Commando and Others v Woodstock Hub (Pty) Ltd and Another (13946/15; 13947/15; 13951/15; 13952/15) [2021] ZAWCHC 179; [2021] 4 All SA 408 (WCC) (6 September 2021)

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[2021] ZAWCHC 179
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Commando and Others v Woodstock Hub (Pty) Ltd and Another (13946/15; 13947/15; 13951/15; 13952/15) [2021] ZAWCHC 179; [2021] 4 All SA 408 (WCC) (6 September 2021)

IN
THE HIGH COURT OF SOUTH AFRCA
[WESTERN
CAPE DIVISION, CAPE TOWN]
Case
nos: 13946/15; 13947/15; 13951/15; 13952/15
In
the matter between:
CHARNELL
COMMANDO
First
Applicant
NORMAN
ANDREW CUPIDO
Second Applicant
GERALDINE
STEPHANIE
CUPIDO
Third
Applicant
GICILLE
VANESSA
COMMANDO
Fourth Applicant
WILLEM
NEL
Fifth Applicant
MEESHADE
JACOBA
NEL
Sixth Applicant
DAPHNE
NEL
Seventh Applicant
PRISCILLA
NEL
Eighth
Applicant
DYLAN
NEL
Ninth
Applicant
MA
AIDA
ABELS
Tenth
Applicant
SULAIMAN
GOLIATH
Eleventh
Applicant
FAIZA
FISHER
Twelfth
Applicant
GEORGE
FARIA
RODRIGUES
Thirteenth
Applicant
NASHIET
ABELS
Fourteenth
Applicant
CHRASHANNA
SMITH
Fifteenth
Applicant
DELIA
SMITH
Sixteenth Applicant
BRENDA
SARAH
SMITH
Seventeenth
Applicant
MACHAL
SMITH
Eighteenth
Applicant
MEGAN
SMITH
Nineteenth
Applicant
ROSELINE
SMITH
Twentieth Applicant
CHESLYN
SMITH
Twenty-First Applicant
RASHIEDA
SMITH
Twenty-Second Applicant
MARK
NEIL
SMITH
Twenty-Third
Applicant
MOGAMAT
TAURIQ SMITH
Twenty-Fourth
Applicant
GRAHAM
BEUKES
Twenty-Fifth
Applicant
SOPHIE
MASILO
Twenty-Sixth Applicant
and
WOODSTOCK
HUB (PTY) LTD
First
Respondent
THE
CITY OF CAPE TOWN
Second
Respondent
JUDGMENT
DELIVERED (VIA EMAIL) ON 6 SEPTEMBER 2021
SHER,
J:
1.
This matter concerns a
challenge to the constitutionality of the City of Cape Town’s
emergency housing programme and its implementation
in relation to
persons who will be rendered homeless, pursuant to evictions in
Woodstock and Salt River. It brings to the fore
the stark realities
of the circumstances which persons who are evicted within the
inner-City surrounds face in terms of the emergency
accommodation
which is offered to them by the State in the discharge of its
constitutional obligations, and highlights complex
and competing
social problems and vexing legal issues which abound in this area of
the law.
2.
The
applicants presently constitute a group of some 25 persons (of which
approximately half are children) who remain out of an original

community of approximately 43 persons in respect of whom orders were
granted in March 2016 (per Hlophe JP) evicting them from premises

which they occupy at nrs 120-130 Bromwell St, Woodstock.
[1]
Most, if not all, of the applicants have lived there for their entire
life.
3.
The premises which
constitute their homes are 5 subdivided and partioned cottage units
which are situated on a single erf number
10626, some 806 sqm in
extent, which was purchased by the 1
st
respondent (a property development company) for R 3.15 million on 30
October 2013, from messrs Reza and Erefaan Syms. At the time
tenant
members of the community were renting the spaces they occupied with
their families from the Syms brothers for amounts which
ranged
between R 300 and R 2000 per month, depending on their financial
circumstances, in terms of intergenerational leases, some
of which
went as far back as their grandparents.
A chronology and
the relevant facts
4.
The matter has followed
a long and winding road. N
otice
to vacate the property was given to the occupiers on 30 June 2014,
even though 1
st
respondent only took transfer on 4 March 2015. Separate eviction
applications were thereafter launched in respect of various family

units and individual households, at the end of July 2015.
5.
The applications were
initially enrolled for 6 September 2015 but were postponed on a
number of occasions in order to afford the
applicants an opportunity
to obtain legal representation and to file answering papers. On 10
December 2015 the applications were
consolidated by Hlophe JP.
6.
On
17 March 2016 Hlophe JP granted an eviction Order directing the
applicants to vacate the property by 31 July 2016. According
to the
applicants the Order was taken by consent because they had wrongly
been advised by their former attorney that they had no
legal defence
to the eviction application, and could only ask for time to vacate.
It is common cause that at the time of the granting
of the Order the
applicants’ individual circumstances were not properly before
the Court and were not considered by it.
[2]
7.
On
4 August 2016 the applicants made application for the Order to be
varied by granting them an extension until 31 November 2016
to vacate
the property. The application was dismissed by Weinkove AJ, whereupon
the applicants launched an application
[3]
to set aside
alternativel
y
to stay the warrant of ejectment, which was struck off the roll. The
applicants then filed notices of appeal in respect of the
eviction
Order. These were subsequently withdrawn after the applicants arrived
at an agreement with the 1
st
respondent, whereby they were granted time until 19 September 2016 to
vacate.
8.
Pursuant to
correspondence from their current attorneys and extensive media
coverage, between 3-19 September 2016 a series of discussions
took
place between the applicants and their attorneys and various City
officials, including the Executive Mayor, Ms Patricia De
Lille, as
well as officials from the National Department of Human Settlements.
9.
The discussions
commenced after a letter was directed by the applicants’
attorneys to City officials including the Mayoral
Committee Member
responsible for Human Settlements, in which the City’s
assistance was sought. It pointed out that the applicants
would be
rendered homeless pursuant to the eviction and the City consequently
had a constitutional obligation to provide them with
‘temporary
and/or emergency alternative accommodation and land as close as
feasibly possible’ (sic) to the properties
from which they were
being evicted.
10.
The
letter indicated that amongst those who were subject to the eviction
Order were a number of vulnerable persons including 17
children, 8
persons over the age of 50 and 5 ‘women-headed’
households, as well as persons who suffered from a variety
of medical
ailments. The applicants said that although there were indications
that 1
st
respondent was prepared to make a financial contribution of sorts
[4]
towards assisting them to find alternative accommodation, and to this
end it had proposed that a without prejudice meeting be held
on 8
September 2016, they were concerned that it would not be sufficient
to prevent them from being rendered homeless without the
City’s
intervention, and they therefore requested that a representative from
the City should attend the meeting.
11.
The City’s Acting
Executive Director: Human Settlements responded on 5 September 2016
in a letter in which she denied that
the City had an obligation to
provide emergency accommodation. In her view the Court must have
considered that it was just and
equitable that there should be an
eviction Order after taking into account all relevant circumstances
including the financial contribution
which was to be made by the 1
st
respondent, and emergency accommodation was consequently not required
as the Court had not made any Order in this regard. Given
that it is
common cause that the eviction Order was simply granted by agreement
and without the applicants’ personal circumstances
being
considered by the Court at the time, the view which was expressed was
clearly misplaced. In any event, the Acting Executive
Director stated
(ironically), that the City did not have any emergency accommodation
available for the applicants and they should
apply to be placed on
the waiting list for it.
12.
On 7 September 2016 the
Mayor and local councillor met with the applicants at the property.
The Mayor undertook to look into possible
solutions, including
whether land could be made available for the applicants’
relocation, and the following day their attorneys
supplied City
officials with detailed information relating to the applicants’
circumstances and confirmed that a number of
the applicants were on
the City’s housing waiting list. The applicants were then
informed that the 1
st
respondent had agreed not to proceed with the execution of the
eviction order until 26 September 2016 and City officials would

assist those applicants who qualified, to apply for social housing.
In addition, the applicants were told that they would have
‘first
option’ to apply for housing in future social housing
developments which were scheduled to be completed in about
18 months’
time.
13.
On 12 September 2016
the Mayor issued a media release in which she indicated that she had
intervened in the hope of mediating an
amicable solution between the
parties and negotiating for an interim stay of the eviction order.
She reported that the City was
investigating the applicants’
circumstances on an individual basis as its housing allocation policy
did not allow for it
to assist groups of persons. In this regard, in
order to ensure the fair, transparent and ‘systematic’
(sic) delivery
of housing opportunities the City made sequential
allocations to qualifying residents who were registered on its
housing database,
in order to prevent queue-jumping and to protect
those who had been waiting patiently on the housing list.
14.
Insofar as 4 of the
applicant families appeared to qualify for social housing City
officials undertook to take this up with them.
As far as the
remaining residents were concerned the Mayor confirmed that the City
had plans to build two social housing developments
in the area within
the next 18 months and the applicants were encouraged to apply in due
course to be allocated accommodation therein.
15.
On 15 and 16 September
2016 the applicants’ attorneys directed further correspondence
to the City requesting it to provide
details by 19 September 2016 as
to when it would provide emergency accommodation to the applicants,
failing which application would
be made to Court for the necessary
relief. In the absence of a response thereto the instant application
was launched on 20 September
2016.
16.
In its original form
the notice of motion sought an order in Part A suspending the
execution of the eviction orders which were granted
on 17 March and
19 August 2016 pending the outcome of Part B, in which an order was
sought declaring that the City was under a
constitutional duty to
provide the applicants with temporary emergency accommodation in a
location ‘as near as possible’
to erf 10626 Bromwell
Street, within 3 months. To this end the applicants sought an
ancillary order directing the City to report
to the Court within 2
months as to what accommodation it would make available and the
nature and proximity thereof, together with
an explanation as to why
the particular location and form of accommodation had been chosen.
The report was also to set out the
steps which had been taken by the
City to ‘meaningfully’ engage with the applicants in
regard to such accommodation.
17.
In their founding
affidavit the applicants alleged that there were ‘at least 45
parcels’ of vacant land which were owned
by the State (of which
15 were owned by the City and the remainder by the provincial
government), within a radius of 5 kms of the
property, which were
zoned for residential development and which could be used for
temporary emergency housing. A spreadsheet containing
details of
these properties was annexed to the papers. Included amongst these
were a number of pieces of vacant and improved land
in Woodstock and
Salt River.
18.
Between 23 September-9
November 2016 a series of postponements were effected by agreement,
in order to afford the applicants an
opportunity to apply for various
forms of social housing which might be available, and for the filing
of a report and affidavits
as to the outcome thereof.
19.
Social
housing is housing which is subsidized to a greater or lesser extent,
depending on the financial circumstances of the applicant,
and is not
free.
[5]
It appears that as at
September 2017 it was generally available in the inner City of Cape
Town for households with a monthly income
of between R 3501 and
R
15 000.
[6]
Those earning less
than R 3500 would therefore ordinarily not qualify. According to the
Acting Executive Director: Human Settlements
[7]
some social housing projects outside of the inner City allowed for
households with a lesser monthly income of between R 1500 and
R7 500
to apply.
20.
From
the voluminous records which were filed in relation to this aspect it
is clear that the applicants and their attorneys went
to considerable
effort to complete and submit the necessary application forms to a
number of social housing companies that offered
subsidized housing
throughout the City metropole and surrounds, including the
Madulammoho Housing Association, Communicare NPC,
SOHCO Property
Investments NPC, the Devmark Property Group’s company Urban
Rentals NPC, and the Cape Town Housing Company
(Pty) Ltd (‘CTHC’).
[8]
21.
The
outcome of this process was that (save for 3 units which were
available from Communicare and which were offered to 3 of the

applicant families) there was no social housing available in the
greater Cape Town for the applicants, principally because they
did
not meet the basic affordability/income and other criteria to qualify
for it.
[9]
The Director: Human
Settlements subsequently confirmed in an affidavit which was filed in
March last year in response to the amended
relief which is sought
that, save for one of the Smiths, none of the applicants currently
before Court qualify for social housing
in the City.
22.
The matter came before
Weinkove AJ for hearing on 31 January and 1 February 2017, pursuant
to which he requested further information
from the applicants
pertaining to the places of employment and working hours of those who
were employed, the schools which the
applicants’ children were
enrolled at, and any medical conditions the applicants suffered from
and the health facilities
they were attending for treatment.
23.
This
information was sought was because the City had offered the
applicants emergency housing in the form of 26.5 sqm corrugated

‘shack’ structures in Wolwerivier, a so-called ‘temporary
relocation area’ (‘TRA’) which is
situated some 30
kms outside the City centre, near Melkbosstrand and Atlantis, and in
the event that the applicants were relocated
there they would have to
commute to Cape Town and Salt River (a 37.5 kms trip one way) by
means of a number of journeys by taxi,
as there was no public
transport available
[10]
and
the City had indicated
[11]
that it was not prepared to offer the applicants assistance with
transport to work and school.  Thus, commuting would entail
them
having to catch a taxi from Wolwerivier to Du Noon in Milnerton, a
second taxi from there to the central taxi rank at the
Cape Town
Station, and then a third taxi from there to their ultimate
destination in Woodstock/Salt River or City surrounds, at
a daily
cost
each
way
of about R 30 per person. Given the distances and logistics involved
any single commute would entail a number of hours of travelling
time.
It is important also to point out that there were no schools in
Wolwerivier, and the most likely nearest affordable schools
for the
applicants’ children were probably situated in the Du Noon
informal settlement, outside Milnerton.
24.
In a letter from their
attorneys dated 8 December 2016 the applicants recorded that a total
of 27 persons (16 adults and 11 children)
had not been able to secure
social or other housing and thus required emergency accommodation.
They indicated that they had concerns
about accepting the offer which
the City had made to provide them with such accommodation in
Wolwerivier, given the absence of
schools, health facilities and work
opportunities there and the distance between it and the
City/Woodstock-Salt River area, which
would adversely affect the
applicants’ ability to get to their current workplaces, schools
and health facilities.
25.
According
to the City’s 2016/17 review of its then Integrated Human
Settlements 5 Year Plan (July 2012-June 2017), a copy
of which was
attached to the answering affidavit which was filed by the Acting
Executive Director: Human Settlements, Wolwerivier
was established to
accommodate approximately 500 families who had been living in
Skandaalkamp and Rooidakkies informal settlements
on the Vissershok
landfill site, near Durbanville. The review noted
[12]
that there was no infrastructure in the area where Wolwerivier had
been established ‘as yet’ and alternative solutions
for
sanitation ‘needed to be explored’(sic). The review
recorded that as ‘urbanisation, population growth and
climate
change’ had caused an ‘increase in demand’ for the
type of accommodation offered in TRAs the City had
embarked on
various initiatives to establish more of these ‘temporary
housing opportunities’.
26.
Pursuant to certain
remarks which were made by Weinkove AJ during the hearing on 31
January and 1 February 2017 an application was
launched for his
recusal, which was postponed for hearing together with the further
hearing in relation to the applicants’
circumstances and
transportation needs, to 3 and 4 August 2017. Having considered the
application, on 14 June 2017 Weinkove AJ
acceded to the request that
he should recuse himself.
27.
On 20 July 2017 the
matter was enrolled for hearing before this Court in respect of Part
B of the application, and a timetable was
agreed for the filing of
further papers. The matter was thereafter postponed for further
hearing from 12-14 September 2017.
28.
In her original
answering affidavit which was filed in October 2016 the Acting
Executive Director: Human Settlements outlined how
the City went
about attending to the permanent housing needs of its residents, by
carrying out various housing programs it was
constitutionally
required to.
29.
She pointed out that in
2015 the City had devised a new so-called Integrated Human
Settlements Framework policy (the ‘IHSF’)
which is given
effect to in 5 yearly tranches, which identified how the City’s
permanent housing delivery needs were going
to be met from 2015 until
2030.
30.
The extent of these
needs is staggering and how the City will ever realistically be in a
financial and logistical position to meet
them stretches credulity,
notwithstanding its best intentions. According to the Acting
Executive Director it was estimated that
in the 20-year period
between 2012 and 2032 some 650 000 households in the greater Cape
Town would need some support from the City
in regard to housing.
Approximately 315 000 people (i.e. some 49%) of the projected
estimated total population of the City
by 2032 would be earning below
the top of the current earnings threshold for support (i.e. R 13 000
pm in present day terms), and
would therefore be eligible for
support.
31.
As at the date of the
Acting Executive Director’s affidavit in 2016, some 5 years
ago, about 143 000 people (i.e approximately
22% of the City’s
then total population) were living in informal settlements, 73 000
were so-called back-yard renters, about
12 000 were living in hostels
and a further 150 000 (16% of the City’s total population) were
living in overcrowded conditions
in formal housing. Anyone who has
been living in the greater Cape Town area in the 5 years since then
can attest to the exponential
and extensive expansion in informal
settlements.
32.
The 2015 IHSF envisaged
that a variety of projects would be undertaken by the City in the 20
years between 2012 and 2032 in order
to address the housing ‘plight’
of the 650 000 households that will require support, which it
estimated will cost in
the region of
R
100 billion
i.e.
some R 5 billion per year.
33.
Faced with these
already outdated figures one does not need to be an economist to
shake one’s head at the enormity of the
challenges which the
City faces and to express scepticism about whether the laudable
programs which it has set for itself will
ever be implemented. In
this regard the Acting Executive Director herself sounded a warning
note in 2016, pointing out that the
scale of delivery at the time was
not meeting demands and the cost of delivering new settlements had
become increasingly ‘unbearable’.
34.
For the purposes of
this judgment it is neither appropriate nor necessary, at this stage,
to traverse the range of housing programs
which the City is currently
engaged in or those which it intends to implement in the next 20
years, other than its emergency housing
program. It is the emergency
housing program, which is supposed to be a form of temporary housing
for those persons who are rendered
homeless, that is in issue in this
matter, and not the other housing programs, which relate to permanent
housing needs.
35.
In
this regard the Acting Executive Director stated that the City was
‘amenable’ to providing those applicants who did
not
qualify for any other form of housing assistance, with access to
emergency housing
[13]
and
to this end the City acted in accordance with Chapter 12 of the
National Housing Code, which had been promulgated pursuant
to the
Housing Act.
[14]
36.
The
Acting Executive Director noted the applicants’ concerns about
having to be relocated ‘far away’ to Wolwerivier
and
accepted that evictees should be relocated to areas in the vicinity
of where they live, if possible.
[15]
However, this was a ‘complex issue’ as the City had
‘limited options’ available to it in the vicinity of

where the applicants currently lived
[16]
and there were a number of factors which made it difficult for the
City to provide accommodation for evictees in the inner City,

including the high costs of land and development in the City, and the
limited availability of land which was suitable for this
purpose.
[17]
37.
Nonetheless, as regards
land for emergency housing the City proactively, but also on an ad
hoc basis identified suitably located
sites where it could
accommodate households in terms of the National Housing Programme for
Housing Assistance in Emergency Housing
Circumstances, as identified
in the National Housing Act and the Code. In this regard the City had
‘conceptualized a process
and product that (was) quicker to
deliver and (which was) premised on being permanent albeit
incremental’ hence its name
ie ‘incremental development
area’ (‘IDA)’. A number of possible locations for
the development of such areas
had been identified such as Sir Lowry’s
Pass and ‘Bosasa’ (in Blue Downs). These IDAs would be
planned and developed
in the forthcoming 3 years and additional sites
would also be identified ‘across’ the city.
38.
There
was currently no IDA available in ‘close proximity” to
the City centre
[18]
and no
available emergency housing in the immediate City centre and
surrounds.
[19]
39.
There were however a
range of housing programs which were targeted at these areas which
were in the planning and preparatory phases
and which were aimed at
creating affordable inner-city housing and ‘temporary housing’
projects. Included amongst these
was a mixed land-use development in
the inner City known as the Cape Town Foreshore Freeways project
(which was aimed at providing
multiple-level income housing which
would bring lower income earners closer to work opportunities in the
City), and a proposed
so-called ‘transitional housing’
development as well as a social housing development, in Salt River.
In addition, a
further 6 separate sites in Woodstock had also been
‘targeted’ for affordable housing projects. No details of
these
sites and projects were provided in the affidavit.
40.
As far as the 45
parcels of vacant land which the applicants had identified were
concerned, a number of these constituted public
open spaces (such as
parks and parking lots) or were too small in order to be viable for a
housing project and some were not vacant
and had houses or buildings
on them, and could therefore not be used for emergency housing.
41.
A further number of
these pieces of land, including those situated around the former
Woodstock hospital site, were earmarked for
large-scale affordable
housing developments. One of the smaller Woodstock sites, erf 12161,
which was situated in Pine Road, and
which was some 366 sqm in
extent, was jointly owned by the provincial government and the City
and had been reserved for a social
housing project.
42.
The Acting Executive
Director stated that the City was not in a position to provide
individual tracts of land in the inner City
to individuals or to
small groups of beneficiaries as it was unaffordable, as the cost
thereof would exceed the cost of development
and in addition were the
City to do so it would create a ‘great unfairness’
amongst residents in different areas. Thus,
if such a policy were
adopted beneficiaries in Khayelitsha would receive land and a
structure thereon which would come in at a
value of less than R 200
000 whilst beneficiaries of an equivalent-sized piece of land in the
inner City would receive property
to the value of up to 10 times that
figure even without a structure on it, a result which was neither
sustainable nor fair.
43.
Shortly before the
matter resumed for further hearing in September 2017 a number of
important events occurred which were the subject
of public
announcements by a high-ranking official within the City’s
administration who was responsible for urban development,
which were
indicative of a material change in the City’s policies.
44.
On
18 July 2017, at the occasion of the fourth annual Affordable Housing
Africa conference which was hosted in the City, councillor
Brett
Herron, the then Mayoral Committee Member responsible for transport
and urban development, made a speech
[20]
in which he indicated that the need for housing for Cape Town’s
most vulnerable households was the single biggest challenge
which the
City was facing. He pointed out that apartheid spatial planning had
consigned the majority of Capetonians to live in
settlements which
were far away from work and which had limited access to services and
opportunities. He acknowledged that to date,
efforts to radically
transform Cape Town’s spatial reality had fallen short, and
said that he was proud to announce certain
steps which the City
intended taking in order to create new, affordable and well-located
housing opportunities for its residents.
45.
To this end the City
had identified 10 City-owned sites in the City centre, Salt River and
Woodstock which were to be used for affordable
housing opportunities.
Three of these sites had already been allocated to social housing
institutions for social housing developments.
46.
Two
erven in Pine Road and six erven in Dillon Road, Woodstock had been
allocated for the so-called Pine Road development, which
would be
carried out in two phases and would result in the construction of
some 240 ‘studio’, single and two-bedroom
apartments.
Secondly, the proposed Salt River Market development in Albert Road
would result in a mixed income/mixed use development
which would
include some 476 affordable housing units.
[21]
In addition, the City intended to develop its very first inner-City
‘transitional housing’ project in Salt River. More

information about this development would be available once Council
approval for it had been obtained at the next council meeting.
47.
There were also
additional ‘transitional housing’ projects in the
pipeline for Salt River and other areas in Cape Town,
and officials
were doing an audit of City-owned land parcels in Goodwood and
Bellville. The City had also identified 5 additional
land parcels
which could be used for the further development of affordable housing
opportunities in Salt River, Woodstock and the
inner City.
48.
Cllr Herron said that
the manner in which the City was approaching these developments
represented a ‘180-degree’ change
in how it intended to
confront the urgent demand for affordable and inclusionary housing.
49.
Importantly, he
declared that apart from the commitment which was required from all
roleplayers to make the City an inclusive and
liveable space where
there was room for everyone to share in equal access to opportunities
and lower-income households could be
situated on well-located land
close to places of employment and social amenities, the City also had
to ‘militate against
the displacement of residents
especially
tenants in rental properties who have lived their entire lives in
suburbs like Woodstock and Salt River
where high-end developments are rising at a rapid pace’ because
of their proximity to the CBD.
50.
Finally, he said that
part of the ‘undertaking’ that the City was making was to
provide, within its means, those who
were facing ‘emergency
situations’ with safe, decent and affordable ‘temporary’
housing as close as possible
to where they were working; or at least
as close as possible to where they could get onto a bus, train or
minibus-taxi (sic).
51.
A
week later, on 25 July 2017, Council approved a recommendation from
the Transport and Urban Development Portfolio Committee dated
23 June
2017 that authority be granted for the implementation of a proposed
‘transitional’ housing development on erf
13814 in Salt
River, a property located in Pickwick Road. In paragraph 4 of the
report
[22]
which was submitted
motivating the recommendation it was stated that the ‘transitional’
housing proposed was for ‘temporary
to semi-permanent’
(sic) housing. The proposal was aimed at dealing with ‘low-income’
households that had been
living for many years in informal
settlements in the area, particularly in Pine Road and at the Salt
River market. The existence
of these settlements was delaying the
development of affordable rental housing on these sites, which were
earmarked for medium
and high density affordable rental developments
along the City’s transport and development corridors, and which
could yield
more than 2000 affordable housing units ‘as opposed
to the current 50 informal settlement units’(sic).
52.
There
was already a ‘transitional’ housing scheme for ‘street
children’ which was being operated from two
buildings which
were situated on a part of erf 13814, which were leased out to a
welfare organization, which could be extended.
According to the CRU
(‘Community Residential Unit’) Feasibility Study for the
development of the project
[23]
it was envisaged that once completed the scheme would provide a total
of 42 units with 85 beds (in the form of 9 sqm single, 12
sqm
two-bedroom and 14 sqm three-bedroom units, which would be serviced
by 13 toilets, 8 urinals, 18 showers and 18 basins and
2 communal
kitchens, spread over two floors).
[24]
53.
As
was previously pointed out, the project was targeted at the
relocation of households living in informal settlements in Pine Road

and the Stables (at the Salt River Market). In this regard it was
recorded that there were some 117 people in 24 households living
in
‘informal shacks’ in the Pine Road informal settlement,
alone.
[25]
It was ‘hoped’
that the households living in the informal settlements could be
supported into moving, and in this regard
they would be consulted
about social housing or GAP owned accommodation options which were
available, as well as accommodation
in TRAs (temporary relocation
areas) or IDAs (incremental development areas), before those who
could not otherwise be accommodated
in such forms of housing, were
placed in the scheme.
[26]
54.
Although
the Feasibility Study defined the ‘transitional housing’
which was to be provided as housing for individuals
and households
that was ‘temporary’ and which helped them to prepare to
move to more permanent housing ‘solutions’,
it recognized
that because of the shortage of alternatives for low-income
households, some of them were likely to remain in the
facility on a
‘semi-permanent’ basis.
[27]
55.
On
the same day that council granted approval for the Pickwick
development Cllr Herron issued a media release in which he stated

that the project represented a new approach in terms of how the City
intended to ‘tackle the urgent demand for housing by
those
families who are displaced
or
evicted from their homes due to rapid development
,
amongst
others’.
[28]
56.
He
proceeded to reiterate the same undertaking which he had previously
given on behalf of the City, to provide those who were facing

‘emergency situations’ with safe, decent and affordable
temporary housing as close as possible to where they were working,

and declared that in this regard the City had put an end to the
development of so-called temporary relocation areas (‘TRA’s’)

on the outskirts of the metropole, far away from jobs and other
opportunities.
[29]
The
Pickwick transitional housing project confirmed the City’s
intent to honour this commitment, and the development would
provide
households who have been ‘
displaced
or evicted’
from their homes with temporary or semi-permanent housing, while
opportunities for their permanent housing were procured.
57.
As far as the project’s
operating model was concerned, the CRU Feasibility Study provided
that although those taking up accommodation
would be required to pay
some monthly rent based on what they could afford, the City would
subsidize those who required assistance,
together with the
operational costs of the facility, via its Rental Indigent Scheme.
58.
On 13 September 2017
Cllr Herron issued a further media release, in which he announced the
launch of the City’s new inner-City
social housing initiative,
by making 5 City-owned sites in Pickwick Road, Salt River, New Market
and Canterbury Streets Woodstock,
and at the Woodstock Hospital,
available for the development of inclusionary and affordable housing
opportunities.
59.
On 28 September 2017
the Affordable Housing Prospectus for the Woodstock, Salt River and
Inner-City Precinct was issued. It called
for bidders to submit
proposals for the development of the 5 sites for the provision of
‘affordable’ housing i.e housing
for households falling
within the monthly income bracket of between R 3501 and R 18 000.
60.
The proposed
developments identified in the Prospectus included 1) the Pickwick
development on erf 13814, a 3.3 ha social housing
development which
would provide 600 affordable social housing units together with
‘transitional’ housing on a small
portion of the site 2)
the large- scale Woodstock Hospital development  (on 11 erven )
over an area of 18 411 sqm, which envisaged
a minimum of 700 social
housing units 3) the Woodstock Hospital Park development adjacent to
the Woodstock Hospital, which envisaged
200 social housing units; and
2 further sites in Newmarket and Canterbury streets in Woodstock for
which a further 350 social housing
units in total were to be
constructed.
61.
Aside from erf 13814
the Prospectus also identified 2 further erven 12010 and 12011 in St
James St, Salt River as sites for the
development of a 42-room
‘transitional’ housing scheme, which was aimed at
accommodating residents of 30 informal structures
in an informal
settlement on the Salt River market site.
62.
In
line with previous pronouncements, the Prospectus defined the
‘transitional housing’ which was to be provided as

accommodation for individuals or families that had to be relocated,
either
as a result of evictions or because they had to be moved temporarily
as a result of the upgrading of the sites on which they lived.
[30]
63.
In
a supplementary affidavit which was filed by the Manager: Land
Restitution and Social Housing, in November 2017, it was indicated

that the estimated date of completion of the Pickwick site was
December 2018 and she too confirmed that in the event that there
were
spare units left therein after allocations had been made for those
who were to be relocated, these would be allocated for
‘other
emergency housing needs’(sic).
[31]
64.
As far as the St James
Street sites were concerned, as at that date the City was still
seeking a partner for the proposed developments
and a feasibility
study had not yet been conducted, and it was anticipated that the
proposed rezoning which was required would
result in legal
challenges. In the circumstances the earliest date the St James
development was expected to be completed was in
late 2019 early 2020.
65.
The
Manager: Land Restitution and Social Housing said that although the
City was trying to access other potential ‘transitional’

housing sites, on an ongoing basis, these were unlikely to be in the
inner City due to the scarcity of land and the costs of development

thereof. Consequently, the City would have to look to areas further
afield such as Elsiesriver, Manenberg and Bellville. In ‘due

course’ the City would develop a formal policy in respect of
access to ‘transitional’ housing, which would be
adopted
before the first ‘transitional’ housing development was
completed in 2018.
[32]
66.
Pursuant to certain
questions which were posed by the Court during the hearing on 12 and
13 September 2017, the City was given leave
to file an explanatory
affidavit by 1 November 2017, to which the applicants responded a
month later.  In doing so the applicants
gave notice that in the
light of the contents of the City’s further affidavit they
intended to amend their notice of motion
to make provision for an
order declaring that the City’s housing program and its
implementation in terms of its IHSF 5 year
plan, was inconsistent
with its constitutional and statutory obligations, to the extent that
it failed to provide the applicants
and residents of Woodstock and
Salt River, who were at risk of homelessness due to eviction, with
access to ‘transitional’
housing or temporary emergency
accommodation in the immediate City centre and surrounds. Ancillary
thereto the applicants sought
an order declaring that the City was
under a constitutional duty to provide them with such housing or
accommodation in the Woodstock,
Salt River and inner-City precinct
(as identified in the Prospectus for Affordable Housing which was
issued by the City on 28 September
2017), in a location ‘as
near as possible’ to erf 10626 Bromwell Street.
67.
In the affidavit which
was made in support of the application to amend, applicants’
attorney referred
inter
alia
, to the
contents of an interview which Cllr Herron had with a journalist in
October 2017, during which he again repeated much of
what he had
previously said about the City’s ‘180-degree change’
in its housing policy. In this regard he reiterated
the City’s
commitment to reversing the legacy of apartheid spatial planning
which he said had been perpetuated after 1994
with the building of
RDP settlements on large, cheap tracts of land on the outskirts of
the City. He acknowledged that building
such settlements effectively
continued to penalize poor, mostly black communities, who were living
on the fringes of the City.
68.
He was reminded that he
had previously announced there were plans for ‘transitional’
housing in the City which would
provide ‘spaces’ for
people who had been
evicted
,
and was asked how these would be allocated. In response, he said that
the 2 ‘transitional’ housing sites in Salt River
and
Woodstock would initially house people who were living in settlements
in Pine Road and at the Salt River market, where the
City planned to
build affordable social housing, and ‘when we’re finished
the transitional housing facilities will
remain for other families
facing emergency situations.’(sic)
69.
When he was asked what
opportunities there were for housing people who were currently in
living in emergency housing in Wolweriver
and Blikkiesdorp (another
TRA established by the City which is located in Delft), he responded
that the City’s plans to build
permanent homes at Wolweriver
had been ‘set aside’ and people living there would
‘transition out’ as soon
as ‘housing opportunities’
for them became available. Similarly, Blikkiesdorp would be closed
(by the end of ‘this
term of office in 2021’) as the City
was building formal housing for families who were living there, at an
alternative site.
70.
The application to
amend was opposed by both respondents. After a further delay, during
which time answering and replying papers
were filed and the proposed
date in May 2018 for hearing the application was postponed, it was
eventually heard on 13 August 2018,
at which time after hearing
argument I made an Order
ex
tempore
, granting
the amendment. For reasons which are not apparent from the papers
before me, the grant of the amendment resulted in a
further lengthy
hiatus in the proceedings. A 54-page answering affidavit (together
with annexures thereto totalling some 140 pages)
in response to the
amended relief which was sought, was eventually filed by the City
some 2 years later, on 2 March 2020. In response
the applicants filed
a replying affidavit with annexures totalling 140 pages, some 3
months after that. Argument in respect of
the amended relief which
was sought was eventually heard over a period of 2 days, at the end
of 2020.
71.
In her answering
affidavit to the amended relief which was sought the former Acting
Executive Director: Human Settlements (who then
held the title of
Director: Human Settlements) dealt at some length with the relevant
legislative, constitutional and policy framework
in terms of which
the City carries out its obligations to provide housing to its
residents. She sought to emphasize that both access
to housing and
access to emergency housing in the City needed to be evaluated
against this framework and in the context of the
City’s
burgeoning population, ever-increasing housing needs and its
increasingly constrained financial resources, and could
not be
considered in isolation thereof.
72.
She pointed out that,
as at the date of her affidavit, the City’s geographic area
covered some 2487 sq kms, on which approximately
4 million people
were living. Between 1996 and 2016 the City’s population had
grown by 56%. It constituted an amalgamation,
which had occurred in
December 2000, of metropolitan councils for the Helderberg,
Oostenberg, Tygerberg, Blaauwberg, Cape Town
and South Peninsula
areas,.
73.
As far as the
legislative and policy framework was concerned, this was regulated by
the Housing Act, the Transit Orientated Development
policy, the Built
Environment Performance Plan (which included the so-called
‘Catalytic’ Land and Project Development
program), the
IHSF: 5 Year Plan and the Emergency Housing Plan (the ‘EHP’).
74.
It appears to have
derived its name from the term ‘emergency housing’, as
referred to in the Housing Act and the Code
promulgated in terms
thereof. The obvious anomaly which presents itself in relation to the
term, and the flawed premise on which
it is based, is that persons
who are evicted will merely require, and thus need only to be
provided with, temporary ‘emergency’
accommodation, when
they are evicted. Whilst this may be true for the middle class, in
the case of the poor and lower-income groups
the accommodation which
they will require will hardly be temporary. In these days of hard
times with ever-increasing unemployment,
less and less people earn
enough even to feed and to sustain themselves, let alone to house
themselves. Yet, in a twist of supreme
and cruel irony, these are not
the people who are offered support in the form of subsidized social
housing. To obtain such support
one needs to earn at least R 3501 pm.
75.
According to the
affidavit of the Director: Human Settlements, a socio-economic
profile which was done as part of the Census in
2011 reflected that
47% ie just under half of the
households
living in the City at that time earned below R 3200 pm, and a further
14% earned less than R 6400 pm.
76.
The
Director’s affidavit revealed a further apparent change in
policy that had taken place since 2016 which had not previously
been
revealed, either in the affidavits which the City had filed, or in
the various media statements which had been made by Cllr
Herron viz
that the City was now ‘developing’ emergency housing
within existing informal settlements. The Director
provided lists
[33]
which set out the ‘estimated’ allocation of such housing
(there is no indication of whether the figures which are set
out
therein represent units available or persons which could be
accomodated) in various informal settlements, which were either
in a
planning or in a construction phase. In addition, contrary to what
had been said by Cllr Herron in July and October 2017,
the Director
indicated that the City was continuing to develop TRAs and IDAs, for
families in need of emergency housing.
[34]
77.
The Director also
reiterated that, based on a range of factors, including the
availability of land and the cost of development,
the City was of the
view that the developments which were proposed for Woodstock and Salt
River ‘best served the imperatives
of social housing’ as
‘opposed’ to emergency housing. Consequently, there were
no available sites for such housing
in the ‘immediate’
City centre. As far as ‘transitional‘ housing
developments in Woodstock and Salt River
were concerned, the Pickwick
project had been completed and all available rooms therein were
occupied by persons who had been relocated
from the Pine Road
informal settlement, and construction of the St James Road
development had not yet commenced. Thus, no accommodation
was
available for the applicants in any ‘transitional’
housing in Woodstock and Salt River.
78.
As far as emergency
housing was concerned the Director indicated that in the light of the
complaints which had been raised by the
applicants as to the
suitability of Wolwerivier, particularly its distance from Bromwell
Street, the City had embarked on a process
to source an alternative
option. It had identified a site in Maitland at which it had offered
emergency housing to the applicants
in the form of 26 sqm
prefabricated corrugated structures, but because of resistance from
the local community the City had decided
not to go ahead with this.
79.
Consequently, they were
now offering each of the applicant households emergency housing in
Kampies (an informal settlement in Philippi
which is 16.5 kms away
from Woodstock), in the form of a 36 sqm plot with ‘building
materials’ which included
a
door and
a
window, which could be used by the applicants to erect 18 sqm
‘structures’ thereon. The area was currently not serviced

and water and sanitation i.e toilet facilities would only be provided
(at a ratio of 1:5 and 1:25 persons respectively), if and
when the
applicants were relocated. As far as sanitation was concerned ‘solid
waste’ collection would be provided in
the form of 1 bag per
household, once a week, from a ‘communal container’ which
would be placed on the site.
80.
The area for the
proposed relocation was on an established bus and taxi route and was
about 3 kms away from the Hanover Park day
hospital, and there were a
number of schools in Hanover Park. There were also a number of
clinics and a police station nearby,
in Philippi. In its offer the
City indicated that when Kampies was upgraded in approximately 6
months time i.e by February 2020,
the applicants would receive a 26
sqm structure consisting of a concrete platform and Nutec
sides.
81.
On 29 February 2020,
some 6 months after the City’s offer was made, the applicants
and representatives of the City paid a
visit to the proposed site in
Kampies. Contrary to the City’s promises, by that time the
proposed upgrading had not taken
place. This was still the case in
May 2020, when the applicants’ attorneys conducted a site
visit.
82.
Following the February
visit the applicants requested certain further information including
the cost to the City of the emergency
housing kit and services which
were to be provided, details of the plans which the City said it had
to upgrade the site and confirmation
that the upgrading would be in
accordance with the relevant plan and policies which were applicable
to the upgrading of informal
settlements in the City, and the EIA
(environmental impact assessment) authorization for the development
of Kampies. In response
the City indicated that no planning or
environmental approvals were necessary for the use of the site as an
informal settlement
and an EIA was not required, and the application
for planning approval for the upgrading of the site was still
underway.
83.
The City indicated that
the offer for accommodation in Kampies was open for acceptance until
7 April 2020. On 15 March 2020 the
President announced the
declaration of a national state of disaster as a result of the
COVID-19 epidemic, and implemented a Level
5 ‘lockdown’.
As at date hereof the state of disaster is still in place and a Level
3 ‘lockdown’ is operative.
84.
In their replying
affidavit the applicants pointed out that according to data released
by the provincial government, as at 20 May
2020 Philippi was listed
as the suburb with the 6
th
highest number of Covid infections in the province. Consequently, in
a letter which their attorneys addressed to the City dated
6 April
2020, the applicants indicated that they had elected not to accept
the City’s offer. They believed that given the
circumstances
which prevailed at the time in relation to the rate and spread of the
Covid-19 virus, and the particular health conditions
which certain of
the applicants suffered from, which included asthma, diabetes, lung
disease and high blood pressure, relocation
to Kampies would pose a
serious health risk to them. Furthermore, the applicants were of the
view that the offer did not meet the
City’s constitutional and
statutory obligations.
The law
(i)
The constitutional and statutory framework
85.
The principal
provisions of the Constitution which are directly applicable to this
matter are sections 25, 26, 9 and 7.
86.
Section
25(1) provides that no one may be deprived of their property
arbitrarily. It protects rights of ownership. Section 26(3)
in turn
provides that no one may be evicted from their homes arbitrarily. It
protects occupancy rights. In terms of the Prevention
of Illegal
Eviction from and Unlawful Occupation of Land Act
[35]
(‘PIE’), which seeks to give substance to this
protection, an eviction can only be effected by way of an order of
court made after consideration of all the relevant circumstances.
87.
As
was explained in
Port
Elizabeth Municipality
[36]
the constitutional right not to be evicted arbitrarily is
counterposed to the ordinary rights of possession, use and occupation

which are incidents of the right of ownership. Because the
expectations that go with ownership can ‘clash head-on with the

genuine despair of people in dire need of accommodation’ (sic)
the judicial function is not to establish a hierarchical arrangement

between the competing interests involved, by ‘privileging in an
abstract and mechanical way’ rights of ownership over
the right
not to be dispossessed of a home, or vice versa. It is to balance out
and reconcile the opposing claims in as just a
manner as is possible
taking account of all the interests involved and the specific factors
relevant in each particular case.
[37]
88.
The
occupancy rights afforded by s 26(3) are but one of a subset of
so-called ‘housing rights’, which are provided for
by the
section. In this regard s 26(1) provides that everyone has the right
to have access to adequate housing, and in terms of
s 26(3) the State
must take reasonable legislative and other measures to achieve the
progressive realization of this right. Progressive
realization means,
in effect, that the State is required to make housing more
accessible, not only to a larger number, but also
to a wider range of
people.
[38]
89.
Importantly,
as was pointed out in
Grootboom
[39]
the right which is enshrined in          s
26(1) of
access
to adequate housing is one that is distinct from and broader than a
right
to
adequate housing. By encompassing a right of access, it recognizes
that providing housing entails more than supplying ‘bricks
and
mortar’ and requires the provision of land and the supply of
municipal services, as well as the necessary funding for
this to be
achieved. Section 26(1) therefore requires that the State should
create and foster the necessary conditions for the
realization of
housing rights, even though it is obviously not constitutionally
enjoined to be the only or principal provider of
housing.
90.
Grootboom
[40]
held
that this obligation to foster and promote access to housing means
that state policy dealing therewith must take account of
the
different economic levels in our society. Thus, it must take account
not only of those who can afford to pay for housing, either
in part
or wholly, but also those who cannot.
[41]
91.
In
the case of the former the State’s primary obligation lies in
‘unlocking the system’ by providing access to
housing
stock, laying out the necessary legislative and  policy
framework via planning laws and programmes, and providing
access to
finance to facilitate the construction of houses. In the case of
those who are too poor to provide their own housing
the State’s
obligations extend beyond this, and as the Constitutional Court has
pointed out ‘issues of development
and social welfare’
arise, because the poor are particularly vulnerable and their needs
require ‘special attention’.
[42]
92.
The
State’s obligation to realize these rights progressively will
depend on the context and may therefore differ from one
setting to
another i.e from province to province, rural to urban, and city to
city. What may be appropriate in one setting may
not be in
another.
[43]
93.
The
right of access to adequate housing bears a close relationship to the
other socio-economic rights which are provided for in
the
Constitution. It requires the State to take positive action to meet
the needs of those living in extreme conditions of poverty,

homelessness or ‘intolerable’ housing.
[44]
94.
It
was pointed out in
Blue
Moonlight
[45]
that the provision of temporary or ‘emergency’
accommodation to persons who find themselves in situations of crisis

or emergency is an accepted part of the State’s obligation to
provide access to adequate housing, in terms of s 26.
95.
Thus, although this
does not appear to be an aspect that has been pertinently and
directly dealt with by the highest Courts, as
I see it there is no
apparent reason in logic or law why the State’s obligations in
this regard should also not be realized
in a progressive fashion,
subject to the constraints referred to, including available
resources.
96.
I find support for this
in the overview to Part A of the National Housing Code which deals
with housing assistance in emergency
circumstances. It states that in
pursuance of its goal of recognizing everyone’s constitutional
right of access to adequate
housing on a
progressive
basis, the State has instituted a National Housing Programme through
which it endeavours to address the needs of households who,
for
reasons beyond their control, find themselves in an ‘emergency
housing situation’, such as where their existing
shelter has
been destroyed or damaged, or their prevailing situation poses an
immediate threat to their life, health and safety;
or they have been
evicted, or face the threat of imminent eviction.
97.
It
is important to note that in terms of s 9(1) of the Constitution all
persons who have rights in terms of s 26(1) which may be
affected
(which in terms of the National Housing Code includes those evictees
who may be rendered homeless), are entitled to be
treated equally
before the law and are entitled to the equal protection and benefit
of the law. Equal protection under the law
is central to the rule of
law.
[46]
98.
Finally, it is trite
that in terms of s 7 the State is obliged to respect, protect,
promote and fulfil the rights which are contained
in s 26.
99.
As
far as the principal statutory provisions which are relevant to this
matter and which give effect to the State’s constitutional

obligations are concerned, these are set out in the Housing Act
[47]
and the National Housing Code which has been enacted in terms
thereof, and PIE.
100.
In
expressly repeating the provisions of ss 26(1) and (2) of the
Constitution the preamble to the Housing Act recognizes that ‘housing

as adequate shelter fulfils a basic human need’. The Act
similarly obliges municipalities, as part of their process of
integrated
development planning, to take all reasonable and necessary
steps within the framework of national and provincial housing
legislation
and policy to ensure that inhabitants within their areas
of jurisdiction have access to adequate housing on a progressive
basis.
[48]
To this end, every
municipality must set housing delivery goals,
[49]
identify and designate land for housing development,
[50]
and initiate, plan, coordinate, facilitate, promote and enable
appropriate housing development.
[51]
101.
The Housing Code
contains the national housing policy, and as such, it sets the
principles, guidelines and standards that are to
apply to the various
housing programs which are to be implemented by the State. Chapter 12
of the Code sets out the provisions
of the National Housing Programme
for Housing Assistance in Emergency Circumstances. The Programme
applies to emergency situations
of ‘exceptional housing need’,
where persons have become homeless owing to circumstances beyond
their control.
102.
Included amongst these
are situations involving not only natural or declared states of
disaster but also situations where persons
are living in dangerous
conditions or in conditions that pose a threat to life, health and
safety, as well as instances where people
have been displaced or
threatened with displacement either as a result of civil conflict or
unrest or because they have been evicted,
or are threatened with
imminent eviction.
103.
Funding
for the Programme occurs by way of annual grants from the Minister of
Housing to provincial governments.
[52]
Provincial governments are, in turn, responsible for funding and
implementing the Programme in partnership with municipalities.
[53]
If a municipality determines that a situation requires immediate or
emergency assistance beyond its means, the MEC may approve
ad hoc
funding. And where necessary, national government must provide
assistance with the release of state-owned land, for emergency

purposes.
[54]
104.
It
is the responsibility of a municipality to consider whether specific
circumstances within its area of jurisdiction merit the
submission of
an application for assistance under the Programme, and to this end
municipalities are required to initiate, plan
and formulate
applications for projects relating to emergency housing
situations.
[55]
105.
The
purpose of the financial assistance which is awarded is to enable
municipalities to respond to housing emergencies by providing
land,
services and/or shelter, and to cover the costs of the possible
relocation and resettlement of people in appropriate cases.

Assistance should, wherever possible, only represent an initial
phase towards a permanent housing solution. Where this is
not
possible housing assistance under the Programme can be provided on a
temporary basis, through the development of a temporary
settlement
area,
[56]
while steps are
taken to prepare and develop land for permanent settlement purposes.
106.
Importantly,
beneficiaries of the Programme include both households that comply
with subsidy scheme qualifications i.e who are eligible
for housing
subsidies as well as those that do not. In the circumstances, the
Programme is clearly intended to cover all affected
persons who are
not in a position to address their housing emergencies.
107.
That
brings us to the provisions of PIE, which sets out the process and
procedures which apply to evictions. It repealed the Prevention
of
Illegal Squatting Act
[57]
(‘PISA’). As was pointed out by Sachs J in
Port
Elizabeth Municipality
,
[58]
in terms of PISA once it was established that an occupier had no
permission to occupy land  they were liable to be prosecuted

criminally and, on conviction, to be evicted summarily. The
circumstances as to how they came to occupy the land, and the length

of time they had occupied it were irrelevant. Thus, as is the case in
relation to some of the applicants in this matter, even if
they had
been born on the land and had spent their whole lives living on it,
once they no longer had a right to occupy it they
were effectively
treated as criminals and could be rendered homeless.
108.
PISA
was one of a number of statutes that were used collectively to drive
the forced  removal of black people from land in
the Cities to
racially designated and segregated settlements, in accordance with
the grand designs of apartheid spatial planning.
[59]
The result of the implementation of these laws was the expulsion of
black people to the outskirts of cities.
109.
PIE
was adopted with the objective of overcoming these abuses and
ensuring that evictions occur in a manner which is consistent
with
the new constitutional order. As Sachs J pointed out
[60]
PIE not only repealed PISA, but in a sense inverted it, by
decriminalizing squatting and making the eviction process subject to

a number of substantive and procedural requirements aimed at
complying with the Bill of Rights. The legislative change of
intention
from one aimed at preventing illegal squatting to one aimed
at preventing illegal eviction is evident from the preamble to PIE.
110.
Section 4(6) of PIE
provides that if an unlawful occupier has occupied land for more than
6 months at the time when proceedings
are instituted, a Court may
grant an order for eviction if it is of the opinion that it is ‘just
and equitable’ to
do so, after considering all relevant
circumstances including whether land has been made available or can
reasonably be made available
by a municipality or other organ of
state or another landowner, for the relocation of the unlawful
occupier, and including the
rights and needs of the elderly,
children, disabled persons and households headed by women.
111.
In
Port
Elizabeth Municipality
the Constitutional Court held
[61]
that the phrase ‘just and equitable’ makes it plain that
the criteria that need to be taken into account and applied
are not
of the purely technical kind, such as those which would ordinarily
flow from the provisions of land law, and there is an
emphasis on
justice and equity as a central underpinning of the Act.
112.
Thus,
the Constitutional Court endorsed the approach which was adopted in
Port
Elizabeth Municipality v Peoples Dialogue on Land and Shelter and
Others
[62]
that when deciding an eviction matter a Court is obliged to break
away from a purely legalistic approach and must have regard for

extraneous factors such as morality, fairness and ‘social
values and implications and circumstances’, with a view to

rendering an equitably principled judgment. It held
[63]
that the Court is required to infuse ‘elements of grace and
compassion’ into the process. It is called upon to go beyond

its traditional functions and may in appropriate cases have to engage
in the active judicial management, according to equitable
principles,
of an ‘ongoing, stressful and law-governed social process’.
[64]
By doing so it can at least attempt to soften and minimize the degree
of injustice and inequity which the eviction of weaker parties
in
conditions of inequality will of necessity entail.
[65]
113.
Finally,
it should be noted that the effect of PIE is not to expropriate
ownership rights in private property. It serves merely
to delay or
suspend the exercise of such rights until a determination has been
made as to whether or not a proposed eviction would
be just and
reasonable, and if so, on what terms and conditions it is to
occur.
[66]
(ii)
Rationality, reasonableness and judicial scrutiny
114.
As
was pointed out in
Blue
Moonlight,
[67]
in a challenge to the constitutionality of a housing programme in
terms of ss 26(2) and 9(1) of the Constitution, the concepts
of
rationality and reasonableness are central.
115.
Insofar
as rationality is concerned, where the challenge is directed at
allegedly unfair differentiation between different categories
of
evictees, as is the case in this matter, it will have to be
considered whether the differentiating measures bear a rational

connection to a legitimate governmental purpose.
[68]
If they do not, they will be irrational, and measures that are
irrational can hardly be said to be reasonable.
[69]
116.
In
Pharmaceutical
Manufacturers
[70]
we were also reminded
that it is a fundamental principle of the law that the exercise of
public power by the executive and other
functionaries should not be
arbitrary, failing which it will similarly be considered to be
irrational. In
Makwanyane
[71]
the Constitutional Court pointed out that by its very nature
arbitrariness leads to the unequal treatment of persons: ‘
Arbitrary
action or decision-making is incapable of providing a rational
explanation as to why similarly placed persons are treated
in a
substantially different way. Without a rational, justifying
mechanism, unequal treatment must follow
.’
117.
Arbitrariness
which leads to unequal treatment offends against the right to
equality, which is considered a founding value of our

Constitution.
[72]
118.
In
relation to the issue of reasonableness, in
Grootboom
it was pointed out that in giving effect to its obligations in terms
of s 26 the State is required not only to take reasonable
legislative
measures to advance access to housing, but also such
other
reasonable measures as may be required.
[73]
To achieve this the legislative measures it relies on must therefore
be supported by ‘appropriate and well-directed policies
and
programs’
[74]
and it
must devise a ‘comprehensive and workable’ plan
[75]
and develop a ‘coherent public housing programme’
[76]
which is directed at effecting a progressive realization of its
obligations. But the formulation of reasonable plans or cogent

programs will not be sufficient. These must also be implemented
reasonably
,
otherwise there will not have been compliance with the obligations
provided for in s 26.
[77]
119.
In
this regard we are further reminded
[78]
that reasonableness must be understood in the context of the Bill of
Rights as a whole and the other rights contained therein notably

those pertaining to dignity and equality. It will therefore not be
sufficient merely to show that measures have been devised which
are
capable of achieving a ‘statistical advance’ in the
realization of the right of access to housing, be it permanent
or
temporary. If the measures though ‘statistically successful’
fail to respond adequately to the needs of those ‘most

desperate’ they will not pass the test of reasonableness.
[79]
120.
In
evaluating whether a set of measures is reasonable it is necessary to
consider the particular housing problems or issues which
they aim to
address in their social, economic and historical context, and the
capacity of the organ of state concerned to implement
the measures
i.e its financial and other resources.
[80]
121.
Although
s 26 does not expect more from the State than what is achievable
within its available resources, a task which the Constitutional
Court
held already 20 years ago was an extremely difficult one given the
prevailing conditions in our country, despite these difficulties
the
State is obliged to do so the best it can with what it has, and in
appropriate circumstances a Court must not hesitate to enforce
these
obligations.
[81]
122.
In
Blue
Moonlight
the Constitutional Court also held
[82]
that the fact that in terms of the Housing Code funding for emergency
housing is derived from provincial (and ultimately national)
sources
does not mean that a City’s capacity to provide such housing is
solely and only dependent on such funding, as this
would effectively
mean that no emergency housing could ever be provided, unless and
until provincial or national government had
granted funding for it,
which would go against the very essence of providing housing when
needed in emergency situations. Thus,
local government is expected to
budget and provide, as far as possible, for such eventualities, and
it has both the power and the
duty to finance its own activities and
operations, which of necessity may include the provision of emergency
funding from its own
resources.
[83]
123.
Thus,
in the determination of the reasonableness or otherwise of the
measures which have been adopted by a municipality to provide
for
emergency housing, a Court cannot be stymied by budgetary, or
financial or resource constraints, where the inability to provide

such housing came about as a result of a lack of foresight or
preparedness on the part of a municipality, or as a result of a
mistaken understanding as to the nature and extent of its
constitutional and statutory obligations. In such circumstances it
will
be no answer to say that there are no funds available for what
is sought, because they have not been budgeted for or provided.
[84]
124.
Finally, something must
be said about the ambit and limits of judicial scrutiny, in matters
such as these. In the first place, a
Court should caution itself
against getting carried away in the exercise of its functions,
thereby breaching the separation of
powers and inadvertently
intruding into the domains of the executive and legislative
authorities, by virtue of the fact that the
process that it is
required to follow in eviction matters is one that goes beyond that
which would ordinarily apply, and is one
infused by notions of
morality, fairness and equity.
125.
As
was so aptly said in
Treatment
Action Campaign & Ors (No. 2)
[85]
courts are ill-suited to
adjudicate upon issues where their orders could have ‘multiple
social and economic consequences’
for the community, and the
Constitution envisages a restrained and focused role for them viz to
require the State to take measures
to meet its constitutional
obligations, and to subject the reasonableness of such measures as
are taken, to judicial scrutiny and
evaluation.
126.
In
matters such as these the Court is required to consider whether, in
formulating and implementing the measures it was required
to take in
respect of emergency housing in terms of s 26(2) of the Constitution,
the State has given effect to its constitutional
obligations. If it
holds that the State has failed to do so it is obliged by the
Constitution to say so, and insofar as that may
constitute an
intrusion into the domain of the executive, it is one mandated by the
Constitution.
[86]
The law applied
(i)
Taking account of the social, economic and historical context
127.
Lauren
Royston, a professional development planner
[87]
and the Director of Research and Advocacy at the Socio-Economic
Rights Institute, has provided an affidavit which sets out the

context to the issues around housing in the inner City and the
Woodstock and Salt River areas, and has explained the gentrification

that is taking place there, which has led to the situation which the
applicants find themselves in.
128.
She points out that as
at 2015 the housing backlog in the greater City for qualifying
households was just under 400 000 homes. State-sponsored
housing in
the Cape Town metropole was still largely concentrated on the
outskirts and there was an absence of subsidized i.e social
housing
close to the City centre. Unlike in Johannesburg, as at 2016 none of
the developments that had been built under the social
housing
programme were in the inner-City precinct or surrounds. Furthermore,
none of Cape Town’s ‘affordable’
suburbs (based on
land values) were situated in close proximity to the City centre, and
living in the inner City was increasingly
an exclusive privilege
which was reserved for the wealthy. The apartheid spatial form
continued to predominate, with poor black
African and coloured
families living on the outskirts of the City and commuting long
distances, at great economic and personal
expense, to workplaces and
educational facilities.
129.
During apartheid the
Woodstock and Salt River areas were some of the only inner-City
neighbourhoods in which coloured households
managed to survive
large-scale forced evictions, such as those which occurred in
District 6, in nearby Zonnebloem, where some 60
000 people were
forcibly evicted from the City.
130.
Following the end of
apartheid and the steady demise of the textile industry, residential
demographics began to change, as the areas
began to attract
individuals from the arts and creative sector. The creation of a
neighbourhood  goods market at the Old Biscuit
Mill in Albert
Road, Woodstock in 2005 was one of the first creative-industry-led
developments in the area and its success encouraged
further
developments.
131.
A
gentrification and regeneration process commenced, driven largely by
private property developers who capitalized on rapidly increasingly

property values and tax incentives they were afforded from 2012
onwards,
[88]
after the
inner-City precinct which included Woodstock and Salt River, was
declared an Urban Development Zone.
[89]
132.
This
process was aided by the adoption of the Woodstock and Salt River
Revitalization Framework (‘WSRF’) policy in 2003,
and
changes
[90]
to the zonings
which applied to the area, which were introduced in 2012, whereby
properties along Victoria and Albert Roads (which
included the
Bromwell street property), which were previously zoned for ‘general
commercial’ use were rezoned for ‘mixed
use’.
133.
According to the 2011
census, approximately 42% of households in Woodstock were earning R
6400 p.m. or less, at that time. Using
the generally accepted
affordability measure of 30% of household income, they could
therefore afford rentals of R1920 p.m or less.
Rental reports
for the area for 2016 reflected that the average rental for
properties in Woodstock for the preceding 2 years
had risen to about
R 5200 p.m. Based on the same affordability measure of 30% of
household income, families in Woodstock would
have had to be earning
at least   R 17 500 p.m. as at October 2016 in order for
them to be able to afford the prevailing
average rentals. Based on a
demographic profile of the area this would most likely have been out
of the reach of many, if not the
majority, of households.
134.
A director of the 1
st
respondent indicated during an interview which he held with a radio
station in August 2016, that apartments which were to be erected
on
the Bromwell site were expected to be rented out at an estimated
average rental of     R 5000-R 9000 p.m.
135.
He confirmed that
property values in the City centre had risen quite extensively, and
in Woodstock ‘the pricing certainly
has outrun even the middle
market in terms of their ability to afford the property’ (sic).
In this regard, whereas in 2003
the average sale price for houses and
apartments in Woodstock was between                R

100 000 and R 300 000, as at 2015 it was about R1.6 million.
According to data collected from the Registrar of Deeds, prior to

2004 the sale prices of properties on Bromwell Street had not
exceeded R 750 000. As was pointed out earlier, the property on which

the applicants are living was purchased by the first respondent in
October 2013 for R 3.15 million.
136.
Although the WSRF
policy which was adopted in 2003 made provision for under-utilized
public buildings in the Woodstock-Salt River
area to be used for
social programs and for public use, including accommodation for
vulnerable groups such as homeless people and
the elderly, and to
this end it proposed rehabilitation subsidies for the conversion and
maintenance of buildings as well as subsidies
to ensure access to
affordable accommodation, including interest-rate and rental
subsidies for low-income groups, these proposals
have not been
implemented to date.
(ii)
Towards a finding
137.
As was rightly
pointed out by the applicants the City does not have a single,
permanent housing program or policy, which is recorded
in a single
document. It has an overall housing delivery programme which is made
up of a number of constituent and interrelated
elements or parts.
These are not in issue in this matter.  What is in issue in this
matter is the provision by the City of
emergency housing to persons
in the inner City and its surrounds, in particular Woodstock and Salt
River, who are rendered homeless
pursuant to an eviction.
138.
In this regard the City
does not appear to have a comprehensive, workable and coherent
emergency housing plan or program, at least
not its own one, and
appears to have adopted inconsistent and contradictory stances and
policies. And its implementation of its
emergency housing program,
such as it is, in relation to such persons, appears to be
inconsistent and arbitrary.
139.
In
its original answering affidavit
[91]
in 2016, the City made reference to the ‘Emergency Housing
Programme’ which is contained in Chapter 12 of the Housing

Code, and said that it delivered on the Programme via ‘temporary
relocation’ and incremental development’ areas.
It
described the former as parcels of land that have been developed for
families in need of emergency housing, in regard to which
there were
‘projects’ at Mfuleni, Happy Valley, Blikkiesdorp,
Wolwerivier, Sir Lowry’s Pass and Bardale, and
TRA ‘units’
at OR Tambo, Hangberg and Masonwable in Gugulethu. In addition, it
had identified a further set of possible
‘incremental
development areas’ which could be used for emergency housing.
140.
Consistent
with this approach, in its original answering affidavit it evinced a
no-exceptions policy that all evictees from the
inner City and
surrounding areas such as Woodstock and Salt River could only be
provided emergency housing in a TRA or IDA. It
averred that, in the
case of the applicants, the only emergency housing available was
outside of the City in the Wolwerivier TRA
near Atlantis, some 37 kms
from where the applicants were living. It vigorously defended its
allocation, and contended that there
was no constitutional obligation
on it to house the applicants in a location as near as was feasibly
possible to where they were
living, notwithstanding that its Acting
Executive Director: Human Settlements accepted that evictees should
be relocated to areas
in the vicinity of where they lived, if
possible, and notwithstanding that this is, in effect, what the
Constitutional Court had
ordered, in two matters which came before
it.
[92]
141.
In
contrast to the position the City set out in its original answering
affidavit, in July and October 2017 the City’s Mayoral
Member
responsible for urban development announced that it had made a ‘180
degree’ change in its policy in regard to
both permanent and
temporary housing. It now undertook to provide those in the inner
City and its surrounds who were facing ‘emergency
situations’
(this would of necessity include evictees who might be rendered
homeless) with temporary housing close to where
they were working and
living, and it intended to provide ‘temporary’ (or as it
turned out ‘semi-permanent’
[93]
)
so-called ‘transitional’ housing in Woodstock and Salt
River to people who had either been displaced or evicted. In

addition, the Mayoral Member announced that the City intended to
‘transition’ people who had been relocated to the

Wolwerivier and Blikkiesdorp TRAs, to permanent housing. In fact,
Blikkiesdorp was going to be closed down, before 2021. In a later

statement the Mayoral Member confirmed that the ‘transitional’
housing developments in Woodstock and Salt River would
not only be
used to house homeless evictees from the Pine Road and Salt River
informal settlements, but would continue to be used
in the future to
house homeless evictees from Woodstock and Salt River, once the
original occupants had moved on or there otherwise
was capacity to do
so.
142.
In
its further answering affidavit in 2020 the City claimed that it had
an Emergency Housing Plan,
[94]
which had been explained ‘elsewhere’. However, details of
this Plan were not revealed in the affidavit and a copy of
the Plan
was not annexed to the answering papers.
143.
In this affidavit the
City said that it was developing emergency housing within existing
and planned informal settlements within
the greater City surrounds.
Contrary to the seemingly intractable stance it had previously
adopted in 2016, it said that it had
sought to place the applicants
at an undisclosed location in Maitland, but the community had
resisted its efforts, It then announced
(pursuant  presumably to
its policy of placing homeless evictees in informal settlements) that
it was offering the applicants
a site in Kampies, an informal
settlement in Philippi, where it would provide them with some
building materials with which they
could erect their own shelters.
(The offer which was made came despite the fact that, notwithstanding
what was said by the Mayoral
Member in 2017, neither Wolwerivier nor
Blikkiesdorp have been shut down, and in fact, according to the
Director: Human Settlements
as at the end of 2020 the City was still
relocating families to these TRAs, in the discharge of its duty to
provide emergency housing.)
144.
Thus, it appears, the
policy which was being implemented as at 2020 was now one of
relocating evictees from the inner City to informal
settlements, and
not one of relocating them to TRAs or IDAs. But, if I am wrong in
this regard and the City was/is following a
dual policy, it is
because although much was said by it in its answering papers in
regard to its permanent housing programmes,
very little of substance
and detail was said by it about its emergency housing programme/plan,
other than that it followed the
one which is set out in the Housing
Code.
145.
Most importantly, the
City did not indicate, in either of its answering affidavits, how
determinations and placements are made by
its officials in emergency
housing eviction cases i.e how and on what basis it is decided which
evictees must go where, and how
allocations of emergency housing in
such instances are made. All we were told is that, in a supreme twist
of irony, evictees must
place themselves on a waiting list for the
allocation of emergency housing. If there are criteria and guidelines
which are applied
these have not been disclosed, and the process the
City follows is entirely opaque.
146.
In
both of its affidavits the City justified its policy of relocating
evictees from the inner City and its surrounds, to TRAs and
IDAs, on
the basis of the high costs
[95]
and unavailability of land in the inner City, the lack of the
necessary financial resources and the ‘prescripts of fairness’,

which did not allow it to provide emergency housing in the inner-City
precinct. As the applicants correctly point out, and as was
the case
in
Blue
Moonlight
,
in pleading poverty the City provided scant detail, with reference to
hard and actual numbers, of its financial position in regard
to the
provision of emergency housing, even on a macro level. Thus, for
example, it did not provide any indication of the value
of the funds
which had been allocated and made available to it by provincial
government in any of the years in question, let alone
how much it had
spent on providing emergency housing, and emergency housing in
relation to evictions in particular. It never even
gave an indication
of how much it budgeted annually to spend on such housing. In short,
it put forward very little by way of substance,
in support of its
claim of financial constraints.
147.
Notwithstanding these
deficiencies, in its further answering affidavit it said that based
on a consideration of these factors it
had adopted the view that the
developments which were earmarked for Woodstock and Salt River ‘best
served the imperatives’
of social housing ‘as opposed to
general emergency housing’. One of the added reasons it gave in
support of the economic
rationale for preferring the pursuit of
social housing developments was that the accommodation they provided
was not free and tenants
who take it up are required to contribute to
the costs thereof by paying rental, albeit in a limited amount. In
contrast to this,
in many, if not most instances tenants who require
emergency occupation are persons who are unable to afford make any
meaningful
contribution by paying rent.
148.
I have some difficulty
with the City’s assertions. As previously pointed out, during
2017 it announced that there were to
be a number of so-called
‘transitional’ housing developments in Woodstock and Salt
River, which were to be used to
house persons, not only those who
were to be relocated from informal settlements in the area, but also
those who have been evicted,
on a ‘temporary to semi-permanent’
basis. One of these developments, the Pickwick Road project, on a
City-owned property,
was subsequently completed at a cost of R 11
million, from funds budgeted and provided for by the City. In the
circumstances, as
in the case of the Court in
Blue
Moonlight,
it is
hard not to be somewhat sceptical about the claim that emergency
accommodation cannot be provided to homeless evictees in
the inner
City and surrounds, because there is a scarcity of available land,
and because the City is short of financial resources.
149.
As it stands therefore,
it seems to me that the current position in regard to homeless
evictees in the inner City and its surrounds
is anything but clear,
and is entirely arbitrary. Such persons are as liable to be offered
emergency housing in a TRA or an IDA
as they are in an informal
settlement (or possibly even ‘temporary’  housing
close to where they live (if effect
is given to the promise made by
the Mayoral Member for urban development)), at the whim of
officialdom, depending on the throw
of the dice or the spin of the
wheel. That is neither rational, nor reasonable. And future possible
placements in ‘transitional’
housing facilities in
Woodstock and Salt River, as and when spare residential capacity
arises, will only add to the arbitrariness
of the process. Once
again, one is left to ask on what basis will evictees be allocated
emergency housing in such facilities, and
which evictees will qualify
for such placements and what guidelines or criteria will apply, if
any? How will the City ensure that
evictees who are chosen are not
preferred unfairly, over other persons who are in similar positions?
Will it simply be a case of
those who happen fortuitously to be in
the right place at the right moment in time that will be granted such
accommodation? None
of these issues have been dealt with on the
papers which are before me.
150.
The City contends that
its allocation of emergency accommodation in the Pickwick
‘transitional’ housing scheme to the
‘evictees’
from the Pine Road settlement was not irrational and the applicants
cannot complain of any unfair differentiation
between them and the
Pine Road ‘evictees’, because the allocation occurred in
pursuit of a legitimate governmental
purpose viz in order to allow
for a social housing development to be built on the Pine Road site,
and thus the necessary rational
connection was present. On this basis
too, they contend that any future allocations of housing which are to
be made in respect
of ‘transitional’ housing projects in
the area, which are in the pipeline, can similarly not be challenged
on the grounds
of irrationality. I do not believe that this is a
proper or complete answer to the challenge which has been levied
against these
allocations viz that they were arbitrary and
unreasonable, and I have a number of issues with the way in which
they were made,
and the basis on which they were justified.
151.
In
the first place it appears that, unlike the applicants, none of the
persons who were ‘evicted’ at the instance of
the City
from the informal structures they occupied in Pine Road and who were
then given accommodation in the Pickwick development,
were told they
had to be relocated to a TRA or IDA or another informal settlement,
nor were they required to do so, so that the
area they occupied could
be developed for social housing. In fact, from the ‘rehousing’
terms which were adopted by
council for the Pickwick development it
is apparent that in the event it had been suggested to them that they
should move to a
TRA or IDA they had the right to refuse, in which
event the City would have to accommodate them in the Pickwick
development nonetheless.
[96]
Thus, in their case the City clearly did not consider itself bound to
apply the selfsame policy/policies which it claims were applicable
to
persons rendered homeless as ‘evictees’ in the City. It
has given no reason for why it was not bound to apply its
own
policy/policies and could either disregard them, or choose
selectively when to apply them.
152.
Previously, in a number
of instances where groups of people in the City have been evicted and
relocated in order to make way for
the development of social housing
on land which they occupied, they were not given any preferential
treatment or an option to relocate
to emergency accomodation in the
very area in which they were evicted from, and were required to take
up such accommodation in,
and to be relocated to IDAs or TRAs such as
Wolwerivier and Blikkiesdorp. Not only were the Pine Road ‘evictees’
not
subjected to the same policy regime, but in fact, they were
preferred by being granted housing which was not of an equivalent
emergency
standard (i.e a corrugated structure or building materials)
as other homeless evictees in the City could be expected to receive,

but rooms in a building, and accommodation which was not necessarily
temporary (as emergency accommodation by definition is expected
to
be), but ‘semi-permanent’. In essence therefore, they
were not dealt with at all in terms of the emergency housing

Programme as provided for in Chapter 12 of the Housing Code, being
the Programme which the City says it follows.
153.
In the second place the
allocation of such accommodation to the Pine Road ‘evictees’
and to other future homeless evictees,
does not appear to fit in with
the City’s own stated economic rationale and its averment that
it is unable to provide emergency
housing to evictees in the inner
City for financial reasons and the inner City is reserved only for
social housing, inter alia
because residents pay some form of rental
and therefore contribute to the costs thereof.
154.
Although
the Pine Road ‘evictees’ are supposedly expected to pay
some rental whilst they are accommodated in ‘transitional’

housing, in accordance with their means, the terms of the Pickwick
development clearly provide that they will be subsidized insofar
as
they fall short, via the City’s Rental Indigent Scheme.
[97]
In addition, the ongoing operating costs of the Pickwick project are
also going to be subsidized. The definition of the ‘transitional’

housing which is to be provided to them recognizes that although it
is intended to be temporary, given their financial circumstances
it
is likely that in many instances it will not be, and many of them are
accordingly likely to be accommodated there on a ‘semi-permanent’

basis.
[98]
155.
Given the conditions in
which the residents of informal settlements in Pine Road and Salt
River market were/are living i.e in informal
structures (the City has
referred to them as ‘shacks’), I think it is reasonable
to say that, as in the case of the
applicants, they are in all
likelihood not going to be in a position to afford to pay any
meaningful contribution in lieu of rental.
Yet, despite this the City
does not see this as a financial bar to them being given
accommodation. Clearly, it must have considered
that the cost of
accommodating such persons (who actually qualify only for emergency
housing, which as explained in
Grootboom
is a lower/lesser standard and cost of accommodation), in
semi-permanent rooms in housing developments in Salt River and
Woodstock,
was affordable. In the circumstances one must again
question the cogency of the assertion that emergency housing cannot
be provided
in the Salt River and Woodstock areas, because of
financial constraints.
156.
Although the persons
living in informal structures in informal settlements in Pine Road
were no doubt living in abject, cramped
and confined circumstances
there is no suggestion, on the papers before me, that they were
compelled to have to move urgently under
compulsion of an eviction
order, or the imminent threat of one, unlike the applicants. This is
also not a case where they had to
be moved temporarily, to a nearby
location, so that the area which they occupied could be upgraded for
them and they could then
move back to it. Given their financial
circumstances they are, with all due respect, as unlikely as the
applicants to be able to
afford the housing which will be created in
any of the proposed social housing developments in the area.
Unlike the Pine
Road residents the applicants are subject to an
eviction order that was granted years ago, since which time the 1
st
respondent has been unable to exercise the full compendium of its
rights in respect of its property. One would think that if anyone

should be considered to rank first for the allocation of temporary
accommodation in the ‘transitional’ housing developments

in Woodstock and Salt River it should surely be the applicants, yet
they were not even considered eligible for it, notwithstanding
that
it is supposed to be available not only for persons who have been
relocated in order to give effect to State policy, but also
to those
in the area who are evicted.
157.
To my mind, as was the
case in
Blue
Moonlight
, this
differentiation in treatment in relation to evictees in Woodstock and
Salt River is unfair and unreasonable. Evictees such
as the
applicants who have been living in Woodstock and Salt River for many
years (in some instances since their birth) are at
risk of having to
be relocated either to the outskirts of the City or to informal
settlements outside the City, away from their
workplace, educational
facilities, clinics and places of religious worship, whilst other
evictees will not be subjected to these
same disadvantages.
158.
Consequently, in my
view the differentiation in treatment which the City’s
emergency housing programme affords to homeless
evictees in the inner
City, and in Woodstock and Salt River in particular, is not only
unreasonable but also irrational, because
it is arbitrary in its
implementation. In addition, I agree with the applicants’
contention that the effect of the implementation
of the programme in
the inner-City precinct, and in Woodstock and Salt River in
particular, is to give undue preference to social
housing, at the
expense of the City’s constitutional obligations in relation to
the provision of emergency housing.
159.
Before
I continue, I must make it clear that, as a matter of law, neither
the applicants nor any other evictees in the City have
a right to
demand to be placed in temporary emergency housing in the area or
location in which they live.
[99]
I also accept that it is beyond the remit of the Court’s powers
in matters such as these, even though they may be equity-based,
to
direct where social housing and emergency housing developments should
be constructed. These are by definition matters of state
and policy
which require careful and weighty consideration, by those
functionaries who are empowered by law and who are equipped
with the
necessary expertise, to deal with them. They are not matters which a
Court can or should pronounce on. That would be in
clear breach of
the doctrine of separation of powers and would constitute an
impermissible intrusion into the domain of the executive
and
legislative arms of state. Were a Court to ascribe such a power to
itself it would place an impossible burden on the State,
as it would
result in it having to accommodate evictees who are going to be
rendered homeless, in virtually every suburb or area
in which they
live. For obvious reasons this is untenable.
160.
I further wish to make
it clear that this judgement is not to be construed to afford
evictees such rights, or to place such corresponding
obligations on
the State. This  matter has not been decided on that basis, but
on the basis of whether it is rational or reasonable
for the
applicants to be told that they must take up emergency housing either
in a TRA or an IDA on the outskirts of the City,
or alternatively in
an informal settlement, whilst other similarly-placed persons do not
face the same choice, because they may
have the good fortune of being
afforded ‘transitional’ housing or (as was promised by
the City’s Mayoral Member
for urban development),
‘temporary’ housing, in the inner City and its surrounds.
Conclusion
161.
It must accordingly
follow, for the reasons set out above, that an Order should issue
declaring that the City’s emergency
housing programme and its
implementation, in relation to persons who may be rendered homeless
pursuant to their eviction in the
inner City and its surrounds, and
in Woodstock and Salt River in particular, is unconstitutional.
162.
In the light of such a
declaration, I am enjoined to grant such relief as may be considered
just and equitable. In my view the applicants
are entitled to an
Order directing the City to provide them with ‘temporary’
emergency accommodation or ‘transitional’
housing (as per
the undertakings made by the Mayoral Member for urban development in
July 2017 and as the Affordable Housing Prospectus
for the Woodstock,
Salt River and Inner-City Precinct which was issued on 28 September
2017 envisages) in Woodstock, Salt River
or the Inner-City Precinct,
in a location which is as near as feasibly possible to where the
applicants are currently residing
in Woodstock.
163.
Having regard for the
fact that years have gone by since the eviction Order was granted it
is clearly in the interests of all concerned
that the matter be
brought to finality as soon as possible. (I say this cognizant of the
fact that given the issues involved an
appeal to the higher Courts is
almost a certainty).
164.
However, one must take
into account that as at the date of filing of papers at the end of
2020, there was no spare accommodation
in the Pickwick ‘transitional’
housing development as all its rooms were occupied, and the St James
development was
still in progress, and other ‘transitional’
housing developments which had been proposed for Woodstock and Salt
River
were still in the proverbial ‘pipeline’. Although
the position in regard to these and other possible ‘transitional’

developments or the existence of temporary accommodation in Woodstock
and Salt River or the inner-City precinct, may have changed
since
then, it is not likely that the City will be able to comply with the
Order on the turn, and it will need some time to do
so.
165.
One must also have
regard for the fact that a state of disaster is still in existence as
a result of the Covid-19 pandemic, which
rages on, and it is likely
to be extended for some time, and although encouraging, the number of
persons who have been vaccinated
in the Western Cape is still
relatively low. Currently, a so-called level 3 ‘lockdown’
is in place and before the eviction
Order can be implemented it will
have to have regard for the prevailing circumstances in relation to
the rate, extent and locality
of Covid-19 infections, at the time.
166.
In the circumstances,
it seems to me that the time period of 12 months, which has been
suggested by the applicants in their amended
notice of motion, within
which the City is to comply with the Order, is both reasonable and
appropriate.
167.
For the rest, and
subject to certain qualifications and the provision of certain
ancillary relief, I am in agreement with the further
terms of the
Order, as proposed in the amended notice of motion, which seem to
follow the terms of Orders that were made in similar
matters, such as
those which have been referred to above.
168.
As far as costs are
concerned, in my view these should follow the event. Inasmuch as
first respondent made cause with the City in
opposing the relief
which was sought, in my view the fair and appropriate Order to make
is that it should bear its own costs. I
do not believe that it would
be fair or appropriate that the City should be directed to bear its
costs.
169.
In the result I make
the following Order:
169.1
It is declared that the
second respondent’s emergency housing programme and its
implementation, in relation to persons who
may be rendered homeless
pursuant to their eviction in the inner City and its surrounds, and
in Woodstock and Salt River in particular,
is unconstitutional.
169.2
The second respondent
is directed to provide the applicants and those of their dependents
as may be living with them at the time,
with ‘temporary’
emergency accommodation or ‘transitional’ housing in
Woodstock, Salt River or the Inner-City
Precinct (as defined in the
Affordable Housing Prospectus for the Woodstock, Salt River and
Inner-City Precinct which was issued
on 28 September 2017), in a
location which is as near as feasibly possible to where the
applicants are currently residing at erf
10626, Bromwell Street,
Woodstock; within 12 months of the date of this Order.
169.3
The second respondent
is directed to deliver a report to the Court, within 4 months of the
date of this Order, which is confirmed
on affidavit, in which it
details the emergency accommodation or ‘transitional’
housing that it will make available
to the applicants, and the
location thereof and the date when it will be made available, and in
which it deals with the proximity
of such accommodation or housing to
1) erf 10626, Bromwell Street, Woodstock and 2) to public and private
transport, and educational
and medical and health facilities, and
explains why the particular location and form of
accommodation/housing has been selected,
and what steps were taken by
it to engage the applicants regarding the provision of accommodation
or housing in compliance with
this Order.
169.4
The applicants may
serve and file affidavits, if any, dealing with the contents of the
report referred to in the preceding paragraph,
within 10 court days
of the date of the service and filing of the aforesaid report,
whereafter the matter may be re-enrolled on
a date to be determined
by the Registrar in consultation with the presiding Judge, for
determination as to such further and/or
additional relief as may be
necessary or appropriate.
169.5
Pending the final
outcome of this matter, execution of the Order which was granted for
the eviction of the applicants (as extended)
shall be suspended.
169.6
Second respondent shall
be liable for the costs of this application, including the costs of
two counsel (insofar as two counsel
may have been employed).
M
SHER
Judge
of the High Court
(Digital
signature)
Appearances:
Applicants’
counsel: S Magardie and S Khoza
Applicants’
attorneys: Ndifuna Ukwazi Law Centre
First
respondent’s counsel: R Randall
First
respondent’s attorneys: Marlon, Shevelew & Associates Inc
Second
respondent’s counsel: K Pillay SC
Second
respondent’s attorneys: Fairbridge Wertheim Becker
[1]
Separate applications were launched in respect of family units and
individual households under case numbers 13945/16, 13946/16;

13947/16; 13951/16 and 13952/16, in respect of which a consolidated
eviction order was granted directing the applicants to vacate
the
premises they occupied on or before 31 July 2016. The order was
later amended by agreement on 19 August 2016 per Weinkove
AJ, to
provide for a month’s extension.
[2]
On the
duty of a Court to satisfy itself that an eviction order is just and
equitable notwithstanding that it is purportedly being
sought by
agreement vide
Occupiers
of Erven 87 & 88 Berea v De Wet N.O & Ano
2017 (5) SA 346 (CC).
[3]
Under case no. 14050/16.
[4]
First respondent offered to contribute an amount of R 50 000 to the
applicants and initiated a public ‘crowd-funding’

campaign which raised a further R25 000. These monies were however
not paid over to the applicants.  First respondent requested

the applicants’ attorneys to take over the campaign, which
they were not able to do at the time. They accordingly requested
the
first respondent to retain control over the campaign and the funds,
which it was not prepared to do. According to an affidavit
which was
filed by first respondent’s director in January 2017, the
campaign was terminated by it in December and the contributors’

funds were refunded to them.
[5]
Social housing is regulated by the Social Housing Regulatory
Authority, established in terms of the
Social Housing Act 16 of
2008
.
[6]
Para
2.3 of
The
Woodstock, Salt River and Inner-City Precinct Affordable Housing
Prospectus
, issued on
25 September 2017.
[7]
Para 53, at p 544.
[8]
An
affidavit reporting on the outcome of these applications was filed
by the applicants’ attorney in December 2016
vide
pp 1714-1729 of the record.
[9]
None of the applicants were earning enough to afford a home loan to
purchase the GAP housing which was available (ie in excess
of either
R 6000 pm or depending on the circumstances R 7500 pm) or to apply
for FLISP housing (‘finance-linked individual
subsidy’
housing which is available to persons earning between R 3500 and R
15 000 pm). In addition, the CTHC had no subsidized
stock available
and Urban Rentals NPC had not yet constructed any units.
[10]
In an affidavit by the Director of Informal Settlements dated 30
January 2017
the
City confirmed that there was no public transport directly to
Wolwerivier but ‘should it be required’ (?) the
local
bus company would be asked to place a bus stop there, on its route
to Atlantis.
[11]
Id
,
para 15 p 1974 of the record.
[12]
At p 39 thereof, p 659 of the record.
[13]
Para
97, p 559.
[14]
Act
107 of 1997.
[15]
Para 190, p 593.
[16]
Paras 138 and 143.2, pp 573-574.
[17]
Para
190, p 593.
[18]
Para 193, p 594.
[19]
Para
66.2, p 551.
[20]
The full text of which can be found at pp 2476-2483 of the record.
[21]
From social housing units for household with a monthly income of
less than R 15 000 pm, to GAP rental housing for households
with a
monthly income of between R 3 500 and R 20 000 pm.
[22]
Page
2487-2488 of the record.
[23]
Pages 2494-2516 of the record.
[24]
According
to Cllr Herron the total cost for the project was R 11.1 million, of
which it seems as if just short of R 5 million
was to be funded from
grants from the Communal Residential Budget, in terms of an approval
which was granted in January 2017.
[25]
Page 2499.
[26]
Page 2501.
[27]
Para 9, p 2498.
[28]
Page 2521.
[29]
Page
2522.
[30]
Page
2549.
[31]
Para 17, p 2536.
[32]
Para 29, p 2543.
[33]
Pages 2790-2792.
[34]
Para 93, p 2788.
[35]
Act 19 of 1998.
[36]
Port Elizabeth
Municipality v Various Occupiers
[2004] ZACC 7
;
2005
(1) SA 217
(CC), para 23.
[37]
Id
.
[38]
Government
of the Republic of South Africa & Ors v Grootboom & Ors
2001
(1) SA 46
(CC), para 45.
[39]
Id,
para
35
.
[40]
Id.
[41]
Id,
para
36.
[42]
Id
.
[43]
Id
,
para 37.
[44]
Id
,
para 24.
[45]
City
of Johannesburg Metropolitan Municipality v Blue Moonlight
Properties 39 (Pty) Ltd & Ano
2012 (2) SA 104
(CC), para 88.
[46]
Van Der Walt v Metcash
Trading Ltd
2002 (4)
SA 317 (CC).
[47]
Act 107 of 1997.
[48]
Section
9(1)(a)(i). These functions must be exercised in accordance with
those set out in the Local Government: Municipal Systems
Ac 32 of
2000. Section 4 (2)(j) thereof stipulates that a municipal council
has a duty to contribute to the progressive realization
of the
fundamental rights contained in s 26 of the Constitution, and to
ensure that the municipality’s legislative and
executive
authority and its resources are used in the best interests of the
local community (s 4 (2)(a)).
[49]
Section
9(1)(b).
[50]
Section
9(1)(c).
[51]
Section
9(1)(f).
[52]
Which are transferred in terms of the
Division of Revenue Act
[53
]
Para 2.6.2 of Part A of
Part 3
of the Code.
[54]
Id
,
para 2.6.3.
[55]
Id
,
para 2.6.1.
[56]
It is on this basis that the City has established its so-called
‘temporary relocation areas’.
[57]
Act 52
of 1951.
[58]
Note
36, para 8.
[59]
Id
,
para 9.
[60]
Id
,
para 12.
[61]
Para
35.
[62]
2000
(2) SA 1074 (SECLD).
[63]
P
ara
37.
[64]
P
ara
36.
[65]
Para
38.
[66]
Nlovu v Ngcobo; Bekker
& Ano v Jika
2003
(1) SA 113
(SCA), para 17;
City
of Johannesburg v Changing Tides
74 (Pty) Ltd & Ors
2012 (6) SA 294
(SCA), para 17.
[67]
Note
45, para 87.
[68]
Id
,
citing
Harksen v Lane
N.O & Ors
[1997] ZACC 12
;
1998
(1) SA 300
(CC), para 43.
[69]
Id
.
[70]
Pharmaceutical
Manufacturers Association of South Africa & Ano: In re Ex parte
President of the Republic of South Africa
2000
(4) SA 674
(CC), para 85.
[71]
S v Makwanyane &
Ors
[1995] ZACC 3
;
1995 (3) SA 391
(CC), para 156.
[72]
City
of Johannesburg Metropolitan Municipality v Blue Moonlight
Properties 39 (Pty) Ltd & Ano
2011 (4) SA 337
(SCA), para 63.
[73]
Note 38, para 42.
[74]
Id
.
[75]
Id,
para 38.
[76]
Para
41.
[77]
P
ara
43.
[78]
P
ara
44.
[79]
Id.
[80]
P
ara
43.
[81]
Paras 46 and 94.
[82]
Note 45, paras 63, 66 and 67.
[83]
Id
,
para 67.
[84]
Para 74.
[85]
Minister of Health &
Ors v Treatment Action Campaign & Ors (No.2)
[2002] ZACC 15
;
2002 (5) SA 721
(CC), para 38.
[86]
City
of Johannesburg Metropolitan Municipality v Blue Moonlight
Properties 39 (Pty) Ltd & Ano
2011 (4) SA 337
(SCA), para 73.
[87]
Ms Royston has an impressive
curriculum
vitae
. Aside from an
MSc in Development Planning, she has conducted research and
presented a number of academic papers and published
extensively on
urban land tenure security, access to housing and the upgrading of
informal settlements. She has wide-ranging
integrated development
planning experience and was involved in developing a housing
planning model for the National Department
of Housing (now Human
Settlements). She has served as the member of a panel responsible
for assessing municipal capacity and
compliance for housing
accreditation and making recommendations pertaining thereto, to
provincial housing MECs.
[88]
In the
form of deductions in respect of capital expenditure for private
residential or commercial developments, pursuant to the
Taxation
Laws Amendment Act 22 of 2012
.
[89]
The geographic area of the UDZ has been extended to include
Maitland, Parow and Oakdale.
[90]
Via amendments to the municipal planning by-laws and zoning schemes
between 2012 and 2015.
[91]
P
aras
42-48, pp 540-542 of the record.
[92]
In
City of
Johannesburg Metropolitan Municipality v Changing Tides 74 (Pty) Ltd
& Ors
2012 (6) SA
294
(SCA it was ordered that accommodation be provided in a location
‘as near as feasibly possible’ to where the applicants

were evicted, and in
Blue
Moonlight
n 45 it was
ordered to be ‘as near as possible’ thereto.
[93]
Vide
the definition of ‘transitional housing’ at para 3 of
the CRU Feasibility Study, p 2498.
[94]
Page 2790.
[95]
Curiously, in this regard it also complained about ‘high rates
and taxes’ which are applicable to land in the City.
How these
would be applicable to State or City-owned land, as opposed to
privately-owned land, is not clear.
[96]
Para 6 of the CRU Feasibility Study, pp 2500-2501.
[97]
Para 8.2 of the CRU Feasibility Study, which was adopted as part of
Council’s resolution on 25 July 2017, pp 2508-2509
of the
record.
[98]
Para 3, p 2498.
[99]
In
Residents
of Joe Slovo Community, Western Cape v Thubelisha Homes & Ors
(Centre on Housing Rights and Another, Amici Curiae)
2010
(3) SA 454
(CC), para 254 Ngcobo J (as he then was) pointed out that
the Constitution does not guarantee a person a right to housing at

government expense at the locality of his or her choice.