On 20 December 2024, the Constitutional Court handed down its judgment in Commando & Others v The City of Cape Town & Another. The Bromwell families (the applicants in the matter) are an extended family community facing eviction from a property on Bromwell Street in Woodstock, Cape Town. The issue before the Court was whether the constitutional duty of a municipality to provide temporary emergency housing extends to making temporary emergency housing available at a particular location. Specifically, the Court was approached to determine the constitutionality of the City’s policy not to provide temporary emergency accommodation in the inner city; and what is required in respect of the location of the temporary emergency accommodation to be provided to the applicants and the other occupiers of Bromwell Street. SERI represented Abahlali baseMjondolo who was admitted as amicus curiae.
The Bromwell residents lived in four adjoined cottages for generations under a lease agreement from the property's previous owners before the Woodstock Hub purchased the property in October 2013 to develop a sectional title block of flats from which individual units would be sold. Woodstock Hub is a property development and management company that develops and provides 'middle income' rental stock in areas close to Cape Town's inner city, ranging between R5000,00 and R9000,00 in rental price. In comparison, the Bromwell residents had been paying between R300,00 and R2000,00 for rent per month.
In 2014, the families received letters notifying them that their leases were cancelled and they were required to vacate the property. In 2015, the Woodstock Hub instituted eviction proceedings against the Bromwell families in terms of the Prevention of Illegal Eviction and Unlawful Occupation of Land Act 19 of 1998 (PIE Act). An eviction order was granted in March 2016, ordering them to vacate the property by July 2016.
In 2021, the Western Cape High Court declared the City’s emergency housing programme to be unconstitutional and ordered the City to provide the applicants with temporary emergency accommodation or 'transitional' housing in Woodstock, Salt River, or the inner city precinct (in line with undertakings by the Mayoral Member for urban development in July 2017 and the Affordable Housing Prospectus for the Woodstock, Salt River and Inner-City Precinct of September 2017). The City appealed the matter to the Supreme Court of Appeal. In February 2023, the SCA upheld the City's appeal setting aside the High Court's order, and held that the City only bore the obligation to provide emergency housing in a location as near as possible to the area from which people are evicted.
The Bromwell residents approached the Constitutional Court to appeal the SCA decision permitting the City of Cape Town to relocate them to informal settlements, such as Wolwerivier, far from the city centre.
Abahlali submitted that the location of temporary alternative accommodation affects housing-insecure communities across the country, as reflected in its own experiences in other parts of the country. Abahlali's submissions drew from international law to inform the interpretation of section 26 of the Constitution and the right to adequate housing. In particular, Abahlali relied on the International Covenant on Economic, Social, and Cultural Rights and the African Charter on Human and Peoples’ Rights, both of which South Africa has ratified. Abahlali's submissions also sought guidance to municipalities regarding their constitutional obligations. Specifically, Abahlali noted that according to the UN Committee on Economic, Social and Cultural Rights’s General Comments 4, there needs to be consideration of access to employment, public services, education, and health care when assessing the appropriateness of locality in the context of emergency housing.
In its judgment, the Constitutional Court finds that the City's prioritisation of social housing and neglect of emergency housing is unreasonable. The Court notes that the City failed to meaningfully engage the Bromwell residents' need for emergency housing and instead "adopted an obdurate stance by not assisting with appropriate temporary emergency housing."
The Court notes that:
The primary focus of the City on social development housing in the inner city meant that the Bromwell residents cannot be accommodated in the city and the City’s view that it can meet them halfway by relocating them 15 km away from the city, fails to ameliorate their plight. It also impacts severely on their right to human dignity by stripping them of their right to reside in their homes which they have been occupying for generations.
The Court further discussed the City's gentrification programme leading to the displacement of low-income households in the inner city:
The gentrification policy seeks to achieve that which the forced removal policy of apartheid failed to achieve and destroy one of the only communities that had managed to resist removals from “white” Cape Town under apartheid. It is quite disconcerting that with this knowledge, the City failed to have an adequate plan for the evictees. The housing situation in the Western Cape has always been one which is desperate and there has not been significant change in the housing conditions in the Western Cape, and much of South Africa as a whole, decades after Grootboom and the new constitutional order. It is untenable for municipalities to conduct themselves in a manner that preserves spatial inequalities and reinforces patterns of social exclusion.
The Court also noted Abahlali's compelling argument concerning the need "to understand the difficulties in effectively achieving the right to adequate housing" when applying the "as near as possible/close proximity" principle which requires a reasonable and fair assessment of the City's actions are in light of the constraints of limited resources available.
Read the full judgment here.