Global Report on Human Settlements 2007 - PoA-ISS

156
Security of tenure
The state is obliged
to act to
progressively
improve the housing
conditions in South
Africa. It is also
required to ensure
that policies and
programmes are
well directed and
that they are well
implemented
Municipalities …
are required to
formulate master
plans incorporating
the constitutional
principles linked to
the ‘right to the city’
realization of this right.
3 No one may be evicted from their home, or
have their home demolished, without an
order of court made after considering all
the relevant circumstances. No legislation
may permit arbitrary evictions.
Moreover, during the years since the adoption of the 1996
South African Constitution, the South African Parliament
has adopted a series of key legislation dealing with various
aspects of security of tenure (see Box 6.25). Accordingly,
those suffering in circumstances of insecure tenure are in a
dramatically stronger position legally than they were a
decade ago. Court decisions have given them substantive
protection under the constitution and an ability to obtain
orders that the authorities produce constitutionally viable
and acceptable plans for fulfilling their obligations. Eviction
law has changed dramatically and new cases are developing a
substantive rights jurisprudence and not merely interpreting
procedural protections.
The next key shift occurred with the so-called
Grootboom case, when the Constitutional Court 55 – while
not following the High Court’s order that shelter should be
mandatory for children 56 – held that in failing to provide for
those most desperately in need, an otherwise reasonable
local authority housing policy was still in breach of the constitution.
Thus, the decision stressed that the state is obliged to
act to progressively improve the housing conditions in South
Africa. The state is not only required to initiate and implement
programmes, it is also required to ensure that policies
and programmes are well directed and that they are well
implemented. Other recent cases, such as the Port Elizabeth
Municipality and Modderklip cases, build on this case and
highlight the goal of avoiding evictions and stress the obligations
to provide alternative and appropriate accommodation
when evictions are unavoidable (see Box 6.26).
These legislative efforts, however, have not always
succeeded in achieving the results sought. Besides the fact
that forced evictions have clearly not been eradicated from
South Africa, efforts to provide security of tenure through
the formalization process have also clearly fallen short of
expectations. One analysis points out the following lessons
from South Africa’s experience with formalization to date:
• Formalization of property rights through
titling does not necessarily promote
increased tenure security or certainty and
in many cases does the opposite.
• Formalization of property rights does not
promote lending to the poor.
• Rather than giving their property the
character of ‘capital’, formalization
could expose the poor to the risk of
homelessness.
• The urban and rural poor already have
some access to credit.
• Formalization through registered title
deeds creates unaffordable costs for many
poor people.
• Informal property systems currently
support a robust rental market that is well
suited to the needs of the poor.
• Formalization via title deeds for individual
property can very quickly fail to reflect
reality.
• The poor are not homogenous and those in
the extra-legal sector should be differentiated
according to income and vulnerability
status. 57
Moreover, and tellingly, during recent years South Africa has
witnessed accelerated urbanization and increased rural
impoverishment, in addition to substantial increases in the
price of land in the main urban areas where people are
looking for houses and seeking jobs. The post-apartheid state
deserves credit for a housing programme that has provided
in excess of 1 million houses since 1994. The extent of the
continuing challenge with respect to providing secure
tenure is apparent from a recent survey, which records that
notwithstanding the number of houses built, the number of
households in the nine largest urban areas without formal
shelter has increased from 806,943 in 1996 to 1,023,134 in
2001 and 1,105,507 in 2004. 58
Brazil
The approval of the new democratic Constitution of Brazil in
1988 and the collapse of the national social housing system
in 1996 led to the development of new policies and
programmes targeting the situation of the population living
in informal urban settlements. The promotion of the ‘right to
the city’ and the right to housing were major components of
these new initiatives.
Under the constitution, all municipalities of more than
20,000 residents are required to formulate master plans incorporating
the constitutional principles linked to the ‘right to the
city’. These norms were significantly bolstered by the
adoption in 2001 of the innovative City Statute (see Box
11.8). Property rights are regulated according to the special
constitutional provisions addressing rural and urban land,
indigenous peoples’ and Afro-descendants’ lands, and private
and public land. As for property rights over urban land, the
municipalities have jurisdiction to issue laws supplementing
state and federal legislation as applied to local matters, such as
environment, culture, health and urban rights. All municipalities
are required to develop a master plan as the basic legal
instrument for urban development and to ensure that both
the city and the property owners fulfil their legal and social
functions according to the law. The municipalities may also
promote legislation and/or regulations as required for control,
utilization, urbanization and occupation of urban land.
National programmes to support the production of
social housing, land regularization and slum upgrading have
been implemented by the Ministry of the Cities created in
2003. Civil society, social movements and NGOs have been
leading the implementation of such policies together with
the federal government, and consistent with the principles
and instruments provided by the City Statute. The process of