Pushed to the periphery: Low-income residents in Pietermaritzburg, South Africa

7/28/2019 Pushed to the periphery: Low-income residents in Pietermaritzburg, South Africa

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Pushed to the periphery:Low-income residents in Pietermaritzburg, South Africa

France: A low-cost housing development on the outskirts of Pietermaritzburg

Introduction

The Centre on Housing Rights and Evictions (COHRE) and the Centre for Applied LegalStudies (CALS) received reports of evictions from Municipal housing in Pietermaritzburg, whichprompted a joint investigation during 2005 and 2006. While our primary focus was on therelatively small stock of Municipal social housing, our research points precisely to the much largercrisis faced by many more people in and around Pietermaritzburg given the woefully inadequateprovision of public, affordable rental accommodation.

Nationally, South Africa has been one of the most inequitable societies in the world, and the gap

between rich and poor has continued to widen in the post-apartheid era. These very broad trendsobviously shape the housing market in a South African city, like Pietermaritzburg. They have


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been sharpened by the city's relatively recent reinstatement as the administrative and legislativecapital of the province of KwaZulu-Natal in 2004. This development has helped trigger a surge ineconomic 'development' in the area. The relocation of a number of government departments tothe city saw an influx of government officials and their families, and others seeking newemployment opportunities. The increased effective demand for accommodation resulted in an

unprecedented surge in property prices.

Although this 'property boom' had the general effect of raising the costs of accommodation andincreasing the demand for rental space, these segments of the property market that are responsiveto the effective demand of middle and upper class purchasing power have never provided shelterfor the poor majority. For the most part, the poor remain concentrated in the racialisedtownships, segregated more or less as they were under apartheid. Increasing numbers as wediscuss briefly later live in shack settlements carved into spaces that are at least closer to thesurvivalist opportunities of the city centre, even if their tenure is precarious and their livingconditions grossly inadequate.

Under these conditions, the provision of public rental accommodation for purposes of 'socialhousing' by local authorities becomes crucial. The demand for rental accommodation is growingas purchasing property is beyond the means of most Pietermaritzburg residents. However, theMunicipality has done little to alleviate the shortage of affordable rental accommodation. In fact,the Msunduzi Municipality is facing a backlog of 15 000 housing applications, partly as a result ofthis.1 The housing department has confirmed that the housing application list has been closedsince 2003.2

The Msunduzi Municipal Housing Stock

The Msunduzi Municipal housing stock consists of 377 rental units. However, as of August 2005,

294 units out of the 377 were in arrears, and some 64 percent had been in arrears for more thansix months.3 Outstanding arrears totalled approximately R3.4 million in August 2006.4 Due totheir failure to pay rent, residents have been evicted or threatened with eviction. Followingreports of evictions, COHRE and CALS were drawn to the situation at Willow Gardens toinvestigate. When interviewed, residents attributed the large number of rent defaulters to theMunicipality's policy of imposing rental increases of 15 percent per annum since 20005 - a rate fargreater than the rate of inflation. The Municipality's own documents state that, "rental for newlettings of State-funded and Council-owned housing escalates at a rate of 15% per annum as perCouncil Resolution, until 'break even' market rentals are reached."6

Willow Gardens Flats

Built in the 1960s, the Willow Gardens complex contains 207 units and houses more than 1 000people, within relatively close proximity to the city-centre and the central business district. Theflats vary in size from single-bedroom to three-bedroom apartments. Originally for exclusive

1 Msunduzi Municipality, 'Status report on the update of councils housing waiting list and to review income limitsfor councils rental stocks' [28 Oct. 2005]; Msunduzi Municipality, 'Integrated Development Plan' [May 2002]

2 Councillor Glenn McArthur. 'Housing Fiasco' The Witness, [1 Oct. 2005]3 Mark Steele, 'Msunduzi Municipality Housing Issues'The Witness, [Aug. 2005]4 Mbongeni Zondi, 'Avoiding eviction and rent payments'Daily News [25 Aug. 2006]5 Msunduzi Municipality, 'Tariffs & Charges'1 July 2005 to 30 June 2006'; Msunduzi Municipality, Written

submission by Sound Governance and Human Resources Strategic Business unit (legal Division) for the RentalTribunal, REF No 12.2.3.1 [18 Jul. 2005]

6 Ibid, Msunduzi Municipality, 'Tariffs & Chargest'.


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occupation by poorer whites, the racial mix has changed in the post-apartheid period after racialsegregation was abandoned as official policy. At this time, in 1994, flats were designated for low-income tenants and applicants were required to earn a maximum salary of R1 200 in order toqualify for housing at Willow Gardens.7

However since 2000, the Msunduzi Municipality has effectively abolished this ceiling limit andinstituted a minimum income level.8 As of 2006, the minimum income level necessary to qualifyto be placed on the Municipality's waiting list was R3 500 per month. Furthermore, in order toqualify for a flat at Willow Gardens the minimum income level was between R4 525.60 for abachelor flat and R7 240.86 for a three-bedroom flat, reflecting an increase of between 377percent and 603.4 percent from the original maximum ceiling or an average annual increase ofbetween 23 percent and 41.9 percent.9 These increases accommodated the rental increases of 15percent per annum, as the Municipality's policy requires that the rent should not constitute morethan 20 percent of an applicants gross income.10

Springbok flats: One block part of the Willow Gardens complex

Rent-related evictions

As growing numbers of tenants were unable to make their payments, the Municipality began to

issue eviction notices, and to carry out evictions. Once a unit becomes vacant, the Municipalityprovides the unit to relatively better-off applicants people with salaries that meet the newminimum stipulations. Residents of Willow Gardens have concluded that the Municipality isimplementing a clear and sustained strategy, calculated to force poorer tenants to vacate theirhomes. The Municipality's policy of escalating rental rates at 15 percent per annum to achieve'break even' market rentals will effectively end the Msunduzi Municipality's provision of socialhousing in Pietermaritzburg.

7 C. Werner, Chairperson, Willow Gardens Residents Committee [personal communication] [22 Nov. 2006]8 Msunduzi Municipality, Written submission by Sound Governance and Human Resources Strategic Business unit

(legal Division) for the Rental Tribunal, REF No 12.2.3.1 [18 Jul. 2005]

9 Msunduzi Municipality, 'Tariffs & Charges'1 July 2005 to 30 June 2006'10 Msunduzi Municipality, 'Status report on the update of councils housing waiting list and to review income limits

for councils rental stocks' [28 Oct. 2005]


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As the resident above relates, the Municipality evicted her family without the legally requiredcourt order or sufficient notice and in her absence. Her child died two weeks later.

Socioeconomic status of the Willow Gardens Residents

In 2005, the Willow Gardens Residents Committee conducted a random sample survey of 54units at Willow Gardens to ascertain the socioeconomic status of residents and to betterunderstand the crisis of rent affordability. The Residents Committee required an official pay slipfrom each participant and ensured that all information was confirmed before a commissioner of

oaths. A brief synthesis of the survey information is detailed below and shows how arrearsspiralled as the rents increased.

Income

The average income per month for the residents of Willow Gardens was R1 773.76. Figure 1shows the source of income for most tenants as employment (90 percent), with social grants(seven percent) and pensions (three percent) constituting the remainder. This shows that themajority of tenants are employed and obtaining regular salaries.

Figure 1: Source of income at Willow Gardens

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Employment Social grants Pensions

I got a call at work from my neighbour to say that the Municipality had evicted me. I wasshocked and came home to find all my furniture and clothing outside on the grass. I have adisabled child and she was just left with the furniture in the hot sun. She was having a fit andI had to rush her to hospital. - Willow Gardens resident


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Rent

Figure 2 shows the rent as stipulated on the lease agreement between the tenant and theMunicipality against the rent currently required by the Municipality. The rent stipulated on thelease agreement averaged at R568.90 per month. In 2005, the average rent had increased to

R1 023.25 per month. Figure 3 shows that on average, rent currently constitutes more than half(58 percent) of tenants incomes.

Figure 2: Rental increase at Willow Gardens

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Rental stipulated on lease agreement (Average) Current rental (Average in 2005)

Figure 3: Rent vs income at Willow Gardens

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Average rent stipulated on lease agreement Current rental (average in 2005) Total income of tenants (average in 2005)


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Municipal logic for rental increases

In an attempt to justify the rental increases, the Msunduzi Municipality Housing and CommunityServices Committee reported to the Msunduzi Municipality Executive Committee (EXCO)11 thatthey were the result of:

The effects of the Prevention of Illegal Eviction from and Unlawful Occupation of Land(PIE) Act; High unemployment levels; and Abscondments.

None of these reasons stand up to logical scrutiny however. First, the rental increases cannot beattributed to the PIE Act as this Act, intended primarily to prevent evictions and protect illegaloccupiers and residents from illegal eviction, only provides for carefully regulated legal eviction

where property has been illegally occupied, which is not the case for Willow Gardens residents.As a perverse result, however, the crisis created by the Municipality's actions (to increase the rentsbeyond levels of affordability) means that, in a certain sense, the PIE Act might apply because

many of the residents have had their leases terminated as a result of being in contravention oftheir lease agreement - usually as a result of the non-payment of rent. Theoretically, theseresidents might now be considered 'illegal occupiers'. Even so, it must be noted that no legalaction has been taken by the Municipality with reference to the PIE Act. The only disputecurrently underway, in some legal form, is as a result of the Willow Gardens ResidentsCommittee lodging a complaint with the KwaZulu-Natal Rental Housing Tribunal12 precisely tocontest the unfair rental increases and notices to vacate. The second 'justification' offered is thereference to high levels of unemployment. Certainly unemployment is unacceptably high but logicdoes not stand that the appropriate response by the public authority responsible for providingaccommodation for the poor would be to increase the rentals of the people affected. The finalreason offered by the Committee was that rent increases were implemented due to abscondments

(i.e. people abandoning their flats). This seems to be the least reasonable of all the justifications.

In a meeting with the Municipalitys senior legal advisor, Mr Kass Thaver, COHRE and CALSestablished that there is no rational basis in law for the rental increases. In that meeting, Thaverclaimed that the rental increase was instituted in accordance with the National Housing Act 107of 1997 (NHA). An EXCO meeting on 7 December 1999 resolved: That the City EstatesDepartment bring to the attention of the residents, the implications of the new Housing Act(107/97), which requires, inter-alia that fair market rentals be levied.13 However, the Housing

Act makes no mention of increasing rentals to achieve 'fair market' rates. In fact, it is COHREand CALS' position that increasing the rent of Municipal housing at rates of 15 percent perannum, as a calculated policy to remove the lowest-income residents, is in direct contradiction of

the purposes of the National Housing Act. Rather than ensuring that rentals did not constitutemore than 20 percent of current residents incomes, the Municipality deliberately created theconditions for excluding poorer tenants by only offering accommodation to better-off applicants

where the new, market-related rental did not constitute more than 20 percent of the applicantsgross income (i.e. the applicant had to earn a minimum of R3 500). Predictably, residents who

11 Msunduzi Municipality, 'Report by Strategic Executive Manager Infrastructure Services and Facilities forInfrastructure Services and Facilities Committee' REF No 1/-/3(6) Housing Administration Division; 'QuarterlyReport on Housing', Statistics for the period 1 January 31 March 2006, [8 May 2006]

12 Discussed further below.13

Msunduzi Municipality, Written submission by Sound Governance and Human Resources Strategic Business unit(legal Division) for the Rental Tribunal, REF No 12.2.3.1 [18 Jul. 2005]


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signed lease agreements under the old rental regime could not meet the new requirements and fellinto arrears.

Although the legal basis and reasoning for these changes is highly suspect, the alignment ofrentals with market-related pricing does at least provide a coherent explanation for theMunicipality's actions in a way that references to abscondment, unemployment, and legislationto prevent illegal evictions do not.

Alternatives on the table

As a result of the rental increases, tenants have been forced to consider the alternative presentedto them by the Municipality. In August 2005, the Municipality resolved that all tenants who aredeclared 'indigent' and who are residing in Municipal rental housing stock would be offeredalternative accommodation. People who applied to be declared indigent (which means admittingthat they are earning less than R1 956 per month), and who accept the offer of alternativeaccommodation, would be granted rental relief and a moratorium on rental arrears. Those whodo not apply for indigent status and refuse alternative accommodation will be subject to normalcredit control procedures - and eviction.

France

The Municipality has offered alternative accommodation to 'indigent' residents in a low-costhousing development called France. This development is situated on the outskirts ofPietermaritzburg, some 15 km from the city centre. Residents of France complain that transportis a significant problem because it is expensive to commute. Additionally, the infrastructure atFrance is basic: a 30 sq. meter single room structure with a cold water tap and a toilet.

The alternative accommodation on offer at France

I live in a bachelor flat at Willow Gardens. Presently I am unemployed butreceive a social grant of 780 rand per month. My rent is 760 rand permonth. So I have 20 rand to feed myself! Willow Gardens Resident

We know that people cant afford current rentals. Kass Thaver, Municipal Legal Advisor(19 October 2005)


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Accommodation at France is not at all comparable to residences at Willow Gardens. These are100sq. meter flats that are fitted with a hot water geyser, one, two, or three separate bedrooms, afitted kitchen, and a bath in the bathroom. Clearly therefore, the accommodation on offer atFrance is not an equivalent or adequate alternative for Willow Gardens residents, particularly forthose with families.

Selling the Willow Gardens flats

In July 2001, the Municipality considered selling the Willow Gardens Complex. One option wasto sell the complex to the Msunduzi Housing Association (MHA), a non-profit institution.14 TheMHA already owns or manages other former Municipal housing stock in the city. In fact, 75 unitsof Municipal stock have been transferred to MHA management in recent years. The MHA

continues to increase its asset base in order to expand its rental accommodation developments. In2001, the MHA proposed to the Municipality an offer to purchase the flats at the then current

value of rental arrears, of R700 000 per annum.15 However, the MHA was not willing to buyWillow Gardens unless it was a viable business. In light of this, the strategy of increasing therentals also coincided with the Municipality's preparation for the sale of the flats.16

However, the Willow Gardens Residents Committee resisted the proposal that the flats be soldto, or administered by the MHA. The residents said that the units should rather be sold directly tothem.17 Faced with the insecurity of ongoing threats of eviction and unaffordable rentals, it isperhaps not surprising that a subsidised route to private ownership (via the EEDBS - see below)currently looks like an attractive option to many current residents. Whether or not private

ownership in the housing market would in fact turn out to be more secure for poor tenantsremains an open question.

The Enhanced Extended Discount Benefit Scheme (EEDBS)

In December 2005, the Enhanced Extended Discount Benefit Scheme (EEDBS) was enacted.This is a national policy aimed at facilitating the transfer of public housing stock to occupants.18 Itsupersedes the previous 'Discount Benefit Scheme' and 'Phasing Out Programme'. Although theEEDBS took effect in December 2005, the Municipality has not implemented this policy for itsrental housing stock.19

The sale of the Willow Gardens flats under the EEDBS would have to take the following intoconsideration: Willow Gardens comprises four schemes built between 1965 and 1971. WillowGardens 1 (36 units), 2 (36 units) and 3 (105 units) were built with State funds and WillowGardens 4 (30 units) was built with Municipality funds.20 The sale of these schemes is dependenton the authorisation of the funders. However, this is complicated by the fact that the

14 The MHA is discussed further below.15 Chetty, M, 'Proposal: Transfer of Council Stock Willow Gardens Flats', Msunduzi Housing Association.16 'Sale of Willow Gardens Complex', report by the city treasurer and the Willow Gardens Working Group, [20 Jul.

2001]17 Sherlissa Peters, 'Residents to march over rents increase',Daily News [27 Jul. 2005]18 'Policy Framework and Implementation Guidelines for the Enhanced Extended Discount Benefit Scheme', 2005.

19 Acting Director of Assets Management, personal correspondence to COHRE and CALS, [Mar. 2006]20 'Sale of Willow Gardens Complex', report by the City Treasurer and the Willow Gardens Working Group, [20 Jul.

2001]

The Willow Gardens flats, at current property value, are worth tens of millions of Rand. Mayesh Chetty CEO MHA, 13 October 2005.


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administration of all four schemes is managed by the Municipality. Any sale is thereforedependent on the Municipalitys ability and will to implement this.

The Municipality's approach to the question of selling the flats appears to be driven by itsassessment of financial costs and benefits for the Council members. Presently, the substantial

rental arrears have prohibited the privatisation of these flats. The Chief Executive Officer (CEO)of the MHA confirmed this to COHRE and CALS, saying that the MHA would not considerowning these flats if residents were R2 million in rental arrears.21

Tenants' resistance

The rental increases and subsequent evictions have sparked deep anger within the WillowGardens community. Consequently, residents have organised public actions to highlight theseissues, including a series of street protests and the presentation of memoranda to theMunicipality.22 When the Municipality largely ignored these actions, the Willow Gardens residentsembarked on a rent boycott. The boycott action drew public attention to the turmoil in the flats

and it also escalated the cumulative scale of the rental arrears for the Willow Gardens flats.23

InOctober 2006, the boycott was halted as negotiations opened between the Municipality and theWillow Gardens Residents Committee. To date, the Residents Committee and the Municipalityhave not negotiated a process of debt recovery, but the Residents Committee has ended the rentboycott. Many residents have resumed paying the rental stipulated on their original leaseagreements until such time as the rental dispute is resolved, although some residents continue torefuse to pay.

On 27 February 2006, the Willow Gardens Residents Committee met with Mr. Ahmed Osman,the Acting Director of Property Management for the KwaZulu-Natal Department of Housingand Mr. Grobler, representing the Msunduzi Municipality. One of the resolutions of the meeting

was that the Municipality would consider the issue of selling Willow Gardens Flats to currentresidents under the EEDBS.

The outcome of the meeting, as residents understood it, was a promise from Mr. Osman to writeto the Msunduzi EXCO to suggest that the flats at Willow Gardens be sold at historical pricesunder the EEDBS. Additionally, residents understood that they had reached an agreement on thefollowing:

The municipal housing stock will not be transferred to the Msunduzi HousingAssociation.

A moratorium is placed on evictions, and threats of evictions, from the Willow GardensFlats until the housing disputes have been settled.

People earning less than R3500 per month will be able to purchase the flats at historicalprices and be able to access a first time home owner subsidy. All rental arrears will bepardoned for those earning less than R1956 per month. Those earning between R1956and R3500 per month will be pardoned 50% of their arrears.

People earning more than R3500 per month will be able to purchase the flats atnegotiated prices.

21 Chetty, M, personal communication, [13 Oct. 2005]

22 Matt Saville, 'Residents demand debts be scrapped' The Witness [29 Jul. 2005]23 Lindsay Barnes, 'Municipal billing scandal' The Witness, [22 Oct. 2005]; Sibusiso Mbotho, 'Willow Gardens

R1.5m upaid rent: Municipality at a loss to recover funds,Daily News, [18 May 2005]


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Low cost housing, close to the central business district, will be made available for otherresidents who do not purchase flats. The area designated for this development isNapierville.

Following this meeting, COHRE and CALS sent a letter to Mr. Osman and Mr. Grobler on 10

March 2006 (please see Appendix 1). This letter summarised the outcomes of the meeting andset out the Msunduzi Municipalitys obligations under international human rights law and theSouth African Constitution, which prohibit the Municipality from evicting the residents of

Willow Gardens without the provision of suitable alternative accommodation.

On 23 March 2006, COHRE and CALS received a response from Mr. Osman regarding the saleof the flats (please see Appendix 2). He confirmed that the Municipality had not considered themost recent changes in policy since the enactment of the EEDBS, but that the Municipality nowrequested time to study and propose a sales process in terms of the EEDBS. He reported thatMr. Grobler intended to make a proposal to EXCO by the end of March 2006. At the time of

writing this report, COHRE and CALS had not received a response from Mr. Grobler or any

other representative of the Msunduzi Municipality to our letters. Neither has there been anyindication that the Municipality is implementing the resolutions adopted in the meeting with the

Willow Gardens Residents Committee on 27 February 2006.

The KwaZulu-Natal Rental Housing Tribunal (KZNRHT)

The KZNRHT is the provincial body responsible for resolving disputes in matters pertaining torental housing, property management and housing development.24 The Willow Gardens ResidentsCommittee lodged a complaint with the Tribunal in July 2005 concerning the unfair rentalincreases and the Municipality's failure to provide notices to vacate. The Tribunal's attempts tomediate between the Municipality and the Willow Gardens Residents Committee have failed to

resolve the dispute. A subsequent process of arbitration has been running since the beginning of2006 and the matter remains unresolved. This is a result of poor communication between partiesconcerning the dates set for hearings and the Municipality's delays through their in limineassertionthat this matter was outside the jurisdiction of the KZNRHT competency. This in limineargument was eventually rejected by the KZNRHT but not without stalling the process for threemonths. Over a year later, a decision by the KZNRHT in the matter between Willow GardensResidents and the Municipality is still pending, residents are living in an incredibly insecuresituation without viable housing alternatives, and rental arrears continue to increase.

The toll of the rental dispute

The unresolved dispute over rentals has taken its toll on the Willow Gardens community. Anumber of residents have moved out of their flats to find alternative accommodation in order toescape the threat of eviction.

The condition of the buildings of Willow Gardens has deteriorated as a result of the dispute. Astand-off between the Municipality and the residents was reached whereby the residents refusedto pay rent and the Municipality refused to proceed with maintenance stating a lack of funds dueto the growing number of rent defaulters.

24 Western Cape Provincial Department of Local Government and Housing, 'Annual Report: 1 April 2004 to 31March 2005' http://www.capegateway.gov.za/Text/2006/5/rental_hous_trib_annual_report_04_05.pdf.


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Willow Gardens in disrepair

Rental housing stock under the control of the Msunduzi HousingAssociation

The Msunduzi Housing Association (MHA) was formed by the Municipality to assist with theadministration of the citys rental housing stock in 1999. It was set up as a Section 21 non-profitSocial Housing Institution. The Municipality transferred 75 units (of the Municipality's 377 units)to MHA management in 1999.25 The MHA also financed its own 300-unit complex called Acacia

Park. Acacia Park cost R20.5 million to build and requires R300 000 in bond repayments everymonth. However, this bond is paid through rental payments and a R600 000 annual socialhousing subsidy from the Municipality.26

The MHA also has imposed rental increases on all rental stock under its management. At AcaciaPark, in the period from July 2004 to July 2006, the MHA increased rental rates by 20 percent

without consultation with the residents. In response, the residents filed a complaint with theKZNRHT, however the Tribunal decided that tenants should continue to pay the increasedrentals.27


26 Duma Pewa, 'Housing group is being very naughty' The Witness [13 Oct. 2006]27 Sandile Ndawonde, Acacia Park resident, [personal communication]; KwaZulu-Natal Housing Tribunal, case

number 1362/06

Mission of Msunduzi Housing AssociationTo develop the social housing agency to provide affordable, quality, integrated, well managedrental-housing units for the lower-middle income earners of the Msunduzi Metropolitan areathrough a transparent participative process. Residents Guide MHA, p6


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As low-income earners are being forced to pay rents that they cannot afford, the MHA seems tohave shifted away from its mission of providing social housing. Mayesh Chetty, CEO of theMHA, states: The 3 500 10 000 rand bracket is the most marginalized group. This is thebracket we want to target.28 The MHA maintains that they will not cater for people earning lessthat R3 500 with their social housing scheme.

The only alternative form of social housing available to low-income residents of Pietermaritzburgis through the Reconstruction and Development Programme, known as RDP housing, which, asindicated before, is poorly situated, grossly inadequate and over-subscribed. As a result, thenumber of poor people informally building and renting shacks continues to grow.

Ash Road Informal Settlement

Homes at Ash Road

Across the Masukwane River from the Willow Gardens Complex is the Ash Road shacksettlement. Estimates vary as to how many people live here. A leading rent collector from thesettlement suggests there are 500 residents (though this may be a deliberate undercount to hidethe rental income being extracted). Others who work with community structures estimate thatthere are between 1 500 and 2 000 residents. It is situated on Municipal land that is currentlyzoned as an industrial area. The accommodation consists predominantly of mud and wattledwellings that are rented by residents, who are otherwise unable to access housing close to thePietermaritzburg city centre. There are just three taps supplying water; there is no electricity; andthe Municipality does not provide regular services such as refuse removal to this community.Rubbish heaps overflow for months before the Municipality eventually undertakes collection.However, the attraction of Ash Road is that it is close to schools, public services and amenities.


In 1994 we came from the Natal Midlands (Elandskop, Sweetwaters, Phumuza). We stayed intown under the trees or in backyards. The Municipality told us to live here [Ash Road], but in1995 they told us to move to France. Ash Road resident (October 2005)

If you earn less than 3 500 rand, there is only an RDP house for you. Mayesh Chetty CEOMHA


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The overflowing refuse bins at Ash Road wait for months before collection

The majority of Ash Road residents derive a living through the informal sector. They sell foodand merchandise, and are dependent on jobs as day labourers or other jobs within the informalsector, where they are vulnerable to what can only be described as exploitation. Living within

walking distance of the city centre enables Ash Road residents to retain access to employment, asthey may not otherwise be able to afford increasing transport costs.

Evictions at Ash Road

The Municipality has been attempting to evict residents at Ash Road for a number of years, but amajority of people there have resisted. In 2002, the people won a significant victory when thePietermaritzburg Magistrates Court ruled against the Municipalitys application for an evictionorder.29 The Municipality continues to seek justifications for their eviction from Ash Road recently arguing that that the settlement is located on a dangerous flood-zone. There is, however,little substantial evidence to support this. COHRE and CALS uncovered a report by anengineering consultancy that had surveyed the Ash Road settlement in order to determine

whether an in situ upgrade would be feasible. Their findings indicated that Ash Road was, in fact,a suitable site for a residential area. In the report, the cost of the provision of necessaryinfrastructure was estimated to be fairly low due to the flat nature of the site and its proximity toexisting electricity and sewer mains.30 It is our concern that the real motivation for Municipality'scontinuing threat to evict people here is their intention to develop the land, which is nowextremely valuable.

29 Residents of Ash Road Informal Settlement, focus group session, [18 Oct. 2005]30 Eyethu Engineers CC, 'Ash Road informal settlement area proposed infrastructure development' [29 Jun. 2000]

We have part time jobs, tins (recycling), selling fruit. Ash Roadresident

Ngidayisa Imfino (I sell blackjack stew) - Ash Road resident

They [the Municipality] telling us about the flood plain. They told us we cant live here. Theengineer came to check the flood plain, sewage and so on. They gave us a letter to say it issafe. - Ash Road resident

There is a 100 year-old Catholic Church 100 metres from the river and there is no floodthere. - Ash Road resident


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However, evictions have occurred in the past and residents were relocated to a low-cost housingdevelopment called France, where the Municipality allocated low-cost housing and providedaccess to Government housing grants.

France

The Municipality has been applying pressure to the Ash Road settlement to take the option offormal, low-cost housing. The France accommodation (as described earlier) is situated 15 kmfrom the city centre. Like many low-cost housing developments it has an electricity supply, streetlighting and each house has running water and proper toilet facilities. However, France is withouta clinic or schools.31

A number of Ash Road residents moved to France when they were threatened with eviction bythe Municipality. Although some were apparently enthusiastic to be home owners, life at Franceplaced an intolerable strain on residents resources. Commuting into the city in search of work orinformal employment was costly. Transport costs consumed what little money was ever madethrough day labour or other work in the informal sector in the city. As a result of the economichardships encountered at France, some people returned to the shacks at Ash Road, and otherareas closer to the Pietermaritzburg central business district to take up residence there again.

Conclusions

The Municipality's Integrated Development Plan (IDP) of 2002 noted that "the Municipality isobliged to take reasonable steps to ensure that its residents have access to appropriate andadequate housing" as required by the Housing Act 107 of 1997. The IDP also estimated that thehousehold income of the 116 540 households in the City was as follows32:

Number of households Income level per year Income level per month16 230 households No income No income

41 560 households R18000 R1 50054 460 households 18 000 - 131 000 up to R11 0004 290 households R132 000+ R11 000+

These statistics show that approximately 50 percent of households or 57 790 households hadincomes of R1 500 per month or less in 2002. Thus, more than 50 percent of the population

would be unable to qualify simply to be placed on the Municipality's waiting list for housingdedicated for low-income residents, as the minimum income level required is R3 500 per month.

31 Bongani Hans, 'Ash Road settlement is home' The Echo [9 Dec. 2004]32 Msunduzi Municipality, 'Integrated Development Plan' [May 2002]

We find it difficult to get to town from France. Here [Ash Road] the nearest school is inSobantu schooling is near to us, clinic everything. former France resident

Some people have returned from France and built their houses close to the river. Others areat Sobantu village. They couldnt cope with life at France. Ash Road resident


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In terms of the National Housing Code, households who earn R3 500 or less may qualify forhousing subsidies. By requiring new residents to have an income of at least R3 500, theMunicipality is ensuring that only residents who do not qualify for housing subsidies will be ableto rent state-owned housing in Pietermaritzburg. To say the least, this is perverse. Municipalhousing in Pietermartizburg is no longer a form of social security. The rent increases are clearly

an attempt to increase the Municipality's income by squeezing its most vulnerable residents.

COHRE and CALS maintain that there is no rational basis for the Municipality to increase rent atsuch an extreme rate (at least 15 percent per annum since 2000), up to three times the rate ofinflation. This policy creates an unreasonable burden for low-income residents, many of whomare unlikely to be able to re-accommodate themselves if evicted from Willow Gardens. The saleof the Willow Gardens flats to the MHA would only continue the current trend of rentalincreases instituted by the Municipality. The purchasing by tenants of their own rental unitsthrough the EEDBS does offer an alternative, but its long-term effects on the tenure security ofresidents is very much in doubt due to their low incomes and relatively high market rates. In anycase, the affordability of this option remains to be determined and the Municipality has been

resistant to this option. Institutions, such as the MHA, that manage housing stock under thebanner of social housing must be supported to provide such housing, and it is the Government'sresponsibility to hold such institutions accountable in this service.

COHRE and CALS contend that the approach the Municipality has taken with regard to itshousing stock may be in violation of Section 26, or any sub-section therein, of the South AfricanConstitution.

Section 26 of the Constitution states:(1) Everyone has the right to have access to adequate housing.(2) The State must take reasonable legislative and other measures, within its available resources,

to achieve the progressive realisation of this right.(3) No one may be evicted from their home, or have their home demolished, without an order ofcourt made after considering all the relevant circumstances. No legislation may permit arbitraryevictions.

This is also in accordance with international law which holds that States must respect, protect, andfulfillthe right to adequate housing. In order to respectandprotectthis right, there is an: "obligationplaced upon the State and all other entities' and persons to desist from preventing or impairingthe right of access to adequate housing."33 as stated in Government of the RSA v Grootboom2001. However, the State must also progressively realise this right. A recent judgement by theSupreme Court of Appeals (SCA) further clarifies this constitutional obligation, stating that

"government, at every level in varying degrees, is constitutionally obliged to realize the right ofevery person to have access to adequate housing" and "the enormity of meeting that commitmentcannot excuse inaction on the part of government."34

In relation to Section 26 (3), the Constitutional Court has explained that a deprivation of propertymay be found to be "arbitrary" in two respects: it may be procedurally arbitrary, because theprocedure is unfair; and it may be substantively arbitrary, in that there is not sufficient reasonfor it.35

33 Government of the RSA v Grootboom 2001 (1) SA 46 (CC), 2000(11) BCLR 1169 (CC) at [34]

34 City of Johannesburg v Rand Properties (pty) Ltd 2007 SCA 25 (RSA) at [72]35First National Bank of SA Ltd t/a Wesbank v Commissioner, South African Revenue Service and Another2002

(4) SA 768 (CC) at [100].


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Furthermore, the constitutional injunction to consider all the relevant circumstances is anattempt to ensure that considerations counting for and against the execution of an eviction in agiven context will be weighed carefully and judiciously before a person is deprived of access totheir current home, or, indeed, to any permanent home.

In Port Elizabeth Municipality v Various Occupiers36

(Port Elizabeth Municipality) the ConstitutionalCourt had this to say on the purpose of the provision:

The judicial function [in adjudicating an eviction application] is not to establish a hierarchicalarrangement between the different interests involved, privileging in an abstract and mechanicalway the rights of ownership over the right not to be dispossessed of a home, or vice versa. Ratherit is to balance out and reconcile the opposed claims in as just a manner as possible taking accountof all the interests involved and the specific factors relevant in each particular case.

In the case of Willow Gardens, the Municipality has placed residents in desperate circumstancesby evicting them. If evictions continue, the Municipality will certainly force many residents intohomelessness. They will be deprived of access to any housing at all, let alone adequate housing.

The Municipality has failed to provide a sufficient reason for the compound rental increases of atleast 15 percent per annum, and has thus failed to provide a sufficient reason for the evictionsand threatened evictions. Rather than progressively realising the right to access adequate housingfor the more than 57 790 households that cannot afford market rentals, it has instituted aregressive policy that will cause further homelessness.

Whilst adequate housing in the Pietermaritzburg area remains out of reach for the majority ofpeople, it can be expected that informal tenure arrangements will continue to increase on vacantland. The Municipality should carefully consider possibilities for in situ upgrading for shacksettlements in consultation with the affected residents. The Municipality should also involve low-income residents in the overall process of dealing with the housing demand in the city. The

Msunduzi Municipality should also consider undertaking informal settlement upgrading under theterms of the National Policy of Breaking New Ground.37 This policy was developed in responseto the realisation that housing delivery and relocation is disruptive to peoples lives and does notcurb the mushrooming of informal settlements. This plan details the new funding mechanism forinformal settlement upgrading.

The Municipality has a responsibility to provide adequate housing to their constituents.Discrimination against the poor violates peoples right to housing. The Housing Code (please see

Appendix 3) highlights the responsibilities that municipalities have towards the provision ofhousing. Tenure security for both the formal Willow Gardens residents and the shack-dwellersof Ash Road remains distant as the Municipalitys current housing and land managementpractices continue to push the poor to the periphery.

36Port Elizabeth Municipality v Various Occupiers 2004 BCLR 1280 (CC), E-F37 National Department of Housing 'Breaking New Ground: A Comprehensive Plan for Developing Sustainable

Human Settlements' [Sept. 2004]


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Appendix 1

10 March 2006

Mr Ahmed OsmanActing Director of Assets ManagementKwaZulu-Natal Department of HousingFax: (031) 336 5240

Re: HOUSING IN PIETERMARITZBURG

The Centre on Housing Rights and Evictions (COHRE) is an international non-governmental organisation mandated to protect and promote housing rightsthroughout the world. COHRE has Consultative Status with the United Nations, as

well as similar status with various inter-governmental organisations around theworld, including the African Commission on Human and Peoples Rights.

The Centre for Applied Legal Studies (CALS) is a human rights and public interestlaw organisation based at the University of the Witwatersrand, Johannesburg.

COHRE and CALS have been monitoring the situation of the Msunduzi MunicipalHousing Stock in Pietermaritzburg in recent months, and have taken note of somedisturbing reports of potential housing rights violations.

In particular, according to information at our disposal, the Municipality has evicted,and/or threatened with eviction, residents from Willow Gardens Flats in a manner

which has violated South Africas legal obligations under international human rightslaw, as well as the South African Constitution. Residents have been evicted and/orthreatened with eviction for their failure to pay rent. However, most tenants havebeen unable to keep up with the 15% compound annual increases introduced by theMunicipality in 2002. The Municipality's actions in this regard have created a well-grounded fear that it is systematically increasing rates of rental year on year in amanner calculated to encourage poorer tenants to vacate their homes. There is norational basis for the Municipality to increase rent at such an extreme rate, up tothree times the rate of inflation. This policy is unreasonably burdensome for low-income residents, many of whom are unlikely to be able to re-accommodatethemselves if evicted from Willow Gardens.

According to international human rights law, for evictions to be considered aslawful, they may only occur in very exceptional circumstances and all feasiblealternatives must be explored in consultation with affected persons. However, incases where eviction is considered justified, it must be carried out in strict

complaince with the requirements of


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General Comment No. 7 of the Committee on Economic, Social and Cultural Rights. Theseinclude, inter alia:

Genuine consultation with those affected; Adequate and reasonable notice for all affected persons prior to the scheduled date

of eviction;

Information on the proposed evictions, and where applicable, on the alternativepurpose for which the land or housing is to be used, to be made available inreasonable time to all those affected;

All persons carrying out the eviction to be properly identified; Evictions not to take place in particularly bad weather or at night unless the affected

persons consent otherwise;

Provision of legal remedies; and Provision, where possible, of legal aid to persons who are in need of it to seek redress

from the courts.

COHRE and CALS have worked closely with residents of Willow Gardens and, of late, theresidents have had some success with achieving an agreement with the authorities. Mr. AhmedOsman, the Acting Director of Assets Management of the Department of Housing of KwaZulu-Natal, provided clarity to the residents of Willow Gardens on their status during a meeting on 31

January 2006. The outcome of the meeting was a promise from Mr. Osman to write to theMsunduzi EXCO to suggest that the flats at Willow Gardens be sold at historical prices. Mr.Osman also promised to send the minutes from the 31 January meeting to the Willow GardensResident Committee. However, the residents have not yet received these minutes.

COHRE, CALS and the residents of Willow Gardens understand that historical prices will becalculated in order to ensure that they will be genuinely affordable to the current occupiers ofeach of the flats.

Additionally, we understand that the letter to be sent by Mr. Osman to the Msunduzi EXCO willrecord the following agreement between the Willow Gardens Residents Committee and Mr.Osman, reached at the meeting on 31 January 2006:

The municipal housing stock will not be transferred to the Msunduzi HousingAssociation.

A moratorium will be placed on evictions, and threats of evictions, from the WillowGardens Flats until the housing disputes have been settled.

People earning less than R3500 per month will be able to purchase the flats at historicalprices and be able to access a first time home owner subsidy. All rental arrears will bescrapped for those earning less than R1956. Those earning between R1956 and R3500

will be pardoned 50% of their arrears.

People earning more than R3500 per month will be able to purchase the flats atnegotiated prices.

Low cost housing, close to the CBD, will be made available for other residents who donot purchase flats. The area designated for this development is Napierville.

COHRE and CALS are most encouraged by the action on the part of Government to amicablyresolve the housing issues at Willow Gardens and urge the Msunduzi EXCO to prioritise the

settlement of this case with the full participation of residents. Additionally, COHRE and CALS


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urge the Municipality to take part in negotiations with residents involved in all other disputes overhousing with the Msunduzi Municipality.

COHRE and CALS also understand that the Municipality would like to undertake anenumeration exercise to determine who of the Willow Gardens residents can afford to purchase

flats, although the Municipality does not have the budget for this. We would like to offer tocontract an independent party to conduct a survey of Willow Gardens residents through amethodology that is mutally agreed upon by residents and the Municipality. We look forward toyour response and an ongoing dialogue with you on these matters. We will be contacting youroffice shortly to follow up.

Sincerely,

Jean du Plessis Professor Cathi AlbertynCOHRE Deputy Director Director83 Rue de Montbrillant Centre for Applied Legal Studies1202 Geneva University of the WitwatersrandSwitzerland Wits 2050

Tel: +41.22.7341028 JohannesburgRSA tel: +27.82.5575563 Tel: +27.11.7178600Email: [email protected] Email: [email protected]

For: Scott LeckieCOHRE Executive Director

CC:Mr Sipho GcabasheKZN Member of ParliamentFax: (031) 307 5400

Mr GroblerHousing Msunduzi MunicipalityFax: (033) 3951706

Msunduzi Municipality Executive Committee (EXCO)Fax: (033) 3951501

Ms Z. NyanduHoD for HousingFax: (033) 8452085

Mr Michael MabuyakhuluMEC for Local Government, Housing and Traditional AffairsFax: (031) 3681725

Willow Gardens Residents Committee


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Appendix 2


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Appendix 3

The National Housing Code explains the National Housing Policy in South Africa. Itconsolidates all housing information into one document that is disseminated to every ProvincialGovernment and municipality.38 It is the aim of this section to highlight the responsibilities of

municipalities under the Housing Code.

1. Municipalities are under an obligation under the Housing Code in Chapter 12:Housing Assistance in Emergency Housing Circumstances to take a proactive approach todealing with people in desperate need whose immediate housing needs cannot be met. Chapter12 pertains to people who find themselves "in an emergency housing situation such as the factthat their shelter has been destroyed or damaged, their prevailing situation poses an immediatethreat to their life, health and safety, or they have been evicted, or face the threat of imminenteviction."

2. Municipalities are under a further obligation under the Housing Code in Chapter 13:

Upgrading of Informal Settlements to take proactive measures to secure the in situ upgrading ofinformal settlements where feasible.

3. Section 9 of the Housing Act and Paragraph 12.4.1 of Chapter 12 of the Housing Coderequires municipalities to investigate and assess the need for emergency housing within their areasof jurisdiction and to plan proactively therefor. If the circumstances do merit the submission ofsuch a plan for approval to the Provincial housing department, the municipality must submit one.

4. The guiding principle of Chapter 13 of the Housing Code is the minimization of disruptionand preservation of community within informal settlements. Thus, it discourages thedisplacement of households and acknowledges that only in certain limited circumstances may it

be necessary to permanently relocate households that are living in hazardous circumstances or inthe way of essential engineering or municipal infrastructure. Legal processes for eviction shouldonly be initiated as a last resort.

5. Under either Chapter 12 or 13 of the Housing Code, rather than eviction, a municipality mustpurchase the land on which an informal settlement is situated and upgrade the settlement in situ,alternatively, provide alternative accommodation for the inhabitants.

6. In his judgement in City of Johannesburg v Rand Properties (Pty) Ltd and Others 2006 (6)BCLR 728 (W) the judge summed up the housing policy as follows:

"The Housing Act imposes specific obligations on local government in this regard. Section 9 requires everymunicipality to take all reasonable and necessary steps within the framework of national and provincial housinglegislation and policy to: ensure that the inhabitants of its area of jurisdiction have access to adequate housing on a

progressive basis; set housing delivery goals in respect of its area of jurisdiction; identify and designate land forhousing development4 ensure that conditions not conducive to the health and safety of the inhabitants of its area of

jurisdiction are prevented or removed;create and maintain a public environment conducive to housing developmentwhich is financially and socially viable;promote the resolution of conflicts arising in the housing development process;

and initiate, plan, coordinate, facilitate, promote and enable appropriate housing development in its area ofjurisdiction.

In terms of section 2 of the Housing Act, municipalities must perform the above functions in a manner which: givespriority to the needs of the poor in respect of housing development, involves meaningful consultation with individuals

38 The National Housing Code, http://www.housing.gov.za/content/The%20Housing%20Code/Introduction.htm


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and communities affected by housing development;ensures that housing development is economically, fiscally,socially and financially affordable and sustainable; and ensures that housing development is administered in atransparent, accountable and equitable manner and upholds the practice of good governance.

THE EMERGENCY HOUSING PROGRAMME

The National Housing Codes "Programme for Housing Assistance in Emergency Housing Circumstances," wasadopted in terms of the Housing Act, ("the Emergency Housing Programme") and was a direct response toGrootboom's ruling that the State's positive obligations in terms of section 26 of the Constitution include anobligation to provide temporary relief for persons in crisis or in a desperate situation -"The Grootboom judgment furthermore suggested that a reasonable part of the national budget be devoted to

providing relief for those in desperate need.Consequently, this Programme is instituted in terms of section 3(4)(g)of the Housing Act, 9997, and will be referred to as the National Housing Programme for Housing Assistance in

Emergency Housing Circumstances. Essentially, the objective is to provide temporary relief to people in urban andrural areas who find themselves in emergencies as defined and described in this Chapter.

Clause 12.3.1 of the Emergency Housing Programme defines an emergency as, inter alia, a situation where -"the affected persons"owing to circumstances beyond their control are evicted or threatened withimminent eviction from land or unsafe buildings, or situations where pro-active steps ought to be taken to

forestall such consequences or whose homes are demolished or threatened with imminent demolition, orsituations where pro-active steps ought to be taken to forestall such consequences."

The Programme makes funding available from the Provincial Departments of Housing for emergency housingassistance.

The Programme requires municipalities to investigate and assess the emergency housing need in their areas ofjurisdiction and to "plan proactively" therefor. Where an emergency housing need is foreseen municipalities mustapply to the relevant Provincial Department of Housing for funding for the necessary assistance. After approval by

the MEC of the relevant Provincial Department of Housing, the funding is made available to the municipality fordirect implementation of the assistance. In terms of the Programme the Provincial Department of Housing may

provide support to ensure the successful implementation of the assistance.

While the Programme is flexible in order to cater for diverse situations, it does lay down certain minimumstandards. It requires that water and sanitation be provided and that the floor area of a temporary shelter beat least 24 metres squared. Notably an amount of R23 892.00, including VAT, may be made available tomunicipalities, per grant."39

39Taken from COHREs submission to the National Department of Housing on General Notice 1851 of 2006:

Prevention of Illegal Eviction from and Unlawful Occupation of Land Amendment Bill, 2006 as published in theGovernment Gazette No 29501 dated 22 December 2006.

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Pushed to the periphery: Low-income residents in Pietermaritzburg, South Africa

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