Cape Town - With no
running water at home, residents of Cape Town's Marikana slum
trudge to public spigots with buckets and make the dash to
portable toilets set up on the informal settlement's edge, close
to the busy city airport.
Children play on narrow, litter-strewn dirt paths that
separate densely packed corrugated metal shacks and crude
electrical cables dangle precariously overhead.
In early November, a woman was electrocuted by a wayward
cable, said community leader Thembani Landu on a recent tour of
this informal town.
At sunset, he said, the 60 000 residents make sure to be
safely inside their barbed-wired protected shacks because, with
no streetlights, the settlement plunges into darkness - and
danger.
During one particularly brutal weekend in October, 11 people
were killed in an outbreak of the sort of gang violence that
routinely plagues Marikana.
Even the settlement’s name runs with blood: it honours the
34 people who died when police opened fire at striking miners in
Marikana, in the country’s North West Province, in August 2012.
The residents badly need a break. Now they finally dare to
hope their living conditions may improve, thanks to a landmark
legal ruling over who owns the land they occupy.
UNIQUE RULING
A judge has ordered the city to negotiate to buy the
privately-owned land the Marikana settlement residents have
occupied.
The site is made up of three parcels, two owned by separate
commercial development groups and a small plot owned by an
elderly South African woman.
With the city as landlord, residents hope to gain basic
municipal services, such as legal electrical hookups, water
access, rubbish pickup, police patrols and street lighting.
Dozens of Marikana residents sang and danced outside the Cape Town High Court as they waited to hear the outcome of their court case. Around 60 000 people live in shacks on what is privately owned land. Picture: David Ritchie/ANA
"It would be a big victory for us," said Landu, who was
among the original squatters who began occupying the formerly
empty land in Cape Town’s Philippi area in 2012. "It would open
us up to electricity and sanitation service.”
The ruling, which the city and landowners are appealing
against, goes to the heart of a vexing problem for
post-apartheid South Africa.
The country struggles to provide adequate housing for its
black majority when for decades a tiny, white majority owned
virtually all the country’s land.
Advocates and lawyers involved in the case say the August 30
ruling is unique because it for the first time sets a framework
to resolve ownership disputes over occupied land by having a
municipality deal directly with the property’s owners.
Lawyers on both sides told the Thomson Reuters Foundation
the ruling was a watershed that could set a precedent for
millions of South Africans stuck in informal settlements.
"Once the case is decided on appeal, it will be a landmark
decision for land ownership in South Africa,” said Martin
Oosthuizen, a Cape Town lawyer who represents one of the
commercial consortiums who own the land.
RIGHTS VIOLATED
According to government statistics, 13 percent of South
Africa’s 16.9 million households live in informal settlements
such as Marikana, which have sprung up on privately-owned land
around the country’s cities as rapid urbanisation strains
inadequate housing supplies.
"If the precedent stands, they are going to have people
occupying land and then forcing the government to buy it through
the court process,” said Thulani Nkosi, a senior lawyer with the
Socio-Economic Rights Institute of South Africa who represents
the Marikana settlement residents in the lawsuit.
An appeal of the ruling, issued by Western Cape High Court
Judge Chantal Fortuin, is likely to end up before the
Constitutional Court, the nation’s highest, next year.
Residents at a crime scene in Marikana. Picture: Cindy Waxa/ANA
Councillor Brett Herron, mayoral committee member for
transport and urban development in Cape Town's government,
confirmed the city had filed an appeal but said he could not
comment further while the case was still before the courts.
Fortuin ruled the city government had violated the
residents’ constitutional right to adequate housing as well as
the landowners’ constitutional right to hold private property.
She said her ruling took into account inequities that
persisted nearly 25 years after the end of apartheid.
"Unlike many other people from 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,” the judge wrote.
Further underscoring the government’s responsibility,
Fortuin said if the city government did not have adequate funds
to purchase the land from its owners, the provincial and
national governments would have to step in and cover the
difference.
VALUE OF LAND
Fortuin also noted there was nowhere to put the settlement’s
residents if she had ordered their eviction, which the
landowners had originally sought in their lawsuit against the
city.
"What does one do with 60000 people when neither the owner
of the land on which they reside nor the local jurisdiction in
which they live, can or want to accommodate them?" Fortuin
wrote.
Oosthuizen said the landowners had conceded it would be
nearly impossible to evict 60,000 people, and that they agreed
the city should buy the land from them.
The sticking point, which is part of the landowners' appeal,
is over the land's valuation. "We say the land should be valued
as unoccupied land," he said.
Isaac Matshego, an economist with Nedbank, said a court
ultimately would have to square two very different points of
view: how much the land is worth, without squatters, with how
much local government – already struggling to provide adequate
housing – could afford to pay.
"If the landowners are not dealt with fairly, that could be
a huge knock on confidence and investors would be very reluctant
to invest in fixed property,” Matshego said in a phone
interview.
A PLACE TO CALL HOME
Nkosi, the residents’ lawyer, said he visited the Marikana
settlement in early November to tell them the case was going to
an appeal. He said they were crestfallen to hear Fortuin’s
ruling would not immediately go into effect.
"At the end of the day, what our clients are looking for is
a place to go home to,” Nkosi said.
Lizzie Mdwekesha, 59, a traditional healer, said despite the
settlement’s hardships, she considered her shack a home for
herself and her family, including her three-year-old grandson .
"We want to show that the people staying in Marikana have
potential," she said.