The implementation of the National Housing Programme by the City of Cape Town is unconstitutional, the Constitutional Court has ruled.
In a sweeping order, the court required the City of Cape Town to develop a reasonable Temporary Emergency Accommodation Policy within six months, directing that the policy should be implemented in conjunction with its National Emergency Housing Programme. Additionally, the City is mandated to provide the affected residents with temporary accommodation in locations as near as possible to their original residences, thereby addressing both their immediate needs and the broader implications of spatial injustice.
The ruling brings a significant legal victory for a group known as the “residents,” who have occupied their properties in Woodstock for generations, only to face displacement as market forces lead to rising rents and redevelopment aimed at higher-income tenants.
The case, Charnell Commando and Others v City of Cape Town and Another, revolved around the rights of residents facing eviction due to the ongoing gentrification in the Woodstock and Salt River areas of the city.
At the crux of the case was whether the City of Cape Town has a constitutional duty to provide temporary emergency housing close to where the residents were evicted. The applicants argued that the City acted unreasonably by not providing emergency accommodation within the inner city, failing to consider their individual circumstances, while also neglecting to create a specific policy addressing emergency housing needs.
The court, in a majority judgment penned by Justice RS Mathopo, firmly held that the City had unreasonably failed to adopt a Temporary Emergency Accommodation Policy that aligned with the National Emergency Housing Programme. The ruling stressed that the City’s blanket refusal to consider providing accommodation in the inner city compounded the legacy of spatial apartheid, thereby further marginalising vulnerable communities vulnerable to homelessness.
The majority opinion pointed out that the City’s failure to provide emergency accommodation within the inner-city area was especially concerning given the gentrification processes actively encouraged by municipal development policies. The court referred to previous judgments which underscored the government’s obligation to provide alternative housing that respects the rights and livelihoods of those affected, especially in light of historical injustices.
Justice D Bilchitz, dissenting in part, raised important considerations about the balance of power between the judiciary and municipal governance, arguing that while judicial intervention is vital, a municipality's strategic policy decisions regarding housing must not be overshadowed by judicial mandates.
Critically, the court underscored that the structural inequalities embedded in South Africa’s social fabric cannot be overlooked in planning and policy development.
