The proposed Elimination and Prevention of Re-emergence of Slums Act by the Provincial Government of KwaZulu-Natal is the latest in a long list of anti-poor legislation in South Africa dating back to the period of apartheid rule. Marie Huchzermeyer asserts that the Bill is anti-poor, not in the interest of the 'slum dwellers' and is unconstitutional.

The proposal for an Elimination and Prevention of Re-emergence of Slums Act by the Provincial Government of KwaZulu-Natal was preceded by seven years of slum eradication rhetoric. Since the launch of United Nations Millennium Development Project in 2000, which includes as Goal 7 Target 11 to improve the lives of 100,000,000 slum dwellers by 2020, President Mbeki has mandated the national Department of Housing to work towards achieving ‘shack-free cities’. The aim to eradicate informal settlements by 2014 has since been a controversial element of housing politics at national, provincial and city level throughout South Africa.

100,000,000 slum dwellers, the target of the UN Millennium Development Goal (MDG) was a mere 10% of slum dwellers globally in the year 2000. Why was this modest goal to improve the lives of some slum dwellers translated in South Africa into slum eradication or elimination? Why are Provinces not instead preparing legislation to ensure the improvement of the lives slum dwellers?

The South Africa government are not the only culprits for having misinterpreted a global commitment. UN-Habitat, the United Nation’s Human Settlement Programme based in Nairobi, officially refers to the slum MDG as the ‘Cities Without Slums MDG’. The slum improvement MDG target of 100,000,000 slum dwellers by 2020 was drawn in 2000 from an inappropriately titled programme, ‘Cities Without Slums’, of Cities Alliance, a UN-Habitat and World Bank supported initiative. Its promotional material, which advocates for participatory city- and country-wide informal settlement upgrading, is branded with the ‘Cities Without Slums’ slogan.

As any marketing expert could have predicated, the brand said more than the content. Many country governments have failed to differentiate between the normative principle of the slogan, that cities should not have slums, and the operational target of improving the lives of 10% of slum dwellers. Instead, tragically, the slogan became the target, namely to eradicate slums – through mass evictions in Zimbabwe in 2005 and Abuja, Nigeria, in 2006 and through slum elimination legislation in South Africa in 2007.

Measures taken in most provinces to eradicate informal settlements are not constitutional. Illegal evictions are rampant, be they through the use of force, in the absence of court orders, or in contempt of court interdicts. Very few informal settlement dwellers have access to legal representation and can fight for their rights in the courts. And yet, numerous court records exist to prove the proliferation of illegal and unconstitutional slum interventions.

To improve the lives of slum dwellers in this country requires in the first instance strengthening and enforcement of the legislation that prevents illegal evictions. Any new legislation must focus on ensuring that the state fulfils its constitutional obligations in relation to the right to housing, and in particular, as required by the Grootboom Constitutional Court ruling in 2000, in relation to those living in intolerable conditions.

New legislation should mandate (a) the recognition of informal settlements and other so-called ‘slums’, (b) emergency preparedness and (c) participatory upgrading as promoted by UN-Habitat as ‘best practice’, with relocation as a last resort. Chapter 13 of the National Housing Code provides the methodology and funding for such intervention, including rehabilitation of informally occupied but unsuitable land. This may be land that is waterlogged, threatened by floods, unstable due to mine or refuse dumps or geotechnically compromised through steep slopes, clay or dolomitic soils.

Instead, the KwaZulu-Natal Legislature has approved a Bill that, while mentioning the progressive realisation of the right to housing in passing, introduces draconian measures to remove the phenomenon of informality from the urban landscape and to prevent it from re-emerging in any possible form. Owners of informally occupied land are mandated to institute evictions within a period stipulated by the municipality, and owners of vacant land are mandated to prevent informal occupation through measures such as fencing off and posting of security guards.

These measures were contained in the notorious 1951 ‘Prevention of Illegal Squatting Act’ of the apartheid government. They were unacceptable then, and remain so today. According to UN-Habitat (and Cities Alliance/Cities Without Slums for that matter), the first and most important measure for improving the lives of slum dwellers is to ensure security of tenure, i.e. to put an end to evictions. While the Bill does not recognise tenure insecurity as a criteria for identifying slums (whereas UN-Habitat does), by approving the Slum Elimination Bill the Provincial Legislature has overnight reduced tenure security for millions of slum dwellers in the Province, increasing fear and uncertainty and thereby worsening their lives.

Indeed, most slum dwellers are aware that the Bill is approved. Many official ‘hearings’ were held on the Bill, although none of the objections that were raised were taken seriously by the legislature. The process and content of the Bill, as well as experience of tenure insecurity and illegal interventions, have increased the mobilisation of slum dwellers. Media coverage on the Bill has been extensive and critical, contrasting the phenomenal public relations exercise of the MEC for Housing, who pulled wool over the eyes of the Legislature and of many influential experts and commentators regarding the intentions and measures of the Bill. Slum dwellers, as often argued by Abahlali’s leaders, are the real experts of poverty – and they are rightly living in fear because of the Bill.

The Bill undoubtedly is not in the interest of slum dwellers. It does not recognise insecurity of tenure as a problem and deepens the insecurity of slum dwellers as a first step to eliminating slums. By prohibiting and preventing unlawful occupation of unutilised land or buildings, the Bill pushes responsibility for sheltering the poor onto already under-housed people – relatives and acquaintances living in formal but already overcrowded units. It is they, and not the middle class, that may open their doors in solidarity when informality is no longer tolerated as an option.

Preventing the invasion of unutilised land through fencing off and guarding is exclusionary, and rewards those that hold undeveloped strategic land for speculative purposes. It indicates that despite a decade of Brazil-South Africa dialogue on urban policy (particularly in Ethikwini/KwaZulu-Natal, facilitated at great cost and funfair by Cities Alliance/Cities Without Slums), South Africa has still not grasped the concept of a social function of land, which the Brazilian Constitution and subsequent legal statues use to ensure that strategically located, unutilised, privately owned land is developed for the poor.

What KwaZulu-Natal has also still not learnt from Brazil is that slums, as embarrassing as they may be to city managers, must be understood as temporary relief to the housing crisis, and that improvements must involve the occupants rather than displace them. Instead, the Bill signals scepticism about the viability of improving or upgrading slums. In its preamble, it suggests that formal housing projects require protection from ‘slums’, ignoring the reality that slum dwellers are, more often than not, threatened by housing developments for which they make way, or to which they are forcefully removed and which have little relevance to their lives and economies.

The Bill, if not rejected outright, requires fundamental revision (and renaming) so as to centre on the protection of poor communities from state and market driven displacement. This is particularly pertinent in the wake of the 2010 Soccer World Cup. The Bill needs to be sensitive to what it really means to improve the lives of slum dwellers.

The Bill is as yet not gazetted. It is the Constitutional responsibility of the Premier to ensure that the Bill does not contradict the Constitution. Social movements and housing rights groups are already preparing to challenge the Act in court, should the Premier ignore their advice and go ahead with gazetting the Bill.

* Marie Huchzermeyer, School of Architecture and Planning - Wits University