Case CCT 49/23
[2024] ZACC 27
Hearing Date: 27 February 2024 (Thursday)
Judgement Date: 20 December 2024
Post Judgment Media Summary
The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.
On 20 December 2024, at 10h00, the Constitutional Court handed down judgment in an application for leave to appeal against the judgment and order of the Supreme Court of Appeal, which upheld an appeal by the first respondent, against the judgment of the Western Cape Division of the High Court, Cape Town (High Court).
The matter produced two judgments. The first judgment (majority) is penned by Mathopo J (Madlanga ADCJ, Chaskalson AJ, Majiedt J, Mhlantla J, Theron J and Tshiqi J concurring), and the second judgment (minority) is penned by Bilchitz AJ (Dodson AJ concurring).
The applicants are collectively referred to as the “Bromwell residents”. The first respondent is the City of Cape Town (the City). The second respondent is Woodstock Hub. Abahlali baseMjondolo (Abahlali) were admitted as amicus curiae.
The Bromwell residents, initially occupied Units 122 to 130A, Bromwell Street, Woodstock (the property) by virtue of lease agreements, and in some cases, in terms of inter-generational leases going back to the era of their grandparents. The property was then purchased for proposed development by Woodstock Hub. This was all done with a view of building residential units for letting at rentals that were significantly higher than what the Bromwell residents were paying. This purchase and proposed development were part of a broader wave of gentrification in the inner city. The Bromwell residents continued to occupy the property even after it was sold. During July 2015, Woodstock Hub instituted eviction proceedings against the Bromwell residents.
On 17 March 2016, an order was granted in terms of which the Bromwell residents were directed to vacate the property by 31 July 2016. Between 3 to 19 September 2016, the Bromwell residents, their attorneys, Ndifuna Ukwazi Law Centre (NU), City officials, and the Executive Mayor engaged in various discussions regarding alternative accommodation options. The City was of the view that the eviction was a “private eviction” which was “just and equitable”, and that they did not have temporary emergency accommodation available but were willing to place the Bromwell residents on the waiting list for such emergency housing, provided they applied and met the criteria.
Considering that the eviction of the Bromwell residents was imminent, an application was launched on 20 September 2016 in the High Court. In its original form, the notice of motion sought an order in two parts; Part A suspending the execution of the eviction orders which were granted, pending the outcome of Part B, in which an order was sought declaring that the City was under a constitutional obligation to provide the Bromwell residents with temporary emergency accommodation in a location “as near as possible” to the property, within three months. The Bromwell residents brought an application for leave to amend their relief to include an order stating that the City’s housing programme and its implementation was inconsistent with its constitutional and statutory obligations. This inconsistency arose from the City’s failure to provide the Bromwell residents and the residents of Woodstock and Salt River, with access to “transitional” housing or temporary emergency accommodation in the immediate city centre and surrounding areas.
The issue before the High Court was whether the City had an obligation to provide emergency housing to persons who would be rendered homeless pursuant to an eviction in the inner city and its surrounds, in particular Woodstock and Salt River. The High Court pointed out that the provision of temporary or “emergency” accommodation to persons who find themselves in situations of crisis or emergency is an accepted part of the state’s obligation to provide access to adequate housing, in terms of section 26 of the Constitution. The High Court, however, made it clear that as a matter of law, neither the Bromwell residents nor any other evictees in the city have a right to demand to be placed in temporary emergency housing in the area or location in which they live. The Court reasoned that the City’s emergency housing programme and its implementation, in relation to persons who may be rendered homeless pursuant to their eviction in the inner city and its surrounds, and in Woodstock and Salt River in particular, was unconstitutional. The City was directed to provide the Bromwell residents with “temporary” emergency accommodation or “transitional” housing in Woodstock, Salt River or the inner-city precinct, in a location which was as near as feasibly possible to where the Bromwell residents were residing, within 12 months of the date of such order.
Before the Supreme Court of Appeal, the central issue was narrowed to whether the constitutional duty of the City to provide temporary emergency housing extended to making temporary emergency accommodation available at a specific location. The City contended that it had identified and adopted a policy that social housing was the most appropriate form of housing for the inner city, and that the High Court erred in ordering it to make available alternative emergency housing in the inner city for the occupiers.
The Supreme Court of Appeal reasoned that the City’s new approach to the housing situation by prioritising social housing over temporary emergency accommodation was in line with the effects of gentrification. It concluded that no case had been made out for the declaration of unconstitutionality of the City’s housing programme and its implementation. Nor had any case been made for the provision of temporary emergency housing at a specific locality. The Supreme Court of Appeal held that an order must be made that accommodation be provided at a location as near as possible to the area where the property is situated, provided that the Bromwell residents still reside at the property and have not voluntarily vacated it.
Before the Constitutional Court, the Bromwell residents raised several principal arguments: First, the Supreme Court of Appeal mischaracterised the constitutional issue as being simply whether the Bromwell residents have the right to demand emergency housing at a specific location. The correct question was whether the City acted reasonably in its determination of the locality of the temporary emergency accommodation offered to the Bromwell families and in excluding temporary emergency accommodation entirely as a housing option in the inner city. They submitted that the policy of the City to exclude emergency housing in the inner city was unreasonable and irrational. Second, they maintained that the constitutional challenge was against the reasonableness of the City’s conduct in implementing its emergency housing plan, and excluding the provision of such emergency housing from housing developments in the inner city and its surrounds.
The City contended that the Supreme Court of Appeal was correct in finding that there is no constitutional obligation to make temporary emergency accommodation available within a specific location. The City asserted that, were it to be compelled to find space elsewhere in the inner city, the effect of the order would be to redirect the City’s resources from the social housing programmes to temporary emergency housing within the inner city, as there is presently no land available for other purposes.
To provide clarity to the “as near as possible” standard, Abahlali suggested that courts ought to define the “as near as possible” range by distance or reference to areas, considering factors like employment, education, healthcare, cultural or community considerations, affordable transport, and available state-owned land. The latter, according to Abahlali, forms part of the components which buttress the adequacy standard in the provision of alternative accommodation.
First judgment
The first judgment found that the matter raised important issues relating to the extent of the constitutional duty of the City to provide temporary emergency housing to persons pursuant to evictions as a consequence of gentrification in the areas of Woodstock and Salt River. Further, the provision of temporary emergency accommodation by the state formed part of the right of access to housing in terms of section 26 of the Constitution. This matter thus engaged this Court’s jurisdiction.
The first judgment held that it was in the interests of justice that the Constitutional Court determine the question of whether the City’s policy of totally excluding the provision in the inner city and its surrounds of temporary and emergency housing was reasonable. Accordingly, leave to appeal was granted.
The first judgment recognised that it is the constitutional duty of the state to arrange its resources in such a way that it was able to realise progressively all the rights that are subject to progressive realisation, including housing rights. It also highlighted that the provisions of section 26(1) are not absolute, but contingent upon the availability of the state’s resources. This meant that a balancing exercise was required in ensuring that the state fulfils its obligations within the confines of its available means. Progressive realisation, in this context, transcended a mere legal standard. It demanded an appreciation of the intricate balance between legislative imperatives and economic realities such as the high costs associated with inner city development and the lack of available land. Ideally, this balancing exercise would also entail a balancing of the emergency housing crisis, with that of social housing development.
The first judgment found that the neglect of emergency housing by the City raised concerns regarding the fulfillment of its constitutional obligations towards vulnerable populations. Emergency housing served as a crucial intervention to prevent homelessness and mitigate immediate crises, particularly for those facing eviction. The failure to allocate adequate resources by the City to emergency housing essentially undermined and infringed upon the right of access to adequate housing for these vulnerable communities. It perpetuated inequality and violated its duty to protect the most vulnerable members of society.
The first judgment held that the City should not hide behind the argument that it was providing social housing in the inner city by disregarding its crucial responsibilities in relation to emergency housing. Moreover, the City’s commitment to long-term social housing plans should not come at the expense of addressing urgent concerns. Therefore, the Constitutional Court could not ignore the City’s failure to progressively realise its constitutional obligation in terms of section 26 as far as emergency housing is concerned.
The first judgment held that the measures adopted by the City suggested an outright refusal to consider emergency housing and a frustration of its constitutional obligation to achieve the progressive realisation of the right of access to adequate housing. Further, that the City’s conduct was unreasonable because it failed to mitigate the effects and consequences of gentrification on the most vulnerable. It, in effect, forced the most vulnerable out of the city.
The first judgment accepted that the City does not have an obligation to prioritise emergency housing over social housing. However, it was incongruous for the City to elect to deliver social housing and absolutely no emergency housing in the inner city. It was wrong to give preference to social housing and totally neglect or ignore emergency housing in the inner city. There was a constitutional obligation on the City to deliver both. Therefore, the City’s conduct fell short of the standard of reasonableness. The first judgment ultimately found that the City’s conduct was unconstitutional as its implementation of the temporary emergency accommodation policy was unreasonable and arbitrary and ought to be declared as such.
For these reasons, the first judgment upheld the appeal and set aside the orders of both the High Court and Supreme Court of Appeal, which were substituted with an order that (a) the City of Cape Town’s implementation of the National Housing Programme was declared to be unconstitutional to the extent that the City (i) unreasonably failed to adopt its own Temporary Emergency Accommodation Policy to be implemented in conjunction with the National Emergency Housing Programme; (ii) declined to consider providing Temporary Emergency Accommodation in the inner city on a blanket basis without considering the circumstances of individuals; (iii) provided Transitional Housing in the inner city for evicted persons who have occupied land in the inner city unlawfully from the outset but did not do so for evicted persons who were former lawful occupiers, such as the applicants; (iv) failed to make provision for any Temporary Emergency Accommodation in the inner city in the face of the foreseeable evictions resulting from the phenomenon of gentrification consequent upon the implementation of the City of Cape Town’s development policies in Woodstock and Salt River; and (v) unreasonably compounded the legacy of spatial apartheid by failing to provide Temporary Emergency Accommodation in the inner city to persons evicted from Woodstock, when its residents had succeeded in resisting forced removals under the successive Group Areas Acts.
The City of Cape Town was also directed to develop a reasonable Temporary Emergency Accommodation Policy to be implemented together with the National Emergency Housing Programme, in a reasonable manner, consistent with this judgment; to provide the applicants with ‘Temporary Emergency Accommodation’ or ‘Transitional Housing’ in Woodstock or Salt River or, failing those, the Inner City Precinct, and, as near as possible, to the property at Units 122 to 130A, Bromwell Street, Woodstock (the property) within 6 months of the date of this order, provided that they are still resident at the property and have not voluntarily vacated it; and that pending the implementation of this order, the applicants could not be evicted from the property.
The City of Cape Town was ordered to pay the costs of the applicants in the Constitutional Court, the Supreme Court of Appeal and in the High Court, including the costs of two counsel.
Second judgment
The second judgment adds complementary legal reasoning to the first judgment in relation to the importance of international law – specifically the International Covenant on Economic, Social and Cultural Rights (ICESCR) – in interpreting the socio-economic rights in South Africa’s Constitution. The second judgment also partially dissents from the first judgment in relation to remedy.
The second judgment found that the doctrine of non-retrogression, as set out by the UN Committee, was applicable to this case. The doctrine recognises that states have an obligation not to take retrogressive measures, which reduce the existing enjoyment of socio‑economic rights. In applying the doctrine, it must first be determined whether there has been a retrogressive measure. If so, it must be determined whether that measure can be justified, which, in the South African context, would involve determining whether the measure is reasonable.
In this case, the City’s policies foreseeably would have resulted in gentrification yet, despite this, the City put in place no measures to mitigate the negative impact thereof which would inevitably lead to a loss of existing access to adequate housing for those most seriously economically disadvantaged. The City’s policies thus constituted a retrogressive measure, which the second judgment found the City was unable to justify. The City also could not adequately explain its differential treatment of those eligible for transitional housing in the inner city and those only entitled to emergency accommodation far away. Thus, the City’s lack of a programme providing for emergency accommodation in the inner city for persons displaced by gentrification was thus unconstitutional.
The second judgment found that the UN Committee’s work expressly recognised that location is a dimension to be assessed when considering whether housing is “adequate”. The Bromwell residents were long-standing residents who had well-established ties to the area – they were reliant on nearby economic opportunities, access in health and education services in that locality and had strong community ties. Providing emergency accommodation far removed from their original homes would thus be inadequate. In addition, the second judgment found that when assessing the reasonableness of the City’s policies, it was necessary to consider whether they entrench, rather than rectify the legacy of spatial apartheid. In this case, allowing the Bromwell residents to be displaced from the inner city would exacerbate spatial apartheid, rather than undermine it.
The second judgment also considered that international instruments have highlighted the connection between state obligations and the obligations of private parties in avoiding impairing the right to adequate housing. The judgment emphasised that private developers too have constitutional obligations to prevent and mitigate foreseeable harms to the right to have access to adequate housing of the most vulnerable as well as obligations to help address the legacy of spatial apartheid.
As for relief, the second judgment dissented from the first judgment in that it held that the Constitutional Court cannot order the provision of emergency accommodation at a particular location. Given that the location of the emergency accommodation was at the heart of this dispute, it was necessary to add two additional elements to the order in the first judgment. First, this Court should direct the City to engage meaningfully with the Bromwell residents about the location of the accommodation they propose. Secondly, it was necessary to direct the City to report back to the High Court on the location of the accommodation it would identify as suitable for the Bromwell residents and to indicate how its proposal would meet the standards outlined in this Court’s judgment. The Bromwell residents would have two weeks to respond to the report. The High Court would examine the City’s report and Bromwell resident’s response and have the power to grant any further orders that are necessary to finalise the matter speedily.
The Full judgment here
