Abstract
One of the most enduring legacies of apartheid is the racialised in-access to property for the (black) majority of South Africans. The large unmet demand for accessible and affordable residential property close to work opportunities has resulted in widespread unlawful occupation of inner city buildings, which in the post-apartheid legal order has been shielded by a constitutional prohibition against arbitrary and unjust eviction. Yet, notwithstanding significant protection against eviction, in what remains a largely private property-dominated paradigm, unlawful occupation is an inherently disruptive act that pits ownership against the use/occupation of the same piece of property. Seeking to better understand the under-scrutinised social reality of such unlawful occupation of privately-owned property, we undertook qualitative research to examine how unlawful occupiers view, traverse and (re)define property-related arrangements. Coming from legal and built environment backgrounds respectively, we were particularly interested to understand the extent to which the legal limbo of unlawful occupation has given rise to a rejection of the hegemony of private property ownership and the construction of an alternative urban property rights consciousness among unlawful occupiers. Our research indicates that, although residents in Johannesburg’s inner city have found ways to deal with their state of unlawful occupation, the occupied spaces currently more accurately reflect a survivalist struggle in a mainstream property ownership-dominated reality than the assertion of a new urban property regime, with occupiers yearning for greater, rather than less, formality and legal authority.
Introduction
One of the prosaic and brutalising features of apartheid was the use of law to maintain white private property ownership especially in urban areas. The minority white population owned and accessed the vast majority of the land, while the black majority population was relegated to ethnically-based ‘homelands’ or dormitory townships on the outskirts of cities and towns, usually without private title or security of tenure.
Through a host of repressive legislation such as the Natives Land Act 27 of 1913 and the Group Areas Act 41 of 1950, apartheid land and planning legislation ‘systematically deprived the African majority of the population of formal access to land and housing in urban areas, thereby entrenching socio-economic and spatial inequality and creating the conditions for the unlawful occupation of land and property’ (Strauss and Liebenberg, 2014: 430). In addition, the common law ‘openly favoured strong property rights and allowed private land owners to vindicate their rights through eviction processes that were not balanced against considerations of occupiers’ needs and circumstances’ (Strauss and Liebenberg, 2014: 430). Whatever the common law missed could be dealt with in terms of the Prevention of Illegal Squatting Act 52 of 1951 (PISA), which gave white property owners and authorities ‘wide-ranging powers to evict and destroy the homes of unlawful occupiers’ 1 (SERI, 2013: 8), referred to as ‘squatters’. In these ways, the apartheid legal order valorised white private property ownership at the expense of all other property rights, used evictions to systematically relocate black people far away from urban centres and opportunities and denied black people access to adequate housing (Clark, 2013: 7–9; Wilson, 2012).
To redress apartheid’s unjust property paradigm, the Constitution of the Republic of South Africa Act 108 of 1996 (Constitution) provides a range of legal measures to advance land and property rights to the black majority, including significant protections against arbitrary and unjust eviction contained in section 26 of the Constitution, along with transformative legislation such as the 1998 Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE). These protections include the right to not be evicted without an order of court made after considering all relevant circumstances, 2 which has been interpreted by the Constitutional Court in a number of cases to mean that occupiers who would be rendered homeless by an eviction cannot be evicted unless the state provides alternative accommodation. 3 Moreover, in cases such as Blue Moonlight, 4 the courts have interpreted the right to property (section 25 of the Constitution) as having to be balanced against counter-veiling rights, including the right of unlawful occupiers to adequate housing in section 26(1) of the Constitution.
These developments have effectively resulted in a new legal order in housing and property relations in terms of which occupation may, in certain circumstances, trump property owners’ rights to enjoy their property (Wilson, 2009). However, as things currently stand jurisprudentially, where there is a direct clash between unlawful occupation and private ownership, the protection afforded to unlawful occupiers to continue to occupy the property is of a temporary nature. This means that people unlawfully occupying private property essentially occupy it in a state of limbo until the state is able to provide alternative accommodation and they are almost certainly ultimately evicted.
In recent years, the state of limbo for unlawful occupiers of Johannesburg’s inner city areas has been unintentionally strengthened by the municipality’s systemic failure to provide alternative accommodation for evictees, with the concomitant effect that courts have to continually postpone the eviction orders sought by property owners. Indeed, in recognition of its own failure to meet the demand for alternative accommodation in the aftermath of the Blue Moonlight decision, and with applications for evictions from private property owners piling up, the City of Johannesburg has brought an application to join and stay all further private eviction applications. 5 While this stay application remains unsettled, unlawful occupiers in inner city Johannesburg have been inadvertently granted further protection against eviction. However, it is unclear how long this situation will last, and it is unlikely that property owners (many of whom are property developers) will abandon their attempts to evict the unlawful occupiers.
Regardless of any legal protections (explicit, as well as inadvertent), the underlying problem of racialised in-access to property for the majority of South Africans has been one of the most enduring legacies of apartheid, which the post-apartheid state has manifestly failed to overcome. For various reasons beyond the scope of this article, housing backlogs are growing and millions of people are still unable to access adequate houses. 6 Since 1994, the unmet demand for accessible and affordable urban housing close to work opportunities has found traction in the more legally permissive frameworks for unlawful occupation, resulting in a proliferation of unlawful occupation of inner city buildings.
As a legal term, unlawful occupation is an objective concept that, necessarily, pits property ownership rights against rights of use and occupation. For us, this objective clash of property regimes pointed to an interesting site for social inquiry: to investigate the subjective lived reality of unlawful occupation. Conceptualising our research project, we were mindful that, while providing a useful frame for our investigation, the law is not an optimal discipline for interrogating subjective social realities. Since we were interested in the operation of property rights in an urban terrain, we were drawn to the `right to the city' scholarship. We were struck by Mark Purcell’s observation that, classically in relation to property rights, liberal democracy ‘conceives of rights as ends; when a legal right is secured, the struggle has come to a close’ (Purcell, 2014: 142).
Regardless of whether to view the post-apartheid legal order as liberal or post-liberal, 7 it is clear that, alongside recognising property ownership rights, the South African Constitution acknowledges the operation of other property rights including unlawful occupation. 8 As such, we were particularly interested to understand whether, in a legal order that apparently opens up rather than closes the property rights regime, the legal space afforded to the inherently disruptive act of unlawful occupation gives rise to an active resistance towards the dominance of property ownership rights; and possibly to the construction of a new urban property rights consciousness akin to the `right to the city' concept of ‘appropriation’ (Lefebvre, 1996: 174; Purcell, 2014: 149), in which there is a reworking of ‘control over urban space’, a resistance against ‘the current hegemony of property rights’ and a proactive assertion of ‘the primacy of the use-rights of inhabitants’ (Purcell, 2002: 103). To interrogate this hypothesis, we undertook qualitative social research to examine how unlawful occupiers view, navigate and (re)define property-related arrangements.
The research, which was undertaken between April and September 2015, comprised semi-structured interviews 9 with 13 residents (9 women and 4 men) 10 of three inner city buildings identified by an interlocutor non-governmental organisation working to advance housing and service-related rights in the inner city of Johannesburg – the Socio-Economic Rights Institute of South Africa (SERI). 11 Engaging with the personal circumstances, circumstances and notions of occupation, as well as navigation and construction of property relations, our research contributes towards an understanding of the reality of unlawful occupation in urban South Africa and provides some tentative conclusions regarding the limits and potential of the constitutional legal order in facilitating alternative urban property rights models.
The lived reality of unlawful occupation (‘appropriation’?)
Johannesburg has almost since its establishment been characterised by stark property and infrastructural inequalities, coinciding with race and class. Today, beyond the dichotomy of (rich, largely white) suburbs and outlying (poor, overwhelmingly black) townships, inner city areas provide access to informal work opportunities for poor (mostly black) residents through the unlawful occupation of buildings that have historically been mismanaged and owe large amounts of money in unpaid municipal rates- and service-related charges. The vacuum of formal regulation and property-related governance (coinciding with the dismantling of apartheid’s racialised control of the occupation of buildings from the late 1980s onwards), along with a degree of formal legal protection since 1994, has undoubtedly provided the space and opportunity for the unlawful occupation of inner city buildings (Zack et al., 2010). However, notwithstanding several municipality-led urban renewal projects since 2000 and an apparent renewed interest in the inner city by property developers in recent years (Wilhelm-Solomon, 2016: 381), many buildings – including the three buildings in this study – in Johannesburg’s inner city remain dilapidated, un-maintained and derelict.
The three buildings in this study are located in Hillbrow, Joubert Park and the Central Business District (CBD). We have named the buildings Khwezi Mansions, Shaka House and Intsika House. 12 Each building has been occupied by the people living in the flats who, in some form or other, are unlawful occupiers in that they do not own the properties and do not have the consent of the owners to live there. For the time being, the unlawful occupiers have managed to leverage the law to stave off evictions, and in some cases basic service disconnection too. However, in each case the building is in an unchecked state of decay and the threat of eviction is a constant spectre. Yet, notwithstanding considerable challenges, poor people such as those in our study continue to unlawfully occupy inner city buildings, seeking to secure a foothold in urban South Africa. In doing so, are they asserting a new urban consciousness of ‘appropriation’?
As pointed out by `right to the city' scholar Mark Purcell, ‘appropriation’, is a process to ‘radically transform our notions of who rightfully owns the city. Not only does it refuse a property rights conception of ownership, it affirms a radical alternative: the city belongs to those who inhabit it’ (Purcell, 2014: 149). Appropriation thus describes inhabitants’ active reconstruction of urban space as no longer commodified and determined by profit-motivated work but rather as a creative work of art (oeuvre) in which human relationships, encounters, usage and exchanges rather than property ownership are determinative and produce an ‘urban revolution’ (Huchzermeyer, 2014: 64, 70, 71). Apart from a rejection of property ownership, appropriation entails a conscious move towards a new praxis of autogestion, loosely translated as self-management, with appropriators making and managing collective decisions over urban governance ‘rather than surrendering those decisions to state officials’, resulting ultimately in the withering away of the state apparatus (Purcell, 2014: 147).
Seeking to understand how our respondents have experienced and perceived their occupation of inner city buildings, and particularly whether they have viewed, navigated and constructed property relations as proactive appropriation, our discussions with residents were wide-ranging. However, several common, inter-related themes that resonate with the `right to the city' approach emerged – these are: personal circumstances; circumstances of occupation; notions of the occupation and sentiments about their flats; and navigation and construction of property relations. Using these conceptual categories, we have set out residents’ stories, revealing the complex lived realities of inner city unlawful occupation.
Personal circumstances
In line with other studies of inner city Johannesburg (Mayson and Charlton, 2015; Poulsen, 2010; Wilhelm-Solomon and Pedersen, 2017), our research reveals quite a high level of precariousness among inner city unlawful occupiers. Most evidently, our respondents are all relatively economically unstable, relying on informal work (including street trading, casual child-minding, spaza shop operation, 13 taxi-washing and sex work), and earning irregular and low wages 14 and/or relying on social grants 15 to get by. Struggling to make a living, our interviewees are financially insecure and are clearly not able to participate in the formal housing market, whether to save enough for a deposit to buy a house or to rent. 16
Interestingly, almost all interviewees were migrants to Johannesburg from other areas of the country, 17 having come to Johannesburg from poorer provinces than Gauteng, notably the Eastern Cape and KwaZulu/Natal, in search of work. Quite a few have lived in the inner city for many years. Some, including Thomas (Intsika House) and Thami (Shaka House), have lived there for approximately 20 years, moving to Johannesburg as soon as this became possible to do after 1994. Nonetheless, most residents still have substantial family ties and regard the place they were born as ‘home’, pointing to the ongoing reality of internal migration between rural areas and South Africa’s largest cities, particularly Johannesburg. It is unclear from our research the extent to which Johannesburg represents a ‘pull’ of hope or a ‘push’ against the economic despair of rural areas (notwithstanding a degree of apparent romance among respondents regarding their ‘homes’). What is more clear is that, in purely economic terms, none of our respondents has managed to move much beyond a survivalist economic status.
In addition to financial insecurity, some interviewees (e.g. Ntombi from Khwezi Mansions, Grace from Shaka House and Zanele and Thabile from Intsika House) mentioned health-related concerns including HIV/AIDS, hypertension, depression and diabetes. Others mentioned the sexual precariousness of young girls and their concern over teenage pregnancies (e.g. Tumi and Zandile from Khwezi Mansions), along with other compromising gendered realities (e.g. Zanele from Intsika House). In Tumi’s case, she fell pregnant and could not finish school, which has limited her ability to get any work, and she remains unemployed; Zandile, who looks after her teenage nieces, is constantly concerned her nieces might fall pregnant while still at school; Zanele has two young daughters but has suffered seriously debilitating post-partum depression since giving birth to her seven-month-old daughter. In subjective, as well as objective, terms it is clear that, despite considerable resilience, most interviewees struggle with difficult personal and socio-economic circumstances.
Circumstances of occupation of building/flat
Khwezi Mansions is in Joubert Park. The building has seven floors with eight units per floor. An estimated 211 residents live in the 56 units. Most residents have lived at Khwezi Mansions for many years. During this time, there has been a lot of subletting and re-partitioning of the flats and, although the units are all formally bachelor flats, residents share balconies and, in some cases, have partitioned the rooms using curtains and wall units to enable multiple subletting.
Khwezi Mansions exemplifies a typology of inner city buildings in which there is an ownership and management vacuum and residents have struggled within unstable and insecure governance arrangements. The building’s one-time owner and his caretaker are both understood by residents to have died in the early 1990s. 18 Around 1997, the municipality appointed a property managing company to manage the building. Residents paid rent (inclusive of basic services) to the management company for about three years until the company faded out of the picture, after which residents discovered that the management company was not passing on services-related payments to the municipality. For some time, residents continued trying to pay rental – of about R56019 per person per month – via a bank account, but stopped after their payments were repeatedly returned to them by the bank. With no-one to pay rent to, residents simply stopped paying rent.
Thoko’s story is emblematic of the stories of occupation in Khwezi Mansions. When Thoko first moved from Alice (in the Eastern Cape) and into Khwezi Mansions, she initially lived with a couple on the couple’s balcony, which was enclosed. After the couple helped her find a job at a clothing store, they wanted her to pay too much money for the space and when she refused they kicked her out. The caretaker at the time found her a flat to share with a man. That man later retired and decided to go back home to the Eastern Cape. Thoko is currently sharing/subletting her flat with two young men who were desperately looking for accommodation. She lives on the balcony and uses a curtain to provide some privacy, while the two men sleep on two beds that have been placed in the living room.
Shaka House is in Johannesburg’s CBD. It has two floors with approximately 53 residents, most of whom have lived there for close to 20 years. The erstwhile owner passed away around 1995. The caretaker he had appointed, Solomon, has also died, although the residents we spoke to are not sure when this was. Thami hinted that Solomon had been appropriating financial contributions from the residents. After Solomon died the residents stopped paying rent. This, along with the building having had multiple successive owners in recent years, has clearly exacerbated the precariousness of their situation, with residents living under the constant threat of eviction. Thami’s introduction to Shaka House was when he used to visit his mother and his aunt during school holidays, from Queenstown in the Eastern Cape. Later, in 1993, he moved to Shaka House and attended school in Soweto. He first shared a bachelor flat with his aunt but after another resident from Zimbabwe died, leaving his flat vacant, Thami asked the residents’ committee if he could take over this room.
Intsika House is a 16-floor building in Johannesburg’s CBD. It is home to approximately 520 residents, most of whom have lived there for many years. Intsika House reflects the complexities of inner city degeneration combined with lengthy insolvency proceedings that have held the building in limbo for many years, it having initially been used as a commercial property. In the early 1990s the first owner, Mr P, allowed people to move into what was a commercial building on condition that they paid rent. However, after Mr P failed to renovate the building for residential purposes, residents stopped paying rent and have not paid rent since approximately 1998, around the time when Mr P abandoned the building. As explained by Thabile: People complained about paying too much while they had to live in what used to be an office and there were too many people sharing the toilet. When I arrived here the owner had disappeared and left the building. Even though I never met the owner I met his worker. That was the last time the lifts were working. (Thabile, 21 September 2015)
Subsequently, residents discovered that the company under which Mr P owned the Intsika House had been liquidated in 1998, after which the insolvent estate became the owner until it was sold in 2012 by the liquidator at a public auction and bought by a property developer, N Investments. As the current owner, N Investments is still trying to secure an agreement with the residents regarding rental payments.
Notions of the occupation and sentiments about their flats
The residents of Khwezi Mansions we spoke to understand that their occupation is precarious. As expressed by Zandile, the powerful narrative about having no-one to pay rent to translates into not regarding themselves as unlawful occupiers: ‘We are not living here unlawfully because we used to pay money into an account – no-one is saying here is an account we must pay. Nobody has given us an account’ (Zandile, 15 May 2015). Zandile uses her flat to accommodate her sister’s children. For Zandile the flat represents an opportunity – however fraught – for her sister’s children to finish school and secure their (and perhaps her own?) futures, but she is concerned about the frequent electricity disconnections and that her 15- and 16-year-old nieces might fall pregnant and not finish school. Similarly, for Ntombi, the flat provides a base from which her daughters can try to secure a better future, and which is accessible for her to receive medical treatment: Living here is easy for me because my eldest daughter has finished her matric and wants to apply at the University of Johannesburg so it’s very easy for us … We are also close to the hospital because I am not well so I need to go to the Johannesburg hospital. (Ntombi, 20 May 2015)
Thoko has a house in the Eastern Cape but she feels that Khwezi Mansions is closer to job opportunities. Nonetheless, living with strangers has not been easy for Thoko especially as the men she lives with bring women back to the flat and have sex with them while Thoko is trying to sleep. She feels disrespected and is concerned about the lack of privacy when she has to come out of the bathroom in her towel. But she has to continue to share so that she can get some income from subletting. Ntombi, too, uses her flat to generate income – she operates an informal day care/creche from her bachelor flat, charging R250 a month for the older children and R300 for the younger ones (six months to five years). 20
Residents of Shaka House have a strong sense of belonging to the building and do not regard themselves as unlawful occupiers. Thami explained this as follows: Yes, because the owner left me here. I don’t know a lawyer who could call me unlawful. The problem is the owner and the municipality. So no-one can say I am trespassing when they have found me here. I am lawful because I lived here while the owner was still alive … This is like my home and I love this building … I have lived here for long – that is why I fight for this building … I have no hope of going anywhere else … (Thami, 3 June 2015)
Nonetheless, residents’ sentiments towards Shaka House are clearly profoundly impacted by the fact that Shaka House has no electricity, and is very dark inside even in broad daylight. Using the term em’nyamandawo, which in isiZulu means a place devoid of light,
21
Grace evocatively described the twilight zone they live in between legality and illegality by referring to the fact that, although they would like to, the residents have been ‘unable to establish a relationship with the municipality to secure electricity’ (Grace, 4 June 2015). Extending the em’nyamandawo metaphor, Grace complained that, ‘as em’nyamandawo, the building attracts criminals and crime’, and mentioned that, because the building used to be a brothel, sex workers continue to live in the building, which she views as further contributing towards crime in the dark building: These girls rob people. If there is a man who has chosen a girl outside, the girls follow them into the flat and the door remains open. They take his pants through the door and take his phone and wallet. This is crime. Sometimes we hear gun shots. One of the magosha [prostitutes] was shot by a man and some guy was once thrown off the balcony. I am not happy. But there is nothing we can do. (Lindiwe, 5 June 2015)
The residents of Intsika House understand that they have unlawfully occupied the building: ‘According to my knowledge – we live illegally. This is somebody’s property we can’t say that its yours when you don’t pay for water and electricity’ (Thuli, 25 September 2015); No, we live here illegally – we knew that we lived here legally when we had a caretaker because we used to pay him. When he left we understood that we live illegally because there is no-one involved in the building. (Thomas, 18 September, 2015)
However, the residents have a strong attachment to Intsika House, relying on the building not only as a home but also as a base for informal business. One resident makes pillows from recycled sponges and Thomas has divided his flat in half with a curtain where he sells food items and where he sleeps – his spaza shop has been operating since 1997.
Navigation and construction of property relations
Khwezi Mansions owes the municipality almost R2 million 22 in services- and rates-related arrears charges. The building has no water supply and the electricity is regularly disconnected by the municipality. The residents rely on the water from two fire extinguishers (one on the third floor and one on the sixth floor), which they collect in buckets and use for drinking, cooking, washing, cleaning and flushing the toilets. Without water in the pipes, the drains and sinks often become blocked.
In 2008, the municipality issued a notice of eviction and since then the residents have been living under the shadow of eviction: ‘We are always living in fear because, we don’t have a problem with paying rent, we just don’t know where to pay, and everyone who lives in this flat does not have a problem with paying rent’ (Zandile, 15 May 2015); ‘The fact that we are not paying rent leaves us at risk of losing this place and that does not sit well with us’ (Ntombi, 20 May 2015). In addition, as explained by Tumi, there has been an attempt to hijack the building: Yes, there was an attempt [to take over the flat illegally], even though I can’t say who that person is, they still live here. I know this person; we just can’t say his name … every time he came here he did not have official papers. So it was obvious he was not legitimate. (Tumi, 15 May 2015)
The residents have formed a residents’ committee to deal with the threat of eviction and hijacking, as well as the ongoing problems over water and electricity services. To try to regularise payments and thereby ensure a constant supply of electricity, the residents have negotiated with the municipality to allow them to open current electricity accounts despite not being owners. In terms of this agreement, the residents’ committee divides the monthly electricity bill by the number of units in the building. Usually each household has to pay approximately R400, 23 which it must pay directly to the municipality, and provide proof of payment to the committee. However, many households do not pay these bills and as a result the electricity is often disconnected. In the face of ongoing disconnection, it is increasingly difficult for the committee to convince residents to pay for electricity.
Following years of neglect, the building is in a very poor state. The committee has tried to address some of the more superficial aspects of maintenance through formulating and regulating building rules, including trying to ensure ‘cleaning day’, which is on Sunday mornings, is observed.
Shaka House has had no electricity or water supply since the early 1990s, when the transformer in the basement of the building was flooded by a leaking pipe, destroying both the electrical circuits and the ability to pump water to the building. There is consequently no water supply in the units, and residents obtain water from a fire extinguisher valve on the street onto which they have connected a long pipe and a tap at the end of the pipe. There are two outside toilets, which were installed in 2014 as part of an initiative by an international organisation to install toilets in ‘bad buildings’. Probably due to over-use, the toilets do not flush so residents have to use the hose to flush the contents onto the street. Grace explained that the inadequate toilet facilities affect women and children the worst because it inevitably falls on them to clean the toilets. Without electricity, when they can afford them, residents use gas, candles and paraffin as sources of energy for heating and cooking. Our interviews were conducted in Shaka House in the winter of 2015, and the building was freezing with cold air streaming through the broken windows.
Through its residents’ committee, the residents of Shaka House have had to fight multiple attempts to evict them since March 2012 when the owner at the time, Mr K, managed to evict everyone by obtaining an unopposed eviction order. With the help of SERI, the residents managed to overturn the eviction and had their occupation restored in July 2012. In August 2014 a new owner, Mr C, attempted to evict Shaka House residents, but this attempt was scuppered after the City joined the Shaka House proceedings in the City of Johannesburg ex parte stay application, which should have halted any further eviction applications until the stay matter is heard. However, the residents had to deal with two further eviction attempts – an unlawful eviction attempt in July 2015, which residents stopped by calling the police, and a further eviction order obtained in October 2015, which (for the moment) has been abandoned by mutual agreement pending the outcome of the stay application. Nonetheless, the constant threat of eviction has taken its toll on residents, fraying social relationships. Lindiwe has been particularly badly affected and feels that other residents have turned on her because of her profile in fighting the evictions (possibly also because of her vocal resistance to the sex working activities), with some even threatening to kill her.
Residents at Intsika House are determined to stay where they are. They explain that they have nowhere else to go and say they are ready to pay for rent and services but reiterate the difficulty of getting anyone to pay anything when there is no electricity in the building: ‘Yes – we want to pay and we are ready. Anytime. The thing is that makes people not to want to pay also is the fact that we don’t have electricity’ (Thomas, 18 September 2015). Following Mr P’s abandonment of Intsika House, electricity services were disconnected. There are two toilets on each floor, shared by all the residents of that floor. The residents fetch water from the kitchen and keep the water in their rooms in buckets and they take turns to clean the toilets or appoint a cleaner to clean on their behalf. On some floors the toilets are kept locked to prevent people from other floors using them.
In 2003, two floors in the building caught fire and the municipality brought an application for the eviction of the residents on the basis that the building was unsafe for human habitation. The judge dismissed the application on condition that the residents looked after the building. A residents’ committee was formed and for a while residents agreed to pay R650 24 per month for services and maintenance of the building. However, in 2009 some residents started complaining that they did not see the use of paying the contribution. They were dissatisfied with the condition of the building and felt that the committee was failing to do the renovations. As a result, the committee was unable to continue making payments to the municipality and the electricity was again disconnected. Over the years, the lack of electricity in particular has had a negative impact on residents’ informal livelihood strategies, for example Thuli, who used to run a spaza shop selling food and cold drinks, has had to stop her business.
In 2015, separating the issue of services from rent and in the face of ongoing deliberations with the current owner over rent, the residents’ committee was able to reach a settlement with the municipality to open an account for the residents so that electricity services could be restored. According to Thomas, each unit had to contribute R500,
25
and the committee managed to raise R70,000.
26
However, when they got to the municipality things did not go as planned because it transpired that the building owed the municipality R320,000
27
for electricity, and so, after receiving the R70,000 collected by the residents, the electricity supply was not restored. This reality has caused a rift between the residents where some residents believe that there is corruption between the officials and the residents’ committee: … when we paid that R70,000 … the municipality then refused to have us sign on the basis that the owner of the building said we should not have electricity. We lost our money due to the existing debt. The residents did not understand how we lost the money. Some said we stole the money while others believed that the municipality took its money. We were accused to be working with people from the municipality to make it seem like we have paid the money. (Thomas, 18 September 2015)
The lack of trust and understanding over the municipal debt resulted in a vicious circle in which people stopped contributing towards repaying the debt, and therefore the chances of being reconnected to the electricity supply remain ever distant: ‘We can no longer pay because we don’t have electricity – right after we paid they cut off the electricity’ (Thomas, 18 September 2015).
Regarding rent, the new owners have asked for R2500
28
rent per flat, and are in ongoing discussions with the residents about this amount. Supported by their residents’ committee, the residents are emboldened by their awareness that, legally, they cannot be evicted without the provision of alternative accommodation. They are also aware of their responsibility to pay for rent and service charges, and there is a willingness to pay for rent; however, they insist that the amount must be affordable to them: ‘We are all prepared to pay when the electricity is restored … but there will be conditions. If we pay rent we must talk about fixing this place’ (Zanele, 21 September); What I know is that the law says when a person buys a building, you don’t remove a person and leave them on the street; you must find them a place. For the person who lives on the property the law says you must pay for the water and electricity. (Thuli, 25 September 2015) If [the owner] says we must pay, others are prepared to pay and others do not want to pay. The most of the people that live there don’t work. If he says we must pay R2000 we won’t be able to pay but if he says R500
29
we would be able to pay. (Thuli, 25 September 2015)
Creative reconstruction of a radical alternative or banal iteration of a bleak reality?
Our study reveals a similar pattern of interwoven personal circumstances and occupation across the three buildings. Despite most respondents having lived in their flat for many years (in some cases decades), our interviewees expressed mixed feelings about their occupation. For almost all interview-ees, their flat represents hope for a better life (whether realised or not over time) within a continuing rural–urban dialectic in which rural places of origin simultaneously signify economic despair and one’s ‘home’. As such, their flats more accurately reflect ‘a desperation for housing in the inner city’ close to livelihood opportunities (Mayson and Charlton, 2015: 352) than a proactive proclamation of a new urban vision.
Strikingly, instead of wilfully claiming their status of unlawfulness, residents from Khwezi Mansions and Shaka Mansions do not consider themselves to be unlawful occupiers. Having gradually slipped into illegality, residents linked their notion of lawfulness to an historical (and possibly romanticised) relationship with the erstwhile (but long gone) owner and, in the case of Khwezi Mansions, to not knowing who the current owner is. Although residents from Intsika House conceptualise their occupation as ‘illegal’, this is a reluctant acknowledgement couched in palpable nostalgia for the prior regime of living legally rather than a celebratory assertion of appropriation. 30 Most poignantly, one interviewee from Shaka House equated the twilight-like reality of unlawful occupation with the (un-electrified) darkness of the building, and some made further connections to troubling sex working and other illegal activities carried out with impunity in their space.
It is clear that the unravelling of building management in the early and mid-1990s on the death or financial liquidation of previous (apparently more engaged) owners, combined with the systemic collapse of municipal governance during the 1990s and early 2000s – when owners (and their successors/estates) were not held accountable for the upkeep of buildings or mounting municipal arrears, and the winding up of deceased estates and liquidation of companies seems to have taken inordinately long – created the space for the occupation of derelict buildings by the residents in our study. However, while these laissez-faire conditions (in conjunction with a degree of legal protection afforded by the post-1994 constitutional order) have provided opportunities for occupation, the same conditions have manifestly resulted in increasing vulnerability for residents as the previously formal systems of governance have been replaced by a governance vacuum (in the case of Khwezi Mansions) and/or a new and inherently threatening property development regime in which successive new owners continue to attempt to evict them (such as in Intsika House). Rather than being affirmed and consolidated by their occupation, residents have evidently experienced significant disempowerment as they have attempted to grapple with various property-related challenges in the face of the collapse of formal management regimes.
Indeed, our research indicates – in contrast to the celebration of self-management (autogestion) by the `right to the city' – that, regardless of having established residents’ committees, it is extremely difficult for unlawful occupiers to navigate formal property relations, particularly in respect of systems and payments for rent and service charges. Where residents’ committees seem to have been more successful (at least for the time being) is in staving off evictions, such as in Shaka House. This is probably largely due to the progressive legal frameworks discussed above, which provide significant rights to unlawful occupiers against unfair/arbitrary eviction. What is less clear is how long any eviction standoff will endure if property owners begin to more aggressively assert their property ownership rights.
Regarding rental, residents are understandably reluctant to pay rent when the ownership status of their building remains unclear and if they are facing eviction. Interestingly, instead of viewing non-payment as a rebellious and possibly creative act, almost all residents we spoke to expressed their willingness and desire to pay rent, explaining that the only reason they were not paying rent was that there was no-one/no mechanism to pay it to and/or that they could not secure regular payments without secure municipal services (especially electricity). However, in Intsika House, where ownership has recently been established, residents have not yet begun to pay the rental being charged, possibly because the amounts are unaffordable.
Regarding municipal services, although in Khwezi Mansions and Intsika House the residents’ committees have managed to secure some form of current account services-related payment schedule with the municipality, in each case the residents’ committee has been unable to secure the required payments to ensure ongoing electricity services. It is unclear to what extent this is due to the unaffordability of current service-related charges or the difficulty of convincing residents to pay for services that are continually disconnected due to inadequate payment.
What is apparent is that residents’ committees find themselves in a catch-22 situation in that they cannot convince residents to pay services-related charges when the building does not have electricity, and the municipality is unwilling to reconnect the electricity without some upfront payment. In Intsika House there is the further problem of occupiers being required by the municipality to pay historical services-related arrears they simply cannot afford. This indicates a degree of confusion over whether, in situations of unlawful occupation, residents or owners should pay any municipal services-related arrears, as well as an arbitrary application of municipal processes in this regard. It also points to another catch-22 situation for unlawful occupiers. If they manage to convince the municipality to open electricity accounts in their names (as opposed to the usual system in which all municipal accounts are in the owner’s name), this might expose them to being held liable for service-related arrears which, when not settled, will result once again in electricity disconnection.
Thus, despite some degree of proactive agency in the form of electing residents’ committees, residents clearly remain hostage to the formal property regime. Even in the instances where residents have negotiated current services-related charges with the municipality and even if these charges were regularly paid (evidently not an easy accomplishment), this would not deal with two major property-related issues that, as currently construed, will mean that unlawful occupiers in inner city buildings such as those in our study remain vulnerable to ultimate eviction. First is the issue of property rates, which are payable by owners rather than occupiers and which, in the absence of payment, continue to accrue against the value of the property for 30 years. Second is the issue of historical services-related arrears. Although water and electricity-related charges prescribe (become unenforceable) after three years, 31 sewerage-related charges prescribe only after 30 years. In cases of buildings with unstable management systems in place that owe large amounts in arrears to the municipality, and especially where historical municipal arrears on a property (whether in terms of rates, sewerage or water and electricity within the three-year period) are greater than the market value of the property, the municipality has the right to expropriate the building or cause it to be sold in execution of the debt at an auction. In such cases, as the law currently stands, residents would be protected from eviction until the state could provide alternative accommodation but not indefinitely, and the alternative accommodation might not be acceptable to them. 32
The failure of residents’ committees to successfully navigate the complexity of formal property arrangements creates a vicious cycle in which residents are distrustful about paying monies for rent or services (often because they do not immediately see results such as the reconnection of electricity) and therefore do not make the required payments, thereby undermining any chance of remedying the situation, and further fomenting distrust. Operating in informal limbo, which is clearly at least partially related to the difficulties of navigating the formal property regime, residents seemingly also have limited capacity to deal with thorny social tensions. This is most evident in Shaka House over the contentious issue of sex working and where even successful proactive interventions by Lindiwe against looming evictions have resulted in animosity and even death threats. A 2017 study of inner city Johannesburg buildings confirms our finding of the difficulties of sustaining informal management roles and committees, highlighting the resentment against and threats to people who assume such positions (Wilhelm-Solomon and Pedersen, 2017: 21).
For the residents in our study, relying on informal systems including elected residents’ committees evidently simply cannot deliver real harmony or security, and certainly reflects neither a radical reconstruction of social relations nor a creative revolution of urban space. Indeed, rather than valorising their unlawful status and self-governance, inner city residents are nostalgic for and aspire towards more formal and lawful arrangements.
Conclusion
Writing about Latin American favelas in The Production of Space, Henri Lefebvre celebrates the ‘[a]ppropriation of a remarkably high order’ he found there, commenting that, despite being marked by objective inadequacies, such settlements ‘manifest in social life far more intense than the bourgeois districts of the cities’, and predicting that this ‘extraordinary spatial duality’ will persist and weaken ‘dominated space’ (Lefebvre, 1991: 373–374, as cited in Huchzermeyer, 2014: 77). Our research indicates that in Johannesburg’s inner city unlawful occupiers have demonstrated remarkable resilience and, in some cases, have at least temporarily resisted eviction. However, in contrast to the `right to the city' activations in Brazilian favelas, the occupations we studied more accurately reflect a survivalist reality than the vision and assertion of a proactive alternative.
Evidently, current occupation in the shadow of an ownership-orientated property regime has not significantly weakened ‘dominated space’ and is not a panacea for residents’ profound socio-economic vulnerability in the face of the ‘creative disruption’ of globalised urbanisation (Harvey, 2008: 33), not to mention colonialism and apartheid. Moreover, although the constitutional frame provides some protection against arbitrary eviction, unlawful occupation in inner city Johannesburg has not advanced a new urban property rights paradigm but has rather reproduced the mainstream private property-orientated model, even among the consciousness of unlawful occupiers.
It is, however, possible that with more time and more occupation the law and, concomitantly, the property regime itself will shift to recognise the primacy of the alternative property realities. Authors Eduardo Peñalver and Sonia Katyal have highlighted how, although the tendency is for property regimes to protect pre-existing ownership resulting in an inherent status quo bias, this bias can become a liability when, because of being intransigent to shifting realities, the bias causes property regulation to become irrelevant and ineffective. Peñalver and Katyal cite as an example of this the context of the 19th century settling of the United States of America West, where settlers frequently violated established property laws and instead established a system in which the land rightfully belonged to the person who tilled it, eventually causing the law to be changed to reflect the settler’s system of acquisition of land (Peñalver and Katyal, 2007: 1106–1107).
This might sound like a fanciful proposition. However, intriguingly, there is some evidence that a similar dialectical socio-legal process is currently underway in Johannesburg in the wake of the City of Johannesburg ex parte stay application, in terms of which unlawful occupiers have been inadvertently granted further protection against eviction while the municipality tries to plan for and provide alternative accommodation for inner city residents who would otherwise be rendered homeless by an eviction by private property owners. Although it is not likely that this occupation-strengthening stalemate will endure much longer, it is possible that while it does, further concessions to unlawful occupiers might be forged. After all, as recognised even by ownership-orientated property regimes, the longer occupiers can occupy specific space, the stronger their position becomes even vis-a-vis an owner, as expressed in the idiom ‘possession is nine-tenths of the law’.
The outcome for, as well as impact on, unlawful inner city occupiers, of this unfolding process remains to be seen. However, even if (and it is quite a substantial ‘if’), as a result, alternative property regimes prioritising occupation and use over ownership gain ground, it is unclear whether residents occupying derelict inner city buildings would in objective terms be able to thrive without further formal intervention. Perhaps more importantly, it is questionable whether unlawful occupiers would want to advance an alternative property rights model. As our research has indicated, although there is a relatively high level of engagement with and contestation over property relations, the inner city residents in our study are not subjectively engaged in a proactive praxis of reconstructing social relations. Indeed, far from rejecting the state, the law and even property ownership, our interviewees yearn for more formal authority rather than its retreat. For the moment at least, whatever the nature of the struggles among our inner city interviewees, their unlawful occupation does not currently represent proactive `right to the city' appropriation.
Footnotes
Acknowledgements
We are grateful to Bernadette Atuahene of Chicago-Kent College of Law, whose large-scale research project in Detroit inspired us to undertake this study. We are also grateful to Marius Pieterse and Marie Huchzermeyer from the University of the Witwatersrand for extremely useful comments on an earlier draft of this article, and also to two anonymous reviewers for pointing out critical flaws in our first submitted manuscript. Our profound thanks go to the residents of Johannesburg’s inner city buildings who generously shared their life stories and lived reality with us.
Declaration of conflicting interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.