If you read our last post, you’ll be familiar with section 25 of the Constitution and the calculation of compensation for expropriation. But section 25(5) also provides that the state must enable citizens to gain access to land on an equitable basis. What’s more, section 26 provides that “everyone has the right to access to adequate housing” and places a duty upon the state to progressively facilitate access to adequate housing within its available resources.
SOUTH AFRICA’S HOUSING CRISIS
But who’s “everyone”? One would have to live either under a rock or in permanent seclusion atop Clifton Beach to be unaware of South Africa’s massive housing crisis. It is estimated that there is a shortfall of approximately 2.1 million homes for about 12.5 million people for whom the right of access to adequate housing is not a reality – a sad fact illuminated by three examples:
- In 2000, the Constitutional Court (“ConCourt”) in Grootboom examined the question of how enforceable the right of access to adequate housing is. Ms Grootboom, the Respondent, was part of a group of disenfranchised occupants who had unlawfully occupied private property while in the queue for low-cost housing built by the local municipality. They were forcibly removed from their homes. At paragraphs 93-99 of the judgment, Justice Zak Jacoob found that section 26 obliged the state to “devise and implement a coherent, co-ordinated programme designed to meet its section 26 obligations” and that the programme in the Cape Metropolitan Council fell short of those obligations because it failed to make reasonable provision for people with no access to land and who were living in intolerable conditions.
- In late 2019, we watched as approximately 600 refugees of foreign origin occupied the Central Methodist Church in Greenmarket Square, Cape Town. While the church had initially offered its premises freely, the relationship eventually soured and the refugees were evicted in March 2020. In its papers, the City of Cape Town (“the City”) made the claim that it was unable to provide alternative accommodation for the refugees because there were already over 1000 South African citizens who were waiting for accommodation.
- In June 2020, during an eviction operation, the City’s Anti-Land Invasion Unit infamously dragged a naked Bulelani Qholani from his shack in eThembeni, Khayelitsha, without affording him even a few minutes to put a shirt on his back. He was later assisted by the Legal Resources Centre in a claim against the City. Several officers were suspended. Scarcely a month later, Mayor Dan Plato warned that Cape Town is “under siege with illegal land invasions.”
You may have noticed a curious pattern here: the legacy of spatial planning implemented during apartheid remains especially visible in the Mother City, where over 60 000 black people were forcibly removed from District 6 during the 1970s. The housing crisis we face today is inextricably linked to apartheid policies and Cape Town remains one of South Africa’s most racially divided cities. But amidst the dearth of available land and the resulting profusion of eviction proceedings, a recent judgment has reignited hope for spatial transformation in the City.
THE TAFELBERG JUDGMENT
Housing and land reform activists rejoiced on 31 August 2020, when the Western Cape High Court handed down its judgment in the matter of Adonisi and Others v Minister for Transport and Public Works Western Cape and Others (the “Tafelberg judgment”).
The Tafelberg judgment concerned a site, known as “Tafelberg” in Sea Point, Cape Town, which housed a derelict school building and a block of flats. The last school on the property was closed in 2010 and the premises remained unused from 2010 to 2020. However, in August 2010, the City took steps to determine the most suitable way to utilise the property. In 2016, the site was sold to a private school for R135m. Reclaim the City (“RTC“) and others challenged the sale, applying to have it reviewed and set aside.
The crux of RTC’s case is “the legacy of segregated living areas imposed on the people of our country by a plethora of legislation passed under the apartheid government” and that spatial apartheid has created an “unjust, inefficient and ultimately unsustainable segregated urban environment” in which black and coloured people remain on the outskirts of the City, far away from jobs, amenities and services (para 36). Prof. Susan Parnell, an expert for RTC, stated:
“Over the past two decades government has failed to remedy [spatial apartheid] by not meaningfully inregrating black and coloured working class people into the central city. The rising costs of market-rate housing (rented or owned) and government failures to meaningfully encourage social and affordable housing in well-located areas (through radically up-scaled public provision or private regulation) have increasingly pushed poor, working middle-class families further away from economic and social centres. This sustains and advances the racial and class divides of apartheid.” (para 35)
According to RTC, the state’s section 26 duty also creates a duty to progressively address historic and ongoing spatial injustice. Drawing on legislation such as the Social Housing Act No. 16 of 2008 (“SHA”) and the Spatial Planning and Land Use Management Act No. 16 of 2013 (“SPLUMA”), the court ultimately held that the City had breached its constitutional obligations and had failed to “take adequate steps to redress spatial apartheid in central Cape Town.” Central to this finding was the fact that in 2013, the Department of Human Settlements had made submissions that the Tafelberg site was critical for the construction of affordable social rental housing in the vicinity of job opportunities, amenities, and public transport. Because it was unfeasible to purchase land with similar opportunities to Tafelberg at market-related cost due to the high land costs in the Western Cape, Tafelberg offered a huge opportunity to take a step towards addressing spatial apartheid and building social housing within the borders of the City.
Ultimately, the court ordered the City and the Western Cape Province (“the Province”) to file a report by 31 May 2021, detailing “what steps they have taken to comply with their constitutional and statutory obligations as set out above, what future steps they will take in that regard and when such future steps will be taken” (para 5 of the order). The report must include policies for social housing as contemplated in the SHA. The judgment was widely lauded as affirming state obligations to address and remedy spatial apartheid.
ENFORCEABILITY OF SOCIO-ECONOMIC RIGHTS
However, instead of filing said report, the City applied for leave to appeal the judgment on 12 March 2021, arguing that it has no enforceable legal obligation to address spatial apartheid by directly providing social housing in the city centre. If the City obtains leave, the matter will come before the Supreme Court of Appeal. It is not difficult to imagine that whether the outcome is in favour of the City or not, this case will eventually come before the ConCourt.
In my view, this case is critical to South Africa’s land reform and housing jurisprudence because it goes to the very heart of our Constitution and the justiciability of socio-economic rights such as the right of access to adequate housing. A ConCourt ruling would be a historic opportunity to clarify what kinds of obligations the state actually has to deliver on access to housing and land, how citizens can hold the state accountable to those obligations, and whether those obligations are linked to a duty to address and remedy the legacy of spatial apartheid.
We need such a judgment. Think back for a moment to Ms Irene Grootboom, the Respondent in the seminal ConCourt case we discussed earlier. Despite obtaining a judgment in her favour, she died without a home. Her right to access to housing remained an illusion for her entire life. More recently, on 18 February 2021, the ConCourt heard arguments in Thubakgale and Others v Ekurhuleni Metropolitan Municipality, a matter in which the Applicants have three court cases in their favour but have been waiting for houses from the municipality since 1998. Both these cases are powerful reminders that socio-economic rights are nothing more than a comforting dream for many.
We cannot expect the law to solve all of society’s ills. But what meaning does our Constitution – so often lauded as one of the most progressive in the world – hold, if the rights contained in it are not materially enforceable, and if our municipalities do not consider themselves bound by them? Who’s “everyone”, indeed?
Although there’s much more to this issue, we don’t have space for more here. If you’re interested in reading further, consider Daniel Linde’s great summary of the Tafelberg judgment on GroundUp or Kyla Hazell’s discussion of the City’s obligation to address spatial apartheid.