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A Right to the City for South Africa's Urban Poor by Margot

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A Right to the City for South Africa's Urban Poor by Margot View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by Stellenbosch University SUNScholar Repository A right to the city for South Africa’s urban poor by Margot Strauss Dissertation presented for the degree of Doctor of Laws in the Faculty of Law at Stellenbosch University Supervisor: Professor Sandra Liebenberg March 2017 Stellenbosch University https://scholar.sun.ac.za Declaration By submitting this dissertation, I declare that the entirety of the work contained therein is my own, original work, that I am the sole author thereof (save to the extent explicitly otherwise stated), that reproduction and publication thereof by Stellenbosch University will not infringe any third party rights and that I have not previously in its entirety or in part submitted it for obtaining any qualification. Margot Strauss Copyright © 2017 Stellenbosch University All rights reserved i Stellenbosch University https://scholar.sun.ac.za Summary In South Africa, spatial injustice holds profound implications for the democratic transformation of society, the planning and development of inclusive towns and cities, and the realisation of the constitutionally enshrined housing rights of vulnerable and marginalised urban inhabitants. The post-apartheid state has enacted an extensive housing law framework since 1994 aimed at giving substantive effect to the right to have access to adequate housing in section 26 of the Constitution. In practice, however, the implementation of this framework remains distorted and fails to adequately respond to the country’s complex housing crisis. A deep disjuncture also characterises current approaches to the interpretation and implementation of the housing rights of South Africa’s urban poor. Addressing these challenges requires a paradigm capable of contextualising housing rights interpretation and litigation, while viewing housing policy analysis and implementation through the normative lens of section 26. This study adopts an interdisciplinary and multifaceted research framework informed by history, social theory, international housing law, and South African legislation, policy, and jurisprudence. The dissertation investigates the value and potential of the right to the city paradigm to develop the substantive content of the housing rights of South Africa’s urban poor. The right to the city represents a normative framework adept to critically analysing current approaches to the interpretation and implementation of housing rights, in both international and South African housing law. Utilising this theoretical paradigm can contribute to a value-based understanding of housing rights, which offers pragmatic solutions to material problems in the areas of housing delivery, urban planning, and local governance. This value-based approach also requires democratic institutions, which include the courts, the legislature, and the executive, to collectively contribute to contextualised and participatory housing solutions in South Africa. If properly understood and implemented, the right to the city paradigm has the potential to advance the substantive realisation of housing rights and to promote spatial and social transformation in a manner that is congruent with the transformative nature of the South Africa Constitution. ii Stellenbosch University https://scholar.sun.ac.za Opsomming In Suid-Afrika, hou ruimtelike ongeregtigheid onpeilbare gevolge in vir die demokratiese transformasie van die samelewing, die beplanning en ontwikkeling van inklusiewe dorpe en stede, en die verwesenliking van die grondwetlik verskanste behuisingsregte van kwesbare en gemarginaliseerde stedelike inwoners. Die post- apartheid staat het sedert 1994 'n uitgebreide behuisingsreg raamwerk uitgevaardig wat daarop gemik is om substantiewe effek te gee aan die reg op toegang to geskikte behuising in artikel 26 van die Grondwet. In praktyk, is die implementering van hierdie raamwerk egter verwronge en slaag dit nie daarin om voldoende op die land se ingewikkelde behuisingskrisis te reageer nie. 'n Breë gaping kenmerk ook huidige benaderings tot die interpretasie en implementering van die behuisingsregte van Suid-Afrika se stedelike armes. Die aanspreek van hierdie uitdagings vereis 'n paradigma wat daartoe in staat is om die interpretasie en litigasie van behuisingsregte te kontekstualiseer, terwyl dit die analise en implimentering van behuisingsbeleid deur die normatiewe lens van artikel 26 beskou. Hierdie studie neem 'n interdissiplinêre en veelsydige navorsingsraamwerk aan wat ingelig word deur geskiedenis, maatskaplike theorie, internasionale behuisingsreg, en Suid- Afrikaanse wetgewing, beleid, en regspraak. Die proefskrif ondersoek die waarde en potensiaal van die reg tot die stad paradigma om die substantiewe inhoud van die behuisingsregte van Suid-Afrika se stedelike armes te ontwikkel. Die reg tot die stad verteenwoordig 'n normatiewe raamwerk wat bedrewe is om huidige benaderings tot die interpretasie en implimentering van behuisingsregte, in beide internasionale en Suid-Afrikaanse behuisingsreg, krities te analiseer. Die benutting van hierdie teoretiese paradigma kan tot 'n waardegebaseerde begrip van behuisingsregte bydra, wat pragmatiese oplossings vir materiële probleme in die areas van behuisingsvoorsiening, stadsbeplanning, en plaaslike regering kan bied. Hierdie waardegebaseerde benadering vereis ook dat demokratiese instellings, wat die howe, die wetgewer, en die uitvoerende gesag insluit, gesamentlik tot gekontekstualiseerde en deelnemende behuisingsoplossings in Suid-Afrika bydra. Indien dit behoorlik verstaan en geïmplimenteer word, het die reg tot die stad paradigma die potensiaal om die substantiewe verwesenliking van behuisingsregte te bevorder, asook ruimtelike en maatskaplike transformasie, op 'n wyse wat ooreenstem met die transformerende aard van die Suid-Afrikaanse Grondwet. iii Stellenbosch University https://scholar.sun.ac.za Acknowledgements I would like to extend my heartfelt appreciation to Professor Sandra Liebenberg, my supervisor, for her expert guidance, careful mentorship, constructive critique, and invaluable support throughout my doctoral studies. My research also benefitted from the institutional support provided by Stellenbosch University’s Law Faculty and the intellectual environment nurtured by my colleagues in the Socio-Economic Rights and Administrative Justice Research Project. In particular, I would like to extend my gratitude to my colleague and dear friend, Tarryn Bannister, who shared this incredible journey with me. During the course of my doctoral studies, I was fortunate to receive financial support from various projects, institutions, and foundations. I would like to acknowledge the assistance of Stellenbosch University’s Overarching Strategic Research and Outreach Project on Combating Poverty, Homelessness, and Socio- Economic Vulnerability under the Constitution during the initial stages of my doctoral research. I am indebted to the Finnish Ministry of Foreign Affairs for awarding me a three-month research scholarship at the Institute for Human Rights at Åbo Akademi University during 2012. A special expression of my appreciation is also due to the Ciucci Law and Development Centre for its generous support and to the EP Bradlow Foundation for the research bursary that enabled me to successfully complete my dissertation. On a personal note, I am especially grateful for the love, support, and encouragement of my parents, Hoppy and Marchelle. To my sister Hope, thank you for your emotional care, understanding, and kindness – particularly during the final phase of this study. In closing, my deepest expression of love and gratitude goes to my husband Charles Russell for his immeasurable affection, understanding, patience, and support. iv Stellenbosch University https://scholar.sun.ac.za TABLE OF CONTENTS Declaration ........................................................................................................... i Summary .............................................................................................................. ii Opsomming .......................................................................................................... iii Acknowledgements .............................................................................................. iv Table of contents .................................................................................................. v Abbreviations ........................................................................................................ vi Full table of contents ............................................................................................ x Chapter 1: Introduction ......................................................................................... 1 Chapter 2: A historical exposition of spatial injustice and segregated urban settlement in South Africa ..................................................................................... 19 Chapter 3: The right to the city: Theory and practice ........................................... 60 Chapter 4: Developing the normative content of the right to housing in international law through the right to the city ........................................................ 122 Chapter 5: The housing rights of South Africa’s urban poor through a ‘right to the city’ lens .......................................................................................................... 181 Chapter 6: Conclusion .........................................................................................
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