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.