Relocation of illegal dwellers on railway reserve between Philippi & Langa: stakeholder engagement; (with Transport, Human Settlements, and Public Works and Infrastructure Ministers)

Meeting report

The Chairperson welcomed Ms N Makamba-Botya (EFF) as a new alternate Member, and Ms Ntombi Nkabinde as the new secretary of SCOPA. He said that the Minister of Transport (MoT) would present to the Committee first, followed by the Mayor of the City of Cape Town (CoCT), after which the Minister of Human Settlements would make her presentation. This would be a joint presentation between the stakeholders.

Department of Transport on implementation of Operation Bhekela

Ms Sindisiwe Chikunga, Minister of Transport, briefed the Committee on their implementation plan to assist the Passenger Rail Agency of South Africa (PRASA) and the various spheres of government with the issue of the illegal dwellers on the Central Line, which was crucial for the running and recovery of railway services in Cape Town.

To successfully execute the relocation, several items had to be prioritised. These items included overall funding confirmation for securing land for relocation purposes, the facilitation of statutory processes required to enable the use of the secured land on an urgent basis, and effective community engagements with the community members of Langa, Philippi and Khayelitsha.

Since the previous meeting, progress included identifying land for relocation, and the statutory processes, including the rezoning application lodged with the City of Cape Town on 7 August. The estimated time for approval of the application was nine months. Discussions with National Treasury about funding for the land had started. No definitive commitments have been made yet, but discussions with National Treasury were still ongoing.

Implementing Operation Bhekela through the infilling of households located within the set buffer area has been completed. The infilling of these households has enabled limited rail services between the Cape Town central business district (CBD) to Langa, and from Langa to Nyanga, to resume from July 2022. The implementation of Operation Bhekela was to be undertaken through both infilling within the existing settlement and, where required, relocation based on temporary capacity on land owned by PRASA.

Minister Chikunga said the matter was urgent because they wanted to recover the corridor as soon as possible. It was also urgent because they had already appointed a service provider to start rehabilitating the rail line. Any delays would be very costly. There were means to resolve the matter, like Operation Bhekela, but the inhabitants would want to be assured that they would be placed on permanent land when they were relocated. The Department of Transport, through PRASA, was ready to rehabilitate that corridor so that the trains could start operating as soon as possible.

Input by Mayor of Cape Town

Mr Geordin Hill-Lewis, Mayor of Cape Town, reminded the Committee that once the rezoning application was submitted, the City of Cape Town would then take on the role of a planning regulator. This meant that the City had started the regulatory work of processing the rezoning application. This required an extensive public consultation period, which would result in a lengthy timeline of nine months.

The recommendation was to go above and beyond for the public consultation, because the relocation was controversial, and the community was a potentially litigious community that could delay the programme for a long time if the rezoning application ended up in court. For these reasons, the City had to be extremely careful and play its role according to the letter of the law.

The City was ready to provide basic services to the community once it had been established. The City had a constitutional and legal duty, and it had budgeted to fulfil this duty. The Minister of Human Settlements had recently provided an informal settlement budget for the purpose of delivering the basic services. The City was committed to playing its part once the community had been established, but basic services on the railway were controversial in the interim. However, the City was still committed to meeting its deliverables and relocating the basic services to the new location once the community had been relocated.

(See letter attached)

Briefing by PRASA

Mr Hishaam Emeran, Chief Executive Officer (CEO), PRASA, briefed the Committee about the first phase of the central line, which had been completed. The second phase would be the current focus. The second phase involved bringing back the rail service and extending it beyond Nyanga through Chris Hani, Khayelitsha, and Mitchells Plein. The priority was to ensure the full recovery of the central line, which required the relocation of the settlements.

Operation Bhekela, which was the temporary relocation of the railway inhabitants, was earmarked to ensure that the organisation could at least provide a limited service through Khayelitsha to Mitchells Plain. A site had been identified at Stock Road station, where inhabitants living within the reserve would be relocated so that construction could commence within the corridor. Contractors had already been employed to reconstruct the rail track, rehabilitate the railway’s electrical infrastructure, and improve the railway passage so that more passengers could have access to the trains.

The critical issue raised by the Committee after the previous site visit had been the security and fencing issue. The organisation had made progress on this by looking into the market for packages that focus on closing and protecting the reserve. The appointment and procurement of contractors to undertake the work as it related to Operation Bhekela was being finalised. The vegetation clearing of the site on Stock Road would start this week. The goal was to start with the engineering work by next week as part of preparing the site for the relocation of the dwellers.

There had been delays owing to several reasons, such as the taxi strikes in the City of Cape Town. The target was to complete all the work within three to four weeks so that the relocation of just under 900 settlements to the Stock Road site could be realised. There were important prerequisites that needed to be considered moving forward on the matter of the temporary relocation. One of the matters concerned the confirmation of a long-term plan for the relocation. This went beyond the Stock Road movement. The dwellers that were going to be moved had requested certainty on the long-term plan. There was progress on a short-term solution on PRASA’s side. There needed to be confirmation on a long-term plan to ensure that the process was not hindered by the uncertainties that may result in relocation delays.

(See presentation)

Briefing by Housing Development Agency (HDA)

Mr Bhekuyise Khenisa, CEO, Housing Development Agency (HDA), said that they would be guided by their executive authority in terms of the process going forward.

(See presentation)

Briefing by Department of Human Settlements

Ms Mmamoloko Kubayi, Minister of Human Settlements, briefed the Committee on the important issues that had to be clarified to ensure that the process would not be held back over a period of years. The issues included the laws that applied to the case of settling people in terms of housing.

The HDA was an implementing agent that the Department utilises to facilitate work in the provinces and the municipalities. The HDA was appointed either by the municipalities or by the provinces. They did not have funds transferred to them as an entity. For any work they were required to do, they had to be commissioned and money had to be transferred to them so that their Department did not have an unfunded mandate.

The CEO of the HDA was brief because the HDA had spent R12 million, which had not been reimbursed. The issue was finding who would reimburse them. In terms of the Informal Settlements Upgrading Plan (ISUP) grant, money was transferred to the City and the province. The National Department of Human Settlement did not sit with any of the money. What happened annually was that a province or City would develop a business plan, and send it to the Department.

The grant framework was passed under the Division of Revenue Act (DORA) and had conditions. If money was spent outside of the reasons for which the grant was awarded, this would be a violation of the law. How the process worked was that the City of Cape Town would apply to the national DHS with their business plan and their request for funding. Within the grant framework, the implementing agent was the HDA. Currently, the employment of the HDA in terms of services and operating within the City in terms of the grant framework, has not been done. PRASA and the Department of Transport appointed the HDA to do the work, but the work that they were doing was limited. It did not extend to purchasing land or eradicating temporary units, because these tasks fell within the Human Settlements portfolio.

The rezoning of the land had been submitted, and the Mayor had said it would take nine months. The Department had lodged a dispute against the City, because the City was unnecessarily putting hurdles in the way of the process. On 9 May 2023, the Mayor announced a red tape reduction, and one of the areas he spoke about was the value chain and the index on the built environment value chain. This was to reduce the time in terms of application processes for building, land rezoning, and various other processes. On this project, the Mayor and the City did not consider the red tape reductions they had initiated in the index. Consequently, the Department was subjected to the long term processes.

The Department agreed with the Mayor in terms of the issue of managing expectations. Communities would not be misled into believing that because Operation Bhekela was urgent, this would give them the advantage of jumping the housing queue. The Department also agreed with the Mayor on the second issue of long-term commitments. Stakeholders must be honest with communities. Some processes had to be followed in terms of the process, the Housing Act, and the housing framework and requirements.

The Department was committing to resetting the people in terms of a temporary solution. Thereafter, the people must follow the system of allocation. The Department would appoint a facilitator to explain these laws and procedures to the people so that they understand the due process relating to how priority and beneficiary mandates must be followed, as required by the law. The only solution the Department could provide was a temporary settlement so that they could move away from the railway line for the railway to operate effectively.

The Department had conditionally approved the City’s 2023/24 financial year business plan, because they had not included the PRASA railway line in their business plan. The Department was unsure why the City would not include a line in their plan if it had committed to Operation Bhekela. It would be through the City that the Department could provide temporary human rights services, such as water and sanitation. These services were not in the City’s business plan. The Department had written to the Minister of Cooperative Governance and Traditional Affairs (COGTA), declaring a dispute on the basis that progress was not made almost two years later. The City had initially stated their inability to cooperate because of a lack of funding.

Briefing by Department of Public Works and Infrastructure

Mr Sihle Zikalala, Minister of Public Works and Infrastructure, briefed the Committee on their readiness to make land available for socio-economic development. The Department was prepared to urgently avail land where there was a need and a request to ensure proper resettlement of the people. Intergovernmental relations were important for a project of this nature. Stakeholders should try to work as a team whenever there is a challenge, especially because this emergency has to be dealt with immediately.

Discussion

The Chairperson clarified that the issue around PRASA’s negligence was not in dispute. The previous board had taken an irresponsible and reckless decision by cancelling a security contract, which had landed PRASA throughout the country in this mess. When Covid arrived, it exacerbated the problem. This had been clarified before. All stakeholders and parties to the meeting were well-versed with the circumstances that had led to the current situation.

The operative word was progress. The only acceptable commentary that had to be made going forward must be about whether progress was being made in resolving this matter. The historic matters were well-ventilated and well-understood. Where consequence management must take place, the Committee’s report would ensure those considerations were highlighted. How the previous board handled the security matter was an issue that could not be ignored. It had to be dealt with, but not in this meeting. All inputs must be forward-looking. 

Mr S Somyo (ANC) requested that the stakeholders confirm his understanding of the facts presented in the meeting. Based on the presentation by the Minister of Transport and PRASA, it seemed that their strategy for the temporary relocation away from PRASA rail lines to the Stock Road land had been agreed upon between the parties, and the City had confirmed that it would play its own role, which was the provision of the basic services which were necessary for that relocation. The Mayor had confirmed that Bhekela was the best plan for immediate results. The City would indeed provide the basic services for the dwellers in the temporary location.

The Minister of Human Settlements indicated that she had heard the plan of moving to the servitude, but an important issue to raise as a concern was that the City remained obligated to implement human settlements and in terms of law, the Minister of Human Settlements provides priorities and directives within the law. Policy priorities were a prerogative and directive of the national Department.

PRASA were not specialists in handling human settlements, and this was why Bhekela was not the best option. The best option was to find and purchase land and temporarily move the dwellers into the settlement. It was a temporary solution, because this alternative did not have permanent services in terms of bulk infrastructure and settlement. There was a need for the City to come on board so that the Department could find land and move the dwellers onto proper land.

The Mayor had stated that paying for land was not within his scope of duties. In terms of the ISUP grant, the City purchases land. This was why the Department had made a commitment to provide additional funding, particularly for this project, while also acknowledging the pressures the Mayor had to deal with from the City and the commitments he had already made to other communities. Providing funds for this project to the City was a policy directive for the Department.

The Chairperson clarified that their interest was the reopening of the Central Line for the purpose of PRASA fulfilling its contribution to economic growth and economic development for the majority of people who were previously and presently disadvantaged and living outside of economic activity. Money had been put on the table. At what cost would these services be provided, and until when? This was what the Committee had been asking from the stakeholder, and that was the commitment to their own timeline. The Committee understood that Bhekela was part and parcel of the package, and therefore could not be viewed in isolation outside of the permanent relocation of the people. With the dispute that had emerged, the matter had now become very complicated.

The Minister of Transport explained that the inhabitants would not welcome a solution outside of the scope of a permanent solution. They wanted a commitment from the stakeholders that they would be provided with permanent land. When the Mayor was talking about currently providing basic services, he did not think that he was serious. The inhabitants had been provided with small plastic toilets that were shared by many households. The situation was extremely inhuman -- it was not something that any reasonable person would agree to use if they had a choice.

It was important to relocate the inhabitants, not only to provide them with a dignified solution, but this relocation was also important to the residents of Khayelitsha, Philippi and Langa, who were forced to pay exorbitant transportation fees to enter the City so that they could participate in the economy. She agreed with the Minister of Human Settlements that those who were experts in a particular matter must act according to their expertise to contribute to the project, and assist the other stakeholders.

Mr Somyo appreciated that the relevance of Operation Bhekela had been confirmed. The confirmation was based on the movement of the inhabitants away from the rail line so that the Department of Transport, with PRASA, could continue to provide the required services. The implementation protocol ought to be appreciated as well, because each party to the protocol had a responsibility which would effectively assist in the renovation of the rail line to ensure that it could be utilised, and that the system responded to the needs of the people of Cape Town.

It was necessary that as the stakeholders moved the inhabitants to the established settlement, they needed to reassure the inhabitants that the move was humane and compassionate in as far as the delivery of basic services was concerned. There needed to be an undertaking by stakeholders to assess the suitability of the land so that the dwellers were relocated to a safer environment, as guaranteed. This was a confirmation that specifically ought to come from the Minister of Human Settlements and the City of Cape Town.

The Minister of Human Settlements confirmed that wherever one decides to move a group of people, there must be an assessment done on the land regarding suitability for human settlement. A study had to be done on an emergency basis. This was part of the Department's work, as part of its mandate in terms of disaster management.

The Department and the City should work together to immediately assess the land's suitability. This would not be a full geotechnical report that determines the various characteristics of the soil and if it is suitable for the building plans. The assessment would prevent an infrastructural disaster for which the City and Department would be accountable. Within the three-week implementation plan, the land assessment should be ready.

The Chairperson confirmed that the assessment of the Stock Road land would be done within two weeks. The City and the Department of Human Settlements would be responsible for the nitty-gritty details involved around the assessment.

Mr A Lees (DA) said that one of the most critical issues was getting the dwellers relocated, but the other critical issue was getting the people to agree to being relocated. In light of these issues, how would the two-to-three-week timeline be feasible?

Ms V Mente (EFF) acknowledged that it was not within the Minister of Transport’s mandate to conduct an assessment of the land, nor did she have the expertise to conduct such an assessment. Within the land that the Minister was availing, would it accommodate all the inhabitants? The inhabitants had asked for a long-term commitment from the stakeholders. Would the stakeholders agree to a long-term solution?

She clarified that the inhabitants occupied the rail line as a form of protest. The protest was about the displacement and homelessness of black low-income citizens living on the margins of the City. The inhabitants were relocated to a piece of land set aside, with the condition that the stakeholders assure them that the long-term transformation they were requesting through their protest would be implemented.

Mr Emeran, responding on the issue of the number of inhabitants that would be relocated to the Stock Road site, confirmed that it was just short of 900 people. This number accounted only for the settlements that fell between Nyanga and Philippi within the 10-meter rail reserve. It did not account for the invasion of the reserve in its totality.

After engaging with the affected inhabitants who had to be moved, the stakeholders demonstrated a serious commitment to resolving the issues faced by the inhabitants. This commitment was attached to a general expectation by stakeholders to a phased approach, which starts with an interim solution and then moves on to a long-term solution. As soon as the rehabilitation work could commence, 40% of the rail network and passenger usage would be opened.

The Chairperson clarified to all parties that he was against making room for and facilitating the dispute that had been raised. There was not just a dispute but also a dispute of the dispute. It was impossible to resolve the dispute in this meeting without affording the Minister of COGTA an opportunity to hear both sides of the issues raised.

While there was a very noble commitment to conduct an assessment that in the next two to three weeks would result in facilitating the movement of households and opening 40% of the rail line, what remained uncontested was that there was a dispute. This meant that the matter must be approached with a serious amount of caution, because this would be a revolving door for quite a while on the basis that R61 million remained with the City for the purpose of the provision of services.

The Mayor had spoken about litigation, and projected that the litigation could take up to five years if it was prolonged. Would the Department of Human Settlements continue to provide funding for these services until the matter was resolved? The key question about timelines was critical, because it had financial implications and if this was the case, who would foot the bill?

The issue of the dispute became fundamental because it would provide clarity in terms of where the matter, in its holistic nature, goes. The Committee hoped that there was a genuine commitment to Bhekela, notwithstanding that it was an intervention or measure born out of frustration, as had already been indicated. The goal, on one hand, was the opening of the railway line, and on the other hand, ensuring that there was some semblance of certainty for the inhabitants who would be relocated, and that the Bhekela intervention was clarified for them.

A dispute was a major hindrance to achieving these goals, and should not be taken lightly. All parties must be aware that they would be engaging with stakeholders lodged in a dispute moving forward. The Minister of Human Settlement was very clear about what kind of mediation she expected. The bright side was that it was not a dispute with the intent of walking away, but the intention was rather to mediate, and the Minister would like experts in certain fields to deal with the issues in dispute. The ball was now with the Minister of COGTA, who was not present in the meeting. This placed the Committee and stakeholders in a dilemma because they could not be sure where any response would lead them, unless the dispute would be withdrawn through the sheer intervention of Scopa. There was a commitment to the implementation protocol that was signed.

Mr Lees pointed out the importance of recognising that two parallel issues existed. On the one hand, there was Operation Bhekela, which all the role players had rallied around and made a commitment to proceed with their respective functions. On the other hand, there was a dispute which could run parallel to the Operation. It was not something that should severely affect the Operation’s progress. The parties to the dispute were urged to find a quick solution, because the inhabitants who were being asked to move needed a permanent home in the long term. Everyone deserved a permanent home -- a place they could claim possession over, and live in peace while building their families.

Ms Mente acknowledged and appreciated the innovative plan initiated by PRASA to ensure that they met their mandate of rehabilitating the railway line. With the risk of bringing the history of the matter to the surface, it was critical to note that the parties were dealing with vulnerable people who had been hurt many times. It was easy to go back and forth throwing words and papers in this meeting, but it was difficult for the inhabitants living on the rail line to reckon with an uncertain future.

All parties to this meeting were wrong to expect the inhabitants to remain content with the uncertainty of their future. They could not sit in this meeting and act defeated by processes that they owned. They were responsible for the law that they had drafted and passed in Parliament and that was at their disposal to use. Why were they not using the same measures utilised in situations where homelessness resulted from flooding or wildfires? This situation was just as urgent as these situations because the result was the same. The consequence was homelessness.

Perhaps the most unfortunate thing was that the issue of homelessness was happening to people who had been segregated, and the spatial planning had pushed them to the margins. This issue did not affect those in privileged positions, which may be why the matter was being dragged out in this manner, with disputes that were extremely fruitless in hindsight. This meeting had been arranged so that a plan of action would be communicated. Instead, there was a lot of arrogance around the roles that the stakeholders had committed themselves to.

The Minister of Human Settlements had been within her rights to lodge a dispute if she deemed it necessary, but at the same time, the focus could not solely be on the dispute. The priority was about what would be done for the inhabitants. There was no solution. Parties had not agreed to anything. Money had been returned, and no one was responsible for purchasing the land.

The Minister of Public Works had made a commitment, and was prepared to make land available. Who was going to purchase the land? If the money for the inhabitants on the rail line had been made available to the City, and there was land available to purchase, then why was the City not implementing it? The Committee was interested to hear about a project that was going to get implemented. When was it going to happen? Who was going to avail land? Who was going to fund it? Who would deal with matters of rezoning and construction on the land?

Mr Somyo commented that it was clear that the Department of Human Settlements had its own responsibility, and this was tied to housing. The City of Cape Town had its own responsibility in terms of its own planning environment and the actual provision of services for those communities that were going to be relocated. There must be a plan to fulfil these responsibilities.

The Minister was saying that when she received the City’s business plan, there was no clear intent on the inclusion of the inhabitants on the rail line. The Mayor had confirmed that what the Minister was saying was true. He had also explained that the return of the R50 million was firstly because the money could not be used within the timeline regarding the fiscus, and secondly, because the land purchases were not in the purview of the City of Cape Town and the office of the Mayor. The dispute existed within that frame. There ought to be a resolution which would bring the parties together.

The intention of the ministry would have been to make purchases through the HDA. The only problem was that money could not be provided to the HDA by the ministry. The money ought to go via the City. The intention should be that the City bring the inhabitants of the rail line into the plan of the City. The ministry could not provide for those communities as long as they were outside the City’s business plan. This was the issue that ought to be resolved. On the brighter side, within the protocol, the parties were moving together regarding the planning regulations and rezoning.

The Committee’s plea was that the dispute should not hinder the programme. It was in the hands of the City and the ministry to create mechanisms among each other that would allow for a better chance for mediation to succeed. Even if there was no mediation, they were both sitting next to each other as the meeting was proceeding, so they could come to some kind of agreement before they left the room on the appropriate steps to take to find a resolution.

Mr B Hadebe (ANC) emphasised his delight that the issue of temporary relocation had been sorted out, and that all the necessary requirements in terms of the law would be dealt with to ensure that people were relocated to a safer place. What was needed now was a commitment from the stakeholders that they would work within the confines of the law and fulfil their mandate in their sphere of government to ensure that a long-term solution was realised. The stakeholders were signatories to the implementation protocol which binds them to their roles and responsibilities to achieve a long-term solution.

In the words of Mandela, ‘we do not care whether the cat is black or white, as long as it catches the mice.’ So all the nitty-gritty details like the red tape reduction index must be applied by the City where it is applicable to ensure that the process is expedited. In the last meeting, the Committee had asked the HDA to present an implementation plan with milestone projections. Where was that plan? The plan would have given an indication of whether the plan would be implemented before some of the parties to the meeting were long gone. What was key was that there must be a commitment so that whoever comes after and takes over must continue the process that had been started.

A rezoning application was submitted on 7 August for the land of Langa only. When would the rezoning application for the Makhasa land be submitted? These were the answers that the Committee was looking for, not excuses about how incapable they were of working as a unit. The Committee needed to come out of this meeting with the sense that the parties in dispute were still committed to a long-term solution.

Were both the Mayor and the Minister of Human Settlements still committed to finding a long-term solution within the confines of the law as per their mandate and responsibilities regarding the implementation protocol? Were they working towards achieving the desired outcome in ensuring that the money allocated for the relocation land purchase would be used for that very purpose?

Would the negotiations be concluded in time? Could the Mayor explain what the nine months for rezoning entailed? Was it necessary to have a public participation process for three months? People had lost their lives due to the shooting that had happened in Philippi and Nyanga, so one could not play politics on this matter. There must be a sense of urgency, and the presentations today failed to declare the rail line an emergency.

There was an outstanding court order on 27 November. What would happen if the situation was not resolved by that date? Was the City of Cape Town still adamant that this situation did not warrant an emergency? If so, why? Had they done everything possible to ensure they considered declaring this an emergency? People were yearning for a better life. The Committee could not be told about the laws and regulations it was the custodian of. If the political will existed, there were ways to circumvent the law within its confines. The City of Cape Town had not demonstrated the political will to attend to the plight of Philippi and Khayelitsha.

Ms B van Minnen (DA) said that the dispute was synthesised. The City of Cape Town was the only stakeholder in the matter that had stuck to its mandate and was doing what it had committed to do. Government was bound by legislation and regulations, and the City had explained clearly why it was following the path that it was following. In terms of the situation, cause and effect could not be divorced. The cause of this issue was PRASA. In October 2019, everyone woke up to the reality that people were living on the rail line in Philippi. This was four years ago. Why had nothing happened in four years? Why were people being forced to pay exorbitant taxi fees to get to the City of Cape Town? The answer to all these questions was PRASA.

It was difficult to understand why the inaction of PRASA over four years should only now be considered an emergency. The City of Cape Town had an enormous claim from people needing housing and who qualified for emergency housing. Why was a situation created by an agency that was unable to protect its own assets considered an emergency?

In terms of the law, did it comply with the emergency housing requirements? Why were they sitting in a situation where there were agreements, plans, and a protocol laying out everyone’s actions? Yet, parties were trying to synthesise an emergency to try and move the situation forward. In contrast, had this situation existed for over four years and was caused by the action described?

Ms N Makamba-Botya (EFF) held that based on the presentations, it appeared as though the Committee was being presented with delaying tactics, specifically from the City of Cape Town, which had returned the funds which had been secured to acquire land to the Department. The City was also not without land. It had pockets of land throughout Cape Town.

Was no feasibility study done for this whole project in terms of timeframes? In each project that one commits to, one must have turnaround times that give some guidance on when each phase of the project should be completed. If there had been such a study, it would have factored the issue of time into the rezoning matter. What was the reality, because it seemed that everyone who was a party to the protocol was working in silos? No one seemed to understand their responsibility. When would this project be completed?

The Chairperson said that the implementation protocol called for establishing a steering committee. When last did the steering committee meet? What were its decisions? The issue of working in silos had been raised in the last meeting, and there was a recommendation against working autonomously. Whilst everyone had a responsibility and a function designated to them, ultimately by virtue of the implementation protocol, the stakeholders were expected to work as a team. This had become material in the context of the dispute.

How did a dispute arise when a steering committee was supposed to be in place? The functionality of the committee was critical, because it formed the basis of commitment. Scopa’s function was to hold it accountable to its own commitments. The Committee had made no determination as to what the functions should be -- that was its own prerogative in response to an eventuality that was undesirable on many fronts. The situation had come to this because there was a vacuum in cooperation. The assumption from the last meeting was that stakeholders were going to meet, get their ducks in a row and start cooperating. Almost six weeks later, they were still in silos.

There were two processes at play. There was a commitment that Bhekela would run its course. Bhekela must not be entrenched as a long-term reality because of an inability to finalise matters on the other process. The risk was that Bhekela would become a coping mechanism if one do not resolve matters, which were for the long-term relocation of inhabitants on the rail line. Bhekela must happen, but it could not be open-ended. Was it not possible to withdraw or suspend the dispute and allow for a far more cooperative intervention of discussions amongst those involved? The dispute only added another layer to an already convoluted situation.

Could this dispute not be resolved by the steering committee which had signed the implementation protocol, or had it failed to do so? If not, then could one go to the Minister of COGTA for a speedy intervention in response to the dispute? They should talk to each other and not past each other, because what may happen was that they would start to engage in legal gymnastics while the problem remained unresolved. 

If there was a sense that there was cooperative governance, then it must be demonstrated that it truly existed for the purpose of progress. The dispute also placed the Minister of Finance in a difficult position. How long must this rollover be sustained amid competing national priorities if it was to arise? The longer the dispute plays out, the more complicated it would become, because many more people would settle at the Bhekela site because services were being provided there. This would eventually lead to the relocation of even more people. Procrastination and delays would not serve this process in any way.

Responses

Department of Human Settlements

Minister Kubayi clarified that the City did not request a rollover of the R50 million. The City had surrendered the money back to the National Treasury so, as it stands currently, the money was back. If it was a rollover, the consequences would have been different. For the Department to fulfil its mandate as requested, based on the protocol lawfully, the City would need to cooperate with the Department.

When the Department discussed the role of the HDA with the City, it proposed that instead of surrendering the R50 million, they could transfer it to the HDA so that the HDA could implement and purchase the land. The City did not agree to this proposal. National Treasury had explained that they could not transfer money directly to municipalities. The money the Department had made available was part of the division of revenue and equitable shares in the municipalities.

The Mayor had stated in this meeting that the City was not prepared to purchase land for this particular project. They were prepared to play their role as a regulator. The problem was that the Department had no tool besides the municipality, but the City rejected cooperation. The steering committee had discussed the dispute. Before the Mayor surrendered the money, it had convened in a virtual meeting and the Mayor had explicitly refused to cooperate.

There were no available funds for the project from the Department's side because that money had been surrendered. The Department would have had to re-approach National Treasury and start the process from the beginning to ensure that funds were available for this project. The Mayor had applied for a rollover of the R61 million so that they could utilise the money for services, including temporary services for the current situation.

The Department did not go to the Minister of COGTA in the spirit of being uncooperative. The only mechanism that the Department had was to attempt to get the City to see that the funds, through the grant framework, could be allocated only through the City itself. The dispute could run parallel to Operation Bhekela if the City could commit today to assist, and the dispute would then fall away. Without the City’s cooperation, there was no other way for the Department to intervene.

The Department would remain willing but unable practically to implement the work it had committed itself to in terms of Operation Bhekela, because it had to comply with the requirements of the grant framework. If there was no money allocation, nothing could be done. When one makes an application for land rezoning, one must show that one had made the purchase for that land, because one cannot apply for rezoning of land one was not entitled to. Therefore, the proper steps were to purchase the land first and then apply for rezoning. Since the Makasa land had not been purchased, an application for rezoning could not be submitted for that land.

Amidst the dispute, what the law allowed stakeholders to do was the need to provide temporary solutions for now, because there was consensus that human rights services must be provided, and that was being done in the interim. There was standardised regulation for the delivery of services, but to ensure that the dignity of households was preserved, the DHS provided on a ratio of one to five. When it found no compliance with this ratio because 15 families were sharing one toilet, it agreed to make more funds available. The City had incorporated this service into the R61 million.

The Department did not want to dwell on PRASA's mistakes, particularly because PRASA was now committed, with the assistance and intervention of the various stakeholders, to get the rail line working. This was good news, and they must be supported so that the DHS could reduce the burden on households without alternatives when commuting to the City. On the issue of emergency housing, it was the Minister of Human Settlements that determined the emergency.

A directive had been issued which was ignored by the City. Human settlements was a unique environment, and its challenges and the Department’s response must be agile and context-specific, especially when one considers the plight of the most vulnerable. This was why the policy was created -- so that the Minister of Human Settlements could determine emergency areas regarding human settlements.

What had been raised with the stakeholders was that they should have gone to the City, applied for the land and utilised section 68, which then obligates the City to process the application differently and more quickly. There had never been an instance where either the province or the municipality did not cooperate with what the Minister determined. This was the first instance where the municipality had acted contrary to the determination made by the Minister.

For the Committee to rest assured that there was a long-term implementation plan, the City must include the PRASA rail line in their business plan. If the rail line was not included in its business plan, there was no possibility for a long-term implementation plan. This was the reason that the Department had conditionally accepted the City’s business plan.

The City must comply with the ISUP requirements of the grant framework for full approval to take effect. The dispute mechanism was part of trying to solve the specific issue of the conditional approval, because the Minister of COGTA was responsible for the functioning of municipalities. If the City did not comply, then the Department would be forced to withhold the other funds they had requested, but due process must be followed before that could be done.

On the issue of the Ithemba laboratory close to land considered for relocation, the lab was a science field. They do quite advanced experiments. The Department would not want to expose communities to the potential danger of sleeping next to a site that carries out experiments that may compromise the health of community members. The land must be closed and disregarded as potential land for relocation.

The Department hoped it had explained the rationale for the dispute, which lies in the fact that the City had refused to recognise the powers of the Minister in determining the priorities of human settlements in the country. It was not that the City could not purchase land. Regarding the ISUP grant and the Urban Settlements Development Grant (USDG), the City could purchase land while simultaneously maintaining its position as a regulator. The question was why the City was refusing to purchase land when the Department had stated that there was money that had been made available for it to do so.

City of Cape Town

Mayor Hill-Lewis explained that there was a solution that came in two phases. The first phase was Operation Bhekela, designed to offer a temporary and immediate emergency solution that could allow the trains to run as soon as possible. It was a positive and proactive approach, and it was what the City had proposed to PRASA under the former CEO of PRASA after the elections in 2021. The second phase was the rezoning application for the permanent relocation, which the City had received on 7 August.

It took approximately two years to do a basic rezoning in Cape Town. It was a very extensive process. It required several rounds of public participation. It had to go to the full council. The nine months they had agreed on was an expedited process. The nine months excluded any appeal from the community or any litigation. Communities in Cape Town were very litigious, which was why the City had to ensure that it went through every step of the process with a fine-tooth comb and stick to exactly what the planning regulations and legislation required. This second phase had begun, and it was being implemented. There had been good cooperation between all the parties involved, and they regularly met in the steering committee.

The dispute declared by the Minister was unfortunate and unnecessary, and it would slow down the progress that the Committee had called for significantly, because the intergovernmental dispute process was a very long and slow process. There was nothing in the implementation contract that all the parties had signed that the City had not done. They had committed to providing services to the communities once the settlements had been established. The City was already delivering basic services on the railway line. Once Operation Bhekela was in phase two, the City would also deliver basic services in that rail reserve.

The City would not purchase the land for the permanent relocation. There were servitudes around the City which were illegally occupied, and the City needed to find land for those relocations. People living in city-owned wetlands and stormwater detention ponds must be relocated to appropriate and habitable land. Eskom was on the City’s case about the illegal occupants on their land. The list goes on and on.

The City refuses to purchase land for this project because there was no place in Cape Town where the City had bought land for a state-owned entity to do a relocation programme. There was no other metro that had done so either. The City could not take on the responsibility of finding land on behalf of another government entity allowing an illegal occupation of their property. The City would remain in its lane, which concerns planning regulations and basic services. If all stakeholders stick to their lanes, progress would be made. The City had a separate and delineated responsibility from the Department of Human Settlements in law and in the implementation protocol. The City was sticking to its end of the bargain in the implementation protocol. The City's plea was that all the parties to the protocol stick to their lanes.

On the R50 million issue, the City did not return the money because it could not spend it. The money was returned because it was earmarked in the Minister’s letter for land purchase, and the City was not making a land purchase for this project. The R61 million was being used for basic services.

It was not true that the money had to go via the City. The HDA had already purchased the first piece of land in Philippi by itself. The application currently with the City was on a piece of agriculturally zoned land purchased directly by the HDA. This meant that the HDA could buy land directly for this purpose. When the implementation protocol was signed, it was signed with the understanding that the HDA would be the purchaser of the land for the project. This was why the City was not responsible for purchasing land regarding the implementation protocol in clause 9(3).

The Department of Human Settlement could use the HDA to make land purchases, but they also had another tool at their disposal, which was the parliamentary appropriation system. It was possible for the adjustments budget to make an appropriation for the purchase of land for the HDA. This was probably the simplest tool for the Department to utilise. National Treasury was now in possession of the money since the City returned it, so nothing stopped the Department from making an adjustment allocation for the HDA under the normal parliamentary process.

On the issue of timelines, the City gets sued at least once a week on a planning decision that it takes. Sometimes, the cases take years to resolve, so the City’s planning Department must be fastidious in applying the planning legislation to the letter. All it takes is one resident to lock the project up in court for five years. When the application is received, the City switches gears and puts on its hat as a planning regulator. There was a case to be made to pursue extra public participation to ensure that no one could make a case later down the line that accuses the City of sidelining the community. 16 legislative steps must be taken in terms of a rezoning application. This land was zoned for agriculture. The national and provincial Minister of Agriculture must sign off on an agricultural rezoning.

The first custodians of the project made commitments to the public that they knew they could not fulfil, and they were dishonest because there was no proper feasibility study. The application of the law was never an excuse. The application of the law was a requirement of every public official and citizen.

Regarding the Steering Committee, its last meeting was on 1 August. It was also meeting with the National Treasury to discuss funding mechanisms. There was an archive of every meeting and the minutes precisely for the reason that where there were allegations of non-cooperation, the City could prove the opposite by referring to the minutes.

The Minister had stated that she issued a directive declaring an emergency. That directive did not comply with the law. The definition of an emergency in law was not a scenario that was four years old. It was also not something that was temporary in nature. The Minister had asked the City to apply section 68, which applies to emergencies. Section 68 required that the relocation be temporary. This relocation was supposed to be a permanent solution. It would have been unlawful to relocate the inhabitants of the Central Line under the pretence of it being a temporary relocation, whereas it would not be a temporary relocation. This would have immediately been challenged, and the City would have lost in court.

When the City insisted on applying the law, that did not mean that it was being uncooperative -- it simply meant that the City was applying the law. When one acts in any other fashion in government, one quickly finds out that one would lose in terms of the law. On the business plan requirement, the Minister was aware that the requirement was that the project must be implementation-ready. This project was not implementation-ready in the current financial year, because, at the minimum, they were dealing with a nine-month rezoning process.

At the last steering committee meeting, the City had stated that by the 2024 financial year, the project would be implementation-ready. The Minister would have been very upset had the City put an item in their business plan and not delivered it in that same financial year, because it would have reflected as an underperformance on their business plan. The City was the highest spending metro. The project would appear in the City’s business plan when it was ready for implementation. It was not ready, because the rezoning application was submitted only two weeks ago.

Department of Public Works and Infrastructure

Minister Zikalala asked Scopa to investigate whether the regulatory and compliance issues were implemented equally amongst all people and entities, because it was possible that others may be treated favourably. Their issues would be attended to with speed whilst the requests of the poor were prolonged. It was a trend in the Western Cape, including Cape Town, that issues of the poor were not prioritised. There were more than 30 forest villages that the Department was dealing with.

The Department attempted to allocate them to various municipalities to improve their conditions. The Mayor’s excuses demonstrated how the life of the poor did not matter to the City. The Department had attempted to allocate a list of various forest villages to the City, but they had blatantly refused to include them in their budget. This was a historic issue.

When municipalities were not implementing their mandate and cooperating with national departments, the government and the departments must intervene and take over. What was most important were the services that citizens were entitled to, rather than the petty politics that had preoccupied the parties in this meeting. One could conclude that the Mayor did not prioritise the inhabitants living on the rail line. The Mayor could wait a year and then come along and play politics, accusing everyone else. An investigation by the Committee was necessary.

Department of Transport

Mr Lisa Mangcu, Deputy Minister of Transport, confirmed that what had brought the stakeholders together was not under dispute. He emphasised that the Department was excited about everyone’s commitment to Operation Bhekela. The Operation was moving, with the intervention of the two-to-three-week assessment to ensure that the lives of the inhabitants were secured in whatever temporary fashion was being discussed.

There was a sense of hope that a long-term solution would be found, because, ultimately, if Operation Bhekela was the only pursuit, many more inhabitants would still be left out and unaccommodated along the rail reserve. The Mayor had alluded to the issue of the steering committee meeting. Indeed, it had been meeting and these meetings had taken place twice or three times after Scopa had raised concerns. Whether they were producing what Scopa wanted was a different debate on its own.

Department of Human Settlements

Minister Kubayi clarified the issue of land purchasing. The HDA utilised its reserves for the purchase of land. This was why they were looking for reimbursement. The Department had gone to National Treasury, and the steps it had taken were based on discussions that had been ongoing with National Treasury. This was why the Department was appealing to the City to cooperate.

In the implementation protocol, it clearly stated that the City would cooperate and facilitate the purchasing of land. The HDA would purchase, but the City had a responsibility to help facilitate. Facilitation in terms of the agreement meant that the City of Cape Town would apply to National with their business plan and their funding request. Within the grant framework, the implementing agent was the HDA, which could purchase but the funds had to come through the City.

Another clarification was that the City of Cape Town was not number one regarding the highest spending metro -- it was number three. Buffalo City was number one.

Further discussion

The Chairperson concluded that they were making progress backwards when all was said and done. The only positive development was insofar as Bhekela was concerned. There was a commitment to Bhekela, and an assessment being made on the relocation site in the next two to three weeks. Otherwise, he was sitting there as the biblical Thomas, full of doubt because there was no sense of assurance that beyond Bhekela, there was movement.

Mr Hadebe acknowledged that there was a willingness to avail funds for land purchase, but the issue was whether the City or the HDA did the purchasing. Seeing that the City was playing politics and was adamant that it would not budge, could that R50 million be transferred to HDA for the same purpose that ought to have been done by the City of Cape Town so that the HDA could purchase a second piece of land to enable the long-term plan to kick-start? There were capacity and legislative processes that enabled cities to purchase land, but in this case, the City was unwilling to do so.

Mr Somyo asked the Minister of the Department of Human Settlements if she could transfer the money to the HDA so that it could make the purchase, since the City was not interested in making the purchase.

Ms Mente remarked that she could not understand why it was difficult for the Mayor and the Minister of Human Settlements to exchange notes between themselves prior to the meeting, instead of bringing their squabbles to the Committee. That the steering committee was an effective body, as the Mayor had suggested, was not convincing because that was the level where all these technical issues should have been discussed. Instead, the Committee had been made privy to a competition over who had better facts than the next.

Ordinarily, Bhekela was not supposed to be the mechanism to solve the issue of the inhabitants settling on the rail line. Minister Chikunga had characterised the Operation well by stating that it was an implementation plan generated from her frustration. According to human rights, that was not supposed to be the plan. When Minister Kubayi said that she did not agree with Bhekela, she was also correct because it should not have been the response to the people’s protest. That protest was supposed to be responded to by asking how one was going to give them a proper human settlement. The Bhekela process was only an emergency process, nothing more than that. The Minister of Public Works said he had land, so let him give you land, Minister Kubayi.

The Chairperson commented that it could not be said that progress had been made to the extent that it responded adequately to the plight of the inhabitants. For Minister Kubayi, the question remains what in law prevents the HDA from purchasing land, and what in law prevents money from being transferred to the HDA for the purposes of purchasing land? The key question here was the land.

He told Mayor Hill-Lewis that section 192 of the protocol must be brought to his attention, because it places the responsibility of consultations with him on this matter. The implementation protocol makes all the stakeholders jointly and severally accountable for its implementation in its entirety. There could not be an implementation that places them in silos. At the end of the day, this issue was going to bleed into the fiscus. It served no one to have a PRASA that could not perform its function and it was mutually beneficial for everyone for PRASA to function, including PRASA itself.

It would be a missed opportunity for accountability, and it would be wholly reckless, if not fundamentally irresponsible, if the board members who took the decision that had created these circumstances were not pursued up till now. For the purposes of consequence management, the blame casting must follow a particular route of consequence management whilst they attempt to solve these issues. Otherwise, these people would be deployed elsewhere, whereas they were delinquent directors, so a particular process must be set in motion.

In the Net1 South African Social Security Agency (SASSA) debacle, the contract was found to be irregular by the Constitutional Court, but the then Minister of Social Development had applied for an exemption to say that he accepted that it was irregular but if it was cancelled overnight, it would cause a national catastrophe insofar as the payments of grants was concerned, so allow him to continue with it as irregular as it was whilst he regularised the process. Why could that PRASA board not do the very same thing? The courts were not so rigid that they did not recognise the problems that prevailed whilst applying the law. He urged the Minister of Transport and the CEO of PRASA to pursue those people and hold those who had failed accountable. The Minister of COGTA could also be engaged insofar as she would deal with the dispute if it continues.

Minister's response

Minister Kubayi said that currently, there were no funds in the HDA. It was legally an institution that could purchase land but needed the money. The Department had approached National Treasury to request the money. The request had been unsuccessful. The issue was that when HDA buys the land, it buys the land on behalf of someone. HDA was not allowed to be the holders of the land. Therefore, they could buy but the land still needed to be handed over to the City or to the province. The Department would return to National Treasury after due process had been complied with and all the requirements had been exhausted. If the Minister of Finance responded positively, the Department would look at the implementation plan based on the time the money would be with the HDA. The City had left the DHS stranded with communities to answer to time and time again, so it was important to be transparent while pursuing the wisdom of the Committee and the steering committee.

Closing remarks

The Chairperson noted his appreciation for Minister Kubayi’s indulgence on the critical questions posed. The Committee would await outcomes from the National Treasury, and would also advise the Minister of Finance on the course of action that Minister Kubayi was engaging in, which had arisen out of the Scopa processes.

Since there was an assessment that must be done in two-to-three weeks, the next meeting would be on 20 September for the purposes of receiving an update on whether the assessment had been done, and whether the processes with Treasury insofar as the HDA and the legal complexities and ownership had been resolved. It could even be a virtual meeting.

The Chairperson pleaded with the stakeholders to implement their protocol. Having to "baby-sit" such big Departments and the municipality would be a tragedy.

The meeting was adjourned.