About 60,000 people live in Marikana, the informal settlement in Cape Town where land invaders began building shacks in April 2013. To say their living conditions are insufferable would be an insult to their resilience and fortitude. Lacking taps, toilets, electricity or roads, they suffer but they endure. Plagued by criminals, and with bloodstained corpses piling up on their doorsteps, they are indomitable.
These South Africans have a constitutional right to dignity, described by a Constitutional Court justice in 1995 as the very foundation of the Bill of Rights. Yet it seems to be the last thing on the minds of those with the power to bestow and sustain the benefits of that right.
In three high court cases initiated by the owners of the Marikana land, the City of Cape Town went to great lengths to explain why it could not and would not treat the people who live there with dignity by purchasing the properties and implementing an emergency housing programme.Fortunately, Judge Chantal Fortuin saw through the municipality's cynicism, beginning her discussion of the case: "I am faced with a historical, social and economic situation that cannot be ignored. The question that needs to be answered is whether we have moved on today, in any way, since 1994."
She also made it plain that in several respects the city council had taken an unreasonable position. Indeed, it had failed to give effect to the constitutional rights of the owners of the land and those occupying it "by not invoking the remedies of the policies at its disposal".
Fortuin ordered the City of Cape Town to enter "good faith" negotiations to buy the Marikana land, and she instructed the provincial and national human settlements departments to assist with funds if necessary. All three had infringed the owners' rights to their property, she said, as well as the residents' constitutional right to adequate housing.
A not-dissimilar situation is unfolding in Johannesburg, where 600 people are living in leaky tents near Wembley Stadium in Turffontein. Until recently they occupied one of the city's 85 hijacked buildings, but they were evicted so the City of Johannesburg could convert it into low-cost rental units.
Because home affairs has told him more than 80% of the tent-dwellers are foreigners, mayor Herman Mashaba has washed his hands of them.
"The City of Johannesburg will take responsibility only for South African citizens," he said, emulating his DA counterparts in Cape Town by finding the constitution nothing more than an inconvenient impediment, easily ignored when it came to dealing peremptorily with powerless people.It remains to be seen whether inhabitants of the Turffontein tent city will be assisted by one of the non-government public interest groups that often turn to the courts when the constitutional rights of the poor are abused - people dismissed by Mashaba as "so-called human rights lawyers". In Marikana, the Socio-Economic Rights Institute of South Africa represented the residents in the high court case, and it will have to go on doing so.
That is because just a few days before 11 people were shot dead in one night of misery and mayhem in the informal settlement last week, the three tiers of government taken to task in Fortuin's judgment responded by saying they would fight her ruling all the way to the Constitutional Court, a decision that will condemn Marikana to many more months of uncertainty, and its people to at least one more dark, freezing winter.
This is not because they object to having to buy the land, as ordered by the judge, but because they are miffed at being told they have failed to meet their constitutional obligations to the landowners and residents.
This begs many questions, but one of the most troubling is this: why does being right trump being human?..