A high court ruling in 2021, declaring Cape Town’s emergency housing programme to be unconstitutional, has been set aside by the Supreme Court of Appeal (SCA).

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 Judge Mabindla-Boqwana.

In spite of 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 this year.

The matter came before the SCA as an appeal by the City against Judge Sher’s order in favour of 26 residents of Bromwell Street, who sought a stay their evictions, and directing the City to find them temporary emergency accommodation as near as feasibly possible to their existing homes.

The occupiers and their children were facing homelessness after being ordered to vacate their homes when Woodstock Hub Pty Ltd, a property development company, bought the sub-divided cottages for R3.15-million in 2013.

The occupiers said they had lived there their entire lives and had taken over leases from their grandparents. Bromwell Street is also close to the city centre.

In 2016, the Cape high court ordered their eviction. The families, in their application before Judge 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 an offer that they relocate to Wolwerivier, some 25km away, because there was no public transport. They also rejected an offer that they move to Philippi, about 16kms away, because the area had, at that time, become a Covid hotspot.

They argued that there were 45 parcels of vacant land within a five-kilometre radius, but the City said these were either parks, parking lots or too small.

Read the full judgment here.

Judge Mabindla-Boqwana, in the SCA ruling handed down on Monday, 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.”

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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.

The occupiers, on the other hand, said the order was appropriate. They faulted the City for providing temporary emergency accommodation only outside the city.

“The City contends that the high court did not take into account its entire housing programme and treated the emergency housing programme in isolation,” Judge Mabindla-Boqwana said.

“It submits it has an Integrated Human Settlements Framework which is aligned to legislation and policies including the Housing Act and the Housing Code. It also has a five-year plan with a number of housing programmes, including emergency housing projects and temporary relocation areas.

“It concedes it has no emergency housing developments in the immediate city centre and surrounds, the reasons for this being complex including the excessively high costs of developing such settlements — triple of what it would be in areas further afield — the very high rates on those properties, the scarcity of land and competing demands for the land.

“It submits however, that there are areas such as Woodstock which are targeted for affordable inner-city social housing and there are a range of projects envisaged for those areas,” the judge said.

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.

“The fact that no provision is made for emergency housing needs in the inner city, does not render the choices by the City irrational or unreasonable.

“Those choices are not for the court to make.”

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

“The City still bears a duty to provide the occupiers with suitable temporary emergency accommodation. It is appropriate that an order be made that such accommodation be at a location as near as possible to the area where they now live.”

The judge said the City had indicated that the offer of moving to Kampies in Philippi still stood.

“The suitability of that is not an issue squarely before us. It is, however, imperative for the City to realise that it has the responsibility of ensuring the occupiers are treated with dignity and care … and should take into account where they work and where their children go to school,” the judge said.

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

There was no order as to costs. DM

First published by GroundUp.