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IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
CASE NO.: CCT31/09
In the matter between:
JOHNSON MATOTOBA NOKOTYANA AND OTHERS Applicants
and
THE EKURHULENI METROPOLITAN MUNICIPALITY First Respondent MEMBER OF THE EXECUTIVE COUNCIL FOR LOCAL
GOVERNMENT AND HOUSING, GAUTENG Second Respondent NATIONAL MINISTER OF HUMAN SETTLEMENTS Third Respondents DIRECTOR-GENERAL: NATIONAL DEPARTMENT OF
HUMAN SETTLEMENTS Fourth Respondent
AFFIDAVIT ON BEHALF OF THIRD AND FOURTH RESPONDENTS
I, the undersigned
JAN LOUIS VAN DER WALT
Declare under oath that:
1. INTRODUCTION
1.1 I am the Director: Human Settlement Policy Development employed by the National Department of Human Settlements (“the Department”).
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1.2 Save where appears from the context, the facts in this affidavit fall within my personal knowledge and are true and correct. I am authorised to depose to this affidavit on behalf of the third and fourth respondents.
1.3 My responsibilities as Director: Human Settlement Policy Development include, inter alia, the development of new national housing policy and strategies as well as the adjustment of existing national housing policy and strategy where required and providing assistance to provincial and local governments in the interpretation and implementation of the policies on behalf of the Department. I am also responsible for the compilation and maintenance of the National Housing Code. As a result I am familiar with the Department’s policies and the National Housing Programmes.
2. BACKGROUND TO THIS AFFIDAVIT
2.1 By Order dated 28 July 2009, the Constitutional Court directed, inter alia, that the Minister of Human Settlements (“the Minister”) and the Director-General of the National Department of Human Settlements (“the Director-General”) are required to show cause as to why they should not be joined in the application instituted by Johnson Nokotyana against the Ekurhuleni Metropolitan Municipality (“the application”). Neither the Minister nor the Director-General have opposed being joined in the application.
2.2 Prior to having sight of the application, I was not aware of any difficulties that had arisen in the Harry Gwala Settlement (“HGS”). To the best of my knowledge, no particular problems were brought to the attention of the
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Department, nor have there been any requests for assistance either from the Province or the Municipality in relation to the HGS.
2.3 I have no personal knowledge of the factual issues which have been canvassed in the application. It is accordingly not appropriate that I deal with disputes that have arisen between the applicants and the first respondent. Nevertheless, the physical circumstances in which the applicants find themselves do not appear to be in dispute and it is that situation which requires to be addressed.
2.4 Now that the Department has been made aware of the difficulties that have arisen in the HGS, the Department will take steps to ensure the necessary co- ordination with the Province and the Municipality with a view to reaching a practical solution. This will be dealt with later in the affidavit.
2.5 There being no attack on any statutes administered by the Department or the National Housing Code, I assume that the Court would require information from the Department regarding its compliance with the obligations imposed on it by Section 26 of the Constitution of the Republic of South Africa 1996 (Act 108 of 1996) (“the Constitution”). As will appear more fully below, the Department is conscious of its duties and particularly the directions given by this Court in its decisions.
2.6 At the outset, I must regrettably point out that the situation in the HGS is neither unique nor isolated. Indeed, there are literally millions of South Africans living in informal settlements without access to those necessities of life required for a dignified existence. There can be no doubt, however, of the
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Government's commitment to alleviating these conditions and to do so in a co-ordinated and comprehensive manner.
2.7 In this affidavit I will canvass the following issues
2.7.1 Context: Historical Understanding of Challenges
2.7.1.1 Overview of the Problems in Relation to Housing
2.7.1.2 Contextualisation of the Problems relating to housing in relation to poverty alleviation as a whole
2.7.2 Government Response to the Housing Challenges
2.7.2.1 Legislative and Policy Framework
2.7.2.2 Implementation
2.7.2.3 Housing Opportunities Created and Funding made available
2.7.3 The current case
2.7.3.1 Contextualisation
2.7.3.2 Way forward.
3. THE CONTEXT: HISTORICAL UNDERSTANDING OF CHALLENGES
Overview of the Problems Relating to Housing
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3.1 In 1994 the democratic government inherited a country with severe challenges in respect of housing. As a result of the divisive policies of apartheid, black South Africans had been systematically prevented from accessing and inhabiting the majority of land in this country.
3.2 The main constraints and challenges facing the government in 1994 were described in the Department of Housing White Paper on Housing and Policy Strategy as:
3.2.1 The sheer scale of the housing and services backlog
3.2.2 The structure of South African settlements which was described as
‘wasteful’
3.2.3 An inefficient institutional framework
3.2.4 Duplicated, inequitable policy approaches to different race groups
3.2.5 Constraints in structure and availability of end – user financing and subsidies
3.2.6 Land and planning issues
3.2.7 Sociological issues including extreme poverty
3.2.8 Economic issues including high levels of unemployment.
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3.3 I annex a copy of the White Paper hereto as Annexure "A". The history of deprivation for the majority of South Africans is notorious and does not require elaboration.
3.4 The current housing backlog in Ekhurhuleni (and South Africa as a whole) must be understood against this background.
Poverty Alleviation
3.5 While the present application is concerned specifically with the right to have access to adequate housing enshrined in Section 26 of the Constitution, I respectfully submit that the Government's response and indeed its constitutional duties cannot be seen in isolation. The State has positive duties progressively to realise all socio-economic rights enshrined in the Constitution.
3.6 The demands made upon the State in relation to healthcare, food, water, social security, education and the environment must also be taken into account in any matter, including the present. In so stating, I do not leave out of account any of the other rights in the Bill of Rights which the State is under a duty to respect, protect, promote and fulfil. I do not understand it to be my duty for purposes of the present affidavit to provide the Court with detailed information concerning the State's initiatives in all these other spheres. It suffices to state that poverty alleviation is a central ambition of the Government and that it faces massive backlogs and costs at every turn. The balancing of competing demands and the prioritisation of specific needs is frequently extremely difficult. In the realm of housing, however, and as will appear more fully
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below, the Government has a comprehensive co-ordinated plan to address the housing crisis.
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4. RESPONSE OF THE DEMOCRATIC GOVERNMENT
Generally
4.1 One of the critical tasks of the new leadership was to address the housing crisis.
4.2 In doing so the national government embraced a vision for housing which has continued to inform housing development to this day. Over the years the vision of the housing sector has been constantly re-evaluated, adapted and refined.
4.3 It is important to indicate the housing vision which underpins the legislative and policy framework introduced by the government. It is rooted in the White Paper on Housing, 1994.
4.4 The vision can be understood from the definition of housing development in the Housing Act 107 of 1997 (‘Housing Act’). It is described as the
“establishment of viable, socially and economically integrated communities, situated in areas allowing convenient access to economic opportunities, as well as to health, educational and social amenities in which all South Africans will, on a progressive basis, have access to:
4.4.1 Permanent residential structures with secure tenure ensuring internal and external privacy and providing adequate protection against the elements; and
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4.4.2 Potable water, adequate sanitary facilities and domestic energy supply.”
4.5 The housing vision is underpinned by principles of sustainability, viability, integration, equality, re-construction, holistic development and good governance. South Africa’s housing policy and strategy must contribute to a non-racial, non-sexist, democratic integrated society. The goal is to improve the quality of living of all South Africans with an emphasis on the poor and those who cannot independently satisfy their basic housing needs.
4.6 It is recognised that housing primarily contributes to the alleviation of asset poverty and is a critical aspect of poverty alleviation generally.
4.7 Human settlement creation requires coordinated and integrated action by a range of players in the public and private sector. The coordination of state investment in development seeks to maximise the impact of state investment and careful planning, so that investment in one aspect of development supplements another. Furthermore integrated human settlement creation requires public/private partnerships between developer and housing finance institutions and government.
4.8 Government’s human settlement development mandate emanates from the Constitution (and before that, the interim Constitution). It is therefore Government’s duty to work progressively towards ensuring that all South Africans have access to secure tenure, housing, basic services, materials, facilities and infrastructure. Government applies legislative, administrative, financial, educational and social measures to fulfil its housing obligations.
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4.9 I turn now to a discussion of the legislative and policy measures that have been adopted to give effect to the constitutionally entrenched right of access to adequate housing.
Legislative and Policy Framework
4.10 The starting point is section 26 of the Constitution which provides that:
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(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 of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.”
4.11 The main legislative and policy instruments enacted to give effect to the State’s constitutional obligations are the Housing Act and the National Housing Code (‘the Housing Code’) promulgated in terms of Section 4 of the Housing Act. A revised Housing Code was recently approved by the Minister on the 13 February 2009 but has not yet been published. (I point out that there are scores of other national and provincial laws relating to building, planning, the environment and the like which are too numerous to mention but which form part of the State's obligations under Section 26 of the Constitution).
4.12 Parts 2, 3, and 4 of the Housing Act set out the roles of the respective tiers of government.
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4.13 The Act requires national government to formulate housing policy through the promulgation of the National Housing Code and monitor the performance of provincial and local government against housing delivery and budgetary goals.
The detailed duties of the National Government will be discussed below.
4.14 The Housing Code consists of the programmes implemented by government and the National Ministerial Norms and Standards in respect of Permanent Residential Structures.
4.15 In the landmark case of Grootboom, the Housing Programme was found to fall short of the Constitutional obligations due to its failure to cater for those in desperate need of emergency housing.
4.16 In direct response thereto, Chapter 12 of the Housing Code was introduced to deal with the rules for emergency housing circumstances. (Chapter 12 can be found at pages 90 – 151 of the Record).
4.17 In September 2004, a decade after the Housing White Paper, Cabinet approved and adopted the Comprehensive Plan for the creation of Sustainable Human Settlements known as the ‘Breaking New Ground’ Policy (BNG Policy). The plan was introduced to ‘redirect and enhance existing mechanisms to move towards more responsive and effective delivery.’ A copy of the BNG Policy is annexed hereto as Annexure ‘B’.
4.18 Significantly the plan introduced government’s commitment to the eradication of informal settlements. It introduced an informal settlement upgrading instrument to support the focused eradication of informal settlements. It
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adopted a phased in- situ upgrading approach consistent with international best practice. It also provided for relocation where in situ development was not feasible or practicable.
4.19 Chapter 13 of the Housing Code “Upgrading of Informal Settlements” was introduced pursuant to the BNG policy as a programme providing rules for the upgrading of informal settlements. It provides for municipalities to apply for grant funding to the provinces to enable the municipalities to fast track the provision of security of tenure, the provision of emergency and permanent basic municipal services, the provision of social amenities and the empowerment of informal settlement inhabitants to take charge of their own housing development. (Chapter 13 can be found at pages 152 to 208 of the Record.)
4.20 Many other programmes have been introduced in terms of the Housing Code to address other aspects of the housing issue in South Africa. I will not canvass the development of these programmes as they are not directly relevant to the present matter.
Implementation
4.21 In assessing the government’s response it is important to examine not only the framework but also government’s performance in respect of the duties imposed by the Act.
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4.22 Section 3 of the Housing Act provides for the functions of the National Government acting through the Minister of Housing Human (now Human Settlements). Since the inception of the Housing Act in 1998, the Minister of Housing has complied with the provisions in the manner set out below.
4.23 Section 3(2)(a) provides that the Minister must ‘determine national policy, including national norms and standards, in respect of housing development.’
4.24 The Minister has instituted comprehensive national housing policy which is contained in the Housing Code. The Housing Code comprises all the National Housing Programmes instituted since 1994. The funding annually allocated to the nine provincial governments may only be utilised in terms of the provisions of an approved National Housing Programme or a provincial housing programme that is consistent with national housing policy.
4.25 In addition to the national housing policy, the Minister of Housing instituted Ministerial National Norms and Standards in respect of Permanent Residential Structures in 1997. These Norms and Standards were adjusted with effect form 1 April 2007 and have been included in the new National Housing Code 2009. The Norms and Standards are contained in Annexure ‘A’ to Chapter 3 of Part 2 of the Housing Code. A copy of the Norms and Standards are annexed hereto as Annexure ‘C’.
4.26 Section 3(2)(b) of the Housing Act provides that the Minister must ‘set broad national housing delivery goals and facilitate the setting of provincial and, where appropriate, local government housing delivery goals in support thereof’
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4.27 The Minister of Human Settlements, in consultation with the nine MECs responsible for Housing agree annually on specific delivery goals. An example of a national delivery goal is the goal to eradicate informal settlements by 2014.
4.28 Such goals are then captured in the nine provincial multi - year housing development plans. The implementation of the provincial plans is monitored on a quarterly basis to ensure the achievement of the goals and planned objectives.
4.29 Section 3(2)(c) of the Housing Act provides that the Minister must ‘monitor the performance of the national government and, in co-operation with every MEC, the performance of provincial and local governments against housing delivery goals and budgetary goals’.
4.30 The Minister has established a structured monitoring process. In August 2007 the Department was restructured to accommodate a Chief Directorate Monitoring and Evaluation Unit. A monitoring and evaluation strategy has been adopted in consultation with the nine provincial housing departments.
The strategy is contained in Chapter 3 of the Housing Code. A copy of the strategy is annexed hereto as Annexure ‘D’.
4.31 Section 3(2)(cA) provides that the Minister must ‘determine a procurement policy, by not later than April 2002, which is consistent with section 217 of the Constitution in relation to housing development’;
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4.32 The minister has introduced a comprehensive procurement compliant housing project implementation dispensation with effect from 1 April 2002. This new programme replaced all previous versions of the Project Linked Housing Subsidy Scheme instrument and is referred to as: Housing Subsidy Scheme – Project Linked Subsidies: A Procurement Regime in Respect of Projects Classified as
“Greenfield” Developments. It is Chapter 3A of the Housing Code. A copy thereof is annexed hereto as Annexure ‘E’.
4.33 Section 3(2)(d) of the Housing Act provides that the Minister must ‘assist provinces to develop the administrative capacity required for the effective exercise of their powers and performance of their duties in respect of housing development’;
4.34 In August 2007 the Department was restructured to accommodate a Chief Directorate: Programme Implementation Support. The Chief Directorate is available upon request to provide technical and administrative assistance to enable provinces to perform their duties in respect of the implementation of the national housing programmes.
4.35 In addition the Policy Chief Directorate provides policy interpretation and training support as well as regional policy formulation support to the provinces where required.
4.36 Examples of support provided to date are in the Eastern and Western Cape.
The Eastern Cape provincial housing department and municipalities were identified as having serious service delivery issues. The Department introduced the ‘Eastern Cape initiative’ in terms of which it mobilised human
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capacity to support the Eastern Cape province and municipalities. In 2007 the Policy Chief Directorate formed part of the team that were sent to the Eastern Cape and provided policy interpretation support where required. In addition a broader team of Departmental officials are currently deployed in the Eastern Cape to assist with project implementation. The team interacts at project level to help unblock stalled projects.
4.37 In the Western Cape, the Policy: Chief Directorate was also part of the N2 project working group and provided policy guidance. A team of officials was deployed to the N2 project and assisted Thubelisha Homes with the project.
4.38 Over the years several policy workshops have been conducted with the provinces.
4.39 Section 3(2)(e) of the Housing Act provides that the Minister must ‘support and strengthen the capacity of municipalities to manage their own affairs, to exercise their powers and perform their duties in respect of housing development’.
4.40 The support mechanism explained above is also available to municipalities. In addition, the Department has previously provided structured policy and programme training for municipal councillors.
4.41 The Minister instituted a national Housing Programme for the Accreditation of Municipalities to advance the process of empowerment of municipalities, with a view to accrediting municipalities to administer National Housing Programmes as provided in Section 10 of the Housing Act. It is contained in
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Chapter 2 of the Housing Code. The Programme runs to 80 pages and in order to avoid unduly burdening the papers we have annexed a copy of the Table of Contents as Annexure ‘F’.
4.42 Section 3(2)(f) of the Housing Act provides that the Minister must ‘promote consultation on matters regarding housing development between the national government and representatives of (i) civil society; (ii) the sectors and sub- sectors supplying or financing housing goods or services; (iii) provincial and local governments; and (iv) any other stakeholder in housing development’.
This section is to be read together with Section 3(2)(g) of the Housing Act which provides that the Minister must ‘promote effective communication in respect of housing development.’
4.43 The previous Minister of Housing established various cooperative and consultative agreements and forums. These include the previous Record of Understanding concluded with the Banks as well as the current Joint Venture Agreement entered into between the Department and the banks. The Joint Venture Agreement is annexed hereto as Annexure ‘G’.
4.44 A Social Contract was also concluded with the sectors and sub-sectors supplying housing goods and services.
4.45 These agreements are administered through a structured process of meetings at various levels.
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4.46 In addition the previous Minister also conducted the national housing summits.
The last summit occurred in 2004 and was preceded by a comprehensive series of consultative workshops with all the role players in the housing field.
4.47 In order to facilitate the performance of these duties, national government has also established a national and institutional funding framework for housing development as mandated by Section 4(a) of the Housing Act. The institutions discussed below form the institutional funding framework.
4.48 The National Home Builders Registration Council (NHBRC) is a section 21 company established in terms of the Housing Consumers Protection Measures Act (1998). Its purpose is to provide housing to consumers with warranty protection against defects in new homes, and to provide protection against any failure of builders to comply with their obligations in terms of the Act.
4.49 The National Housing Finance Corporation was established as a result of a Cabinet decision in May 1996, as envisaged in the White Paper on Housing, to search for new and better ways to mobilize finance for housing, from sources outside the state, in partnership with the broadest range of organizations.
4.50 The National Urban and Reconstruction Agency (Nurcha), a Section 21 Company, was established in 1995 and financed primarily by the South African Government and the Open Society Institute of New York. It lends money to small/emerging contractors building subsidised housing through its RMB Loan Fund and other financing products. Nurcha has agreements with financial intermediaries who channel bridging finance to small contractors. It also lends directly to larger established developers and contractors building
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subsidised housing, infrastructure and community facilities. Nurcha administers a fund created by government to provide bridging finance for established contractors involved in building and selling houses with a sale price of between R50 000 and R 200 000.
4.51 The Rural Housing Loan Fund’s (RHLF) was originally incubated within the NHFC but became a separate entity in April 2002. Its core business is providing loans, through intermediaries, to low income households for incremental housing purposes in the rural areas.
4.52 The Social Housing Foundation (SHF) is a section 21 Company which was established in 1997 by the national Department of Housing. The organization was established as a national institution and is formally mandated by the National Department of Housing to develop and build capacity for social housing institutions and to develop a policy framework for the social housing sector through the Housing Amendment Act No 20 of 1999.
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Housing Opportunities Created and Funding Made Available
4.53 Since inception of the National Housing Programme in 1994 a total number of 2,7 million housing opportunities have been created.
4.54 The number of housing units delivered is expressed in terms of “housing opportunities” to accommodate the fact that the total number of units
delivered, represent stands in the process of being serviced, stands completed, houses in the process of construction and houses completed.
4.55 Statistics released by the Department on its website indicate that between April 2008 and March 2009 239 533 housing delivery units have been completed and are in the process of completion.
4.56 Nationally, over 570 housing projects have been approved and the housing allocation from national government amounted to R12,4 billion for this financial year for expenditure on provision of services and the construction of housing units across all nine provinces.
4.57 The Medium Term Expenditure Framework has committed R15,026 billion for the 2010/2011 financial year and R17, 222 Billion for the 2011/2012 financial year for the national housing programme.
4.58 Government has no alternative but to prioritise it funding allocation. In this context, the main priority set by Government is the upgrading of informal settlements. The estimated number of families currently residing in squalid
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conditions in informal settlements is 1,8 million households. This represents probably 7-8 million people.
4.59 The current cost of delivering a serviced stand in an informal settlement redevelopment project, where interim services are to be provided, is estimated at R30 531. Matching each serviced stand with a dwelling will cost R88 737,00 in total. The breakdown indicating how these amounts are calculated is annexed hereto as Annexure ‘H’.
4.60 The Government’s commitment towards the upgrading of informal settlements was demonstrated by the adoption of the Comprehensive Plan for Housing Delivery and the introduction of Chapter 13 of the National Housing Code.
Both of these policies have been discussed above and are the tools to achieve the government’s goal of eradicating informal settlements by 2014.
4.61 In terms of the BNG Policy each province has identified an informal settlement pilot project which will be upgraded through a partnership between all spheres of government. The pilot project identified in Gauteng is the Winnie Mandela Informal Settlement.
5. THE PRESENT CASE
5.1 As indicated above, the Department was unaware of specific problems which had arisen in the HGS. The Department is committed to finding a practical and equitable solution to these difficulties. It undertakes to initiate a process of engagement with the Province and the Municipality for this purpose. The
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Department will seek leave to file a supplementary affidavit indicating progress in this regard at the earliest opportunity.
5.2 The Department is confident that it has provided the appropriate framework within which a solution can be found.
5.3 It is cognisant of the importance of engagement with the HGS community in jointly formulating a solution and will encourage and support an engagement process between the Municipality and the residents of the HGS should the Municipality require any assistance in this regard.
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DEPONENT I certify that deponent:
(a) He has acknowledged and he knows and understands the contents of this declaration; and
(b) that he has no objection to taking the oath, that he considers the oath binding on his conscience and has in due form SWORN that the contents of this declaration are true and has signed the same.
Before me at __________________ on this ___the____ day of __________ 2009.
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