Landmark ruling gives Marikana residents hope for water and light

Homes in the Marikana informal settlement have no running water so residents collect water at one of a few public spigots available to them. Picture: Vera Haller/Thomson Reuters Foundation

Homes in the Marikana informal settlement have no running water so residents collect water at one of a few public spigots available to them. Picture: Vera Haller/Thomson Reuters Foundation

Published Nov 27, 2017

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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. 

Thomson Reuters Foundation

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