The land invasion, Lourierpark, Bloemfontein

The invasion of the land next to Lourierpark in Bloemfontein has sparked a lot of debate. In this article, I explain my viewpoints about the matter from a systemic and bureaucratic angle.

The legal angle

The South African legislative framework to deal with land invasions are comprehensive and extensive. The pre-1994 dispensation, which basically put the right to evict unlawful squatters squarely with the land owners, was replaced in 1997 with an act that granted occupiers of land much more legal rights.

The Extension of Security of Tenure Act, 1997 pretends to find balance and a fair approach to deal with the rights of land owners versus those of occupiers, in an effort to meet the demands of the Constitution about ownership, fairness, human rights and human dignity. However, in practical terms, the Act has shifted the legal paradigm towards the rights of occupiers. In doing so, it has fundamentally undermined ownership rights and security of ownership in South Africa.

Without quoting extensively from the Act, I think that especially Section 3 demands attention. It states that:

“(3) For the purposes of this Act, consent to a person to reside on land shall be effective regardless of whether the occupier, owner or person in charge has to obtain some other official authority required by law for such reside.

(4) For the purposes of civil proceedings in terms of this Act, a person who has continuously and openly resided on land for a period of one year shall be presumed to have consent unless the contrary is proved.”

Section 9 of this Act, read in conjunction with Section 8, requires a land owner to get a court order before evicting land invaders.

If this Act is read in context, it is clear that it is very difficult to evict land invaders who have resided on a specific piece of land for longer than one year, and almost impossible if this period exceeds three years. In further sections of the Act, it is even stipulated that a land owner may be required to pay compensation to the occupier for the removal of structures erected during the occupation, and even for crops lost due to an eviction order.

Considering the land invasion in the Lourierpark area, the fact of the matter is that the Municipal Manager of the Mangaung Metropolitan Municipality, acting in his capacity of accounting officer of the land owner (the Mangaung Municipality) did approached the Court, and did get an eviction order.

The problem started when the Executive Mayor, apparently with the cooperation of the South African Police Service, refused (or at least, were extremely unwilling) to execute the order of the court.

That brings me back to the strong possibility that this is a political matter, rather than a judicial one.

The Political Angle

My first thought, when I became aware of the invasion on Saturday morning, was that the EFF was behind it. It was so typical the EFF, and I am sure that Julius Malema must be very disappointed that he, or one of his thugs, did not think of its first. For them it would have been a real scoop, so short before the elections.

However, rumours quickly started to surfaced that it was ANC councillors in the Mangaung Metropolitan council that were behind the land invasions, and who have encouraged homeless people to participate. These rumours were given legitimacy by the refusal of the ANC mayor of the metropole to execute the court order and evict the invaders.

One thing was very clear, and that is that the invasion was well-planned and carefully organised. People did not arrive in piecemeal; in fact, approximately 3,000 invaders arrived in a huge group and immediately start setting up informal housing structures. Construction material were transported to the location, including by luxury vehicles such as Land Rovers, expensive Toyota bakkies and Mercedes Benz vehicles. By 11:00 on Saturday morning, more than 500 housing structures were already constructed and standing.

But why will the ANC support, and even organise, a land invasion like this, while the party’s formal policy is to prevent it?

The answer is almost certainly to be found in the declining support of the party among voters. For the first time ever since 1994, the ANC is in very real danger to drop below the magic 50% voter support, implying that it will lose political power.

In South Africa, in the current oligarchical political-economic system, the road to riches run through political affiliation. If you don’t have political party networks, and, with it, the ability to gain access to multi-million rand tenders, you are in danger of losing your wealth. And who are the people facing this risk? It is those in the Land Rovers, Toyotas, Mercedes Benzes and other luxury vehicles present at the invaded land on Saturday morning.

This also explains the unwillingness of the executive mayor to act against the invaders, as well as SANCOs active support. SANCO has been very silent in South African politics since the 1994 political transition. Now, all of a sudden, they are reappearing with apparently renewed vigour.

The racial rhetoric in the Executive Mayor’s response to the matter must also not be missed. During a television interview, he did not hide his opinion that the concern of communities in neighbouring areas, including Pellisier, whom he has labelled as “White communities”, about their safety and the value of their properties, were racist.

This type of rhetoric is in tune with the shameless strategy of the national ANC leadership to return to the revolutionary tone of the 1980s and 1990s. White people (or then the ideological expression thereof, of “apartheid” and “colonialism”) is blamed for everything. There is nothing wrong with the ANC; everything that has gone wrong in the country, is due to the legacy of apartheid, or the continuing privileges of White South Africa.

Understand one thing about the ANC: It cannot exists without a revolution. The ANC’s entire moral and sentimental foundation is its revolutionary credentials. It is not a political party, in the Western understanding of the term; it is a revolutionary movement. They say it; in fact they have said it ever since 1994. We just didn’t listened. They “comrade” each other (as if the civilian expressions of mister, miss or ntate does not exists), which is a typical expression of cadre loyalty in a socialist revolutionary movement. Their friends are the failed socialist and communist states of the world. Organisations such as Hamas, classified by Western countries as terrorist organisations, are embraced by the ANC.

What is it that we don’t get about the ANC? Go and read the Freedom Manifest. Except for their insatiable thirst for riches, the comrades of the ANC truly believe in the Freedom Manifest – and the socialist roost thereof. More than that, it is the socialist ideology that must shield them against the implications of the large-scale theft and looting they are depending on to live their lives of luxury and power. Whenever it seems to catch up with them, they play the socialist card, coupled with racial rhetoric, and the attention is shifted to the traditional enemy of Apartheid, with everything it encapsulates.

The issue is that it is possible, and, I believe, highly likely that the ANC has (and is) returning to its revolutionary roots, precisely because it is faced with the extreme threat of losing political control; and, with it, economic privileges. Organising land invasion and then blaming it on the White people was exactly what the ANC would have done during the time of the freedom struggle.

The Governance Angle

The prescribed system for spatial planning in South Africa is comprehensive (and, actually, exhausting). In 2013 the so-called SPLUMA, Act No. 16 of 2013 was promulgated (Spatial Planning and Land Use Management Act). The national guiding principles for spatial planning in the country were established. One of these principles is to “redress the imbalances of the past and to ensure that there is equity in the application of spatial development planning and land use management systems.”

I quote this objective, because it is the typical of the so-called transformation clauses in virtually all legislation in South Africa since 1994, and typically also the most destructive one. It is destructive, because it is used to re-direct scarce resources away from industries and areas that sustain economic development towards ideological visions (and subsequent spending priorities) that are ineffective to pursue, not supported by realities of infrastructure or economic activity concentrations and disruptive of sensible urban planning.

In terms of the Mangaung Municipality’s spatial planning system, and its supporting land use management framework, the Lourierpark – Pellisier area has been identified in the city’s Spatial Development Framework as short-term development priority residential areas. I quote from the SDF:”…the Pellissier Infill (SW3) and Lourier Park (SW1) (are identified) as short-term residual development areas, which collectively hold potential for development of about 2,989 residential units.”

The Spatial Development Framework (SDF) of the city determines how it will be spatially structured in the future. One of the core elements of the Mangaung SDF is to redesign the spatial features of the city in order to undo the spatial patterns of apartheid, which often place communities long distances from where the job, - social – and government services’ opportunities are. The prioritisation of the Lourierpark area in the Spatial Development Framework is likely an attempt of the city administration to achieve this; that is, to bring poor communities currently placed far away from job opportunities closer to the mainstream urban buzz.

The problem is that the areas prioritised over the jurisdiction of the entire Mangaung urban metropole are extensive (there are multiple areas included). Considering the city’s severe monetary constraints, it is impossible to finance all these priority areas at once.

It must also be taken into account that organised land use management is not the same as criminal land invasions. If the plans for Paradys and Gladstone in the Spatial Development Framework is considered, the following must be provided as part of organised settlement development: Infrastructure (water, electricity and more), schools, day hospitals, police services, community hall and library, sport facilities, retail, commercial and financial services and auction facilities. That will be structured and organised settlement. Hordes of people moving into an area and start setting up informal structures are land invasion, not human settlement.

The plans in the SDF must be cascaded into the Integrated Development Plan (IDP). The IDP must determine which of the plans in the SDF will be implemented during the coming 5 years. More than that, the IDP, together with the Medium Term Revenue and Expenditure Framework (MTREF) must indicate how the municipality will fund these plans. Although the Lourierpark area is mentioned in the IDP as a spatial priority, no development projects are allocated to it in the IDP or the MTREF (the budget).

This where the Mangaung Municipality’s unwillingness to act against the unlawful occupation of the land does not make sense to me. In a letter issued by the Municipality in response to the invasions, the city manager states that the municipality’s approach to human settlement issues entails a three-fold approach, namely resettlements, relocations and evictions. The question then became this: If no residual development, or the provision of bulk services in the Lourierpark area has been approved in the IDP or the budget, why is the Executive Mayor unwilling to act against the invaders?  If I read the policy of the municipality, invaders in undeveloped areas must be resettled, relocated and (or) evicted. Why does the Executive Mayor defy a court order to do exactly that?

The answer can only be one thing: Politics. But politics do not legitimise illegitimate actions. The problem is that politics cannot legitimise action (or inaction), but it can empower it. In the case of the Lourierpark case, the practical implication is that, if the bearer of state power withheld the means to evict invaders (do not act), by withholding police action to evict, even the court order became basically useless. Problem is, then we start living in a lawless state.

What is the solution?

The question is: How do you mitigate risks? You do it by reducing the likelihood that a risk will mature, and/or the impact if it does. Your ability to mitigate risk is highly dependent on the strength of the risk controls to your disposal.

In the short-term, the only meaningful control available to the Lourierpark and surrounding communities, is to get a court judgement to evict the illegal land invaders. However, they are not the owners of the invaded land; the Mangaung Municipality is. Locus standi may therefore be an issue. If communities surrounding the affected area will became involved in court actions, they will have to show that there interests are endangered. This may be more complicated than most would think.

Nevertheless, in this instance, the owner of the property, Mangaung Municipality, did obtain a court order to evict the land invaders. The problem arises when the authorised representative of the legal owner, in the person of the Executive mayor, initially refused to act against the invaders.

Make no mistake, the Mangaung Municipality may now act against the land invaders, and even send in the Red Ants to eradicate the temporary structures, but the problem will not disappear; especially not if the political polarisation and ideologicalisation in the country continue and intensify. Actually, the only benefit that court orders can achieve, is short-term, temporary reduction in the impact of the risk.

The South African legislative framework for the governance and management of municipalities is very comprehensive, and extremely detailed. It places communities at the centre of the process. It may be worthwhile to consider using the phased prescribed systems of municipal governance and management to influence the rules and methodologies whereby municipalities conduct their business as a pro-active method to reduce the likelihood that a risk (in this case the risk of unlawful land invasions) will mature. Besides, the more short-term, immediate remedy of court interdicts, to mitigate the impact of an already matured risk, will still be available, even in the context of a long-term, more strategic approach to managing the risk strategically.

If you start focusing on the systemic part of municipal policy-making and planning, which ultimately steers municipal actions, the question of locus standi solves itself, because, in terms of institutional legislation, municipalities are supposed to consult with all stakeholders. Also, you automatically broaden the scope of legal protection, because it makes municipal decisions and policies subject to the broad definition of “administrative action”, which brings into play the requirements of the Promotion of Administrative Justice Act (and the general rules of fair administrative action).

For one things, the clumsiness, inefficiency and partiality with which the Mangaung Municipality implements its core planning frameworks, in itself, probably constitute breach of fair administrative action.  

Image source: Canva