CAPE TOWN - In Trevor Noah’s book, Born a Crime, he details how his very existence was criminal given that he was the child of a white Swiss father and a black Xhosa mother, which was illegal given the apartheid laws that were in effect at the time of his birth. While today in the post-apartheid era people can no longer be born a crime, many South Africans are unable to survive without taking illegal actions, effectively criminalising their very existence (“enforced informalisation”, as labelled by the Sustainable Livelihood Institute).
Consider a young unemployed person from an informal settlement. That settlement is likely illegal, as it was built on land the inhabitants do not own. The zoning is unlikely to permit multiple residential structures, and the houses do not have approved building plans – nor could they, given the ownership issues and the inability to comply with the National Building Regulations. This young person does not want to live illegally, so they look for a “legal” way to live.
They register on the relevant housing waiting list; however, they know it will take years, probably decades, to be allocated a house, if it ever happens.
They consider a back-yard shack, but cannot afford rent, and no family members have space on their properties. Even if they could afford rent, the back-yard shack would likely be illegal due to non-compliance with the National Building Regulations, and may also be illegal under the relevant zoning scheme.
They consider moving to a different informal settlement and building a shack; however, the same legal issues exist. They then consider living on the streets; however, (most) municipal by-laws make sleeping in any public place illegal, unless there is a designated area, typically a campsite with unaffordable fees. The only remaining option is a homeless shelter – if they are lucky enough to find one with space available.
Perversely, the main option to become “legal” is to build an illegal shack in an informal settlement. Legally, the municipality must provide alternative accommodation when evicting inhabitants (provided certain conditions are met). Alternatively, the settlement might be upgraded. Even so, the household is unlikely to be fully legal, as the shack will be unable to comply with the National Building Regulations. In other words, for those without income, the sole way to reside in a semi-legal dwelling may be through illegal actions.
This is the reality for millions of South African households. The General Household Survey 2020 indicates that close to two million households live in informal dwellings (11.4% of all households in South Africa). Given this, we must question the validity and constitutionality of many of the laws governing the built environment, as it is unconscionable that the only way a person or household can survive is through illegal actions. Our laws relating to the built environment must change to make legal survival feasible.
This challenges our approach to public housing. It is absurd and immoral that a household has to take illegal actions to be able to access “legal” housing, or simply to access any form of shelter. While politically unpalatable, and technically difficult, we need a process whereby any household can request and be granted a plot of land on which to build a structure that is compliant with the National Building Regulations. We must replace illegal land invasions with a process enabling rapid land access.
However, our legal regime and economic climate make this difficult to achieve. The state would need to find adequate land to accommodate these households, change the zoning to accommodate this land use, and source the finances to provide adequate services. The building regulations would need to change to accommodate dwellings built from zinc and other informal and traditional building materials, and the process which relies on formal building plans would need to adapt to include reliance on on-site inspections.
This is all the more important given that even with the reforms to planning law in South Africa, the majority of current municipal approaches to zoning draw on historical American zoning approaches which were intentionally used to implement class segregation (and indirectly racial segregation). In the case of building regulations, we still use apartheid-era legislation, with the current National Building Regulations and Building Standards Act dating back to 1977.
While difficult to achieve, given that the alternative is a system that criminalises almost every action the poor can take to access housing and maintain a livelihood, these changes are urgent and necessary. I would go as far as arguing for declaring every law invalid (suspended for 24 months to allow for new legislation to be drafted), where the consequence of implementing that law makes it logistically impossible for any citizen to maintain a livelihood or find shelter, regardless of the logistical nightmare that would occur. (With a linked discretionary approach for individuals unable to comply with the respective law in this 24-month period. Essentially, the approach used by the Constitutional Court in 2018 to decriminalise cannabis use in private dwellings.) In many ways, it would take a logistical nightmare such as this to force the hand of the state to effect the widespread changes needed to ensure that all citizens can legally access shelter and maintain a livelihood.
We must move towards an approach that values the survival of all citizens above any other priority. We must abandon the pipe dream of providing all households with a fully built house in favour of providing a minimum basic service level and land to all households that require this. We must stop demonising the poor with terms such as “illegal land invasions”, when there is no other way for many households to survive. Only in taking such a stance will we be able to create a housing policy that truly meets the needs of all South Africans.
Stuart Paul Denoon-Stevens is a Senior Lecturer in Property Management & Development at Nottingham Trent University, and Research Fellow at the Department of Urban and Regional Planning, University of the Free State.
Cape Times