The Constitutional Court's order on December 20 is a landmark judgment, advancing jurisprudence by specifying "location" of the alternative housing provided to those evicted as an "essential component of adequate housing".
One of the few Black communities to have survived the Apartheid-era evictions from Cape Town just won a crucial legal battle against attempts by city authorities to evict them. The community was one of the few that survived Apartheid-era attempts to evict all Black communities and create an exclusively White-settler city. Their eight-year-long legal battle was against attempts by the city authorities' to evict them in service of real estate interests.
"The gentrification policy" of the City of Cape Town in the post-Apartheid Republic of South Africa "seeks to achieve that which the forced removal policy of apartheid failed to achieve and destroy one of the only communities that had managed to resist removals from 'white' Cape," read the judgment of the Constitutional Court on December 20.
"It is unconscionable that residents should now, in the new democracy, face the ignominy of apartheid-style displacement when they had fought gallantly to remain in their properties."
Resisting displacement
For nearly a hundred years, lease agreements passed over five generations, as the families held onto their homes on Bromwell Street in Woodstock. Along with the neighboring suburb of Salt River, Woodstock is among the few well-located areas of the city "where people of color were able to survive the forced removals under apartheid. It was home mainly to poor workers in the once thriving textile industry in Cape Town," said George Bonono, vice-president of South Africa's shack dwellers movement, Abahlali baseMjondolo (AbM).
Even after the demise of this industry, workers had been able to afford rents in this area, which is well-connected to services and has work opportunities nearby. This began to change with the City's adoption of the Woodstock and Salt River Revitalization Framework ('WSRF') policy in 2003 as it set out to gentrify the area, declaring it an Urban Development Zone in 2012.
Huge tax breaks and other financial handouts were given to private property developers. Consequently, the average sale price of houses went up from what used to be between R100,000 to 300,000 in 2003 to over R1.6 million by 2015, the judgment noted.
Owners began selling their houses -- homes to families staying there on rent or lease for generations -- to property developers, who sought eviction of the tenants. The Bromwell Street Community is among the last survivors.
Real estate interests came for their homes in late 2013, when Woodstock Hub bought the property, consisting of five adjoining cottages on a single plot, for R3.15 million, whereas sale prices of properties on Bromwell Street had never exceeded R750,000 until 2003. Demolishing the houses the residents had rented for R300 to R2,000, Woodstock Hub intended to build apartments, to be rented out from R,5000 to R,9000 a month.
"Property market is replicating spatial apartheid"
It was "clearly foreseeable" that the financial incentives the City authorities were offering to real estate developers "would have the effect of raising property prices, and thus rent for those who leased these properties," the judgment observed.
The "existing residents of these areas, who are the most seriously economically disadvantaged, would be unable to afford that rent and would thus be forced to move elsewhere, potentially through eviction, as existing owners sell their buildings. Gentrification without putting in place policies to mitigate its negative consequences will thus inevitably lead to a loss of existing access to adequate housing," it added.
The City offered to relocate them to Wolwerivier, an Emergency Housing Camp on the outskirts of the city, that had been developed in 2015 to place those evicted from the inner city. However, the camp is also 30 km away from the city center, and lacks healthcare facilities and schools, and has few job opportunities nearby. There is no public transport to the inner city where Bromwell residents work.
Today, three generations of families live crammed in single housing units in this overcrowded camp, which the Daily Maverick described in a report earlier this year as "hell on Earth".
When the Bromwell residents refused to accept this accommodation, the City offered them zinc sheet shacks in Kampies, which, at the time in 2020, was a COVID-infested emergency housing site 15 km away from the city center. 140 families who had already been dumped there after evictions were struggling with a shortage of water, electricity and toilets.
It is a "sad irony" that survivors of the apartheid-era "forced removals" from the city were once again threatened with "displacement" to the outskirts - this time by "an exclusionary property market" that is "replicating spatial apartheid", remarked Bonono.
But the Bromwell families resisted. With legal representation from the Ndifuna Ukwazi law center, they first won the case in the Western Cape High Court in September 2021. It had ruled that their eviction without provision of emergency accommodation within Woodstock, Salt River or the other areas of the inner city precinct would be unconstitutional. When this ruling was overturned by the Supreme Court of Appeal (SCA) in February 2023, Bromwell residents approached the Constitutional Court.
In February 2024, AbM, represented by the Socio-Economic Rights Institute (SERI), intervened as the amicus curiae (friend of the court). Drawing on its nearly two decades of experience on the forefront of the struggle for the poor people's right to urban housing, the radical shack dwellers' movement gave a detailed deposition.
Location matters
Citing legal implications of the cases it has won against municipalities to international law obligations, AbM argued that eviction of inner-city residents can be "just and equitable" only when the "temporary emergency accommodation" is provided "within the inner city or its surrounds."
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"Presently, the law does not provide evictees with a right to emergency housing in a specific location. However, the jurisprudence on the right of access to adequate housing has progressively developed over the years, such that the redress of poverty has now become a legitimate issue of judicial concern," read the court's judgment on December 20, ruling in favor of Bromwell residents.
"It is important to recognize that for people who live in circumstances of extreme vulnerability, location may be an important or essential component of adequate housing, without which, they will be denied their most basic needs as they will not be able to access employment, healthcare and education for their children," it added.
Of the 48 residents at the time this case started, two have passed away, and several others vacated their homes while the dispute dragged on for eight years. Today, approximately 20 residents remain, and cannot be evicted without alternative accommodation within the inner city.
"But the broader implication of this judgment" goes far beyond these 20 residents, marking a major milestone in jurisprudence by acknowledging that "location matters", Bonono said.
"The Court's approach to location as an aspect of adequate alternative accommodation has the potential to significantly influence how South Africa's cities will look in generations to come; who will live in them; and which sections of society are at the heart of our cities or at their margins," AbM had said in its deposition before the court.
