1 research proposal

1.1 Introduction

1.1.1 Problem statement

During the apartheid years, South African housing policy was not only inefficient, but even “racially inequitable”[1]. Under the Government of National Unity, the housing difficulty was addressed as a serious problem and policy proposals and the adoption of housing laws promised a bright future in this sense. The ANC implemented a single national housing policy administered through one national housing department, hoping this would contribute to the cultural, economic and social development of the entire society and therefore improve people’s total living conditions[2]. Yet ten years after the transition from apartheid to democracy, the housing policy does not look as successful as expected.

The South African democratisation process is often referred to as a political miracle. One of the reasons for this characterisation is the emphasis on human rights in the new constitution. During the negotiations towards democracy, the new government adopted for example the Bill of Rights in the South African Constitution and established a South African Human Rights Commission. Moreover, the inclusion of first (political and civil) and second (socio-economical) rights in the Bill of Rights was seen as a special expression of attention for human rights matters. As Nelson Mandela stated in his inauguration-speech: “Let there be justice for all. Let there be peace for all. Let there be work, bread, water and salt for all. Let each know that for each the body, the mind and the soul have been freed to fulfil themselves.”[3]

The South Africa Bill of Rights contains a lengthy list of socio-economic rights, which the drafters hoped would protect and assist those disadvantaged by apartheid and those who are poor and vulnerable[4]. One of the striking socio-economical rights that is included in the Bill of Rights is the right to housing. In Chapter 2 - also known as the Bill of Rights - of the Constitution of the Republic of South Africa, 1996, section 26 is entitled “Housing”. It defines the right to housing as follows:

(1) Everyone has the right to have access to adequate housing.

(2) The state must take reasonable legislative and other measures within its available resources, to achieve the progressive realisation of this right.

(3) No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.[5]

During the apartheid years, millions of homeless people lived in the fringes of South Africa’s major cities[6]. Long-term urbanisation processes were prevented by the control over migration and the constraint of urban residency rights for blacks. Housing was actually used as an instrument of segregation. When this policy was lifted in the late 1980’s, many blacks decided to move from the rural areas to the cities, where most of them sought accommodation in informal settlements and backyard shacks. Even more, due to the apartheid policy not to build low-income houses, many migrants became homeless.

However, not all of the South African population is badly housed, according to Mackay[7]. He claims that potential beneficial aspects in the South African housing system exist, since labour is cheap and population and development densities are low. But this is not the case according to Francisca Kellet[8], who says “it is certainly clear that South Africa’s housing crisis has, if anything, worsened. Millions remain without adequate shelter or services and shanty-towns are proliferating at an alarming rate.” Furthermore, as Abbott and Douglas describe, the number of shacks is still growing faster than the provision of new housing.[9]

The Grootboom-case is an example of the still existing flaws in the South African housing policy. Mrs. Grootboom, together with some 900 other people, challenged the Tygerberg Municipality in 2000, because in her opinion the Municipality did not undertake appropriate measures to provide for “adequate housing and the children’s unqualified right to shelter”. The municipality then challenged the High Court’s ruling and took the case to the national Constitutional Court, which again ruled for the temporary provision of shelter and services to the Grootboom community, as well as for an extension to the national housing programme. The Grootboom-case shows that South Africa’s housing policy did not yet provide in “adequate housing” at all times, even after some six years of hard work.

Several causes of the inadequate implementation are brought up in literature. One of them - the one that is mostly accepted - is the inadequate execution of the National Housing Subsidy Scheme (NHSS). Not only are there simply not enough means available because financial institutions have shown to be reluctant in lending to a market considered high risk[10], but also is it a clear fact that the maximum amount available to the very poor (R16000) is just insufficient to cover the costs of a serviced site.

Another problem related to the NHSS, is the project-linked subsidy. The project-linked subsidy scheme is seen as the most accessible and most commonly applied of the capital subsidies[11]. It provides in uniform free-standing, mostly one-roomed houses located on the urban peripheries. While the private sector fully promoted this concept as a means for the poor to escape from poverty[12], others have claimed that those houses are in itself just poverty traps[13]. Beneficiaries have expressed their dissatisfaction with the deliveries and local politicians also demanded for bigger houses. Response of the government was bipartite. On the one hand, government made an Amendment to the Housing Act, that new delivered houses should at least be 30m², while on the other hand it diverted attention from the housing product, by referring to “housing opportunities instead of actual houses”[14]. In practical terms, the friction between the housing product and the professed delivery remained unsolved[15].

The sheer lack of knowledge of settlement structure and the nature of settlement formation and growth also still leads to an unsatisfactory implementation of the housing policy. Abbott and Douglas believe that informal settlement growth cannot be contained and therefore the need exists to seek an alternative approach to manage the growth. Once specific trends are identified, the informal settlement growth will become predictable and a growth strategy for a city can be developed[16].

The biggest cause of the failing housing policy at this moment however, seems to be the deficient implementation of partnerships. In 1994, when the housing policy was developed, emphasis lay upon the private sector involvement. In 1999 though, it was decided to change the private sector involvement, and to make municipalities the drivers of the housing provision. Because of the virtual exclusion of the private sector, housing delivery began slowing down in the past five years and the problems became bigger.[17]

Naturally, during the transition period (1990-1994) a lot of attention was paid to the housing issue. In order to constructively address the housing issue, the National Housing Forum (NHF) was created in 1992, which was supposed to provide for a single housing delivery approach. Also, in 1994 the White Paper on Housing (HWP) was developed so that it could be used as a housing guide and strategy plan. However, after ten years of policy-developing, policy-revision and the adoption of several acts and laws, the housing policy nevertheless leaves a lot to be desired. The government’s housing delivery countrywide per year is nowadays estimated at 150.000 or less, and this has had a minuscule effect on reducing the number of homeless. Only 1.5 million houses have been constructed since 1994 and the housing backlog is still estimated at 2.8 million today. This means that shacks will continue to mushroom[18].

This thesis will only deal with low-cost houses[19]. Official housing figures were, despite the urbanisation problems, not available until the government published the White Paper on Housing in 1994. By that time, out of a total population of approximately 42.8 million over 28.0 million people (66%) was functionally urbanised. Around 13.5% of all households (1.6 million) lived in squatter housing, “mostly in free-standing squatter elements on the periphery of cities and towns and in the back yards of formal houses”. Another 9% of all households lived in informal or inferior unrecognised tenure arrangements in predominantly rural areas. And not to be forgotten, due to the apartheid-policy not to build low-income houses, many migrants became homeless as well.

In 1995 the greater part of the South African population did not have access to basic services. Approximately one quarter of all households did not have access to a piped potable water supply, 48% of all households did not have access to proper sanitation – either flush toilets or ventilated pit latrines, whilst 16% did not have access to any type of sanitation system. Around 46.5% of all households were not linked to the electricity supply grid and the majority of all households did not have any access to socio-cultural amenities such as health care facilities, sports facilities and cultural and community centres at all.

In 2000, it even seemed as if the percentage of South Africans with access to houses, water and sanitation was probably lower than it was in 1994. This was confirmed by the growing housing backlog as acknowledged by the Housing Ministry, the several tens of thousands of communal taps which were installed by government and a few large NGO’s that quickly broke, dramatic increases in municipal water cut-offs to low-income households and shrinking municipal capital budgets and the rapid growth of urban shack-settlement population[20].

Therefore, ten years after the first democratic elections, and at a moment that the South African government is celebrating all her achievements, it is time to take a close look at the exact problems of the South African housing policy. What are the reasons behind the improper execution of the South African housing policy? This thesis will compare the government’s promises with her actual performance. In other words, it will critically evaluate the South African housing policy of the last ten years.

1.1.2 Historical overview

Housing backlogs, squatter settlements and overcrowding are not new problems facing South Africa. According to Pauline Morris current housing problems can be traced back to the early colonial urban settlements before 1910[21]. With the discovery of minerals, blacks were attracted to sell their labour in the newly growing ‘white towns’ and also to serve as domestic servants in those cities.

Even though black people were used to building their own homes in rural areas, the available material and greater density in cities made it more difficult for them to create decent housing for themselves. Already in those days, one can say that most of the black community lived in personally built townships. During the segregation years (1910-1948) the gap between the white and black community only grew because of legal provisions and controls[22]. Legislation was aimed at the interests of the whites and completely ignored the integration of blacks in the urban community. The ‘Native Land Act’ of 1913 even worked out the principle of territorial segregation by which specific areas were designated for African settlement – in reality the old Native Reserves – while elsewhere all of their rights were removed[23]. In 1923 the newly created Department of Native Affairs controlled the provisions of the Natives (Urban Areas) Act. This Act empowered local authorities to set aside land for black people in separate areas, known as locations. Amendments to this Act in 1930 and 1937 made it very difficult for the blacks to enter the towns and settle there with their families.[24]

The most serious shortage of housing developed after the outbreak of the Second World War in 1939. Due to the expanding industrial and commercial sectors during the war, more men were forced to bring their families from the rural areas to the cities. “Shanty-towns, illegal squatter camps and shack-areas” were the result[25]. At the end of the war, with the Housing Act of 1945, the Minister of Welfare and Demobilisation was given extending powers to expropriate land, to buy materials at cost and to limit contractors’ profits to six percent.[26] Although the government was now armed to deal with the housing situation, actual progress was minimal.

When the National Party came to power in 1948, it was committed to separate development. Amendments to the 1923 Natives Act provided for the segregation of residential areas and the compulsory removal of ‘illegal’ residents in existing proclaimed areas. Sub-economic housing loans were reduced and self-help site and service schemes were introduced, but only for housing far away from white towns and national roads and even separated from them by an industrial buffer.[27]

During the sixties and the early seventies, emphasis came to lie upon the development of homeland townships. Home ownership and loans in towns were withdrawn to encourage ownership in the homelands. Discontent among the blacks grew and eventually resulted in the Soweto riots of 1976. One year later a national housing conference was held. It would be the first national conference to include black housing, because it was realised that if the policy of separate areas was to be retained, the black areas would have to be self-sufficient to keep the society stable. During the conference emphasis lay upon the necessity of adequate housing for all. In 1977, the government announced that it would spend an additional R250 million on housing. Half of this allocation would be spent in homeland townships, and half in towns. According to estimates made by the Administration Boards, by the end of 1977 there was still a shortage of 141.000 family dwellings and 126.000 hostel beds nationally[28].

During the 1980s, different housing issues arose. Next to the issue of home ownership versus leasehold schemes, there was the ongoing debate about the viability of self-help housing and the extent to which people should be a part of the building process. Also, it was realised that government could not be the only one responsible for the housing issues; the private sector and employers had to be involved. And finally, the procedures for the housing provision were no longer taken for granted, but questions arose for a possible change[29]. Home-ownership and self-help in housing, by which the focus was supposed to lie upon self-dependency in stead of self-building, became two mainstream policies in the eighties. Execution of these policies maintained a problem, though.

The most significant policy and legislative reversal was the reintroduction of leasehold rights for 30-year periods. Another was to re-allow ‘black’ family housing within towns. Main reason for the ‘unfreezing’ of the areas was the fact that the transportation system could no longer cope with the increasing number of travellers. Soon the 30-year leasehold would prove unsatisfactory. Building societies and other lending institutions as a security for mortgages could not use property under such a lease, as a result of which homeowners could not borrow money from the finance houses. In 1978, a 99-year leasehold scheme was introduced, making private sector finance available to people who would be able to negotiate building society loans. This represented a degree of security of tenure incomparable to any other occupancy rights under the NP government. In addition, the Housing Amendment Act (No. 109 of 1979) provided for housing loans for black people at the same rates, on the same terms and based on the same criteria as for other race groups[30].

The Minister of Planning and Public Affairs in 1990, Minister H.J. Kriel, stated that the eighties had been a new epoch in housing.[31] An acceptance of black people as a permanent part of towns arose and at the same time they were granted some ownership rights. During the nineties, the topics of home-ownership and self-help were further elaborated. However within both policies, the emphasis came to lie upon a different level. In home-ownership, a need for education of first-time homeowners became apparent, while in the self-help policy emphasis was placed on the fact that people should be given the opportunity to improve their housing conditions by themselves. Community participation would ensure that housing development programmes were really matched to the needs and earning potential of low-income communities.[32]

Despite the granting of home-ownership rights, the call for involvement of the private sector in the housing matter became stronger. It appeared as if banks and building societies had stopped giving loans because of the costs involved in the finance of such small loans. Another reason was the risk of non-payment through bond boycotts and the violence in many townships. This meant that the government was the only one financing the low-income market, “yet it does not have the financial means to provide housing for all”.[33]

1.2 Literature survey

In the early 1990’s, South Africa was suffering from rapid migration to the cities, which led to an overcrowding of the townships and a growing problem with land invasion. The state had stopped building houses for the majority and in stead of that used most of its resources to create shelter for the more favoured groups, principally the whites, the coloureds and the Indians.[34] Therefore, it is no surprise that in the beginning years of the housing policy, many South African academics blamed the heritage of historical inequality for the difficulties in the implementation of the housing policy.[35]

Injustices in the educational and political structure and the simple lack of income were also seen as main causes of the housing problems, namely the housing delivery delay and the inequality in accessibility to services between the rich and the poor. It turns out that the poor, precisely the group for which the housing policy was developed, gain the least.[36] But above all low rates of national economic growth and a mentality of non-payment of rates and charges - also part of the historical inequality - resulted in a laborious implementation of the housing policy. A newspaper report in the Star claimed that “all that had been produced for those dreaming of their own house were excuses, complaints, promises and little expectations.”[37]

P. Bond, in his article of 2002[38] identified two different perceptions since the mid-nineties that try to explain why service and infrastructure backlogs have actually even increased in South Africa. The first perspective suggests that implementation is flawed because of inefficiencies in municipal delivery. Hence there is a need for more rapid private-sector provision of services. The other perspective, which is a more critical one, argues that virtually all current state policies are excessively neo-liberal. They are “too market-oriented, stingy, insensitive to poverty […] worsening geographical segregation and even inefficient in terms of untapped economic multipliers”. M. Khosa[39] reaffirms this critical perspective that access to services has been largely class-based, with the majority of the poor having to travel long distances to access services and the poor together with the rural households, even paying indirectly more than middle- and high income households. The poor were also more likely to experience service disruption than middle- and high-income households were, and at the same time, low-income households waited longer to have their services maintained or reconnected than middle-and high income households.

1.3 Purpose and significance

The housing policy has not worked out as well as was expected. How come? Did the government fail in developing her policy by not judging all the circumstances at their own merits, or is the housing problem simply too complicated to be alleviated in only 10 years time? The purpose of this thesis will therefore be to evaluate the South African housing policy in the last decade (1994-2004). I will compare the promises that the government made in 1994 with what has actually been achieved ten years later. One particular aspect that I want to address is the consequence of this policy for the people of South Africa, and in specific, the people in Cape Town and surroundings.

Moreover, as a historian I believe that it may be helpful for politicians to take a look at problems from a historical point of view. By doing so, the contemporary political situation can be put into a broader perspective and thus be understood in a more complete way. As George Orwell wrote so true: “Who controls the past, controls the future. Who controls the present, controls the past”.

1.4 Methodology

1.4.1 Elaboration of methodology

There exist various types of research designs for historians, which vary according to the level of scientific analysis. In this thesis, I have chosen to write a descriptive evaluation of the South African housing policy since 1994 and to regard to it as a public policy issue. To keep the research as objective as possible, it is of utmost importance to use a wide variety in literature and data. Therefore, I will not only use literature sources, but also governmental data as well as independent data from non-governmental organisations (ngo’s) and international organisations (io’s). Moreover, articles from different newspapers will be scrutinised so that an independent view on the situation can be taken along.

In the first two Chapters I will describe the historical happenings and the policy-making period and for this I will mainly use literature sources. The third Chapter deals with adopted Acts and laws - the actual enforcement of the housing policy as described in Chapter two. For this Chapter I will not only rely upon literature sources, but I will use governmental sources like the South Africa Yearbook and Government Gazette as well, since they provide the complete acts and laws.

In Chapter four, the actual facts will get a chance. To get as an objective overview as possible, hardly any government sources will be used in this Chapter, more independent ones like from Statistics South Africa and the SAIRR. The SAIRR will be the guideline in this Chapter, for, in its research, other independent sources like the Helen Suzman Foundation and the Centre for Policy Studies are already incorporated, which eases my research tremendously. Some newspaper articles will also be taken along in this Chapter.

Chapter five will set forth my impression of township visits that I made during my six months stay in Stellenbosch, South Africa. This Chapter will merely be an explanation of my personal experience. What did I notice, what did the inhabitants tell me about their lives in the townships? Chapter five can in no way be interpreted as an academic chapter - it is pure subjective. My believe however is, that after the ‘shoulds’ and ‘woulds’ of the first three chapters, and the facts of Chapter four, describing my personal experience in the townships can help in a better understanding of the actual housing situation in South Africa at this moment.

Naturally whatever methodology used for research is chosen, it encloses some limitations. The most obvious limitations in this thesis are firstly the fact that due to time limitations the scope of the data is kept relatively small and secondly that the township visits don’t provide hard evidence because the visits are not meant to be used as a case-study. I believe however that despite these limitations, a well-balanced assessment of the South African housing policy can be written.

1.4.2 Institutional data

In order to get an objective insight in the housing situation, it is important to not only depend on secondary literature sources, but to use primary sources as well. Therefore, I will compare governmental with non-governmental as well as newspaper data.

For example, data from the South African Housing Department, the South Africa Yearbook and the ANC website will be used to serve as governmental sources, while data from Statistics South Africa, the South African Institute on Race Relations (SAIRR) the Worldbank, the United Nations Development Program (UNDP) and the Institute for Democracy in South Africa (IDASA) will be used as independent sources. Finally, data from non-governmental organisations (ngo’s) as well as newspaper articles will be taken along to provide for an independent opinion.

1.4.3 Township visits

Next to the literature and the data findings, personal visits to townships must disclose the actual housing situation in the surroundings of Cape Town at this moment. Since the purpose of this thesis is to write a descriptive analysis of the housing policy, the outcome of my visits will not be used as hard evidence in my evaluation. Better, it will be used as an extra source of information to come to a complete understanding of the actual housing situation in the Cape area. During the township visits, the main focus will lie upon the social sustainability element: is there access to clean water, to electricity, to sanitation and is there a proper infrastructure available?

In short, by combining the outcome of the literature research with governmental as well as independent data and personal visits to townships, in the conclusion I hope to be able to show the actual performance of the South African government in the field of housing during the last ten years.

2. The Transition Period: Policy-making and the Constitution

2.1 A transitional overview

2.1.1 ‘Cometh the hour, cometh the man’: the pre-negotiation period

When F.W. de Klerk announced the unbanning of the ANC and other related organisations on 2 February 1990, and committed the NP government to negotiating a constitution embodying the political accommodation of black people, nobody could have foreseen the velocity with which transition to democracy would actually take place. South Africa’s first democratic elections on 27 April 1994 represent a defining moment in the country’s history, with the end of apartheid finally sweeping away the political discrimination against the black majority. An important question one has to ask is why at this particular moment in time South Africa was ready for change and why negotiations succeeded.

Some reforms had already taken place in the 1980’s. In the aftermath of the Sowetan disturbances in 1976, a reform process had started. Within the National Party (NP), the ruling party since 1948 - and thus F.W. de Klerk’s party in 1990 - a division sprouted. On the one hand, the verkramptes (hardliners) saw no need in reform or change, while on the other hand, the verligtes (liberals) recognised that the old Verwoerdian order based on ‘separation in all the spheres of living’ could no longer be sustained and thought reform was essential[40]. This division led to major debates within the NP and had even resulted in some reforms in the early eighties. Trade unions were extended to the black community, the policy of job reservation was eased in time and Indian and Coloured minorities were incorporated in the tricameral parliament together with the whites[41]. De Klerk’s speech on 2 February 1990 may have been unexpected for some, but was influenced by the earlier reforms in the late eighties.

Those reforms however do not explain why F.W. de Klerk specifically in February 1990 decided to come with his breaking speech, all the more so when one keeps in mind that the NP had not lost a single election since 1948. Were foreign factors of major importance, or was the process domestically driven?

Some see internal factors as the more dominating in this matter. The demographic growth -especially the disproportionate increase of black to white population growth during the eighties - got the white government to think over the realistic possibility of further long-lasting white minority rule. The high urbanisation rate increased the governmental lack of legitimacy among the African population[42]; white minority rule could no longer be taken for granted; serious considerations for change occurred. Another probable cause was the expansion in squatter camps, which led to a weakening of society. The townships were simply ungovernable. Government’s response to the squatting was highly intolerant and this effected in black resistance. Due to apartheid the South African economy had also drastically deteriorated. Because of this, political goals such as job reservation and homeland consolidation were not reached, which also led to dissatisfaction among the blacks.

Others[43] hold international factors responsible for the South African road to reform. In the mid-eighties, the United Democratic Front (UDF) came up - this was a multi-racial alliance of civic organisations created to oppose to the 1984 constitution, and its activities led to the declaration of a state of emergency in July 1985. International organisations and Western governments in response withdrew their investments in South Africa and imposed ‘public’ and private sanctions in an attempt to persuade the Botha government to accelerate the reform process that was under way at that moment. A crisis in the late eighties was inevitable; the stalemate between the (Botha) government and the black opposition seemed unbreakable.

During 1989, especially after the fall of the Berlin Wall, it became gradually clear that the threat from the Soviet Union would soon be over. The collapse of communism would have weakened the communist influence in the ANC. This made it easier for de Klerk to start possible negotiations with the ANC. Another important international aspect was South Africa’s withdrawal from Namibia in 1990 and the following gained independence. The expected public criticism remained forthcoming - South Africa could even count on international respect in this matter. South Africa’s role in ending the white minority domination in Namibia made clear that it could no longer retain such dominance at home[44].

A combination of the above-mentioned factors made it possible for de Klerk to make 2 February 1990 one of the most remembered dates in South African history. But what does de Klerk himself say about his motives for democratising/liberalising? He claims that the bad shape of the South African economy, caused by international isolation, had to be rectified and the collapse of communism created the opportunity for a “more adventurous approach”[45]. His bottom-lines were that the NP had to remain in control of the process, strive for power sharing and protect minority rights. His bottom-lines were nevertheless hardly fulfilled as the NP lost power very fast after 1994. Nonetheless, negotiations would have never succeeded if it were not for the strong personality of de Klerk and Mandela. Their ability of forward-thinking enabled both to display a masterly understanding of what had to be done in difficult circumstances and to be more interested in the exercise of power and the imperatives of national survival than in ‘grandiose objectives of a millennial kind’[46].

2.1.2 Negotiation period

Although the NP was ready for fundamental change in February 1990, it had no ‘strategic masterplan’ for this. Within the NP the dichotomy between left and right was still present and no consensus was reached over the terms under which blacks should be incorporated in the political system. This division among the NP made it extremely difficult for De Klerk to steer in the right direction. Until September 1992 he therefore regularly assured his white constituency that he would not sign a new constitution if it did not contain a ‘statutory entrenched minority [read: white] veto’[47]. One thing that both sides in the NP agreed on though was constraining “the ANC’s ability to wield political power in the service of a radical agenda of socio-economic transformation”[48].

That the right wing in the NP could derail the negotiating process is well shown by the next example. At the Potchefstroom election in February 1992, the Conservative Party (CP) scored an unexpected victory. De Klerk was forced to call for a referendum to find out whether he could still count on support for the negotiations in that area. 68.5 % of the white opinion still supported the negotiation process, but nonetheless the right-wing part founded the Freedom Alliance in early 1993[49]. Another cause of major concern for de Klerk was to keep peace with Buthelezi’s Inkatha Freedom Party (IFP), which was the NP’s secret ally for any new government.

Keeping his constituency together was not only a problem for F.W. de Klerk; Nelson Mandela had troubles too. Oliver Tambo, leader of the ANC’s in exile, died during the negotiations and the murder of Chris Hani[50] in april 1993 also undermined the progress in the negotiating process[51]. The biggest problem for the ANC was however to transform itself from a liberation movement to a political party that could count on civil support and get regionally and provincially organised. This was all the more hampered by the difficult adaptation of the previously exiled to homecoming.

When negotiations started with ‘talks about talks’ in 1990, both de Klerk and Mandela had trust in the other. Mandela called de Klerk “a man of integrity” and wrote to his colleagues “we are dealing with an honest man… we should negotiate with him”[52]. By mid-1991 their relationship however deteriorated. The NP was accused of sponsoring the IFP in an attempt to weaken the ANC, which got the ANC suspicious. After the CODESA (Convention for a Democratic South Africa) talks broke down in mid-1992 because of discord over the proposed interim government and after the Boipatong killings[53] in June 1992, Mandela finally decided to break off the negotiations. From June to September 1992 there was a real danger that counter forces would undermine the negotiations.

Diplomatic pressure and the realisation that the South African economy needed negotiations convinced Mandela to sign the Record of Understanding on 26 September 1992. For this Record of Understanding both parties, the ANC as well as the NP, had made strategic concessions[54]. The NP accepted the ANC’s demand that an elected constitution-making body would draft and adopt the new constitution, while the ANC confirmed that the constitution-making body would be bound by ‘agreed constitutional principles’ that would emerge from the Multi-Party Negotiating Process (MPNP)[55]. Most important however were the ‘sunset’ clauses in which agreement was reached on the ‘one person, one vote’ system and the mutual understanding that an ‘interim Government of National Unity (GNU)’ would function within an Interim Constitution that would provide for national and regional government during the transition. The Record of Understanding signified the resumption of formal multi-party negotiations, even though it would not be until 1 April 1993 that the MPNP started. This constitutional deal would be the basis for the progress in the negotiations during 1993. During the end of 1992 until April 1993, the negotiations took the form of secret bilateral talks between the government and the ANC with agreements subsequently submitted to an all-party reform[56].

Despite major difficulties during the period 1990-1993, the negotiation talks succeeded. How come? Most crucial factor was the realisation by both the ANC and the NP government that there was no alternative to negotiation. Both de Klerk and Mandela realised that informal diplomacy (talks about talks) and a joint engagement during the most vulnerable periods were the only answer to success. The personalities of both de Klerk and Mandela played a gigantic role in this matter. External pressure from Western governments and the United Nations (UN), together with growing understanding of the economy’s decline should also be taken into account when considering the success of the negotiations.

2.2 Interim (1993) and Final (1996) Constitution and housing

2.2.1 The Interim Constitution

When the secret talks between the ANC and the NP government started in 1986, both parties had different views on the function of constitutionalism. The NP saw the constitution as a possible limitation of conflicts between groups because of diffusion and division of political power and by ensuring that no group could actually threaten the interests of another group[57]. The ANC on the other hand saw constitutionalism as pre-commitment, or commitment to certain values. Long-term goals were not to be compromised by short-sighted decisions, yet they acknowledged the need for a strong political force.

The decision-making process consisted of two periods. In December 1991, the first formal negotiations started at the World Trade Centre, just outside Johannesburg. This was the first session of CODESA, which would be followed by a second session and go on until the first democratic elections. The second period started on 27 April 1994, when a Constitutional Assembly of 490 members was elected by proportional representation.

The reason for dividing the decision-making period in two, was that it was necessary to compromise between the NP’s and the ANC’s demands. The NP on the one hand wanted a negotiated settlement, so that their position would remain safe until they surrendered power. The ANC’s understanding on the other hand, was that the constitution of a post-apartheid South African democracy could only be legitimate if a democratically elected body drew it up.

Progress in the negotiations during 1993 found its basis in the agreement on the necessity of a Government of National Unity (GNU), even after the new constitution was to be adopted. The initiative for this came from Joe Slovo, a member of the SACP but also one of the ANC’s leading theoreticians, who would later become Minister of Housing. His recommendations were embodied in a document entitled ‘Negotiations, a Strategic Perspective’[58]. The document understood that it was in the interest of the country to maintain a GNU, with the specification that the parties that lost the elections would not be able to paralyse the government. On 18 November 1993, the draft interim constitution was adopted with ‘sufficient consensus’. The interim constitution is seen as the ‘truce’ that made the South African transition from apartheid to democracy possible. It laid the foundation for a second round of negotiating, which would result in the final constitution of 1996.

The legislative enactment of the constitution set the stage for an election campaign and the establishment of the Transitional Executive Council (TEC). The TEC was installed to oversee the daily work of the government and supervise the electoral process. It had to create a climate for free political participation and had to ensure that no government or administration ‘exercises any of its powers in such a way as to advantage or prejudice any political party’[59].

Next to the TEC, the Independent Electoral Commission (IEC) was created to ensure free and fair elections. It is an impartial body, with an elaborate mechanism for hearing which arbitrates upon complaints.

The interim constitution is widely praised, because of some specific features. For example, the interim constitution provides for a bicameral parliamentary system based upon the principle of the sovereignty of the constitution, a Bill of Rights, an independent judiciary, including a constitutional court, an electoral system based upon proportional representation and federal arrangements. The factor that is seen as most important in the interim constitution though, is the power-sharing principle, which is an attempt to involve both minority and majority parties in decision-making. This attempt to institutionalise power sharing and base it on consensus is significant for two reasons. Firstly, the NP as well as the ANC agreed on the distribution of decision-making power prior to the electoral outcome. In this way, the principle of ‘the winner takes it all’ after the outcome of the elections was avoided. Secondly, the power-sharing principle meant that both Mandela and De Klerk would accept both the good faith of the other in their individual commitment to rule by consensus during the five years of the GNU[60].

The second major feature in the interim constitution is the provision for provincial government. Nine provinces were created with their own elected parliaments and provincial constitutions, but it was nevertheless decided that central parliament would still prevail over provincial matters in certain situations[61]. These national powers placed a doubt on how strong federalism in South Africa actually was. Later drafts of the constitution made no reference to exclusive provincial powers but expanded the concurrent powers that could together be exercised by central and local government. Among these were very important subjects such as education, health and housing. Concerning provincial powers, the interim constitution must be considered as defining a basically unitary state with some federal ‘fig-leaves’[62].

Since the interim constitution was a big compromise between the NP and the ANC, naturally both parties had lost some of their demands. The biggest loss for the NP was without a doubt the failure to secure a long-term share in executive power. The interim constitution was only valid for five years, after that the 34 constitutional principles were the only safeguards, but they did not include a share in executive power for minority parties. This would become one of the biggest obstacles in the second stage of the constitution-making process. Another loss for the NP was the small amount of power given to the provinces; they remained weak in comparison to the centre[63]. For the ANC the end of apartheid and the introduction of a democratically elected government was naturally more a victory than a loss, but the interim constitution and the constitutional principles nevertheless greatly differed from the original ideal constitutional model of the ANC.

Finally, the interim constitution is by most seen as a messy and inconclusive document[64], because it was created under too much pressure of compromising.

2.2.2 The Final Constitution

One of the big questions that arose in the second phase of constitution-making that started on 27 April 1994 - election-day - was whether the final constitution would be actually different from the interim constitution, since the scheduled Constitutional Principles were binding. The deadline for the constitution-making process was within two years of the first session of Parliament, 10 May 1996. On a lot of things, agreement was reached well ahead of the deadline, but one of the subjects that was discussed until the last moment, was the Bill of Rights, also known as Chapter 2 of the constitution, which is concerned with human rights.

In the final constitution, human rights are formally acknowledged and protected in the Bill of Rights. This is true for first-generation rights, but unfortunately not for all second generation, or social and economic rights. Although the constitution prescribes ‘that the state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these [social] rights’, at this moment not all measures have been realised, at least as far as the poorest half of the population is concerned[65].

One of the second-generation rights that was a cause of major discussion, was the formulation of the property clause, particularly in relation to land reform. Section 25 of the Bill of Rights affects the right to property, while section 26 and 27 of the Bill of Rights state that ‘everyone has the right to have access to adequate housing’. The guaranteeing of private property was seen as one of the ANC’s biggest concessions. The clause was carefully defined, to appease local as well as foreign investors, but without limiting social reforms. The right not to be deprived of property was acknowledged and a possible restitution of property, lost because of racially discriminatory laws or practices in the past, was provided for as well.

The features of the final constitution are to a large extent similar to that of the interim constitution. For example, in the final constitution the president, just like in the interim constitution, is elected by legislature. The National Assembly can remove the president through a vote of no confidence. In this matter, the president of South Africa can be compared to a Prime Minister of a parliamentary democracy. On the other hand, the president plays a double role as Head of State and Head of Government. Obviously, criticism against this double power of the president did not remain forthcoming. The fact that the president can be removed from office by a simple majority vote of no confidence in Parliament does imply however that his powers are accountable to the legislature.

Another feature of the final constitution is the provision for a bi-cameral Parliament. The National Assembly, the first chamber, is directly elected in national elections. Under the final constitution, the previous Senate was substituted by a National Council of Provinces (NCoP), consisting of ten representatives from each of the nine provinces. The inclusion of the NCoP in the definition of parliament was one of the concessions that the ANC had to make during the second stage of decision-making. Although the NCoP can somehow be relevant in regard to legislation affecting provinces, the National Assembly is by far the most important of the two chambers. The most vital matters affected the provinces are listed as ‘concurrent national and provincial legislative competencies’. In these matters the central government provides framework legislation, while the specific content is left for the provinces. In case of a dispute the national level of government has considerable overriding powers. Also in what is defined as ‘exclusive provincial matters’, the central government has the right to intervene on a number of grounds. Moreover, fiscal powers of the provinces are limited and subject to regulation by the national parliament[66].

In summary: the final constitution highlights several things. On the one hand, it claims to provide for the need of a strong state so that it can be a powerful agent of social change. On the other hand, the final constitution incorporates the need to safeguard the fundamental rights and liberties of individuals. Another major important feature of the South African final constitution, especially in comparison to other constitutions, is the fact the system is basically majoritarian and that the opposition has considerably more impact than in a standard majoritarian democracy. Above all, a lot of arrangements in the final constitution are compromises – some of them, for example the ‘parliamentary presidentialism’, seem to be a result of the different perspectives of the ANC and the NP on constitutional models and on how political power should be limited and constituted.

2.3 RDP, GEAR and the Housing White Paper

2.3.1 The Reconstruction and Development Programme (RDP)

“[The RDP] represents a framework that is coherent, viable and has widespread support. The RDP was not drawn up by experts – although many, many experts have participated in the process – but by the very people that will be part of its implementation. It is a product of consultation, debate and reflection on what we need and what is possible”[67]. With these words, President Nelson Mandela opened the ANC victory celebration on 2 May 1994 to describe the importance of the RDP for the newly elected government.

As the ANC came to think of a leadership role in the early 1990’s, ANC economists, together with government and private sector consultants, developed a blueprint for development in the late 1990’s. In this Reconstruction and Development Programme (RDP), it was attempted to alleviate poverty as well as to reconstruct the South African economy[68]. Originally launched as the ANC’s election programme, the RDP soon became one of the most important guidelines for streamlining the South African housing policy. The RDP was meant as an integrated and sustainable development program, and therefore not only included institutional reform or educational and cultural programmes, but also socio-economical programmes designed to redress the imbalances in living conditions. The RDP was designed as “an all-encompassing process of transforming society in its totality to ensure a better life for all”[69]. As for the housing policy, the RDP had as main goal to help families that are not able to build their own houses in doing so. The RDP raised high expectations; it promised new houses and the redistribution of 30% of good farming land[70].

The RDP was based on the principles of meeting people’s basic needs on a sustainable basis[71]. In 1994, when the ANC launched the RDP as its election programme, it soon became the government’s mandate for reform. As defined by president Mandela, the RDP encompassed “not only socio-economic programmes designed to redress the imbalances in living conditions, but also institutional reform, educational and cultural programmes, employment generation and human resources development”. It would be “an all-encompassing process of transforming society in its totality to ensure a better life for all”[72].

The RDP was thus an integrated and sustainable development programme; the strategies bound all resources together in a coherent way so that they could be sustained in the future. Those strategies were to be implemented at a national, provincial but mostly local level, by government as well as by organisations that work in the civil society. The RDP aimed at the establishment of partnerships between government and civil society, to initiate sustainable development planning, improve the quality of life in marginalized communities and prioritise the needs of the poor.

Chapter Two of the RDP contains concrete policy directives to deal with South Africa’s basic needs. Since the RDP’s highest priority was to attack poverty and deprivation, several themes were touched upon in the Meeting Basic Needs objectives. Among them were topics such as affirmative action, gender equity, population and migration and above all, the socio-economic rights. The RDP called upon South Africa to sign the International Covenant on Economic, Cultural and Social Rights (1966), which was accomplished in 1994 and in 1996, South Africa also signed the African Charter on Human and People’s Rights. South Africa’s constitution, as mentioned in Chapter One, once more established social and economic rights.

Paragraph five of the second Chapter of the RDP deals with housing as a human right, which would later be codified in the 1994 Housing White Paper (HWP), that I will discuss in 2.3.3. One of the biggest targets of the new government was to build one million houses before 1999 (thus in five years time) - 5% of the state budget was set aside for this. During these years it is estimated however, that it was far from 5% of the national budget that was allocated to national and provincial housing departments - an average of 1.5% came closer to reality[73] (see Figure 8).

The RDP did offer explicit standards for an acceptable quality of housing. For example, all housing must provide protection from weather, they must be built in a durable structure and they must offer reasonable living space and privacy. A house must include sanitary facilities, storm-water drainage, a household energy supply and convenient access to clean water[74].

The housing subsidies as envisaged in the RDP were largely based upon blending public-private funds and on promoting social, more than individual housing consumption. It was generally acknowledged that the R15.000, the maximum grant for the poorest households -those with an income under R1500 per month - was not enough to cover sufficient building. A top-up loan provided by a financial institution was therefore necessary. Throughout the late 1990’s however, the financial institutions became more and more reluctant to grant housing credit to housing subsidy recipients. This was a consequence of the failing implementation of the housing finance mandates in the RDP.

In addition, several new institutions were established in order to normalise the home mortgage-lending environment[75].

In 1999, many of the post-1994 houses did not contain sanitary facilities and a household energy supply, in the way the RDP had mandated[76]. Reason for this was that to some extent the local authorities decided to spend the money preferably on a better dwelling than on the infrastructure.

To conclude: To some, the RDP died when the White Paper on reconstruction and development was published in November 1994. The ANC’s commitment to fiscal discipline left no fiscal space for properly implementing the RDP and for the redistributive implications of its poverty alleviation programme and its emphasis on meeting basic needs. Others say that the RDP was abandoned when the GEAR strategy (see 2.3.2) was announced in June 1996, but an appropriate implementation of the RDP was never at all possible in combination with the neo-liberal macro-economics to which the ANC had already committed itself in 1993[77].

In hindsight, the RDP promised a real improvement in access to housing, as is shown in the height of the allocation of the national budget (5%) and in the several subsidies and funds that were created due to the RDP. The RDP decided however, without a public debate, on a private-sector approach that failed to address the key issues of the housing crisis. The housing crisis worsened, aside from a few successful upgrading projects mainly around Johannesburg. An estimated 60% of South Africans live in urban areas, and shanty townships are mushrooming. In 2000, an estimated six million South Africans were homeless[78]. The fact that the RDP concentrated on vision rather than on design and development left nothing more of the RDP than an unsuccessful policy framework.[79]. Eight years after the RDP was published “it must be regarded as a dismal failure”[80] and flawed in design, particularly in relation to the issue of accountability and lack of expediency in delivery[81].

2.3.2 Growth Employment and Reconstruction (GEAR) strategy

In addition to the RDP, the government developed the Growth, Employment and Redistribution (macro-economic) strategy, which was adopted in June 1996. GEAR has as aim to strengthen economic growth and to increase and redistribute employment opportunities in South Africa. Focus of GEAR lies upon the development of a “competitive, fast-growing economy” through tight fiscal and monetary discipline[82]. The GEAR strategy represents the fifth phase of the search for a new accumulation strategy to attract potential foreign investors.

One of the goals of GEAR was that 1.3 million additional jobs were to be created up until 2000[83]. For this, labour unions would have to co-operate with initiatives to reform the labour market and moderate wages. The GEAR strategy oversaw the structural nature of unemployment in this matter, more research was needed into the link between economic growth and job creation[84].

If one compares the RDP with GEAR, it seems as if the RDP is only a short interlude that ended when GEAR was announced and the neo-liberal approach of the ANC thus was reaffirmed. As stated above, GEAR strategy’s tax and spending policies did not leave enough ‘fiscal’ space for the redistribution implications of the RDP. A big difference between the RDP and GEAR however, was that the RDP expected the state to steer a people-oriented development policy, while GEAR preferred to use capitalism in order to increase economic growth.

Was GEAR successful? Overall speaking, one can conclude with saying that GEAR has failed. Up until 2000, only three of GEAR’s goals were reached. Firstly, the budget deficit was reduced to less than 3% of the GDP, secondly the inflation rate was reduced to an annual average of less than 6% and thirdly import tariffs were reduced to less than 7.6% of the value of imports. None of the other goals were reached. Economy grew with only 2.7% a year in stead of 4.2%, employment shrank in stead of growing, and real government investment only grew 1.8% in stead of 7.1%[85]. One of the possible reasons for the failure of GEAR may have been the deficit support of the government through various initiatives, which eventually could have led to an equitable and open economic system[86].

Some see GEAR as a restriction to the government’s ability to provide housing, since two of its most important goals are to reduce inflation and to reduce government expenditure to below 4% of the GDP. This limits the amount to which the government can spend on social needs including housing[87]. In 2001, at the end of its planning period, GEAR was preferably referred to a stabilisation strategy rather than a growth strategy[88].

2.3.3 The Housing White Paper (HWP)

“Housing the nation is one of the great challenges facing the Government of National Unity. The extent of the challenge derives not only from the enormous size of the housing backlog and the desperation and impatience of the homeless, but stems also from the extremely complicated bureaucratic, administrative, financial and institutional framework inherited from the previous government.”[89] With these words, the Housing White Paper (HWP) of 1994 opens its preamble. The HWP was developed during the negotiation period to provide for a practical implementation of the South African housing policy.

In South Africa the housing policy is based on the fundamental understanding that housing is a basic need. The right to “have access to adequate housing” is enshrined in the 1996 Constitution and interpreted by the HWP as follows: “viable, socially and economically integrated communities, situated in areas allowing convenient access to economic opportunities as well as health, educational and social amenities, within which all South Africa’s people will have access to:

• A permanent residential structure and with secure tenure, ensuring privacy and providing adequate protection against the elements; and

• Potable water, adequate sanitary facilities including waste disposal and domestic electricity supply.”[90]

With a ‘permanent residential structure’ the HWP set a norm for housing that was quite different from the so-called “toilet towns” as constructed under the previous government.

In devising the national housing strategy, the government had to take along the following factors. Firstly, the existing housing backlog required for 200.000 households to be housed annually in order for the backlog to be eradicated over a period of ten years. Secondly, new household formation required a further 350.000 households to be housed annually if backlogs were not to increase. Thirdly, the government had to increase the (then) current housing budget with 1%, or R1.4 billion per year. And finally, between 45% and 55% of households in need of housing would be unable to afford new housing and therefore would entirely depend on state subsidies[91]. The national housing goal was to increase the housing budget to 5% of the national budget and to increase housing delivery on a sustainable basis to 338.000 per year, within a five-year period, to reach the target of the GNU of 1000.000 in five years. The national housing policy and strategy needed to be a multi-faceted approach and was supposed to be driven at a local and provincial level.

When the HWP was developed, there were no official statistics on housing, but in order to fully comprehend the housing situation, some indicative information was needed. Chapter three sets forth some estimated statistics about the housing backlog. One of the shocking figures is classified in paragraph 3.1.2., that deals with income profiles. Estimated was that nearly 40% of the total population had a monthly income of less than R800. This low-income profile caused awareness of the necessity of a well-balanced subsidy scheme.

Besides the low income profiles, it was acknowledged that many people in South Africa had no access to basic services, such as potable water, sanitation systems and electricity. Furthermore, many neighbourhoods were inadequately supplied with social and cultural amenities. In its new housing programme, the government therefore pledged itself to “strive to eliminate previous approaches, which effectively separated the provision of housing stock from other services” [92].

While acknowledging all the shortcomings in housing, the HWP recognised that there were numerous constraints in resolving the housing crisis. The large scale of the housing and services backlog and the rapid growth in housing demand were not to be underestimated. Due to the apartheid framework on housing, fragmentation of the housing function racially and geographically had resulted in a duplication of housing institutions and mechanisms. This had led to inefficiency and wastage. Secondly, since many authorities had been inadequately resourced and could therefore not fully carry out their responsibilities, the housing development process was delayed. Finally, the slow local government transition was a factor for delaying the housing process.

The biggest constraints on the housing policy were however caused by sociological issues. Many people had extreme high expectations of the new democratic order. For the new government it would be difficult to live up to these high expectations. High levels of crime and violence hampered the development processes as well and the tradition of non-payment for services moreover constrained the long-term viability of the public environment and sustained housing production. It also limited the amount of resources.

These constraints asked for a different approach of the housing issue. In stead of using all the land that South Africa has to offer, both communities and professions had to shift away from this idea and in stead use land more intensely. This different approach to land use was hoped to lead to a possibility of social cohesion and at the same time have a possible beneficial impact on costs and a better consumption of energy and water. Furthermore, large disparities in housing conditions between urban and rural areas and the above-mentioned low-incomes made it more than clear that the housing policy should be comprehensive. For a sustained delivery of housing, the HWP envisaged a partnership between the various tiers of government, the private sector and the communities. Concluding, the affordability constraint confirmed the need to focus on the poorest sections of the population and at the same time required for the state to constantly seek new ways of supporting the poor to mobilise complementary support through which the housing goals can be achieved.

2.4 Assessment

Since the negotiations officially started after Mandela’s release in 1990, emphasis in all policy-making lay upon the ‘human’ aspect. In all policy documents, an effort was made to alleviate the inhumane living conditions as existed under the apartheid period. Next to internal and external factors, the strong personalities of de Klerk and Mandela played a decisive factor in getting the negotiations well under way. Yet it was not easy for them to come together at precarious topics such as health, housing and the division of powers, once more because their grassroots support had to be kept satisfied. This explains why the Interim Constitution as well as the Final Constitution may by some be seen as documents in which compromise played first fiddle.

The RDP deals with housing as a human right and offered explicit standards for an acceptable quality of housing. This was seen as a promising development, yet the RDP was criticised because of its lack of design and development. Moreover, because of the quick implementation of GEAR, and the consequential limitation of governmental expenditures, possible housing improvements were soon set back. The HWP offered a different approach of the housing issue than was known under apartheid years; for a sustained delivery of housing, the HWP envisaged a partnership between the various tiers of government, the private sector and the communities. So far however this has not resulted in pushing back the housing backlog.

3. Public Policy and Housing since 1994

3.1 Appropriate laws and policies

To redress the housing situation in which the poor were situated in the least adequate housing, located furthest from economic opportunities, the Department of Housing challenged itself to “Housing the nation”. The Department’s main aim was to create “secure tenure” (ownership) for the people who were most in need. In this sense, the issue of quality versus quantity arose and the South African government decided to focus not only on providing new houses, but also on the upgrading of slums, by which the emphasis should lie upon the improvement of basic services and social infrastructure[93]. It was in this context that the housing mandate was developed, namely to achieve “a nation housed in sustainable human settlements with access to socio-economic infrastructure. A housing problem cannot be limited to housing, but needs to be promoted in such a manner as to give a meaning to the goal of creating viable communities”.[94]

To achieve this, the national housing policy required a comprehensive set of acts and laws. The South African housing policy was defined in the HWP in seven key strategies, and set forth all problems and brought about all possible acts and measures. Joe Slovo was appointed as Minister of Housing in 1994, which is seen as the first important step of the democratic elected government towards the implementation of a well-balanced ho