[This is a guest post by Rishika Sahgal.]
Cases involving eviction from well-located land in the heart of cities and relocation to urban peripheries are common across the world, including in India and South Africa. Resistance to such evictions involve intertwined demands to housing as well as to spatial justice, that is, the demand for well-located housing. A recent case – Commando v City of Cape Town (Commando) – decided by the South African Constitutional Court recognises the spatial dimension of these claims in the city of Cape Town. The case can serve as an important deliberative resource for Indian lawyers, judges and activists in framing and adjudicating such claims.
Key issue: location, location, location
The case involved a group of 15 people and their families (I will call them residents) who were facing evictions in Cape Town. They were lawful tenants who had been living at the location for generations under lease agreements with private property owners. They were also one of the very few black communities who had successfully resisted displacement from inner city Cape Town during the apartheid era. More recently, private developers had bought these properties from the former owners with a view to redevelop the area. The local authority in Cape Town (I will call this “the City”) was in favour of ‘gentrification’ of the inner city and had created considerable tax incentives to promote redevelopment. After buying these properties, private developers cancelled lease agreements with residents, gave them notice to vacate their homes, and thereafter instituted eviction proceedings before the courts. These residents were impoverished, and if evicted, would not have been able to afford to rent another accommodation in the inner city. The City was willing to provide residents with temporary emergency accommodation so that the eviction did not render them homeless, as it is required to do under the South African Constitution (see Grootboom, Blue Moonlight). However, this accommodation was 15 km away from their existing homes, outside the inner city of Cape Town. Their challenge was based on the location of the alternative accommodation offered to them.
The argument was nuanced. In the Supreme Court of Appeal, judges had held that residents do not have a constitutional right to demand accommodation at a specific location. The residents urged the Constitutional Court to reframe the issue. They argued that the question to be decided is whether the state acted reasonably when implementing its emergency housing programme and particularly in determining the location of the accommodation offered under the programme. They argued that the City of Cape Town acted unreasonably when determining the location of the accommodation because it entirely excluded the possibility of temporary emergency accommodation in inner city Cape Town, which would have been more equivalent to the place from which they were being displaced. So, residents were not arguing that they had a right to demand accommodation at a specific location. Rather, they argued that the state has an obligation to act reasonably when determining the location of accommodation offered to residents (para 28). A blanket refusal to grant temporary emergency accommodation in the inner city, was unreasonable.
Relevant constitutional provisions and principles
The right to housing is explicitly enshrined under section 26 of the South African Constitution. While s 26(1) guarantees the right, s 26(2) focuses on the obligations placed on the state to take reasonable measures within its available resources to achieve the progressive realisation of the right. The case law has read these two sub-sections together, so the focus has been on evaluating the reasonableness of measures taken by the state in relation to housing under s 26(2), without expanding on the content of the right under s 26(1) (for critical engagement with this, see work by David Bilchitz, and by Stuart Wilson and Jackie Dugard). The residents in Commando framed their arguments within this approach, requiring the court to evaluate the reasonableness of state action with regards to the location of the accommodation offered to residents.
Backdrop: Spatial Apartheid
The context of displacement and dispossession of Africans from land under the apartheid South African regime formed an important backdrop to the case. Residents before the Constitutional Court highlighted this backdrop and argued that constitutional provisions on the right to housing must be interpreted with this in mind. They argued that the decision of the City of Cape Town to displace residents from the inner city and remove them to the peripheries of Cape Town would mirror the process undertaken by the erstwhile apartheid regime, entrenching spatial apartheid. The reasonableness of the state’s decision with regards to the location of accommodation offered to residents would therefore have to be considered against the constitutional requirement to undo the spatial apartheid legacy of the past [para 29].
The decision of the Constitutional Court
The Constitutional Court was clear that the right to housing under s 26 does not include the right to temporary emergency accommodation to evictees at a particular location. At the same time, it recognised that the location of accommodation was of constitutional significance. The Court held that the state bore an obligation under s 26(2) to act reasonably, including in determining the location of temporary emergency accommodation. In determining what is reasonable, the court would scrutinise the state’s measures against relevant social, economic and historical context. Issues of spatial justice were an important component of this context. The Court unequivocally noted that “it is untenable for municipalities to conduct themselves in a manner that preserves spatial inequalities and reinforces patterns of social exclusion.“
In determining what was reasonable within the circumstances, the state was also required to account for the impact of eviction on residents’ access to education, healthcare facilities, employment and community ties (para 101).
Resource allocation was another important issue raised in the case. The City argued before the Constitutional Court that providing temporary emergency accommodation to residents in the inner city was too expensive, and that it had discretion with regards to how to allocate its limited budget. It had chosen to use its budget to prioritise provision of long-term social housing in the inner city instead of providing temporary emergency accommodation. The Constitutional Court was cognisant of separation of power concerns with regards to scrutinising budgetary or resource allocation decisions of the state. Yet, such concerns could not entirely exclude judicial scrutiny.
The approach of the Constitutional Court was to require the state to provide reasons for its actions. Sandra Fredman has argued that such an approach helps to fulfil an important judicial role in upholding deliberative democracy rather than impeding on the democratically elected organs of the state. So, the judiciary was not telling the City how to spend its budget, because it recognised that such a decision was the proper role of the local authority. However, it could ask the City to provide reasons for its decisions, to ensure that all relevant constitutional issues were considered, and that the City’s claims were not unsubstantiated assertions but backed by cogent evidence [para 110].
, the Constitutional Court found that the City had not considered providing any temporary emergency accommodation to residents in the inner city, despite the serious impact of such a decision on spatial justice and other interconnected rights of the residents. Residents had indicated to the City that there was vacant state-owned land available in the inner city. The City argued that it planned to use this land to provide long-term social housing and not temporary emergency accommodation. This disadvantaged these residents, because they were too poor to meet the income requirements to qualify for social housing and so would be forced out of the area they had lived in for generations. The City had failed to consider the ‘actual situation’ of these residents when making its ‘blanket’ decision to refuse any temporary emergency accommodation in the inner city.
he City argued that providing temporary emergency accommodation in the inner city was too expensive, but The Court found that this was a ‘vague’ and ‘unconvincing’ argument, because, “there was no real attempt on the part of the City to place before the Court detailed information and data that would be essential for the purposes of an assessment of the reasonableness of its measures.” (para 106)
Overall, the Constitutional Court found that the City had acted unconstitutionally. As a remedy, it inter alia halted the eviction of residents and ordered the City to provide temporary emergency accommodation to the residents in the inner city, ‘as near as possible’ to their homes (para 116).
It is important to note that in this case, the arguments were centred around the location of temporary emergency accommodation rather than alternative accommodation of a more permanent kind. This is because of the peculiarity of South African housing rights jurisprudence. Courts in South Africa have recognised the need to prevent people from being rendered homeless and have therefore required that the state put in place a programme to fulfil the temporary emergency housing needs of those who would become homeless when faced with evictions at the hands of public authorities (Grootboom) and private landowners (Blue Moonlight). Courts have been reluctant to order the state to provide permanent accommodation to such residents because of a concern around ‘queue jumping’, that is, jumping ahead of others already in line awaiting permanent accommodation under the housing policy of the state (Grootboom, para 81). Of course, an abiding concern in South Africa is that such ‘temporary’ and ‘emergency’ accommodation has housed residents for years, with no sight of a more permanent housing allocation. This approach has therefore been subject to much critique (for example, see this report by the Socio-Economic Rights Institute of South Africa and this op-ed by David Dickinson and Louise du Plessis).
Take-away for India
Since Olga Tellis, the issue of alternate accommodation for impoverished people has always come up in eviction cases. Moreover, the location of such accommodation has been of key importance. For example, when recognising shelter as a fundamental right in Olga Tellis, Chief Justice YV Chandrachud accepted the importance of the location of shelter for people in at least two ways. First, he recognised that people sought shelter in the city, because ‘[t]hey have no option but to flock to big cities like Bombay, which provide the means of bare subsistence’. Second, people sought shelter close to where they worked in the city – [t]hey only choose a pavement or a slum which is nearest to their place of work’. Thus, from its very inception as a fundamental right, location of housing has been a key issue in eviction cases.
Similarly, in a more recent case before the Bombay High Court where the present author and this blog’s editor served as amicus curae (Prakash Gangaram Jadhav v Municipal Corporation of Greater Mumbai WP 3869/2021) residents facing evictions from their informal settlement challenged the location of alternative accommodation offered to them. They argued that the proposed place of relocation, the village of Mahul, was ‘unhygienic, unsanitary and unsafe.’ A division bench of the Bombay High Court framed the issue to be determined as follows,
…the fundamental question of whether a PAP [project affected person] can oppose a public utility project and continue to remain illicitly on a site required for that public utility until the demands of the PAP for a relocation to a destination of choice are met and whether that PAP can specify the destination location or the PAP package as it were. (order dated 2 November 2023, paragraph 6).
We can see that the Bombay High Court in Prakash Gangaram Jadhav framed the issue in similar terms as the South African Supreme Court of Appeal in Commando – about whether residents have the right to relocation at a location of their choice. The case law indicates, in both India and South Africa, that courts are reluctant to recognise that residents have a right to alternate accommodation at a location of their choice. Instead, we can now take inspiration from the way the issue was framed before the South African Constitutional Court. So, the issue to be determined is whether the state’s decision with regards to location of alternate accommodation is reasonable. Commando indicates the value of reframing the issue in these terms.
Moreover, as argued before the Bombay High Court, the state has an obligation to meaningfully engage with residents about the location of alternate accommodation. So, while residents cannot demand alternate accommodation at a particular location as a matter of right, they can certainly demand that the state act reasonably when determining the location of accommodation; and that the state meaningfully engage with residents to determine the location as part of this duty to ‘act reasonably’. A similar point was made by the concurring opinion in Commando, wherein two judges required the City of Cape Town to meaningfully engage with residents in determining the location of temporary emergency accommodation offered to them within the inner city (paragraph 205).
Conclusion
Issues of housing and spatial justice are inextricably intertwined. Impoverished people care not only about getting access to a house, but also care about the location of the house, because the location of housing serves as an important link with fulfilling their other material and non-material needs – employment, education, healthcare, community ties, etc. The issue of location or spatial justice has always cropped up in eviction cases. Post Commando, the global legal community, including the Indian legal fraternity, has access to an important decision that indicates the doctrinal means for fulfilling both the right to housing and the interlinked right to spatial justice.