THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 1303/2021

In the matter between:
CITY OF CAPE TOWN
APPELLANT
and
CHARNELL COMMANDO
FIRST RESPONDENT
GERALDINE STEPHANIE CUPIDO
SECOND RESPONDENT
NORMAN ANDREW CUPIDO
THIRD RESPONDENT
GICILLE VANESSA COMMANDO
FOURTH RESPONDENT
WILLEM NEL
FIFTH RESPONDENT
MEESHADE JACOBA NEL
SIXTH RESPONDENT
DAPHNE NEL
SEVENTH RESPONDENT
PRISCILLA NEL
EIGHTH RESPONDENT
DYLAN NEL
NINTH RESPONDENT
MA-AIDA ABELS
TENTH RESPONDENT
SULAIMAN GOLIATH
ELEVENTH RESPONDENT
FAIZA FISHER
TWELFTH RESPONDENT
GEORGE FARIA RODRIGUES
THIRTEENTH RESPONDENT
NASHIET ABELS
FOURTEENTH RESPONDENT

CHRASHANNA SMITH
FIFTEENTH RESPONDENT
DELIA SMITH
SIXTEENTH RESPONDENT
BRENDA SARAH SMITH
SEVENTEENTH RESPONDENT
MACHAL SMITH
EIGHTEENTH RESPONDENT
MEGAN SMITH
NINETEENTH RESPONDENT
ROSELINE SMITH
TWENTIETH RESPONDENT
CHESLYN SMITH
TWENTY-FIRST RESPONDENT
RASHIEDA SMITH
TWENTY-SECOND RESPONDENT
MARK NEIL SMITH
TWENTY-THIRD RESPONDENT
MOGAMAT TAURIQ SMITH
TWENTY-FOURTH RESPONDENT
GRAHAM BEUKES
TWENTY-FIFTH RESPONDENT
SOFIE MASILO
TWENTY-SIXTH RESPONDENT
WOODSTOCK HUB (PTY) LTD
TWENTY-SEVENTH RESPONDENT

Neutral citation: City of Cape Town v Commando and Others (1303/2021)
[2023] ZASCA 7 (6 February 2023)
Coram:
ZONDI, NICHOLLS and MABINDLA-BOQWANA JJA and
GOOSEN and SIWENDU AJJA
Heard:

14 November 2022
Delivered:
This judgment was handed down electronically by circulation to
the parties’ legal representatives by email, publication on the Supreme Court of
Appeal website and release to SAFLII. The date and time for hand-down is deemed
to be 11h00 on 6 February 2023.
Summary:
Constitutional law – right to emergency housing – constitutional
duty of municipality to provide temporary emergency housing – whether case made
out to find emergency housing programme and its implementation unconstitutional

– whether municipality has a duty to provide temporary emergency housing in a
specific location – consideration of a just and equitable order.

ORDER

On appeal from: Western Cape Division of the High Court, Cape Town (Sher J,
sitting as court of first instance): judgment reported sub nom Commando and Others
v Woodstock Hub (Pty) Ltd and Another [2021] ZAWCHC 179; [2021] 4 All SA
408 (WCC).
The appeal is upheld, with no order as to costs.
The high court’s order is set aside and replaced with the following:
‘1
The City of Cape Town must provide the occupiers and their
dependants with temporary emergency accommodation in a location as near
as possible to where they currently reside, erf 10626, Bromwell Street,
Woodstock (the property), on or before 30 May 2023, provided that they are
still resident at the property and have not voluntarily vacated it.
The date on which the occupiers are required to vacate the property is
extended to 30 June 2023.
There is no order as to costs.’

JUDGMENT
Mabindla-Boqwana JA (Zondi and Nicholls JJA and Goosen and Siwendu
AJJA concurring):

Introduction
[1] Access to adequate housing remains one of the major challenges in South
Africa. It is no secret that our major urban areas face a desperate shortage of adequate
housing, exacerbated by increasing urbanisation. Along with that, historical patterns
of settlement continue to persist. The disparities between ethnic communities are
particularly pronounced in Cape Town, due to highly skewed historical spatial
planning policies, which were based on racial discrimination and preference.1
Twenty-eight years into our constitutional democracy, poor households, mainly
black African and Coloured, continue to live in the outskirts of Cape Town, due to
high property prices and government rates and taxes. They are, thus, forced to
commute, in many instances for long distances, to their places of employment using
public transport. This phenomenon is not unique to Cape Town. It is a challenge
replicated in many South African cities.

[2] Each city has been shaped by particular dynamics of urban development. The
forced removal of black communities from inner city areas and the resultant
dislocation is one such dynamic. Despite these painful examples of historical social
control, some parts of the inner city areas remained places where poor communities
continued to live. Woodstock and Salt River, situated in the inner city of Cape Town,
are two adjacent areas where a number of Coloured households were able to resist
displacement. However, the gentrification2 and commercialisation of Cape Town
city centre has been highlighted as one of the threats to the communities still residing
in these areas.3

1 Residents of Joe Slovo Community, Western Cape v Thubelisha Homes and Others (Centre on Housing Rights and
Evictions and Another, Amici Curiae) [2009] ZACC 16; 2010 (3) SA 454 (CC); 2009 (9) BCLR 847 (CC) (Thubelisha)
para 264.
2 Urban renewal and redevelopment for commercial and business purposes.
3 For example, see The Guardian article ‘In the Cape Town enclave that survived apartheid, the new enemy is
gentrification’, https://www.theguardian.com/world/2018/aug/19/cape-town-bo-kaap-muslim-enclave-gentrification.

[3] The appellant, the City of Cape Town (the City), acknowledges that it must
‘transform its spatial and social legacy into a more integrated and compact city with
mixed-use zoning areas close to public transport nodes, which will bring residents
closer to their places of work and will offer opportunities to break down social
barriers’. This will require ‘significant additional capital investment, together with a
fundamental reconsideration of how to deliver more housing, more rapidly, in a more
integrated, manner.’ The City estimates that between 2012 and 2032 some 650 000
households in greater Cape Town would be in need of support from the government
in respect of housing. To this end, it has introduced a number of socio-economic
programmes.

[4] An immediate challenge is the need to provide housing for people facing
homelessness, due to crises such as natural disasters and evictions. The latter is the
issue in the present appeal. Eviction disputes feature in our courts on a daily basis,
particularly in these challenging economic times.

[5] As this Court held in City of Johannesburg Metropolitan Municipality v Blue
Moonlight Properties 39 (Pty) Ltd and Another,4 ‘[t]he right of access to adequate
housing cannot be seen in isolation. It has to be seen in the light of its close
relationship with other socio-economic rights, all read together in the setting of the
Constitution as a whole. It is irrefutable that the State is obliged to take positive
action to meet the needs of those living in extreme conditions of poverty,
homelessness or intolerably inadequate housing. What is in dispute in the present
case, as is frequently the case in disputes concerning housing, is the extent of the

4 City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd and Another [2011]
ZASCA 47; 2011 (4) SA 337 (SCA); [2011] 3 All SA 471 (SCA) (Blue Moonlight Properties (SCA)) para 2.

State’s obligation in this regard. This usually telescopes into an enquiry concerning
the State’s resources to meet its constitutional obligations.’

[6] After the Constitutional Court’s decision in Government of the Republic of
South Africa and Others v Grootboom and Others,5 it became settled that the State
is constitutionally obliged ‘to provide relief for people who have no access to land,
no roof over their heads, and who are living in intolerable conditions or crisis
situations’.6 Accordingly, the provision of emergency accommodation by the
government forms part of the right of access to adequate housing entrenched in s 26
of the Constitution.

[7] The central issue in this appeal is whether that constitutional obligation
extends to making temporary emergency accommodation available at a specific
location. The Western Cape Division of the High Court, Cape Town (the high court)
made an order, inter alia, compelling the City to provide the first to twenty-sixth
respondents (the occupiers) and their dependents residing with them with temporary
emergency accommodation or ‘transitional housing’7 in Woodstock, Salt River or
the Inner-City Precinct. The order of the high court reads as follows:

5 Government of the Republic of South Africa and Others v Grootboom and Others [2000] ZACC 19; 2001 (1) SA 46
(CC); 2000 (11) BCLR 1169 (CC) (Grootboom).
6 Ibid para 99. See also City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd
and Another [2011] ZACC 33; 2012 (2) SA 104 (CC); 2012 (2) BCLR 150 (CC), which found that the government,
including municipalities, has a constitutional duty to provide emergency housing to persons in crisis situations and
that includes those who have been evicted from a property, whether instigated by a public or a private institution.
7 According to the Affordable Housing Prospectus for the Woodstock, Salt River and Inner-City Precinct, issued by
the City on 28 September 2017, ‘Transitional Housing’ refers to ‘accommodation for individuals or families who have
to be relocated as a result of eviction, or temporarily moved as a result of the upgrading of sites on which they lived.
This accommodation is an intermediate solution until such time as individuals or families can move into permanent
accommodation’. The CRU Feasibility for the Development of ‘Transitional’ Housing Project – Pickwick Site, Cape
Town, dated January 2017, envisaged that for some residents ‘transitional housing’ ‘will provide temporary housing
as they transition to more permanent options although it is recognised that, because of the shortage of the alternatives
for low income households, some households are likely to remain on a semi-permanent basis.’

‘1
It is declared that the [City’s] emergency housing programme and its implementation, in
relation to persons who may be rendered homeless pursuant to their eviction in the inner City and
its surrounds, and in Woodstock and Salt River in particular, is unconstitutional.
The [City] is directed to provide the [occupiers] and those of their dependents as may be
living with them at the time, with “temporary” emergency accommodation or “transitional”
housing in Woodstock, Salt River or the Inner-City Precinct (as defined in the Affordable Housing
Prospectus for the Woodstock, Salt River and Inner-City Precinct which was issued on 28
September 2017), in a location which is as near as feasibly possible to where the [occupiers] are
currently residing at erf 10626, Bromwell Street, Woodstock; within 12 months of the date of this
Order.
The [City] is directed to deliver a report to the Court, within 4 months of the date of this
Order, which is confirmed on affidavit, in which it details the emergency accommodation or
“transitional” housing that it will make available to the [occupiers], and the location thereof and
the date when it will be made available, and in which it deals with the proximity of such
accommodation or housing to 1) erf 10626, Bromwell Street, Woodstock and 2) to public and
private transport, and educational and medical and health facilities, and explains why the particular
location and form of accommodation/housing has been selected, and what steps were taken by it
to engage the [occupiers] regarding the provision of accommodation or housing in compliance
with this Order.
The [occupiers] may serve and file affidavits, if any, dealing with the contents of the report
referred to in the preceding paragraph, within 10 court days of the date of the service and filing of
the aforesaid report, whereafter the matter may be re-enrolled on a date to be determined by the
Registrar in consultation with the presiding Judge, for determination as to such further and/or
additional relief as may be necessary or appropriate.
Pending the final outcome of this matter, execution of the Order which was granted for the
eviction of the [occupiers] (as extended) shall be suspended.
The [City] shall be liable for the costs of this application, including the costs of two counsel
(insofar as two counsel may have been employed).’ (My emphasis.)

[8] The City contends that this order is inappropriate. Firstly, it offends the
doctrine of separation of powers by trespassing into the heartland of policy-laden
and polycentric matters of housing delivery. Secondly, its effect is overbroad.
According to the City, the courts have no knowledge of, or are they required to know,
the wide-ranging housing needs confronting the City, the socio-economic and other
competing conditions to be met by the City, the City’s budget devoted thereto, the
land available, the economies of scale and what informs allocation of resources to
these needs and for housing, and in which areas. The court cannot, thus, dictate to
the City in which location a particular housing programme is to be implemented.

[9] The City further contends that it had identified and adopted a policy that social
housing was the most appropriate form of housing for the inner city. Despite this,
the high court ordered it to make available alternative emergency housing in the
inner city for the occupiers. This amounted to the court instructing the City to
allocate and spend its housing budget differently. Yet, it is, exclusively, the
government’s executive function and domain to determine how public resources are
to be drawn upon and re-ordered.8

[10] The occupiers, on the other hand, view the order as an appropriate intervention
by the high court to protect their rights, which they say have been infringed by the
unreasonable and irrational conduct of the City. They fault the City for providing
temporary emergency accommodation in informal settlements and on the outskirts
of the city only.

8 National Treasury and Others v Opposition to Urban Tolling Alliance and Others [2012] ZACC 18; 2012 (6) SA
223 (CC); 2012 (11) BCLR 1148 (CC) para 67.

Litigation history
[11] The high court’s order was preceded by protracted litigation between the
occupiers and the twenty-seventh respondent, Woodstock Hub (Pty) Ltd
(Woodstock Hub). On 30 June 2014, Woodstock Hub gave notice to the occupiers
to vacate the premises it had bought from Messrs Reza Syms and Erefaan Syms (the
Syms brothers), situated at erf 10626, Bromwell Street, Salt River, Cape Town (the
property).

[12] The occupiers had rented units in the property from the Syms brothers for
amounts ranging from R300 to R2000 per month. Some of them had lived in the
property for many years. In July 2015, Woodstock Hub launched five separate
eviction applications in the high court against the occupiers in terms of s 4 of the
Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of
1998 (PIE). The applications were later consolidated.

[13] On 17 March 2016, Hlophe JP granted an eviction order by agreement
between Woodstock Hub and the occupiers. In terms of this order, the occupiers
would vacate the property on or before 31 July 2016, failing which an eviction would
be effected by the sheriff on 1 August 2016. Some of the occupiers vacated the
property. Those remaining in occupation, however, brought an application to vary
the terms of the order granted by Hlophe JP, by extending the date to vacate the
property to 31 November 2016. Weinkove AJ dismissed that application.

[14] On 15 August 2016, Woodstock Hub and the occupiers concluded a deed of
settlement, which was made an order of court by Weinkove AJ. In terms of this
order, the remaining occupiers agreed to vacate the property on or before

9 September 2016. The occupiers allege that the two eviction orders were granted
without the respective courts satisfying themselves that it was just and equitable to
do so after taking into account all the relevant factors as required by the PIE. It has
been held that even when parties consent to an eviction order, judicial officers have
a duty to conduct an enquiry in terms of the PIE, because of the risk of homelessness
that may result from eviction.9 There is, however, no appeal against these orders.

[15] While the City was cited in the proceedings between Woodstock Hub and the
occupiers, no order was sought against it to provide the occupiers with temporary
accommodation, should this be necessary, in the event of the occupiers’ eviction
from the property. The City, accordingly, did not participate in the proceedings or
discussions prior to the granting of the eviction orders. It is also not clear whether
the two eviction orders were served on the City.

[16] The remaining occupiers terminated the services of their erstwhile attorneys
and engaged their current attorneys, a non-profit organisation specialising in housing
litigation. In September 2016, the current attorneys initiated discussions with the
City concerning the imminent risk of homelessness faced by the occupiers. These
discussions did not result in an outcome acceptable to the occupiers. Consequently,
in September 2016, they launched an application which is the subject of this appeal.

[17] The notice of motion dated 20 September 2016 was framed in two parts. In
Part A, the occupiers sought an order suspending the execution of the eviction orders
pending the determination of the relief sought in Part B. This aspect was settled.

9 Occupiers of Erven 87 & 88 Berea v De Wet N O and Another [2017] ZACC 18; 2017 (5) SA 346 (CC); 2017 (8)
BCLR 1015 (CC) paras 39-57.

[18] In Part B the occupiers sought, inter alia, the following orders:
‘2.
It is declared that the [City] is under a constitutional duty to provide the [occupiers] and
their dependents residing with them with temporary emergency accommodation in a location as
near as possible to the property where the [occupiers] currently reside at erf 10626, Bromwell
Street, Cape Town (“the property”);
3.
The [City] is directed to make available the temporary emergency accommodation referred
to in paragraph 2 above to the [occupiers] within 3 (three) months of the date of this order;
4.
It is declared that the [occupiers] may remain in occupation of their existing homes on the
property pending compliance by the [City] with paragraph 3 of this order;
5.
The [City] is directed to deliver a report to this Court within 2 (two) months of the date of
this order, confirmed [on] affidavit, detailing the accommodation that it will make available to the
[occupiers], when such accommodation will be available, the nature and proximity of such
accommodation and explaining why the particular location and form of accommodation has been
selected. The report must also set out the steps taken by the [City] during the two months before
the report is filed to meaningfully engage with the [occupiers] and/or the [occupiers’] attorneys
regarding the provision of temporary emergency accommodation to the [occupiers].’
(My emphasis.)

[19] The relief to be provided accommodation at a location as near as possible to
the property in which the occupiers resided, is in line with the orders granted in
previous cases, such as in City of Johannesburg Metropolitan Municipality v Blue
Moonlight Properties 39 (Pty) Ltd and Another.10 The motivation behind those
orders is that ‘in deciding on the locality, the government must have regard to the
relationship between the location of residents and their places of employment,’11
schools and other amenities.

10 City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd and Another [2011]
ZACC 33; 2012 (2) SA 104 (CC); 2012 (2) BCLR 150 (CC) para 104(e)(iv) (Blue Moonlight Properties (CC)).
11 Thubelisha fn 1 above para 254.

[20] The City states that it responded to the relief sought by assessing the
composition of various family units involved. It facilitated their applications for
social housing and considered them. It advised the occupiers’ attorneys that five
families would qualify for social and/or GAP12 housing and should apply
immediately. The City offered emergency housing at Wolwerivier, which is
approximately 30 km from the property, for the remaining family units. This
consisted of 26.5 m2 of prefabricated light gauge steel structures with corrugated
cladding and other basic amenities. Notably, the Wolwerivier structures were
accepted as suitable within the City’s available resources by the Constitutional Court
in Baron and Others v Claytile (Pty) Ltd and Another.13

[21] The occupiers objected to being accommodated at Wolwerivier because of the
distance from the property. They enquired about a list of properties in the inner city,
including the site at Pickwick Street in Salt River (Pickwick), which they said could
be considered for emergency housing. The City advised them that Pickwick had
already been allocated as a transitional area for housing of beneficiaries who needed
to be moved from an informal settlement in Pine Road, which was one of the sites
earmarked for social housing, while it was being developed. The City then offered
emergency housing to all of the families, despite the fact that several could
potentially qualify for home loans. The City also provided information regarding the
bus routes and prices.

12 Affordable housing to accommodate a gap in the market of those families earning between R3 501 and R15 000 per
month – a housing market not served by the private market or the State – 2016/2017 Review of Integrated Human
Settlements Five-Year Plan at 49.
13 Baron and Others v Claytile (Pty) Limited and Another [2017] ZACC 24; 2017 (5) SA 329 (CC); 2017 (10) BCLR
1225 (CC) para 50.

[22] During 2017, the City’s Mayoral Committee Member for Transport and Urban
Development (Mayoral Committee Member) made a public speech about the
planned social and affordable housing developments in the inner city. He mentioned
the City’s intention to achieve spatial transformation by providing those facing
emergencies with temporary housing as close as possible to their places of work or
at least transportation. He further mentioned two sites, namely, Pickwick and St
James Street in Salt River (St James), which were reserved for transitional housing
to accommodate residents moved from Pine Road and Salt River Market areas, and
were identified for social housing development respectively. In one of the media
statements, the Mayoral Committee Member remarked that ‘the development of the
Pickwick site represents a new approach in terms of how the City intends to tackle
the urgent demand for housing by those families who are displaced or evicted from
their homes due to rapid development, among others’.

[23] On 27 September 2017, the City issued the Affordable Housing Prospectus
for the Woodstock, Salt River and Inner-City Precinct (the Prospectus) in which it
identified Woodstock, Salt River and the surrounds as ideal locations for the
development of affordable housing, as they were well located, being close to public
transport and employment opportunities. For this purpose, five sites of the City’s
available land were identified.

[24] In December 2017, motivated by these developments, the occupiers applied
to amend their notice of motion in terms of rule 28 in the following terms:
‘1.
It is declared that the housing programme of the [City] and its implementation in terms of
the City of Cape Town Integrated Human Settlements: Five Year Plan is inconsistent with the
[City]’s constitutional and statutory obligations to the extent that:

1.1
it fails to provide the [occupiers] and people living in Woodstock and Salt River who are
at risk of homelessness and in a crisis situation due to eviction from their homes with access to
transitional housing or temporary emergency accommodation in the immediate City centre and
surrounds.
2.
It is declared that the [City] is under a constitutional duty to provide the [occupiers] and
their dependents residing with them with temporary emergency accommodation or transitional
housing:
2.1
in the Woodstock, Salt River and inner city precinct as identified in the Prospectus for
Affordable Housing in the Woodstock and Salt River Precinct issued by the [City] on 28
September 2017; and
2.2
in a location as near as possible to the property where the [occupiers] currently reside at
erf 10626, Bromwell Street, Cape Town (“the property”)
3.
The [City] is directed to make available temporary emergency accommodation or
transitional housing referred to in paragraph 2 above to the [occupiers] within 12 (twelve) months
of the date of this order.
4.
The [City] is ordered to comply with its constitutional obligations as declared in this order.
5.
The [City] is directed to deliver a report to this Court within 3 (three) months of the date
of this order, confirmed on affidavit, detailing the emergency accommodation or transitional
housing that it will make available to the [occupiers] in the Woodstock, Salt River and inner city
precinct, when such accommodation will be available, the proximity of such accommodation and
explaining why the particular location and form of accommodation has been selected. The report
must also set out the steps taken by the [City] during the three months before the report is filed to
meaningfully engage with the [occupiers] and/or the [occupiers’] attorneys regarding the provision
of temporary emergency accommodation or transitional housing to the [occupiers].’
(My emphasis.)

[25] It is evident from the envisaged amended notice of motion that the relief
sought had changed markedly. It introduced a direct constitutional challenge against
the City’s housing programme and its implementation, on the basis that it failed to
provide for temporary emergency housing in the inner city and the surrounds. In

addition, it sought a declarator that the City was under a constitutional duty to
provide temporary emergency accommodation to the occupiers in a specified area
of either, Woodstock, Salt River and Inner-City Precinct, and that it should be
directed to do so.

[26] The City had previously adopted an Integrated Human Settlements: Five Year
Plan (the Five-Year Plan), which was reviewed annually to ensure that it considered
a response to any significant changes in the micro- and macro-environments that
may affect delivery. The occupiers alleged that the City’s new approach to housing
delivery announced in 2017 constituted a volte-face and an admission that the Five-
Year Plan was ‘in need of change in order to address displacement of persons such
as the [occupiers] due [to] gentrification in the inner [c]ity areas of Woodstock and
Salt River’.

[27] The City objected to the amendment of the relief sought on a number of bases,
including that it introduced a completely new relief. It alleged that it had met the
relief initially sought by offering temporary emergency accommodation to the
occupiers in Wolwerivier. When the Wolwerivier offer was rejected, it identified
land in Maitland. This option was not pursued because of objections from the
community residing there.

[28] The City thereafter offered the occupiers land in Kampies, Philippi, which is
approximately 15 km from the property. In terms of this offer, each household would
receive one plot of 36 m2 with building materials for 18 m2 structures. According to
the City, the services will consist of running water and waterborne sanitation (ie
flushing toilets) of 1:5 used on a communal basis, with five families given a key to

a particular toilet for use by them. A portable flush toilet will be made available to
the single disabled person(s). Solid waste removal would be provided per household,
collected once a week from a communal container available on site. There will be
no electricity provided. The Kampies site will be upgraded six months from the date
of offer to 26 m2 concrete slab structures, electrified by Eskom and that access to
waterborne sanitation and a basin would be provided to each household. All three
categories of schools – pre-primary, primary and high schools – are within 3 km of
the site in Hanover Park.

[29] The hearing of the application for the amendment took place on 13 August
2018 before Sher J, who allowed the amendment. The amended notice of motion
was ‘effected’ on 13 September 2018.

The legal framework
[30] Section 26 of the Constitution provides that:
‘(1)
Everyone has the right to have access to adequate housing.
(2)
The state must take reasonable legislative and other measures, within its available
resources, to achieve the progressive realisation of this right.
(3)
No one may be evicted from their home, or have their home demolished, without an order
of court made after considering all the relevant circumstances. No legislation may permit arbitrary
evictions.’

[31] In Grootboom, the Constitutional Court provided an in-depth analysis of what
the provisions in s 26 of the Constitution entail.14 Subsection (1) defines the right,
while subsection (2) imposes a positive obligation on the State to take reasonable

14 See also City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd and Another
[2011] ZASCA 47; 2011 (4) SA 337 (SCA); [2011] 3 All SA 471 (SCA) paras 26-40 for a helpful analysis of
Grootboom and s 26 of the Constitution concerning the State’s constitutional duty.

legislative and other measures, within its available means, to achieve progressive
realisation of the right. In this regard, the Constitutional Court stated that:
‘It requires the state to devise a comprehensive and workable plan to meet its obligations in terms
of the subsection. However subsection (2) also makes it clear that the obligation imposed upon the
state is not an absolute or unqualified one. The extent of the state’s obligation is defined by three
key elements that are considered separately: (a) the obligation to “take reasonable legislative and
other measures”; (b) “to achieve the progressive realisation” of the right; and (c) “within available
resources.”’15

[32] To qualify as reasonable, a housing programme must clearly set out
responsibilities and tasks of the different spheres of government and make available
financial and human resources. The programme must be coherent and capable of
facilitating the realisation of the right.
‘In any challenge based on section 26 in which it is argued that the state has failed to meet the
positive obligations imposed upon it by section 26 (2), the question will be whether the legislative
and other measures taken by the state are reasonable. A court considering reasonableness will not
enquire whether other more desirable or favourable measures could have been adopted, or
whether public money could have been better spent. The question would be whether the measures
that have been adopted are reasonable. It is necessary to recognise that a wide range of possible
measures could be adopted by the state to meet its obligations. Many of these would meet the
requirement of reasonableness. Once it is shown that the measures do so, this requirement is
met.’16 (My emphasis.)

[33] Legislative measures only, are not sufficient. The executive must adopt
policies and programmes, which are reasonable in both their conception and
implementation.17 And ‘[a]n otherwise reasonable programme that is not

15 Grootboom fn 5 above para 38.
16 Ibid para 41.
17 Ibid para 42.

implemented reasonably will not constitute compliance with the state’s
obligations’.18

[34] The programme must be considered within its social, economic and historical
context and in light of the capacity of the institution implementing the programme.
It must be balanced and flexible and give attention to housing crises and to short,
medium and long term needs.19

[35] It must be recognised that the right may not be realised immediately, hence
the expression ‘progressive realisation’. Further, housing must be made accessible
to a wider range of people as time progresses.20 The State is not expected to do more
than is achievable within its available resources. Balance is required between the
goal of realising the right expeditiously and effectively within the means available
to do so. In this regard, the ‘availability of resources is an important factor in
determining what is reasonable’.21

[36] The Housing Act 107 of 1997 (Housing Act) gives effect to s 26 of the
Constitution as part of the legislative measures taken by the State. Section 9(1) of
the Housing Act requires that:
‘Every municipality must, as part of the municipality’s process of integrated development
planning, take all reasonable and necessary steps within the framework of national and provincial
housing legislation and policy to –
(a)
ensure that –

18 Ibid.
19 Ibid para 43.
20 Ibid para 45.
21 Ibid para 46.

(i)
the inhabitants of its area of jurisdiction have access to adequate housing on a
progressive basis;
(ii)
conditions not conducive to the health and safety of the inhabitants of its area of
jurisdiction are prevented or removed;
(iii)
services in respect of water, sanitation, electricity, roads, storm-water drainage and
transport are provided in a manner which is economically efficient;
(b)
set housing delivery goals in respect of its area of jurisdiction;
(c)
identify and designate land for housing development;
(d)
create and maintain a public environment conducive to housing development which is
financially and socially viable;
(e)
. . .
(f)
initiate, plan, co-ordinate, facilitate, promote and enable appropriate housing development
in its area of jurisdiction;
(g)
. . .
(h)
. . .’

[37] The National Housing Code, 2009 (Housing Code) was developed as
contemplated by s 4 of the Housing Act. The Housing Code makes provision for the
Emergency Housing Programme.22 This programme was designed ‘to address the
needs of households [which] for reasons beyond their control, find themselves in an
emergency housing situation such as the fact that their existing shelter has been
destroyed or damaged, their prevailing situation poses an immediate threat to their
life, health and safety, or they have been evicted, or face the threat of imminent
eviction’. Assistance is provided to municipalities in the form of grants to enable
them to respond rapidly to emergencies by means of the provision of land, shelter
and municipal engineering services. In appropriate cases, this may include the
possible relocation and resettlement of people on a voluntary and cooperative basis.

22 The Emergency Housing Programme is contained in Part 3 Volume 4 of the National Housing Code, 2009.

The City’s housing programme
[38] The City contends that the high court erred in not taking into account its entire
housing programme and treating the emergency housing programme in isolation. It
submits that it has an Integrated Human Settlements Framework (IHSF), which is
aligned to legislation and policies, including the Housing Act and the Housing Code.
In addition, it adopted the Five-Year Plan. In this regard, it has a number of housing
programmes, namely social housing, GAP housing, finance-linked individual
subsidy housing, institutional housing and emergency and transitional housing.

[39] It implements the National Emergency Housing Programme by creating
incremental development areas (IDAs) and temporary relocation areas (TRAs).
More recently, it has begun to develop emergency housing within existing
settlements. The IDAs are incrementally upgraded to provide for permanent housing.
Emergency housing ‘applies to various categories of persons including persons who
are evicted or threatened with imminent eviction from land’. It is intended to benefit
all affected persons who are not in a position to address their housing emergencies.

[40] The emergency housing projects exist in Mfuleni, Happy Valley,
Blikkiesdorp, Wolwerivier, Sir Lowry’s Pass and Bardale. The TRA units are
located at OR Tambo, Hangberg and Masonwabe in Gugulethu. As at March 2020,
the City started constructing housing within existing settlements at Kalkfontein in
Kuilsriver, Bosasa in Blue Downs, Wallacedene in Kraaifontein, Kampies in
Philippi and at other places. Applicants for emergency housing are required to place
their names on the housing database so as to be identified whether they could be

accommodated in other housing programmes, such as the social housing programme
and GAP housing.

[41] According to the City, the social housing programme is aimed at developing
affordable rental areas with bulk infrastructure. It consists of a high-density
subsidised housing project, which is implemented, managed and owned by
independent and accredited social housing institutions in designated restructuring
zones. It accommodates persons with income levels of between R1 500 and R7 500.
Social housing units include areas such as Steenberg, Brooklyn, Bothasig and
Scottsdene. Developments were also being planned for Salt River and Woodstock.

[42] GAP housing is aimed at persons earning in excess of R6 500, with those
earning in excess of R7 500 given preference. According to the City’s assessment,
some of the occupiers qualified for GAP and social housing programmes. The City
alleges that it attempted to assist the occupiers within its IHSF. As earlier stated, it
urged those who qualified for social and GAP housing to apply.

[43] Individual subsidy housing is finance-linked and secured by mortgage bonds.
Repayments are determined according to income. It is aimed at households earning
between R3 000 and R15 000 per month. In the institutional housing programme,
the beneficiaries are provided with a subsidy, which may be supplemented with their
own income to acquire a superior housing structure.

[44] The City concedes that it has no emergency housing developments in the
immediate city centre and surrounds. However, it contends that the reasons are
complex. They include: (a) the excessively high costs of developing an emergency

housing settlement in the inner city – the cost in this regard is said to be at least triple
what it would be in areas further afield; (b) the very high rates on properties in the
city centre; and (c) the scarcity of land in the immediate surrounds of the City and
the competing demands on such land.

[45] It submits, however, that there are areas within the immediate surrounds of
the City, such as Woodstock, which are targeted for affordable inner-city housing
and temporary housing projects. A range of projects are envisaged for these areas.
These include mixed land use development involving transportation, housing, social
and economic opportunities. These would provide for affordable housing, which
could bring lower-income people closer to work opportunities. Other projects aimed
at overcoming the legacy of apartheid spatial planning include the Two Rivers Urban
Park (TRUP) project, a joint project between the City and the Western Cape
Government.

[46] The occupiers submit that they identified 45 parcels of vacant state-owned
land within 5 km of the property which were suitable for development or at the very
least temporary emergency accommodation. In response, the City explained that the
said land parcels were too small for a housing development; and that it was not in
the position to provide individual tracts of land to beneficiaries, because it was
unaffordable and to do so would also create unfairness among different beneficiaries
of state-assisted housing. It would entrench the exclusion of black African residents,
who, owing to apartheid, were not allowed to reside in the inner city. Furthermore,
properties of individual occupiers in the inner city and the surrounds would derive
or attract better value than those outside the city centre. There is no dispute about
the existence of these programmes.

The finding of unconstitutionality
[47] It will be recalled that the high court declared that ‘the [City’s] emergency
housing programme and its implementation, in relation to persons who may be
rendered homeless pursuant to their eviction in the inner City and its surrounds, and
in Woodstock and Salt River in particular, is unconstitutional’. In terms of s 72(1)(a)
of the Constitution, ‘[w]hen deciding a constitutional matter within its power, a court
. . . must declare that any law or conduct that is inconsistent with the Constitution is
invalid to the extent of its inconsistency.’ The high court did not identify the extent
of invalidity for the City to rectify in its order. For this reason alone, its order of
unconstitutionality cannot stand.

[48] In addition, the high court’s order does not accord with the relief sought by
the occupiers in paragraph 2.1 of the amended notice of motion. It is not
substantiated by the papers which served before the court or by the court’s reasoning.
The occupiers had challenged the housing programme in terms of the Five-Year Plan
and sought an order that it be declared inconsistent with the City’s constitutional and
statutory obligations, to the extent that it failed to provide the occupiers and people
living in Woodstock and Salt River, who were at the risk of homelessness due to
eviction, with temporary emergency accommodation or transitional housing in the
immediate city centre and surrounds.

[49] The Five-Year Plan under attack was for the period of July 2012 to June 2017.
Apart from the fact that that document had expired, no affidavit was filed as the
foundation for the new notice of motion, nor any legal basis set out in support of this
constitutional attack anywhere in the papers. Neither were the impugned portions of

the Five-Year Plan identified, nor the relevant constitutional or statutory provisions
infringed.

[50] At the hearing of the appeal, counsel for the occupiers argued that the basis
for the relief was apparent from the City’s affidavit of November 2017, which he
submitted led to the amendment. When pressed on this issue, counsel referred to a
paragraph in the affidavit filed in support of the application for the amendment of
the notice of motion. All this paragraph contained was the following:
‘The [occupiers] seek to amend their relief in consequence of this 180 degree change by the City
and the new evidence underpinning it as disclosed in the pre and post hearing media statements by
the City and the City’s affidavit dated 1 November 2017. I respectfully submit that this new
evidence constitutes an admission by the City that the implementation of its Integrated Human
Settlements: Five Year Plan is in need of change in order to address displacement of persons such
as the [occupiers] due [to] gentrification in the inner City areas of Woodstock and Salt River.’

[51] As to the content of the impugned Five-Year Plan, there is no inconsistency
between it and the City’s alleged new approach. Even if there were, 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. Indeed, the occupiers do
not take issue with the form of social housing. Instead, they criticise the City for not
having emergency housing in the inner city as part of the Five-Year Plan. That,
however, had been the position even before the amendment was sought. I am not
sure how the adaptation of the Five-Year Plan would affect the initial relief sought.
At no stage did the City undertake to provide emergency housing in the inner city.

In fact, it had stated that it only had emergency housing available in Wolwerivier. In
any case, the impugned Five-Year Plan had expired.

[52] In the occupiers’ heads of argument, the issue before this Court is identified
as ‘whether the City has demonstrated that its policies and programme regarding
emergency housing and the implementation thereof, are reasonable and consistent
with the Constitution’. It is then broadly stated that the formulation and
implementation of the City’s housing programme is deficient and inconsistent with
the positive duties imposed on the City by s 26 of the Constitution, in that the City’s
housing programme does not provide for access to emergency housing and
accommodation in the immediate inner city centre and surrounds, in order to meet
the urgent emergency housing needs of the occupiers and people living in
Woodstock and Salt River who are at risk of homelessness and in a crisis situation
due to eviction from their homes.

[53] For this contention to withstand scrutiny, a source of the duty had to be
identified. The legislative measures and programmes taken by the government
giving effect to s 26 of the Constitution do not impose a duty on it to provide
temporary emergency accommodation at a specific locality. Nor have the line of
cases since Grootboom interpreted the duties flowing from s 26 to oblige the
government to provide emergency housing at a specific location. In fact, the opposite
has been suggested. In Thubelisha, Ngcobo J observed that ‘the Constitution does
not guarantee a person a right to housing at government expense at the locality of
his or her choice. Locality is determined by a number of factors including the
availability of land. However, in deciding on the locality, the government must have

regard to the relationship between the location of residents and their places of
employment’.23

[54] The high court recognised that ‘to ascribe such a power to itself . . . would
place an impossible burden on the State, as it would result in it having to
accommodate evictees who are going to be rendered homeless, in virtually every
suburb or area in which they live. For obvious reasons this is untenable.’ The court,
however, went on to make the very order that it found it could not grant. It justified
its finding on the basis that this matter had to be decided ‘on the basis of whether it
is rational or reasonable for the [occupiers] to be told that they must take up
emergency housing either in a TRA or an IDA on the outskirts of the City, or
alternatively in an informal settlement, whilst other similarly-placed persons do not
face the same choice, because they may have the good fortune of being afforded
“transitional” housing or (as was promised by the City’s Mayoral Member for urban
development), “temporary” housing, in the inner City and its surrounds.’

[55] The occupiers do not impugn the City’s offer to relocate them (to Kampies in
Philippi, among other places) in relation to them per se. Rather, they impugn the
City’s plan or emergency housing programme and its implementation for not
providing emergency accommodation in the specific locality of the city centre and
surrounds. This is a broader attack.

[56] Having failed to identify the source of the constitutional duty in the
Constitution or the Housing Act, the occupiers resorted to relying on s 26 of the
Constitution in general terms. However, the principle of subsidiarity prohibits direct

23 Thubelisha fn 1 above para 254.

reliance on the Constitution where specific and detailed legislation giving effect to
a right sought to be enforced has been passed. In any event, as I have demonstrated,
none of the legal framework or programmes guarantees such a right or imposes the
suggested duty on the State.

Reasonableness of the City’s emergency housing programme
[57] In order to establish whether the measures taken by the City to address the
obligations in s 26 of the Constitution are reasonable, a balanced enquiry as outlined
in Grootboom would have to be taken into account. This, being mindful of the fact
that the courts are not at large to set aside a programme merely for the reason that
there may be other measures which it considers more favourable or desirable.24

[58] It was aptly put in Thubelisha thus:
‘It is for the government to decide how to allocate houses in the new area. If the government, in
its wisdom, decides to allocate some of the houses in the newly developed Joe Slovo to backyard
dwellers from Kwa-Langa, which is close to Joe Slovo, this cannot be faulted unless it is
unreasonable. . .
. . .
In considering reasonableness, the enquiry is not “whether other more desirable or favourable
measures could have been adopted, or whether public money could have been better spent.”
Rather, the enquiry should be confined to the question whether the measures that have been
adopted are reasonable, bearing in mind “that a wide range of possible measures could be adopted
by the State to meet its obligations.” Thus in determining whether the government has complied
with its obligations to provide access to adequate housing, courts must acknowledge that the
government must determine and set priorities but must ensure that, in setting those priorities, it has
regard to its constitutional obligations. In short, the obligation of government must not be

24 Blue Moonlight Properties (CC) fn 10 above para 88.

construed in a manner that ties its hands and makes it impossible to comply with its constitutional
obligations.
. . .
It is not for the courts to tell the government how to upgrade the area. This is a matter for the
government to decide. The fact that there may be other ways of upgrading the area without
relocating the residents does not show that the decision of the government to relocate the residents
is unreasonable. It is not for the courts to tell the government how best to comply with its
obligations. If, in the best judgment of the government it is necessary to relocate people, a court
should be slow to interfere with that decision, as long as it is reasonable in terms of s 26(2) of the
Constitution and just and equitable under PIE.
Some of the reasons advanced by the residents for refusing to relocate to the TRUs in Delft are a
lack of schools and other amenities and a lack of employment. What must be stressed here is that
relocation is necessary to develop Joe Slovo so that decent housing can be built there. This will
benefit the residents. Moreover, the Constitution does not guarantee a person a right to housing at
government expense at the locality of his or her choice. Locality is determined by a number of
factors including the availability of land. However, in deciding on the locality, the government
must have regard to the relationship between the location of residents and their places of
employment.
. . .
In the past we have stressed that the government faces an extremely difficult task in addressing the
injustices of the past. This is compounded by the limited availability of resources, including the
availability of land where decent houses can be built.’25

[59] The City has taken a policy decision to designate certain areas of the inner
city, including Woodstock and Salt River, for social housing. The high court
suggested that the implementation of the City’s housing programme in the inner city
was ‘to give undue preference to social housing, at the expense of the City’s
constitutional obligations in relation to the provision of emergency housing.’ The

25 Thubelisha fn 1 above paras 249, 252-254 and 256.

introduction of social housing in the inner city has not been challenged as being
unreasonable. The high court has not found this decision to be unreasonable either.
That being so, the issue is not before us.

[60] As to emergency housing, the City demonstrated unequivocally that its policy
provides for an emergency housing programme by way of IDAs, TRAs and
developments in existing informal settlements. These are considered mechanisms
created to meet emergency housing needs when they arise. The fact that no provision
is made for such emergency housing needs in the inner city, does not render the
choices made by the City irrational or unreasonable.

[61] One of the arguments advanced to suggest that the policy is unreasonable is
that the occupiers cannot afford social housing because they are unemployed. The
argument is flawed. It conflates temporary emergency housing, which by its nature
is provided by the State to meet emergency needs, with the progressive realisation
of the right to adequate permanent housing. The latter, as the discussion set out above
demonstrates, involves the provision of housing that is subsidised in various
respects, and may involve some amount paid by residents or fully or partially
subsidised by the government. As the Constitutional Court recognised, ‘[i]ndividuals
may have a range of incomes – some may be able to afford subsidised housing while
others may be completely destitute. . . . [Accordingly,] the Occupiers have a myriad
of personal circumstances to be taken into account in considering their eligibility for
housing’.26 Thus, differentiation in housing delivery by the City between emergency
housing needs and housing needs that do not constitute emergency might well be
reasonable in the circumstances.27

26 Blue Moonlight Properties (CC) fn 10 above para 92.
27 Ibid para 95.

[62] The distinction between permanent and emergency housing has been
recognised. This Court in City of Johannesburg v Dladla and Others,28 referred with
approval to the judgment of City of Cape Town v Hoosain N O,29 in which the
following was observed:
‘Once it is recognised that emergency accommodation by its very nature will invariably fall short
of the standards reasonably expected of permanent housing accommodation, it follows that those
who need to occupy such accommodation must accept less than what would ordinarily be
acceptable. The apparent harshness of an acceptance of this recognition has to be seen against the
realities imposed by the vast scale of the housing backlogs with which the state, in general, and
the City, in particular, are having to engage.’

[63] The high court concluded that ‘the City does not appear to have a
comprehensive, workable and coherent emergency housing plan or program, at least
not its own one, and appears to have adopted inconsistent and contradictory stances
and policies. And its implementation of its emergency housing program, such as it
is, in relation to such persons, appears to be inconsistent and arbitrary’. The high
court found this because the Mayoral Committee Member and the Prospectus had
mentioned a change in approach on the housing delivery programme. It hardly need
be stated that a political speech by a municipal politician does not constitute policy,
carefully considered and adopted by a policy-maker. What the high court was called
upon to consider was the rationality and reasonableness of the policy approach set
out by the City in its deliberations on the challenge. As to the new approach
articulated in the Prospectus, it made no undertaking to the occupiers to provide

28 City of Johannesburg v Dladla and Others [2016] ZASCA 66; 2016 (6) SA 377 (SCA) para 20.
29 City of Cape Town v Hoosain N O and Others [2011] ZAWCHC 391 (WCC) para 14.

emergency or ‘transitional’ housing in the inner city. It is also important to bear in
mind that a programme must be flexible and adaptive.

[64] The high court found that the overall housing delivery programme was not the
issue in the matter. It erred by disregarding the broad range of permanent housing
programmes that the City implements, since these are directly affected by the order
directing the City to make available emergency housing in the city centre and
surrounding areas. The City’s obligation is wide ranging and is not confined to the
provision of emergency housing accommodation.

[65] The housing delivery question is not an easy one to answer. Temporary
emergency accommodation has in many instances turned into semi-permanent or
permanent homes due to shortage of government housing. According to the City,
permanent housing is the ideal that the government is pursuing. It is, thus, imperative
to ensure that while occupiers of emergency accommodation wait for permanent
sites, a balance is achieved in ensuring that their settlements do not perpetuate
poverty and human indignity.

Differentiation and the irrationality issue
[66] The occupiers contend that they were treated differently from the residents of
Pine Road and Salt River Market by not being offered transitional housing. In this
regard, they allege that the City was arbitrarily implementing its housing delivery
programme in the same way as in Blue Moonlight Properties. This argument is
erroneous. Blue Moonlight Properties dealt with a completely different situation,
that of an emergency programme that excluded occupiers that were evicted by
private landowners from their properties. In other words, there was no programme

in place for those people evicted by private property owners as opposed to those who
were evicted by the State from its property. That kind of programme was clearly
discriminatory. In this case, conversely, there is an emergency housing programme,
which applies to all residents who are faced with housing crises and need immediate
help.

[67] The City’s solution of relocating people from informal settlements to
transitional housing with a view to developing the land they occupied does not
render the policy unreasonable or arbitrary. It is clear that those sites were reserved
for a specific purpose and not generally for those that were in a similar position as
the occupiers in Woodstock and Salt River.

[68] There is no evidence that any evictees in a position similar to the occupiers
were accommodated in the transitional housing sites within the inner city. It is worth
mentioning that transitional housing differs from the temporary emergency
accommodation, in that a rental fee would be charged in the earmarked transitional
housing sites. To the extent that the recipients were not able to pay the full rental,
the City would subsidise the shortfall in operating expenses of the social housing
company that would be developing the sites. The City explained that a formal policy
in respect of its transitional housing was yet to be developed. The City has alleged
that due to scarcity of land, and the cost of development, it is unlikely that any further
transitional housing units would be developed in the city centre.

[69] It was not disputed that the reason the City committed to transitional housing
was to ensure that vacant land could be obtained in order for social housing to be
developed. If transitional housing in Pickwick were to be used for the occupiers, it

will not be available for its intended purpose. That would mean that vacant
occupation in Pine Road would not be obtained and social housing development
would be impeded or would not proceed. The City alleges that it was possible for
the Pickwick housing to be made available more broadly in future, but as the issues
of relocation were still underway, it was premature to do so at this stage.

[70] An order directing the City to house the occupiers in the transitional
accommodation would mean the eviction of the informal dwellers from Pickwick
(who are not party to these proceedings). The high court acknowledged that ‘there
was no spare accommodation in the Pickwick “transitional” housing development
as all its rooms were occupied, and the St James development was still in progress’.
Another effect of the order would be to re-direct the City’s resources from the social
housing programme to temporary emergency housing within the inner city and the
surrounds, whereas, according to the City, there was presently no land available.
Those choices are not for the Court to make. The high court’s order, therefore, put
the City in an invidious position, by making an order without knowing, or being in
a position to know, if land would be found specifically in the inner city and
surrounds. In light of all the reasons above, the high court’s order must be set aside.

Appropriate relief
[71] While a case has not been made out for the declaration of unconstitutionality
of the City’s housing programme and its implementation as sought by the occupiers,
and for the provision of temporary emergency housing at a specific locality, the
Court still has to make a just and equitable order, so as not to render the occupiers
homeless. This is because of the extended eviction orders made which are yet to be
implemented and have not been appealed against.

[72] The City bears a duty to provide the occupiers with suitable temporary
emergency accommodation. It is appropriate that an order be made that such
accommodation be at a location as near as possible to the area where the property is
situated.30 The City’s counsel informed us that the offer to provide temporary
emergency accommodation at Kampies in Philippi still stands and it was rejected
primarily because of the COVID-19 pandemic and the likely exposure of the
vulnerable occupiers.

[73] The suitability of Kampies is not an issue squarely before us. It is, however,
imperative for the City to realise that it has the responsibility of ensuring that the
occupiers are treated with dignity and care when choosing an appropriate location.
In doing so, the City should take into account the occupier’s places of employment
and children’s schooling, hospitals, transportation and other important amenities that
their relocation may require. In this regard, the vulnerabilities of the occupiers must
be considered.

[74] To this end, it is essential that the City be provided with reasonable time to
find the temporary emergency accommodation. It follows that the date of eviction
stipulated in the eviction orders should also be extended to a reasonable date after
the City has to provide accommodation.

[75] As to costs, the Biowatch principle applies. In light of this, we are obliged to
replace the high court’s order with one of no order as to costs. Notwithstanding that

30 See Blue Moonlight Properties (CC) fn 10 above and Thubelisha fn 1 above.

the appeal succeeds, the costs of appeal should also land where it falls, in accordance
with the Biowatch principle.

[76] For these reasons, the following order is made:
The appeal is upheld, with no order as to costs.
The high court’s order is set aside and replaced with the following:

‘1
The City of Cape Town must provide the occupiers and their
dependants with temporary emergency accommodation in a location as near
as possible to where they currently reside, erf 10626, Bromwell Street,
Woodstock (the property), on or before 30 May 2023, provided that they are
still resident at the property and have not voluntarily vacated it.

The date on which the occupiers are required to vacate the property is
extended to 30 June 2023.

There is no order as to costs.’

__________________________
N P MABINDLA-BOQWANA

JUDGE OF APPEAL

Appearances

For the appellant:

K Pillay SC and A du Toit
Instructed by:

Fairbridges Wertheim Becker, Cape Town
McIntyre Van der Post, Bloemfontein

For the first to
twenty-sixth respondents:
S Magardie
Instructed by:

Ndifuna Ukwazi Law Centre, Cape Town
Phatshoane Henney Attorneys, Bloemfontein

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL
From:
The Registrar, Supreme Court of Appeal
Date:
6 February 2023
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this case and does not form
part of the judgments of the Supreme Court of Appeal
City of Cape Town v Commando and Others (1303/2021) [2023] ZASCA 7 (6 February 2023)
Today, the Supreme Court of Appeal (SCA) upheld an appeal, with no order as to costs, brought by the
appellant, the City of Cape Town (the City), against the judgment of the Western Cape Division of the
High Court, Cape Town (the high court) in respect of the constitutional duty of a municipality to provide
temporary emergency housing.

The central issue in the appeal was whether that constitutional obligation extended to making temporary
emergency accommodation available at a specific location. The high court made an order, inter alia,
compelling the City to provide the first to twenty-sixth respondents (the occupiers) and their dependents
residing with them with temporary emergency accommodation or ‘transitional housing’ in Woodstock,
Salt River or the Inner-City Precinct.

The high court’s order was preceded by protracted litigation between the occupiers and the twenty-
seventh respondent, Woodstock Hub (Pty) Ltd (Woodstock Hub). On 30 June 2014, Woodstock Hub
gave notice to the occupiers to vacate the premises it had bought from Messrs Reza Syms and Erefaan
Syms (the Syms brothers), situated at erf 10626, Bromwell Street, Salt River, Cape Town (the property).
The occupiers had rented units in the property from the Syms brothers. In July 2015, Woodstock Hub
launched eviction applications in the high court against the occupiers. On 17 March 2016, an eviction
order was granted in the high court by agreement between Woodstock Hub and the occupiers. In terms
of this order, the occupiers agreed to vacate the property on 31 July 2016. The occupiers unsuccessfully
sought to vary the terms of this order. On 15 August 2016, Woodstock Hub and the occupiers concluded
a deed of settlement, which was made an order of court, in terms of which the occupiers would vacate
the property on 9 September 2016.

While the City was cited in the proceedings between Woodstock Hub and the occupiers, no order was
sought against it to provide the occupiers with temporary accommodation, should this have been
necessary. In September 2016, the occupiers’ attorneys initiated discussions with the City concerning
the imminent risk of homelessness faced by the occupiers. These discussions did not result in an
outcome acceptable to the occupiers. Consequently, in September 2016, they launched an application
which is the subject of this appeal. In essence, the relief sought was for the occupiers to be provided
accommodation at a location as near as possible to the property in which they resided.

In December 2017, the occupiers applied to amend their notice of motion, whereby the relief sought
changed markedly. It introduced a direct constitutional challenge against the City’s housing programme
and its implementation, on the basis that it failed to provide for temporary emergency housing in the

inner city and the surrounds. In addition, it sought a declarator that the City was under a constitutional
duty to provide temporary emergency accommodation to the occupiers in a specified area of either,
Woodstock, Salt River and Inner-City Precinct, and that it should be directed to do so. The high court
allowed the amendment, which amended notice of motion was ‘effected’ on 13 September 2018.

In respect of the issue of constitutionality, the SCA found the following. Firstly, the high court had not
identified the extent of invalidity for the City to rectify in its order. For this reason alone, the SCA found
that its order of unconstitutionality could not stand.

In addition, the SCA found that the high court’s order did not accord with the relief sought by the
occupiers. The SCA found that it was not substantiated by the papers which served before the court or
by the court’s reasoning. This was because the occupiers had challenged the housing programme in
terms of the City’s Integrated Human Settlements: Five-Year Plan for the period of July 2012 to June
2017 (the Five-Year Plan). In this regard, the SCA found that apart from the fact that that document had
expired, no affidavit was filed as the foundation for the new notice of motion, nor any legal basis set
out in support of this constitutional attack anywhere in the papers. Neither were the impugned portions
of the Five-Year Plan identified, nor the relevant constitutional or statutory provisions infringed. As to
the content of the impugned Five-Year Plan, the SCA found that there was no inconsistency between it
and the City’s alleged new approach. Even if there were, the City was entitled to adapt its housing
programme.

Further, the SCA found that the legislative measures and programmes taken by the government giving
effect to s 26 of the Constitution did not impose a duty on it to provide temporary emergency
accommodation at a specific locality. Nor have the line of cases since Government of the Republic of
South Africa and Others v Grootboom and Others [2000] ZACC 19; 2001 (1) SA 46 (CC); 2000 (11)
BCLR 1169 (CC). In fact, the opposite was suggested; for example, in Residents of Joe Slovo
Community, Western Cape v Thubelisha Homes and Others (Centre on Housing Rights and Evictions
and Another, Amici Curiae) [2009] ZACC 16; 2010 (3) SA 454 (CC); 2009 (9) BCLR 847 (CC).

In regard to the reasonableness of the City’s emergency housing programme, the SCA found that the
City demonstrated unequivocally that its policy provided for an emergency housing programme, and
the fact that no provision was made for such emergency housing needs in the inner city, did not render
the choices made by the City irrational or unreasonable.

In regard to the alleged differentiation of treatment of the occupiers by the City, the SCA found that
there was no evidence that any evictees in a position similar to the occupiers were accommodated in
the transitional housing sites within the inner city.

The SCA found further that the high court’s order put the City in an invidious position, by making an
order without knowing, or being in a position to know, if land would be found specifically in the inner
city and surrounds. An effect of the high court’s order was to re-direct the City’s resources, which
choices were not for the courts to make. In light of all the reasons above, the SCA held that the high
court’s order had to be set aside.

Lastly, the SCA found that it still had to make a just and equitable order, so as not to render the occupiers
homeless. In regard to the appropriate relief, the SCA found that the City bore a duty to provide the
occupiers with suitable temporary emergency accommodation, and it was appropriate that an order be
made that such accommodation be at a location as near as possible to the area where the property was
situated. To this end, it was essential that the City be provided with reasonable time to find the

temporary emergency accommodation. It followed that the date of eviction stipulated in the eviction
orders had to be extended to a reasonable date after the City was to provide accommodation.

Notably, the SCA remarked on the imperative for the City to realise that it had the responsibility of
ensuring that the occupiers were treated with dignity and care when choosing an appropriate location.
In doing so, the City had to take into account the occupier’s places of employment and children’s
schooling, hospitals, transportation and other important amenities that their relocation required. In this
regard, the vulnerabilities of the occupiers had to be considered.

As to costs, the SCA held that the Biowatch principle applied. Accordingly, no costs order was made in
the appeal, and the high court’s costs order was set aside.

~~~~ends~~~~