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Finding legal certainty: Backyard housing and access to services on private land, a case of two steps forward and three steps back?

Isandla Institute | 2022-05-13 | 898 views

‘Khayelitsha shacks to be electrified at last - Families were wrongly classified as backyarders, says Eskom’ – this is the title of a recent article in GroundUp and represents a typical example of the confusion often associated with the status of backyard housing. In sum, the article explains that Eskom failed to include ‘dozens of Khayelitsha shack dwellers’ in its electrification programme, because they incorrectly assumed that they were ‘classified as backyarders.’ After being excluded from the programme since 2017 the residents ‘will finally receive electricity this year [2022].’ While we are pleased that these Khayelitsha residents will soon be able to access electricity, it sharply brings into focus the difficulties backyard residents face in trying to access basic services. Why would the status of being a backyard tenant be a plausible reason for excluding them from programmes which extend basic services to vulnerable people?

This, unfortunately, is no different to the way that municipalities formulate their own programmatic response to the issue of extending fundamental basic services such as water and sanitation to backyard residents. In 2013/2014 the City of Cape Town initiated a pilot project which extended basic services to backyard residents in select neighbourhoods, but restricted it to those living on municipal-owned land. While the programme was discontinued, the new Draft Integrated Development Plan (IDP) for 2022-2027 promises to restart the programme – again, only for those backyard tenants living on city-owned land.

A recurring argument raised by municipal officials is that the Municipal Finance Management Act (MFMA) prevents municipalities from providing services to backyard residents living on private land. Municipal officials fail to however, provide a coherent argument with reference to the specific provisions of the MFMA to justify this interpretation. It was for this reason that Isandla Institute commissioned a legal opinion by Senior Counsel to obtain legal clarity and certainty on the matter.
The legal opinion focusses on two key questions- whether municipalities have the power to provide basic services to backyard residents living on private land and, secondly, whether they have the obligation to provide these services.

In evaluating the powers of municipalities to provide basic services, the Constitution is clear: the functions of municipalities are listed in Schedule 4B and 5B of the Constitution and include basic services such as water and sanitation services, energy and refuse removal, amongst others. Municipalities furthermore have legislative and executive authority to provide services and introduce bylaws for the purpose of service provision provided that it is consistent with the Constitution and provincial and national legislation.

In evaluating whether municipalities have the obligation to provide basic services, the Constitution makes it clear that basic service delivery is one of the key objectives of local government (S 152 (1) (b)). Not only must municipalities ensure the provision of services to communities in a sustainable manner, but it must commit its budgeting and administrative processes to ‘give priority to the basic needs of the community’(S 153 (a)). Equally important are the rights entrenched in the Bill of Rights which bind all spheres of government. Sections 26 and 27 provide everyone has the right of access to adequate housing and sufficient water, while section 24 provides that everyone has a right to an environment that is not harmful to health or well-being. Key legislation such as the Municipal Systems Act, Water Services Act and Electricity Regulation Act expand on what these rights and duties entail, further emphasising the prioritisation of the needs of the ‘most vulnerable’ in society, including those who cannot afford to pay for services.

It is therefore clear that municipalities have both the power and obligation to provide basic services to all municipal residents, including those backyard residents who live on private land.

What then, is the source of the reluctance on the part of municipalities to extend these services?

In short, they refer to the MFMA.

However, an evaluation of the MFMA as well as other key legislation that governs local government, like the Municipal Systems Act, reveals that there is nothing (no specific provision) that prohibits the investment in infrastructure on private land for the purposes of basic service delivery.

One of the key arguments which municipalities raise is that the funds of a municipality should not be used to increase the value of privately-owned land. The legal opinion posits, however, that there are many municipal processes that add value to private property. For example zoning decisions, or granting of development rights all increase the value of land.

Municipalities also argue that spending on infrastructure on private land goes against the principles or spirit of the law (MFMA), which is aimed at avoiding ‘wasteful and fruitless expenditure.’ We are in full agreement that inefficient and wasteful expenditure must be avoided. Municipalities must ensure coherent and sustainable service delivery. However, if the end-goal of fulfilling constitutional rights and duties in extending basic services to backyard dwellers is accomplished, then marginal increases in the value of private property is surely justifiable. We argue that similar trade-offs that benefit the private sector happens frequently in practice.

The legal opinion concludes that nothing in the framework of the MFMA or Systems Act prohibits the investment in infrastructure on private land. On this basis, we argue that any concerns about the ‘spirit’ of the MFMA can never trump the clear, undisputed constitutional provisions and legislative framework mandating the provision of basic services.

As we face increasing economic and social pressure due to Covid-19 and many entrenched inequities in our communities, it is clear that the numbers of those who are excluded from private sector housing options and government housing programmes are growing. While some believe that backyard housing is simply a transitory form of housing, many spend their entire lives living as backyard residents. In established case law, our Courts have clearly stated that any government programming that excludes the vulnerable in our communities falls short of the requirements of the Constitution. An urgent re-evaluation of how municipalities treat the backyard housing sector is not only necessary but constitutionally mandated.

Slum upgrading remains the most financially and socially appropriate approach to addressing the challenge of existing slums. UN Habitat (A Practical Guide to Designing, Planning, and Executing Citywide Slum Upgrading Programmes 2015 (PDF), page 15)

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