Thursday 17 June 2021
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Residents’ constitutional right to adequate housing versus the land owners ‘constitutional right to hold private property: fischer interdict application

“What does one do with 60 000 people when neither the owner of the land on which they reside, nor the local authority in whose jurisdiction they live, can or want to accommodate them”, quizzed  the Western Cape High Court Judge Chantal Fortuin, before  dismissing the eviction application brought by Fischer against the Ramahlele  and 46 others.
Plausibly dubbed as Fischer Interdict Application, this application sought to evict approximately 60 000 residents of Philipi East from the privately owned land.  In this eviction application, instituted by Iris Arrilda Fischer, the landowner is meant to restrain residents entering or being on Erf 150(“the interdict application”). The number of residents occupying the aforesaid property has mushroomed in “spaghetti bowl” fashion.

In its landmark ruling, the Western Cape High Court ordered the City of Cape Town to negotiate in good faith with the land owners upon which the Marikana informal settlement is located. Marikana is famously known for the thirty four (34) striking miners who were gunned down by the Police during August 2012.  Pursuant to the ruling of the High Court, approximately 60 000 residents of Philppi East were spared from being evicted. At least for now they are off the hook, although chances are they might not entirely be out of the woods due to the appeal lodged against this ruling which will end up in the Constitutional Court possibly to be heard next year.
This landmark ruling brings again to the fore the debate of land ownership and particularly the lack of it thereof. In Southern Africa in general, the informal settlements have mushroomed in “spaghetti bowl” fashion. And Namibia is no exception to this rather unfortunate phenomenon. According to the Shack Dwellers Federation of Namibia (SDFN) 25 per cent of the 2, 3 million population of Namibia live in the informal settlements.
Fortuin J, in dismissing the eviction application opined that, “in deciding this matter she was faced with a historical, social and economic situation which cannot be ignored.” Further she declared that, “the occupiers moved to the properties after being evicted from various areas where they lived under desperate conditions.

Unlike other people in Cape Town, these occupiers did not at the time, and at present, have the luxury of choosing where to settle with their families. They settled on these properties out of desperation.”
Further she expounded that the City, the national and provincial ministers of housing had infringed on the landowners ‘constitutional right to property. In the contradistinction, the City, and the national and provincial ministers of housing had also infringed upon the occupiers ‘rights to housing, by failing to provide land.
The aforesaid situation is not unfamiliar in the local circles. For illustrative purposes, at the beginning of October 2017, the Katima Mulilo local authority was in the spotlight for having demolished residents houses claiming the residents had built their houses on privately -owned land.

The worst part of this undertaking is the fact that it was executed without any due process or without any legal mandate from the court house rendering the entire exercise to be unlawful. Subsequently to this ugly incident, it emerged that the affected members have taken a legal recourse, which hopefully would lay to rest to rest this unlawful conduct, lest it becomes a norm to be perpetuated with impunity. And demolishing exercise was carried in such a despicable way reminiscent of the old apartheid antics; remember the narrative of the Old Location, whereby people were forcefully evicted from Hochland Park just to be condemned to the present day Katutura.

Most of the local authorities are faced with a predicament in providing land in an equitable and just fashion whilst simultaneously they chart on the way forward with their developmental agenda.  In process incidents such as the Marikana and Katima Mulilo of this world would ensue. How the local authorities deal with such situations without infringing on the residents rights to occupy the aforesaid land and land owners ‘constitutional right to hold private property is of cardinal importance.
It is common cause that most of those that occupy land in proclaimed areas and those in pursuit of opportunities in urban centres are prone to suffer the same fate as those in Marikana and Katima Mulilo.
The milestone ruling which the City of Cape Town and the owners are appealing against, epitomises the usually ignored  predicament, that has spread seemingly  without any prospect of panacea  any time soon.
This ruling has therefore some important bearings on our own situation, 27 years following the fall of the minority rule.  With the dawn of the new dispensation, the hopes and aspirations of the independent nation continued to be dashed as the victors either by default or by design continue to be derelict of people’s plight.

The more things seem to have changed, the more they remain the same. And fundamentally Marikana and Katima Mulilo are classical images of shame.
One wonders whether those that tasked with the decision making are in dereliction of this central fact. As of now future of the informal settlements remains bleak with no prospect of silver lining on the horizon.
In many urban centres the mushrooming of corrugated sheet houses is not a spectral fantasy, it is naked reality. And this ruling, which has opened up a historical, social and economic reality, should serve as a reminder to our decision makers particularly those in the executive and legislative arms of the government to ensure that the hopes and aspirations of the communities as espoused within various legal instrumentals, including supreme law, are not only entrenched, but enhanced.
The Marikana issue is heading for the resolution at the Constitutional Court due to its fundamental right nature and it is hoped that the constitutional court will strike a balance in weighing the all circumstances of the affected residents, the rights of the parties and the public interests in order to arrive at a reasonable and plausible conclusion taking into account the historical, social and economic backgrounds of our communities.

Although for now there is little for the Marikana residents to celebrate, and the fact that the High Court ruling would not be enforced award immediately pending the appeal lodged by the applicants, the case has set a positive precedent for the destitute and unfortunate people seeking to settle anywhere as provided for within the ambit of law.
The 30 August  ruling  should not only set a precedent in terms of resolving  land ownership disputes between people occupying privately owned land and those whose who the land was occupied in this fashion, but it should remind us that  people settling on  these properties do it out of desperation.”

Jambo Shipanga, Communal Commentator Windhoek

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