Appeal to South African Constitutional Court regarding an eviction of an informal settlement to build low-cost housing; Nature of the right of access to adequate housing; Reasonableness of government policy on housing; Legitimate expectations of the community.
Approximately 20,000 occupiers of the Joe Slovo informal settlement in Cape Town appealed to the Constitutional Court to set aside an order for their eviction granted by the High Court. The eviction had been sought by the National and Provincial Ministers of Housing and a housing company contracted to implement a development of formal housing for low-income families at the site of the informal settlement. While the housing company tendered that they would provide temporary accommodation for the occupiers in Delft, 15 kilometres away, no permanent housing was guaranteed.
The Court dealt with the application using the reasonableness standard. The question as to whether the eviction was just and equitable was decided by analyzing whether it constituted a reasonable measure to give effect to the right to housing. The Court decided the eviction was reasonable, even in the absence of meaningful engagement with the community, upon the condition that adequate alternative accommodation was provided and that the occupiers’ expectation that 70% of the houses in the new development would be allocated to them.
The Court found the applicants were “unlawful occupiers” under domestic legislation, and that the respondents had acted reasonably in seeking to promote the right of access to adequate housing, however, the order granted by the Constitutional Court differed from that of the High Court. The Constitutional Court stipulated that, no person may be moved unless alternative accommodation in accordance with requirements set out by the Court is provided, including: (1) individual engagement with households before their move, including on the timetable for the move and other issues, including the provision of assistance to move their possessions; (2) adequate schools and clinics were provided on the relocation site; and (3) the accommodation had to be ensured at the point of eviction. The parties were directed to report to the Court on the implementation of the order.
Keywords: Residents of the Joe Slovo Community, Western Cape v. Thubelisha Homes and others 2010 (3) SA 454, Adequate, Standard, Living, Right
The eviction order has not been executed, and appears likely be discharged. In the period between the hearing of the case and the handing down of the judgment, political control of the Western Cape Provincial Government (and accordingly control over the funding of subsidised housing projects in that province) passed from the African National Congress (ANC) to the Democratic Alliance (DA). Largely because of the difficulty it would have in complying with the stringent conditions set out in the order of the Court, the provincial government soon agreed to look again at upgrading the settlement on site- an option it had previously told the Court was impossible, but which the applicants had sought all along.
This case was considered an important victory to those living in the Joe Slovo settlement because the community has been given another opportunity to press for an on site upgrade due to the governments inability to implement the Court’s detailed and exacting order. In this case, the Court appeared to conceive of its role as one of requiring the government to implement the best possible version of the policy it had presented. Reasonableness review in this case was about giving effect to the expectations of the Joe Slovo community which were consistent with that policy rather than delving into the question of whether the policy was appropriate to the community’s objectively established needs. Yet, the fact that the Court was willing to hold the government to its own account of what the policy was meant provide, and to ensure that it was implemented accordingly, was ultimately to prove decisive.
Joe Slovo Task Team Legal Resources Centre http://www.lrc.org.za/ Community Law Centre: http://www.communitylawcentre.org.za/ Centre for Housing Rights and Evictions: http://www.cohre.org/ Centre for Applied Legal Studies: http://web.wits.ac.za/Academic/CLM/Law/CALS/
