Families from a coloured community who lived for generations in Cape Town and withstood apartheid removal challenged the City of Cape Town’s policy that has forced them to leave their ancestral homes.
The city, however, told the Constitutional Court on Tuesday it did everything it could and engaged with the residents.
If the court rules against the city it could affect how every municipality manages emergency housing policies around the country.
In 2014, families renting property in four adjoining cottages in Bromwell Street, Woodstock, received letters from their landlords cancelling their leases. This affected more than 40 people, including 17 children.
The property as a whole had been sold by the previous landlords to property development company Woodstock Hub for R3m. The company wants to convert the property into rental apartments for the middle-income market.
In early 2016, judge president John Hlophe, before his suspension and recent impeachment, granted an eviction order in favour of Woodstock Hub.
Later in 2016, the families engaged with city officials, including then mayor Patricia de Lille, concerning availability of alternative accommodation. This included attempts by the city to place them on waiting lists because it said it had little to no housing available at the time.
The Bromwell families and the city argued in the Cape Town high court for years. In that time the city offered emergency accommodation but the options were all on the outskirts of Cape Town.
The families rejected these due to distance and the difficulties of travel. For example, the families said, one of the places the city offered was almost 30km away, making travel costs excessive and threatening school attendance for the children.
Four years after hearing the matter, Cape Town judge Mark Sher declared the city’s housing programme and conduct unconstitutional. The city appealed to the Supreme Court of Appeal (SCA) and successfully overturned the high court’s finding in 2023.
The families appealed the SCA finding to the Constitutional Court on Tuesday.
Sheldon Magardie, acting for the families, said the way the city responded “is indicative of [its] unreasonable approach throughout this litigation”. Only three members of the Bromwell families were offered social housing, which is low-income permanent housing. The rest did not meet the income threshold of about R1,500.
All they had was emergency accommodation, they said, which was meant to be temporary. Yet, as Magardie noted, the city adopted a “policy position that emergency housing [would not be] provided in the inner city”. This would severely affect the families’ ability to work and for the children to go to school.
Acting justice Matthew Chaskalson said: “This particular community is one of a small handful that managed to survive apartheid intact in a white area.” He noted the “irony” that in “a post-apartheid democratic society”, they are being evicted “in the interest of urban regeneration”.
However, justice Leona Theron repeatedly challenged Magardie to point out precisely which policy or programme was unconstitutional. Magardie said there was no single document.
Jason Brickhill for Abahlali baseMjondolo, a social housing movement, said there was nothing unusual about a policy not being written down. Brickhill said “it would be perverse” if the government could avoid legal scrutiny by not writing down policies that would affect vulnerable people.
Karrisha Pillay for the city said it was not the court’s role “to inquire into whether there were more desirable” locations for accommodation. That was entirely the role of government. She argued the Bromwell families were trying to set their own “ultimate threshold” for accommodation as being located only in the inner city.
She noted the city itself implemented national housing law and there was no challenge to that law. She also noted the Bromwell families would get “first option” for social housing.
She said it could not be the case that housing went to “those who scream the loudest” or who were able “to get into court because of NGOs”. This would leave “the most desperate homeless”.
Judgment was reserved.
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