On Friday, residents of Bromwell Street in Woodstock, who have battled against eviction for eight years, celebrated after a pivotal court decision.

The Constitutional Court (ConCourt) has barred their eviction until the City of Cape Town devises a new housing strategy that incorporates transitional housing.

Read: Cape Town’s new plan for inner-city housing

Currently, the city’s initiative does not cater to the need for temporary emergency accommodation in the inner city and neglects the circumstances of those facing eviction, especially those who have resisted forced removals under various Group Areas Acts for many years.

A property development company acquired the six adjacent Bromwell Street cottages for R3.15 million in 2013. Although the city offered alternative housing solutions, these options were situated far from the city center, where residents work and their children attend 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, Judge Mark Sher of the Western Cape High Court ruled the city’s emergency housing program as unconstitutional and ordered the city to provide shelter for residents in Woodstock, Salt River, or the inner city, as close as possible to Bromwell Street.

This decision was later reversed by the Supreme Court of Appeal (SCA), which pointed out that Judge Sher’s ruling did not distinctly outline the invalid aspects of the program that required adjustment.

The court also emphasized that it could not dictate the city’s financial allocations for housing initiatives.

Nonetheless, 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,” stressing the necessity of treating them with dignity and empathy.

Read:
Cape Town extends public comment on sale of old Woodstock Hospital
City of Cape Town starts moving people from CBD streets following court judgment
Cape Town gives green light to new Woodstock social housing project

The residents, aided by the Ndifuna Ukwazi law center, escalated their case to the highest court.

Justice Rammaka Mathapo, speaking for the majority opinion, noted that the implementation of the emergency housing program occurred amidst the backdrop of gentrification in neighborhoods like Woodstock and Salt River, a trend the city has encouraged with tax incentives.

“The key 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 determining the location of the emergency housing provided, which was approximately 15 kilometers away, and significantly, situated outside the inner city and its surroundings,” Justice Mathapo expressed.

He highlighted that the residents argued in the apex court that the SCA addressed the wrong issue – the pertinent question being whether the city acted reasonably by completely excluding temporary emergency housing, rather than just social housing, from the inner city.

They contended that the court had misunderstood the detrimental impacts of gentrification, which has resulted in the forced removal and displacement of residents to informal settlements far from the city center, severely affecting their dignity and reinforcing spatial apartheid.

Inconsistencies

The residents maintained that the high court’s declaration of invalidity was limited, and the SCA failed to define which elements were inconsistent.

Conversely, the city argued that the appeal should not progress.

The City of Cape Town asserted its housing program was reasonable and that if it were pressured to seek additional locations within the city, it would need to reallocate resources from social housing programs better suited to the inner city.

Justice Mathapo affirmed the court’s capacity to address the matter due to its relationship with constitutional rights regarding dignity, freedom, security, and privacy.

The resolution of the issue was significant for the public and in the public interest.

Judicial concern

“Currently, the law does not grant evictees the right to emergency housing in a specified location. However, over the years, the jurisprudence regarding access to adequate housing has developed, making poverty alleviation a legitimate judicial concern,” he noted.

“When assessing whether a set of measures is reasonable, they should be reviewed within their social, economic, and historical context. A housing initiative must be comprehensive, consider all societal groups, and remain flexible to effectively address housing crises alongside short, medium, and long-term needs.”

He emphasized that the needs of the most vulnerable populations must take precedence, and the locality of temporary emergency housing is “paramount.”

ADVERTISEMENT:

CONTINUE READING BELOW

While limited state resources are a consideration, Justice Mathapo stated that the city’s broader “spatial transformation project appears to be a misguided initiative rooted in the maintenance of spatial segregation and notorious influx control, attempting to inexplicably ‘preserve’ the inner city while marginalizing impoverished individuals.”

‘Untenable’

“The gentrification strategy intends to achieve what the apartheid-era forced removal policy failed to accomplish, effectively dismantling one of the few communities that managed to resist displacement from ‘white’ Cape Town during apartheid,” he described as “untenable.”

“Emergency housing is crucial in preventing homelessness and alleviating immediate crises. The city’s failure to allocate adequate resources to this sector undermines the right to adequate housing for vulnerable communities.”

Justice Mathapo stressed that the city possessed adequate resources but was directing them towards developing social housing, which, while vital, should not encroach upon the human rights of others.

Listen/read: Sell your city: Cape Town Mayor Geordin Hill-Lewis

He pointed out that the Bromwell residents were not unlawful occupiers; they were legitimate rent-paying tenants now required to move 15 kilometers away from the city, ignoring the practical challenges this poses, including tearing apart their community and social networks, and losing access to essential services.

Reminiscent of District Six

Displacing vulnerable individuals from the city is a regressive move, especially considering South Africa’s history, and is “reminiscent of the destruction experienced in the nearby District Six.”

“The city was aware that most residents would not qualify for social housing or receive such housing, yet it proceeded to disregard their needs and circumstances. It is inappropriate to prioritize social housing while completely neglecting the issue of emergency housing in the inner city.”

“The city seems to favor the gentrification agenda over the principles of spatial justice, ignoring the evictions and displacements of residents who have lived in their homes for generations and survived forced removals during apartheid. It is unconscionable that in this new democracy, residents must now endure the humiliation of displacement reminiscent of apartheid after valiantly fighting for their homes,” Justice Mathapo elaborated.

He declared the city’s implementation of its program unconstitutional, detailing the reasons and instructing the city to formulate a reasonable temporary emergency accommodation policy in line with these findings.

Justice Mathapo mandated the city to provide the residents with temporary emergency housing in the inner city as close to Bromwell Street as possible, stating that they cannot be evicted until that provision is made, and directed the city to cover the costs of the application.

In a dissenting opinion, Justices David Bilchitz and Alan Dodson expressed concurrence with the majority ruling but would have additionally required the city to engage in meaningful consultations with the residents regarding potential locations within a four-month timeframe, ensuring they are treated with dignity throughout this process.

They also proposed a “supervisory order” compelling the City of Cape Town to report back to the court on its progress.

© 2024 GroundUp. This article was published here.

Listen/read: Housing finance friction

https://iframe.iono.fm/e/1487153

You can also listen to this podcast on iono.fm here.

Stay updated with Moneyweb’s comprehensive finance and business news on WhatsApp here.