Rights, Courts, and the City

Marius Pieterse & Thomas Coggin
31 January 2017

In a rapidly urbanizing society and against a background of rural underdevelopment, cities are increasingly the locations for access to basic socio-economic amenities and essential services. Access to the city and everything that it offers, therefore, impacts profoundly on the manner and extent to which poor and marginalized persons access the objects of their constitutionally ensconced socio-economic rights. Conversely, the content of the ‘right to the city’ is impacted by legal understandings of the ambit, scope, and enforceability of socio-economic rights. Either way, the South African Constitution’s entrenchment of rights to access water, housing, health care services and education, alongside its guarantee of a substantive right to equality, mean that urban design, policy-making and regeneration processes have become increasingly legalized and will increasingly be tested for constitutional compliance, especially in instances where they have the effect of excluding poor and marginalized persons from the city. This short essay begins to unpack the interrelationship between constitutional rights and the right to the city, focusing specifically on the impact of rights-based litigation and judgments on urban policy making, design, and regeneration in South Africa. The essay is divided up into four parts, with the first four considering aspects of the city, and the final part offering a conclusion.

The short essay is based on an article published in 2010 in Urban Forum. It may be accessed here.

Courts & Public Transport

Must the State provide us with transport?  If it must, are there certain standards to which such transport must adhere? This question came before the Constitutional Court in the case of Rail Commuters Action Group v Transnet t/a Metrorail, which arose out of public unhappiness with the safety of Transnet’s passenger trains.

After several people were killed or seriously injured during violent assaults on passenger trains in Cape Town, a group of affected citizens sued Transnet for damages.  Perhaps predictably, Transnet denied that it had a legal duty to ensure safety on trains, claiming that this was the police’s responsibility.

Noting that poor and historically marginalized communities on the outskirts of Cape Town had little choice but to use trains to get to their jobs in the inner city, the Constitutional Court held that the issue of safety on public transport implicated constitutional rights to life, security of the person and freedom from violence.  It held that Transnet did indeed have a legal obligation, in terms of both the Constitution and other applicable laws, to provide rail services in a manner that is consistent with these constitutional rights of commuters.

While the Court didn’t order damages against Transnet in this particular case, it stated that Transnet would be liable for damages in future if, now that its obligations towards rail users had been clarified, similar damage was again to be suffered on its trains. 

This was quite an innovative decision, given that there is no specific provision in the Constitution pertaining to public transport, but that the Court nevertheless understood public transport to be integral to a number of other constitutional rights.

While it perhaps didn’t go far enough in this respect (it would, for instance, have been nice if the Court had elaborated on the extent to which transport is essential for enjoyment of the rights of access to housing and health care services), the decision does set certain qualitative standards for the provision of public transport and is commendable for its affirmation of the links between physical security and urban service provision.

A right to responsive service delivery?

For a while in the late 1990s, it used to be car hijacking.  But these days, the one thing that always weaves itself into every Joburg dinner party conversation is the Metro Council’s billing practices.  Surreal tales of farfetched system errors, call center catastrophes and daylong customer center queues appear to be uniting Joburgers of all walks of life in an intricate web of frustration and despair. Lawyers will be quick to point out a number of contractual and administrative-law deficiencies in the City’s current approach to this billing crisis.  But it seems that the issue may also have constitutional dimensions.

In the case of Joseph v City of Johannesburg, tenants in a Berea apartment block found that the electricity supply to their building had been cut off, even though they paid their monthly service bills to the owner of the building.  It transpired that the owner never paid this money over to the City, which proceeded to cut the electricity without any notice or warning to the tenants.  When the City did not react to their complaints, the tenants instituted legal proceedings, claiming that the right of adequate housing contained within it a right of access to electricity, which could not unreasonably be withheld.

The Constitutional Court found those city inhabitants had a “general public law right” to be treated fairly in the course of service delivery, which flowed from the “…special cluster of relationships that exist between a municipality and its citizens, which is fundamentally cemented by the public responsibilities that a municipality bears in terms of the Constitution”.  The tenants were thus entitled to procedural fairness, including reasonable notice and the opportunity to make representations, when decisions that adversely affected their enjoyment of municipal services were taken. The disconnection of their electricity supply was, therefore, unlawful.

The Court was criticized by some for not directly engaging with the claim of a right to electricity, and for seemingly viewing the relationship between the City and the tenants as being based on the fact that they were paying customers (thus excluding those who cannot pay for services, or have good reason not to do so). But, in finding that there is a special relationship between the city and its inhabitants, from which certain public-law obligations flow, the court seems to have acknowledged the right to the city, and to have situated future disputes over service delivery within a rights framework. 

Like all Joburgers, we hope that the City soon comes to terms with the intricacies of its “special” relationship with us.  Parties to a relationship pick up the phone. They listen. They recognize their interdependence.  They try to make things work. When the relationship is a public law one, this can be legally compelled.

Bad buildings & meaningful engagement

A constant, and perhaps inevitable, feature of the regeneration of downtown Joburg has been the eviction of people living in so-called “bad buildings” – buildings which, for various reasons, had fallen into severe disrepair and in which residents have no legal right to be present.  Often, these residents are victims of “building hijackers”, who charge rent for space in buildings that they do not own.

Through the years, the way in which these evictions have been conducted has left much to be desired – the City has often been criticized for ignoring the presence and livelihoods of tenants in “bad” buildings and for not seeming to care what happens to people once they are evicted.  Specifically, the City has often resorted to using the notoriously brutish Red Ants to conduct evictions where residents would not move by themselves.

The inner-city suburbs of Hillbrow and Berea in Johannesburg.

Unsurprisingly, therefore, a growing number of such residents have challenged their evictions in court.  One of these matters, Occupiers of 51 Olivia Road, Berea v City of Johannesburg, made it all the way to the Constitutional Court. The matter was an appeal against an earlier decision by the Supreme Court of Appeal (SCA), which overturned a High Court finding that the City could not evict residents from bad buildings in the absence of a comprehensive and coordinated housing plan which would ensure that the residents were not rendered homeless.

In overturning the SCA’s order, the Constitutional Court explained that the Constitution did not permit for evictions which would render people homeless to proceed, without a court order that considered all relevant circumstances. It added that such a court order would ordinarily not be given unless it could be shown that the City had meaningfully engaged with the people it sought to evict before it did so.  Such dialogue between the city and residents had to canvass issues such as the consequences of the eviction, the specific plight of those occupiers in dire circumstances, and a plan and timeline to deal with the occupiers during the eviction period.

As the City had not engaged meaningfully in a reasonable manner with the occupiers in the present case, their eviction was unlawful.  However, prior to the case being concluded, the City and the occupiers reached a settlement agreement, so there was no need for the Court to determine a resolution to the specific dispute. Instead, it simply approved this agreement.

Olivia Road is to be welcomed because of its espousal of the process of engagement, which resonates with the dialogic and participatory dimensions of the right to the city.  The judgment further provides an important counterweight to the absoluteness of ownership rights in the struggle over urban space. Whether it is always practically implementable is, of course, another matter.  But it sends a powerful message that, in trying to remake the city, we cannot simply enfranchise some citizens and disenfranchise others.

Resisting the privatization of public space

As we have argued in previous posts, the exposure to different people and foreign experiences in the public spaces of the city is the most enriching aspect of city life. Accordingly, urban citizenship and the right to the city are primarily asserted through physical presence in the public spaces of the city.  Conversely, marginalization and denial of the right to the city often take the form of denying certain people's right to be physically present in public space or of restricting the kinds of activities in which they may engage there.

All over the world, one subtle way in which urban marginalization happens is through the privatization of public space, where spaces which are thought of as public are effectively under private control (examples in Joburg include shopping malls, inner city improvement districts, Gautrain stations and the like).  Where this is the case, it often happens that those in control of the “public” space in question actually restrict access to it, or attach conditions to such access.

An interesting court case, in which such marginalization was successfully challenged, is that of Victoria & Alfred Waterfront v Police Commissioner, Western Cape.  The V&A Waterfront is one of South Africa’s premier tourist spots, a mixed-use area situated adjacent to Cape Town’s harbor and integrated into the city’s urban framework, appearing for all intents and purposes as a district of Cape Town.  It is, however, privately owned and, while access to it appears unrestricted, this is not entirely the case.

The owners of the Waterfront obtained an interim interdict from the Cape High Court, which effectively banned two people, who were begging for money from patrons at the Waterfront’s restaurants, from the premises.  The constitutionality of the interdict was called into question when it was reviewed by the Court.

The Victoria & Alfred Waterfront in Cape Town.

The owners argued that the Waterfront, in essence, remained private property, even though the public were allowed to make use of it, and that they accordingly had the right to exclude people from their property who they did not wish to have there.  The Court, however, pointed out that this argument was true only on paper.  In reality, the Waterfront is an intensely public space.  It contains, amongst others, a post office, a police charge office, public roads, and also – apart from a rubber dinghy operating from Mouille Point – the only way for the public to access Robben Island.

The Court thus held that the character of the Waterfront was public and that to restrict persons from entering it would not only be contrary to the constitutional rights to freedom of movement and to dignity but could also be read as indirectly discriminating against people on the basis of their socio-economic status or their race. Recognizing that begging was central to the livelihood of the two respondents in this case, the Court further found that private property rights had to give way to their rights to life and dignity.

The decision provides a clear principle that owners cannot pick and choose which aspects or classes of the public they wish to allow onto their property where such property maintains a public character.  This has important consequences for other ‘private’ properties that operate similarly, which include developments characteristic of 'new urbanism’ and gated suburbs, as well the actions of city authorities attempting to 'gentrify’ urban areas.

So is this all a good idea?

As our recent discussions of court judgments that have reflected different elements of the right to the city have shown, the Constitution’s entrenchment of such rights (including rights of access to housing, food and water, freedom of expression, freedom of movement, physical safety and equality) and the fact that it allows people whose rights have been infringed to approach courts for relief, has meant that courts are increasingly becoming embroiled in disputes over access to the city, its form and its resources.

Among the consequences of this have been that urban design, planning and governance processes have become more legalized and are increasingly evaluated for constitutional compliance, especially where they have the effect of excluding poor and marginalized persons from the city.  Indeed, we may expect that the legally enforceable dimensions of the right to the city will have an impact on a wide range of policy fields such as municipal bylaws, zoning requirements for new-urbanism-type developments, the regulation of private security measures, public transport and telecommunications. But is this a good thing?

Several features of law and the legal process do not sit well with the fluid nature of city life and its various contingencies.  It may thus be that legal judgments frustrate important elements of the right to the city, especially where judges are themselves opposed to its more radical elements.  We also recognize that legal outcomes may disrupt or derail important urban policy processes, especially where judges are not aware of the contexts in which the impact of their judgments are felt, or where urban planners or managers do not know for sure what the Constitution expects of them.

It may also be that the absolutist, adversarial, case-specific and precedent-bound nature of the law may disrupt the fluid processes by which the right to the city is continuously constituted and reconstituted through struggle and lived practice.  Courts may further struggle to accommodate the various balances that must constantly be struck between equally valid, competing claims to the city.

But there is plenty to say on the plus side.  The fact that different elements of the right to the city are legally enforceable has meant that developers, government and private capital can no longer simply ignore, or shove aside, those who stand in the way of their plans for different parts of the city.  By relying on rights in the Bill of Rights, poor and marginalized urban inhabitants have been able to stake a claim to the physical spaces of the city, hence making it a more inclusive place.  Court judgments have also altered the manner in which cities deliver essential urban services, leading to some of the power imbalances inherent to the city-citizen relationship being neutralized and to service delivery becoming gradually more inclusive, more rights-aware and more humane.   

Perhaps most importantly, regardless of whether cases have been won or lost, the Bill of Rights has allowed all urban citizens, including the more vulnerable and marginalized ones, to insist that their voices be heard, and their circumstances taken into account, in conversations over the form and function of South African cities.

A legally enforceable right to the city seems to be here to stay.  This means, first, that judges must be made aware of the complex ways in which cities work and, secondly, that urban policy makers and practitioners must appreciate the human rights impact of their work and must incorporate the ideal of constitutional compliance into their understandings of urban sustainability.