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Mazibuko v City of Johannesburg - a jurisprudential setback 333
contention that there [would] be a huge cost in making provision for
permanent residents’, 69 and concluded that ‘the cost of including
permanent residents in the system will be only a small proportion of the
total cost’. 70 The Court thus held that the exclusion of permanent residents
from social security benefits was unconstitutional and Government was
required to include them in the scheme.
It is submitted that by examining actual figures, interpreting them and
in significant measure basing its decision on such interpretation, the court
was implicitly, if unintentionally, refuting its earlier argument in the TAC
case that it was not institutionally equipped to make such analyses. This
further bolsters the argument that jurisprudence in this area has been in a
state of flux.
In Residents of Joe Slovo Community, Western Cape v Thubelisha Homes, 71
the Court also raised the difficulty of balancing competing interests as a
basis for adopting a deferential approach towards the executive
authorities. Chenwi and Tissington urge that the Court failed to properly
assess the reasonableness of the government’s policy choices, and that the
Court displayed a particularly deferential attitude to the government. They
rue the fact that the Court allowed the eviction of a relatively large
community based on a government project that had been implemented
without proper consultation and did not make provision for affordable
housing for the intended beneficiaries. 72 Moseneke DCJ stated in his
judgment that if the applicants were not to benefit from the Joe Slovo
housing development scheme, then their eviction would result in them
being ‘sacrificial lambs to the grandiose national scheme to end informal
settlements’. 73 Upon a closer examination of the case, Chenwi and
Tissington take the view that the Joe Slovo residents are indeed ‘sacrificial
lambs’ in the state’s quest to ‘eradicate’ informal settlements. 74
Liebenberg’s critique of the judgment highlighted that the decision in Joe
Slovo affected about 20 000 residents and represented the first large-scale
judicially-sanctioned housing eviction since the end of apartheid. 75 This
is not meant to suggest that the Constitutional Court is acquiring an
insensitivity reminiscent of apartheid era courts, but rather that this
criticism should sound as a ‘wake-up call’ to the Court. It is in danger of
relinquishing its position as the ultimate guardian and protector of the
socio-economic guarantees of the Constitution and of showing too much
69 Khosa (n 67 above) para 62.
70 As above.
71
[2009] ZACC 16.
72 L Chenwi & K Tissington ‘“Sacrificial lambs” in the quest to eradicate informal
settlements: The plight of Joe Slovo residents’ (2009) 10/3 ESR Review.
73
Joe Slovo (n 71 above) 138.
74 Chenwi & Tissington (n 72 above) 23.
75 S Liebenberg ‘Joe Slovo eviction: Vulnerable community feels the law from the top down’
Business Day 22 June 2009. Available at www.businessday.co.za/articles/Content.
aspx?id=73812 (accessed 11 October 2009).