Residents of Woodstock’s Bromwell Street, who have waged an eight-year legal battle to stop them from being evicted from the houses they, and generations before them, have always called home, celebrated after the Constitutional Court barred their eviction until the City of Cape Town has developed a new housing programme, incorporating transitional housing.

At present, notes a GroundUp report, the city’s programme does not make any provision for inner-city temporary emergency accommodation, and does not consider the circumstances of people, particularly those who face eviction and the very few who, for years, have resisted forced removals under successive Group Areas Acts.

The six adjoining Bromwell Street cottages were bought by a property development company for R3.15m in 2013. 

While the city offered alternative accommodation to the residents, these were in areas far from the city centre, where they work and their children go to school.

In 2021, Western Cape High Court Judge Mark Sher declared the city’s emergency housing programme to be unconstitutional and directed the city to provide the residents with housing in Woodstock, Salt River, or the inner city, whichever was as near as feasibly possible to Bromwell Street.

But this was later overturned by the SCA which said Sher’s ruling could not stand because it did not identify the extent of the invalidity of the programme 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, the court said.

The residents, supported by the Ndifuna Ukwazi law centre, then took the matter to the apex court.

Justice Rammaka Mathapo, writing for the majority, said the implementation of the emergency housing programme was in the context of the gentrification of areas, such as Woodstock and Salt River, which was encouraged by the city and supported by tax breaks.

‘The key issue is whether the constitutional duty of a municipality to provide temporary emergency housing extends to making it available at a specific location…and whether the city acted reasonably in its determination of the locality of the emergency housing offered, which was some 15km away and, importantly, outside the inner city and its surrounds,’ Mathapo said.

According to GroundUp, he noted the residents had argued that the SCA had answered the wrong question – the correct question was whether the city had acted reasonably in entirely excluding temporary emergency accommodation, as opposed to social housing, in the inner city.

They also submitted that the court had misunderstood the negative effects of gentrification, a policy which had the effect of forcefully removing and displacing residents from their homes to informal settlements far from the city centre, with deleterious effects on their dignity, thus entrenching spatial apartheid. But the city said the appeal should not be entertained.

It said its housing programme was reasonable and if it were compelled to find space elsewhere in the city, it would redirect its resources from social housing programmes which were better suited to the inner city.

Mathapo said the court had jurisdiction to hear the matter because it raised constitutional issues of rights to dignity, freedom and security of people and privacy.

Determination of the issue was of public importance and in the public interest.

‘Presently the law does not provide evictees with a right to emergency housing in a specific location. However, the jurisprudence on the right of access to adequate housing has progressively developed over the years, such that the redress of poverty has now become a legitimate issue of judicial concern,’ he said.

He said the needs of the most vulnerable groups had to be given weight and locality was ‘paramount’ in the provision of temporary emergency housing.

While limited state resources played a role, the city’s broader ‘spatial transformation appears to be a thoroughly misguided and ill-conceived project rooted in the perpetuation of spatial segregation and infamous influx control, in an attempt to inexplicably ‘preserve’ the inner city by marginalisation of poor persons,’ Mathapo said. 

‘The gentrification policy seeks to achieve that which the forced removal policy of apartheid failed to achieve and destroy one of the only communities that had managed to resist removals from ‘white’ Cape Town under apartheid,’ he said, describing it as ‘untenable’.

‘Emergency housing serves as a crucial intervention to prevent homelessness and mitigate immediate crises. The failure to allocate adequate reserves by the city (to this) undermines and infringes upon the right of access to adequate housing for these vulnerable communities.’ 

GroundUp notes he declared the city implementation of its programme to be unconstitutional, setting out the reasons why, and directed the city to develop a reasonable temporary emergency accommodation policy in line with these reasons.

He directed the city to provide the residents with temporary emergency accommodation in the inner city as close to Bromwell Street as possible, directed that they cannot be evicted until such time as this is provided, and ordered the city to pay the costs of the application.

Full GroundUp report

Judgment