DailySun
Residents of Bromwell Street in Woodstock celebrated on Friday following a crucial court decision after eight years of fighting against eviction.
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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Read: Cape Town’s new plan for inner-city housing
As it stands, the city’s plan does not cater to the urgent need for temporary emergency accommodations in the inner city and fails to consider the circumstances of those at risk of eviction, especially those who have resisted forced removals under various Group Areas Acts for years.
A property development company acquired the six neighboring Bromwell Street cottages for R3.15 million in 2013. Although the city proposed alternative housing for residents, these locations were situated far from the city center, where many residents work and children go to school.
Capetonian Charnell Commando shares her relief upon hearing of the Constitutional Court’s decision favoring Bromwell Street residents. Image: Matthew Hirsch, GroundUp
In 2021, Judge Mark Sher of the Western Cape High Court deemed the city’s emergency housing program unconstitutional, ordering the city to provide housing as close as possible to Bromwell Street for residents in Woodstock, Salt River, or the inner city.
However, this ruling was later reversed by the Supreme Court of Appeal (SCA), which stated that Judge Sher’s judgment lacked clarity in identifying the invalid features of the program that needed adjustments.
The court also stated that it could not mandate how the city allocates its budget for housing initiatives.
Nevertheless, the SCA acknowledged it would be “just and equitable” for the residents to secure temporary emergency accommodation “in a location as close as possible to where they live” and highlighted the need to treat them with dignity and consideration.
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The residents, supported by the Ndifuna Ukwazi law center, brought their case before the highest court.
Justice Rammaka Mathapo, representing the majority view, pointed out that the implementation of the emergency housing program occurred in the context of gentrification in neighborhoods like Woodstock and Salt River, a process facilitated by the city through tax incentives.
“The critical question is whether a municipality’s constitutional obligation to provide temporary emergency housing extends to doing so at a particular location… and whether the city acted reasonably in designating the emergency housing locations, which were approximately 15 kilometers away and primarily outside the inner city and its vicinity,” Justice Mathapo remarked.
He noted that the residents contended in the apex court that the SCA focused on the wrong issue – the critical inquiry being whether the city acted reasonably by entirely excluding temporary emergency housing from the inner city, as opposed to merely addressing social housing.
They argued that the court had misconstrued the detrimental effects of gentrification, which forced the removal and displacement of residents to informal settlements far removed from the city center, adversely affecting their dignity and reinforcing spatial apartheid.
Inconsistencies
The residents claimed the high court’s invalidity declaration was limited, and the SCA did not sufficiently define which elements were inconsistent.
In contrast, the city argued that the appeal should not proceed.
The City of Cape Town maintained that its housing program was reasonable and that being mandated to seek more locations within the city would mean diverting resources from social housing programs better aligned with the inner city.
Justice Mathapo confirmed the court’s jurisdiction to address this matter as it involved constitutional rights pertaining to dignity, freedom, security, and privacy.
The resolution of the issue held significance for the public good and interest.
Judicial concern
“Presently, the law does not grant evictees a right to emergency housing at a specified location. Nevertheless, the jurisprudence regarding access to adequate housing has evolved over the years, rendering the alleviation of poverty a legitimate concern for the judiciary,” he remarked.
“When assessing the reasonableness of a set of measures, they should be considered within their social, economic, and historical contexts. A housing program must be comprehensive, contemplate all societal groups, and remain adaptable to appropriately tackle housing emergencies along with short, medium, and long-term necessities.”
He stressed the importance of prioritizing the needs of the most vulnerable populations, asserting that the location of temporary emergency housing is “paramount.”
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While recognizing limited state resources, Justice Mathapo indicated that the city’s broader “spatial transformation project appears to be an ill-conceived initiative rooted in maintaining spatial segregation and notorious influx control, attempting to inexplicably ‘preserve’ the inner city while marginalizing impoverished individuals.”
‘Untenable’
“The gentrification strategy seeks 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 this strategy as “untenable.”
“Emergency housing plays a critical role in averting homelessness and mitigating immediate crises. The city’s failure to allocate adequate resources in this area diminishes the right to adequate housing for vulnerable communities.”
Justice Mathapo asserted that the city possessed sufficient resources but had directed them towards developing social housing, which, while necessary, should not infringe on the human rights of others.
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He underscored that the Bromwell residents were not unlawful settlers; instead, they were legal rent-paying tenants now facing the prospect of being relocated 15 kilometers from the city, dismissing the practical challenges this would entail, such as severing their community ties and social networks and losing access to essential services.
Reminiscent of District Six
Displacing vulnerable individuals from the city is a regressive act, particularly given South Africa’s history, and is “reminiscent of the devastation witnessed in the nearby District Six.”
“The city was aware that most residents would not qualify for social housing or receive such housing yet proceeded to disregard their needs and circumstances. It is inappropriate to prioritize social housing while completely neglecting emergency housing within 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 resided in their homes for generations and endured forced removals during apartheid. It is unconscionable that, in this new democracy, residents must confront the humiliation of displacement reminiscent of apartheid when they have valiantly fought to retain their homes,” Justice Mathapo articulated.
He declared the city’s execution of its program unconstitutional, providing the reasons and directing the city to create a reasonable temporary emergency accommodation policy in accordance with these findings.
Justice Mathapo mandated the city to offer the residents temporary emergency accommodation in the inner city as close to Bromwell Street as possible, stating that eviction cannot occur until this provision is fulfilled, and ordered the city to cover the costs of the application.
In a dissenting opinion, Justices David Bilchitz and Alan Dodson concurred with the majority ruling but would have additionally mandated the city to engage in meaningful discussions 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” requiring 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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