Illegality, Marginality and Transforming the (South) African City: The Potential and Limits of Legal Rights

As African cities modernise, globalize and transform, attention needs to be paid to the manner in which poor and marginalised urban inhabitants are accommodated, both within the physical city and within urban management, laws and policies. In African cities, this especially requires a rethink of legal and urban management approaches towards informality, particularly where such informality overlaps with other instances of marginalised status (such as immigration status). This paper considers the limits and potential of current human rights and constitutional law approaches to marginalised persons, in bringing about more diverse, tolerant and inclusive African cities, in accordance with the principles underlying the so‐called “right to the city”. Its particular focus is on South African constitutional and human rights jurisprudence, as well as on how this jurisprudence have responded to, and played out in relation to, challenges around informality and marginality in South African cities. Focusing on those whose very presence in the city renders them illegal or unwanted (such as undocumented migrants), as well as those who fall short of urban behaviour codes in the ways in which they make use of the city to sustain their livelihoods (such as, for instance, informal traders, sex workers and beggars), the paper assesses three strands of South African human rights jurisprudence (namely equality jurisprudence, jurisprudence eking out a right to urban public presence and jurisprudence vindicating a right to a livelihood) in an attempt to illustrate how legal rights can at once enable and constrain the transformation of African cities. The paper forms part of an overarching project in which the author considers the use and impact of rights‐based litigation in the quest for urban transformation in the developing world, with a particular focus on Johannesburg, South Africa.