ConCourt ruling on Woodstock eviction is a step to protect the vulnerable from gentrification

This column, in keeping with important academic criticism, has complained about the combination of incoherence and conservative jurisprudence that has been produced by the Constitutional Court over the past few years. Somewhat unexpectedly, therefore, the court handed down a most welcome judgment on 20 December that may well contribute significantly to the vindication of the socioeconomic rights enshrined in the Constitution.

Briefly, the factual matrix of the case of Charnell Commando and Others v City of Cape Town was as follows: The applicants occupied property on Bromwell Street in Woodstock by virtue of lease agreements, and in some cases in terms of intergenerational leases going back to the era of their grandparents. The property was then purchased for a proposed development by Woodstock Hub.

This was all done with a view to building residential units for letting at rentals that were significantly higher than the residents were paying.  This purchase and proposed development were part of a broader wave of gentrification in the inner city. In July 2015, Woodstock Hub instituted eviction proceedings against the residents.

On 17 March 2016, an order was granted directing the residents to vacate the property by 31 July 2016. From 3 to 19 September 2016, the residents, through their attorneys, and the executive mayor of Cape Town engaged in discussions about alternative accommodation options. The city was of the view that the eviction was a “private eviction” which was “just and equitable”, and that it did not have temporary emergency accommodation available but was willing to place the residents on the waiting list for such emergency housing, provided they applied and met the criteria.

On application, the high court provided the residents with relief while the Supreme Court reversed this finding. Ultimately, the case was heard by the Constitutional Court, which defined the critical question as being whether the city’s policy of totally excluding the provision of temporary and emergency housing in the inner city and its surrounds was reasonable.

The right to housing

To answer this question, the majority of the Constitutional Court provided a most helpful summary of the implications of section 26 of the Constitution (the right to housing):

1. Section 26(2) requires a comprehensive and workable national housing programme for which each sphere of government must accept responsibility. It also provides access to adequate housing for people at all economic levels of society.


2. Measures aimed at giving effect to the right must be reasonable both in conception and implementation. They must be balanced and flexible; must make appropriate provision for attention to housing crises and to short, medium and long-term needs; and must be continuously reviewed.


3. The right of access to adequate housing must be realised progressively, by which is meant that the right cannot be realised immediately, but the state must take steps to make housing more accessible to a larger number and wider range of people as time progresses.


4. The state’s obligation does not require it to do more than its available resources permit. This means that both the content of the obligation in relation to the rate at which it is achieved as well as the reasonableness of the measures employed to achieve the result are governed by the availability of resources.


5. The ultimate goal is access by all people to permanent residential structures, with secure tenure and convenient access to economic opportunities and health, educational and social amenities, but because this will take time, provision must also be made for those in desperate need.


6. In any proposed eviction which may render persons homeless, a process of meaningful engagement by the responsible authority is constitutionally mandated in terms of section 26(3).


7. The Constitution does not give a person the right to housing at the state’s expense, at a locality of that person’s choice (in this case the inner city).  Thus, temporary emergency accommodation is not ordinarily required to be in the inner city. However, the state would be failing in its duty if it were to ignore or fail to give due regard to the relationship between the location of residence and the place where persons earn or try to earn their living.


8. In determining the reasonableness of temporary emergency accommodation. This is typically given effect to through orders that state that the emergency accommodation be “as near as possible” to the property from which persons are evicted.


9. Although regard must be given to the distance of the location from people’s places of employment, locality is determined by several factors, including the availability of land.


10. The right to dignity obliges the local authority to respect the family unit when it is obliged to supply homeless persons with temporary emergency accommodation.

Read more: Bromwell Street evictions — ConCourt justices raise spectre of ‘spatial apartheid’ and ‘District Six form of displacement’

The imperative of spatial integration

Within this legal context the court turned to the key question: was it reasonable for the city to finally provide temporary accommodation to the residents which would be at least 15km from the centre of the city?

To this, the court said: “The city’s failure to strike a balance between its housing development goals and situations which require urgent solutions reflects a misplaced set of priorities and a lack of responsiveness to the needs of its residents.

“The inconsistency in providing temporary emergency accommodation for people in informal settlements in the inner city and the residents is palpable. There is no rational differentiation. The residents did not settle on the land unlawfully. They were lawful rent-paying tenants who were affected by gentrification and are now expected to move 15km out of the city to Philippi.”

As a result, insofar as the interests of the residents were concerned, the court ordered the city to ensure the provision of temporary accommodation in the Woodstock or Salt River areas or alternatively the inner city.

This is a most important step in ensuring that the gentrification of cities does not take place at the expense of the vulnerable.

Agreed, the judgment places great emphasis on the specific facts, in particular, that the residents had occupied the relevant property for generations, raising an obvious question about the fate of those who have no such claim. In other words, the question of the broader implications of jurisprudence that addresses spatial apartheid must await further judicial clarification.

However, the judgment does makes important and trenchant observations about the general pattern of spatial apartheid some 30 years into democracy and the failure of the City of Cape Town, in this case, to respond to the imperative of spatial integration. It is a clear and meaningful step in the direction of a constitutional jurisprudence that disrupts the status quo that continues to privilege the wealthier in South Africa. DM