Die Reg en die Stad: Om Armes op die Marge te Hou
In hierdie artikel ontleed ek die Tswelopele beslissing van die Hoogste Hof
van Appèl en die Schubart Park beslissing van die Grondwetlike Hof ten
einde sommige van die kompleksiteite van die verhouding tussen die reg
en armoede te illustreer. Ek fokus spesifiek op die keuse van die twee
howe om direk op die Grondwet te steun eerder as op toepaslike
gemenereg en op die wyse waarop daar in die twee beslissings met die
feite omgegaan is. Ek wys uit dat beide hierdie aspekte van die beslissings,
ten spyte van die positiewe praktiese uitkomste in die sake vir arm mense,
die heersende ideologies-gelaaide siening van arm mense as anders, of
abnormaal onderskraag en bevestig en so saamwerk in ’n ideologiese
projek van depolitisering van armoede.
A defining feature of Tshwane’s cityscape is the extent to which poor
people visibly live apart from the middle-class and more affluent
residents of the city. Most poor (black) people in the city still live in the
townships such as Atteridgeville, Mamelodi, Soshanguve and
Hammanskraal to which they were officially relegated during apartheid,
and in the large informal settlements that have over years developed
there – in a ring around the city proper. But this visible apartheid of the
poor is also a feature of the “new”, post-apartheid Tshwane. The inner
city and some of the surrounding suburbs such as Sunnyside have visibly
become “poor” (mostly black) neighbourhoods, assiduously avoided by
mainstream residents of Tshwane. Even there where poor people have
managed to insert themselves into the general spaces of the rich – such
as the new “estate” housing developments on previously open land to
the east of the city where informal settlements have sprung up on tracts
of land left open in between new developments (or had been there all
along) or where poor people live in business or government precincts
within the inner city – their separateness is graphically enforced through
the enormous security walls and fences erected around the estates and
in some cases the building of walls around the informal settlements
themselves as well as constant attempts by the City and/or residents of
the estates to remove them.The law is of course intimately involved in the separateness of poor
people, most obviously when attempts are made to enforce this
separateness through evictions of poor people. In this short article I focus
on two such instances of the involvement of the law: I analyse two ostensibly pro-poor eviction judgments that played out in the city of
Tshwane – the cases of Tswelopele Non-Profit Organisation2 and Schubart
Park3 – and illustrate how our Supreme Court of Appeal and
Constitutional Court in the manner in which they reached their pro-poor
outcomes in these judgments – in the geography or architecture of their
judgments - unintentionally mirrored and so confirmed the geographical
separateness of poor people in Tshwane.
I start, in part 2 below, by describing the two cases and their resolution
in court. I then, in part 3, point out how the disputes underlying the two
cases are examples of an enactment of the separateness of the poor. In
part 4, I describe two ways in which the separateness of the poor was
unintentionally mirrored in the two cases by our courts: through the
choice of which body of law to apply to resolve the cases and through the
use of settled approaches to dealing with evidence. I conclude, in part 5,
with some tentative points about why this mirroring matters and is
problematic.
