Law and the city : keeping the poor on the margins

Abstract

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.