Temporary Emergency Accommodation - spatial apartheid - gentrification - PIE Act  - Western Cape High Court - Supreme Court of Appeal - Constitutional Court

This matter deals with spatial justice in Cape Town's inner city and has been brought by the long-standing residents of Bromwell Street, Woodstock in Cape Town, with the representation of Ndifuna Ukwazi (NU). The matter will be heard by the Constitutional Court on 27 February 2024, where SERI will represent Abahlali baseMjondolo, who has intervened as amicus curiae.

The applicants in the matter, the Bromwell families are an extended family community that are long-standing residents of four adjoined cottages on Bromwell Street in Woodstock, Cape Town.  They have approached the Constitutional Court to appeal a decision of the Supreme Court of Appeal (SCA) delivered on 6 February 2023 which permits the City of Cape Town to relocate the evicted Bromwell family members to informal settlements, such as Wolwerivier, that are far away from the city centre. The SCA decision overturned the Western Cape High Court decision of 6 September 2021 which found that the City of Cape Town’s emergency housing programme and its implementation are unconstitutional and ordered the City to provide the applicants with temporary emergency accommodation or 'transitional' housing in Woodstock, Salt River or in 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  Bromwell families have lived on the property for several generations. The property was purchased by the Woodstock Hub in October 2013. The families lived on the property under lease agreements with the previous owners and paid rent that ranged between R300,00 and R2000,00 per month depending on the housing unit. The Woodstock Hub is a property development and management company that develops and provides 'middle income' rental stock in areas that are close to the Cape Town inner city, ranging between R5000,00 and R9000,00 in rental price. The property was purchased to develop a sectional title block of flats from which individual units would be sold.

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). In March 2016, an eviction order against the residents was granted ordering them to vacate the property by July 2016. Acccording to the families, the order was taken based on legal advice that they had no legal defence to the eviction application.

Without the benefit of legal representation, in early August 2016, the residents then made an application for the order to be varied, giving them until November 2016 for them to vacate the property. That application was dismissed, leading the residents to launch an application to set aside or to stay the warrant of ejectment. This application was struck from the roll. The residents then filed notices of appeal concerning the eviction order but this was withdrawn on agreement with the residents and the City that they would have until September 2016 to vacate the premises. 

In late August 2016, the families acquire the legal representation of Ndifuna Ukwazi. In the days leading to the residents' deadline to vacate the property, they had engaged with various City officials, the Executive Mayor and officials from the National Department of Housing about alternative accommodation and presenting their circumstances indicating that they would be rendered homeless if evicted. The parties exchanged various correspondence which led to the residents launching an application in September 2016 seeking, in Part A, a suspension of the eviction orders granted in March and August 2016, pending the outcome of Part B, which sought an order declaring that the City was under a constitutional duty to provide temporary emergency accommodation in a location 'as near as possible' to Bromwell Street. Between September and November 2016, various postponements were effected by agreement between the parties to allow the families to apply for various social housing options available following which there was no social housing available in the greater Cape Town area, save for 3 units which were offered to 3 of the applicant families.

In engagements with the City between 2017 and 2020, various sites for alternative accommodation including emergency accommodation were identified in Wolwerivier, Maitland and Kampies. The latest of the offers for accommodation was to Kampies which was open for acceptance until April 2020. However, in March 2020, a national state of disaster was declared due to the COVID-19 pandemic. A level 5 lockdown was then instituted. In their replying affidavit, the residents refused the offer to Kampies for various reasons, including that they were of the view that the offer did not meet the City's constitutional and statutory obligations.

Following the High Court's 2021 order in favour of the Bromwell families, the City appealed the matter to the Supreme Court of Appeal. In February 2023, the SCA upheld the City's appeal and set aside the High Court's order.

In the matter before the Constitutional Court, in which Abahlali has been admitted as a friend of the court, it will make submissions that will specifically draw on international law to inform the interpretation of section 26 of the Constitution and the right to adequate housing. In particular, Abahlali relies 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.  

The central issue before the Constitutional 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.

On 20 December 2024, the Court handed down its judgment which finds the City's conduct to be unconstitutional "as its implementation of the temporary emergency accommodation policy is unreasonable and arbitrary." The 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." Regarding the City's gentrification programme and its impact on low-income households, such as the Bromwell residents, it writes:

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.

Relevant papers:

• Constitutional Court judgment (20 December 2024) here.
• Amicus Curiae's Written Submissions (21 February 2024) here.
• Amicus Curiae's Founding Affidavit (20 February 2024) here.
• Respondent's Heads of Argument (15 February 2024) here.
• Applicants' Filing Notice, Chronology and Heads of Argument (2 February 2024) here.
• Supreme Court of Appeal Judgment (6 February 2023) here.
• High Court Judgment (6 September 2021) here.