8 February 2023
The Supreme Court of Appeal (SCA) handed down judgment in the Bromwell Matter on 6 February 2023. The matter was heard on 14 November 2022.
Judge Mabindla-Boqwana of the Supreme Court of Appeal (SCA), with the full bench concurring, set aside the High Court order in the Bromwell Street Matter which declared the City of Cape Town’s emergency housing programme and implementation of it, unconstitutional.
While setting aside the declaration, the SCA still affirmed the City’s obligation to provide evictees facing homelessness with emergency accommodation “in a location as near as possible to where they currently reside,”. It also specifically recognised that;
“It is irrefutable that the State is obliged to take positive action to meet the needs of those living in extreme conditions of poverty, homelessness or intolerably inadequate housing.” said Mabindla-Boqwana JA in the judgement handed down on Monday.
Prior to the eviction order, residents of the Bromwell Street homes rented units for amounts ranging from R300 to R2000 per month before the properties were sold to Woodstock Hub in 2014. With the residents facing homelessness, the City was brought into the matter.
The City initially denied it had any obligation to provide the residents with temporary emergency accommodation and only offered to relocate the evictees to Wolwerivier Incremental Development Area after the case was brought against it. This offer and the City’s subsequent offer of relocation to Kampies in Phillipi, were rejected by the residents for a number of reasons including the impact of the relocation on them and their families given the distance of the areas from the residents’ support systems, services and children’s schools. They also rejected the offers on the basis that the offers did not comply with the City’s constitutional and statutory obligations, specifically the obligations pertaining to spatial justice and the redress of spatial apartheid.
Residents represented by Ndifuna Ukwazi Law Centre have repeatedly argued that the way in which the City provides emergency accommodation in far-flung, under-resourced and under-serviced areas, compounds the vulnerability of the poorest and perpetuates spatial apartheid.
The Supreme Court of Appeal found that the unconstitutionality finding by the High Court lacked validity for failing to delineate the extent of the City’s inconsistency in terms of its housing obligation and disagreed with; the High Court’s finding that the City had not demonstrated on the evidence that its programme and implementation was reasonable and the finding that the City had unfairly discriminated between the Bromwell families who were offered Wolwerivier and Kampies and the Pine Road families who were offered temporary emergency accommodation in the form of transitional housing in Pine Road, Woodstock.
Disha Govender, Head of the Ndifuna Ukwazi law centre and attorney for the Bromwell families commented:
The implementation of the City’s emergency housing programme continues to displace poor Black (African, Coloured and Indian) people from well-located areas like Woodstock, Salt River and the inner-city to relocation camps where people languish in poverty, and in unfamiliar and sometimes dangerous conditions. It replicates spatial apartheid and in the specific context of the State’s failure to provide affordable housing, check exorbitant rentals and properly plan for people facing evictions into homelessness, this is plainly unjust and retrogressive of the rights to housing and equitable access to land.
The Supreme Court of Appeal, exercising its powers to make a just and equitable order, ordered the City to provide emergency accommodation to the Bromwell families in a location as close as possible to their homes and insisted on Constitutional treatment for them stating:
“It is, however, imperative for the City to realise that it has the responsibility of ensuring that the occupiers are treated with dignity and care when choosing an appropriate location”.
The judgement ordered that the City of Cape Town provide accommodation for the occupiers by May 2023. Ndifuna Ukwazi has reserved comment on whether it will appeal the order until further notice.