On Friday, the residents of Bromwell Street in Woodstock, who have been battling eviction for eight years, celebrated a pivotal court decision.
The Constitutional Court (ConCourt) has halted their eviction until the City of Cape Town formulates a new housing strategy that incorporates transitional housing.
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At present, the city’s initiatives do not cater to the need for temporary emergency accommodation in the inner city, ignoring the circumstances of those facing eviction, especially those who have long resisted forced relocations under various Group Areas Acts.
A property development company bought the six adjoining Bromwell Street cottages for R3.15 million in 2013. While the city proposed alternative housing for residents, these options were situated far from the city center, where residents work and children go to school.
Capetonian Charnell Commando expresses her relief upon learning of the Constitutional Court’s ruling in favor of Bromwell Street residents. Image: Matthew Hirsch, GroundUp
In 2021, Western Cape High Court Judge Mark Sher ruled that the city’s emergency housing program was unconstitutional and ordered the city to provide housing for the residents in Woodstock, Salt River, or the inner city, as close as possible to Bromwell Street.
However, the Supreme Court of Appeal (SCA) later overturned this ruling, stating that Judge Sher’s decision was not valid because it failed to specify the problematic aspects of the program that needed reform.
The court further clarified that it could not dictate how the city allocated its resources for housing initiatives.
Despite this, the SCA acknowledged that it would be “just and equitable” for the residents to receive temporary emergency accommodation “in a location as near as possible to where they reside,” emphasizing the need to treat them with respect and care.
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With the support of the Ndifuna Ukwazi law center, the residents escalated their case to the highest court.
Justice Rammaka Mathapo, representing the majority opinion, highlighted that the execution of the emergency housing program occurred amid gentrification in neighborhoods like Woodstock and Salt River, a process fostered by the city through tax incentives.
“The crucial question is whether a municipality’s constitutional obligation to provide temporary emergency housing extends to offering it at a specific location… and whether the city acted reasonably in deciding the location of the emergency housing provided, which was roughly 15 kilometers away, outside the inner city and its vicinity,” Justice Mathapo remarked.
He noted that residents argued in the apex court that the SCA focused on the incorrect matter – the relevant issue being whether the city acted reasonably by entirely excluding temporary emergency housing, as opposed to only social housing, from the inner city.
The residents contended that the court misinterpreted the detrimental impacts of gentrification, which has driven forced removals and displacement to informal settlements far from the city center, severely affecting their dignity and reinforcing spatial apartheid.
Inconsistencies
The residents pointed out that the high court’s declaration of invalidity was narrow and the SCA did not clarify which elements were inconsistent.
Conversely, the city argued that the appeal should not continue.
The City of Cape Town asserted that its housing program is reasonable and that if it were compelled to seek additional sites within the city, it would need to divert resources away from social housing programs more suitable for the inner city.
Justice Mathapo affirmed the court’s authority in this matter since it involved constitutional rights concerning dignity, freedom, security, and privacy.
The resolution of the issue was crucial for the public and served the public interest.
Judicial concern
“Currently, the law does not provide evictees with the right to emergency housing in a designated location. However, over the years, the legal framework around access to adequate housing has progressed, making poverty alleviation a legitimate judicial concern,” he explained.
“When assessing whether a set of measures is reasonable, they should be analyzed within their social, economic, and historical context. A housing program must be all-encompassing, consider all societal groups, and remain flexible to address housing crises alongside short, medium, and long-term needs.”
He emphasized that the requirements of the most vulnerable populations must be prioritized, and the location of temporary emergency housing is “crucial.”
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While acknowledging the limitations of state resources, Justice Mathapo remarked that the city’s broader “spatial transformation project appears to be misguided, rooted in the preservation of spatial segregation and infamous influx control, seeking to inexplicably ‘preserve’ the inner city while marginalizing impoverished individuals.”
‘Untenable’
“The gentrification strategy aims to accomplish what the apartheid-era forced removal policy failed to achieve, effectively dismantling one of the few communities that managed to resist displacement from ‘white’ Cape Town during apartheid,” he termed as “untenable.”
“Emergency housing is critical in preventing homelessness and mitigating immediate crises. The city’s inability to allocate adequate resources to this area undermines the right to adequate housing for vulnerable communities.”
Justice Mathapo asserted that the city had sufficient resources but was directing them towards developing social housing, which, though important, should not infringe upon the rights of others.
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He pointed out that the residents of Bromwell were not unlawful settlers; they were legitimate rent-paying tenants who are now expected to move 15 kilometers away from the city, disregarding the practical challenges this poses, such as breaking their community and social networks and losing access to essential services.
Reminiscent of District Six
Displacing vulnerable individuals from the city is a regressive action, especially considering South Africa’s history, and is “reminiscent of the devastation seen in the nearby District Six.”
“The city knew that most residents would not qualify for social housing or receive such housing, yet chose to ignore their needs and situations. Prioritizing social housing while completely sidelining the issue of emergency housing in the inner city is inappropriate.”
“The city seems to favor its gentrification agenda over the principles of spatial justice, neglecting the evictions and displacements of residents who have lived in their homes for generations and endured forced removals during apartheid. It is unconscionable that in this new democracy, residents are now confronted with the disgrace of displacement reminiscent of apartheid when they have fought earnestly to retain their homes,” Justice Mathapo declared.
He found the city’s implementation of its program unconstitutional, citing the reasons and instructing the city to create a reasonable temporary emergency accommodation policy aligned with these conclusions.
Justice Mathapo mandated the city to provide the residents with temporary emergency accommodation in the inner city as close to Bromwell Street as possible, stated that they cannot be evicted until such provision is made, and required the city to bear the costs of the application.
In a dissenting opinion, Justices David Bilchitz and Alan Dodson concurred with the majority ruling but would have additionally required the city to engage in meaningful discussions with the residents about potential locations within a four-month timeframe, ensuring they are treated with dignity throughout this process.
They also suggested a “supervisory order” that would require the City of Cape Town to report back to the court on its progress.
© 2024 GroundUp. This article was published here.
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