The dangers of ‘housing at the centre’
Despite policies that increasingly recognize informal settlements and promote their upgrading, informality remains politically unacceptable in most countries today. The unauthorized occupation of land is seen mostly as a form of non-compliance, if not defiance. There is a political tendency to punish rather than embrace those resorting to informal settlement, informal trading and informal recycling.
Informal settlements were a core issue in the preparations for last year’s Habitat III summit, where countries adopted a new 20-year vision on sustainable urbanization. The South African government was a key voice on the issue ahead of the summit, including hosting an official Habitat III meeting on informal settlements in Pretoria. At that meeting, and again at Habitat III six months later, South African Human Settlements Minister Lindiwe Sisulu provided important political leadership by placing informal settlements squarely on the agenda.
However, she also spoke about the campaign to create “cities without slums”. Likewise, we heard Habitat III’s secretary-general, UN-Habitat Executive Director Joan Clos, speak approvingly about people having been “moved out of slums” over the past 15 years, including a reference to the last shack being “pulled down” in Algeria.
While this is fairly standard rhetoric in global urban circles today, these are all phrases that are easily misinterpreted as promoting demolition and relocation. In that sense, they need to be treated with caution.
In a similar vein, Clos also spoke about the need to place housing “at the centre” in urban policy. He was implying centrality in terms of location — the importance of low-income housing being located close to economic opportunities and social amenities, which is difficult to achieve when an urban economy depends on a property market. But again there is a danger in this positive-sounding rhetoric: “Housing at the centre” also can mean that slum upgrading should be driven by housing delivery.
For many municipalities in South Africa, upgrading remains precisely that: Demolish informal settlements and replace them with formal housing units allocated to households that qualify for a one-off household-linked capital subsidy. Here, housing is at the centre of the intervention.
Such an approach is driven by housing typologies, repeated to create economies of scale. While attractive at face value, they override any chance to upgrade in situ, requiring instead that slum dwellers be moved into temporary relocation areas while housing construction is underway. With the new housing either delayed or allocated to others, in South Africa these temporary relocation areas often have become places of permanent uncertainty, with no ability for residents to invest in livelihoods and house improvement.
Grootboom and beyond
Still, there is an important countervailing process taking place through South Africa’s judicial system that has shown real progress in turning the government’s focus from housing to in situ upgrading, with a particularly noteworthy judgement handed down just last year. These court victories could hold lessons for informal settlements in other countries, as well.
“For many municipalities in South Africa, upgrading means demolish informal settlements and replace them with formal housing units allocated to households that qualify. Here, housing is at the centre of the intervention.”
An important backdrop to these court victories are continued daily protests in South Africa by communities living in desperate conditions and finding no other way to be heard. Further, critical bottom-up initiatives do exist, and these have helped to significantly improve the situations of those living in informal settlements.
For the most part, however, the policy shifts toward embracing in situ upgrading of informal settlements have been largely ignored until induced by litigation — through cases that have been brought to the courts from the bottom up. The most important milestones in this process are as follows.
One key legal move took place in 2000. That year, the Constitutional Court heard and decided on a watershed case known as South Africa v. Grootboom, which found that the government’s programme to build a million houses in five years was not responsive enough to those with immediate needs arising from desperate conditions, such as waterlogged informal settlements in the Western Cape.
Irene Grootboom and others had occupied a piece of land to escape such conditions but were evicted, following which they sought state support through the courts. Finally the Constitutional Court ordered the national Department of Housing to revise its policy to cater to people such as Grootboom. Although she passed away in 2008 without having experienced substantially improved living conditions, millions stand to benefit from this judgement.
To its credit, the South African government time and again has welcomed guidance from the courts. Following a four-year policy amendment process induced by the Grootboom judgment, the Department of Housing added two new programmes to is subsidy policy: an Emergency Housing Programme that allows budgets to be used for immediate temporary relief; and an Upgrading of Informal Settlements Programme (UISP), which allows a permanent solution to be found for all informal settlements, with relocation only as a last resort.
But policy advancements such as this require political endorsement at all levels and extensive promotion throughout the bureaucracy. The UISP was poorly disseminated, unsupported and long ignored.
In 2008, the international agency Cities Alliance helped create a National Upgrading Support Programme, now firmly embedded within the Department of Housing. This programme initially sought to understand the low uptake of the UISP among provinces and municipalities, with a view to assisting them in initiating upgrading processes for informal settlements.
The initiative came up with several early findings. Key among these were political resistance resulting from the promise at the dawn of democracy in 1994 to deliver free housing to all who qualify, and an extensive bureaucracy unable to shift beyond this singular aim.
A presidential target
Informal settlement movements, however, had become aware of the UISP and had started demanding its implementation from below. Finding it impossible to have upgrading prioritized in provincial and municipal processes, several informal settlements or movements resorted to a legal process.
“Policy shifts toward embracing in situ upgrading of informal settlements have been largely ignored until induced by litigation — through cases that have been brought to the courts from the bottom up.”
This brought three cases to the Constitutional Court in 2009. Through these judgements, the court enshrined several important principles: The state must act urgently (the Nokotyana case), the state must listen to affected households and engage them meaningfully (the Joe Slovo case), and the state must consider the feasibility of upgrading for every informal settlement (the Abahlali case).
In the following year, as a result of these judgments and the work of the National Upgrading Support Programme, the South African president set a target to upgrade informal settlements at a scale that would benefit 400,000 households across the country by 2014.
The National Upgrading Support Programme, alongside the state-owned Housing Development Agency, assisted municipalities to reach this target first by creating lists of settlements that could be upgraded. Inevitably, however, these lists were of settlements in which upgrading could be achieved easily and swiftly, including existing housing projects that could be reframed as upgrading with some stretching of definitions.
Meanwhile, many informal settlements found themselves excluded from these lists, and therefore still earmarked for relocation. With protests yielding only empty promises, courts once again seemed the only route.
This brings us to an important High Court judgment handed down last April, with regard to an informal settlement called Slovo Park in Johannesburg. Representatives of the settlement had sought in situ upgrading for over two decades, but time and again were referred to a decision by the municipal council to relocate them to a planned housing project 11 km away.
The judgment in this case — known as Melani and others v. the City of Johannesburg and others — cuts through the issue of lists and elevates the UISP above council decisions. It demonstrates that municipalities are compelled to apply for funding under the UISP for all informal settlements, with relocation as a last resort and handled only under this highly participatory programme. The judgement reads very clearly: The City of Johannesburg’s “failure to apply the UISP is unlawful”.
The mayor decided not to appeal the judgment. Instead, the City of Johannesburg has embarked on a participatory process with the Slovo Park community and its technical and legal advisers, supported by the National Upgrading Support Programme. In this sense, the Melani judgment has opened up new space for mutual learning and co-production of in situ solutions for informal settlements.
Importantly, such solutions cannot be driven by housing. Rather, they must be moved forward by securing occupational rights, providing services and allowing households to build or improve their own houses — and supporting this process in a participatory manner. This process must also enable the construction of collective amenities including public space, play areas, community halls and more.
Unfolding in parallel to the legal struggle for informal settlement upgrading was a legal contestation over who has the right to make planning decisions. This contestation was essentially political, with the Johannesburg Metropolitan Municipality finding itself compelled to take its provincial counterpart to court.
“In post-apartheid South Africa, provincial tribunals were able to override municipal planning decisions, thus approving proposed developments in contravention of municipal spatial plans.”
In post-apartheid South Africa, provincial tribunals were able to override municipal planning decisions, thus approving proposed developments in contravention of municipal spatial plans. This had resulted in the construction of poorly connected, mono-functional housing projects on cheap tracts of land, as well as luxury gated estates or townhouse developments that further fragmented South African cities.
This is not to say that municipal planning departments did not envision compact, transit-oriented development. But they simply did not have the power to steer development within their jurisdiction in this direction.
In 2010, a Constitutional Court judgement offered much-needed clarity, placing the function of spatial planning exclusively at the municipal level. Importantly, the judgement speeded up reform in planning legislation, ordering the state to conclude a process it had delayed for over a decade.
This judgement is significant in part because South Africa remains a country attempting to overcome the legacy of apartheid and segregation. But the judgement also forms an important beacon on the African continent, where many countries still operate under colonial laws and regulations that centralize planning.
The new legislative framework for planning in South Africa consists of legislation known as the Spatial Planning and Land Use Management Act operating together with spatial development frameworks and regulations. It requires all planning decisions to comply with principles of spatial justice, spatial sustainability, efficiency, spatial resilience and good administration.
Unapologetically pro-poor, it obliges municipalities to create planning mechanisms that enable them to incorporate all informal settlements into the urban fabric. Indeed, rigid planning applied with inappropriate standards often is cited as an obstacle to in situ upgrading. While flexible zoning schemes are being considered, planning innovations must go much further to support the implementation of the UISP in all informal settlements across South Africa.
These planning innovations must support the core principles of the UISP. This is necessary so that informal settlements such as Slovo Park need not struggle in the streets and through the courts for their right to remain on the land that has become their home — and for its incremental improvement.