Wednesday 5 February 2014 is a day that will live in infamy in the annals of the history of Cape Town. Two events, and the very average conduct of some present at both of them will ensure that. A turning point in the promotion of participative democracy was reached and the slope ahead looks somewhat slippery for those who long for peace and justice.

The first event was a housing and sanitation march on the Cape Town Civic Centre and the Provincial Legislature organised by the ANC and attended by all of 600 faithful supporters according to the usually accurate estimate of the Eyewitness News reporter who covered the event. This number compares very unfavourably with the more than several thousand mustered by the Ses’Khona poo-protesters late last year. The march went off peacefully enough until the Premier tried to address the protesters. In her wisdom, she had chosen to eschew repeated invitations to attend the second event, a meeting earlier in the day at the Civic Centre at which Ses’Khona representatives, her MEC for Housing, the Mayor, religious leaders and the Concerned Citizens Group (CCG) engaged with each other.

Predictably the Premier did not succeed in her efforts to address the ANC marchers. Why she imagined that there was any prospect of her to do so is a mystery. Maybe she was trying to score an obscure debating point by showing them up. Last year a partly ANC audience booed her off the stage at Saldanha Bay, why she thought a wholly ANC protest gathering would behave any differently is difficult to divine. All efforts to persuade her to attend the meeting at the Civic Centre were summarily rebuffed and an opportunity for constructive engagement went a-begging, at least in part due to her absence.

The meeting, unlike the unprepossessing protest march, was long in the planning with a great deal of energy and effort going into the orchestration of a situation in which a group previously given to illegal behaviour and angry confrontation was brought to the engagement process due to the interventions of religious leaders, concerned citizens and a groundswell of concern for those who find themselves endlessly in miserable informal settlements. In our city their living circumstances are hardly those expected of a city (or province, or state) that respects, protects, promotes and fulfils the human rights guaranteed to all in our constitutional democracy under the rule of law.

The rights relevant to the engagement so carefully prepared include, access to housing and sanitation, dignity, life, freedom from violence, bodily and psychological integrity, privacy, equality and the right not to be treated in a degrading way. The paramount nature of the interest of children was naturally also uppermost in the minds of those searching for constructive solutions to the problems of Cape Town’s informal settlers, 82% of whom live, whether they like it or not, on land that cannot be developed by the city for one reason or another. Some of these rights are subject to progressive realisation within available resources, some are non-derogable (dignity, life, equality, security and children’s rights) and all are subject to limitation only to an extent that is reasonable and justifiable in an open and democratic society. Cape Town sits on a humanitarian crisis time bomb with floods, fires and pestilence the lot of informally housed settlers.

The mayor announced at the commencement of the meeting that the involvement of the authorities in the engagement was being conducted on a “without prejudice” basis. This was, she explained, a reference to criminal charges laid against those who seek to make the province and city ungovernable or have engaged in poo-protesting – an activity that involves flinging faeces about in public places. The Premier regards some of these activities as seditious and complains about the lack of progress in the criminal justice administration concerning charges laid as long ago as 2012. It passes her by that the city and province have done precious little to follow up on their complaints – either with IPID or the Office of the Public Protector and have taken no steps to seek to privately prosecute or civilly interdict those whom they accuse in this regard. This is hardly indicative of a strong commitment to upholding the rule of law.

Notwithstanding the inauspicious “without prejudice” start to proceedings, surely the first such conducted in the full glare of the press and a phalanx of photographers invited by the city, the Mayor welcomed the opportunity and expressed a desire to engage constructively with all concerned.

The Ses’Khona representatives have one main demand: suitable land for development of housing estates in Cape Town. Subsidiary demands centre around porta-potty chemical toilets rather than full flushing toilets and a number of area bound concerns about the way in which housing and infrastructure is being delivered, or not, in specific areas.

Former banker and veteran arms deals campaigner, Terry Crawford-Browne, speaking for the CCG, drew attention to the available land owned by the state and controlled by central government, mainly military bases and railway property. He sketched the involvement of the CCG in getting this land released for housing development and put in prospect an announcement favourable to the landless in the state of the nation address due on 13 February, 2014. He expressed the view that there need not, in a clean and properly focussed administration, be any shortage of money for housing for the poor and that this is deserving of priority because the conditions in our informal settlements compare unfavourably with the standards laid down by the United Nations. He did not resist the temptation to tell an approving audience that if the arms deals are cancelled, as they should be, some R70 billion will flow into state coffers.

The National Development Plan suggests that there is a countrywide housing backlog of 2.1 million “housing units” and that it will cost R 300 billion to address this. The waiting list for housing in Cape Town has some 400,000 names on it and is strictly run on a “first come first served” basis according to the Mayor. The problem is huge, expensive and, at the present rate of progress, insoluble. According to the MEC for Housing the annual provincial housing budget is now R1,9 billion, while that of Cape Town is less than R1,2 billion. People, most of whom need housing, stream into Cape Town at a rate that has seen mother city population grow by 30% in the last ten years. At the present rate of delivery of social housing, the backlog increases.

Those earning between R3500 and R10000 per month find themselves in an uncomfortable gap in which they earn too much to qualify for social housing and too little to qualify for a commercial loan. So asking for land and money to develop it is no “overnight thing” as one Ses’Khona leader sensibly conceded.

Unfortunately the Mayor, apropos of nothing at all, chose to attack Crawford-Browne’s reliance on the Constitution, which she claimed to have written. It is a great pity that she has apparently not read what she claims she has written and has certainly not understood the exposition of the relevant provisions summarised above. The informal settlers sprang noisily to the defence of the CCG and the meeting went rapidly downhill from that point. The Premier, had she been present, could have saved the day and restored the relatively measured and deliberative atmosphere that prevailed before the Mayor “lost it”. But the Premier chose not to attend for reasons that point to a lack of appropriate leadership insight that, coming on top of the Ramphelestilskin debacle, is worrying to any objective democratic observer. In spite of our politicians, rather than because of their incisive leadership, the people of Cape Town are going to have to fashion a way of dealing with our housing crisis constructively before it destroys everything we cherish in our city and crushes all that is envisioned by our new democratic order. It is not helpful to languish in the R26 billion backlog in the provision of infrastructure in the province, what is needed is accountability and responsiveness to the needs of ordinary folk. Playing poker with protesters when the opportunity for constructive engagement presents itself is simply not on as it fans the justifiable anger of the marginalised.

Paul Hoffman SC is a member of the CCG
5 February, 2014.