As an agent of change entrusted with ensuring access to justice for the most vulnerable, ProBono. Org remains watchful of the development of eviction processes in South Africa. Due to the unequal balance of social power in evictions generally, our primary obligation is to ensure that those who face destitution and homelessness are protected within the framework of the Prevention of Illegal Evictions from and Unlawful Occupation of Land Act 19 of 1998 (the PIE Act). With the abovementioned in mind, ProBono.Org welcomes Justice Mathopo’s judgement in Charnell Commando and Others v City of Cape Town and Another [2024] ZACC 27 handed down on 20 December 2024.
The matter pertains to the indigent residents of Woodstock and Salt River residing in the immovable properties located in Bromwell Street. The five adjoining cottage units that the Bromwell Street residents call home are situated on a single erf. The residents occupy the immovable properties either by virtue of lease agreements with the previous owners or due to inter- generational leases going back to the era of their grandparents. It is notable that Woodstock and Salt River are of the few predominately Coloured communities located within close proximity to the Cape Town city centre that managed to resist forced removals during the apartheid regime.
The Bromwell Street residents paid rent for each housing unit ranging from R300.00 to R2,000.00 per month. However, the erf was purchased for proposed high-end development by the Woodstock Hub on 30 October 2013 for R3.15 million. This purchase and proposed development are part of a broader wave of gentrification in the Cape Town inner city area. This agenda was made evident when, in and during June 2014, the Bromwell residents received letters of cancellation of their lease agreements from the Woodstock Hub. The Bromwell residents continued to occupy the erf despite the letters of cancellation in an effort to protest against the gentrification of Woodstock and Salt River.
On 17 March 2016, an eviction order was granted by agreement pursuant to legal advice given to them by their former attorney, that the residents had no legal defence to the eviction application. The Bromwell residents were directed to vacate the erf by 31 July 2016. At the time, they were not advised of the City of Cape Town’s obligation to provide them with temporary emergency accommodation. The Bromwell residents brought an urgent application seeking to vary the deadline for them to vacate the erf to 30 November 2016 in order to seek alternative accommodation prior to the eviction date.
The variation application was dismissed on 5 August 2016 as the City denied that it had an obligation to provide temporary emergency accommodation due to its view that the eviction was a “private eviction” which was “just and equitable”.
Additionally, the City argued that they did not have temporary emergency accommodation available but were willing to place the residents on the waiting list for such emergency housing.
On 8 September 2016, City officials agreed not to proceed with the execution of the eviction order until 26 September 2016. The City offered to assist the Bromwell residents to apply for social housing and promised them that they would have “first option” to apply for units in the upcoming social housing developments in the Woodstock and Salt River areas once these had been developed “in approximately 18 months”. It subsequently transpired that the Bromwell residents did not qualify for the social housing.
Correctly dissatisfied by the arguments, inadequate response from the City and considering the imminent eviction date, the Bromwell residents launched an application on 20 September 2016 in the Western Cape High Court. Temporary emergency accommodation in Wolwerivier (which is about 30 km away from the inner city) and Philippi ( which is about 15kms from the inner city) was offered by the City to the Bromwell residents during the course of the litigation. The offer was accordingly rejected by the residents. This matter proceeded to the Supreme Court of Appeal and to the Constitutional Court with the judgment handed down on 20 December 2024.
To this end, the Constitutional Court had to decide whether the City acted reasonably in not delivering emergency housing in the inner city, in circumstances where residents in these areas face eviction as a result of gentrification arising from a development policy implemented by the municipality.
The Court contended that inasmuch as the Constitution does not guarantee a person the right to housing within the locality of his or her choice at government’s expense, the judgment establishes that ‘section 9(2) of the Constitution must be factored in when taking into account the need to ensure that corrective measures are put in place to address the legacy of spatial apartheid.’ The section observes that ‘equality includes the full and equal enjoyment of all rights and freedoms; to promote the achievement of equality, and to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination.
In paragraph 69 of the judgment, Justice Mathopo observed that the Emergency Housing Programme is instituted in terms of the Housing Act to provide temporary relief for people who find themselves in emergency situations, such as a court mandated eviction where the evictee has no alternative accommodation. On the other hand, Justice Mathopo clarified that The Spatial Planning and Land Use Management Act intends to address past spatial and regulatory imbalances and to provide for inclusive, developmental, equitable and efficient spatial planning at different spheres of government.
Justice Mathopo, at paragraph 72 of the judgment, confirmed that the law does not provide evictees with a right to emergency housing in a specific location although it has become a legitimate issue of judicial concern. Justice Mathopo concluded that ‘addressing spatial apartheid requires that considerations include the accessibility of cities and locality being paramount in the provision of temporary emergency housing.’ He acknowledged that the Constitutional Court was tasked with the opportunity to develop the law such that a court can go beyond requiring merely that temporary emergency accommodation must be provided as “near as possible” to the property from which persons are evicted.
He pointed out that ‘the Bromwell residents were in lawful occupation of their premises and their loss of lawful accommodation is directly linked to a policy of gentrification driven largely by private property developers.’
He held that adequate housing, which is inclusive of temporary or emergency housing, is a constitutional imperative that places obligations on the state to realise this right. In addition, the realisation of the right is closely interlinked with other socio-economic rights, crucial in the Constitution’s attempt to
address the longstanding issues of socio-economic inequality deeply embedded in our society. Moreover, it demands 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.
Justice Mathopo warned that this balance cannot and should not be viewed as a free pass for the state to arbitrarily adopt specific or selective measures in the realisation of the right to access to housing (including the right to temporary emergency housing) through the prioritisation of one constitutional obligation at the expense of another. The Justice supported his view by noting that emergency housing serves as a crucial intervention to prevent homelessness and mitigate immediate crises, particularly for those facing eviction. The failure by the City to allocate adequate resources to emergency housing essentially undermines and infringes upon the right of access to adequate housing for these vulnerable communities.
It perpetuates inequality and violates the City’s duty to protect the most vulnerable members of society. The needs of society’s most vulnerable are of utmost urgency and their ability to enjoy all their constitutionally enshrined rights must not be ignored.
The mere existence of suitable housing alternatives does not automatically extinguish the City’s obligation imposed by section 26 of the Constitution (i.e. the right of access to housing), especially when such alternatives fail to address the City’s obligations as local government in the context of spatial apartheid. Therefore, the location of the temporary emergency housing must have an accessibility to the residents’ communal networks, social networks and basic amenities like economic opportunities, healthcare, education and social amenities. To this end, Justice Mathopo concluded that this ‘is in line with spatial justice and the right to the city, and therefore also in line with the remedial and transformative purposes of socio-economic rights and the Constitution more broadly.
Therefore, the Constitutional Court held that relocation of persons such as the Bromwell residents to outlying areas of the city has the effect of destroying their communal and social networks, which has the potential to deprive them of accessibility to economic opportunities, healthcare, education and basic amenities. In doing so, the City unreasonably compounds the legacy of spatial apartheid by failing to provide reasonably located temporary emergency housing in the inner city to evicted persons. The City’s mischief was described as a ‘retrogressive measure particularly in the light of South African history.’ Noting that [w]hile social housing is undoubtedly important, it should not come at the expense of the human rights of others and their basic dignity.’ The Justice termed the City’s inconsistency in providing temporary emergency accommodation for people in informal settlements in the inner city and the Bromwell residents as palpable.
The Constitutional Court directed the City of Cape Town 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. It was further directed to provide the residents with temporary emergency accommodation or transitional housing in Woodstock or Salt River or the inner city, and as near as possible to Bromwell, within six months of the date of the order.
Caveat being that the residents are still resident at the property and have not voluntarily vacated it. Pending the implementation of the order, the Constitutional Court barred eviction of the residents from their property.
