Concourt win for Cape Town residents facing eviction

Charnell Commando cries with relief after hearing that the Constitutional Court had ruled in favour of Bromwell Street residents on Friday. Photo: Matthew Hirsch

Residents of Woodstock’s Bromwell Street, who have waged an eight year legal battle to stop them from being evicted from the houses they, and generations before them, have always called home, celebrated on Friday.

This after the Constitutional Court barred their eviction until the City of Cape Town has developed a new housing programme, incorporating transitional housing.

At present, the City’s programme does not make any provision for inner-city temporary emergency accommodation, and does not consider the circumstances of people, particularly those who face eviction and the very few who, for years, have resisted forced removals under successive Group Areas Acts.

The six adjoining Bromwell Street cottages were bought by a property development company, for R3.15-million in 2013. While the City offered alternative accommodation to the residents, these were in areas far from the city centre, where they work and their children go to school.

In 2021, Western Cape High Court Judge Mark Sher declared the City’s emergency housing programme to be unconstitutional and directed the City to provide the residents with housing in Woodstock, Salt River, or the inner city, whichever was as near as feasibly possible to Bromwell Street.

But this was later overturned by the Supreme Court of Appeal (SCA) which said Judge Sher’s ruling could not stand because it did not identify the extent of the invalidity of the programme in order for the City to rectify it.

A court could also not dictate to the City how it spent its money on housing programmes, the court said.

But in spite of this, it said it would be “just and equitable” to order that the residents should be provided with temporary emergency accommodation “in a location as near as possible to where they reside” and that they must be treated with dignity and care.

The residents, supported by the Ndifuna Ukwazi law centre, then took the matter to the apex court.

Justice Rammaka Mathapo, writing for the majority of the court, said the implementation of the emergency housing programme was in the context of the gentrification of areas, such as Woodstock and Salt River, which was encouraged by the City and supported by tax breaks.

“The key issue is whether the constitutional duty of a municipality to provide temporary emergency housing extends to making it available at a specific location…and whether the City acted reasonably in its determination of the locality of the emergency housing offered, which was some 15km away and, importantly, outside the inner city and its surrounds,” Justice Mathapo said.

He said in the apex court, the residents had argued that the SCA had answered the wrong question - the correct question was whether the City had acted reasonably in entirely excluding temporary emergency accommodation, as opposed to social housing, in the inner city.

They also submitted that the court had misunderstood the negative effects of gentrification, a policy which had the effect of forcefully removing and displacing residents from their homes to informal settlements far from the city centre, with deleterious effects on their dignity, thus entrenching spatial apartheid.

The declaration of invalidity by the high court, the residents said, was limited in its scope and the SCA did not identify which aspects were inconsistent.

But the City said the appeal should not be entertained. It said its housing programme was reasonable and if it were compelled to find space elsewhere in the city, it would redirect its resources from social housing programmes which were better suited to the inner city.

Justice Mathapo said the court had jurisdiction to hear the matter because it raised constitutional issues of rights to dignity, freedom and security of people and privacy.

Determination of the issue was of public importance and in the public interest.

“Presently the law does not provide evictees with a right to emergency housing in a specific location. However, the jurisprudence on the right of access to adequate housing has progressively developed over the years, such that the redress of poverty has now become a legitimate issue of judicial concern,” he said.

“In determining whether a set of measures are reasonable, the measures ought to be scrutinised within their social, economic and historic context. A housing programme must be balanced, consider all sections of society, be flexible and be able to reasonably respond progressively to housing crises and short, medium and long-term needs.”

He said the needs of the most vulnerable groups had to be given weight and locality was “paramount” in the provision of temporary emergency housing.

While limited state resources played a role, the City’s broader “spatial transformation appears to be a thoroughly misguided and ill-conceived project rooted in the perpetuation of spatial segregation and infamous influx control, in an attempt to inexplicably ‘preserve’ the inner city by marginalisation of poor persons,” Justice Mathapo said.

“The gentrification policy seeks to achieve that which the forced removal policy of apartheid failed to achieve and destroy one of the only communities that had managed to resist removals from ‘white’ Cape Town under apartheid,” he said, describing it as “untenable”.

“Emergency housing serves as a crucial intervention to prevent homelessness and mitigate immediate crises. The failure to allocate adequate reserves by the City (to this) undermines and infringes upon the right of access to adequate housing for these vulnerable communities.”

He said the City had adequate resources because it was using them to create social housing; that was important but should not come at the expense of the human rights of others.

The Bromwell residents, he said, did not settle on the land unlawfully. They were lawful rent-paying tenants who were now expected to move 15km out of the city with no regard to the practical challenges of that, such as destroying their communal and social networks and depriving them of basic amenities.

Forcing vulnerable people out of the city was a retrogressive measure, particularly in light of South Africa’s history, and was “reminiscent of the ravages wreaked upon the nearby District Six”.

“The City was aware that the vast majority of the residents would not qualify for social housing or be allocated such housing, yet it proceeded to disregard their needs and circumstances. It is wrong to give preference to social housing and totally neglect or ignore emergency housing in the inner city.

“The City seems to have placed more emphasis on the gentrification programme and failed to take into account considerations of spatial justice, evictions and displacement of residents from the homes they have occupied for many generations, having survived apartheid forced removals. It is unconscionable that residents should now, in the new democracy, face the ignominy of apartheid-style displacement when they had fought gallantly to remain in their properties,” Justice Mathopo said.

He declared the City implementation of its programme to be unconstitutional, setting out the reasons why, and directed the City to develop a reasonable temporary emergency accommodation policy in line with these reasons.

He directed the City to provide the residents with temporary emergency accommodation in the inner city as close to Bromwell Street as possible, directed that they cannot be evicted until such time, and ordered the city to pay the costs of the application.

In a minority judgment, Justices David Bilchitz and Alan Dodson, said they agreed with the order of the majority, but would have also ordered the City to engage meaningfully with the residents on location proposals within four months “in a process in which they would be treated with dignity”.

They would have also added in a “supervisory order” requiring the city to court back to the court on progress.

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