The following op-ed is a collaborative effort by Sipesihle Mguga and Zimkhitha Mhlahlo of the Legal Resources Centre.
Throughout history, land and housing have been recognised as primary sources of wealth, social status, power and more importantly, security. They are the basis for shelter, and food.
The need for adequate housing has never been as pronounced as in the time of the Covid-19 pandemic in South Africa. Access to land and housing enables people to comply with the lockdown restrictions, practice physical distancing, and have the will and ability to stay at home where they will be protected from infection. The World Health Organisation advises that one of the best measures to prevent CoVid-19 is to maintain a physical distance of at least 1.5 meter. With over five million people still living in shacks that are between 6 and 20m², physical distancing is impossible for many people in South Africa. The pandemic has laid bare the failures of government to properly implement its housing policies – a failure which is now posing a threat to the health and well-being of millions of South Africans.
Post-apartheid housing legislation is primarily centred on equality and equitable recourse as a means to address past injustices. However, there is a disjuncture between the objectives of legislation and the lived reality of the people who must ultimately benefit from housing developments. The right to access adequate housing is enshrined in section 26(1) of the Constitution which provides that ‘everyone has a right to access adequate housing’. Section 26(2) places the obligation to ensure access to housing on the State. It provides that the State must take reasonable legislative and other measures to achieve the progressive realisation of this right and do so within its available resources. The State thus has an obligation to justify the means it takes to progressively fulfil its constitutional obligation.
The right to adequate housing is vast and complex. In order to effectively and adequately achieve its mandate, the State, driven by the obligation of section 26 (2) adopted and enacted into law a housing legislative framework. The most important piece of legislation is the Housing Act 107 of 1997. The purpose of the Housing Act is to ‘provide for the facilitation of sustainable housing development processes and lays general principles applicable to the housing development in all spheres of government which are national, provincial and local and defines each spheres’ role in respect of the housing development mandate’.
Section 2(1) (c) (iv) of the Housing Act provides that national, provincial, and local spheres of government must ‘ensure that housing development is administered in a transparent and equitable manner, and a manner that upholds the practice of good governance.’ Section 3 of the Housing Act requires the Minister to determine a national housing policy that includes national norms and standards of housing development. Moreover, in section 4 it provides that the Minister of Human Settlements must publish a National Housing Code which must contain the national housing policy. The National Housing Code binds both the provincial and local spheres of government.
Access to housing has however been delayed by the lack of compliance with legislation and policies that underpin housing allocations in the country. One of the fundamentals of the housing policy is to afford security of tenure to South African citizens who reside in informal settlements. Starting in 1996, people in need of housing had to apply for government subsidised housing under the Reconstruction and Development Programme (RDP). While more than three million public housing units have been provided by way of this programme since 1994, many beneficiaries have lost hope of ever owning property as the project has been marred by delays and flaws. In 2018, the housing backlog was 2.3 million. Some beneficiaries’ names have been on a waiting list for more than two decades, while others’ names have vanished from the list forcing them to re-apply. Many of the original applicants died before ever gaining access to adequate housing.
Nothing however has obstructed the realisation of the right to housing as significantly as the role of corruption and failed administration. Beneficiaries often apply for housing and qualify for the housing benefit, only to find that once the houses are built, they are not allocated to the rightful beneficiaries. Housing allocation is mostly done by municipalities. Some municipalities allocate houses without following and adhering to the national or provincial housing development policies.
A lack of transparency and accountability by municipal and provincial officials makes it difficult to understand how houses are allocated and prevents housing allocations from being questioned. Allegations of corruption and commercialisation of RDP houses for profit by government officials abound. This happens when ward councillors and other municipal officials allocate houses to friends or have the homes registered in the names of family members, who in turn rent the house out to housing beneficiaries. A lack of accountability at municipal and provincial level allows these practices to flourish, to the detriment of indigent and marginalised housing beneficiaries. There is also a lack of uniformity across the different provinces and municipal areas regarding the criteria that are used for the allocation of housing. This creates confusion and anger amongst beneficiaries as it is not clear why some people receive homes while others are excluded from the programme.
The Legal Resources Centre (LRC) has been litigating on housing delivery and allocation for several years. A number of our cases illustrate the opaque and arbitrary manner in which the RDP housing allocation process is conducted by the provincial government and municipalities around the country. In 2016 the LRC was approached by the Endumeni Civic Association and its members acting on behalf of various RDP housing beneficiaries from Dundee in the jurisdiction of the Endumeni Local Municipality. These beneficiaries had a number of complaints regarding the allocation of RDP houses by the local municipal officials. There were allegations that beneficiary lists had been tampered with, and that erfs were swapped by municipal officials without the beneficiaries’ consents. Other beneficiaries realised that housing units that were supposed to be allocated to them were already occupied by people. RDP houses were also being leased to desperate beneficiaries by ward councillors.
The LRC notified the Endumeni Local Municipality of their clients’ complaint, but the municipality did not take any effective steps to remedy these grievances. The municipality rather acknowledged in their answering papers that their housing allocating system was indeed flawed. The matter was heard in the Pietermaritzburg High Court where LRC argued that the court should evaluate the municipality’s actions against the principles of legality, impartiality, reasonableness, good governance, fairness, and equity in order to establish whether they complied with their constitutional obligation of providing social housing to the successful beneficiaries.
In his judgement, Poyo Dlwati J, highlighted that the provision of RDP houses in the Endumeni Municipality was bedevilled by various irregularities that needed to be addressed. The court highlighted that the failure by the Endumeni Local Municipality to properly regularise its RDP housing allocation system was clear evidence of its failure to comply with its constitutional obligation of providing RDP houses to the qualifying applicants. The court held that the failure to prevent fraudulent activities, the manipulation of the housing lists, and the failure to take steps to resolve issues brought to it by applicants, was inconsistent with the municipality’s obligation as outlined in section 26 (2) of the Constitution and section 9 of the Housing Act.
In June 2011, the Ekurhuleni Municipality launched an application in terms of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE) to evict occupiers who had occupied 900 RDP houses in a housing development known as Eden Park Extension 5 without the Municipality’s consent. A company known as Bluedot Properties undertook to develop subsidised housing at Eden Park for the Alberton Town Council. Their plan was to erect 3 500 houses with donor funding. It was envisaged that this project would assist the council to address its housing backlog. According to the main applicants, these houses were to be donated to the squatters, homeless people, and backyard and shack dwellers of Eden Park and surrounding areas. This would be done with the proviso that all intended beneficiaries who were resident within the jurisdiction of the council were to be drawn from the provincial departmental housing waiting list.
Towards the end of 2001, for reasons unknown to the residents, donor funding for the project was withdrawn. The municipality took over the project, and the provincial department became responsible for the construction and allocation of the houses. In 2003 the municipality made available for inspection its waiting list of beneficiaries. However, contrary to what was agreed upon and communicated to the residents of Eden Park, of the 2 149 developed housing stands, only 77 were allocated to the applicants from Eden Park and the surrounding areas. Great efforts were made by the community to engage with the municipality in respect of the allocation, and specifically the criteria used to identify the qualifying beneficiaries for Eden Park Extension 5. All of their efforts were in vain.
Their discontent with the manner in which the municipality was operating manifested in a series of petitions and protests. On 9 October 2008 the residents of Eden Park began occupying the unoccupied and incomplete houses in Extension 5. They attributed their actions to the incoherent and mysterious beneficiary identification process by the municipality. It was evident that the entire allocation process was flawed. Some of the applicants had applied for housing in 1996 and 1997 but had still not benefited while others had received homes at the development but their homes were incorrectly given to somebody else. It was against this backdrop that the Ekurhuleni Municipality sought an eviction application against the Eden Park residents.
The application was dismissed with costs. Satchwell J, found that the municipality and the department had displayed uncertainty and confusion as to the identity of who should be evicted, and that the integrity of the waiting list and the allocation process had been compromised. Further, the court stated that “the possibility, indeed the probability existed that there had been arbitrariness in the process which renders it unacceptable.” The municipality and the department appealed against this decision in the Supreme Court of Appeal (SCA) The SCA confirmed the decision of Satchwell J. In his judgment Ponnan JA, held that the municipality and the department may have been in breach of their constitutional and legislative obligations imposed upon them by the Housing Act to provide adequate housing.
Several other examples speak to the inept RDP housing allocation process in South Africa. In July 2019, the LRC in Makhanda was approached by several residents of Paterson, which is located within the Sundays River Valley Local Municipality in the Eastern Cape. They are beneficiaries of the RDP housing program. All of them expected to receive housing units that were allocated to them, yet were shocked to find that their assigned units were already occupied by unknown persons. To make matters worse, three of the applicants had also been receiving tax invoices for property rates, refuse, water, and sanitation from the municipality – for properties they didn’t occupy. Their request was simple: to have the unlawful occupiers vacate the houses that were rightfully allocated to them so that they could enjoy the benefits of their properties.
The LRC has taken several steps to attempt to resolve this issue. We have written letters to the Eastern Cape Department of Human Settlements and to the Sundays River Valley Local Municipality, asking them to resolve the issue and grant us access to the RDP housing lists. The LRC has also requested that the affected residents be granted amnesty from paying taxes on properties they can’t occupy. In a meeting with the municipal manager the LRC was advised that a plan is available and supposedly in the process of being implemented. The municipality also confirmed they would audit the occupants of the RDP houses in Paterson to confirm the current occupiers, and they would approach the Department of Human Settlements to get a list of the beneficiaries in order to confirm the rightful occupiers. Once the gaps are identified, they will need to work on case-by-case solutions to make sure everyone is granted access to their rightful homes.
While the existence of a plan to address this problem is encouraging, attempts to follow up with the Municipality on the progress of the plan have been stymied by a total failure of communication on their part. The failure to engage with the LRC or its clients makes litigation likely and beneficiaries will be forced to approach the court to settle their dispute.
The situation in Paterson is analogous to what happened in the Missionvale RDP Project in Nelson Mandela Bay Municipality. In 2015, a report compiled by Philip Masiza Attorneys revealed that nearly one in five houses in Missionvale were occupied by someone who was not the rightful owner. Approximately 2000 houses built in 2012 and 2013 were audited. Five years after the audit and some of the rightful beneficiaries are still waiting to occupy their houses.
On 15 May 2020, the Department of Human Settlement introduced the Declaration of Priority Human Settlements and Housing Development (PHSHD). The objective of this project is to:
“….advance Human Settlements Spatial Transformation and Consolidation by ensuring that the delivery of houses is used to restructure and revitalise towns and cities, strengthen the livelihood prospects of households and overcome apartheid spatial patterns by fostering integrated urban forms”
This project is underpinned by the principles of the National Development Plan, the objectives of the National Spatial Development Framework and the Intergraded Urban Development Framework. The project aims to address the housing needs of marginalised groups and will be implemented in all nine provinces. Its implementation will be through intergovernmental relations. It is imperative to note that, even though national government introduced this immediate solution to remedy the backlog in the housing needs of the marginalised; this project will still need to be facilitated and implemented through the principles of cooperative governance and by all three spheres of government. Further, these spheres of government will all need to be equipped with the necessary support; capacity and capabilities needed to ensure that the implementation and facilitation will be fair, just, reasonable and effective to the needs of the vulnerable groups and their needs will be prioritised. This project needs to be overseen by national government to ensure that both provincial and local government are adhering and fulfilling the objectives and goals of PHSHD.
This could provide a possible solution to the current housing backlogs and consolidate the efforts of all spheres of government to ensure that there is oversight and accountability in the allocation process. As is evident from the cases above, special and urgent attention must be paid to the allocation of RDP houses. The Covid-19 pandemic has highlighted the urgency that must propel the state to realise its constitutional obligations. As staying home and social distancing becomes the primary means through which people can keep themselves and their loved ones and their communities safe, hopefully government will remedy the shortcomings of the housing mess without courts having to direct them to do so.
 Endumeni Civic Association and Others v Endumeni Local Municipality and Others (4610/2017)  ZAKZPHC 43 (9 February 2018).
 Ekurhuleni Metropolitan Municipality v Various Occupiers, Eden Park Extension 5 (873/12)  ZASCA 162 (26 November 2013)