SCA unanimously upholds City appeal in ‘Bromwell Street’ matter

The Supreme Court of Appeal (SCA) has unanimously upheld the City of Cape Town’s appeal in the ‘Bromwell Street’ matter, dismissing the High Court ruling, which deemed the City’s housing programme unconstitutional and invalid. Read more below:

The applicants in the Bromwell matter had demanded temporary emergency housing in the specific areas of Salt River, Woodstock or the inner City, rejecting all offers of temporary emergency housing made by the City at the time. This followed the High Court granting an eviction order for a privately-owned property at Bromwell Street, Woodstock.

Due to a scarcity of land and prohibitive costs, the City has a policy of delivering affordable social rental housing on the limited municipal-owned land available to it for housing within central Cape Town. This land is not earmarked for temporary emergency housing as the applicants demanded.

The Western Cape High Court order, which effectively ruled that the City was obliged to provide temporary emergency housing in these well located areas, and that its policy in this respect was unconstitutional, was appealed by the City on the basis that the ruling would fundamentally compromise the City’s social housing rollout in the inner city and surrounds.

The SCA agreed and found that “the City was entitled to adapt its housing programme to address the effects of gentrification, among other challenges. It did so by identifying Woodstock, Salt River and the surrounds as areas to develop affordable social housing. It is not clear what could be objectionable about the City seeking to build affordable houses in the inner city as part of addressing the legacy of apartheid spatial planning.”

The SCA further stated that the applicants – represented by Ndifuna Ukwazi – had failed to provide “any legal basis set out in support of this constitutional attack [on the City’s housing programme] anywhere in the papers. Neither were the impugned portions of the Five-Year Plan identified, nor the relevant constitutional or statutory provisions infringed.”

The SCA pointed out that the High Court “went on to make the very order that it found it could not grant”, given the Constitutional Court precedent that “the Constitution does not guarantee a person a right to housing at government expense at the locality of his or her choice”, and confirmed this would be an “impossible burden” on the State.

The SCA further dismissed the High court’s costs order against the City, replacing this with no order as to costs.

The City will now determine the number of occupants remaining at Bromwell Street, including their socio-economic conditions, before further engagements on alternative emergency accommodation.

Issued by the City of Cape Town, 6 February 2023