South Africans without homes

Next month South Africa's highest court will rule on the Constitution's housing guarantee.

Lucky Gwaza may be a soft-spoken fruit hawker who lives in a shanty on a soccer field, but he and his 900 neighbors have government officials from Cape Town to Johannesburg quaking at their desks.

Mr. Gwaza and his fellow squatters are demanding that the South African government deliver on its promises - specifically the constitutional guarantee of housing for all citizens. Their lawsuit, demanding access to water, toilets, and temporary shelter, has wound its way through the South African legal system to the nation's highest court. Next month, the Constitutional Court is set to rule on this, the first case of its kind in the new South Africa.

At issue here is whether South Africa's constitution, penned as apartheid fell six years ago, is a list of ideals this poor country hopes one day to live up to, or an expensive plan meant to be enacted immediately.

"Until now, people thought the constitution didn't really mean what it said," explains Geoff Budlender, director of constitutional litigation for the Legal Resources Center, a nonprofit public interest group. "We're hoping that this case will show that there's real substance in the constitution."

How this struggling third-world country came to guarantee costly rights, such as universal housing, says as much about the hopes of South Africa's new leaders as it does about this nation's tortured history.

THE apartheid government, which ruled until 1994, denied non-whites socio-economic freedoms. It dictated where they could live and work and prohibited them from owning property.

When the new government took over and sought to right apartheid's wrongs, these socio-economic rights became a natural focal point. And so, here in post-apartheid South Africa, the right to housing and the right to own land are seen as no less important than the right to free speech or the right to vote.

"Guaranteeing the right to housing is not ambitious," says Gege Kekana, spokeswoman for South Africa's Department of Housing. "It's about addressing the inadequacies of the past. We're trying to recognize the human rights of our population."

But this case affects more than just the plight of South Africa's 2 to 3 million homeless, because the constitution contains other undelivered promises. Children are guaranteed basic nutrition, healthcare, and education - on paper.

Should the Constitutional Court find in Gwaza's favor, local governments could go bankrupt, Parliament could be forced to backtrack on constitutional guarantees - or this country could embark on one of the most wide-reaching social experiments ever undertaken in Africa.

For seven years Gwaza, a father of two who has almond-shaped eyes and a neatly trimmed goatee, lived with about 150 other families in shanties on a marshy plot behind the local high school, about half an hour outside Cape Town.

"It was very bad. People had health problems," says Gwaza. "When it rained, it rained in the house."

In 1998, the residents, most of whom moved to Cape Town from impoverished rural areas in search of work, decided to move to higher ground. Seven months later, court officials informed them that they were trespassing on private property and issued an eviction order.

On the morning of May 18, 1999, police arrived. "They burned everything down," says Magdalena May, who saved only her five children.

"The government left them to fend for themselves," says Julian Apollos, attorney for the squatters.

With wood and cardboard scavenged from a dump and store-bought plastic sheeting, they rebuilt their "homes" on an athletic field next to the local community center. Behind the soccer field goal posts, two taps provide fresh water. The 900 homeless have no toilets or showers.

The government maintains that Gwaza and his neighbors must apply for housing from the government and wait their turn like everybody else. In this country of 43 million, where more than 5 percent of the population is homeless and unemployment is higher than 30 percent, it is a long wait. Some of his neighbors have been on waiting lists more than four years.

Few deny that the post-apartheid government has been slow to address the housing crisis. Former South African President Nelson Mandela promised 1 million homes in 1994. Only this year has the government neared that figure.

"We didn't supply the housing we promised," says Ben Kieser, the director of Cape Town's legal department, who helped write South Africa's constitution and is now advising the government in the Gwaza case. "It is a political question whether the government will live up to [its promises]. Personally, I think it may be 100 years from now."

Part of the problem is that the South African government has its hands full, with AIDS and crime ravaging its population and a severely limited budget.

But there is also a sense among some government officials that the housing problem is not particularly urgent.

"These people grew up in a grass hut on the veld," says Mr. Kieser. "What is the difference to them if now they live under a bridge in Cape Town?"

Lower courts have ruled that although the Constitution guarantees access to housing, it also states that the government must work "within its available resources." However, the same courts have found that the Constitution guarantees every child "the right to basic nutrition, shelter, basic healthcare services, and social services."

The present case involves more than 300 children. Attorneys for both sides say there would be only a negligible difference in impact if the Constitutional Court finds that although adults are not guaranteed immediate shelter, children - with their parents - are entitled to housing.

"The result could be that we will be forced to supply housing to all destitute children - along with their parents - on an immediate basis," said Kieser, adding, "We can't calculate how much that would cost."

(c) Copyright 2000. The Christian Science Publishing Society

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