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The Greater Masiphumele Development Plan

From: Paul Hoffman Sent: 10 March 2016 10:57 PM To: Felicity Purchase Cc: mayor@capetown.gov.za; Helen Zille Subject: The Greater Masiphumele Development Plan

Dear Alderman Purchase,

Please provide us with a copy of the Greater Masiphumelele Development Plan.

We are concerned that a low intensity, but nevertheless dire, humanitarian disaster is playing out in the informal parts of the settlement at Masiphumelele known as sections A to E as well as the TRA area to the west of the formal Masiphumelele township which has been there since the fire of 2006, which belies its “temporary” status.

Quite apart from the repeated occurrence of floods and devastating fires (of which there have been two major conflagrations this summer that have destroyed the homes of thousands), it appears that numerous constitutionally guaranteed human rights of the inhabitants of the informal areas are being threatened or infringed by the overcrowding and lack of amenities in the area. The canals that divide the sections of the informal settlement are in effect open sewers which pose multiple health risks, especially to children and older people. There is a great shortage of water and sanitation facilities in the area. Such toilets as there are seem to be kept locked in order to reserve them for favoured residents and to deprive the rest of access to sanitation. Some toilets are not serviced or maintained due to their inaccessibility to municipal cleaning staff and have become unusable. This situation is a cause of the atrocious state of the canals into which night soil is dumped for want of anywhere else to put it. Living in the resultant stench and in constant fear of home annihilating fires is taking its toll on the psychological well-being of residents and their children. The use of the wetland as an open informal toilet does nothing to improve the situation.

Crime is rampant in Masiphumelele, fuelled by drug related violence. The provision of a tiny mobile police station (actually just a vehicle the size of a large taxi) without a telephone or computer is a risible response to the residents appeals for protection against criminals. The mobile police station is not even equipped to register complaints let alone prevent and combat crime. It is used as an administrative outpost of the Ocean View Police Station. We appreciate that policing is a national competence but we have never observed a metro police official in Masiphumelele.

Cape Town is, according to our Mayor, a caring and compassionate city. It takes its duty to respect, protect, promote and fulfil human rights guaranteed to all in the Constitution seriously. In Masiphumelele the right to human dignity and even the most basic right to life are threatened or infringed daily. Freedom from violence and the right to bodily and psychological integrity are honoured in the breach. The environment in the informal settlement is positively harmful to the health and well-being of the inhabitants due to the failure, inter alia, to afford them access to adequate housing, including sanitation, for years on end. Children have an unqualified right to shelter; yet the children of Masiphumelele remain informally housed between fires in a manner that is not compliant with the Bill of Rights and certainly not in their best interests, which are paramount.

Town planning measures in Masiphumelele that are lawful, reasonable and procedurally fair are conspicuous by their absence. Plentiful undeveloped municipally owned land in the area both at Soleli and on the City’s Erf 5131 cries out for development to alleviate the crisis in Masiphumelele. This land remains idle with Erf 5131, over 5 ha in extent and adjacent to the sportsfields of Masiphumelele, is shamefully infested with mature Port Jackson willows, an invasive alien species.

Although everyone has the constitutionally guaranteed right to access to information from the state, the members of the public of Masiphumelele and the deep south generally have not been afforded access to the Greater Masiphumelele Development Plan so vital to their future. Although the said plan is discussed within city structures, it is apparently being kept secret so that it is, in effect, not open to public scrutiny. In our participative democratic order based on openness, accountability and responsiveness this is not acceptable at all.

May we ask you to please read and carefully consider sections 1, 2, 7(2), 9, 10, 11, 12, 24, 26, 27, 28, 32 and 33 of the Constitution in the context of the humanitarian crisis at Masiphumelele?

We look forward to receipt of the Greater Masiphumelele Development Plan and your response to the overcrowding, degradation and human rights infringements of which we complain above.

As we regard this matter as one of some moment, we are copying this email to the Mayor and the Premier. You may consider passing it to Adv Vusi Pikoli, the Police Ombudsman of the Province, as well so that he can apply his mind to the inadequacy of policing of which we complain.

Kind regards,

Paul Hoffman SC

Director

Institute for Accountability in Southern Africa

Campaigning as Accountability Now

From: Felicity Purchase Sent: 21 March 2016 11:55 AM To: Paul Hoffman Cc: Benedicta Van Minnen; Mayor; Mark Wiley Subject: RE: The Greater Masiphumele Development Plan

Dear Paul

Please accept my apologies for the late response.

The Masi master plan, is in fact a draft development framework. As said previously stated it will be tabled at a Mayco/ EMT meeting in April for a way forward. We do need to get the buy in from other Council departments before we can accept the recommendations and therefore the document. If not it will be reworked to deal with current realities.  We cannot accept recommendations if we do not have capacity, or there are other realities. eg  Solole, mentioned for potential GAP housing, is currently going through a planning process for a safety and security use. The fire station from Fish Hoek will be relocated there and potentially Law Enforcement and Metro. We are also negotiating with Saps around a site for Police station either there or at the entrance to Masi where the Taxis currently park. The new Taxi rank wil start later in the year on the Two Oceans Craft market site..

I agree that the satellite police station is inadequate. However it is giving most people a sense of security although we know it is inadequate. There are also sector van patrols. The real problem is the inexperience of the policeman stationed there.  We have already taken this up with the SAPS provincially. I presume you have too.

Even Ocean View Police station has not received the personal that they were promised to them and the CPF. Col Makeur is still battling to remedy this situation. Metro and Law enforcement are constantly in Masi but they work operations and are not their permanently. This is something we hope to address in the future.

Some of the issues not covered yet are capacity problems with regard to both water, electricity and sewage as well as road capacity, although to some extent that has been provided for and although it will take a further two years to see completed the upgrades are on the way.

They were supposed to have this detail in time to table for April.  Once tabled there and accepted hopefully it will then come to Sub Council by May. Then it becomes a public document.

The property that you are referring to, Erf 5131, was part of our development proposal when we started to prepare for the phase 4 development. However it was turned down in the EIA process. It was felt that for geological and environmental reasons it was not suited for development.

Mark Wiley, and myself have discussed this with the Min Bredell with a view to reviewing and the City is preparing a new process. The land was recommended for market gardens but realistically we know that the current damage to the wetland is far worse than what would be from development to the land. That is besides the obvious benefit of being able to rehouse residents in a safer housing opportunity.

I agree that the Town Planning measures are not well managed and we are reactive instead of being proactive particularly with regard to the illegal structures erected and business taking place in the area. I am attempting, on an operations basis to get the building inspectors to start operating in the area. The problem has been that they are threatened and therefore reluctant to work there. That is not an excuse. We now work with Law enforcement jointly to deal with issues.

The Port Jackson has been treated with the bug so should not in itself be a threat to the area other than the obvious fire risk.

The area known as the TRA, was created as a temporary site for the beneficiaries of the Amakhaya Ngoku flats. The reason they are still there is because the project stalled when the current flat residents stopped paying for the flats and the project stalled. Board members allegedly took monies and the board was hi jacked. The dissident members who then took over the board accused the fundraiser and board members, of taking their monies. We are currently planning to restart the project as a City / Province  project through a consultant that the province pulled in to do an audit of the project.

I don’t want to comment on the threat of their human rights being threatened or infringed by the overcrowding, other than to say we are deeply concerned by  the overcrowding.

We monitor new illegal shacks on an ongoing basis but that really doesn’t deal with the plight of these people desperate to improve the quality of their lives. We have ongoing cleaning of the canals and toilets but I agree it is never enough.

We do education on health matters, fire, disaster preparedness, flooding but it too appears never to be enough.

We are training volunteers from the community on all these things and hire locals on the EPWP programs to try and assist with the cleaning of toilets, canals, streets, refuse, solid waste, Home nursing, children’s programs, etc.

We installed additional taps in what was supposed to be the open spaces for fire paths and they were built around and incorporated into structures. Deliberately taken for individual use as opposed to for the community. As were some of the spaces for victims of the fire , where there spaces were incorporated by others into their structures to make bigger structures. Electricity is provided to structures where the water table allows.

We are providing additional toilets and the fact that they get locked is something we try to manage. The City cannot provide adequate housing for all on the housing list. What I find so sad is that they would choose to live in these conditions of squalor rather than stay in the areas that they come from.  They are just so desperate for an opportunity for a job and a better life. In some instances actually paying illegal landlords rent. The people in the hall have chosen to be there because they have nowhere else and the weather is in my opinion, not conducive to them being outdoors. Yes they have been there far too long, but ironically they have better toilet ratios, access to kitchen and safe yard for kids. Unfortunately they have no privacy. We hope to move then this month.

I have referred the mail to Cllr Benidicta Van Minnen , who will deal with the issues of Constitutionality, as I am not qualified to respond legally.

Kind regards

Felicity

Alderman Felicity Purchase

Chairman: Subcouncil 19

Ward Cllr 69

 

From: Paul Hoffman Sent: 21 March 2016 02:21 PM To: ‘Felicity Purchase’ Cc: ‘Benedicta Van Minnen’; ‘Mayor’; ‘Mark Wiley; Subject: RE: The Greater Masiphumele Development Plan

Dear Alderman,

Thank you for your response (below) and for referring the matter to Councillor van Minnen too. We look forward to hearing from her.

The constitutionality aspect is not too complicated. The city is obliged (as part of the state) to “respect, protect, promote and fulfil” the rights we have identified, in our email under reply by you, requesting access to the Greater Masiphumelele Development plan. [see section 7(2) of the Constitution]. We look forward to receiving the plan once the draft is finalised and trust that it will be consistent with the constitutional obligations of the city. The right to access to housing [in section 26 of the Bill of Rights] is supposed to be progressively realised; the situation on the ground in Masiphumelele is one of regression rather than progression, largely due to a failure to town plan in  a manner that is lawful, reasonable and procedurally fair as required by section 33 of the Bill of Rights.

It is, with great respect, ludicrously irrational to tolerate (apparently indefinitely) a seriously overcrowded and unhealthy slum adjacent to so much unused municipally owned land which is suitable for temporary if not permanent occupation by those living on the wetland in the informal settlement which continues to grow there in the absence of any substantive form of rational governance on the part of the city. Fires are wholly predictable, flooding occurs every winter and the threat of disease is manifest to anyone who comes within touching distance of the filthy canals in the area. The causes of the problems are not addressed, instead the city chooses to apply expensive “band-aids” to the symptoms of the overcrowding and lack of security, the indignity and the lack of proper services.

We have taken up the policing aspects with the Ombud. It is obviously not appropriate to police on perceptions rather than facts: policing is not a matter of smoke and mirrors as you have acknowledged in your email below. We are copying the Ombudsman on this exchange of emails so that he is aware of your attitude in relation to the lack of proper policing in the area.

It is intolerable in a country which regards its Bill of Rights as the cornerstone of our democracy (see section 7(1) of the Constitution) that the misery and degradation, the indignity and inadequacy of services experienced on an on-going basis in the daily life in the informal settlement at Masiphumelele should be allowed to continue.

We are prepared to wait until April for a copy of the Greater Masiphumelele Development Plan which we will closely scrutinize with a view to assessing its adequacy and its consistency with the obligations of the state under the Bill of Rights. Please be advised that the rights we have invoked in our first email to you on this topic are all justiciable and that we will not hesitate to take steps to impugn the plan should it not be consistent with the Constitution, as is the right of everyone under section 2 of the Constitution. Undue delay in making the plan public is in itself unconstitutional given the urgent need to alleviate the humanitarian crisis conditions within the Masiphumelele informal settlement, a situation which you acknowledge, at least implicitly in your email under reply.

There is a great deal that can be done, relatively inexpensively, to render the lives of the informally settled in the area more constitutionally compliant. Preventing fires is cheaper by far than the human and financial costs of addressing the repeated fires that occur in the informal settlement.

It is not for us to dictate policy choices to the city, but we are entitled to insist on constitutional compliance in the policy that is developed in the plan under preparation. Rest assured that we will do so. This is an opportunity for the city to put its best, and most compassionate, foot forward. Kindly forward us the plan as soon as you can.

Happy Human Rights Day.

Kind regards,

Paul Hoffman.

 

12/15/16

Dear Felicity,

As you know, the first fire of the summer occurred in Masi last weekend. It was devastating to those affected by it.

We have forwarded below some of the string of emails we have exchanged dating back to March this year. The city has still not provided us a copy of its development plan for the greater Masi area, despite polite but repeated requests. The Mayor herself said we could have it at a press club lunch she addressed in June, but still it is not forthcoming.

The city does not appear to us to have any policy at all in respect of informally settled land, and much of Masi is an informal settlement. The sustained failure to make a plan for Masi is, in and of itself, an infringement of the right to administrative action that is lawful, reasonable and procedurally fair. It is grossly unfair and unreasonable to fail to have an informal settlements policy and certainly procedurally unfair to take years to prepare the long awaited “Greater Masiphumelele Development Plan”. The undue delay in publishing the plan for public scrutiny is indubitably unconstitutional and an infringement of the rights of the people of the area to the type of administrative action envisaged in the Bill of Rights. The long delay is quite unconscionable.

We therefore call upon you to take the matter up with the City on behalf of the people of your ward and to give us a firm commitment as to when the plan will be published and made available to us for scrutiny. Kindly let us hear from you before 12 January 2017.

Yours in accountability

Paul Hoffman SC.

 

 

 

 

 

 

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