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Another Constitutional Error Heinrich Bohmke 20 November 2009 On 19 November 2009, the Lawyers for the residents founded the less speculative part of their claim for sanitation services on section 13.7.1 of the National Housing Code. This obliges a municipality to provide basic municipal engineering services such as water, sanitation, refuse removal services and other municipal services to poor residents if certain conditions are met. In sum the court found that a key condition triggering such an obligation had not been met. Reading the National Housing Act and National Housing Code together, the capital expenditure of in situ upgrading was only expected of a municipality, the Court said, once a firm decision had been taken to upgrade the township by the MEC. The lawyers’ attempt to directly invoke constitutional provisions floundered on the well known constitutional dictum that direct recourse to a constitutional right is not available to litigants when subordinate legislation specifically regulating (and limiting) the attainment of that right already exists. Should legislation unduly limit a fundamental right, that statute’s constitutionality should first be attacked. Indeed, in this case the National Housing Act and Code were vaunted as the source of the rights claimed for residents and so it was not possible in one breath to also condemn it. Shortly after the ruling was handed down, Marie Huchzermeyer from It’s a long and technical argument, which I attach for those who would like to see it in full. Huchzermeyer at one point states that the ambiguity of Chapter 13 may have confused the Judge. Later she says the National Housing Code is in fact very clear and urges that those implementing the Code in future ignore the equally clear error of the I do not wish to get bogged down in a technical debate about the supposed legal howler the Court has committed besides noting that the judges found that the Housing Code did not entitle claimants to the relief they sought upon the grounds that they sought it. The judges did not find that the Housing Code prevented in situ upgrading of an informal settlement before a decision on its longer term status was made, for instance where a Municipality chose to do so. The question posed by the residents’ lawyers was whether the Housing Code entitled in situ upgrading before an MEC decision. The answer given to this question was no. To be clear, I am not suggesting that, had the case been differently pleaded, the result would have been better. If one steps back from the details of the all the recent cases for a while, one notices a certain ideological flow to the rationalizations the Court provides in declining to set minimum core rights, in taking fright that it might ‘usurp’ the powers of the executive and in limply enforcing its own rulings. It’s not hard to see the general direction of this ideological flow in adjudicating socio-economic rights: it is fairly conservative, deferential to government economic policy and parsimonious in setting firm, objective standards of delivery for government to meet. In short, it’s the kind of court one would expect the powers that be to have appointed over the last decade or so. What I do wish to note is the persistence of a theme among progressive sympathizers of social-movements (and other causes) that the adjudication of socio-economic rights is not properly being performed by the Court. While many progressive critics of The dark side is first and foremost the depoliticisation of the rage, disgust and embarrassment that should really accompany our having to submit the outrage of conditions in Harry Gwala (of all places), through legal processes, to be decided upon by nine doyens of a legal system that has quite serenely contemplated the persistence of these conditions for fourteen years already. As have we. The dark side is that denying the people in the 110 other informal settlements in Ekurhuleni the immediate decency of one toilet per household because the capital expenditure is prohibitive is probably perfectly constitutional. The dark side is, beyond toilets, the idea that the jurisprudence does indeed authorize a serious limitation of the socio-economic rights of many citizens, but this is nevertheless perfectly consistent with – and necessary to - the constitutional enterprise as a whole. This is especially the case in an age where national sovereignty is subject to global economic forces that do not respond well to socio-economic spending. Far from being a mere instrument to regulate the separation of powers, balance competing rights and hold other arms of government accountable to constitutional principles, the limitation of substantive equality that occurs in terms of the “reasonableness test”, is constitutive of a constitutional order based on the kind of juridico-economic contradiction we have in this country. This is the construction of a social-democratic constitutional edifice over the economic policies of a government that are essentially mainstream neo-liberal ones. However, the judgments we are getting from the I say this because I am beginning to suspect, in the way that many progressives relate to the spectre of revolt as an alternative model of social change, that there are investments other than the professional motivating the set of emancipatory strategies they keep punting so enthusiastically despite the obvious fact that these can provide no substantive relief. I saw this aversion to the mass - as opposed to the lawyer - as agent of social change the other day in the pool of bloodshed conjured up by Stuart Wilson in his Manichean world of good incremental advocacy versus bad revolution. We see it now in the dogged persistence of Marie Huchzermeyer shaking her fist at nine constitutional court judges who got a good Housing Code wrong and thus prevented an eking out of social change from within the zone of legality and policy. If getting the toilets and lights is what it is really about, how could anyone in the “sympathetic networks” that surround the poor and the un-serviced not mention riot as an option. Surely it is time to forget Grootboom, and remember Khutsong … and Balfour. In a paper presented at the “Crisis and the Commons” seminar at the “I am not opposed to going to court if this is done with utmost cynicism and not a little nausea or from a position of weakness or last resort. But to squander moments of power in dressing up one’s claims of right and good in constitutional terms is grossly irresponsible. Yet there are those among us whose very first instinct in struggle is to seek to capture these moments of power or the building towards it in legal snares. When the charge of social antagonism should be building up, ‘sparkling and vibrating’, those who vaunt the constitution invariably propose some sort of peaceful, stable co-existence between the rich and the poor under the law. They want “rational discourse”. It is not only social movement lawyers, there are academics too who harbour this instinct to capture the power of movements and convert it to mere voice.” (my emphasis) I think we should take this allegation very seriously because it has such a long history of being borne out in this country. It starts with missionaries bearing the bible, preaching against uprisings and offering to intercede with colonial authorities to urge them to act lawfully and respect the treaties. It continues through the last century in the paternal form of the Liberal proposing the incremental gain of a qualified franchise. In the hotbed of the 1980s and 1990s, the safely protesting, self-aggrandizing Nusas activist often wielded his or her technical skills and access to resources to try to tame and moderate the “unstrategic” behaviour of the youth congresses, ‘Stalinists’ and ‘howling’ student masses with whom they joined in campaigns. More recently we have seen academics join social-movements and represent them far and wide in conferences, on websites and in journals, in accordance with their own distinctive fantasies and intellectual fetishes. Marie Huchzermeyer celebrates the “sympathetic network” that has coalesced around social movements although others have noticed the “fingerprints” of a liberal politics, drenched in moralism, legalism and the presentation of the poor as unthreatening victims as its hallmark instead. In each of these cases we have a phenomenon of a rump of largely white intellectuals playing a disproportionately influential role in recommending and representing certain dead-end emancipatory strategies and foreclosing upon more promising others. Let us be perfectly honest, what is the best way to get toilets and lights put up in Harry Gwala informal settlement today? I know what the old man would say. If history is a guide, calls from progressives for less flawed and more transformatory instances of adjudication are not based on legal principle nor real sympathy as much as on the middle-class sense and solidarity that the legal edifice containing social conflict is not being properly maintained and the ‘natives’ are getting restless. I wish it were different but the promise of socio-economic rights in a liberal democracy with a market economy is doomed to be largely a rhetorical affair. Those turning to law as an emancipatory strategy without being able to constitute themselves as a power recognizable by other arms of state will find that the jurisprudence, as Dennis Davis once so memorably put it “provides less protective covering than a fig leaf for the lack of any ability to protest outside of the court room”. The rest is just palliative, moralism, careerism and, perhaps worse, the interim service provided to the status quo of downgrading a more radical and transformatory politics available right now in townships wherever the lawyers and academics are not. --~--~---------~--~----~------------~-------~--~----~ You are subscribed. This footer can help you. Please POST your comments to [email protected] or reply to this message. You can visit the group WEB SITE at http://groups.google.com/group/yclsa-eom-forum for different delivery options, pages, files and membership. To UNSUBSCRIBE, please email [email protected] . You don't have to put anything in the "Subject:" field. You don't have to put anything in the message part. All you have to do is to send an e-mail to this address (repeat): [email protected] . -~----------~----~----~----~------~----~------~--~--- |
