A recent South African High Court decision, Changing Tides 74 v City of Johannesburg, marks a significant legal turn, testing how private law can respond to chronic state inaction in the context of the urgent need for spatial and housing justice.

The facts are grimly familiar. Johannesburg’s persistent housing crisis has led to so-called “hijacked buildings”: properties being unlawfully occupied, often in uninhabitable conditions, with the City of Johannesburg (the City) failing to provide alternative accommodation for residents despite court orders requiring it to do so. This issue was devastatingly highlighted by the Usindiso building fire in August 2023, which killed 76 people and prompted a Commission of Inquiry into the conditions of inner-city buildings and the institutional failures that enable them.

This particular case arises from a 2012 court order directing the City to provide temporary alternative accommodation to 249 residents unlawfully occupying a 11-storey building owned by the plaintiff company in the inner-city so that an eviction could proceed. Years passed. The City repeatedly failed to comply with valid court orders. Eventually, the City provided accommodation in 2016, three years after its original deadline. The City argued that it had made offers of accommodation, but they were found inadequate by the residents – some required gender segregation, or offered insufficient beds. In the interim, the occupiers remained, and the building’s commercial owner eventually brought a claim to be heard under the commercial court rules. The company argued that the City’s failure simultaneously harmed the company’s right to property and the residents’ already precarious right to access adequate housing. This argument framed these rights as being intertwined, rather than in opposition: the company and the residents share an interest in holding the state accountable for its systemic failures.

The High Court (Mahosi J) agreed and upheld the company’s delictual claim, finding that the City’s failure to provide accommodation in line with the earlier court order was unlawful, and that the City is liable for the company’s economic loss of rental income to the tune of over R12 million. This is a notable shift: traditionally, South Africa’s delictual (tort) law is reluctant to recognise claims for pure economic loss, and is doubly cautious where the loss stems from an omission (failure to act). Previously, the Constitutional Court warned that recognising these claims could open the floodgates to indeterminate liability, with the wrongfulness enquiry typically serving as a dam against liability. In Changing Tides, conversely, the High Court found the City’s omission to be unlawful. That finding relies on heavy normative lifting: it suggests that the state’s ongoing failure to comply with court orders and fulfil the right to housing can, in certain circumstances, ground private law claims for economic loss.

This remedial shift is particularly noteworthy given recent, regrettable, judgments that declined to award constitutional damages (that is, a remedy sounding in damages for the breach of a constitutional right) despite protracted state inaction, leaving housing rights claimants without effective remedy. Where constitutional damages have been constrained by this jurisprudence, delict may now emerge as an alternative channel, though not without conceptual strain.

The judgment also complicates how we understand the role of private actors in the constitutional scheme. The South African Constitution anticipates that, in appropriate circumstances, private entities bear duties to realise fundamental rights. The question is no longer whether private actors bear constitutional obligations to realise fundamental rights, but how far these extend and in what contexts, with much of the work lying in determining the appropriate weight to be accorded to competing rights. Changing Tides, then, extends the jurisprudence of Blue Moonlight, where the Constitutional Court recognised that commercial property owners must sometimes be “patient” and continue to provide housing to occupiers until the state fulfils its housing obligations. Changing Tides now suggests that this patience has limits. The judgment also challenges the narrative that pits socioeconomic rights against commercial interests, and instead emphasises the ultimate obligations of the state. In that sense, the judgment may say less about expanding horizontal duties than about ratcheting up pressure on the state.

But this in turn raises troubling questions about remedial priorities and resource constraints. Should public funds be directed to compensate a company — especially when the company may have purchased the building aware of the risk? The outcome in Changing Tides is especially striking. A commercial property owner is awarded substantial damages, while in other cases – involving vulnerable residents left without recourse after years of state failure – the Constitutional Court has refused compensation altogether, often citing the unsustainable fiscal implications for the state. This disparity is all the more jarring given stark economic inequalities, and the shared backdrop of chronic state non-compliance. The judgment, too, throws into sharp relief the tension between backwards-looking, corrective aims and forwards-looking distributive ones: between redressing loss suffered by one party, and ensuring the state can meet its obligations towards all.

This case also represents another wave in the judiciary’s attempts to navigate state dysfunction. Courts have used structural interdicts, contempt orders, and now, potentially, delictual damages. Whether delict is the right doctrinal vehicle for these purposes remains a live question, especially given previous precedent that when a private owner cannot execute an eviction order due to state failure, this may amount to an expropriation requiring compensation.

Currently being appealed, the judgment’s reasoning will face close scrutiny which may limit its prospects as precedent and with it, the broader implications for municipalities nationwide. The fundamental challenge remains: how to craft remedial doctrines that effectively incentivise state compliance in the face of undeniable misconduct, while acknowledging fiscal constraints and avoiding remedies that, perversely, may jeopardise the realisation of socioeconomic rights. Ultimately, whether Changing Tides signals a tidal shift or a passing ripple remains to be seen.