On 20 December 2024, South Africa’s Constitutional Court (‘Court’) handed down a landmark judgment in Commando and Others v The City of Cape Town addressing the important issue of spatial justice in urban areas. In its ruling, the Court criticised the City of Cape Town for adopting policies that mirror and perpetuate apartheid-era injustices, declaring them unconstitutional. The judgment challenges a longstanding problem where low-income households have been displaced from city centres, excluding them from valuable resources, social capital, and opportunities. Accentuated by the government’s failures, equitable access to urban land remains a very contentious issue across the country.

Background

In 2015, property development and management company Woodstock Hub instituted eviction proceedings against 15 families residing on a property situated on Bromwell Street in Woodstock, Cape Town after purchasing the property in October 2013. At the time, the Bromwell residents had lived on this property for generations under lease agreements with the previous owners. The eviction was instituted under the Prevention of Illegal Eviction and Unlawful Occupation of Land Act 19 of 1998 (PIE Act), and in March 2016, the Western Cape High Court granted the eviction ordering the families to vacate the property by July 2016.

Woodstock Hub purchased the property with plans to develop middle-income rental units priced between R5,000 (GBP 220) and R9,000 (GBP 390) per month. The Bromwell residents had been paying no more than R2,000 (GBP 87) rental per month.

Fulfilling its constitutional obligation to provide alternative accommodation to residents who would be rendered homeless by the eviction, the City of Cape Town offered the Bromwell residents temporary emergency accommodation in informal settlements like Wolwerivier, located far (approximately 30kms) from the city centre. The Supreme Court of Appeal upheld the High Court’s decision granting the eviction, prompting the Bromwell residents to appeal to the Constitutional Court.

Arguments before the Constitutional Court

The key issue before the Constitutional Court was whether the municipality’s duty to provide temporary emergency housing extends to ensuring accommodation at a specific location. The City argued that its Emergency Housing Policy prioritised social housing in the inner city and that the policy was reasonable. It also argued that Section 26 of the Constitution, that related to housing provision and evictions, does not establish a duty on the state to make temporary emergency accommodation available at a specific location.

Court’s findings

The Constitutional Court rejected the City’s arguments and made several key findings. Firstly, the Court held that although the law does not currently grant evictees the right to emergency housing in a specific location, jurisprudence on the right to access to adequate housing has evolved. Courts now recognise that addressing poverty is a legitimate judicial concern. The Court was of the view that the state has a constitutional duty to allocate resources in a way that ensures the progressive realisation of all socio-economic rights, including the right to housing.

Secondly, the link between section 26 (which guarantees the right to have access to adequate housing) and section 25(5) of the Constitution (which mandates the state to enable citizens to gain access to land on an equitable basis) recognises that access to land is fundamental to realising the right to housing. This must be understood in the broader context of gentrification and spatial inequality.

Thirdly, location is significant to address spatial inequality and past injustice. The Court further emphasised the importance of respecting other rights of individuals such as family life, education, and access to employment opportunities, all closely bound to where people reside.

Conclusion

In summary, the court found that the City’s policies do not adequately consider the realities and the personal circumstances of those who are affected by evictions, especially as a result of gentrification. The judgment emphasises the need to develop policies that respond to these realities. It also directed the City to provide the Bromwell residents with temporary emergency accommodation at a location as near as possible to the Bromwell street.