PRESENTATION TO THE PORTFOLIO COMMITTEE ON HUMAN SETTLEMENTS

Parliament of the Republic of South Africa

Wednesday, 20 February 2013

South African Human Rights Commission

Contents

1. SAHRC – Functions and mandate

2. The SAHRC’s mandate in relation to housing

3. The SAHRC’s ESR monitoring mandate

4. Findings in relation to housing

5. Findings in relation to sanitation

6. Section 5 committee on the right to housing

7. Legal complaints

8. Legal interventions

9. Makhaza study

10. Sasolburg matter

11. Lenasia matter

12. Recommendations 2

SAHRC – Functions and mandate

• The South African Human Rights Commission (“the Commission” or the

“SAHRC”) has a specific mandate in terms of section 184 (3) of the

Constitution to monitor and assess the realisation of economic and

social rights.

• The Commission must –– promote respect for human rights and a culture of human rights;

– promote the protection, development and attainment of human rights; and

– monitor and assess the observance of human rights in the Republic.

• The Commission has the powers, as regulated by national legislation,

necessary to perform its functions, including the power -– to investigate and to report on the observance of human rights;

– to take steps to secure appropriate redress where human rights have been violated;

– to carry out research; and

– to educate 3

Mandate in relation to housing

• Section 26 (1) (b) of the South African Constitution provides that

“Everyone has the right to have access to adequate housing.”

• This obligation is extended in section 26 (2), according to which “the

state must take reasonable legislative and other measures, within its

available resources, to achieve the progressive realisation of these

rights.”

• Section 26 (3) states that “No one may be evicted from their home, or

have their home demolished, without an order of court made after

considering all the relevant circumstances. No legislation may permit

arbitrary evictions.”

4

Commission monitoring of ESR

• Section 184 (3) requires that “[e]ach year the South African Human

Rights Commission must require relevant organs of state to provide the

Commission with information on the measures that they have taken

towards the realisation of the rights in the Bill of Rights, concerning

housing, health care, food, water, social security, education and the

environment.”

• Research: Economic and Social Rights (ESR): monitoring for

constitutional compliance and ensuring the advancement of economic

and social rights.

• Legal: record and finalisation of complaints relating to Housing and ESR

• Advocacy: on human rights, modes of access, recourse and resources

for assistance. Public hearings are often held. 5

ESR Findings: Access to Housing

• Informal settlement upgrading – view that this has become synonymous

with evictions

• Legal ownership - residents without access to deeds; no security of tenure

• Location and development – development locations proximity to economic

opportunity

• Accreditation system – assistance required for poorer municipalities

• A rights-based approach to service delivery – recognising cross cutting

human rights and vulnerable groups

• Quality – need for monitoring, evaluation and anti-fraud mechanisms

• Demand Data Base – transparency and access to information for those on lists

6

ESR Findings: Access to Sanitation (1)

• Official statistics (Census 2011): over 70% of households have access

to sanitation; however this is not enjoyed across all provinces (Eastern

Cape, Limpopo, Mpumalanga and the North West provinces have the

worst levels of access)

• Bucket system: many households in Free State, Northern Cape and

Western Cape are still using the bucket system

• Lack of adequate infrastructure: non-functioning or broken

infrastructure: broken toilets, broken pipes, raw sewerage on streets

and in homes

• Corruption: in the awarding of tender and a lack of follow-up or

monitoring in relation to poor workmanship7

ESR Findings: Access to Sanitation (2)

• No human rights-based approach to service delivery

– Toilets inaccessible to women, children and people with disabilities

– Women use facilities at night – subjected to sexual violence

• No sanitation or poor facilities in schools: girl learners miss school

or drop-out

• Large impact on the health of communities

8

Compliance and responsiveness

• ESR hearings 2009: Department of Human Settlement (DoHS) –

provided a comprehensive submission accompanied by presentation

• However, no response to 2009 ESR report recommendations

• ESR questionnaire 2011: one of three Departments that responded

• ESR questionnaire 2012:

– request for extension

– response received

– returned to department for incompleteness

– Department request for additional extension

9

Section 5 Committee: Housing

Section 5 of the SAHRC Act confers duties on the Commission to form expert advisory committees. Housing committee found in 2011/12:

•Key determinants for accessibility of the right to housing: mobility, gentrification of CBDs, rights-based approach vs. operational approaches

•The City of Johannesburg is administered as a homogenous space, no consideration of the specific households needs, i.e. needs of family units

•Prevailing policy language: threatening when associated with informal settlements and the presence of the poor in cities; informal settlements viewed as ‘threats’ or ‘problems’

•Lack of housing (especially low-income ) is associated with stress-related illness, communicable diseases, food insecurity; poor access to healthcare; poor access to centers of economic activity

•Trend of a rise in litigation against the state on issues of housing; litigation is expensive and confrontation approach not well suited for poor communities

10

Trends in Legal Complaints

• Complaints on housing accounts for 7% of all complaints in the current

financial year (266 complaints as at 1 April 2012)

• Majority of the complaints have been registered in Gauteng,

Mpumalanga, Western Cape and Eastern Cape

• Limpopo shows the least number of complaints at 1% of the total.

• The number of complaints per province may be an indicator of

accessibility to urban-based offices of the Commission

• The Commission has seen a sharp rise in the number of complaints in

Mpumalanga over the last month

• A summary of the status of matters in total shows that 183 (69%) are

currently active

• A further 83 cases (31%) have been finalised 11

Housing Complaints by Province

12

Legal Interventions (1)

• In 2010 the SAHRC received two complaints: Makhaza & Ramaloutsi

Municipalities

• Both dealt with unenclosed toilets

• The SAHRC ruled that both municipalities had violated the right to

dignity

• This underscored the responsibility of the local municipalities to

immediately enclose these toilets

• Beyond the problem of unenclosed toilets is a wider context of lack of

adequate access to water and sanitation for poor communities

• Lack of a rights-based approach to service delivery

13

Legal Interventions (2)

• Additional matters investigated by the Commission: Mangaung,

Masilonyana, Dihlabeng and Sibuyile Park Municipalities in Free State

found:

– Lack of adequate provision of water and sanitation facilities

– Exclusionary zoning practices and lack of access to information

– Prima facie violation of the rights to: dignity, privacy, a clean environment,

housing, health and access to information

• There is continued complexity around proper eviction and repossession

procedures as evidenced by our investigations into evictions from

houses that complainants have occupied for 10 years:

– Unlawful municipal measures to evict, including disconnection of water and

lights, and in one particular case; the removal of a roof by a farm owner with

the view to forcibly remove the occupant(s). 14

Findings: Makhaza study

• Majority of residents have access to sanitation on their stand

• The main barrier to access is dysfunctional infrastructure

• Ratio 1 toilet per 3 households on a stand (approx.12 people)

• Poor quality, unenclosed structures that are leaking or overloaded

• Physical access remains a challenge for women, children and

people with disabilities

• Many women and children do not feel safe using sanitation

facilities at night

• Majority of residents believe that they own their home, but do not

have access to title deeds15

Sasolburg Matter

• Allegations of the use of unventilated pit latrines (UVIPs) in the Sasolburg

area

• Site visits showed residents using UVIPs

• Sanitation facilities for over 12 000 households were not connected to a

sewerage system and were not in working order

• Commission found that there was:

– A lack of interaction between spheres of government

– No sufficient integrated development plans

– No understanding or implementation of the progressive realisation of the right to

sanitation by local officials

– No public participation and access to information

– Challenges at a local level including lack of skills and adequate funding

– Lack of information on availability of funding for sanitation provision

• Overall: violation of the right to dignity; health; environment and water 16

Lenasia Matter• Lenasia evictions reinforced the necessity for further engagement with

government officials on correct eviction procedures

• The Commission sought a stay of evictions and demolitions pending

investigations in line with various legal precedents

• Parties agreed to seek an amicable solution and the DoHS to freeze

demolitions in the interim

• The Commission made recommendations to the Gauteng DoHS via a

Lenasia Intervention Plan [LIP] framework document

• The recommendations focus on establishing a rights-centric response by

the DoHS; on issues of communication and information sharing,

meaningful engagement & consultation, correct procedure on

evictions & relocations; maintenance of stands; issuing of notices;

and anti-fraud and corruption measures17

Recommendations (1)

• Emergency accommodation for those without access to adequate

shelter and basic services.

• Location of new housing settlements must be considered in conjunction

with economic opportunities and access to additional services.

• An audit is required to assess the security of land tenure in townships &

settlements with government housing.

• Government must ensure that all service delivery projects are framed

from a rights-based perspective

• There must be engagement over the relocation of communities prior to

any decisions on evictions being made.

• Evictions without prior engagement, particularly by private companies,

are unacceptable.

18

Recommendations (2)

• As much as possible, upgrading should be done on sight.

• There is a need for an audit of the Housing DDB and transparency

around its implementation and operation.

• The state cannot be the sole provider of housing; however private

contractors must comply with the laws and regulations

• Assistance to poor and under-capacitated municipalities is required on

the accreditation process to empower poorer municipalities to delivery on

basic services

• Greater transparency around decision-making and the awarding of

tenders is required.

• Public participation and access to information are inherent to a rights

based approach19

Thank You

South African Human Rights CommissionTransforming Society. Securing Rights. Restoring Dignity.