Melani and Others v. City of Johannesburg and Others (02752/2014) [2016] ZAGPJHC 55

Nature of the Case

Approximately 10,000 residents of Slovo Park informal settlement challenged the City of Johannesburg’s (City) failure to apply to the Gauteng Provincial Government for funding to upgrade Slovo Park in terms of the Upgrading of Informal Settlements Programme (UISP).  The High Court held that this failure was unreasonable and in breach of the residents’ rights to just administrative action, and that flew in the face of the City’s constitutional obligation to realize the residents’ right of access to adequate housing, its duty to comply with the National Housing Act and National Housing Code, and decades of promises to improve the area.

Summary

For over 20 years, the City of Johannesburg promised residents that it would upgrade Slovo Park in the face of a lack of electricity, adequate water, sanitation, refuse removal, demarcated roads, and a proneness to fatal shack fires.  The City’s inaction led residents to develop their own upgrading plans in keeping with the Upgrading of Informal Settlements Policy (UISP) contained within the National Housing Code.  Despite residents’ efforts to engage the City on implementing these plans, the City was unresponsive.  Consequently, represented by the Socio-Economic Rights Institute of South Africa (SERI), residents sued the City to set aside its failure to apply for upgrade funding under the UISP, or, alternatively, to compel the City to upgrade Slovo Park.

When opposing the application, the City claimed that it had made a policy decision to relocate qualifying residents to Unaville, a site 11 kilometers away removed from amenities, social services, essential businesses, and work opportunities. They argued that this decision could not be reviewed by the court, as it was a policy decision where the city was exercising executive authority that cannot be impugned by the residents.

Rejecting the City’s argument about the unavailability of review, the Court held that its decision to relocate residents rather than develop the settlement involved implementing existing policy. As such, the City was performing an administrative function subject to judicial review.  Although the City claimed that developing Slovo Park was not feasible because the land is dolomitic, it conceded that development was possible for at least 482 households.  Consequently, the Court held that by ignoring the upgrade option, the City unlawfully failed to apply the UISP, a binding legislative and policy framework.  This failure was not only unreasonable, but also violated the residents’ rights to just administrative action and to access to adequate housing under section 26(1) of the Constitution.  Further, the Court held that its decision to only relocate qualifying residents was “unreasonable and not inclusive.” This unreasonable decision also contravened established jurisprudence on the need for “meaningful engagement” in cases involving the right to housing.  Moreover, under the Housing Code, relocation is a last resort and would go against residents’ long-term and legitimate expectation that Slovo Park would be upgraded.

The Court set aside the City’s failure to decide to apply for upgrade funding; directed the City to make this application within three months; directed the Gauteng Member of the Executive Council  for Human Settlements to consider the report and to report back within three months after receiving the application on the steps taken under the UISP; and ordered the other Respondents to report within four months on their steps towards compliance with the order. The Court also ordered the City to pay the legal costs.

Enforcement of the Decision and Outcomes

In 2016, the City initially appealed the high court decision, but then withdrew its appeal. The City proceeded to submit a business plan to the provincial government in July 2016 to construct 399 houses at Slovo Park, without any plan to accommodate the remaining 3335 households in the settlement. The Slovo Park Community Development Forum rejected the City’s first application on the basis that it was not UISP compliant. The City did not apply its mind to upgrade the settlement in situ with minimum disruption, and there was no community participation. The residents engaged the City and the Mayoral Executive Council (MEC) about the deficits in the application. In 2017, a multi-stakeholder task team was formed with community leaders, academics, practitioners, and officials from local, provincial, and national government. The purpose of the task team is to guide the implementation of the court order and UISP in Slovo Park. Throughout 2017, the City conducted a socio-economic survey and basic geotechnical studies in Slovo Park. In mid-2018, municipal electricity was installed in the settlement. In October 2019, the City redrafted its funding application in close consultation with Slovo Park community leaders on the task team and submitted the business plan to upgrade Slovo Park to the MEC for Human Settlements.

Significance of the Case

This case is an important victory in the 20-year struggle for Slovo Park residents to realize their right to adequate housing. It also has potentially profound implications for other informal settlements.  In holding that the UISP is binding on municipalities and that upgrades, rather than relocation, are the first course of action, the Court has placed an obligation on municipalities to use the UISP and to engage with informal settlement residents on upgrading their housing.

For their contributions, special thanks to ESCR-Net member: the Program on Human Rights and the Global Economy (PHRGE) at Northeastern University.

Groups Involved in the Case

• Socio-Economic Rights Institute of South Africa (SERI)