The Western Cape High Court ruling in 2021, declaring Cape Town’s emergency housing programme to be unconstitutional, has been set aside by the SCA, reports GroundUp.

Judge Nolwazi Mabindla-Boqwana, with four judges concurring, said the ruling by Western Cape High Court Judge Mark Sher could not stand because it did not identify the extent of the invalidity in order for the city to rectify it.

A court could also not dictate to the city how it spent its money on housing programmes, said Mabindla-Boqwana. Despite this, she said it would be ‘just and equitable’ to order that those affected in the case before the court – the residents of Bromwell Street in Woodstock – should be provided with temporary emergency accommodation ‘in a location as near as possible to where they reside’ before the end of May.

The matter came before the SCA as an appeal by the city against Sher’s order in favour of 26 residents of Bromwell Street.

In 2016, the Western Cape High Court ordered their eviction. The families, in their application to Sher, said the city had an obligation to provide them with temporary emergency housing in the same area, but the city disagreed. The families rejected offers that they relocate to areas some distance from their current location. 

The families argued there were 45 parcels of vacant land within a five kilometre radius, but the city said these were either parks, parking lots or were too small, reports GroundUp.

Mabindla-Boqwana, in the SCA ruling, said while the state had a positive obligation to meet the needs of the occupiers, what was in dispute – as was frequently the case – was the extent of this obligation.

‘This usually telescopes into an inquiry concerning the state’s resources to meet its constitutional obligations. The central issue in this appeal is whether that obligation extends to making temporary emergency accommodation available at a special location.’

She said the city said the High Court order offended the doctrine of the separation of powers, its effect was overbroad, and the court could not dictate in which location a particular housing programme was to be implemented.

She said the order of constitutional invalidity had not been substantiated on the papers before the High Court and there was no constitutional duty on the city to provide temporary emergency accommodation at a specific location.

However, Mabindla-Boqwana said the court had to make a just and equitable order so as not to render the occupiers homeless.

The court upheld the appeal and extended the eviction date to the end of June.

There was no order as to costs.

Full GroundUp report

Judgment

See also full Cape Argus report