.2. ODAC: An Evolving Methodology16 This chapter focuses specifically on the work of the Open Democracy Advice Centre (ODAC) over the past ten years. Although it is acknowledged that there are other civil society bodies that make access to information their business, there are two reasons for emphasising the work of ODAC. First, ODAC is unique in that it was specifically established to pursue research, training, and litigation on access to information in terms of PAIA. In addition, ODAC focuses on the Protected Disclosure Act (PDA), relating to the protection of whistle-blowers, which clearly supplements the general thrust of ODAC’s Right to Know, Right to Live programme. Second, ODAC has come to occupy something of a niche in pursuing access-to-information cases that relate to socio-economic rights cases, and so the work of ODAC, more than any other actor in this area, is of most relevance to this chapter. A further reason the work of ODAC commends itself to use as an example of civil society’s work in this area is that ODAC has undergone periodic reviews during the past decade, all of which have been documented and point to an evolving methodology for access to information and its importance for socio-economic rights. The founding of ODAC in 2000 coincided with the passing of the three pieces of legislation on which its work is focused. It grew out of the Open Democracy Campaign Group, a coalition of a number of Civil Society Organisations (CSOs) in the late 1990s that were campaigning for enabling legislation to give effect to the right of access to information included in the Constitution. The 2006 report of ODAC, Evaluation of ODAC’s Right to Know, Right to Live Outreach Strategy – 2001 to 2005, summarises this process: Even before the trilogy of Bills became laws, [ODAC] was conceptualised as a mechanism to make conceptual and practical links between these Bills. Focusing on the two pieces of “transparency legislation” (PDA and PAIA), ODAC was designed to play an active role in fostering a culture of accountability and transparency. It aimed to do this by assisting citizens and institutions (public and private) to understand and use the laws to leverage a menu of rights available to them.17 (ODAC, 2006: 1–2)

Moreover, ODAC has a decade of experience in campaigning for the right to know, and its experience and self-reflection on its tactics therefore make it a valuable 16

17

We are sensitive to the question of impartiality in our analysis of ODAC – we alert readers to the fact that one of the authors, Richard Calland, was one of the two founding members of ODAC and until January 2010 was the organisation’s executive director, albeit from 2005 onwards, this was an increasingly hands-off, part-time role. He remains a member of the board of ODAC. However, in addition to ODAC’s own internally commissioned evaluations of its work, there are several independent evaluations that reinforce the findings and arguments presented here, and which are drawn on in this chapter. See ODAC (2006) and Bezerra and Delport (2009). The report notes further that ODAC was originally designed as a collaborative project of the Institute for Democracy in Africa (IDASA), the Black Sash and the Department of Public Law at the University of Cape Town.

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case study in understanding the relationship between access to information and the enforcement of socio-economic rights in South Africa. There are roughly two periods covered by ODAC’s review processes – the period from 2000 to 2005, when ODAC undertook a five-year review, and the period since then.18 The first two years inevitably involved the setting up of “appropriate operational and governance structures”, and “[d]uring this period ODAC assumed that training paralegals and NGOs on how to use these ATI laws would automatically translate into them using the laws to assist disadvantaged groups and communities to identify problems and make specific requests” (ODAC, 2006: 2). However, by 2003 it had become apparent that this assumption would need to be questioned, as a five-country study showed that, despite its suite of openness laws, South Africa had one of the worst ATI compliance rates of the countries surveyed.19 Furthermore, the study found that South Africa’s scores in terms of political will and compliance were the lowest, pointing to the difficulty with implementing ATI laws, however impressive they may be. Furthermore, ODAC was concerned with the low number of ATI requests that were being received, and so it was apparent that both on the ‘supply’ side and on the ‘demand’ side the flow of information was poor. The following section of this chapter returns to this question of the difficulty of implementation, and some new developments that may assist in cracking open the information environment, but this realisation on the part of ODAC led to a rethinking of its strategies and tactics from 2003 onwards. The major change that took place was that, rather than playing the role of information provider, with supportive training to NGOs, ODAC would have more interaction with the communities themselves that were on the receiving end of the information requests. The 2006 report describes this shift in methodology: As opposed to teaching people in a formalistic way about the ATI law, [they] would spend more time on facilitating a community-based meeting at which local people [would] identify the issues they want to take action around; clarify how the access to information can take them closer to their development goals; and, having done that, ODAC sends off requests for information on behalf of the community. This part of the process involved filling in the necessary forms, taking responsibility for follow up communication, and supporting advocacy processes arising out of the request. (ODAC, 2006: 15)

This change of approach rapidly yielded results, with the number of PAIA requests increasing remarkably during 2003 and 2004, and steadily continuing to rise in 2005. In looking at the requests that developed from the communities where ODAC did its 18

19

The staff at ODAC have very kindly made their internal documents available to us, and these are drawn on here. The 2003 pilot of five countries was conducted by the Open Society Justice Institute and was followed in 2004 by a fourteen-country study.

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work (nine in 2004 and twelve in 2005), the requests related to socio-economic rights to health care, water, housing, and electricity. A range of other related issues were also included in these ATI requests, but it is salient to note that the communities in question prioritised development and access to resources, as well as information about how local government funds were being spent. At this local level, then, ATI requests are most pressingly concerned with these bread-and-butter issues rather than with the security or procedural questions that form the subject of some of the higher-profile ATI cases. The other important point about the community-based ATI requests processed by ODAC during this period is that most of them did not reach the point of litigation – of the twelve community-linked requests in progress in 2005, five had a satisfactory result by mid-year, and just three had potential court action looming (ODAC, 2006). Once ODAC had made its initial intervention, even when these yielded only partial results, the communities felt empowered to take over the process, as the footing on which they dealt with the government had shifted. This relates to the argument being made in this chapter that the theoretical approach to understanding ATI is as a Hohfeldian power. The other important constituency that ODAC continued to work with during this time was specialised and grassroots NGOs, with the majority of ATI requests emanating from these partnerships – 159 in 2004 alone. However, these successes need to be seen against the backdrop of an overall challenge of accessing information in South Africa. In 2004, the 2003 Open Society Initiative (OSI) five-country pilot study to monitor FOI legislation and compliance was extended to a fourteen-country study, and once again South Africa’s results were disappointing. In this study, ODAC took a leading role, making 100 of a total of 140 requests on behalf of NGOs, the media, and individuals to elicit and test the use and supply of ATI legislation. These requests were made to all three spheres of government, and of the requests to eighteen public bodies, 63 per cent were met with mute refusal (i.e. they were ignored), and just 13 per cent were responded to within thirty days. The upshot of the study was that South Africa’s compliance with ATI requests had actually declined from 2003 to 2004. This, then, raises a key question that is returned to in the next section of the chapter – in the absence of specialised and dedicated civil society bodies like ODAC and its partners, what potential is there for ordinary citizens to exercise the powers that PAIA gives them? The first two years of ODAC’s existence and its experiences seem to suggest that even in an environment where training, information, and support are offered, uptake of ATI is low. Until ODAC switched to a model of direct community involvement and activism, the number of ATI requests processed was disappointing. However, ODAC itself is quick to point out that it is quality of results, rather than quantity of requests, that matter. In the conclusion to the 2006 report, ODAC remarks: The litmus test for having arrived at a more just, open and democratic society is not going to be measured by quantifying numbers of requests lodged using ATI

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legislation. While these and others measures remain important, the real test is going to be the extent to which South Africa has an active and empowered citizenry with capacity to access rights, act responsibly, and ensure that resources are equitably distributed to all South African citizens. (ODAC, 2006: 46)

In its most recent report, ODAC (2010) notes some important developments on this theme. The first of these is the rise in service delivery protests, which ODAC directly attributes to an inability to hold local government to account, and it goes on to point out that although these protests are ostensibly a result of poor service delivery, “initial studies around service delivery protests indicate that the lack of information about service delivery, rather than service delivery itself, is a key component in causing the protests” (ODAC, 2010: 1). This view is echoed by the Public Service Commission: “Some citizens have found alternative ways to draw attention to the need for public participation through service delivery protests and rising activism. This development should come as a signal to government that effective communication and public participation must remain a fundamental priority” (Public Service Commission, cited in ODAC, 2010: 1–2). A second important development in ODAC’s current work is that of the eleven new ATI requests it lodged in 2009, eight of them have a housing component, and all of them relate to socio-economic rights in some respect (the other issues arising being health care, water, and food parcels from the Department of Social Development). Furthermore, of these eleven cases, six have been referred to ODAC’s litigation unit – as “officials tend to give requests the necessary level of attention only when they receive an official letter of demand from our attorneys”, as the report wryly notes (ODAC, 2010: 5)! Also, ODAC is at pains to point out in its 2010 report that what may appear to be “a decline in our ability to secure disclosure of information on behalf of our clients” is in fact a result of a shift in emphasis. Previously, ODAC has assisted poor communities in urban areas “in seeking information from well-resourced metropolitan municipalities”, but its current suite of projects mainly focus on “assisting the rural poor who wanted to access information held by smaller rural and less endowed local or district municipalities” (ODAC, 2010: 5). This is in keeping with the conclusion of its 2006 report, as it points to a strategic qualitative choice on ODAC’s part in terms of its community outreach interventions. It also links up with the theoretical points made in the previous section about how ATI is intended to confer powers on citizens, but citizens in rural areas may be most constrained in exercising these. Referring to the Peddie Women’s Support Centre’s request to the Ngqushwa Local Municipality, ODAC notes: “The power imbalance between the officials and the community was quite evident in our interventions there. We saw a pervasive attitude on the part of the officials wherein they regarded service delivery as a favour that they do for the citizens” (ODAC, 2010: 5). This once again underlines the precise nature of the right of access to information understood as a power, and therefore one that is intended to change the footing on which citizens approach the State.

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In addition, ODAC lists eleven institutions that have consistently scored a zero (0 per cent) in its Golden Key Index, which measures ATI compliance. Disturbingly, of the eleven, four are the Office of the Premier of one of South Africa’s nine provinces (Western Cape, North West, Northern Cape, and Mpumalanga), and the remaining seven are district municipalities.20 A question that naturally arises is how those who receive a Golden Key or a Rusty Padlock receive these awards. According to ODAC’s Mukelani Dimba,21 an award of a Golden Key acts as an incentive to improve openness and stimulates some healthy competition between best-performing institutions. For example, the Department of Defence, the South African Police Services (SAPS), Eskom, the City of Johannesburg, and the City of Cape Town – all past Golden Key recipients – request the scorecards of their competitors to see how they were “pipped at the post” and then seek to improve their performance on this basis. This, according to Dimba, results in “a replication of best practice.”22 The Rusty Padlocks may also be seen as yielding positive results, in that they give opposition politicians, particularly at local government level, the ammunition they seek to put pressure on underperforming municipal officials. Those who receive the awards frequently follow up with ODAC to seek more information, and in some cases, most notably that of Francis Baard District Municipality in the Northern Cape, they seek the assistance of ODAC to improve their performance and develop their capacity.23 The findings of ODAC, then, raise two important points about the implementation of ATI laws, which we take up here. The first is the need for some kind of commissioner or information regulator to provide a cost-effective and accessible means for ordinary citizens to press the levers that enforce their rights of access to information.24 In the face of many government bodies’ mute refusal to comply with ATI regulations, such a regulatory body could meaningfully give teeth to the power that PAIA confers on citizens. The second point is the extension of jurisdiction over PAIA to magistrates’ courts in South Africa. Although even these courts are likely to remain beyond the reach of most ordinary citizens, this would open a space for a wider range of civil society bodies to articulate communities’ ATI claims through these courts without recourse to either the intervention of bodies like ODAC or the lengthy and costly court battles of previous cases.

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22 23

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The eleven institutions were all eligible for ODAC’s Rusty Padlock Award, with the Bophirima District Municipality eventually being drawn for this dubious distinction. The information cited here was given to us by Dimba, in response to specific questions we posed to him about how these awards were received. This is according to Dimba, in answer to the specific questions we posed to him about these awards. In 2008 Francis Baard was a candidate for the Rusty Padlock, but in 2009, thanks to its efforts and ODAC’s assistance, it ranked sixth overall for compliance with PAIA. It should be noted that this is one of the many functions of the SAHRC, but it has to compete with the myriad other functions of the SAHRC and so is clearly not adequately served by that body.

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5.3. Specific Cases of ATI and Socio-Economic Rights As has already been noted, the majority of ATI cases involving social and economic rights do not result in litigation. The cases referred to here are therefore intended to offer some illustration of how the right of ATI understood as a power can create a space for citizens to hold government to account by exposing an unfair practice or lapse in policy. This exposure creates a situation in which citizens can demand what they are entitled to as a result of the information that they receive. The first example relates to the right of access to water and is reported by ODAC as one of its successful interventions; it furthermore “demonstrates how socio-economic rights can be realised through the use freedom of information and public pressure rather than through litigation” (Dimba, 2008: 4). This case clearly arose through ODAC’s strategy of community engagement. In rural South Africa, access to water cannot be taken for granted. Nor is this an issue without gendered implications. The rural areas of South Africa reflect a population demographic that is skewed in favour of older women and the young. Access to clean water is therefore not only an issue of basic health and safety but also very much a gender issue in many areas. In many rural areas, in the absence of the infrastructure for piped water, local government delivers water in tankers and deposits it into large communal drums for the community’s use.25 In 2004, ODAC took up cudgels on behalf of the residents of Emkhandlwini in rural KwaZulu-Natal. It was reported that the municipal tanker was delivering water to other villages in the area, but that for some reason, Emkhandlwini was excluded. The villagers were forced to rely on a stream, which their livestock also used, for water. The local government councillor for the area had been appealed to about this problem, but the appeals had proved fruitless. ODAC assisted the residents to use PAIA to request the minutes of the local government council meetings at which the water provision programme had been decided on. At the same time, residents requested the Integrated Development Plan (IDP) and budget.26 For six months the community was kept waiting, and when the information was finally provided, it showed that there were indeed plans to provide water in the area, but these had not been communicated to the residents. The pressure that this information allowed the residents to put on the municipality to account for their exclusion, along with the attention of the media to the case, finally yielded the result 25

26

Although nearly 75 per cent of South African households now have access to piped water, according to Statistics South Africa’s 2007 Community Survey, there is a marked discrepancy between urban and rural areas. The three provinces with the lowest percentages of households with access to piped water are Limpopo (56.3 per cent), the Eastern Cape (54.1 per cent), and KwaZulu-Natal (63 per cent), which are also provinces with large rural populations and the sites of former so-called black homelands. Access to piped water is calculated as a water source within two hundred metres of the dwelling. See http://www.southafrica.info/about/social/communitysurvey-housing.htm. Both the Constitution and domestic law of South Africa (in the form of the Municipal Systems Act 32 of 2000 and the Municipal Structures Act 113 of 1998) require all municipalities to have a five-year IDP, reviewed annually, to give effect to the developmental and transformative goals of the Constitution.

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of the provision of fixed water tanks (drums) that are regularly replenished, along with a commitment to lay pipes for a permanent water supply. This case is a neat demonstration of the theoretical construction of the right of access to information as a Hohfeldian power. By requiring the municipality to make public its plans to provide water, it was required to justify its decisions to the community in question and to make good on its commitments. As Dimba (2008: 4) remarks: Public pressure to influence resource allocation can only be effectively applied if there is sufficient transparency in the process of resource allocation. Freedom of information creates the conditions in which decisions about the allocation of resources can be challenged.

Moreover, given that the Constitutional Court has persisted with using reasonableness as the standard of review in respect of government programmes in socioeconomic rights adjudication, it is critical that communities – and their organised CSO representatives and intermediaries – can access relevant information about existing government programmes to contest their reasonableness or otherwise. In the TAC case,27 the ability of the applicants to marshal strong evidence about, inter alia, both the cost and the efficacy of the nevirapine drug that the government was refusing to administer to HIV-positive pregnant mothers was crucial to the Treatment Action Campaign’s (TAC) successful argument that the State’s failure to provide a plan based on this available information was unreasonable and therefore unconstitutional. Hence, according to Article 19, “the litigation process provided the transparency required to disable [the government’s] argument” (Belski, 2007: 31). Using the right of access to information, TAC was able to compel the State to reveal its plans and policies for the provision of ARVs, and on the basis of the paucity of those plans, the case compelled the State to ‘up its game’ in providing nevirapine, as none of its arguments for denying it stood up to the facts. This case dovetailed with the celebrated Grootboom judgment, in that the court reiterated here that “the state must act reasonably to provide access to constitutional socio-economic rights on a progressive basis” and ordered the immediate provision of nevirapine (the drug in question) in State hospitals and clinics (Belski, 2007: 31). Although the case is disappointing in the sense that it required the intervention of a well-resourced and powerful civil society movement in the form of the TAC to force the government’s hand, it has the knock-on effect of highlighting the power of citizens to hold the State to account when it makes baseless claims about lack of resources. Furthermore, “[t]he broader impact of the decision was increased public awareness of the justiciability of socio-economic rights” (Belski, 2007: 31), which is another inversion of the usual power relationship between State 27

Minister of Health and Others v Treatment Action Campaign and Others (No 1) (CCT9/02) [2002] ZACC 16; 2002 (5) SA 703; 2002 (10) BCLR 1075 (5 July 2002).

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Courtesy of Right2Know Campaign.

and citizen, because it shows that where the State is remiss in its responsibilities in terms of delivery of specific services, it can be legally held to account and forced to act. However, this raises the question of practical enforceability and empowerment on the part of ordinary citizens. How accessible is access to information and the provisions of PAIA? And without expert support and interventions such as those of ODAC, TAC, and others, is it possible for people to exercise the power that PAIA gives them? If they cannot, how meaningful are these rights and powers in practice? These questions form the basis of the final section of this chapter. 6. WHOSE RIGHT IS ATI IN PRACTICE? THE INDISPENSABLE ROLE OF CIVIL SOCIETY

One of the key issues in any discussion of socio-economic rights is the question of their practice or enforcement. This section seeks to confront the issue of the accessibility of ATI, particularly in light of the possible constraints that arise from its being a legislative instrument, largely dependent on an institutional architecture (which currently does not exist) for its enforcement. We have alluded here and elsewhere to the difficulty in enforcing the rights of access to information as enshrined in PAIA, as information requests almost inevitably come up against the almost natural instinct of the State to obscure its workings,

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retaining some of its power in this way. Indeed, Calland raises the question: “Is PAIA worth having? If it is indeed like getting blood out of a stone to make PAIA work why bother?” (Calland, 2009: 16). We add here a further question: what can be done to render PAIA a more accessible instrument when claiming socio-economic rights? To answer the first two questions, PAIA is worth having because of the inversion of power relationships that it can prompt. Despite the difficulty of enforcement, it has the effect of eroding over time State secrecy and evasion. In some instances, such as that of the administration of the City of Cape Town, it results in the pre-emptive provision of information. The municipality now makes the minutes of all council meetings available on its website and runs meetings open to the public. Some recent proposals and developments have also held out the possibility of making PAIA a more user-friendly, albeit still imperfect, piece of legislation. It has already been noted that, as far as accessibility of ATI is concerned, it is preferable to keep cases out of court. Once a case reaches the point of litigation, it effectively moves out of the hands of the citizen and into the hands of the professionals. And although cases that affect large groups of people (public-interest cases, usually brought by professional civil society) can have far-reaching implications stemming from their precedents, for the purposes of everyday applications under PAIA, it is clear that the courts are not the most appropriate forum for enforcing these requests. Furthermore, “going to law is expensive and often the most disadvantaged groups are the least likely to know about their rights or to have the means to pursue them through the courts” (UN Development Programme and UN Millennium Campaign, 2009: 31), which is hardly appropriate to the needs of those whose socio-economic rights are under threat. Alison Tilley (2010), ODAC’s executive director, argues: The issue of quick, cheap remedies around access to information in the context of social and economic rights has become more important now than 10 years ago [when] it was a theoretical concern that communities not receiving services would become frustrated. Today’s reality is the service delivery protest.

This is an important point to take note of, as it suggests that it is less dissatisfaction with the delivery of services that is at the root of these violent outbreaks so much as a sense of frustration and dissatisfaction with the way the government relates to citizens. This is borne out by the fact that there are more of these types of protests in relatively better-resourced urban townships than in poorer, less resourced and less serviced rural areas. So what scope exists for making PAIA a more workable tool of access for leveraging other rights, especially in the hands of citizens? 6.1. Expanding ATI Jurisdiction – Magistrates’ Courts In 2009, in a development described as “long overdue” (Klaaren, 2010), procedural rules were introduced that will make it possible to bring PAIA requests to magistrates’

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courts. According to Klaaren, the new rules “fulfilled the last of the conditions necessary to enable enforcement of PAIA in the courts far more accessible to the majority of the national population than the High Courts” (Klaaren, 2010). What this effectively means is that PAIA requests can be enforced more cheaply and quickly, and without the need for relying on costly legal professionals to approach the High Court. This is not, of course, an entirely satisfactory solution, at least not on its own. It still means that ordinary citizens have to negotiate the labyrinth of the judicial system, and as crowded as the rolls of magistrates’ courts in South Africa are, it may not be the swiftest way to get relief either. And Klaaren notes that in assessing the ability of the courts to cope with the enforcement of PAIA requests, in 2003 there were six thousand PAIA applications (there are no current accurate figures). Recall that up to two-thirds of these requests are ignored in South Africa, so this would potentially result in four thousand such cases coming before the courts in one year alone. It is clear, therefore, that the extension of jurisdiction for PAIA to the magistrates’ courts, though welcome, is a necessary but not sufficient development to bring PAIA into the realm of enforceability for the majority of citizens. 6.2. An Information Commission? Litigation and enforcement through the courts are not the only options, although this is the model that has been employed until now. Given the inaccessibility of the judicial system, it is somewhat undermining of the rights enshrined in PAIA as powers to have them protected in this way alone. Although the South African Human Rights Commission (SAHRC) has until now played the role of the enforcement body for access to information, this is not its only or even its primary role. Rather, it has confined itself to promoting knowledge about PAIA, rather than acting as its watchdog. Civil society has long promoted the idea of an information commissioner as a discrete and independent entity in which ATI claims could be adjudicated and enforced. As Calland (2009: 13) notes: The greatest failing of PAIA is its enforcement mechanism – or rather, lack thereof. To appeal a denial, or a deemed refusal, an appeal must be lodged with the High Court. This represents, in many cases, a hammer to smash an acorn. As the Ad Hoc parliamentary committee chaired by Professor Kader Asmal appointed to consider the future of the Chapter 9 constitutional protection bodies noted, “The complex and potentially expensive appeals mechanism provided for in the legislation places further obstacles in the way of ordinary individuals wishing to access information. . . . [I] t is significant that only a handful of cases reach the courts.” (Parliament of the Republic of South Africa, 2007)

Accordingly, the committee recommended that a dedicated information commissioner be appointed within the SAHRC, and that the appointment be initiated

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immediately with a “ring-fenced” additional budget (Parliament of the Republic of South Africa, 2007). As the report observed, the submissions arguing for an independent information commissioner mandated to receive appeals and make binding orders on access and disclosure resulted from impatience with the capacity of the SAHRC to provide real teeth in implementing PAIA. Unfortunately, it seems as if this idea has been permanently shelved by the Parliament’s Ad Hoc Committee considering the issue, with the extension of jurisdiction to the magistrates’ courts, and by the introduction of the Information Tribunal into the current draft of the Protection of Personal Information Bill (Klaaren, 2010). ODAC notes that this will result in an information protection regulator whose mandate will include access to information: “This agency will have the responsibility for dealing with all sections of the Access to Information Act, but only in relation to promotion and monitoring. We believe that this will eventually be the cheap, accessible remedy which we have been arguing for” (ODAC, 2010: 8). Klaaren, however, does not share this optimistic assessment. He argues that the “very limited jurisdiction granted to the information tribunal” means that it indicates that this reflects a choice “to continue with enforcement through the judicial system” Klaaren (2010), which, as has been noted, is both disempowering and inaccessible to the majority of citizens. And Klaaren argues that this then raises a further imperative for advocates of ATI: “Given the continued state reliance upon and rolling out of this judicial enforcement model, how can stakeholders interested to effectively implement the right of access to information most effectively complement and supplement such enforcement?” (Klaaren, 2010). What this would seem to indicate, then, is that the role of professional civil society as the practitioners of ATI, the ones who are able to navigate the choppy waters of judicial enforcement, will endure. But as ODAC concludes in its 2010 report, for its part this translates into a more workable pro-poor strategy: “We will seek these new structures and laws to crack open the hard nut of access to information implementation. We intend to continue to focus on pro poor information requests, at local government level” (ODAC, 2010: 9). 7. CONCLUSION

Although PAIA is to be celebrated as a progressive piece of legislation, and although there is ample evidence of how ATI can help weaker political actors take on more powerful actors and demand accountability from them in relation to public services such as water and housing, it remains the case that as a legal remedy, PAIA is beyond the reach of most ordinary citizens, particularly those on the margins of socio-economic life. Thus, the theory of change advanced in this chapter – that claiming the right of access to information can operate as a power lever to procure political space and,

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thereby, to claim socio-economic rights – is necessarily subject to several caveats or qualifying conditions. First, the evidence in South Africa suggests that intermediaries are necessary; poorer communities cannot avail themselves of the opportunity provided by PAIA without the expert companionship of organisations such as ODAC. So, although civil society interventions make up some of this deficit, it is clear that insofar as the lever of access to information remains beyond the reach of most citizens, it is at best just one tool in the arsenal of those who fight for economic justice and equality in South Africa.28 It is instructive to learn from the ODAC case study and to observe how its strategy has shifted over the past ten years since PAIA came into force. Second, without an affordable, accessible, speedy, and specialist enforcement mechanism, such as an information commissioner, the right is unlikely to be widely claimed, and so information holders, especially in government, will continue to be able to hide behind the procedural flaw, safe in the knowledge that they can ignore requests for information with impunity, since very few cases will be brought in the High Court on appeal against these so-called mute refusals. Third, this in turn points to the core problem that is besetting South Africa’s realisation of the right of access to information and, thereby, severely circumscribing its potential as a leverage right, namely a lack of political will to properly and effectively implement PAIA. There are simply no champions in government capable of defending the principle of open government and public access to public information – as a progressive political principle – against attack. Since Tseliso Thipanyane, the former chief executive officer of SAHRC, emigrated to the United States at the end of 2009, it is impossible to point to any political or public service figure with the seniority, experience, or sheer political heft necessary to shift the re-emerging culture of institutional secrecy.29 In developing a new political strategy for claiming the right of access to information, thought must therefore be given to how best to identify and support champions of transparency in government who might be able and willing to arrest this trend. 28

29

Another example, for which we owe the reviewers of the chapter an acknowledgment, are the South African History Archives’ (SAHA) Freedom of Information Project: Building Capacity in the Community-Based Sector, which resulted in a pilot study in which the Tshwaranang Legal Advocacy Centre and Khulumani Support Group’s communities received extensive training on PAIA. This project has been extended to ‘capacitate’ Black Sash and GroundWork communities. One should also mention the recently formed information network involving ODAC, Nelson Mandela Foundation, Khulumani, SAHA, SAHRC, and others – the aim of this network is to popularise and promote the use of PAIA and to extend training on the use of PAIA. We say ‘re-emerging’ because, at the time of writing in late 2010 and early 2011, a major public furore was raving over the proposed Protection of Information Bill, whose draft provisions defining ‘national interest’ so broadly and vaguely would likely drive a stake through the heart of Section 32 of the Constitution. The bill represented the tip of an iceberg marked ‘secrecy’; the new administration, led by Jacob Zuma, despite claiming to be a more listening government than that of Mbeki, also

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Where, for example, is the best place to ask for information – the national level or the local level? Because ODAC has for two years in a row awarded its Golden Key Award to the City of Cape Town, it may be that there is merit in aiming at local government first and foremost, where the political stakes may be less controversial and the scope for building what the City of Cape Town calls ‘islands of excellence’ are greater. Now that it has been running for a number of years, it is also time to evaluate whether the ‘naming and shaming’ approach of ODAC’s Golden Keys and Rusty Padlocks is having any substantive impact on performance and compliance. Future strategies must focus, therefore, on the governance defects – the enforcement mechanism, especially – and on building stronger demand for transparency. Political will derives from a political calculation whereby the incentives for openness outweigh the incentives for secrecy. Recognising that access to information is a key part of the progressive vision of social transformation envisaged by the founding mothers and fathers of South Africa’s Constitution is a narrative that has only been partly told, and not with sufficient power or persuasiveness to advance the right. Ironically, the civil society campaign against the Protection of Information Bill – the R2K campaign30 – gathered considerable momentum and support in a short period of time, and it constitutes probably the biggest and widest civil society coalition since the passing of the Constitution in the mid-1990s. Building on the emerging National PAIA Civil Society Network,31 this new campaign could prove an important, perhaps decisive, step in establishing a coherent political demand for open governance, as many of the organisational members of the campaign coalition are ordinary communities whose principal concerns are related to public services but who recognise that secrecy is the enemy of socio-economic transformation and justice.

30 31

appears to be no less able to curb mounting levels of corruption and conflicts of interest at the heart of government procurement practice. The move towards secrecy is driven by a conservative, nationalist force within the African National Congress alliance that is determined to cover up its tracks where possible. This is hardly the conducive environment needed to promote open governance and the right of access to information. Between the time of writing and publication, the law has become known as the Protection of State Information Bill, and although it has been revised to bring it in line with many of civil society’s criticisms, the main sticking point remains the inclusion of a defence against criminal prosecution for disclosure of classified information ‘in the public interest’, for example to expose corruption. The bill was withdrawn in September 2011 for further public consultation, which did not take place, only to be railroaded through Parliament in November despite objections to the lack of a public-interest defence. Right2Know Campaign website at: http://www.r2k.org.za. Established in late 2008 to facilitate cooperation between civil society actors working to promote access to information through the implementation of PAIA. For further information on the National PAIA Civil Society Network, see http://www.saha.org.za/projects/national_paia_civil_society_network .htm.

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references Belski, Mariela (2007), Access to information: An instrumental right for empowerment (London: Article 19). Bezerra, Risela and Delport, Elize (2009), Mid-term review of the Norwegian cooperation with South Africa in the field of human rights. NORAD Collected Reviews (14) 2009. Available at: http://www.norad.no/en/tools-and-publications. Calland, Richard (2009), ‘Illuminating the politics and practice of access to information in South Africa’, in Kate Allan (ed.), Paper wars: Access to information in South Africa (Johannesburg: Wits University Press). Calland, Richard (2004), ‘Opening Up Rural India’, Mail & Guardian online: http://mg.co. za/article/2004-02-24-opening-up-rural-india. Calland, Richard, and Laura Neuman (2007), ‘Making the law work: The challenges of implementation’, in Ann Florini (ed.), The right to know: Transparency for an open world (New York: Columbia University Press), pp. 179–213. Darch, Colin, and Peter Underwood (2010), Freedom of information in the developing world: Demand, compliance and democratic behaviours (Oxford, UK: Chandos). Dimba, Mukelani (2002), ‘A landmark law opens up post-apartheid South Africa’ at http:// www.freedominfo.org/features/20020717.htm. Dimba, Mukelani (2008), ‘Access to information as a tool for socio-economic justice’, Pambazuka News, No. 372, 8 April. http://www.pambazuka.org/en/category/features/50591. Hohfeld, Wesley Newcomb (1919), Fundamental legal conceptions as applied in judicial reasoning (New Haven, CT: Yale University Press). Jagwanth, Saras (2002), ‘The right to information as a leverage right’, in Richard Calland and Alison Tilley (eds.), The right to know, the right to live: Access to information and socio-economic justice (Cape Town: Open Democracy Advice Centre). Jenkins, Rob, and Anne Marie Goetz (1999), ‘Accounts and accountability: Implications of the right-to-information movement in India’, Third World Quarterly, Vol. 20, No. 3, pp. 603–22. Jones, Peter (1994), Rights (London: Macmillan Press). Klaaren, Jonathan (2010), ‘PAIA through the Courts: Case law and important developments in PAIA litigation’, paper presented at the 2010 Open Democracy Review Meeting, ‘The First 10 Years of Implementation of Access to Information and Whistleblower Protection Laws in South Africa,’ Cape Town, 12 March. Leftwich, Adrian (2008), Developmental states, effective states and poverty reduction: The primacy of politics (Geneva: UN Research Institute for Social Development Project on Poverty Reduction and Policy Regimes). Makhalemele, Teboho (2005), Summary of case law in terms of the promotion of Access to Information Act – The South African experience (Cape Town: Open Democracy Advice Centre). Murdock, Graham, and Peter Golding (1989), ‘Information poverty and political inequality: Citizenship in the age of privatized communications’, Journal of Communication, Vol. 39, 180–95. Open Democracy Advice Centre (2006), Evaluation of ODAC’s right to know, right to live outreach strategy – 2001 to 2005 (Cape Town: Open Democracy Advice Centre). (2010), The right to know, the right to live: Turning the right to information into a living reality (Cape Town: Open Democracy Advice Centre). Open Society Justice Initiative (2004), Open Society Justice Initiative access to information monitoring tool: Report from a five-country pilot study (New York: OSI).

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(2006), Transparency & silence: A survey of access to information laws and practices in 14 countries (New York: OSI). Parliament of the Republic of South Africa (2007), Report of the ad hoc committee on the Review of Chapter 9 and Associated Institutions. Report of the National Assembly of the Parliament of South Africa, Cape Town, South Africa. Ray, Brian (2008), ‘Occupiers of 51 Olivia Road v City of Johannesburg: Enforcing the right to adequate housing through “engagement”’, Human Rights Law Review, Vol. 8 No. 4, pp. 703–13. Roberts, Alasdair (2010), ‘A great and revolutionary law? The first four years of India’s Right to Information Act’, Public Administration Review, Vol. 70, No. 6, pp. 925–33. Tilley, Alison (2010), ‘The usage of the Promotion of Access to Information Act experiences: Achievements and challenges’, paper presented at the 2010 Open Democracy Review Meeting, ‘The First 10 Years of Implementation of Access to Information and Whistleblower Protection Laws in South Africa’, Cape Town, 12 March. UN Development Programme and UN Millennium Campaign (2009), The MDGs through socio-economic rights: Constitution making and implementation handbook (Bangkok: UN Millennium Campaign).

13 Gender and Socio-Economic Rights The Case of Gender-Based Violence and Health Liesl Gerntholtz* and Jennifer MacLeod**

1. INTRODUCTION

Gender inequality is pervasive in South Africa, and the domain of socio-economic rights is no exception. However, strategies addressing the intersection of socioeconomic rights and gender inequality have been relatively rare. This is despite scholarship and a constitution that emphasises the close interaction between these rights. De Vos (2001: 52) argues that equality and socio-economic rights are “symbiotically linked”; Liebenberg and Goldblatt (2007: 339) reveal their “interpretative interdependence”; and Fredman (2009: 410) has advocated the “engendering” of socio-economic rights to accentuate the interlinkage. In Fredman’s (2009: 425) view, socio-economic rights will help “achieve genuine change” only when they are infused with gender equality. One outlier in this area is efforts by various actors to address the severe impacts of gender-based violence on women’s right to health. This particular interconnection between women’s civil and socio-economic rights has spawned a range of legal and non-legal strategies that provide opportunities for comparative analysis. In this chapter, we set out four high-profile strategies and analyse their success or otherwise in dealing with gender inequality in women’s right to health. The first two concern attempts to reform government policy on violence against women in the areas of sexual assault and domestic violence. The different approaches of the South African Gender based Violence Initiative and the Tshwaranang Legal Advocacy Centre are placed in the spotlight. This is followed by two case studies that examine the * Liesl Gerntholtz is the director of the Women’s Rights Division, Human Rights Watch, based in New York, and previously worked with various civil society organisations in South Africa, including as director of the Tshwaranang Legal Advocacy Centre (TLAC). ** Jennifer MacLeod is a Harvard Law School Public Interest Fellow currently working at the SocioEconomic Rights Institute of South Africa (SERI). The authors are grateful to the editors and to Julia Kim for their thoughtful comments on an earlier version of this chapter.

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connection between gender violence and HIV/AIDS. In the Refentse case study, attempts were made to pilot a policy of providing post-exposure prophylaxis (PEP) to rape survivors; and the Treatment Action Campaign (TAC) worked to provide medication to pregnant women with HIV. The chapter begins in Section 2 by setting out the connections between gender inequality and socio-economic deprivation, with a particular focus on the effects of gender-based violence on the right to health. This is followed by the case studies in Section 3, and an effort is made to draw some general conclusions in Section 4 despite the limitations of the comparative approach. A particular emphasis is placed on the degree of confrontation in strategies and the nature of alliance building. A focus on these variables may help in moving forward on socio-economic rights and gender inequality in the future. 2. GENDER INEQUALITY AND SOCIO-ECONOMIC DEPRIVATION

Socio-economic deprivation is not gender-neutral (United Nations, 1995).1 Globally, the socio-economic status of women is almost uniformly lower than that of men. Women make up 70 per cent of the world’s poor, earn on average three-quarters of their male counterparts, occupy predominantly precarious or part-time employment, and make up two-thirds of the global illiterate population.2 In addition, they remain primarily responsible for care of the young, elderly, and sick, and for ensuring access to basic services. Yet despite these contributions, such work is undervalued and frequently unpaid. The double burden of labour, inside and outside the home, means that women often work longer hours than men. They have significantly less access to housing, land, and sources of credit, and they are less likely than their male counterparts to be beneficiaries of social protection such as pensions (Fredman, 2009: 412–16; Liebenberg and O’Sullivan, 2001: 72–73). This global picture is replicated in South Africa. For many South African women, the constitutional promises of a “society based on democratic values, social justice and fundamental human rights” and the improvement of the “quality of life of all citizens”3 remain distinctly unfulfilled. This is despite the fact that the Constitution explicitly mandates the recognition and redress of inequality as regards the implementation of other rights. Article 9(2) states that “equality includes the full and equal enjoyment of all rights and freedoms” and expressly permits affirmative action: “To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination, may be taken.”

1

2

3

See also South African Journal on Human Rights vol. 24(3) (2009), which released a special issue containing a number of articles dealing with socio-economic rights and gender. See the UN statistics website, Women at a Glance, http://www.un.org/ecosocdev/geninfo/women/ women96.htm. Constitution of the Republic of South Africa, 1996, Preamble.

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The necessity of addressing equality as part of other rights has been recognised by the Constitutional Court. In Minister of Finance and Another v Van Heerden, Justice Moseneke opined that equality is “a core and foundational value [which] must inform all law.”4 He states that the Constitution “imposes a positive duty on all organs of State to protect and promote the achievement of equality – a duty which binds the judiciary too.”5 In Khosa and Others v Minister of Social Development and Others, the Court focused on the connection between socio-economic rights and equality. Writing for the majority, Justice Mokgoro stated, “Equality in respect of access to socio-economic rights is implicit in the reference to ‘everyone’ being entitled to have access to such rights in section 27.”6 She went on to recognise that “the socio-economic rights in our Constitution are closely related to the founding values of human dignity, equality and freedom”.7 As we explain in detail here, this recognition has not always permeated the adjudication of socio-economic rights. As the TAC case study demonstrates, in the jurisprudence of the Court there has been little more than superficial deference to the principles set out here (see Section 3.4). In Government of the Republic of South Africa and Others v Grootboom and Others, the Court formally recognised that “socio-economic rights must all be read together” and that “their interconnectedness needs to be taken into account in interpreting the socio-economic rights”.8 However, it did not in its judgment or in its order recognise the special deprivation and needs of the women involved (see further Chenwi and McLean, 2009). In Mazibuko, the gender claims of poor women to improved access to water supply did not even feature in the reasoning of Justice Reagan as she dismissed all claims.9 It is clear that, at least superficially, there has been recognition of the interaction of these rights at the constitutional and judicial level. However, it has been difficult to identify civil society strategies that have incorporated this interconnection and that have built on both the right to equality and socio-economic rights. One exception is strategies that seek to tackle the impact of gender-based violence on women’s health. In this chapter, we therefore focus on the effects of these approaches. This, it is hoped, will illuminate strategies in the future that will expand beyond the right to health and into other areas of socio-economic rights. 2.1. Gender-based Violence in South Africa Gender-based violence encompasses all forms of violence based on a person’s gender and includes rape and sexual assault, domestic violence, homophobic hate crimes, 4 5 6 7 8

9

Minister of Finance and Another v Van Heerden 2004 (11) BCLR 1125 (CC) at 22. Ibid. at 24. Khosa and Others v Minister of Social Development and Others 2004 (6) BCLR 569 (CC) at 42. Ibid. at 40. Government of the Republic of South Africa and Others v Grootboom and Others 2000 (11) BCR 1169 (CC), para. 25. Mazibuko and Others v City of Johannesburg and Others 2010 (4) SA 1 (CC).

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and harassment and stalking. Gender-based violence is most often perpetrated by men against women, and it is widely recognised as a global phenomenon. Despite this, there is a paucity of global data on the scope, prevalence, and incidence of violence against women. In 2006, the General Assembly supported the call of the secretary-general to develop a set of global indicators that would assist countries at a national level to collect sufficient and relevant data on violence against women. While some progress in this regard has been made, a 2010 UN report indicated that current available data continued to only provide a “limited source of information, and statistical definitions and classifications require more work and harmonization at the international level” (UN, 2010: 127). The data that currently exist also do not easily allow for cross-country comparisons (ibid.). South Africa is frequently referred to as the rape capital of the world. This reference is obviously sensationalist, and hard to prove or disprove, but women living in South Africa are subject to extraordinarily high levels of gender-based violence, including sexual violence. In 2010, 51.3 per cent of women interviewed in Gauteng Province said that they had been subjected to some form of gender-based violence (Medical Research Council and Gender Links, 2010). In 2009–10, 68,332 sexual offences were reported to the police (South African Police Services, 2010).10 These figures are likely to be an under-estimation of the actual numbers of rapes that occur. It is widely accepted that rape is an under-reported crime, and one study has suggested that as few as one in ten rapes are reported to the police (Jewkes et al, 2000: 421–28). Accurate statistics on domestic violence are equally difficult to obtain, which is reinforced by the practice of the South African Police Services, which does not classify “domestic violence” as a specific crime. However, several research studies, such as Jewkes and colleagues (2000) and Hirschowitz and colleagues (2000), and anecdotal information from non-governmental organisations (NGOs) working in this area, suggest that South African women experience extremely high levels of violence at the hands of their intimate partners. A widely cited study in three provinces found that 27 per cent of women in the Eastern Cape, 28 per cent in Mpumalanga, and 19 per cent in Northern Province had experienced physical abuse during their lifetime, by their partner or ex-partner (Jewkes et al, 2000). This is comparatively high. A later World Health Organisation (WHO) survey on the percentages of everpartnered or ever-married women who have experienced physical violence from a partner or spouse during their lifetime found that the incidence of violence ranges from 6 per cent in China and Hong Kong, and 7 per cent in Canada, up to the most severe levels of 48 per cent in Zambia, Peru, and Ethiopia (WHO, 2005). At the most extreme end of the continuum of violence against women, more than half of women who were murdered in 1999 were killed by an intimate partner 10

These offences are defined in terms of the extended definition of sexual assault in the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, which include non-vaginal penetration and sexual offences against men and boys.

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(Abrahams et al, 2009: 546–56). Seedat et al (2009)11 suggest that this is the highest prevalence rate reported of the countries where such data are collected. 2.2. The Effect of Gender-based Violence on Socio-Economic Rights Violence directly impacts the socio-economic rights of women. In cases of domestic violence, eviction by abusive partners is common. In 2006, a small study found that fourteen out of thirty-two women interviewed about domestic violence in South Africa had been forced to leave their homes (Vetten and Hoosain, 2006). In an earlier study in 1999 in an informal settlement in the Western Cape, domestic violence accounted for 20 per cent of moves recorded in the study (Ross, 1999). Suitable alternative accommodation, both urgent and transitional, may be limited and not readily available to women and their children (Combrinck, 2009), thus leaving their rights to housing and shelter compromised (Tshwaranang Legal Advocacy Centre, 2007). Moreover, poor socio-economic conditions contribute to the incidence of violence: women are unable to leave violent relationships if they have no alternative housing and are dependent on male partners for housing.12 As the UN Special Rapporteur on Violence against Women (2000: 15) stated, “Inadequate housing provides living conditions that are conducive to violence.” Gender-based violence hinders access to education of both women and girls. According to a Human Rights Watch (2001) study in three provinces (KwaZulu Natal, Western Cape, and Gauteng), girls were subject to sexual violence by teachers and fellow pupils. Many reported that their performance at school had suffered after the assault and that they had lost interest in school, and some stated that they had left school altogether. The effects of such violence may also reduce women’s access to the public sphere and, consequently, economic advancement. Domestic violence has a detrimental effect on children’s rights, including their right to education and health. Such effects can reverberate in different ways. One South African study examined the impact of maternal imprisonment on children whose mothers killed an abusive partner. It found that “children living in the family had an immediate change in their lifestyle and accommodation after their mothers went to prison,” which “included for most a drop in living standards” (Bhana and Hochveld, 2001: 29). The right perhaps most directly affected by gender-based violence is the right to health. According to the UN Committee on the Elimination of Discrimination against Women (CEDAW), “gender-based violence is a critical health

11

12

There are limited comparable international data on this point, as not many countries have collected reliable data on intimate partner homicides. However, from the available data it is clear that South Africa has a very high rate of such violence. This may be particularly evident for farmworkers; see Sunde and Gerntholtz (1999).

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issue for women.”13 This fact triggers an “obligation to protect rights relating to women’s health”: in particular, requiring “States’ parties, their agents and officials to take action to prevent and impose sanctions of rights by private persons and organisations”.14 This interconnection between gender-based violence and the right to health is particularly pronounced in the context of a large HIV epidemic. According to CEDAW: [T]he issues of HIV/AIDS and other sexually transmitted diseases are central to the rights of women and adolescent girls to sexual health . . . as a consequence of unequal power relations based on gender, women and adolescent girls are often unable to refuse sex or insist on safe and responsible sex practices.15

South Africa has the highest number of people living with HIV in the world (UN Joint Programme on HIV/AIDS, 2009), and women continue to bear the burden of the epidemic. Women younger than twenty years of age are disproportionately affected: they have three to six times the rate of infection of young men of the same age (Padayatchi et al, 2010: 89). HIV also plays a significant role in maternal deaths, with rates of death of pregnant women with HIV almost ten times higher than those of pregnant women without HIV (Padayatchi et al, 2010: 3). Physiologically, women and girls are more vulnerable than men to HIV infection during unprotected vaginal sex (Rey et al, 2000: 695–701).16 In addition, and particularly in South Africa, rape may be associated with more violence and may carry an increased risk of physical injuries and HIV infection. A 2003 rape attrition study in Gauteng showed that 57.5 per cent of rapes resulted in some form of ano-genital injury, which is higher than has been reported in similar studies in developed countries (Vetten et al, 2008: 8). Moreover, it found that almost one in five rapes involved multiple perpetrators, another factor that is likely to increase the risk of HIV transmission during rape. Another study found that the HIV prevalence amongst men who admitted that they had raped was 19.1 per cent (Medical Research Council, 2009). Men in the age range of twenty-five to forty-five years had particularly high rates of HIV, in excess of 25 per cent, and it is men in this age group who are most likely to rape. In addition to HIV, there are numerous other health consequences associated with gender-based and sexual violence. The WHO’s ten-country study of the health consequences of domestic and intimate partner violence concludes that violence against women “is a major contributor to the ill health of women” (WHO, 2005: vi). 13 14 15 16

General Recommendation No. 24, Women and Health, UN Doc. No. A/54/38/Rev.1, para. 15. Ibid. Ibid. at para. 18. The risk of HIV transmission in consensual sex is estimated at between 0.8 per cent and 3.2 per cent for unprotected, receptive anal intercourse, and between 0.0 per cent and 0.15 per cent for receptive vaginal intercourse.

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Women are at risk of death through femicide, suicide, HIV, and maternal mortality; they suffer from fractures, chronic pain, disability, fibromyalgia, and gastro-intestinal disorders; and they are at risk of sexual and reproductive health issues that include unwanted and unplanned pregnancy, abortions, and fistulas. Psychological and behavioural results can manifest in depression, drug and alcohol abuse, eating and sleeping disorders, poor self-esteem, post-traumatic stress disorder, and self-harm (Mullik et al, 2010: 53). 3. GENDER-BASED AND SOCIO-ECONOMIC RIGHTS: CASE STUDIES

The so-called second wave of feminism that developed in Europe and North America in the late 1960s and 1970s included a strong focus on violence against women, on the basis that it was a critical source of women’s oppression (Brownmiller, 1975; Park, Fedler, and Dangor, 2000). These developments were influential in South Africa, with the first feminist rape crisis centre opening in Cape Town in 1976. This was followed by People Opposing Women Abuse (POWA), which was established in Johannesburg in 1979 and opened its first shelter for battered women in 1979. In April 1992, approximately eighty organisations representing women formed the Women’s National Coalition. Partly fuelled by the exclusion of women in the forums negotiating the transition to democracy, the coalition campaigned around the Women’s Charter for Effective Equality, which included provisions on violence against women. The 1996 Constitution subsequently recognised gender equality, both as a foundational value of the new democratic order and as a substantive right. It also states that everyone has the right to be free from all forms of violence, whether from public or private sources. A number of major initiatives have been taken by the government to address women’s health in the context of gender-based and sexual violence. These have included the passage of legislation on domestic and sexual violence,17 and the establishment of various state institutions to address and respond to violence against women. The latter includes specialised sexual offences courts and one-stop centres, known as the Thuthuzela Care Centres (TCC), which aim to provide comprehensive integrated services to survivors of sexual assault. Turning to specific civil society strategies in the wake of the transition, our choice of case studies was influenced by attempts to represent a wide range of strategies of engagement with government and other actors. Rather than focusing only on legal advocacy and litigation, we have recognised the importance of other strategies, including those based in health-care service provision, policy advice, and 17

The Prevention of Family Violence Act was passed in 1993 and was later replaced by the Domestic Violence Act in 1998. The Sexual Offences Act was passed in 2007.

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collaboration with other actors across various sectors. Many of the case studies draw on an explicitly gendered focus, but some did not base themselves deeply in this paradigm. We begin with attempts to change government policy surrounding gender-based violence before focusing on HIV-related strategies. 3.1. The South African Gender-based Violence and Health Initiative and Sexual Assault Policy Before 1999, government-employed district surgeons provided sexual assault care, including the provision of medical care to survivors of sexual assault and the collection of forensic evidence. A 1995 report indicated that the “reputation of district surgeons amongst women’s organisations . . . is horrendous” (Human Rights Watch, 1995). In 1999, the Department of Health changed the policy to ensure that any doctor could provide post-rape care and to make primary health-care facilities the first access point for services for survivors of sexual violence. Whereas these changes were important in recognising the limitations in available services and sought to address the lack of quality, they failed to provide a full package of care to survivors of sexual assault. Civil society organisations remained concerned about the failure to meet the health needs of survivors of sexual violence and the lack of high quality medico-legal examinations. In response, in 2000, the South African Gender Based Violence Initiative (SAGBVHI) was formed. A partnership of fifteen organisations, which included a diverse set of actors such as clinicians, researchers, and activists,18 the primary objective was to contribute to “an effective health sector response to gender based violence (Jewkes, n.d.). The group immediately undertook strategic advocacy with the Department of Health to persuade it to improve its response to sexual violence. This eventually resulted in the development of an “informal partnership” between the Department and SAGBVHI to develop both a policy and later training on the policy for health-care workers (Jewkes, n.d.). A key member of SAGBVHI commented that the “building blocks . . . were partnership and collaboration in research, policy drafting and the development of training” (Jewkes, n.d.). In addition, all stakeholders were willing to learn and share information and were “primarily motivated to improve sexual assault services” (Jewkes, n.d.). On the strength of the partnership, SAGBVHI was asked to conduct a situational analysis for the department to assess the state of sexual assault services nationally. The research concluded that “services were in a mess” 18

The founding members of SAGBVHI were the Medical Research Council, Soul City Institute for Health Development Communication, University of Cape Town Department of Forensic Medicine and Toxicology and the Department of Nursing and Midwifery, Centre for the Study of Violence and Reconciliation, Empiliswemi-Woodlands AIDS Education and Training Centre, Health Systems Development Unit, African Medical Research Foundation South Africa, Ciskei Nursing College, Planned Parenting Association of South Africa, and Centre for Health Policy.

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(Jewkes, n.d.) and that there were systemic failures in the provision of both health and medico-legal services to survivors of sexual violence (SAGBVHI, 2003). When the Department of Health agreed that a new policy was required, SAGBVHI was asked to be part of, and later to chair, the drafting team. The policy, developed during a two-year consultative process, was released by the minister of health in 2005 and represented a significant departure from previous practice. Although socio-economic rights were not referenced directly in the campaign, perhaps because it was largely driven by public health specialists and not lawyers, it is clear that the focus on the detrimental impact of sexual assault on women’s health, persuaded the government to act to protect women’s health rights. In the introduction to the policy, the then minister of health explicitly recognised the links between gender-based violence and health and the obligation of the State to respond; she highlights “the holistic approach towards the management of sexual assault together with an overall focus on the general improvement of women’s health and quality of life” (Department of Health, 2005: 3). The policy recognises that sexual assault has severe implications for women’s health, and the National Management Guidelines that accompany the policy actively seek to address the full range of health consequences, including the treatment of injuries sustained during the assault, the prevention of unwanted pregnancy, the prevention and treatment of HIV and other sexually transmitted infections, and the provision of psycho-social care. Following the introduction of the policy and the clinical management guidelines, the Medical Research Council (MRC) received funds from the Department of Health to develop a national training curriculum for service providers, and some service providers from all provinces were trained in the policy. Although there have been implementation challenges that have hampered the effectiveness of the policy, including limited trained personnel, judgmental attitudes on the part of the police and health-care workers, and other barriers to care, the policy has played a critical role in ensuring that more survivors of sexual violence obtain appropriate care and support. In assessing the success of the partnership, Rachel Jewkes (n.d.), of the Medical Research Council, concludes that the relationship of trust developed with the department was critical. This enabled joint ownership of the project by the parties, and SAGBVHI’s willingness to keep a low profile helped secure government buy-in. 3.2. The Tshwaranang Legal Advocacy Centre and Domestic Violence Domestic violence is the “most common form of violence experienced by women globally” (United Nations, 2006: 37). The links between domestic violence and health are increasingly clear, with a growing body of research that suggests that violence “places women at higher risk for poor physical and reproductive health”

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(United Nations, 2006: 48). Domestic violence overwhelmingly affects women, and it is a marker of gender inequality worldwide. It is therefore a further key area in which issues of socio-economic and equality rights overlap. However, in contrast to the SAGBVHI initiative, attempts to persuade the Department of Health to develop a similar policy on domestic violence have been less successful. South Africa possesses a strong legal framework on domestic violence: the Domestic Violence Act 116 of 1998 contains a broad definition of domestic violence, which includes physical and sexual violence, emotional and financial abuse, destruction of property and stalking (Section 1). The legislation introduced an innovative system of protection orders for victims of domestic violence which allows them to seek interim protection without giving prior notice to the alleged perpetrator (Section 4). For the protection order to be made final, the perpetrator must be given notice and permitted to come to court to argue the case (Section 6). The law also introduced a number of provisions that recognise the links between socio-economic rights and domestic violence e.g. a victim of domestic violence can obtain a court order to prevent a perpetrator from entering a joint residence or from residing therein (Section 7(1)). This provision seeks to limit homelessness amongst victims of domestic violence and to enhance poor women’s ability to seek protection from a partner who provided her, and her children, with housing and shelter. The law also permits a victim to claim emergency monetary relief from an abuser or the court to order payment of a mortgage or rent (Section 7(4)). Crucially, the legislation identified specific responsibilities and duties of key actors, including the South African Police Services (Section 2). In contrast to sexual violence, there is however a much less developed health-sector response to domestic violence. The Domestic Violence Act does not explicitly mention the role of the health sector in responding to domestic violence, although it does refer to the health needs of the victims and places an obligation on police officers to “render any assistance to the complainant . . . including medical treatment” (Section 2). This obligation exists both at the time that the incident occurs and when it is reported to the police. There is no general health-sector policy to guide the provision of health services to women in connection with domestic violence. Such guidance as does exist is fragmented and piecemeal.19 As early as 2003, activists recognised the crucial role that the health sector plays in addressing domestic violence. A report examining proposed policy and management framework for domestic violence for the health sector indicated that domestic 19

The Primary Health Care Package for South Africans (DOH, 2000a), the HIV/AIDS and STI National Strategic Plan (2007–2011; DOH, 2007a), and the five-year implementation plan on the Service Charter for Victims of Crime (DOH, 2007b) all contain some elements of a health-sector response to domestic violence. The National Guideline on the Prevention, Early Detection/Identification, and Intervention of Physical Abuse of Older Persons at Primary Level (DOH, 2000b) is considered “both a model and a starting point for a domestic violence policy and guidelines” (TLAC, 2009b).

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violence was largely considered a criminal justice issue and was an “undetected public health policy issue” (Martins and Jacobs, 2003: 1). In 1996, the Tshwaranang Legal Advocacy Centre (TLAC) was established to advocate for the rights of women who had suffered gender-based violence. The centre initially focused on legal advocacy, identifying this as a gap in the continuum of work being done to protect and promote the rights of survivors of gender-based violence. Later, the TLAC broadened its focus to include training, research, and legal service provision. The TLAC was deeply involved in the drafting of the Domestic Violence Act, with the founding director sitting as a member of the South African Law Commission’s (SALC) committee on domestic violence. The TLAC made several submissions to the SALC, and many of its recommendations were eventually incorporated in the 1998 legislation. The TLAC, however, became increasingly concerned about the implications of a lack of clear policy guidance to health-care workers. In August 2008, it convened a roundtable meeting of civil society organisations, academics, Health Department officials, and service providers to develop a consensus around the need for a health sector policy on domestic violence and to discuss “fleshing out the nature of such a policy” (TLAC, 2008: 2). In pushing for the Department of Health to develop a policy, the TLAC identified several strategic and high profile opportunities to undertake public advocacy on the policy gap, including making submissions to parliamentary committees and assessing the progress in the HIV/AIDS and Sexually Transmitted Infections National Strategic Plan (NSP) towards addressing domestic violence (TLAC, 2009a, b). This public advocacy sought to foreground both the profound health consequences of domestic violence and the implications of the failure to adequately address these for women’s health, and, importantly the obligations imposed by the constitution to address access to health care. TLAC also conducted research to identify the services that women currently used in connection with gender-based violence and how responsive these services were to their needs. The study assessed the use of the criminal justice system, the health system, and the services provided by TLAC. After examining 942 records of domestic violence, including hospital charts from the local hospital, the study found that the majority of women sought help from the police, and “the health service was the least able to respond to cases of abuse” (TLAC, 2009c: 6). The study concluded that health-care workers rarely enquired into the identity of the perpetrator of the assault or made referrals to existing services, both within the hospital and in the surrounding community. Only 6.4 per cent were referred to the police, and a dismal 3 per cent to a social worker or psychiatric nurse (TLAC, 2009c: 6).TLAC hoped, by publicly launching the research as part of a series of policy briefs on violence against women, it could spotlight how the health system was potentially failing survivors of domestic violence and consequently assist in persuading the Department of Health to develop a policy.

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However, despite these efforts, the Department of Health was reluctant to adopt a policy to deal with the health-related effects of domestic violence, and the campaign eventually lost momentum. This means that victims continue to lack the support that they need from the health sector in dealing with violence, which leaves them in considerable danger and vulnerable to ill-health and injuries associated with domestic violence. 3.3. The Refentse Project and the Provision of Post-exposure Prophylaxis Rape and other forms of sexual violence undermine the health of women, including by exposing them to the risk of HIV. The links between HIV and gender-based violence have been widely recognised. By 1998 they had emerged as a key issue in the international discourse, and were included in the International Guidelines on HIV/AIDS and Human Rights, jointly published by the Office of the High Commissioner of Human Rights and the UN Joint Programme on HIV/AIDS (UNAIDS). The Guidelines recognised the disproportionate impact of the epidemic on women and recommended that all counties enact laws to protect women’s reproductive and sexual rights, including their right to legal protection against sexual violence. Countries were also urged to work towards the elimination of violence against women, harmful traditional practices, sexual abuse, early marriage, and female genital mutilation. As set out already, in South Africa the combination of high levels of gender-based violence and HIV transmission have compounded the epidemic and have left women bearing the brunt of the disease. The provision of antiretroviral drugs, including as treatment for people living with HIV, post-exposure prophylaxis (PEP) to rape survivors and treatment to reduce the risk of mother to child transmission, has been a contentious issue in South Africa.20 In 1999 President Thabo Mbeki began to question the links between HIV and AIDS and the efficacy of antiretroviral drugs in the management of disease progression. In a speech to the National Council of Provinces in October 1999, he specifically questioned the efficacy of zidovudine (AZT), suggesting that it posed a risk to health.21 The government was soon involved in a heated public dispute with civil society activists, public health practitioners, and scientists from all over the world.

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Post-exposure prophylaxis is a twenty-eight-day antiretroviral treatment regime that may sometimes reduce the risk for HIV infection after non-occupational exposure. Though randomised, placebocontrolled clinical trials of PEP have never been conducted, but the provision of PEP to reduce the risk of HIV transmission following sexual assault has been widely encouraged in the United States and elsewhere. A study followed 510 rape survivors in South Africa who received PEP within seventy-two hours. Of those, 471 returned for follow-up at six weeks and only one had seroconverted. Address of the President of South Africa, Thabo Mbeki, at the National Council of Provinces, Cape Town, 28 October 1999, Government of South Africa, Department of International Relations and Co-operation, http://www.dfa.gov.za/docs/speeches/1999/mbek1028.htm.

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The national government had steadfastly declined to make any antiretrovirals available in the public health system and eventually became engaged in a bitter, high-profile court battle with the TAC about its refusal to provide nevirapine to pregnant women to reduce the risk of HIV transmission to infants (as is discussed herein). PEP was not immune from the controversy surrounding ARV treatment. An NGO that had attempted to provide PEP to rape survivors in a hospital in Mpumalanga had been evicted by the member of the Provincial Executive Council for Health in 2000. The hospital superintendent who had supported the provision of post-rape services by the NGO, including PEP, was suspended and charged with misconduct. Only the Western Cape had successfully taken any steps to include PEP in a package of care for sexual assault survivors. In April 2002, the Cabinet unexpectedly announced that the Department of Health would provide PEP to rape survivors. The announcement is likely linked to the interim ruling in the TAC’s case (Artz and Smythe, 2008: 178). Following the announcement, plans were made to roll out a treatment plan for rape survivors (Artz and Smythe, 2008). A treatment protocol was released in May 2002 requiring that PEP be offered to all rape survivors over the age of fourteen years who presented to a health facility within seventy-two hours after the assault and who tested HIV negative (Department of Health, 2002). This was followed by an announcement in October 2002 that funds would be provided to cover the costs of medication, training, and other requirements of the programme. In 2003, the Cabinet approved a new five-year plan for comprehensive treatment and care for people living with HIV, which re-affirmed its commitment to provide PEP to rape survivors (Department of Health, 2003). The roll-out of services, however, was uneven, with provinces developing their own implementation plans in the absence of a national implementation plan and strategy (Kistner, 2003). By 2003, the Western Cape, Gauteng, KwaZulu-Natal, and Free State Province had all, to varying degrees, rolled out PEP programmes (Kistner, 2003). The lack of national directives, along with a lack of training, funding, and staff, delayed full country-wide implementation (Kistner, 2003). Almost two years after the announcement of the policy, a Human Rights Watch (2004) investigation revealed that health-care providers, police, and rape survivors remained unaware of the policy. The report suggested that PEP was “generally unavailable outside major urban areas, effectively barring access for many poor, rural rape survivors” (Human Rights Watch, 2004: 2). The report also identified problems concerning the completion of the twenty-eight-day regime and the lack of coordination amongst service providers as key barriers to access to PEP. In this context, the Refentse project sought to develop and test a model of service provision that would support rural women’s access and adherence to PEP following sexual assault. At the time, a systematic approach to post-rape services and PEP had not yet been established, and within provinces, individual hospitals, clinics, rape crisis centres, and NGOs, approaches to the provision of PEP were being developed

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on an ad hoc basis, with little systemic monitoring or evaluation. The Refentse project was one of the few initiatives that sought to test the feasibility, effectiveness, and cost of implementing a nurse-driven, integrated post-rape care programme, including PEP, within the rural, public-sector health service. Tintswalo Hospital, in Mpumalanga Province, operated a post-rape service for rape survivors. Following the Cabinet announcement, the hospital included PEP in the package of care for sexual assault survivors. At the time, rape survivors who presented within seventy-two hours received a PEP starter pack (a three-day supply of medication) and were asked to return to the hospital within two days for followup and to receive the rest of the twenty-eight-day supply. At this visit, they were tested for HIV, and if the test was negative, they were given the remainder of the medication (Kistner, 2003). Although the hospital had trained a number of counsellors to provide voluntary HIV testing and counselling on a twenty-four-hour basis, there was only one nurse who had been trained on the PEP protocol, and this created an “overwhelming” caseload (Kistner, 2003: 23). The single nurse was required to provide information and counselling about PEP, address the trauma that rape survivors had recently experienced, and provide follow-up counselling. Research by the Rural AIDS Development and Action Research (RADAR)22 conducted at the hospital in March 2003 painted a deadly picture of the provision of PEP:23 Among those who presented within sufficient time to receive PEP, about half were automatically excluded from eligibility because VCT was unavailable at the time. Among those who did receive VCT and were eligible for PEP, the majority either received a starter pack (3 day regimen) or nothing at all. And of those offered starter packs, only 14 per cent managed to return to hospital more than once to receive a full course. Taken all together, among those who presented in time for PEP, and should have been eligible, only 16 per cent ultimately received a full 28-day course of PEP. (Kim et al, 2007: 6)24

Following the diagnostic phase, a nurse-driven intervention model was designed and introduced to the hospital in March 2005 (Kim et al, 2009). The model was carefully developed to take into account the realities of providing post-rape care in a public hospital in a rural area, and it was envisaged that, should the intervention prove successful, it would serve as a model to scale up the provision of PEP in rural 22

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RADAR is a collaboration between the School of Public Health of the University of the Witwatersrand and the London School of Hygiene and Tropical Medicine. The programme comprises clinical and social intervention research on HIV and AIDS. This included key informant interviews with sixteen service providers, including doctors, nurses, social workers, pharmacists, and police officers. Fifty-five questionnaires were also completed by service providers, and 144 medical charts were reviewed. VCT is voluntary HIV testing and counselling – in the model, HIV testing is preceded by counselling that seeks to explain the reasons for the test and potential outcomes before obtaining informed consent for the test. The test is followed by post-test counselling.

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South Africa. In this regard, the researchers paid specific attention to the costs of the service, in the hope that findings on the cost effectiveness of the intervention would prove persuasive with government.25 Researchers from RADAR were keen to ensure that all key stakeholders were included in the process, and so they established a sexual violence advisory committee to ensure the participation and buy-in of all the stakeholders, including members of the police services and other staff members of the hospital involved in the provision of care to survivors of sexual violence. The committee provided a useful space for stakeholders to meet and discuss issues arising from the project and almost certainly contributed to the success of the project in the hospital. The committee was clearly persuaded of the value of the approach of the researchers and supported the work until the end of the research project and afterwards. The project also made provision for raising awareness about sexual violence, HIV, and PEP amongst the communities that might have need for the service. Pamphlets were handed out at community events, and the nurses at primary health-care facilities were trained to provide information at the regular morning health talks. The evaluation of the project at the end of the intervention showed significant improvements in the provision of post-rape care: patients were “more likely to report having received a full 28 day course of treatment on their first visit, and more than three times likely to report that they had completed the full course” (Kim et al, 2009: 1561). In addition to the increase in the numbers of rape survivors receiving and completing a full course of PEP, the study also noted improvements in the time when the first dose of PEP was provided, the patients’ ability to recognise and understand the purpose of the PEP medication and in the use of the post rape services (Kim et al, 2009). At the completion of the project, Tintswalo Hospital employed a full-time nurse trained in forensic examinations to manage and coordinate the provision of sexual assault services in the hospital. There has been no significant decrease in the numbers of survivors who use the service. However, a disappointing finding was the lack of impact that the project had on “building nurses’ capacity and willingness to perform the forensic examination” (Kim et al, 2009: 1561). At the completion of the project, doctors were still performing some 95 per cent of forensic examinations, and interviews with nurses indicated that they were reluctant to spend the time needed to perform the examination and were unsure about the weight that would be given to their testimony in court. The Refentse project unequivocally demonstrates that it is possible to effectively deliver PEP to women in a rural, resource-poor setting. The researchers, like the SAGBVHI, sought to develop a partnership with the Department of Health, and they arguably were successful in doing so at a local level. The hospital management, along 25

The research showed that the ‘estimated additional cost of delivering the intervention was R1406 per case, including costs at the facility level and patient level. When once-off development costs and initial salary costs were excluded, incremental costs decreased to R408 per case’ (Kim et al, 2009: 1561).

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with other key stakeholders, including the police and the community, were included in a project advisory committee that met regularly to assess progress and evaluate the results of the research. This mechanism ensured that ultimately the researchers and the hospital jointly owned the project, and it allowed the hospital to fully own the project once the researchers withdrew. The researchers also provided information and feedback at the provincial health department’s quarterly sexual assault meetings. In addition, the researchers shared the lessons with the Department of Health and assisted in providing training to eight hundred health managers and service providers (Kim et al, 2009). Despite its success, the Department of Health has not adopted the full model nationally. The politicisation of HIV and the provision of antiretrovirals, including to survivors of sexual violence, undoubtedly contributed to a difficult climate and the government’s unwillingness, at least in the early stages of the project, to adopt the findings of the research. The project also points to the inherent challenges related to research influencing policy. At the local level, the project was undoubtedly a success. As with the SAGBVHI, a number of actors were brought together to ensure the sustainability of the project, and the collaborative nature of the system brought a life-saving increase in delivery and uptake of PEP to rape survivors. The focus on a particular hospital, ensuring that the model worked properly, is an example of a strategic approach, as such a focus can provide information that can be relatively easily adapted to other, similar institutions. 3.4. TAC Litigation and Women’s Right to Health The Treatment Action Campaign (TAC) was at the heart of the controversy about HIV and AIDS and the efficacy of drugs in managing the epidemic, as discussed already. The TAC ran a high-profile campaign on the right to health, including HIV-related treatment, at least partly located in the context of gender-based violence and HIV. This campaign dealt with mother-to-child transmission of HIV, through pregnancy, childbirth, and breast-feeding. Whereas it is evident that not all mothers with HIV are victims of gender-based violence, the links between exposure to genderbased violence and HIV, in the context of epidemics in both, are impossible to ignore. In the late 1990s, the spread of HIV between mother and child was occurring at an alarming rate.26 To counteract this, short courses of a single drug, AZT, were prescribed to reduce the risk. However, at the time, the drug was expensive and the intervention difficult to implement in a resource-poor setting such as South Africa, and it was not provided in the public health sector. 26

The South African Medical Research Council estimated that in 2006, thirty-eight thousand babies would be infected during pregnancy and birth, and a further twenty-six thousand would be infected through breast-feeding (Dorrington et al, 2006).

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The TAC was launched in December 1998 to lobby for accessible antiretroviral treatment for people living with HIV. The TAC began its campaign by prioritising the needs of pregnant women with HIV and utilised the language of women’s reproductive health rights (Albertyn and Meer, 2008: 32). Initially the relationship between the government and the TAC was collegial. Following a joint meeting in April 1999, the government and TAC issued a joint statement agreeing that the cost of AZT was prohibitive and therefore almost impossible to provide in the public health sector. In the same statement, the government committed itself to naming an “affordable price for the implementation of AZT to pregnant women” (Heywood, 2003: 281). At that time, that TAC believed that its campaign would focus primarily on getting drug companies to reduce the costs of antiretrovirals (Heywood, 2003: 281). In 2000, the results of the South African Intrapartum Nevirapine Trial (SAINT) drug trials were publicly released and indicated that a single drug, nevirapine, could reduce the incidence of vertical transmission. Nevirapine was easy to administer: it required delivery of a single pill to the mother during labour and the provision of the paediatric formulation to the infant within seventy-two hours of birth. In addition, the manufacturers of the drug offered to provide a five-year free supply to countries particularly hard hit by the HIV epidemic, including South Africa. Despite the compelling results of the drug trial and the free availability of the drug, the government refused to allow its national distribution and chose to provide it only as part of a research trial to assess the operational requirements of a national roll-out. This meant that the drug was available at only two pilot sites per province and that the majority of pregnant women with HIV who required access would be unable to receive nevirapine through the public health system. Following the announcement of the results of the SAINT trials and the government’s restriction of the drug to the pilot sites, the collaborative relationship between the TAC and the government, such as it was, disintegrated quickly. The TAC immediately challenged the restriction, arguing that nevirapine should be available to all those for whom it was medically indicated. The government decision to restrict the drug to pilot sites fundamentally changed the nature of the relationship and ushered in TAC’s more confrontational approach. The TAC mobilised a wide range of non-traditional advocacy actors in the campaign. Academics, researchers, doctors, and economists all took part in various activities, including large public demonstrations, community education, and lobbying. At this stage TAC and its large group of allied actors framed the rights-based discussions on the issue of women’s reproductive rights (Albertyn and Meer, 2008: 39). However, as the campaign turned to litigation their approach began to change. Lawyers in the case sought to focus on the irrationality of the state, the right of access to health care (and not specifically reproductive health care), and the right of equality before the law (Albertyn and Meer, 2008). Even when women’s rights activists sought to present an amicus curiae application to the court on the point, the TAC

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asked them not to go ahead with their arguments in order to improve the chances of a speedy decision on the main case (Albertyn and Meer, 2008: 41). The emphasis on women’s rights and claims to reproductive health was therefore side-lined in the legal campaign, although it was maintained to some degree in the wider advocacy, in the hope of gaining a victory. Throughout the litigation, the campaign continued to grow in force and brought both media attention and widespread recognition to the issues of HIV/AIDS in Africa. This led to increased de-stigmatisation of HIV/AIDS, as well as an increased awareness in the community regarding the issues. After a sustained, drawn-out, and bitter legal confrontation, the Constitutional Court ruled in favour of TAC in July 2002.27 It stated that the government was constitutionally obliged to dispense nevirapine to those women for whom it was medically indicated, and who could reasonably be included in the programme. The Court based its decision on Sections 27(1)(a) and 27(2) of the Constitution, which set out the right to health-care services, including reproductive health care. However, given the explicitly gendered nature of the problem, it is interesting to note the nature of the rights-arguments utilised and accepted by the Court. In its judgment the Court does not at any point consider the gendered nature of the issue, the right to equality, or the specific right to reproductive health in Section 27(1)(a). It only briefly considers the rights of children in Article 28(1) (para. 74), but it never recognises the explicit cross-over between gender inequality, partly due to gender based violence, and the right to health put before it. This fails to recognise the importance of highlighting the fact that women’s issues were at stake. The case provided an important material victory for women, children, and the right of access to health care. However, even though it dealt with an area of health rights that is directly affected by gender inequality, there was little or no recognition in the case that women’s rights were involved. This lack of recognition is arguably detrimental to the advancement of women’s rights and their agency as rights bearers (Albertyn and Meer, 2008: 27). Without an explicit recognition of to whom and for what reason rights are granted, the symbolic, political, and precedential values of the judgment are lost, even if the practical result in that specific case remains the same. As stated by Nancy Fraser, “justice today requires both redistribution and recognition,” and the two are “analytically distinct paradigms of justice” (Fraser, 1997). The two are of course interlinked. Although material justice may be delivered in the one case without recognition, it stunts possibilities for redistribution in the future as well as violating the values in recognition itself. These values include halting patterns of representation of women as bearers of others’ rights, thus highlighting the plight of women in this situation rather than rendering them invisible, and inculcating respect for those subject to the judgment. 27

Treatment Action Campaign v Minister of Health (No. 2) 2002 (5) SA 721 (CC).

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4. CONCLUSION

Whereas a degree of circumspection is appropriate in analysing a small number of case studies, as we have done, there are a number of conclusions that can be drawn. First, given that socio-economic deprivation and gender inequality are so markedly linked, there is a distinct lack of effort to develop strategies on the intersection. Indeed, a focus on health and gender-based violence was the only way forward in collating a sufficient number of case studies on the topic. Recognition in other areas of socio-economic rights that gender concerns are pervasive is both necessary and overlooked. Even within those strategies identified in the narrow focus of this chapter, none of the approaches specifically recognised or relied on this intersection. It is not possible to say, in the circumstances of mixed success and failure, that this has harmed the strategies analysed. However, it does suggest a lost opportunity, particularly when it is recognised that such an approach is mandated by the constitutional guarantee of equality in Section 9(2) and the Constitutional Court’s jurisprudence on the topic. In this regard, it is interesting to analyse the use of rights-based discourse in the studied strategies. In some instances such language was not utilised at all. This appears to be particularly marked in the non-confrontational, collaborative processes of the SAGBVHI, and to a lesser degree in both the TLAC and the Refentse project. Such an approach perhaps avoids alienating partners in government. This approach may also have been influenced by the participation of non-legal actors in the coalition and the development of the policy. It does not appear to have harmed the SAGBVHI, where significant willingness had been built up on the part of the government to act in collaboration with the coalition. However, the potential advantage of rights-based approach is that the discourse and tools of entitlement can pressure governments into changing their policies. The TAC’s rights-based strategy ensured that the courts determined the case in its favour, which arguably contributed to the wider victory. On reflection, both the TLAC and the Refentse projects may have benefitted from an increased focus on the rights violations inherent in the lack of assistance for victims. This could stimulate impetus for change. But the downside of such discourse is that it can be alienating and confrontational, and campaigns may not wish to take such a combative approach to producing change. It is possible, however, that the use of rights-based discourse could allow campaigns to include a gendered aspect to their approach. If women’s right to equality is being violated, for example in the context of domestic violence, then this may provide a means to ‘engender’ the campaign. However, this process will be truly effective only if activists realise the benefits and necessity of gender equality within the socioeconomic context. The TAC’s use of the right to reproductive health shows that rights can be used to bring women’s issues to the fore, even if it was not the focus in the later stages of the campaign. A gender discourse can be equally polarising and

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resented, perceived as an overly combative feminist approach or a distraction from the ‘main’ issues at stake. But together with rights, it possesses the potential to put issues into a strong conceptual framework that is difficult to dismiss. Furthermore, where rights-based discourse has been utilised in the area studied, it has not fully taken into account the nature of the intersection between rights. The TAC case is the primary example of this. Again, given the constitutional mandate for considering equality rights in socio-economic rights, and the judicial recognition of this connection, this demonstrates a lost opportunity. Although the case was undoubtedly a success by some markers, the lack of recognition of women’s issues is problematic. Clearly linked to the issue of rights-based strategies is the development of strategies as either confrontational or collaborative. There is a clear spectrum of approaches from the SAGBVHI, the least confrontational and without utilising rights language, to the TAC, which always drew heavily on rights and from the early 2000s was confrontational, though only after a more conciliatory approach with government failed. There are clearly significant benefits to adopting non-confrontational techniques, particularly in shaping government policy. The success of the SAGBVHI’s strategy is an example of this. SAGBVHI worked closely with the Department of Health from the outset and consistently sought opportunities to engage the department in a dialogue, to share research findings, and to include state officials in its advocacy. It ensured that it jointly owned the policy with the department, and it did not seek to maintain control over the drafting and consultation process. The level of trust and cooperation between the department and the coalition is a remarkable feature of its success. However, such collaborative or non-confrontational techniques may be insufficient at times. Despite making a sustained effort to work with the government, neither the TLAC nor the Refentse project has translated into substantive changes at the national policy level. Furthermore, although TAC began by working in coalition with the government, when the government position became entrenched, TAC was forced to undertake litigation to compel the government to act. In these situations a more collaborative approach was unavailable to civil society actors. However, as the studies highlight, the implementation of socio-economic rights, particularly with a gendered lens, is not always improved through legal means. Although court cases such as the TAC case may have a positive effect on women’s material circumstances, the lack of explicit recognition of women’s rights within the judgment fails to set any precedent that can be later used to advocate for stronger protection of women’s rights and arguably diminishes the potentially broader symbolic and political impact of such litigation. Therefore, it seems that although both rights-based discourse and litigation have their place in forcing the government to act in a certain manner, neither is necessarily the most effective. Thus, a contextual approach that weighs the benefits of different approaches and strategies is appropriate.

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A further key point that arises from the analysis here is the role of coalitions with diverse membership. To a degree, all the case studies used the skills of actors from many different sectors of society, and this appears to have enhanced levels of success. This included the health sector and law sectors in the SAGBVHI, Refentse, and TAC case studies. In Refentse, this point is quite marked on the local level, with inclusion of the police, hospital staff, and medical experts, although significant diversity can also be seen on a national sphere in the SAGBVHI and TAC case studies. This diversity contributed in two ways. In a collaborative approach such as SAGBVHI, the inclusion of the medical sector allowed it to offer the Department of Health expertise and skills that did not exist within the department at the time, clearly contributing to the partnership. The same can be seen in the Refentse model, where researchers were able to provide expertise and skills to the hospital. Alternatively, on a national scale in the TAC case, the use of a diverse range of actors outside of the usual advocacy sphere helped to increase the legitimacy of the campaign, to highlight the need for change and to bring attention to the cause. Particularly where women’s issues are involved, attempts to discredit such issues are harder when there is a concerted and diverse campaign of activists involved. It is important to also note the importance of the social sphere in the development of strategies dealing with the intersection of these difficult issues. The education of the community along with the partial de-stigmatisation of HIV/AIDS within communities that TAC worked with and society more generally, was a key achievement of the TAC campaign that built a platform for its eventual success in the courts. The training of community stakeholders in the Refentse project as to the need for PEP and the extent of rape was essential to the results achieved. Likewise, the recognition of the harm involved in sexual assault and domestic violence allowed SAGBVHI and the TLAC to progress in their campaigns and engage the government on a collaborative level. In issues that can often be controversial or stigmatised, where gender-based violence is involved, this level of engagement is vital. What remains clear from this limited analysis is that more needs to be done in assessing the needs of those subject to gender-based violence and translating that into broad strategies on health. The success of approaches in this area demonstrates the possibilities of moving forward in engendering the right to health and, it is to be hoped, other socio-economic rights.

references Abrahams, Naeemah, Rachel Jewkes, Lorna J. Martin, Shanaaz Mathews, Lisa Vetten, and Carl Lombard (2009), ‘Mortality of women from intimate partner violence in South Africa: A national epidemiological study’, Violence and Victims, Vol. 24, No. 4, pp. 546–56.

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Albertyn, Cathi, and Shamin Meer (2008), ‘Citizens or mothers? The marginalisation of women’s reproductive rights in the struggle for access to health care for HIV-positive pregnant women in South Africa’, in Maitrayee Mukhopadhyay et al (eds.), Gender, rights and development (Amsterdam: KIT Publishers), pp. 27–56. Artz, Lillian, and Dee Smythe (eds.) (2008), Should we consent? (Cape Town: Juta and Co.). Bhana, Kailash, and Tessa Hochveld (2001), Now we have nothing: Exploring the impact of maternal imprisonment on children whose mothers killed an abusive partner, research report (Johannesburg: Centre for the Study of Violence and Reconciliation). Brownmiller, Susan (1975), Against Our Will: Men, Women and Rape (New York: Simon and Schuster). Chenwi, Lilian, and Kirsty McLean (2009), ‘A woman’s home is her castle? Poor women and housing inadequacy in South Africa’, South African Journal of Human Rights, Vol. 25 No. 3, pp. 517–45. Combrinck, Helene (2009), ‘Access to housing for women who are victims of gender-based violence’, ESR Review, Vol. 10, No. 2, pp. 2–6. Department of Health (2000a), The Primary Health Care Package for South Africans (Pretoria: Department of Health). (2000b), National Guideline on the Prevention, Early Detection/Identification, and Intervention of Physical Abuse of Older Persons at Primary Level (Pretoria: Department of Health). (2002), National Guidelines for the Provision of Post Exposure Prophylaxis following Sexual Assault (Pretoria: Department of Health). (2003), Policy guidelines for the management of transmission of human immunodeficiency virus (HIV) and sexually transmitted infections in sexual assault (Pretoria: Department of Health). (2005), National sexual assault policy and clinical management guidelines (Pretoria: Department of Health). (2007a), HIV/AIDS and STI National Strategic Plan 2007–2011 (Pretoria: Department of Health). (2007b), Five-year implementation plan on the Service Charter for Victims of Crime (Pretoria: Department of Health). de Vos, Pierre (2001), ‘Substantive equality after Grootboom: The emergence of social and economic context as a guiding value in equality jurisprudence’, in F. du Bois et al, Equality law, reflections from South Africa and elsewhere (Cape Town: Juta Law), pp. 52–69. Dorrington, Rob, Leigh Johnson, Debbie Bradshaw, and Timothy-John Daniel (2006), The demographic impact of HIV/AIDs in South Africa: National and provincial indicators for 2006, report (Cape Town: Centre for Actual Research, South African Medical Research Council and Actuarial Society of South Africa). Fraser, Nancy (1997), Justice interruptus: Critical reflections on the “postsocialist” condition (New York: Routledge). Fredman, Sandra (2009), ‘Engendering socio-economic rights’, South African Journal of Human Rights, Vol. 3, No. 3, p. 410. Heywood, Mark (2003), ‘Preventing mother-to-child HIV transmission in South Africa: Background, strategies and outcomes of the TAC’s campaign case against the minister of health’, South African Journal of Human Rights, Vol. 19, No. 2, pp. 278–315. Hirschowitz, Ros, Seble Worku, and Mark Orkin (2000), Quantitative research findings on rape in South Africa (Pretoria: Statistics South Africa). Human Rights Watch (1995), Violence against women in South Africa: The State response to domestic violence and rape (New York: Human Rights Watch).

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(2001), Scared at school: Sexual violence against girls in South African schools (New York: Human Rights Watch). (2004), Deadly delay: South Africa’s efforts to prevent HIV in survivors of rape (New York: Human Rights Watch). Jewkes, Rachel (n.d.), ‘Using research to improve services nationally: Developing strategies’, PowerPoint presentation, http://www.svri.org/developing.pdf. Jewkes, Rachel, Loveday Penn-Kekana, Jonathan Levin, Matsie Ratsaka, and Margaret Schrieber (2000), ‘Prevalence of emotional, physical and sexual abuse of women in three South African provinces’, South Africa Medical Journal, Vol. 91, No. 5, pp. 421–28. Kim, Julia, Ian Askew, Lufuno Muvhango, Ntabozuko Dwane, Tanya Abramsky, Stephen Jan, Ennica Ntlemo, Jane Chege, and Charlotte Watts (2007), Developing an integrated model for post-rape care and HIV post exposure prophylaxis in rural South Africa (Johannesburg: Population Council). (2009), ‘Comprehensive care and HIV prophylaxis after sexual assault in rural South Africa: The Refentse Intervention Study’, BMJ, Vol. 338, 27 June, pp. 1559–62. Kistner, Ulrike (2003), Post exposure prophylaxis in South Africa: A review (Johannesburg: Centre for AIDS Development, Research, and Evaluation). Liebenberg, Sandra, and Beth Goldblatt (2007), ‘The interrelationship between equality and socioeconomic rights under South Africa’s transformative constitution’, South African Journal of Human Rights, Vol. 23, pp. 335–61. Liebenberg, Sandra, and Michele O’Sullivan (2001), ‘South Africa’s new equality legislation: A tool for advancing women’s socio-economic equality?’, in F. du Bois et al, Equality law, reflections from South Africa and elsewhere (Cape Town: Juta Law). Martins, Lorna, and Tanya Jacobs (2003), Screening for domestic violence: A policy and management framework (Cape Town: Institute of Criminology, University of Cape Town). Medical Research Council (2009), Understanding men’s health and use of violence: Interface of rape and HIV in South Africa, Policy Brief, MRC, Pretoria. Medical Research Council and Genderlinks (2010), The war @ home, Gauteng Research Report, Genders Links and the MRC, Johannesburg. Mullik, Saiqa, Mantshi Teffo-Menziwa, Eka Williams, and Ruxana Jina (2010), ‘Women and Sexual Violence,’ in Sharon Fonn and Ashnie Padarath (eds.), South African health review 2010 (Durban: Health Systems Trust), pp. 49–58. Padayatchi, Nesri, Kogieliem Naidoo, Halima Dawood, Ayesha Kharsany, and Saiqa Mullik (2010), ‘A Review of Progress on HIV, AIDS and Tuberculosis’, in Sharon Fonn and Ashnie Padarath (eds.), South African health review 2010 (Durban: Health Systems Trust), pp. 87–100. Park, Yoon Jung, Joanne Fedler, and Zubeda Dangor (2000), Reclaiming women’s spaces: New perspectives on violence against women and sheltering in South Africa (Johannesburg: Nisaa Institute for Women’s Development). Rey, Dennis, Marc Karim Bendiane, Jean Paul Moatti, Kaye Wellings, Raphael Danziger, William MacDowal, and European Study Group on HIV Testing Policies and Practices in Europe (2000), ‘Post-exposure prophylaxis after occupational and non-occupational exposures to HIV: An overview of the policies implemented in 27 European countries’, AIDS Care, Vol. 12, No. 6, pp. 695–701. Ross, Fiona (1999), ‘Vat Jou Goed en Trek – The effects of domestic violence on domesticity in an informal settlement’, in Lorraine Glanz and Andrew Spiegel (eds.), Violence and family life in contemporary South Africa: Research and policy issues (Pretoria: Human Sciences Research Council, pp. 153–172).

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Seedat, Mohamed, Ashley Van Niekerk, Rachel Jewkes, Shahnaaz Suffl, and Kopano Ratele (2009), ‘Violence and injuries in South Africa: Prioritizing an agenda for prevention’, Lancet, Vol. 374, No. 9694, pp. 1011–22. South African Gender Based Violence Initiative (2003), The state of sexual assault services: Findings from a situational analysis of services in South Africa, October, SAGBI, Johannesburg. South African Police Services (2010), Crime situation in South Africa 2010, http://www.saps .gov.za/statistics/reports/crimestats/2010/crime_situation_sa.pdf. Sunde, Jackie, and Liesl Gerntholtz (1999), Die man is die dak, die vrou us die vloer – Lobbying for women farmworkers’ rights, Agenda: Empowering Women for Gender Equality No. 42, pp. 33–38. TLAC (2007), Submission to the Portfolio Committee on Housing on the Social Housing Amendment Bill, Bill 29, Tshwaranang Legal Advocacy Centre, Johannesburg. (2008), Developing a health sector response to domestic violence: A roundtable discussion, workshop report, Tshwaranang Legal Advocacy Centre, Johannesburg. (2009a), A review of the progress made in addressing domestic violence through HIV&AIDS and STI National Strategic Plan 2007–2011, Policy Brief No. 3. Tshwaranang Legal Advocacy Centre, Johannesburg. (2009b), Submission to the Portfolio Committee and Select Committee on Women, Youth, Children and People with Disabilities: Implementation of the Domestic Violence Act 116 of 1998, Tshwaranang Legal Advocacy Centre, Johannesburg. (2009c), “I have a problem”: Women’s help-seeking in Acornhoek, Mpumalanga, Research Brief No. 1 (Johannesburg: Tshwaranang Legal Advocacy Centre). United Nations (1995), Human development report (New York: Oxford University Press). (2006), Secretary-general’s in-depth study on all forms of violence against women (New York: United Nations). (2010), The World’s Women, (New York: United Nations). UN Joint Programme on HIV/AIDS (2009), Epidemic update (Geneva: UN Joint Programme on HIV/AIDS). UN Special Rapporteur on Violence against Women (2000), Economic and social policy and its impact on violence against women, UN Doc. E/CN.4/2000/68/Add.5. Vetten, Lisa, and Rezana Hoosain (2006), Money, money, money: An exploratory study of the economics of abuse, Policy Brief No. 4 (Johannesburg: Centre for the Study of Violence and Reconciliation, Gender Programme). Vetten, Lisa, Rachel Jewkes, Romi Sigsworth, Nicola Christofides, Lizle Loots, and Olivia Dunseith (2008), Tracking justice: The attrition of rape cases through the criminal justice system in Gauteng (Johannesburg: Tshwaranang Legal Advocacy Centre, South African Medical Research Council, and Centre for the Study of Violence and Reconciliation). World Health Organisation (2005), WHO multi-country study on women’s health and domestic violence against women: Initial results on prevalence, health outcomes and women’s responses (Geneva: World Health Organisation).

14 Migrants and Mobilisation around Socio-Economic Rights Tara Polzer Ngwato and Zaheera Jinnah*

1. INTRODUCTION

In a book reviewing the successes of strategies to claim and mobilise for socioeconomic rights in South Africa, this chapter fulfils two functions. First, along with several other chapters, it looks at a specific sub-group in the population – in this case non-nationals – that faces particular challenges in accessing or mobilising around socio-economic rights. In this way, it links with other chapters in this volume of how women claim socio-economic rights, or with the mobilisational experiences of sexual minorities. Part of this chapter’s aim is therefore to lay out what is specific to the nature or experience of cross-border migration that affects mobilisation strategies in relation to socio-economic rights. Second, however, this chapter takes the experience of non-nationals as a means of commenting on several broader lessons in thinking about strategies for making rights claims, which are applicable to any group in society. These include the importance of taking local social and political contexts (and not only or mainly national legal frameworks) into account when trying to understand both socio-economic outcomes and mobilisation strategies around socio-economic goods; the importance of linking socio-economic rights with challenges to security and basic civil rights; and the importance of not assuming that the State is the only or main source of rights protection or that all poor or vulnerable groups wish to make claims on the State. Our discussion starts from a contradiction. South Africa has a Constitution that grants most socio-economic rights to ‘everyone,’ including non-nationals, regardless of nationality or legal status, and it has one of the most progressive refugee laws in the world. One might therefore expect, if judging purely from a legal perspective, that non-nationals could use similar mobilisation strategies as South Africans to * African Centre for Migration and Society (ACMS), University of the Witwatersrand. Author contact information: Tara Polzer Ngwato ([email protected]; [email protected]), Zaheera Jinnah ([email protected]).

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claim those common constitutional rights. However, the theoretically enabling legal framework stands in contrast to widespread discrimination against non-nationals in access to State-provided public services as well as to extensive exclusion and violence in the ‘private’ spheres of employment, housing, and general community life. More broadly, there are various political discourses among the general population and sections of government that delegitimise overt non-national claims to public resources. We argue that an enabling legal framework on its own is not useful in understanding the realities of how groups do or do not mobilise around socio-economic rights. It is rather the political context that is revealing. Mobilisation forms among non-nationals and South Africans are significantly different mainly because of the political context but also because of differences in historical and current organisational structures and capacities. This chapter therefore explores two questions. First, we discuss why migrant organisations in South Africa, in contrast to South Africans, have generally not taken on socio-economic rights as a central focus for mobilisation. Second, we look at the strategies that various other actors – including individual non-nationals, legal organisations, and rights-based advocacy non-governmental organisations (NGOs) – have attempted in order to achieve improved socio-economic outcomes for nonnationals. In both cases, our analysis of different choices made by different groups rests on the institutional and political contexts that enable or inhibit different forms of mobilisation. The chapter is mainly based on evidence from three studies conducted by the African Centre for Migration and Society (ACMS) at the University of the Witwatersrand:1 the 2006 African Cities Project (a survey of 840 foreign and South African residents of inner-city Johannesburg),2 the 2009 Vulnerability Study (a survey of 2000 foreign and South African residents of inner-city Johannesburg and the informal settlement of Alexandra),3 and the 2009 Migrant Mobilisation study (a qualitative study based on interviews with 20 non-nationals in Johannesburg and interviews with 24 representatives of NGOs).4 Further information is drawn from analyses of StatisticsSA census data from 2001 and Community Survey data from 2007. Finally, ACMS is a member of various networks of organisations run by or for migrants and refugees (including the umbrella organisation the Consortium for Refugees and Migrants in South Africa, or CoRMSA), and we draw on our experience of those interactions.

1 2 3

4

The ACMS was known as the Forced Migration Studies Programme (FMSP) until February 2011. For more information about this survey, see Gindrey (2010); Landau and Duponchel (2011). This survey was a collaboration between the Forced Migration Studies Programme (FMSP) and the South African Red Cross Society with support from the UN Office for the Coordination of Humanitarian Affairs (UNOCHA) and the International Federation of the Red Cross and Red Crescent Societies (IFRC) (see Misago et al, 2010). This study was funded by Hivos (see Jinnah and Holaday, 2009).

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Before continuing, a brief note on terminology: Although the chapter title uses the more popularly recognisable term migrant, throughout this chapter we use nonnationals as the generic term to describe the population group under discussion. This is because the word migrant, correctly applied, also includes the millions of people who have moved across provincial or municipal boundaries within the country, not only those who have come from outside the country’s borders. Although internal migrants also face many relevant challenges in accessing socio-economic goods and experience particular mobilisational challenges, for the sake of space and focus, we have decided to exclude them from our discussion here. Furthermore, we argue that the experience of moving and being mobile, inherent in the term migrant, is of lesser explanatory power regarding what we are trying to describe than the fact of being a non-national (e.g. someone whom ‘locals’ and institutions recognise as being ‘not from here’). This is also why we do not use the terms non-citizen or asylum seeker or refugee, as these focus too strongly on the legal identity of a person rather than on his or her social and political positioning within a local context. Where groups strategically define themselves using the ‘refugee’ label, for example, we note this as part of our discussion of mobilisational forms, but do not use it as a ‘naturalised’ descriptive term. The rest of the chapter is structured as follows. We first set out a conceptual framework for thinking about the position of non-nationals in a global nation-state system, and we argue for the use of a concept of entitlements to socio-economic outcomes rather than the idea of socio-economic rights (Section 2). Then we present a background section on South Africa’s legal framework for socio-economic rights as applied to migrants, contrasted with the institutional and political context that contests these legally defined rights and provides the context for non-national mobilisational forms (Section 3). This is followed by a brief review of the empirical socio-economic situation for non-nationals in South Africa, focusing on average socio-economic achievements compared with South Africans rather than exceptional pockets of socio-economic vulnerability and need (Section 4). The core of the chapter in Section 5 sets out two spheres of mobilisation that arise from and in relation to the given legal and political context factors: (1) among non-nationals and their organisations and (2) by legal and social welfare NGOs working on behalf of migrants. The chapter ends with some conclusions regarding possible broader lessons on socio-economic mobilisation strategies. 2. RIGHTS AND ENTITLEMENTS FOR NON-NATIONALS IN THE NATION-STATE SYSTEM

To understand the apparent contradiction between law and practice in South Africa, we suggest stepping back from viewing socio-economic outcomes as a product of rights and rather seeing them as a product of entitlements. Entitlement theory, as developed by Amartya Sen (1981), considers an exchange-based approach, rather

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than an outright entitlement one, to accessing socio-economic rights and services. This approach takes the social and political context of individuals, households, and communities into account in how they achieve socio-economic outcomes such as shelter or food. A person or group claiming access to material resources does so on the basis of an exchange with the persons or institutions holding those resources. The claimants offer their own (material and symbolic) resources (e.g. labour power, money, kinship claims, legal claims), yet these must be recognised as valuable and legitimate by those who control the desired or needed materials, or else the exchange cannot happen (Sen, 1981). In an entitlements framework, laws and claims based on rights-based discourses can be powerful means of negotiating access to socio-economic resources, and therefore they become strategic tools towards this end. However, they are effective strategies only to the extent that their claims are considered legitimate by actors who control access to socio-economic goods. We argue that this is often not the case for migrants, and indeed other marginal groups, in South Africa. An entitlements approach is particularly relevant for understanding non-national access to socio-economic goods because of the realities of the nation-state system. Although socio-economic rights are often discussed as human rights, where the immigration or citizenship status of a person should be irrelevant, in practice rights are a claim made against a specific institution (Nickel, 1993). This institution is usually the State, which is responsible for enabling the institutional conditions for positive rights (e.g. to education, health care, housing, justice, safety) to be realised or for monitoring and enforcing negative rights (e.g. not to be violently attacked, discriminated against, forcibly evicted). In the current global system of nation-states, including in aspiring social democracies such as South Africa, non-nationals are secondary and only partially legitimate claimants in terms of the social contract with the State. Their level of claimable rights is contingent on their legal status in the country rather than on their levels of need as human beings. It is illustrative that socio-economic issues such as food, shelter, and clothing are generally considered the primary and non-negotiable element of needs-based frameworks (Maslow, 1943), whereas they are only ‘second-generation’ aspects of rights-based frameworks, after civil and political rights (Vasak, 1977). This reflects the historical development of a progressively more expansive ‘contract’ between the State (or nation-state) and citizens, in which obligations by the State to provide socio-economic protection in the form of a welfare State are a recent addition (they essentially arose in the early twentieth century, with rapid expansion after the Second World War) (O’Hara, 1999: 1245). The direct link between socio-economic ‘rights’ and practical resource implications for the State is also made explicit in the South African Constitution, where most socio-economic claims are not absolute and immediate, but rather limited by the State’s ability to ‘progressively realise’ them over time, given available budgets and bureaucratic capacity (Jacobs, 2009).

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Even though socio-economic rights may be formulated in law in ways that intend not to discriminate according to nationality or citizenship, as is the case in the South African Constitution, the connection with State resource allocation inevitably leads to debates about prioritisation, trade-offs between beneficiary groups, and the connection between historical citizen-state relations and current resource obligations (e.g. righting the historically skewed resource patterns of apartheid). Legal rights and levels of need are, in this understanding, augmented by the question of whether individuals or groups are considered legitimate members of a (national or local) community. Even where legal rights claims by minority or marginal groups are legally successful, the extent of their implementation is always mediated by the broader population’s level of acceptance of the newly granted rights. This question is also relevant for other marginal groups, whether defined through ethnicity, religion, age, gender, or sexuality. Another benefit of an entitlements approach is that it does not assume the primacy of the State. Many of the socio-economic needs of non-nationals in South Africa – such as shelter and income – are contested in relation to non-State actors such as landlords and employers, not in relation to the resources held by the State. The interaction between the State and non-State actors becomes clearer when we look at the three forms of ‘rights’ that pertain to achieving positive socio-economic outcomes, two of which relate at least partly to non-State actors: r Right to receive a proportion of collective or public material resources allocated to an individual or household by the State (e.g. grants transfers, free public health assistance) r Right to occupy public and private spaces in which socio-economic goods can be self-generated (e.g. space to build a shack or run a business, right to take up formal or informal employment that leads to income) r Right to protection and institutions of recourse if the foregoing rights are denied or threatened by private actors (e.g. through crime, targeted evictions, looting by members of the public). Taking an entitlements approach shapes our analysis in several ways. First, it shifts the focus from the public sphere of the law and the State to many different factors and often private actors, such as landlords and employers, who determine socio-economic outcomes. Second, the level of analysis also shifts from the national sphere, where laws and general principles apply, to the local sphere, where specific institutional arrangements and relationships are often more powerful in practice than the principles or processes of law. At the local level, powerful resource holders are often not State agents but community groups and leaders, as well as local political actors. In terms of mobilisation strategies, when considering the social and political contexts in which the legitimacy of resource claimants is not secure, we have to acknowledge that explicit rights-based argumentation and mobilisation may be less effective, or even counter-productive, in achieving practical resource access,

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compared with other forms of action, argumentation, and mobilisation. This means that as researchers we cannot limit ourselves to looking only for or at rights-based mobilisation, but we must study all the different strategies individuals and groups use to achieve positive socio-economic outcomes. 3. A CONTESTED LEGAL FRAMEWORK AND SOCIO-POLITICAL CONTEXT FOR MOBILISATION

In this section, we set out South Africa’s inclusive, if not always consistent, legal framework for socio-economic rights for non-citizens, and then contrast that with evidence of how these rights are often not translated into actual resource access because of institutional and political factors. The legal framework and the institutional and political contexts affect how non-nationals mobilise (or not) around socio-economic issues, as do elements of the specific patterns of migration to South Africa. Sections 26, 27, and 29 of the Bill of Rights in the South African Constitution (Act 108 of 1996) grant most socio-economic rights to ‘everyone’ residing in South Africa, which includes non-citizens irrespective of legal status. Rights accorded to ‘everyone’ include the rights to access adequate housing, basic health-care services, sufficient food and water, social security, and basic education. Basic health care and basic education are not limited by the State’s ability to ‘progressively realise’ these rights, and so they must be granted to ‘everyone’ immediately. The Refugee Act (Act 130 of 1998, in effect since 2002) reaffirms that (recognised) refugees and asylum seekers are “entitled to the same basic health services and basic primary education which the inhabitants of the Republic receive from time to time” (Section 27(g)) and that they are “entitled to seek employment” (Section 27(f)) and to study. The Immigration Act (Act 13 of 2002, amended in 2004) does not specifically refer to socio-economic rights. In addition to the Constitution and laws regulating movement into the country, sector-specific laws such as labour laws and the Children’s Act affect non-citizens and are generally inclusive in the spirit of the Constitution. Basic labour rights apply to anyone who is employed (Araia et al, 2010), and all children have the same rights qua children, independently of their immigration status (Palmary, 2009). Recognised refugees with disabilities and permanent residents are included in the government’s social grant net for children and the elderly.5 The one area that still explicitly excludes non-nationals of all statuses is public housing provision (Greenburg and Polzer, 2008). Although South Africa has only signed the International Covenant on Economic, Social, and Cultural Rights, it has ratified the other main international standards 5

The legal cases that led to this inclusion – Scalabrini and Khosa and Mahlaule – are discussed briefly in the final section of this chapter.

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pertaining to socio-economic rights, such as the International Convention on the Rights of the Child and the Convention on the Elimination of All Forms of Discrimination against Women, as well as various International Labour Organisation treaties pertaining to the rights of non-nationals, migrants, and asylum seekers, and it is a party to the African Charter on Human and Peoples’ Rights (1986) and other African Union human and peoples’ rights treaties, which apply to all persons, independent of nationality or legal status. South Africa is also a party to the 1965 International Convention on the Elimination of All Forms of Racial Discrimination, which has been interpreted to also apply to discrimination against persons based on their nationality. For the sub-group of asylum seekers and refugees, South Africa is also a party to the 1951 UN Convention Relating to the Status of Refugees. This sets out rights to employment, self-employment, and housing, which should not be any less than rights accorded to other categories of non-nationals. Rights to public education, labour legislation, and social security should be the same as for nationals of the country. South Africa has also ratified the 1969 Organisation of African Unity Convention Governing Specific Aspects of Refugee Problems in Africa. This convention, however, only mentions socio-economic rights among possible grounds of persecution, omitting them as elements of refugee protection in the country of asylum. South Africa is one of the few countries in the world, developed or developing, which comes close to fulfilling the international legal obligations relating to socioeconomic rights inherent in the 1951 UN Convention, at least in terms of having domesticated them through national legislation. This is due to South Africa’s policy of self-settlement and local integration – meaning the freedom to settle, move, and work freely around the country – for both asylum seekers and refugees. This policy stands in contrast to the encampment and no-work policies of many other countries. South Africa does not, however, provide any active integration assistance or welfare support in the form of subsidised housing, food, dedicated health care, education, or employment facilitation. Asylum seekers and refugees therefore have both the freedom and the burden of finding means of supporting themselves through their own efforts on the open market and through accessing basic public services at the same schools, clinics, and government offices used by citizens. However, this enabling legal framework providing rights to access public socioeconomic services in a local integration context also comes with inherent institutional implementation challenges. Where there are not a few dedicated agencies providing socio-economic services to non-nationals (as there might be in a refugee camp), the relationships through which socio-economic outcomes are negotiated are radically decentralised. Where State agencies – such as clinics, schools, and municipalities – are involved, local ‘street-level bureaucrats’ (Lipsky, 1980) around the entire country have to know about and accept the inclusion of non-nationals in their service provision mandates. In the case of private actors – such as banks, employers, landlords, transport providers, and so on – essentially every citizen of the

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country has to accept that non-nationals are legitimate claimants of socio-economic goods. If this acceptance does not exist, then there will be widespread denial of services by local State actors, as well as popular harassment and exclusion of nonnationals where they live and work, independent of whether non-nationals have the legal right to claim services and live and work in those spaces. There is ample evidence that this acceptance of non-nationals’ ‘right to rights’, especially socio-economic rights, is often lacking in South Africa. Research has documented the denial of basic constitutionally mandated public services (e.g. Human Rights Watch, 1998, 2005, 2006, 2008; CoRMSA, 2007, 2008, 2009; Vearey and Palmary, 2008; Greenburg and Polzer, 2008; Landau, 2005; Misago et al, 2010), resulting from a combination of lack of knowledge of the law amongst service providers, attitudinal factors, and structural factors such as budgeting processes (Vearey and Palmary, 2008; Landau, 2009). Furthermore, there is often no recognition at the municipal level or in the offices of governmental local service providers that they have any responsibility or mandate towards migrants; they tend to refer all migrant-related issues to the Department of Home Affairs (DHA) at the national level, even though the department has no socio-economic service mandate. Finally, bureaucratic processes, such as computer systems that allow for the processing of services only using a thirteen-digit ID number (which only citizens and permanent residents have) create inadvertent but effective forms of discrimination. Public institutions of recourse for socio-economic and other rights abuses, including criminal and administrative injustice, are not unbiased against non-nationals, even though they have constitutional responsibilities to protect all in the country equally. Institutions such as the police, the broader justice system, landlord and tenant boards, and the Commission for Conciliation, Mediation, and Arbitration (which deals with labour issues) all have inconsistent records in being accessible and responsive to the claims of non-nationals for protection (CoRMSA, 2009; SAHRC, 2010). The engagement with private actors around socio-economic resources is a more daily occurrence than are interactions with the State. This includes opening a bank account, getting a job or starting a business, finding a place to live, taking ‘public’ transport (e.g. collective privately run taxis), and so on. In these contexts, a combination of institutional and political factors constrains the ability of non-nationals to access socio-economic resources in practice. Banks, landlords, and employers often do not know the law, or they assume that the law allows or requires them to discriminate against non-citizens. As with public service providers, bureaucratic processes based on requirements for ID numbers are exclusionary factors. In addition to misinformation and technical issues, attitudes and beliefs about what rights non-nationals should have also affect private service providers, as they do public officials. What has come to be referred to as xenophobic violence, including the assault and mass eviction of non-nationals around South Africa in May 2008 and attacks on non-nationals and foreign-owned shops before and since then (Misago

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et al, 2009), is the tip of the iceberg regarding the forms of exclusion that many poorer non-nationals experience daily where they live and work (Misago et al, 2010; CoRMSA, 2009). It is well-documented that discriminatory attitudes against nonnationals are extremely widespread and strong among the South African population, without significant differences by class, race, or education level (Crush et al, 2008). Violence and other forms of discrimination are often not contingent on whether the persons being attacked or discriminated against have the legal right to reside in the country or work (Misago et al, 2010). Personal political beliefs are often founded in broader political discourses that limit the ability of non-nationals to claim legitimacy in terms of socio-economic rights. South Africa is a ‘middle-income’ country with one of the highest levels of inequality in the world (Leibbrandt et al, 2010) and a government that has committed itself to redressing historical and current economic imbalances through a highly interventionist social welfare system, especially around social security transfers (grants) and employment creation (Daniel et al, 2010). This context is different from that of most developed countries, where the majority of citizens are not in extreme socio-economic need, and from that of most developing countries, where the majority of poor citizens do not expect direct socio-economic transfer from the State. Non-nationals in South Africa are therefore constructed, in greater measure than in many other countries, as direct competitors for State transfers to the majority of the nation’s poor citizens. Politicians, the media, and the general public have buttressed this construction with additional claims that mirror political discourses elsewhere in the world: that granting socio-economic rights to non-nationals constitutes a pull factor for additional migration (Vearey and Palmary, 2008) and that rights are or should be linked to a specific national historical and political legacy (e.g. the struggle against apartheid) (Polzer, 2005), thereby delegitimising those not seen to share this history. Such political discourses work to reduce the discursive ‘space’ in which non-nationals can claim socio-economic rights, either directly from government or in relation to the general public. They also affect the extent to which mainstream South African civil society organisations are willing to integrate the socio-economic rights of non-nationals into their citizen-oriented campaigns for rights. It is, of course, also important to acknowledge that there are countervailing political traditions that emphasise non-discrimination, including pan-African and worker-solidarity traditions within the major political parties and the general public. A concrete expression of these traditions has been that none of the major political parties – including, most significantly, the ruling alliance of the African National Congress, the South African Communist Party, and the major labour union association Congress of South African Trade Unions (COSATU) – have made explicit anti-foreigner or anti-immigration rhetoric or policies part of their election platforms since 1994, in contrast to political parties in many other developed and developing countries.

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Apart from institutional and political factors, the mobilisation context for nonnationals is also shaped by patterns of migration to South Africa. Since the beginning of South Africa’s transition from apartheid to democracy in the early 1990s, migration patterns have shifted and diversified from the relatively regulated system of historical regional labour migration (Crush, 1999; WaKabwe-Segatti and Landau, 2008). The estimated 1.6 million to 2 million non-nationals in South Africa today (Polzer, 2010) are from a wide variety of countries, and they include highly skilled professionals and peasants; political refugees and economic migrants; people with and without legal immigration status; people with shared or very different cultural, linguistic, and religious backgrounds from the South Africans among whom they live; and so on. There are some numerically more dominant nationalities, such as Zimbabweans (especially since 2005), Mozambicans, and people from Swaziland and Lesotho, and some smaller but more publically visible groups (e.g. Congolese, Somalis, Nigerians), but there are high levels of class, ethnic, linguistic, and political diversity within each of these groups. There has therefore been no obvious basis for collective identity formation or organisation on the basis of being ‘migrants’ or ‘non-nationals.’ In summary, four sets of factors create the context for non-national mobilisation strategies around socio-economic rights and outcomes (the impacts of these factors are discussed in Section 5, on mobilisation): r Legal: extensive rights to access public socio-economic resources and to participate in private socio-economic changes r Institutional: decentralisation of ‘service providers’; mandate denial; bureaucratic insensitivity and inflexibility r Political: personal beliefs of public and private resource holders and gatekeepers; broader political discourses r Migration histories: fragmentation of constituencies and needs 4. RELATIVE SOCIO-ECONOMIC STATUS AMONG NON-NATIONALS IN SOUTH AFRICA

Before discussing mobilisation strategies around socio-economic issues by a specific group, we need to establish the extent of need within that group. Furthermore, the need must be assessed in comparison with other relevant groups. There are absolute forms of socio-economic need (e.g. absolute lack of food, shelter, income) that constitute a dire humanitarian need. This level of socio-economic deprivation is relatively rare among non-nationals in South Africa, and so even though the treatment of this group has important signal value for how a State system responds to absolute socio-economic need, we do not deal with it in this chapter. We focus on the more common question of relative levels of need. This is also because the strategies for addressing both absolute and relative forms of need are shaped by group comparison: whose need is, and is perceived as being, greater. There are three

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distinct, though related, forms of need in relation to socio-economic outcomes: aggregate outcomes (e.g. nutrition, shelter, employment, income, health), access to public services (e.g. health care, education), and (violent) challenges to access to resources and recourse when access is denied or there is abuse. We look at each of these in turn, comparing what is known regarding levels achieved by non-nationals with those of South African citizens. Given that nationality effects in South Africa, like most other effects, are strongly racialised, the following analyses compare only black non-nationals and black South African citizens. To presage the more detailed discussion that follows, in terms of socio-economic outcomes and private resource access, black non-nationals are not disadvantaged when taken in aggregate, and in fact they achieve significantly better outcomes in comparison with black South Africans. In terms of public service access, there are specific barriers, but these do not constitute high levels of complete exclusion. Many of the forms of service denial and low service quality match those experienced by South Africans, as described in other parts of this book. The most significant difference between nationals and non-nationals, however, is with regard to the third element of socio-economic resource access – levels of violent dispossession of nonnationals (predominantly in informal settlement contexts) and their limited access to institutions of recourse in cases where their shelter and income have been violently compromised. In this case, the experience of non-nationals is markedly different and worse than that of South Africans. 4.1. Absolute and Relative Socio-Economic Outcomes Three key socio-economic outcomes variables give an indication of the relative status of non-nationals and citizens in South Africa: nutrition, shelter, and employment status. Access to food is in many ways the most basic and primary socio-economic indicator. The ACMS’s Vulnerability Study in inner-city Johannesburg and Alexandra informal settlement shows that the foreign born have similar and slightly better levels of nutrition than do long-term resident South Africans in the same locations (see Table 14.1) (Misago et al, 2010). This finding was also confirmed by ACMS’s research in other informal settlements around Johannesburg (Vearey et al, 2010). In terms of shelter status, foreign-born people, in the aggregate, are consistently better off than those born in South Africa. Based on official national data sets from StatsSA, Table 14.2 shows any person who has a ‘low’ shelter standard, defined as anyone living in a shack or without running water, electricity, or proper sanitation in the dwelling. The relative outcomes relating to employment and income are even more striking. StatsSA data from the 2007 Community Survey show that only 30 per cent of the South African–born black population has a paid activity, whereas this is the case for 63 per cent of the foreign-born black population. Similarly, 38 per cent of the

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Tara Polzer Ngwato and Zaheera Jinnah table 14.1. Nutrition index mean

South African recent internal migrants South African long-term residents Foreign born Aggregate by location

Alexandra

Inner city

Combined

17.11 17.51 17.76 17.50**

22.85 22.16 22.05 22.25**

19.55 19.22 20.69*

Note: This index is based on data from the FMSP Vulnerability Study (Misago et al, 2010). It shows the mean number of times per week in each migration grouping and location that people consume aggregated portions of bread, meat, fish, milk, and vegetables. See Misago et al (2010) for further discussion. *p