By Tanveer Jeewa
Tanveer Jeewa is a candidate for a Masters in Public Law studying at the University of Cape Town (UCT). She was recently selected as a Youth Ambassador at the United Nations where she represented South Africa and Mauritius. There she won the Social Venture Challenge and is now a Resolution Project Fellow. She has recently established an NGO known as RefRights. Her team and herself are working on a software application to facilitate assistance to legal aid for refugees in South Africa. She is also a volunteer at the UCT Refugee Rights Clinic. She is interested in specializing in Human Rights law but is open to learning and exploring different avenues as they come.
‘The land is the only thing in the world worth working for, worth fighting for, worth dying for, because it’s the only thing that lasts.’ – Gerald O’Hara, Gone with the Wind
Land rights and evictions have, for decades, been used as a means to divide communities. Looking at the cases of Brazil, India, and South Africa where land rights have been used to discriminate on the basis of socio-economic conditions, class, and race, this blog post analyses the legal means through which segregation was achieved and the effects of historical discrimination in land ownership on vulnerable communities today. Land rights and evictions are powerful tools which have been used to promote different agendas, such as overpowering minorities and oppressed populations. Land rights and evictions are also tools which can be disguised as ‘development’. To illustrate the complicated nature of land rights and evictions, this post will firstly look at the legal background of land rights control and eviction in apartheid and post-apartheid South Africa. The situation in India is then considered with regards to land rights per caste. Finally, Brazilian favelas are used as an example of failed land rights of the non-wealthy population.
Evictions in South Africa
Section 26 of the Constitution of South Africa concerns the right to housing, while section 26(3) is most applicable to this essay. Section 26(3) is as follows:
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.
This is normally the point of departure for South African courts when these preside over eviction matters. Case law has lengthily qualified this law, and requirements such as meaningful engagement and alternative housing have been said to impose a positive duty on the state. However, as case law indicates, eviction remains a prevalent issue in South Africa. During apartheid, eviction and restriction of land rights were the most used methods to dehumanise communities of colour.
Apartheid South Africa – racial discrimination
Rural Land Occupancy
‘Separate but equal’ was the driving force behind apartheid – a legislated, racist system which used power relations to degrade Black lives. Most significantly, these power relations played out mostly through the seizure of indigenous land. At the advent of colonization, land cultivation and agriculture were the most common ways for South Africans to subsist. The enactment of the Black Land Act in 1913 transcribed the ongoing racial discrimination on paper. This was the first Act under the Union government of South Africa to bound the movement of Black people solely to areas allocated to them. It also limited the ownership right of Black people to these same areas. Ownership rights were later limited to labour tenants through the Black Service Contract Act of 1932. A labour tenant was “any Black person who was bound to render a service or had permission to occupy and use land in terms of a labour tenant contract”. As the number of Black people living on farms started increasing and concerning the legislature, the Development Trust and Land Act (DTLA) was enacted and imposed more regulations to decrease the number of labour tenants.
These restrictions on rural land tenure were put into place to ‘limit the livelihood strategies’ of Black farmers by depriving them of their land and ‘limiting their free movement’ by preventing them from lawfully occupying prime land marked as ‘White areas’. Black farmers’ properties were seized, thus causing an increased imbalance in the power relations. If Black farmers do not own land, they cannot cultivate it and sell their crops for a living. As they start earning less, being self-employed is not an option and they have to start to look for work. Unfortunately, the Black population was situated as far as possible from White farmers, thus forcing them to remain at their employer’s place. This is where the Black Service Contract Act comes in and ruthlessly regulated Black people’s working conditions on South African farms during the apartheid period.
This loss of autonomy and independence psychologically affected Black individuals. This situation illustrates the number of rights infringed by evictions amongst which are the right to be treated equally, the right to human dignity, the right to freedom and security of the person, their freedom of movement and residence, the right to an environment that is not harmful to their health or well-being, the right to property and finally, and the right to housing.
Urban Land Occupancy
The Group Areas Act followed the Black (Urban Areas) Act and made a distinction between areas subject to different extents of control through use, occupation and ownership based on race. Consequently, individuals from certain race groups were prohibited from using, occupying and owning land in areas selected for other race groups. The sections of both acts were copied verbatim in the proclamation of the Regulations Governing the Control and Supervision of an Urban Bantu Residential Area and Relevant Matters.
The first forced eviction of African people, for a duration of more than a year from an area owned by them, occurred in 1983. This was done per s5 of the Black Administration Act and the removal was that of the Bakwena tribe from Magopa, a land which they had owned for seventy years. The magistrate held that should the tribe fail to move, they would “be loaded onto lorries and moved with force”. Around three hundred families had to be moved.
The Association for Rural Advancement’s (AFRA) statistics show that between 1948 and 1984, 300 000 people of colour were evicted from farms, and 105 000 and another 10 000 people were moved from black spots and reserves respectively. It should be noted that the official published figures of forced removals are erroneous as these only indicate the people who brought their cases to court. The Du Toit Commission of 1959 argues that the main reason for the large-scale evictions in the 1960s and 1980s was security. The motivation, as stated by the then Deputy Minister, was to ‘prevent the possibility of guerrillas moving easily amongst the farm population’. In addition, the aim was equally to provide for an extensively White population with a sparse amount of Black labour for White farms. These forced removals were rooted in s26 of the DTLA, and carried out from non-scheduled, non-released land and freehold areas – the former consisting of dispersed land owned by a particular racial group. Founder of the liberal party, Alan Paton, commented as follows:
The long-allowed right which is the deed of sale is to be taken away, a right almost as old as democracy itself, a right that has become part of the very warp and woof of what is called Western Civilization, a right that accedes dignity and status to a man, a sign that he is somebody, a person not an animal or a thing to be moved about at authority’s pleasure, a sign in fact that even authority shrinks from wounding him in the secret parts, that he has a privacy which is his and his alone, to which he admits as he wills, from which he excludes as he wills, a privacy which when taken from him, destroys him in his inner self so that he is no longer a man.
Post-Apartheid South Africa – A Recurring Pattern
At the dawn of democracy, Black communities started to move away from townships as those were too far from financial prospects. Although South Africa is subject to a normal rate of urbanisation (1.21%), the spatial planning of the country and disparity between classes is such that, the lower class has no legal means to acquire or lease property in urban areas. As mentioned before, the black population was moved to outskirts of main living areas during apartheid, so as to limit their means of survival. Due to being far from city centres, most of the people were unemployed. After 1994, those same people started moving to the city but were not earning much. According to the Socio-Economic Rights Institute (SERI), the cheapest accommodation for rent legally provided by the private sector is at R1700 per month. For a family to be able to afford that, they would need to earn R 5700 per month. Yet half of the inner city households earn less than R 3200 per month. This means that they have to resort to informal housing. This has led to the infamous inner city crisis, where dwellers – who are mostly people of colour – are getting evicted from the city centres. In Grootboom, the Constitutional Court held that:
Ss26(1), 26(2) and 26(3) place a positive duty on the state to ensure that those living in deplorable conditions or confronted with homelessness gain access to adequate housing.
In light of these very obligations, the Housing Act was enacted in 1997, which imposed a duty on the South African state to prevent and eradicate slums and similar conditions. Unfortunately, in practice, evictions happen daily as people are driven out of informal settlements. While the municipality is meant to provide alternative accommodation, in most cases, courts postpone the eviction so that victims can find alternative accommodation themselves – which most likely translates into another informal settlement. Thus, it can e argued that the ‘solutions’ obtained through extensive case law are ways in which to delay the evictions. However, there has not been enough focus on ways in which to prevent evictions, such as increasing tenure security. The failure of the state to give effect to the rights in ss25 and 26 establish yet another obstacle for the Black population affected by poverty, and is arguably a form of oppression deeply rooted within the South African system. This clearly shows that it will take more than the drafting of new policy to undo the damages of the past and to avoid recreation of them. It also shows that, rather than focusing legislation on how to delay evictions, legislation should be aimed at increasing tenure security so as to avoid recreating racist patterns among rising eviction rates.
India – Caste Segregation
Overview of the Caste System
Although abolished in 1950, caste oppression exists in India to this day. The Indian caste system consists of four separate classes (varnas). In descending order of hierarchy, these classes are: Brahmins, deemed to be authorities in the matter of learning, teaching and religion; Kshatriyas – warriors and administrators; Vaisyas – the artisan and commercial class; and Sudras – a ‘Backward Caste’ who are farmers and peasants. The caste system is believed to have divine origins; each of these castes originate from distinct parts of the Hindu God, known as Brahma the creator. At the bottom of these classes is a group which does not even form part of the caste system: the Dalits meaning the broken people. They are not a caste system as they are considered so ‘filthy’ that it would be an outrage for them to have touched Brahma, let alone come from part of his body.
Restricted Land Rights of the Dalits
The general disdain for the Dalits in India has been communicated through their socio-economic conditions. Dalits are traditionally given unskilled and debasing jobs, most of which are expected not to be remunerated. Common jobs for women Dalits include removing dead animals and clearing human excrements from pit latrines. Due to them being seen as ‘polluted’, Dalits were not allowed to live close to other classes; they had to go to huts on the outskirts of villages. To this day, although the laws prevent these kinds of treatments, some of these situations still apply to the Dalits. In view of these job restrictions and living in rural areas, one of the only ways of subsisting economically was through agriculture.
The case of Dalits can be compared to that of Black South Africans during apartheid. Although the discrimination against Dalits is quite clear from statistics and lived realities, it is not portrayed in the law. Statistics show that in 1994, only 19 percent of Dalit households were self-employed in agriculture compared to 42 percent of the non-Dalits. Dalits are given restricted access to land ownership due to the legal history of their caste and continuing prejudice. In 2007, approximately 75 percent of Dalits were deemed landless.
Other than access to land ownership, Dalits’ existing land rights are continuously disputed. In rural areas of India, there is a practice of use of common pastures and farming. This has led to disputes between high-caste property-owners and Dalits since property owners encroach on Dalits’ lands and are met with little resistance from society. Yet higher castes are not the only boundaries Dalits face; they also lose their land to government under several ‘development projects’. In 2003, 7 000 Dalits were forcefully evicted from Calcutta and 700 families were left without alternative accommodation.
Unlike in the case of South Africa, where laws have been changed with the intention of remedying the inequalities created by the past, there seems to be no similar intention within the Indian government. Indeed, there has been no attempt at an equal redistribution of land or even compensation of the land price at market value. Rather, there seems to be an agenda allegedly driven by development at the expense of poor people, whose voices are not being heard. This clearly indicates that the ulterior motive behind evictions will affect the masses in such a way so as to perpetuate a lower class of Dalits with little to no access to land.
Brazil – Discrimination on Wealth status
In Brazil, the socio-economic inequalities arising from rights surrounding land are mostly concerned with housing policies. Compared to South Africa and India, inequalities arising from different segments of society were not based on race nor caste but rather came about due to capitalism. This is an important comparison as it illustrates that even today, land rights and evictions can be disguised in a modern manner yet continue to discriminate against lower-classes of society. In the case of Brazil, housing policy – instead of helping the urban poor, which it is purported to do – has led to increased insecurity and marginalisation. Indeed, despite well-intentioned laws, economics plays a big part in determining who gets access to what.
This section will analyse the policies which led to the emergence of informal housing known as favelas – one of the most mediatised manifestations of inequality in Brazil. The focus will be on favelas since these currently shelter the lowest strata of Brazilian society in terms of economic wealth. To this day, Brazil’s housing deficit reaches seven million units; 20 percent of Brazil’s population lives in informal housing.
History of favelas
Known as “Brazil’s affordable housing stock”, favelas emerged towards the end of the 19th century when Brazil became a republic. As a consequence of drastic political changes, slums grew in size. The communities consisted of internal migrants and itinerant labourers originally scattered in squatter settlements. The number of migrants increased and started organising internally, forming residents’ associations, which brought about forums for the discussion of community affairs. As the government failed to provide numerous public services to favelas, the community members themselves, aided by their associations, provided the favelas with sanitation, medical care, and transportation.
Favelas are, as previously mentioned, highly political in nature. This is due to the fact that they emerged as a result of the Brazilian state failing to put in place policies targeting the polarisation in terms of income inequalities, especially with regards to the housing market. From 1964 to 1985, Brazil developed as a welfare state under a military dictatorship in an effort to take down the free market. This welfare state came up with housing programmes which aimed at commodifying poor people’s homes which were then up for grabs for the middle class. This in no way assisted the poor but rather, was a means of establishing mass housing construction for a prevailing elite.
Another notable welfare alternative to providing the lower class with housing was the National Housing Bank (BNH). The BNH intended on providing low-cost housing for those in need. Yet again, the BNH ended up serving the middle class since the bank would prefer investing in lower risk middle class compared to higher risk people from the lower class. As there was then no means for the lower class to obtain housing due to high prices, the lower class resorted to illegal alternatives such as land invasions. This led to the creation of favelas, with no security of tenure for owners and no property rights on the land even though the dwellers owned the house they built.
Lack of land tenure security in favelas
Brazil’s land rights and eviction issues are widely mediatised due to the political nature of debates surrounding favelas. UN Habitat describes a favela as a “run-down area of a city characterized by substandard housing, squalor and lacking in tenure security”. This lack of tenure makes the dwellers of favelas prone to evictions and does not allow them to have a secure right to housing, placing them in an inevitably vulnerable position similar to the Black community in South Africa and the Dalit community in India.
Favelas are forms of informal housing and thus, dwellers do not have ownership of their homes. In addition to this, favelados (those living in favelas) are subject to numerous human rights infringements which accrue due to them living in favelas. Most favelas do not have access to potable drinking water, effective sewage systems nor decent roads. The density of the favelas and non-policing causes favelas to be some of the most dangerous places in Brazil. Drug dealings, gang violence and murders are more common there than any cities in Brazil.
In 1999, the State Security Secretary Beltrame echoed his views on favelas:
We can use legalism to say that favelas need to be demolished, because they are [illegal] occupations of land, or to defend them, because after all [favelados] are Brazilian victims of a perverse economic and historical model. Either society embraces and hosts these areas, or nothing will change. For this reason the police make an appeal [to the population of Rio]: go up the hill, it is part of the city (Beltrame).
Unlike in South Africa and India, it is worth noting that the Brazilian government has attempted to tackle the issues arising from favelas. A surprising yet effective method which the Brazilian government has adopted vis-à-vis favelas is to provide deeds to owners of the dwellings. Rather than rebuilding the favelas, the government has found that providing owners with property rights will allow for more regulation, in addition to the provision of public utilities in favela areas. This brings hope to the South African and Indian marginalised communities: there are ways in which to provide them with dignity without completely rebuilding their lives and asking them to start afresh. Though this is not an ideal solution, it is a start and evidence that progress can be made in tackling the issue of land right inequalities.
Escaping the vicious cycle: The role of international law
The rates of eviction in specific communities are likely to perpetuate the placement of these communities at the lowest social hierarchy in the future due to the absence of land rights. The community members’ lack of tenure security is indicative of many failures to come. The illustrations from the countries above are just some instances where evictions and land rights have been used as a segregation tool. There should be more policing done vis-à-vis evictions, and as South Africa has done, impose requirements which should be met by municipalities and governments before giving effect to eviction orders. These requirements may be to meaningfully engage with community members and the obligation to find alternative housing, which would drastically decrease the side-effects of needed evictions. A balancing act must be done whereby the government must be required to find less restrictive means to achieve the purpose intended. The international community should come forward and recognise restricted land rights and evictions as a deprivation to property as well as an ongoing form of discrimination. It would be even better to do as Brazil has done, and promulgate legislation which aims to increase security of tenure for communities at high risk of eviction.
Other than government duties, community members must also become aware of their rights relating to land. This blog post has aimed to compare the ongoing issue of land rights and evictions in three countries and, in doing so, exposes three different ways in which land rights and evictions are tools to oppress communities. This pattern is one which should be brought to the attention of the international community. Mass evictions should serve as warning flags for Non-Governmental Organizations in the human rights sector and the international community, since these are indications of infringements of the right against discrimination central to the Universal Declaration of Human Rights and the International Covenant of Economic, Social and Cultural Rights.
 Supra note 46.
The Constitution of the Republic of South Africa, 1996
Black Land Act 27 of 1913
Black Service Contract Act 24 of 1932
Black (Urban Areas) Act 21 of 1923
Development Trust and Land Act 18 of 1936
Group Areas Act 36 of 1966
Housing Act 107 of 1997
Proclamation R1036 in GG Extraordinary 2096 of 14 Jun 1968
Government of the Republic of South Africa and Others v Grootboom ZACC 19, 2001 (1) SA 46 (CC), 2000 (11) BCLR 1169 (CC) paras 24-25 and 35-38
Minister of Police v Kunjana  ZACC21 at para 15.
Occupiers of 51 Olivia Road, Berea Township, and 197 Main Street, Johannesburg v City of Johannesburg and Others 2008 (3) SA 208 (CC)
Aparajita, B. 2008. Social Inequality in Land Ownership in India: A Study with Particular Reference to West Bengal, Social Scientist, Vol. 36, No.9/10, pp 96.
Donald, I. 1984. Removals of a quiet kind: Removals from Indian, Coloured and White-owned land in Natal, Carnegie Conference Paper 75, Cape Town.
Kethineni, S. and Humiston, G.D. 2010. Dalits, the “Oppressed People” of India: How are Their Social, Economic, and Human Rights Addressed?, War Crimes, Genocide, and Crimes against Humanity, Volume 4.
Muller, G. 2013. The Legal-Historical Context of Urban Forced Evictions in South Africa, Unisa Press, pp 367-396.
Sagarika, G. 1993. The Dalit in India, Social Research,70, No.1, Pariah Minorities, pp 83-109.
See “Favelas in Rio de Janeiro, Past and Present” at http://library.brown.edu/create/fivecenturiesofchange/chapters/chapter-9/favelas-in-rio-de-janeiro-past-and-present/.
See at Fixing Favelas: Urban Housing Problems in Brazil at https://borgenproject.org/fixing-favelas-urban-housing-problems-brazil/.
See Israel: Eviction plan violates Palestinian land rights at https://www.aljazeera.com/news/2016/08/israel-eviction-plan-violates-palestinian-land-rights-160823130906049.html.
See “Memoirs of a lower caste” on https://www.economist.com/books-and-arts/2017/07/27/a-memoir-of-the-lowest-caste
See SERI’s report “Minding the Gap: An Analysis of the Supply of and Demand for Low-Income Rental Accommodation in Inner City Johannesburg” at http://www.seri-sa.org/images/Minding_the_Gap.pdf.
See Urban Land Tenure in Brazil: From Centralized State to Market Processes of Housing Land Delivery by Flávio de Souza and Roger Zetter at http://www.suelourbano.org/wp-content/uploads/2017/09/Flavio-e-Zetter-URBAN-LAND-TENURE-IN-BRAZIL-chapter-07.pdf.
See “Why we should call them favelas” at http://catcomm.org/call-them-favelas/.
Strauss, M. and Liebenberg, S. 2014. Contested spaces: Housing rights and evictions law in post-apartheid South Africa, Sage Publications 13(4).