Cape Town is an exploding city. In the 12 months since lockdown began, 50 new informal settlements have sprung up. Between 30,000 and 40,000 new shacks sit on top of sand dunes, in winter wetlands, on railway reserves, on and between the tracks themselves, in nature reserves and sandwiched into small pockets of public land, adjoining public buildings, churches and on land reserved for bulk sewerage works.
The settlements have been named in accordance with the times: Covid; Sanitiser; Coronavirus and Ramaphosa. Some have a sense of humour too: there is Lockdown Bay and the Waterfront, which borders a large piece of water, in a low-lying area, that looks sure to become a floodplain over the winter. None have access to toilets and people make use of the open ground. They also do not have water and must buy it from neighbouring formal settlements.
Other cities in SA have experienced the same phenomenon as people take the opportunity provided by the strangeness of the times — and state of disaster regulations that prevent evictions — to stream out of the backyards of townships on to open land wherever it can be found. But Cape Town is a little different, in part because of its history, in part because of its topography, and in part because of its politics.
Cape Town, like all SA’s cities, has an acute housing shortage. On the mythical housing list — mythical because there have been many historical lists and no agreement on them — are 300,000 households, according to the city. Activists and human rights groups put the backlog at 700,000. Whichever it is, there is no way the city can possibly make a dent in that number with its annual housing budget. On its budget, which is generally entirely spent each year, unlike most other municipalities, the city can deliver in the region of 4,000 low-cost houses a year. This year, with its budget slashed by 50% due to the pandemic and government’s wider fiscal crisis, the city will only have the resources to build 2,000 houses.
Add to this Cape Town’s topography: a peninsula hemmed in by the ocean on three sides, with a mountain range running along the spine. Much of the open land on the Cape flats to the north is low lying, flooded in winter and a considerable distance from the city.
So why did the lockdown open the floodgates to years of pent-up demand?
The main trigger seems to have been the eviction of backyarders. The draconian behaviour of backyard landlords is well-known and widely resented. Rentals for a on-room shack start at about R800 a month with additional amounts for water and electricity added. Once the electricity units in the main house run towards an end, the landlord summarily switches off the tenants’ plug. There are rules about how much water can be used and rules about visitors and friends. Rent defaulters are summarily evicted.
The Social Justice Coalition (SJC), a human rights and activist group, has been involved with many of the new settlements, and is conducting an audit of where they all are and how they arose.
Nkosikhona Swartbooi, the group’s head of advocacy, says: “Lockdown meant everyone must stay at home. The president said so. The assumption was that everyone had a home and that was not entirely true. People who were working and got retrenched found themselves unable to pay rent. We are collecting the data but it is a fair assumption to make that people came out of backyards.”
Malusi Booi, the city’s mayoral committee member for housing, accepts this explanation but with a hint of cynicism.
“They claim to be coming from backyards,” he said in an interview with Business Day.
Land invasions
The city’s official statements on the land invasions, while acknowledging that occupiers themselves are desperate and poor, always carry the rider that the invasions are politically inspired. In a statement on March 2, Booi said: “Unlawful occupations have mostly seemingly been orchestrated by certain groups, political parties and so-called ‘shack-farming’ criminal syndicates.”
Speaking to Business Day more recently Booi squarely blamed the EFF, which he says, is behind the occupations.
“From the inception of the EFF the cardinal pillar (of their programme) is land grabs. This has escalated predominantly in election years. They have got more traction primarily because they have gone to exploit the plight of the poor. These are organised land grabs, infringing on other people’s rights and depriving those of people who have been waiting for houses so long because we can no longer develop pieces of land that has been invaded. As a result long-standing beneficiaries will not get to occupy their houses,” he says.
There is certainly evidence that the EFF has had an active presence in some of the new settlements, as has the ANC. There is evidence too that committees that run informal settlements — usually elected — do collect money for various services and sell plots when these become available. But in many there has been no presence of political parties; in fact in some there has been an express intention to cut them out of the action, to avoid politicisation.
Zamimpilo — “Trying for a better life” — is a large new settlement on the sand dunes behind Monwabisi beach in Khayelitsha. More than 1,500 homes are perched on the dunes and in the dips between them, filling up all space between the coastal road and Khayelitsha’s main arterial Mew Way.
Richard Magwa, a tall and strong father of three and an unemployed backyarder from Kuyasa nearby, moved here in June and is one of the pioneers of the settlement. Together, with four others, they make up the “top 5” and represent the community in their campaign for among other things, water, sanitation and speed humps on Mew Way, where there are now shacks and children playing only 2m off the busy, fast moving road. None of them knew any of the others before they came to set up home and none belong to any political party.
“I'm the organiser,” says Magwa, surveying the area with pride.
“I realised that we backyarders are being used by politicians. So some of us took this initiative ourselves and we said anyone in the Western Cape who needs housing can come here. We wanted it to be peaceful and so we said no political parties were allowed. We took advice on how to do that from the SA Human Rights Commission (SAHRC) and the Legal Resources Centre, (LRC),” he says.
Another of the top five, young mother Amanda Mtana, also a backyarder, said she heard of the occupation from neighbours in Kuyasa.
“It was early on June 20 during lockdown. I was in pyjamas and I heard people shouting that others are putting up their hokkies on the open land opposite. So I ran there and put my pegs in the ground. I had to clear all the bush off this sand,” she says.
The advice that Magwa received was that all structures must be occupied and that when the police come, people must stay inside their homes. It was this strategy that saved the new community from demolition. Those structures that were empty at the time were demolished.
This brings us to the legal side of the story. Since the lockdown began there has been a rush of what will undoubtedly became landmark litigation over when and under what circumstances a structure can be demolished.
On July 1 Bulelani Qolani was dragged naked by City of Cape Town law-enforcement officers from his newly erected shack on a piece of public land earmarked for development of bulk sewerage works. The incident caused outrage as images of Qolani wrestling with officers on the sand flew around the internet. The city, which investigated the incident, claims that Qolani had been fully clothed when the officers arrived and had interacted with them only later going into his shack, where by his account he decided to bath. This was a ploy, they believe, to cause an incident and avoid arrest.
Several legal issues arose. The first was that the high court in Cape Town ruled that based on the state of disaster regulations no-one could be evicted from their dwelling without a court order. The eviction of Qolani was “reminiscent of apartheid-era, brutal forced removals”, said the court.
The second legal consequence, which was Part B of the case involving Qolani, was that the high court ruled that no-one may be evicted from their home without a court order, even if that person had just arrived and erected a shack on the land only hours ago. The application was brought by the EFF and SAHRC.
Until now, all cities and towns that have experienced land occupations have used the common law principle of counter-spoliation to immediately remove new structures. This principle is along the lines that if someone takes your property, it is within the law to immediately take it back. The courts have until now played along with this game — allowing for a 24-48 hour window — even though the time allowance is not specified in law. It is also unclear what criteria law-enforcement officers must use to decide whether the structures are occupied and whether in fact they really are homes, having been suddenly erected.
This part of the matter is now being appealed by the city and the Western Cape provincial government to enable property owners to evict invaders or occupiers immediately without having to go the route of using the Prevention of Illegal Squatting Act. This act requires that the evicting party must obtain a court order and provide temporary accommodation to the evicted. The appeal is for the second time. The first appeal, which was heard by two judges, had to be abandoned after the two took opposite views on the matter. This time three judges have been appointed.
The implications of the final ruling will be profound. All cities have relied on counter spoliation to stem land occupations. If counter spoliation were to be disallowed, unlawful occupations would accelerate, interfering with developmental plans, city planning and property rights. The implication would also be that private property owners would be unable to prevent people from occupying their houses or gardens and would have to stand by and watch them settle in, while applying to a court for relief.
It is probably the case that Cape Town’s housing problem is more acute than that of other SA cities, giving rise to growing tensions. It is also clear that the many activist and lobby groups in Cape Town — including the SAHRC, the LRC, the SJC, Ndifuna Ukwazi and Reclaim the City — are playing a big role in supporting those who occupy land.
Many of these groups also accuse Cape Town of being more brutal and less caring about the plight of black Africans.
When it comes to brutality it would be hard to match the tactics of the Gauteng metros, most of which employ the notorious Red Ants to demolish unlawful settlements and do so frequently without the permission of a court. But while Gauteng metros are homogeneous with a large population of black Africans that continues to migrate into them from all over SA, Cape Town is divided and insular. There are big racial divisions between coloureds and Africans and divisions too among those born in the city and newcomers from the Eastern Cape.
The historical exclusion of black Africans from the province under apartheid has made it that much harder for newcomers — mostly from the Eastern Cape — to get a foothold. It is reflected in the attitudes of DA politicians who continue to gripe about the inward migration into what they regard as their own successful enterprise. It is also reflected in the party’s conviction that it is politics that lies behind the occupations.
Swartbooi says its impossible to separate what is happening today from what happened in the city’s racial and violent past.
“Cape Town has a deep and violent history of dispossession of black Africans. Those eras took away lots of things from people. They didn’t only take away land; they took away the right to a home. This is still embedded: that some have a claim here and some don’t. Black people are seen as migrant workers and nothing beyond that,” he says.
The SJC has taken the city to the Equality Court to compel it to produce a plan for all the informal settlements. In part, this is to compel the city to provide water and sanitation, which Booi says the city recognises it must do but does not have the estimated R200m to service the new settlements. He has written to the national department of co-operative governance & traditional affairs in an appeal for funding.
Such a citywide plan, says Swartbooi, would be evidence that the city has embraced its citizens and regards them as permanent.
The demand for urban land for settlement is reshaping government housing policy. In February the government said that given budget constraints, it did not envisage building low-cost houses at this point and would soon switch to providing people with serviced land on which they can build. This approach too will be followed in Cape Town. Instead of his slashed 2021 budget to build 2,000 houses, Booi says, the city wants to provide 6,000 to 8,000 serviced sites a year.
Ironically, the lockdown, which sought to keep everyone home, has led to an explosion of many more homes than there were before.
It will take the city many years to catch up with the events of the pandemic lockdown. And while the city hopes to reverse much of what has happened through court-sanctioned removals in the future, it is clear that the struggle for a home and a plot of land will not be easily put back in the backyard or the box.
It has come out on to the sands of the Cape Flats and it is here to stay.
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