The Dignity of the Poor
By CHRIS JOHNSON and SIMON RUSTON
Picture: "shanty" housing in Soweto township, South Africa, pictured in 2005. Source: Wikimedia Commons
EVERY year the Travellers Times’ law bloggers visit a different jurisdiction to examine a major case which has some relevance for Gypsies and Travellers. This year we are visiting South Africa and the case of Port Elizabeth Municipality -v- Various Occupiers [2004] ZACC 7.
The Respondents were some 68 people, including 22 children, occupying 29 shacks they had erected on privately owned land within the area of Port Elizabeth Municipality. Responding to a petition signed by 1600 local people, the Municipality sought eviction of the encampment. The Respondents were on the land without permission (there was a dispute as to whether they were originally given permission by an owner but it was accepted that, at the time of the Court action, they did not have permission to be where they were). At the time that the proceedings were started the Respondents had been living for periods ranging from 2 to 8 years on the land. Most had come there after being evicted from other land. At the time of the Court action, there was no specific use designated for the land in question and no specific proposals for use of the land. The High Court initially granted an eviction order. However the Supreme Court of Appeal allowed an appeal against that order. The Municipality appealed beyond that Court to the Constitutional Court of South Africa.
The Municipality relied on the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 1998 (the PIE). Reference was also made to Section 26 of the South African Constitution which reads:-
Housing
(1) Everyone has the right to have access to adequate housing.
(2) The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right.
(3) No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.
The leading judgment of the Constitutional Court was given by the famous Sachs J[i] and here are some useful quotes from that judgment:-
18. It is not only the dignity of the poor that is assailed when homeless people are driven from pillar to post in a desperate quest for a place where they and their families can rest their head. Our society as a whole is demeaned when state action intensifies rather than mitigates their marginalisation. The integrity of the rights-based vision of the Constitution is punctured when governmental action augments rather than reduces denial of the claims of the desperately poor to the basic elements of a decent existence. Hence the need for special judicial control of a process that is both socially stressful and potentially conflictual…
25….Simply put, the ordinary prerequisites for the Municipality to be in a position to apply for an eviction order are that the occupation is unlawful and the structures are either unauthorised, or unhealthy or unsafe. Contrary to the pre-constitutional position, however, the mere establishment of these facts does not require the court to make an eviction order. In terms of section 6 [of PIE], they merely trigger the court’s discretion. If they are proved, the court then may (not must) grant an eviction order if it is just and equitable to do so. In making its decision it must take account of all relevant circumstances, including the manner in which occupation was effected, its duration and the availability of suitable alternative accommodation or land…
28.…In general terms, however, a court should be reluctant to grant an eviction against relatively settled occupiers unless it is satisfied that a reasonable alternative is available, even if only as an interim measure pending ultimate access to housing in the formal housing programme…
29….In a society founded on human dignity, equality and freedom it cannot be presupposed that the greatest good for the many can be achieved at the cost of intolerable hardship for the few, particularly if by a reasonable application of judicial and administrative statecraft such human distress could be avoided…
32….Both the language of the section and the purpose of the statute require the court to ensure that it is fully informed before undertaking the onerous and delicate task entrusted to it. In securing the necessary information, the court would therefore be entitled to go beyond the facts established in the papers before it. Indeed when the evidence submitted by the parties leaves important questions of fact obscure, contested or uncertain, the court might be obliged to procure ways of establishing the true state of affairs, so as to enable it properly to ‘have regard’ to relevant circumstances…
37….Thus, PIE expressly requires the court to infuse elements of grace and compassion into the formal structures of the law. It is called upon to balance competing interests in a principled way and promote the constitutional vision of a caring society based on good neighbourliness and shared concern. The Constitution and PIE confirm that we are not islands unto ourselves. The spirit of ubuntu [‘humaneness’], part of the deep cultural heritage of the majority of the population, suffuses the whole constitutional order. It combines individual rights with a communitarian philosophy. It is a unifying motif of the Bill of Rights, which is nothing if not a structured, institutionalised and operational declaration in our evolving new society of the need for human interdependence, respect and concern…
Sachs J dismissed the appeal of the Municipality and summed up as follows:-
59….in the light of the lengthy period during which the occupiers have lived on the land in question, the fact that there is no evidence that either the Municipality or the owners of the land need to evict the occupiers in order to put the land to some other productive use, the absence of any significant attempts by the Municipality to listen to and consider the problems of this particular group of occupiers, and the fact that this a relatively small group of people who appear to be genuinely homeless and in need, I am not persuaded that it is just and equitable to order the eviction of the occupiers.
Lessons for those advising Gypsies and Travellers in the United Kingdom
Unfortunately this magnificent judgment does not, of course, have direct effect in the UK. Nevertheless, we have previously stressed the importance of the question of ‘alternative accommodation’ when a local or public authority are considering evicting an unauthorised encampment and reference should especially be made to the case of Winterstein - v - France - see the report in TAT News E-Bulletin May 2014:- http://www.communitylawpartnership.co.uk/links/tat-news
The availability of alternative sites is also considered in planning applications and appeals, and the case of R (on the application of Doncaster Metropolitan Borough Council) v First Secretary of State and another, [2007] EWHC 1034 (Admin) is particularly relevant. In this case the High Court approved of the approach of a planning inspector who found that: "The absence of any alternative, available, affordable, acceptable, and suitable land to which the site occupants could move has to be afforded considerable weight in favour of the development." Furthermore, Planning Policy for Traveller sites (in England) expressly requires decision makers to take alternative sites into account. This will be particularly relevant in enforcement cases where Gypsies and Travellers may otherwise be forced onto the roadside.
On a more general level, some encouragement can be taken that judges in other parts of the world interpret statute as having requirements of “grace and compassion”. It is worth recognising that South Africa was previously a nation living under the racist apartheid system where black people were denied equal treatment under the law. Even when it seems as if the odds are severely stacked against Gypsies and Travellers in this country, it is important to remember not to give up, because this South African example shows that real change and improved equality are possible.
Chris Johnson (chrisjohnson@communitylawpartnership.co.uk ) - Travellers Advice Team (TAT) at Community Law Partnership (CLP)
TAT operates a national Helpline for Gypsies and Travellers on 0121 685 8677, Monday to Friday 9.00 am to 5.00 pm
Simon Ruston, Ruston Planning Limited, Independent Planning Consultant specialising in Gypsy and Traveller work
Simon can be contacted at simon@rustonplanning.co.uk or on 07967 308752/0117 325 0350
[i] Albert "Albie" Louis Sachs is an activist, member of the African National Congress and a former judge on the Constitutional Court of South Africa. He was appointed to the court by Nelson Mandela in 1994 and retired in October 2009.