“Municipalities can and must provide basic services to backyard residents who live on private land.” - Eerste River community leader.
The backyard sector has been providing housing solutions to thousands of families without the necessary recognition and support from the government. Even though this sector plays an essential role in housing provision in South African cities, it is also associated with overcrowding and infrastructure challenges. Due to inadequate support from the local government, access to basic services for backyard dwellers remains a challenge.
Adequate access to basic services such as potable water, sanitation, and electricity is a vital human right that is enshrined in the South African Constitution. Therefore, the government should honour its obligation to provide basic services to all citizens.
Backyarders who live on private land face the challenge of inadequate access to services. In formal settlement layouts, the main house on a property is connected to municipal services like refuse removal, water, sanitation, and electricity. Backyard tenants on these properties typically must access services through the main house as well. Very few, if any, backyard tenants access services independently. As a result, accessing services often causes tensions between backyard tenants and landlords, placing tenants in precarious positions. This is particularly difficult given the uncertainty of many backyarders’ tenancy tenure, which leaves them dependent on their landlords.
In the past, the City of Cape Town’s approach to providing services to its backyard tenants has been exclusively focused on backyarders living on public-owned land. This initiative was rolled out in the 2013/2014 financial year to improve service delivery to existing backyard dwellings at City rental units, by providing households with access to basic municipal services. Cape Town’s new 2022-2027 Integrated Development Plan (IDP) outlines the intention to continue with the City’s initiative of basic service provision to backyard dwellers living on City-owned properties. However, the question of basic service delivery to backyard tenants living on privately owned land remains unanswered.
In response to this silence regarding backyarders staying on privately owned land, the Isandla Institute in partnership with DAG commissioned a legal opinion on the obligations and powers of municipal governments to provide basic services for backyarder dwellers on private land. The legal research found that municipalities have a substantial constitutional and statutory obligation to take reasonable measures to provide services to their residents in respect of potable water supply, domestic wastewater, sewage disposal, and electricity. These obligations also apply to backyard dwellers living on private properties. They furthermore apply specifically to the poor and other disadvantaged residents of the community. The legal opinion also indicated that it was unable to identify any provisions made by the Municipal Financial Management Act (MFMA) that make it impermissible for municipalities to fulfil this obligation by installing basic services infrastructure on private properties where backyard dwellers live.
Recently, following to years of Covid-19 lockdown restrictions, DAG and Isandla hosted their first face-to-face workshop with backyarders and community leaders. The highly engaging and enlightening workshop was attended by 14 female and two male backyard leaders from four Cape Town neighbourhoods, namely, Eerste River, Maitland Garden Village, Lost City, and Freedom Park.
The purpose of this long overdue workshop was to build the capacity of backyard leaders and share information around the legal opinion, which was published by DAG and Isandla Backyard Matters project. The capacitation workshop shared the findings of the legal opinion to empower the backyard leaders in attendance in their advocacy efforts around the issue of inadequate access to basic services.
During the workshop, facilitators from the Isandla Institute explored and unpacked information around the functionality, deficiencies, and opportunities for interventions by the state and private sector pertaining to the often-ignored informal backyard rental sector. This discussion was fed by the insights gained through enumerations carried out by the Backyard Matters Project in eight neighbourhoods across Cape Town in 2021. The day was highly interactive with community participants providing invaluable inputs from their neighbourhoods’ challenging backyard living experiences. The leaders who were present identified a clear need to use the legal opinion to educate and raise awareness in their wards, and to increase the involvement and engagements with their local ward councillors and sub-council managers.
This opportune workshop was one of many of the Backyard Matters engagements aimed at contributing towards an improved understanding of the backyarding sector and at identifying community-centred interventions within it. This workshop created space for backyard leaders to engage and guide the process of using the legal opinion, share around what needs to happen to further improve services in their neighbourhoods, support landlords and tenants as well as improve the quality of this often-neglected sector.
So, ‘Is it legal for government to say we cannot put services in privately owned properties?’ This question and many others were unpacked during the workshop through examination of the South African Constitution and other relevant Acts. And in the case of this question, the answer was a clear “no.” We need to continue to advocate for the provision of basic services to backyarders living on both public and private land across our cities, and the state has a responsibility to respond to the urgent service needs of these residents.