Dec. 5th, 2011: Constitutional Court declares City of Johannesburg's Housing Policy Unconstitutional

Publish Date: 
Monday, December 5, 2011
Source of Information: 
Socio-Economic Rights Institute of South Africa (SERI) Centre for Applied Legal Studies (CALS), University of the Witwatersrand

City must provide accommodation to occupiers by 1 April 2012; owner must wait to take control of his property.

The Constitutional Court today declared the City of Johannesburg's housing policy unconstitutional and ordered the City to provide temporary accommodation to 86 desperately poor people living in Berea in inner city Johannesburg. The Court was ruling on the application of Blue Moonlight Properties to evict the occupiers from its property.

In a unanimous judgment, written by Justice van der Westhuizen, the Court held that the City was both entitled and obliged to provide temporary accommodation to desperately poor people facing homelessness as a result of eviction. The Court also criticised the City's failure to plan and budget for housing crises and labelled its argument that it was not legally entitled to do so "unconvincing".

The Court said that the City's policy of providing shelter to people it removes from allegedly unsafe buildings, but refusing to provide shelter to equally desperate people evicted by private owners, was unreasonable and unconstitutional.

The Court also held that, where a property owner purchases land knowing it to be occupied (as Blue Moonlight did in this case), "an owner may have to be somewhat patient, and accept that the [owner's] right to occupation may be temporarily restricted" if an eviction would lead to homelessness.

The Court accordingly ordered that the City should provide the occupiers with alternative accommodation "in a location as near as possible to the areas where the property is situated" on or before 1 April 2012. The occupiers will be expected to vacate the property and move to the alternative accommodation by 15 April. The Court held that providing the occupiers with temporary accommodation does not promote so-called 'queue-jumping'.

Morgan Courtenay, the occupiers' attorney at the Centre for Applied Legal Studies (CALS), based at the University of the Witwatersrand, said "this is a huge victory for the poor generally and for the occupiers in particular. We call on the City to immediately take steps to implement the Court's order and to carefully consult with the occupiers and their representatives to this end".

Jackie Dugard, executive director of the Socio-Economic Rights Institute of South Africa (SERI) said "the City has been in a state of denial about the needs of poor and desperate people under threat of eviction by private landlords within its jurisdiction. That must now end. The Court has recognised that the state has obligations towards poor people regardless of whether a state or private entity evicts. The City must begin to engage actively with its obligations and budget to give effect to them."

CALS - together with Advocates Paul Kennedy SC, Heidi Barnes and Stuart Wilson (SERI's Director of Litigation) - acted for the occupiers in court.  See actual decision here.