Conned by the Courts: How Working Class Movements are diverted from Struggle

by Sian Byrne, Komnas Poriazis and James Pendlebury

Despite the fact that organisations of workers and the poor are often quick to recognise and point out the massive injustices they face at the hands of the so-called organs of “justice”, some of these very same movements are looking to the courts – those very same organs of “justice” – for a solution to their problems. This has gone on for many years – but in 2009 the courtroom strategy came to a climax, with two key cases decided in the Constitutional Court (Concourt). One of these cases was a complete defeat for the social movements, the other a partial victory. In Mazibuko versus City of Johannesburg, the Concourt ruled that prepaid water meters (as installed in Phiri, Soweto) are entirely legal – meaning in practice that poor people are compelled to cut off their own water, the source of life itself, when they cannot pay for it. In Abahlali baseMjondolo versus KwaZulu-Natal, on the other hand, the court overruled a law that made it easier for the provincial government to evict people from their homes – thus apparently securing the poor against yet another peril. And this victory, whatever it meant in real life, infuriated the state: indeed, it may be one reason why politicians and cops turned to murder as a response to the Abahlali shack-dwellers’ movement.

But even if Abahlali have won something in the courts, they and other social movements would do well to reflect on how far such victories can really go. And the Phiri case should ring alarm bells. The social movements expected to win that case, and they did win earlier on, in the High Court (HC). But the Supreme Court of Appeal (SCA) partly reversed this apparent victory, after which the Concourt went on to turn it into a complete defeat. This is the very same Constitutional Court that has been hailed as the most progressive branch of the South African legal system! How could the social movements come to have such illusions in the courts and the law? What lessons can we learn for future struggles?

Rights, Property and Class

Some of the false hopes rest on a special feature of the South African Constitution adopted in the 1990s: it is said to guarantee “socio-economic rights” such as housing, water and education. Few constitutions in any “democracy” have much to say about such vital human needs: rather, they guarantee what are called negative rights. They profess to forbid states to do certain terrible things, like locking people up without trial. What appears unusual in South African law is that it requires the state to do some things that people need, like building houses and providing water: these are what is known as positive rights. It is these apparent requirements that gave hope for victory in the Phiri case.

But what the judgment of the Phiri case shows is that, to a large extent, these positive rights are not real: they do not bring tangible results in people’s lives. We must therefore now ask ourselves: why are these rights not real? And how is it that popular movements devoted years to courtroom battles on the basis of a lie?

The real (even if concealed) purpose and function of law have been debated for centuries. The early socialists generated a wealth of valuable criticism on the topic which is still relevant today. The great anarchist writer Piotr Kropotkin declared, in his essay “Law and Authority”,[1] that a great deal of law rests on the protection of private property.  What this means is that it exists for the service of the rich, to help a few to benefit from the labour of many. As he explains: “When … the law establishes Mr So-and-So’s right to a house, it is not establishing his right to a cottage he has built for himself, or to a house he has erected with the help of some of his friends … On the contrary, the law is establishing his right to a house which is not the product of his labour … because he has had it built for him by others to whom he has not paid the full value of their work…”

And let us be clear: the “right to a house” of which Kropotkin speaks is the right of ownership – which means it is a right available to few. How many of us can own houses? For most people, in South Africa and worldwide, if we have homes at all, we do not own them: we have to pay rent to private landlords, or the state, or the banks, who will throw us out if we do not pay. It is the landlord who has the right of ownership – which in practice does not mean the right to use a house for his own needs, but the right to prevent other people from using it, unless they pay. And often this is not just one house: many landlords own large amounts of property. What the law guarantees here is that those who have much are given the right to take even more, while those who have little are left with no rights. Everywhere this is the law of property: it is the law of wealth and power to a few, and poverty and starvation for many.[2] Property is at the core of the division of society into classes. To put it simply: the great majority of us form a working class; we produce all the wealth but own little. What we produce is owned by a ruling class who often produce nothing, but take the fruits of our labour: already rich with ill-gotten gains, they use their wealth and power to become even richer at our expense.

And for all the “progressiveness” of its constitution, South Africa is no exception: why else would this country have the greatest economic inequality anywhere in the world? This very “progressive” constitution absolutely guarantees the “right of property” – a far stronger guarantee than its “positive socio-economic rights” as we shall see. In section 25 it declares that “no one may be deprived of property except in terms of law and general application, and no law may permit the arbitrary deprivation of property”,[3] thus revealing the underlying class character of our constitution. Those who produce wealth are given no rights to enjoy the benefits; those who have stolen the wealth are guaranteed the right to the fruits of their theft.

Seen in this light, the “socio-economic rights” in the constitution seem a small thing. How can the law guarantee you the right to a house, and guarantee some rich robber the right to take it away from you at the same time?

We can see the answer to this riddle by examining two aspects of constitutional law. Firstly, part of the reason that we can’t expect much from the courts is a central concern for the separation of powers (see page 36, “Whose Powers are Separate?”). Secondly, we need to look at what the “constitutional right to housing and water” actually means. This right appears in section 26 of the constitution – immediately following the right to property. And what does section 26 say? “The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right.” To understand this, we must look at what is meant by a) “available resources” and b) “progressive realisation” and “reasonableness” which are inter-related concepts and must be taken together.

Whose Resources?

Let’s begin with “available resources”. What resources are available? In real life, we might say all the resources: all the natural resources that we access through the labour of millions of workers (like piped water), as well as the vast wealth produced directly by those workers. But the constitution cannot allow that this constitutes “available”: rather, these resources are available to the few who own them, their “right” being guaranteed by this very same constitution! They are not available to the many who need them and who produced them.

While the law doesn’t make resources “available” to the majority, neither are they made “available” to the state – even if it supposes that the state really wants to make it available to the masses in the form of homes, water and other basic needs. We will see that this assumption of a state that cares for the people is yet another lie; but even if the state did care, its “available resources” would be much limited by the law of property – the law of class, of oppression, of exploitation. The assumption of the law is that all the masses can do is compete among ourselves for the few resources that we have, while the state looks on as a wise referee in our battles among ourselves. And because the state doesn’t question the unlimited access to resources for those who can afford it, any one resource allocated to a poor person simultaneously has an “opportunity cost” and deprives another individual of that potential resource. Because of this, the poor, who are claimed to be the beneficiaries of socio-economic rights, are simultaneously obstacles to the realisation of these rights for others, pitting poor against poor.

A key example, a classic socio-economic rights case, is the Soobramoney case. Thiagraj Soobramoney took the Minister of Health for KwaZulu Natal to the Concourt over denied access to dialysis treatment at a public hospital (he was in the final stages of chronic renal failure). The case was brought under section 27 (3) which provides that “no one may be denied emergency medical treatment” and section 11 which stipulates that “everyone has a right to life”.[4] The court argued that giving treatment to Soobramoney would affect the state’s ability to fulfil its legitimate purpose of providing healthcare to “everyone”: [5]

“If section 27(3) were to be construed in accordance with the appellant’s contention it would make it substantially more difficult for the state to fulfil its primary obligations under sections 27(1) and (2) to provide health care services to “everyone” within its available resources”.

Notice that the court did not say anything about why the available resources are limited. We know that this is a consequence of private property – protected by law – but the court treats it as some kind of fact of nature. And what else could they do? The court’s job is to protect property; they are not going to say that property is robbery and exploitation. If they have anything to say at all about property, they will say it is justice and freedom. But often they will not talk of property at all, instead conjuring up some other way of pretending that law has something to do with justice. Instead of cutting into the feast being enjoyed by those at the table, the state (who has devised laws to ensure that they stay there) “objectively” makes the “tough decisions” about which of the poor souls scrambling for crumbs on the floor is more deserving! Soobramoney eventually lost in the Concourt, on the basis that his medical situation did not constitute an “emergency”. Soobramoney never received the treatment he needed: in a capitalist social order, the resources were not “available”.

“Progress” towards Rights – or not?

What about “progressive realisation” and “reasonableness”? We can see what these terms mean in another classic socio-economic rights case, Grootboom vs. Premier of the Western Cape (decided in 2000). Irene Grootboom’s lawyers argued that under the housing clause of the constitution (section 26), the state had a positive obligation to provide shelter to Ms Grootboom, who had been evicted and had constructed a temporary plastic structure for shelter on the sports field in Wallacedene in the Western Cape. But the judges did not say that Grootboom, or anyone else, had the right to a house. Instead, they declared, in effect, that “progressive realisation refers to the obligation placed on the state to ensure the increase of the provision of a service or good over time, in a “reasonable” manner. In the case of houses, this would essentially commit the state to build more houses over time. In order to ascertain whether this right is being “progressively realised”, it would have to be shown that there is a connection between what government is doing, and the increased provision of housing.[6] This would mean that [7]

…it is not only the state who is responsible for the provision of [social services, in this case housing], but that other agents within our society, including individuals themselves, must be enabled by legislative and other measures to provide housing. The state must create the conditions for access to adequate housing for people at all economic levels of our society. (emphasis added)

Furthermore, a court considering whether this “progressive” action is reasonable “will not enquire whether other more desirable or favourable measures could have been adopted, or whether public money could have been better spent”.[8] The court assumes that such decisions are best left to the executive and legislature: this is based on “separation of powers” (see page 36, “Whose Powers are Seperate?”). And so it makes a decision that hardly guarantees government housing for those who need it – nor is it a positive obligation imposed on the state to actually provide houses. Theoretically, as long as the executive and legislature are doing something that is somehow leading to the increased provision of housing (which could include as little as the drafting and implementation of legislation and other programmes that encourage the participation of the private sector in the provision of housing), they are acting within their obligation. This throws a dim light on the sort of socio-economic rights our constitution actually promises.

So the High Court found in Grootboom’s case that the state had not taken retrogressive measures that would compromise its obligation to “progressively realise” the right to housing: [9]

…it could not be said that [the state] had not taken reasonable legislative and other measures within its available resources to achieve the progressive realisation of the right to have access to adequate housing.

We can learn several lessons from this understanding of progressive realisation. The first is that socio-economic rights in our constitution are very limited. How is it that Grootboom won the case in the Concourt, when the Soobramoney case had already established that the state was acting within its obligation as long it had a sufficient programme in place for the progressive realisation of a socio-economic right? Essentially, the reason for the victory is similar to the reason that the Soobramoney was denied treatment. The Soobramoney case was lost on the basis that Soobramoney’s condition, which put him in the final stages of chronic renal failure, was not considered an emergency because he was not in an immediate crisis, despite the fact that without dialysis treatment, his condition would ultimately kill him. The court determined that the ordinary reading of section 27(3) would not apply to cases like Soobramoney’s that entail the “prolonging” of life. The applicant in the Grootboom case, unlike Soobramoney, was in an immediate emergency or crisis situation. Although the state had devised a “national housing programme” that, in a utilitarian sense, was meeting its obligation to increase housing provision over time, it fell short on the measure of “reasonableness” because it did not make provision for those desperate individuals who were in a crisis situation like that of Irene Grootboom. But it takes a lot to convince the court that the executive is not trying to be “reasonable” in achieving “progressive realisation”. Usually, judges trust that the executive will do the job that the constitution requires: that it really will try to achieve progressive realisation of socio-economic rights. For example, in the Soobramoney case, it was stated that: [10]

A court will be slow to interfere with rational decisions taken in good faith by the political organs and medical authorities whose responsibility it is to deal with such matters [budget decisions].

The Phiri case: when “justice” runs dry

So what does all this mean for the social movements? Since the Phiri case holds some of the most important lessons for social movements, let’s use it as an example. When we review the case, it will no longer be surprising that the people of Phiri lost in the Concourt. What is more surprising is that the High Court gave them as much as it did!

The applicants were five residents of Phiri in Soweto, including Lindiwe Mazibuko, who went up against the City of Johannesburg.[11]  There were two main issues raised by the applicants in the HC. Firstly, that the City’s Free Basic Water (FBW) policy (which allocated 6 kilolitres per household per month, or 25 litres per person per day) was in contradiction with Section 11 of the Water Services Act and with Section 27(b) of the constitution which guarantees the right to “sufficient water”. Secondly, it was raised that the installation of pre-paid water meters in Phiri (for reasons of “non-payment” and “wastage”) was unlawful. As mentioned earlier, the residents won this case in the high court – mainly on the grounds of reasonableness. The applicants claimed that the court should determine the meaning of “sufficient” as stipulated in the constitution, which would entail quantifying the minimum amount of water. The HC found that the FBW policy was unreasonable and should be reviewed, stipulating the minimum amount should be 50 litres per person per day (in line with UN and World Health Organisation recommendations). It also found that pre-paids were unconstitutional, again on the grounds of reasonableness, because they are “an unlawful and unreasonable discontinuation of the supply of water”: that is, prepaid meters will cut off your water without notice or hearing. Further, the court said pre-paids were discriminatory because the option of credit meters was not given, and that the procedure followed in the installation was unlawful. The court ordered the City to provide residents with 50 litres (as opposed to the original 25 litres) per person per day, and to remove the pre-paid meters.

The City appealed to the Supreme Court of Appeal. The decision was partially reversed, with the appropriate amount being reduced to 42 litres per person per day. In a similar way, the court maintained that the pre-paids were unlawful, but granted the City a period of two years to amend the by-laws to deal with the issue of removing the pre-paids. The residents of Phiri then took the case to the Concourt, seeking to reverse the decision of the SCA, thereby reinstating the HC judgment. The case was lost in the Concourt on all counts, with even the partial victory being reversed. Pre-paids were deemed constitutional and legal – indeed, in the fantastic world of lawyers, a prepaid meter doesn’t really cut you off! And it was found to be outside of the court’s jurisdiction to determine the amount that would constitute the true meaning of “sufficient”. As could be expected, the issues of a) availability of resources, b) reasonableness in progressive realisation and c) concerns over the separation of powers all had a major role to play.

Firstly, let’s look at the issues of available resources. Not surprisingly since the case revolved around the issue of water, a “scarce resource”, available resources formed a substantial part of the argument. The City’s decision to initiate “Operation Gcin’amanzi” was constructed around two inter-related issues: the “culture of non-payment”, and the issue of wastage – which the City claimed were far worse in Soweto than elsewhere. Not surprisingly, the courts found these ambitions to be reasonable, and when residents attempted to challenge what they saw as the discriminatory nature of the initiative (since pre-paids were only installed in poor black areas), the courts overturned this claim. Why? Since it was Soweto where the “wastage” was most prevalent,[12] the installation of the pre-paids was not the result of discrimination on arbitrary grounds such as race or gender, and therefore not discrimination. However, it is interesting to see how what is considered “wastage” is conflated with ability to pay. Think about the fact that while the court sits and debates over what constitutes the minimum amount of water necessary for basic life, or discusses the issue of the culture of “wastage” in the townships, rich people can fill up their swimming pools and water their lawns – and this goes unquestioned by the courts. Why? Because they can pay for it! So when the courts talk about the “reality” of “scarce resources” (as they did in this case), they are actually talking about the fact that when everything is monopolised by a small group of rich people there is very little left for the rest of us. It must therefore be up to the state to decide how the leftovers are distributed.

Of course, the issue of the reasonable progressive realisation of the right also played a fundamental role. In this case, the residents of Phiri attempted to force the state to make good on its apparent commitment to provide “sufficient water” to “everyone”. However, again it was found (like in the Soobramoney case) that the real meaning of this right was not that people should have access to water, but that the state should enact legislation (and “other measures”) that will ensure that water is increasingly provided to people over time. It does not give people the right to actually claim water from the government. It simply means that: [13]

If government takes no steps to realise the rights, the courts will require government to take steps. If government’s adopted measures are unreasonable, the courts will similarly require that they be reviewed so as to meet the constitutional standard of reasonableness.

But what about the measure of reasonableness? It was on these grounds that the Grootboom case was won. In the Phiri case, unlike what occurred in Grootboom (where the government had not taken measures for the most vulnerable), here the City had devised an indigency policy, which entitled those who were most vulnerable (the elderly, or sick for example) to claim an extra 6 kilolitres of water per month. This is why the City’s policy was seen to be reasonable. In fact, the City’s policy was held up as exemplary in this regard! [14]

A reasonableness challenge requires government to explain the choices it has made. To do so, it must provide the information it has considered and the process it has followed to determine its policy. This case provides an excellent example of government doing just that.

This simply serves to confirm the harsh reality that we cannot expect much more in relation to socio-economic rights than for the state to be obligated to cater for those they consider to be in an emergency situation. Due to the “progressive realisation” clause, it must be recognised that none of the positive socio-economic rights provided for in the constitution “entitles” citizens, “to claim shelter or housing [or anything else] immediately upon demand”.[15] To illustrate, Irene Grootboom – who was successful in claiming a socio-economic right from the state – being awarded emergency shelter, eventually died without ever getting a house.

Lastly, let us consider the issue of separation of powers as it played out in the Phiri case. In both the High Court and the Supreme Court of Appeal it was found that the court should decide the proper relationship between 27 (1) (b), which states that “everyone has the right to” and section 27 (2), which guarantees “sufficient food and water”.  Essentially, they held that it is appropriate for the court to determine the minimum quantity of water necessary for basic life – and force the legislature and judiciary to incorporate this at the level of policy. This is why the HC ordered the City to revise its Free Basic Water policy to give each person 50 litres of free water per day. Even if the SCA revised the amount, it still thought it appropriate to determine the proper meaning of “sufficient water”, which it claimed was 42 litres per person per day. Remembering that courts are usually very hesitant to interfere in policy determination and implementation (which are the jobs of the legislature and judiciary) due to separation of powers concerns, these judgments are interesting because they go against the normal practice of liberal law. It is therefore not surprising that the Concourt reversed the orders made by the HC and SCA, claiming that “in my view, they [the HC and SCA] erred in this approach [finding it appropriate to quantify the content of the right] and the applicants’ argument that the court should set 50 litres per person per day as the content of 27 (1) (b) must fail”.[16] Here we can see how it is that ordinary people are powerless to make any fundamental change to state policy: because the courts are unwilling to tell the state what to do, the most we can hope to do through the courts is to set the state back on the track that it set for itself! And even if the courts do find that the state is taking actions that contradict the duty of progressive realisation, the court will not tell the state how to do it better, or by when – it will simply order the state to revise its policy as it sees fit!

The Abahlali case and the limits of victory

You might say that the Abahlali victory proves this argument wrong, that this was a case in which ordinary people actually did prevent an important Apartheid-style eviction law from being pushed through. This is partly true. Abahlali were successful in stopping the implementation of a law that would allow the KwaZulu-Natal Housing MEC to order wholesale evictions, a victory we must celebrate! But we must also ask ourselves exactly how that was won. In fact what we will see is that this case is not so different from the Phiri case – or from any other case discussed thus far: the reason for the victory was that the proposed law was in contradiction with an earlier national law, the “Prevention of Illegal Evictions Act”. This law was set in motion after 1994, replacing the earlier Apartheid law which prevented “Illegal Squatting”. Because the proposed law came into contradiction with an already implemented law, it was challenged and its implementation prevented. Now we can see how the victory was in fact less of a victory than it seems. It was actually only defensive: it did not win anything new from the state; it simply disallowed the state from doing something that compromised its own original policy.

We should say a bit more about the main issue in the Abahlali case. As we have mentioned, section 16 of the KwaZulu-Natal Slums Act authorised the Housing MEC to order evictions, and seemed to give the provincial government the power to do this wholesale. The MEC might have ordered all the shack-dwellers in the province to be evicted at once! Abahlali’s lawyers said this would be unconstitutional; all the Concourt judges agreed. This wasn’t a matter of positive socio-economic rights being progressively realised by the state; it was about negative rights, the right not to be evicted without a hearing. A positive socio-economic rights case would have been far harder to win.

But even in this negative-rights case, one Concourt judge wanted to avoid declaring section 16 unconstitutional. In fact, most of the text of the court’s judgment is taken up by Justice Yacoob’s dissenting opinion.[17] We need not dwell on the fantastic legal debates between Yacoob and Justice Moseneke, who wrote the main judgment that won the support of all the other judges. But we can say that Yacoob and Moseneke agreed on almost everything. In particular, they agreed that wholesale evictions would be unacceptable as a matter of negative rights. Yacoob refused to declare section 16 unconstitutional by concocting his own way to read it, saying it didn’t really allow the MEC to order wholesale evictions at all! Moseneke thought this was twisting the law too much.[18] But Yacoob’s interpretation has one important consequence: his arguments are there, on paper; and if provinces want to pass laws like the Slums Act, they can use Yacoob’s interpretation as a guide to writing these laws to make them constitutional. They will not be allowed to order wholesale evictions. But they will be allowed to take smaller measures that increase their power to evict; and Yacoob has given them a guide to how much they can get away with. Separation of powers doesn’t stop the courts from offering the state a helping hand.

In any case, we may wonder how much difference it really makes to have some evictions declared illegal. It is one thing to be able to sue the state or the landlord; but what if they go ahead and knock your house down anyway? According to researcher Malavika Vartak,[19] KwaZulu-Natal municipalities almost always ignore the law when they order evictions; no one can stop them. So, yes, it is good to know that MECs will not be legally allowed to have millions evicted at once. But this doesn’t offer much hope if we know that the state ignores the law anyway.

And it wouldn’t have helped to raise this argument at Concourt. The judges’ job is to decide whether the law is in order; they assume that the state will obey the law. The thinking is: if the state breaks the law, the people can sue. But as long as the law sticks to accepted principles, the court won’t give general orders to the state; they’ll rely on separation of powers, trust the good intentions of the other branches, and tackle the state’s law-breaking one case at a time. A fine principle for lawyers and judges – not to mention politicians, landlords and capitalists! But it doesn’t help us poor tenants when the Red Ants (eviction squads) show up on our doorsteps.

Rely on the state or on ourselves?

And that is really the central lesson of all these cases. Neither the law nor the constitution is there to defend us against the ruling class: it requires that we rely on the ruling class, and particularly on the state. And the courts tell us that if the state isn’t doing its job, we should depend on the NGOs: the Concourt said exactly that in the Phiri judgment, declaring that NGOs had done a wonderful job in making the case happen, keeping the state on its toes, pushing the City of Johannesburg to change its regulations. The ruling class are quite happy for NGOs to do such things; the one thing they don’t want is for workers and the poor to act for themselves.

Although we can claim from the state if we are desperate, as many of these cases have shown, the state will not tolerate acts that attempt to deprive the state of its power or authority. Importantly, in the Grootboom case, it was found that Irene Grootboom had not invaded privately owned land for political purposes or in order to “queue jump”, but was acting purely and genuinely out of desperation. Had it not been so, the outcome would almost certainly have been different. The courts take a hard line on politically motivated incidents of direct action [see footnote 6, page 27, “Riding to Work on Empty Promises”], illustrated by this case where it was stipulated that the judgment must not be seen as “approving any practice of land invasion for the purpose of coercing a state structure into providing housing on a preferential basis to those who participate in any exercise of this kind”.[20]

Rights are to be realised by the state, and by the state alone. This is the significance of the rejection of politically motivated direct action. We are not supposed to act for ourselves to gain houses, even though all houses are built by our labour, the labour of the working class. We must rely on the state in its benevolent wisdom; if we act for ourselves, the law turns against us, and our right to housing is at an end. So it must be in any class system: when the exploited and oppressed begin to act for themselves, how will the exploiters and oppressors maintain their authority? They need to keep us thinking that only they can act for us. As Kropotkin says (op cit…) “Instead of themselves altering what is bad, people begin by demanding a law to alter it.” That is just what our oppressor’s need: that is how they need us to think so that they can keep us down. And one lesson of anarchism is that the state is part of the system of oppression, part of the class system. When we look at what actually happens with housing, for instance, we see that the state does not try to provide houses for all, and certainly does not allow workers and the poor to do this for themselves. Instead it acts to preserve its own authority, to defend private property, to maintain the law of oppression and exploitation.

Although victorious social movements are right to celebrate any concessions that they have won from the state (including those fought in the courtroom), we need to be aware that by taking our struggle to the courts we are acknowledging the state’s authority and s uperiority, and reinforcing its power over us. Sometimes, yes, we can win in the courts, as the Abahlali case shows. Sometimes such victories can even be important. We cannot always rule out court action (after all, we usually defend ourselves in court when they try to imprison us for resisting and defying them). But we must guard against illusions. Many NGOs and “leftist” lawyers will tell us that the constitution is on our side and we are sure to win, but we can see that this isn’t so. When a working class movement thinks of going to court, it should not trust the lefty lawyers, but should make its own class analysis of the law and determine whether it can win or not. With our movements under serious attack (see p. 3, “At the End of the Baton of South African Pretensions”) we cannot afford to be bogged down in hopeless legal cases; we must not be conned by the courts. We must remember what we are up against, and, even more importantly, what we are fighting for. What is most successful in the struggle against oppression and exploitation, and most dangerous to the system of capitalism and state, is an independent, well organised and united movement that fights outside of and against the state: not bending to its rules or observing its self-appointed authority.

Sian Byrne and James Pendlebury are members of the ZACF. Komnas Poriazis is a libertarian communist and graduate of Wits Law School.


  1. see here for full article
  2. You might ask how it came to be that a tiny international minority came to own all the wealth of the world. Perhaps it was through their own hard work, or the hard work of their fathers, or grandfathers? But this is not the case. Karl Marx showed how the situation developed over many years not through hard work, but by forceful expropriation (which he termed “primitive accumulation”): land and resources were not earned; they were stolen from the majority (through complex processes including the enclosure of “the commons” in Europe and colonialism elsewhere) and put into the hands of a few powerful elites. These ownership patterns have been reproduced inter-generationally through wage labour and inheritance rights, which are, of course, upheld by law.
  3. Constitution of the Republic of South Africa, Act 108 of 1996, section 25
  4. Chaskalson, P, Judgment on CCT 32/27. Thiagraj Soobramoney vs. Minister of Health, p. 5
  5. Chaskalson, P, Judgment on CCT 32/27. Thiagraj Soobramoney vs. Minister of Health, p. 1
  6. The test for reasonableness is the same as the test for “rationality” which exists in administrative law cases.
  7. Yacoob, J, judgment on case CCT 11/00. Grootboom and others vs. the Government of the Republic of South Africa, the Premier of the Western Cape, the Cape Metropolitan Council and Oostenberg Municipality, p. 29.
  8. Yacoob, J, judgment on case CCT 11/00. Grootboom and others vs. the Government of the Republic of South Africa, the Premier of the Western Cape, the Cape Metropolitan Council and Oostenberg Municipality, p. 32
  9. Yacoob, J, judgment on case CCT 11/00. Grootboom and others vs. the Government of the Republic of South Africa, the Premier of the Western Cape, the Cape Metropolitan Council and Oostenberg Municipality, p. 11
  10. Chaskalson, P, Judgment on CCT 32/27. Thiagraj Soobramoney vs. Minister of Health, p. 17
  11. This case is long and complex: only some aspects of the case have been selected for discussion. The full judgment can be found here
  12. In fact independent research has shown that the wastage was more the result of leaking pipes than consumer waste.
  13. O’Regan, J, judgment on case DDT 39/09, Mazibuko and Others vs. the City of Johannesburg, Johannesburg Water (Pty) Ltd, Minister for Water Affairs and Forestry with Centre on Housing Rights and Evictions, pp. 33-34
  14. O’Regan, J, judgment on case DDT 39/09, Mazibuko and Others vs. the City of Johannesburg, Johannesburg Water (Pty) Ltd, Minister for Water Affairs and Forestry with Centre on Housing Rights and Evictions, p. 35
  15. Constitutional Court Case CCT 11/00, Grootboom and others vs. the Government of the Republic of South Africa, the Premier of the Western Cape, the Cape Metropolitan Council and Oostenberg Municipality, p. 65
  16. O’Regan, J, judgment on case DDT 39/09, Mazibuko and Others vs. the City of Johannesburg, Johannesburg Water (Pty) Ltd, Minister for Water Affairs and Forestry with Centre on Housing Rights and Evictions, p. 33
  17. Constitutional Court Case CCT 12/09, Abahlali baseMjondolo Movement and another vs. Premier of KwaZulu-Natal and others.
  18. Ibid. pp. 35-42, 58-65.
  19. Vartak says: “Mahendra Chetty, Director of the Durban Office of the Legal Resources Centre, noted in 2007 that he had not come across a single incident where the municipality had acted in accordance with the Constitution or provisions of the PIE Act while carrying out an eviction.” Experiences of Abahlali baseMjondolo and the Kennedy Road Settlement, Durban, South Africa. Official report for the Development Planning Unit of University College London, 2009.
  20. Constitutional Court case CCT 32/27: Soobramoney vs. the Minister of Health for KwaZulu-Natal, pg 17