Rights-based Litigation, Urban Governance and Social Justice in South Africa: The Right to Joburg

253 Pages·2017·9.25 MB·English

by  Marius Pieterse

Rights- based Litigation, Urban
Governance and Social Justice in
South Africa
Rights- based Litigation, Urban Governance and Social Justice in South Africa
considers the overlap between legal and everyday struggles for social and spatial
justice in the particular context of Johannesburg, South Africa. Drawing from
literature across disciplines of law, urban geography and urban planning, as well
as from reported case-l aw concerning the invocation of constitutional rights in
Johannesburg and other South African cities, the book critically examines
whether, and to what extent, the invocation of legal rights before South African
courts have contributed to the advancement of social justice in the city. It con-
siders the impact of the legal assertion of different constituent aspects of the so-
called ‘right to the city’ on the many people simultaneously performing the right,
the governance structures responsible for enabling and facilitating its enjoyment
and the physical place in which it is performed. Drawing broad conclusions on
the utility of rights- based litigation for the achievement of social change and
spatial justice, this book will be of interest to students and scholars of South
Africa, constitutional law, human rights law, regulatory law, sociology of rights,
studies of law and society, urban studies, urban geography, governance studies
and development studies.
Marius Pieterse is Professor of Law at the University of the Witwatersrand,
South Africa.
Routledge Contemporary South Africa
1 #FeesMustFall and Youth Mobilisation in South Africa
Reform or Revolution?
Musawenkosi W. Ndlovu
2 Rights- based Litigation, Urban Governance and Social Justice
in South Africa
The Right to Joburg
Marius Pieterse
Rights- based Litigation, Urban
Governance and Social Justice
in South Africa
The Right to Joburg
Marius Pieterse
First published 2017
by Routledge
2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN
and by Routledge
711 Third Avenue, New York, NY 10017
Routledge is an imprint of the Taylor & Francis Group, an informa business
© 2017 Marius Pieterse
The right of Marius Pieterse to be identified as author of this work has
been asserted by him in accordance with sections 77 and 78 of the
Copyright, Designs and Patents Act 1988.
All rights reserved. No part of this book may be reprinted or reproduced or
utilised in any form or by any electronic, mechanical, or other means, now
known or hereafter invented, including photocopying and recording, or in
any information storage or retrieval system, without permission in writing
from the publishers.
Trademark notice: Product or corporate names may be trademarks or
registered trademarks, and are used only for identification and explanation
without intent to infringe.
British Library Cataloguing in Publication Data
A catalogue record for this book is available from the British Library
Library of Congress Cataloging in Publication Data
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ISBN: 978-1-138-05928-3 (hbk)
ISBN: 978-1-315-16371-0 (ebk)
Typeset in Times New Roman
by Wearset Ltd, Boldon, Tyne and Wear
Contents
Preface and acknowledgements vii
1 Johannesburg as a site for rights 1
Introduction: on rights and place 1
The right to the city 4
Struggling over the right to the city in Johannesburg: introducing
the stage and the main institutional actors 7
Aims and focus of this book 23
2 Inhabiting Johannesburg: housing rights struggles 38
Introduction 38
Housing practices of Johannesburg’s urban poor 42
Urban habitation struggles in the courts 45
Reflections 69
3 Struggles over essential services 84
Introduction 84
Access to, contestation over and delivery of essential services in
Johannesburg 86
Service delivery and citizenship disputes in the courts 92
Reflections 106
4 Marginal struggles: equality, public presence and livelihood 117
Introduction 117
Marginality, insurgence and the right to the city 119
Using legal rights and litigation to resist urban marginality 126
Reflections 135
vi Contents
5 Privileged struggles: property, lifestyle, business and safety 144
Introduction 144
Spatial practices of Johannesburg’s middle- and upper-
classes 145
Middle- and upper- class rights and responsibilities in the
courts 153
Reflections 165
6 Struggles over autonomy, equality and identity: sex, gender
and sexuality 174
Introduction 174
Rights, sex, sexuality and the city 175
Sex work in Johannesburg 177
LGBTI rights struggles in Johannesburg 185
Gender, sex and the city: female sexuality in Johannesburg 191
Reflections 194
7 The right to Joburg? 206
Introduction 206
Rights, space, dialogue and contestation 208
Judicial vindication of rights to the city 212
The impact of rights-b ased litigation in Johannesburg 220
Urban constitutional citizenship 226
Conclusion 229
Index 238
Preface and acknowledgements
I was probably 10 or 11 years old when, somewhere on the East Rand in the
mid- 1980s, I read about the sins, troubles and bright lights of Johannesburg in a
salacious magazine article and solemnly promised myself that, come what may,
I would one day live there. I am proud of having kept that promise and also of
having written this book, an attempt to understand just some aspects of life in
this endlessly fascinating city.
Thanks to the many colleagues, friends and family members who have pro-
vided support throughout the writing of this book. Neil Murray, Lea Bonthuys,
Elsje Bonthuys, Amanda Spies and Thomas Coggin deserve special mention for
their encouragement and moral support, for which I am extremely grateful.
The research in this book was enabled by a grant from the National Research
Foundation of South Africa, for which I am very thankful. Thanks also to the
many years of institutional support from the School of Law at the University of
the Witwatersrand.
Marius Pieterse
Johannesburg
January 2017

1 Johannesburg as a site for rights
Introduction: on rights and place
Legal rights are sometimes criticised for being abstract, technically complex,
contradictory and difficult to invoke, as well as for being fixated on procedure
and being removed from the real experiences and needs of their beneficiaries.1
This is also the case with so- called ‘socio-e conomic rights’, which are rights
purporting to address the satisfaction of fundamental human needs, for instance,
for housing, food, water and health care. The legal process, it is sometimes
asserted, is not the ideal vehicle through which to obtain the satisfaction of such
needs. This is due to its inaccessibility, its complexity, its tediousness and cost,
its tendency to favour the interests of economically powerful sectors of society
and to privilege the maintenance of the status quo, as well its contradictory
powers to disrupt, reconfigure, valorise or ossify social relations.2
Yet, because of these very same powers, it is also often claimed that legal rights
present some of the few effective political tools by means of which to confront the
denial of human needs.3 The legal process, moreover, holds the potential to enhance
the participation of marginalised sectors of society in its affairs, and to insist that
their interests be afforded due weight in decisions, policies and processes that
impact on their lives and on the exercising of their rights.4 Legal rights can therefore
be empowering, equalising, constructive and transformative, while legal processes,
regardless of their outcomes, can ‘open up new possibilities for politics’.5
In evaluating the impact of legal rights on the lives of their beneficiaries, it is,
however, necessary to understand rights as being much more than the legal itera-
tion of individual entitlements. Indeed, their articulation and enforcement
through the legal process is but one (albeit particularly high- profile) way in
which rights are conceived and asserted. Much more commonly, rights are lived,
performed through a range of human actions and interactions in an infinite array
of everyday settings.6 Far from being passive recipients of entitlements, goods
and permissions from some benevolent authority, the bearers of rights are auto-
nomous agents who, through their actions and relationships, assert their world-
view, satisfy their needs and claim their space in society.7
Such a performative conception of human rights allows for a focus on the
capabilities and agency of performers, the private as well as public nature of