Michael Clark

In July 2017 the City of Cape Town committed to releasing 11 pieces of well-located public land in the inner-city, Woodstock and Salt River for the development of social and transitional housing. However, four years after these commitments, not enough progress has been made in the context of the housing crisis Cape Town faces. Only one of the projects - the Pickwick Road transitional housing project, which offers temporary housing to just 19 families - has been completed. None of the other 10 projects have even broken ground. While a few of the projects have shown signs of progress (including the Pine Road, Dillon Lane and Pickwick Road projects), many have stalled or made no apparent headway. In some cases, it is unclear how long it will take for the projects to be completed or if they will be completed at all. Well-located affordable housing is one of our most powerful tools in the struggle to overcome the legacy of spatial apartheid and promote social, racial and economic inclusion. Given the urgent and escalating affordable housing crisis, many are frustrated  by the slow progress on these promises.

The Spatial Justice Delayed? report documents the progress that has been made on each of the 11 sites earmarked for the development of affordable housing and tries to understand the political and technical obstacles that have hindered or slowed the delivery of the social and transitional housing projects on these sites. The report reveals that key obstacles include a lack of clarity about the release of public land, financial viability, time-consuming development processes, inadequate government resources and capacity, conflicting incentives for government officials and an overall lack of drive and hunger for affordable housing from local government and politicians.

In 2017, over 1.1 million South Africans worked as informal traders. Informal trade therefore makes up a significant component of the economy and has an important role to play in addressing some of South Africa’s most pervasive developmental challenges, including high levels of unemployment and poverty. Local government has a pivotal role to play in facilitating informal trade. For this reason, this report provides a set of recommendations to local government on how informal trade can be regulated in a manner that respects the rights of informal traders, and is just, humane and inclusive. With knowledge of the law, local government can alter their approach to informal trade by supporting and nurturing this essential sector while also boosting economic growth. This report was developed by the Socio-Economic Rights Institute of South Africa (SERI) in collaboration with the South African Local Government Association (SALGA).

This research report, which was co-authored with Tim Fish Hodgson, responds to the fact that municipalities in South Africa have struggled to fully come to terms with the law relating to informal trade. The report unpacks court judgments which have substantially contributed to the rights of informal traders and identifies a range of legal principles governing the rights, duties and obligations of informal traders, law enforcement officers and local government. The report dispels a number of longstanding myths associated with informal trade in the South African context, including the belief that the law does not grant protection to foreign nationals who participate in informal trade, that informal traders often act illegally or unlawfully while trading, and that the only regulatory mechanisms available to local government are the impoundment of traders’ goods and the eviction or relocation of traders. The report concludes with various recommendations that have been draw from case law. The report was developed by the Socio-Economic Rights Institute of South Africa (SERI) in partnership with the South African Local Government Association (SAGLA).

Twenty years have passed since the homelands were reintegrated into a unitary South Africa, yet the legacy of the colonial and apartheid past continues to haunt these areas. Almost 17 million people or a third of the population of South Africa reside in the former homelands, which the post-apartheid government calls ‘communal areas’, according to forms of communal tenure. However, for most of the people living in these areas the full recognition of their land rights remains unrealised as the South African government has been unable to develop laws and policies that sufficiently capture the nuanced ways in which people experience and regulate relations of communal tenure in their everyday lives. While the government has enacted laws to enhance the security of tenure of farm dwellers and labour tenants, there is currently no substantive legislation to secure and promote the land rights of the people living in the former homelands (other than the Interim Protection of Informal Land Rights Act (IPILRA)). This legal vacuum has contributed to the insecure nature of people’s land rights in communal areas. As this report will illustrate, this insecurity has been worsened by colonial and apartheid distortions of customary law and the unequal power relations that were supported by these distortions, many of which have been reproduced or entrenched in the democratic dispensation. This report was commissioned report for the High Level Panel on the Assessment of Key Legislation and the Acceleration of Fundamental Change, an initiative of the South African Parliament.

Twenty years after the end of apartheid farm dwellers remain some of the most vulnerable people in South Africa, with many still facing extreme tenure insecurity and lacking access to adequate housing and basic services. The approximately three million black South Africans (6% of the population) who live on privately owned farms in formerly white commercial farming areas are among the poorest South Africans, whose vulnerability is exacerbated by their “socio-economic marginality and geographical isolation”. These inequalities have persisted despite the introduction of a number of fundamental rights in the South African Constitution which provide essential protections to farm dwellers, including the promotion of tenure security to previously disadvantaged persons, the right of access to adequate housing and the right of access to adequate water, food and health care. In fact, since 1994 a variety of laws and policies have been put in place to give effect to the constitutional imperative for land reform, and to regulate and improve the rights and living conditions of farm dwellers. However, in spite of these new laws and policies many farm dwellers continue to live in fear that they may lose their homes or rights to land. The report provides a comprehensive analysis of the legislation, policies, case law and financial mechanisms associated with farm dwellers’ tenure security, access to adequate housing and basic services, and considers why the legal and policy framework has not been able to adequately protect the rights of farm dwellers. It was developed to assist non-governmental organisations (NGOs) and public interest law practitioners in navigating the highly complex legal and policy framework regulating farm dwellers’ rights to tenure security and access to adequate housing and basic services, as well as understanding the various roles and responsibilities of key stakeholders. The report was written for the Association for Rural Advancement (AFRA) and was produced with funding received from the European Union.

The International Network for Economic, Social and Cultural Rights (ESCR-Net)'s Women and Economic, Social and Cultural Rights Working Group  undertook an analysis of women's rights to housing, land and natural resources (HLNR) in the beginning of 2015. The main objectives of this project were to gain a better understanding of the challenges preventing or hindering the full realisation of women’s rights to housing, land and natural resources, as well as documenting the existing work done by civil society in addressing these challenges (with an emphasis on the work of ESCR-Net members). The mapping exercise culminated in the publication of an analytical report. Ultimately, the report aims to provide strategic insight to inform future collective work in these focus areas. This report sets out the findings of the mapping exercise and provides a brief outline of the current context relevant to housing, land and natural resources. The report was written by Michael Clark for ESCR-Net.

This report, which builds on a first edition published in 2013, responds to the fact that neither property owners nor municipalities have fully come to terms with the significant paradigm shift in the law relating to eviction and urban regeneration. Despite years of litigation and a host of progressive court judgments, which have substantially contributed to the constitutional right of access to adequate housing, municipalities like the City of Johannesburg are still failing to fulfill their duties in relation to evictions and the provision of alternative accommodation. The report includes the latest developments in the law relating to housing rights and evictions and aims to highlight what they have contributed towards South Africa's housing and evictions jurisprudence. Stuart Wilson co-authored the second edition of the report. The report was published by the Socio-Economic Rights Institute of South Africa (SERI).

This research report sets out a body of evidence which aims to form the basis for engagement within the public interest legal service sector, and between the sector and the donors which support it. The report examines the context within which public interest legal services are provided, and discusses what the available literature and the informants interviewed during the research (including legal practitioners, NGOs, social movements, donors, and judges) say about how to characterize the value and impact of work within the sector. The report goes on to propose a multidimensional approach to characterising the value of public interest legal services – one which focusses on issues and the way that they are framed, and which tries to account for both the direct and indirect material impact as well as the broader political and symbolic value of particular interventions. The report also address the ways in which people and organisations within the public interest legal services sector work together, and what donors should do, should not do, and can do better, to facilitate co-ordination and collaboration that is appropriate to existing needs and practices. Finally the report identifies the unacceptably high cost of legal services as a major obstacle to the public interest legal services sector’s capacity to facilitate access to justice. SERI conducted extensive research and wrote the final report, which was funded by the RAITH Foundation and the Ford Foundation.

Since 2004 South Africa has experienced a significant number of local protests in poor urban areas. These protests are often referred to as ‘service delivery’ protests as they are frequently related to the inadequate socio-economic conditions of poor communities. In many respects, these protests can be viewed as a claim for the realisation of socio-economic rights by poor communities. The week-long protest in Thembelihle, near Lenasia, Johannesburg in September 2011, was such a case. Frustrated by an unaccountable and unresponsive local government that frequently disregarded the community’s on-going demands for access to adequate basic services, Thembelihle residents took to the streets. Their demands, however, were dismissed by local and provincial government and met with a forceful police clamp-down. In the aftermath of the protest, arrest and criminal prosecution (often on frivolous charges) was used to harass and intimidate community members and to target community leaders, marking an alarming trend in which the criminal justice system is used by the government to suppress popular dissent. This report seeks to understand the protest in Thembelihle specifically, and rising dissent in South Africa more generally. The report highlights the growing trend of state repression of popular protests in poor urban areas and details how the state employs the criminal justice system to vilify, criminalise and suppress local communities advocating for socio-economic development. This resport was been produced by the Socio-Economic Rights Institute of South Africa (SERI).

The jurisprudence (case law) of the South African courts (especially the Constitutional Court and the Supreme Court of Appeal) has significantly contributed to the right of access to adequate housing, enshrined in section 26 of the Constitution. The courts have supplemented the legal framework by developing a number of progressive legal principles that should be upheld in eviction cases. The jurisprudence has therefore led to the development of a new cluster of relationships between the parties involved in eviction proceedings, a cluster of relationships that is characterised by a series of rights and obligations pertaining to various parties. Yet despite years of litigation and a host of progressive judgments municipalities have been hesitant, unwilling or unable to act on the obligations laid down in case law. It is amid this complexity that this report seeks to provide a comprehensive analysis of the jurisprudence on evictions and alternative accommodation, and the contingent obligations on municipalities in respect of the provision of alternative accommodation. It is hoped that the report might act as a to guide activists, communities and public interest law practitioners caught up in eviction related struggles, as well as local government officials who are tasked with devising and implementing housing policy. This report is published by the Socio-Economic Rights Institute of South Africa (SERI).

On 24 August 2012, 46 applicants who collectively refer to themselves as the “Forgotten Poor Black Citizens of South Africa” approached the Constitutional Court to make an application for direct access to the Court. The applicants sought an order from the Court setting aside a number of court orders from lower courts. The applicants declined the suggestion to obtain legal representation and, in order to further its understanding of the matter, the Court requested SERI and the Legal Resources Centre (LRC) to conduct an initial investigation into the application and to compile a report of the findings. SERI and the LRC found that at the core, the majority of the matters the applicants seek to bring under appeal point very strongly to potentially far-reaching systemic failures in the process of evictions and executions concerning residential property.

In recent decades, there has been growing dissatisfaction with the dominant theories of property law systems, founded on notions of exclusion and individualism as these systems have increasingly become associated with an unsustainable and inequitable distribution of resources. This inequitable distribution has largely been attributed to the ways in which dominant notions of property law offer wholly disproportionate protection to the rights and interests of property owners, while providing little to no recognition or protection for wider social, environmental and humanitarian concerns. These constructions of property overemphasise a single set of values – values that are largely economic, exclusionary and exploitative.

Through an analysis of public land, particularly land owned by local government, we advocate for a rethinking of current property law system to prioritise a more varied set of values, including social, ecological, emotional and humanist values - with the ultimate aim of realising a more social conception of property law. This is urgently required in the South African context, where access to land, tenure security and housing was historically dictated by colonialism and apartheid, and which remains influenced by deep-seated inequality. We consider possible avenues for rethinking the property law system including the social function approach to property, the social-obligation property theory and the potentially transformative constitutional property clause. We also make suggestions about how to give effect to the wider range of values in the South African property law system and, particularly, the constitutional right of access to land on an equitable basis. The article was published in the Constitutional Court Review in Vol XI in 2021.

Over the past 20 years, of the 23 socio-economic rights decisions handed down by the South African Constitutional Court, 15 judgments have related to the s 26 right to adequate housing, making it by far the most litigated socioeconomic right. The relative frequency of housing rights cases before the Constitutional Court relates to the intensity of post-apartheid struggles over access to urban and peri-urban land. Analysing the contours and consequences of the housing rights related judgments over the past 20 years, we highlight the Constitutional Court's role as arbiter of clashing rights of ownership and occupation in the context of evolving and inadequately-managed urbanisation. The article was published in the South African Journal on Human Rights in Vol 31(3) in 2015.

The article sets out some of the important developments in the law relating to housing and evictions in South Africa utilising plain-language. This non-peer reviewed journal article was published by Ndifuna Ukwazi (NU) in the September 2014 edition of the People's Law Journal, a plain-language, user-friendly legal publication targeting activists and community-based organisations (CBOs). The edition explores issues relating to urban land justice.

This paper analyses the legal framework governing access to public procurement information in South Africa. The paper was presented at the Public Procurement Regulation in Africa Conference hosted at the Stellensbosch Institute for Advanced Studies (STIAS), in Stellenbosch on 24-25
October 2011.

During 2015 and 2016, students on university campuses across South Africa embarked on large-scale, disruptive protests calling for systemic changes to how universities operate and approach education, as well as how academic curricula are structured. Government, university administrators, police and private security often responded to these protests with force in an attempt to shut them down. Universities approached the courts to obtain interdicts preventing students from protesting on campuses. The police used tear gas, stun grenades, water cannons and rubber bullets against protesting students in often disproportionate and unlawful uses of force. This user-friendly resource guide explains students’ rights to protest, as well as students’ rights when they are arrested, detained or charged with a crime during a protest. It aims to create awareness of the rights and obligations of those involved in student protests to encourage university administrators, police and private security officials to respect human rights and mitigate the disproportionate and unlawful use of force. The guide was written by Michael Clark and Tim Fish Hodgson.

Relocations have the potential to severely disrupt peoples’ lives and negatively impact their livelihoods, community relations and sense of security. To make sure this doesn’t happen, the relocation process should be carefully planned, well-run and participatory. The Socio-Economic Rights Institute of South Africa (SERI) developed this set of legal and practical guidelines to assist those involved in the relocation process to navigate the complexities involved in planning for and carrying out a relocation. The guidelines present an approach to relocations based on SERI’s experience in planning and managing relocations to alternative housing and draw on international and local experience. The guidelines offer practical guidance on how to ensure that relocations are carried out in a way that respects the constitutional and human rights of the people being relocated. This guide was written by Michael Clark and Lauren Royston.

In South Africa, thousands of families lose their homes each year when they are repossessed and sold by a bank. A sale in execution takes place when a person is unable to repay the monthly instalments due on a loan they owe to a creditor (usually a bank), and the person’s property is sold at a public auction to pay off the debt. This new guide is a resource for individuals and households who are facing the threat of a sale in execution of their homes, as well as for community-based paralegals and lawyers who deal with sales in execution of people’s homes or bank repossessions. The guide explains the relevant legal processes and sets out what steps homeowners can take to avoid their houses being sold in execution. It will help homeowners prevent sales in execution before they happen; oppose sales in execution if the process to repossess their home is already underway; or assist homes owners who have already lost their homes through a sale in execution.

Everyone has the right to safe water and sanitation – but globally more than 2 billion people live without safe drinking water and more than 4 billion people live without safe sanitation. In March 2023, as billions struggled without these essential services, policymakers and those in the development sector convened for the global UN Water Conference to find solutions – with another conference due in 2026. But marginalised and disadvantaged groups – who are most affected by the lack of water and sanitation – often do not have a seat at the table when it comes to these discussions, despite having a wealth of knowledge about how best to address their own issues. These groups are often dismissed, ignored, or repressed – they are ‘left behind’ or excluded when it comes to access to water and sanitation.

Leaving no one behind is a commitment to eliminate poverty, reduce inequalities and eradicate discrimination by prioritising the rights to safe drinking water and sanitation of the most vulnerable and marginalised members of society. This policy brief aims to support policymakers at national and local level in fulfilling their duty to provide equitable access to safe water and sanitation by offering concrete guidance on the steps that states can take to transform the principle of ‘leave no one behind’ into a tangible reality. It also provides guidance to the development sector on how best to assist states in achieving this goal. Inequalities in access to water and sanitation can only be eliminated if the voices of those who are ‘left behind’ are heard, given appropriate weight and taken seriously. The Hearing the Unheard: Human Rights to Water and Sanitation or #HearingTheUnheardHRWS campaign, a global campaign that amplifies the demands of grassroots community-based organisations and water rights defenders, has demonstrated that communities on the frontline of the water and sanitation crisis have workable solutions if governments choose to listen and act upon them.

This policy brief on urban land rights was developed as part of a series of policy briefs commissions by the Mandela Initiative, to feed into a synthesis report on a variety of cross-cutting themes on addressing poverty and inequality in South Africa. It looks at the informalisation of land rights, urban poverty and spatial inequality, and proposes various policy and implementation interventions that could improve access to well-located urban land. The brief was written by Michael Clark of the Socio-Economic Rights Institute of South Africa (SERI) and Liza Rose Cirolia of the University of Cape Town's African Centre for Cities (ACC).

This short community practice note examines the strategies and tactics of the Inner City Federation (ICF), a self-organising coalition of tenants and unlawful occupiers from over 40 buildings in inner-city Johannesburg in South Africa that advocates for housing and basic services, and challenges the stigma associated with low-income inner-city residents. The  community practice note provides a brief background to the challenges facing low-income tenants and unalwful occupiers in inner-city Johannesburg. It also summarises the key events in the struggles of poor inner-city residents to resist evictions, harassment and displacement; establish and maintain effective self-management structures in dilapidated buildings; collectively mobilise; and advocate for decent housing.

On 20 August 2015, the Constitutional Court delivered its landmark judgment in the case of Bakgatla ba Kgafela Tribal CPA v Bakgatla ba Kgafela Tribal Authority and Others. The judgment represents an important victory for land claimant groups and Communal Property Associations (CPAs) around the country as it addresses a number of serious recurrent problems faced by CPAs who attempt to have their CPA’s registered by the Department and their restitution land transferred. As pointed out in judgments by the Land Claims Court and the Supreme Court of Appeal the issue of mismanagement and lack of support from the Department of Rural Development and Land Reform (the Department) to CPAs and restitution beneficiaries has reached extraordinary preportions. The judgment affirms and protects the right of land claimant groups to choose which legal entity they want to acquire, hold and manage land held on a communal basis. This factsheet explains what the legal implications of the judgment are.

Traditional leaders and traditional councils are given official recognition by different national and provincial laws in South Africa. By recognising these institutions, these laws give traditional leaders and councils certain legal powers, which include the powers to manage the resources and financial affairs of specific “traditional communities” for the benefit of community members. However, the same laws that recognise traditional leaders and councils also provide certain protections to ensure that community members and the government can hold traditional leaders and councils accountable for their actions. This factsheet explains some of these provisions and looks at what the South African courts have said about these issues.