City of Cape Town v Commando and Others

The first to twenty-sixth respondents (the occupiers) were tenants of property at erf 10626, Bromwell Street, Woodstock, Cape Town, rented from the Syms brothers. Woodstock Hub (Pty) Ltd purchased the property and sought to evict the occupiers. Two eviction orders were granted by consent in 2016 under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE). The occupiers faced homelessness. The City of Cape Town was cited but no relief was sought from it in the eviction proceedings. The occupiers' new attorneys initiated discussions with the City about emergency accommodation. The City offered temporary emergency housing at Wolwerivier (approximately 30 km away) and later at Kampies, Philippi (approximately 15 km away). The occupiers rejected these offers, primarily on the basis of distance from the property. They sought emergency accommodation in Woodstock, Salt River or the Inner-City Precinct. The occupiers launched an application seeking a declaration that the City's emergency housing programme was unconstitutional for failing to provide emergency housing in the inner city, and an order directing the City to provide them with temporary emergency accommodation or transitional housing in Woodstock, Salt River or the Inner-City Precinct. The high court granted the order.

• Whether the City of Cape Town's emergency housing programme and its implementation is unconstitutional for failing to provide emergency housing in the inner city and surrounds, specifically Woodstock and Salt River
• Whether the Constitution and relevant legislation impose a duty on a municipality to provide temporary emergency accommodation at a specific location chosen by evictees
• Whether the City's emergency housing programme is reasonable within the meaning of section 26(2) of the Constitution
• Whether the City's differentiation between emergency housing beneficiaries (offering transitional housing in the inner city to some but not the occupiers) was irrational or arbitrary
• What constitutes a just and equitable order in circumstances where evictees face homelessness

The appeal was upheld with no order as to costs. The high court's order was set aside and replaced with an order that: (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 erf 10626, Bromwell Street, Woodstock, on or before 30 May 2023, provided they are still resident and have not voluntarily vacated; (2) The date for vacating the property is extended to 30 June 2023; (3) No order as to costs.

The binding legal principles established are: (1) Section 26 of the Constitution, the Housing Act 107 of 1997, and the National Housing Code do not impose a duty on municipalities to provide temporary emergency accommodation at a specific location or locality chosen by evictees. (2) The Constitution does not guarantee a right to housing at government expense at the locality of one's choice; locality is determined by various factors including availability of land, though municipalities must have regard to the relationship between location and places of employment. (3) In assessing reasonableness under section 26(2), courts must not enquire whether other more desirable measures could have been adopted or whether public money could have been better spent; the enquiry is confined to whether the measures adopted are reasonable. (4) Courts must acknowledge that government must determine and set priorities, and a wide range of possible measures could be adopted to meet constitutional obligations. (5) A housing programme must be assessed holistically, considering all housing delivery programmes, not emergency housing in isolation. (6) Differentiation between categories of emergency housing beneficiaries does not constitute arbitrary conduct where based on legitimate policy objectives (such as reserving transitional housing for specific relocation purposes to enable permanent housing development). (7) Courts must not trespass into the executive domain of deciding how to allocate housing budgets and resources, as this offends the separation of powers doctrine. (8) Even where a specific locality cannot be mandated, courts must make just and equitable orders to prevent homelessness, requiring emergency accommodation "as near as possible" to current residences.

The Court made several non-binding observations: (1) The Court noted that access to adequate housing remains one of the major challenges in South Africa, exacerbated by urbanisation and the persistence of apartheid spatial planning patterns, which are particularly pronounced in Cape Town. (2) The Court observed that even when parties consent to eviction orders, judicial officers have a duty to conduct enquiries under PIE because of the risk of homelessness, though no appeal was brought against the consent orders in this case. (3) The Court noted that temporary emergency accommodation has in many instances become semi-permanent or permanent due to housing shortages. (4) The Court observed that a political speech by a municipal politician does not constitute policy carefully considered and adopted by a policy-maker. (5) The Court commented that housing programmes must be flexible and adaptive. (6) The Court emphasized the distinction between temporary emergency housing (provided to meet emergency needs) and progressive realisation of adequate permanent housing (which may be subsidized to varying degrees depending on beneficiaries' circumstances). (7) The Court noted that once it is recognized that emergency accommodation will inevitably fall short of standards expected of permanent housing, occupants must accept less than what would ordinarily be acceptable, though this must be seen against the realities of vast housing backlogs. (8) The Court emphasized that in choosing appropriate locations for emergency housing, the City should treat occupiers with dignity and care, taking into account places of employment, children's schooling, hospitals, transportation and other amenities, as well as the vulnerabilities of occupiers. (9) The Court applied the Biowatch principle regarding costs in public interest litigation.

This case clarifies the scope of municipalities' constitutional obligations regarding emergency housing under section 26 of the Constitution. It establishes that while municipalities have a duty to provide temporary emergency accommodation to evictees facing homelessness, this duty does not extend to providing such accommodation at a specific location chosen by the beneficiaries. The judgment reinforces the separation of powers by holding that courts cannot dictate to municipalities where particular housing programmes should be implemented or how public resources should be allocated, provided the municipality's policy choices are rational and reasonable. The case also emphasizes that housing programmes must be assessed holistically, not in isolation, and that differentiation between categories of beneficiaries does not necessarily constitute arbitrary or irrational conduct. It highlights the ongoing challenges of spatial transformation, gentrification, and the legacy of apartheid spatial planning in South African cities, particularly Cape Town. The judgment is significant for housing rights litigation and for understanding the limits of judicial intervention in socio-economic rights cases involving polycentric policy decisions.