- Families said the City's housing policy stripped them of housing security after a parent died.
- The challenge centred on a 2008 municipal rental housing policy affecting families in Retreat.
- Equality Court held the matter had become moot because the policy was rescinded in 2022.
For years, families living in City of Cape Town municipal rental housing feared losing the only homes they had ever known after the death of a parent.
That fear became the centre of a constitutional challenge in the Equality Court in Cape Town, where community leader Sheila Jacobs, chairperson of Community Cry for Peace in the Cafda community in Retreat, argued that the City's housing policy unfairly turned adult children and their families into unlawful occupiers the moment the registered tenant died.
Jacobs brought the application on behalf of several families who remained in municipal rental housing after the death of the leaseholder. They asked the court to declare Clause 1.3 of the City's 2008 Unlawful Occupation Council Rental Stock Policy unfair, discriminatory and unconstitutional.
According to the application, lease agreements were cancelled following the death of the registered tenant, leaving surviving family members vulnerable to eviction despite having lived in the properties for years. The applicants argued that the policy discriminated against long-term occupants and infringed their constitutional rights to equality and access to adequate housing.
The applicant contended that Clause 1.3 of the 2008 Policy is unfair and discriminates against those who occupied the rental properties before 1 March 2006.
The policy at the heart of the dispute
The disputed clause distinguished between people who occupied municipal rental housing before and after 1 March 2006. Those who moved into City rental housing before the cutoff date could be considered for the normalisation of their tenure if they met the City's eligibility criteria and could prove when they took occupation.
Jacobs argued that the distinction unfairly punished families who had lived in municipal rental housing for decades but were never recognised as lawful tenants in their own right. She said many adult children continued living in the family home after a parent's death, only to face eviction because the lease had ended.
The City of Cape Town rejected those claims, maintaining that the policy was designed to ensure the fair and equitable allocation of scarce housing opportunities. It argued that the cutoff date formed part of a rational housing allocation system rather than an unfairly discriminatory rule.
City raises preliminary objection
Before the court could consider whether the policy violated constitutional rights, the City raised a preliminary legal point. It argued that the challenge had become academic because the 2008 policy was formally rescinded when its Housing Allocation Policy was approved in March 2022.
The City submitted that the newer policy now governs the allocation of municipal rental housing, meaning the impugned clause no longer has any legal force. The applicants argued that the court should nevertheless hear the matter in the interests of justice because it raised important constitutional questions affecting vulnerable families.
Equality Court declines to decide the merits
Judge NE Ralarala ruled that the Equality Court in Cape Town, as a court of first instance, could not determine the constitutionality of legislation or policy that had already been repealed.
The judge found that once the 2008 policy was rescinded, there was no longer a live dispute capable of affecting the rights of the parties. Any ruling on the constitutionality of the repealed clause would amount to an advisory opinion rather than the resolution of an existing legal controversy.
“Clearly, the 2008 Policy is no longer in existence and has been replaced by the 2022 Policy, which currently governs the rights and obligations of the parties.”
Judge Ralarala concluded that the matter had become moot and upheld the City's preliminary objection. “The matter has become moot, and the Respondent's point in limine is upheld.”
The Equality Court dismissed the application and ordered that each party pay its own costs.
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