Introduction
South Africa’s democracy is 30 years old. What started out as a brand-new Constitution with a Bill of Rights, packed with yet-to-be-interpreted rights, has now been litigated on numerous times.Footnote 1 The meaning and content of the rights have been debated, refined and revisited, and one specific right has been defined and refined the most: the right of access to adequate housing, found in section 26 of the Constitution.Footnote 2 The Constitutional Court’s grappling with the meaning and application of this right started with Government of the Republic of South Africa and Others v Grootboom and Others (Grootboom) in 2000 and is still continuing, with cases such as Commando and Others v City of Cape Town and Another (Commando (CC)) in 2024.Footnote 3 Many parts of this right have been developed; one such development is that the courts have found that the right includes a duty on the state to provide emergency alternative accommodation in eviction matters to those facing homelessness.Footnote 4 Throughout the years, the suitability of this alternative accommodation has been grappled with by the courts again and again, as will be shown.
Muller and Viljoen lament the fact that there is an “absence of an organising framework within which the suitability of alternative accommodation can be considered”, leading to a failure by courts to “craft context-sensitive eviction orders”.Footnote 5 They argue that broad guidelines should be developed “to further our understanding of what the right … entails”.Footnote 6 This article analyses the case law, with the aim of determining whether and to what extent the courts have created such broad guidelines for assessing the suitability of alternative accommodation. Importantly, the judge in City of Cape Town v Various Occupiers and Another (Tents) said that:
“I do not read the case law to impose any universal standard for what constitutes adequate alternative accommodation. What a court finds is reasonable for one category of persons is not necessarily reasonable for all other categories.
That does not mean that courts must re-evaluate from scratch the reasonableness of alternative accommodation offers in each and every case. That would be unworkable. Accommodation that has been held to be reasonable in one case will be reasonable in other similar cases.
What is reasonable will depend on occupiers’ needs, and municipalities’ means.”Footnote 7
This suggests that one could get guidance from the courts as to what would be acceptable, but that this would always also be specific to the matter at hand.
International law
The Constitution, in section 39(1)(b), requires the courts to consider international law when interpreting rights. The International Covenant on Economic Social and Cultural Rights (ICESCR) entrenches a right to adequate housing (in article 11(1)), and the definition of this right has been the subject of two general comments by the ICESCR Committee.Footnote 8 General Comment No 4 specifically discusses the elements of adequate housing, and identifies seven elements: legal security of tenure; availability of services, materials, facilities and infrastructure; affordability; habitability; accessibility; location; and cultural adequacy.Footnote 9 “Legal security of tenure” entails having protection against forced evictions, but does not necessarily entail ownership or registered title. “Availability of services, materials, facilities and infrastructure” requires, amongst other things, access to water, sanitation and electricity. “Affordability” requires that the housing be affordable, while “habitability” requires that the space be adequate and that there be protection from the elements (cold, rain, etc); it also requires the physical safety of the occupiers. This correlates with the definition of habitability in the Rental Housing Amendment Act 35 of 2014, thus indicating the state’s acceptance of this standard.Footnote 10 “Accessibility” refers to the fact that the state should enable all persons to access adequate housing, including prioritizing those with special needs, such as the elderly, the disabled and children. It also includes providing “access to land” to the landless and the poor.Footnote 11 “Location” requires that the location of the housing be such that it allows access to “employment options, health-care services, schools, childcare centres and other social facilities”.Footnote 12 “Cultural adequacy” requires that when housing is provided, cognizance is taken of its cultural context. In addition, the General Comment requires that the right be informed by other human rights.Footnote 13 General Comment No 7 further requires the state to provide “adequate alternative housing” to the “maximum of its available resources” when persons face homelessness due to eviction.Footnote 14
These standards should be taken into account when determining whether housing provided by the state is suitable. It is common for studies on housing rights in South Africa to include reference to these standards, and scholars have also argued that they must be relied on to interpret section 26.Footnote 15 This is despite the fact that the Constitutional Court in Grootboom was unwilling to accept the minimum core interpretation of the right to housing of the ICESCR, finding that the wording of the right of access to housing in section 26(1) differed from the right in the ICESCR. Muller argues that despite this decision, the Constitutional Court should base its interpretation of the right on international law, an argument supported by the fact that South Africa ratified the ICESCR after the Grootboom decision, making it “difficult for the Constitutional Court to persist with its view that section 26(1) of the Constitution is distinct from article 11(1) of the ICESCR”.Footnote 16
It is easy to argue that South Africa should adopt these standards for the provision of permanent housing. It has, however, been argued that these standards should also apply to emergency housing, such as alternative accommodation.Footnote 17 Whether the court’s findings comply with these standards is considered below.
The South African legal framework
Section 26 of the Constitution is dedicated to housing, entrenching a right of access to adequate housing in section 26(1). Section 26(2) internally limits the state’s duty to realize this right (section 7(2)) by providing that its realization requires reasonable legislative and other measures, implemented progressively within the state’s available resources. Section 26(3) provides that all evictions must be court-ordered and that the court must consider all of the relevant circumstances. Section 172(1)(b) of the Constitution provides that, in constitutional matters, courts may make any order that is just and equitable. The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE) was enacted to give effect to section 26(3) of the Constitution, and provides the substantive and procedural guidelines for evictions.Footnote 18 This Act prohibits courts from granting eviction orders that are not just and equitable, considering the relevant circumstances; this essentially amounts to reading sections 26(3) and 172(1)(b) together.
The finding in Occupiers of Erven 87 and 88 Berea v De Wet NO and Another that evictions without alternative accommodation would not be just and equitable, together with the state’s duty to provide housing, created a duty on the state to provide emergency accommodation in eviction matters where occupiers face homelessness.Footnote 19 The Housing Act 107 of 1997 was enacted to give effect to the state’s duty in section 26 to realize the right of access to adequate housing; this includes laying down processes, general principles and the functions of the different spheres of government for housing development.Footnote 20 Further to the Housing Act, the National Housing Code contains the norms and standards as well as the guidelines for all of the state’s housing programmes.Footnote 21 One of these programmes is the Housing Assistance in Emergency Circumstances programme, also known as the Emergency Housing Programme (EHP), which sets out the standards to be followed when the state provides housing to persons in emergency circumstances, such as evictions.Footnote 22 It specifically states that “[t]he National Norms and Standards in respect of permanent residential structures will not apply in temporary settlement areas”.Footnote 23 The standards set by the EHP instead primarily relate to informal structures in temporary relocation areas (TRAs). In Tents the court confirmed that this was not the only type of alternative accommodation that would be acceptable.Footnote 24 Nevertheless, these standards could be helpful in considering the suitability of other types of emergency accommodation; they include:
• One tap for every 25 families
• One toilet for every five families
• Roads need not be tarred and all shelters need not have vehicle access
• Electricity need not be provided (only in special circumstances must high-mast lighting be provided)
• At least 24m2 floor area
• Beneficiaries could be required to construct the shelters themselves
• Preferably prefab units (not tents)
• Must be able to be dismantled and re-used
General guidelines for suitable alternative accommodation
Since Grootboom, the first Constitutional Court case concerning section 26 of the Constitution, the courts have been carving out general guidelines for suitable alternative accommodation and have additionally accepted certain forms of alternative accommodation. This section aims to identify the guidelines set by the courts: it first discusses some overarching principles before trying to ascertain to what extent guidelines relating to the international standards on adequate housing have been created.
Overarching guidelines
When discussing the overarching guidelines for suitable alternative accommodation that have been carved out by the courts, it must, importantly, be kept in mind that one can get guidance from the courts as to what would be acceptable, but that this will (or at least should) always also be specific to the matter at hand.Footnote 25 Moreover, it must be recognized that courts hold themselves bound by the standards set by the laws giving effect to the state’s constitutional duties, such as the EHP.Footnote 26 The standards identified below complement those set out in the existing laws. It is also clear that they are often hampered by the limitations of existing laws.Footnote 27
Reasonableness as measure
The Constitutional Court in Grootboom found that the standard of reasonableness is the primary standard against which to measure the state’s adherence to its duties in terms of section 26.Footnote 28 This is based on the requirement in section 26(2) that the state must realize the right by taking reasonable measures.Footnote 29 These measures, according to Grootboom, include a duty to adopt and implement a housing programme; such a programme would not be reasonable if it did not include provision of alternative accommodation for people experiencing housing emergencies, such as becoming homeless through eviction.Footnote 30 As was found later, in City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd and Another, this duty to provide emergency accommodation not only rests on the national government but also on municipalities, as the sphere of government closest to the emergency.Footnote 31
In terms of PIE, evictions are prohibited if they would not be just and equitable considering the relevant circumstances of the case.Footnote 32 Whether the unlawful occupiers face homelessness is deemed one of the most important relevant circumstances, to such an extent that courts have found that evictions causing homelessness cannot be considered just and equitable.Footnote 33 This has resulted in a duty on the state to always provide alternative accommodation in evictions that would otherwise lead to homelessness. Consequently, the state is to be joined in all eviction matters that might lead to homelessness;Footnote 34 it must engage meaningfully with unlawful occupiers and offer suitable alternative accommodation.Footnote 35 It follows that the courts have been measuring the state’s compliance with its emergency housing duty by considering the reasonableness of the offers made to occupiers in specific cases.Footnote 36 This at times has included considering the reasonableness of the state’s overall emergency housing programme.Footnote 37 In Tents the court found that “[w]hat is reasonable will depend on occupiers’ needs, and municipalities’ means”.Footnote 38
Requirement to engage with occupiers
Another well-established guideline is that the state is required to engage meaningfully with unlawful occupiers facing homelessness to determine their specific needs.Footnote 39 This presupposes that alternative accommodation cannot be suitable if it does not take into account the particular needs of the occupiers, as determined through meaningful engagement, and failing to facilitate such engagement violates their human dignity.Footnote 40 Despite the courts’ acknowledgment of the importance of participation, Muller and Viljoen write that courts fail to take into account the specific needs of occupiers when determining the suitability of the alternative accommodation offered by the state.Footnote 41 This should include a focus on the needs of vulnerable groups, such as children, the elderly, the disabled and households headed by women.Footnote 42
Lower standards than permanent housing
A further overarching guideline is that the standard of alternative accommodation may be lower than the standard of permanent housing. Already in the first Constitutional Court ruling on the topic, Grootboom, the court specified that the standard of housing need not be the same as that of permanent housing.Footnote 43 This was confirmed in later cases as well as in the EHP.Footnote 44 In Port Elizabeth Municipality v Various Occupiers, the court said that the occupiers must be allowed to live in the alternative accommodation until they got permanent housing, suggesting that the alternative accommodation would not be of the same standard.Footnote 45 In the High Court decision on City of Cape Town v Hoosain NO and Others, the court found that:
“Once it is recognised that emergency accommodation by its very nature will invariably fall short of the standards reasonably expected of permanent housing accommodation, it follows that those who need to occupy such accommodation must accept less than what would ordinarily be acceptable. The apparent harshness of an acceptance of this recognition has to be seen against the realities imposed by the vast scale of the housing backlogs with which the state, in general, and the City, in particular, are having to engage.”Footnote 46
The Supreme Court of Appeal (SCA) in City of Cape Town v Commando and Others (Commando (SCA)) and in Dladla and Another v City of Johannesburg and Others (Dladla) concurred with this.Footnote 47 Similarly, in Baron and Others v Claytile (Pty) Limited and Another (Baron), the Constitutional Court acknowledged that the state’s limited resources, as well as the fact that the right is to be realized progressively, affects what would constitute suitable alternative accommodation.Footnote 48 As will be seen below, courts have, in fact, accepted lower standards for emergency housing than for permanent housing.Footnote 49 This is problematic, given that in many cases the accommodation is not temporary; persons moved to TRAs have been living there for years awaiting “permanent” housing.
Baseless rejections are not entertained
The third overarching guideline is that evictees cannot simply reject alternative accommodation offered by municipalities. Since accepting their duty to provide alternative accommodation in eviction matters, municipalities have faced criticism about the standard of housing that they offer, with occupiers rejecting the alternative accommodation offered.Footnote 50 Courts have made it clear that, while the opinions of occupiers are important, they will not tolerate continued blanket rejections of accommodation which is offered.
In Baron the occupiers rejected alternative accommodation in Wolwerivier on the basis that it was too far from their schools and jobs and that the structures were constructed from corrugated cladding, which made them inadequate.Footnote 51 The court stated that “[t]he question is thus whether the City has an obligation to continue offering accommodation until the applicants are satisfied”.Footnote 52 In answering this question, the court did not focus on which rejections would be justified; rather it focused on the delay such rejections caused and the detrimental effect it had on the landowner. It also did not deal with the suitability of the alternative accommodation. It only addressed the distance concern, insofar as the city promised school transport for the duration of the year.Footnote 53 It found that “[o]ccupiers cannot delay their eviction each time by stating that they find the alternative accommodation offered by the City unsuitable”.Footnote 54
In Grobler v Phillips and Others (Grobler), the Constitutional Court found that “the wishes or personal preferences of the unlawful occupier are not relevant. An unlawful occupier … does not have a right to refuse to be evicted on the basis that she prefers or wishes to remain in the property that she is occupying unlawfully.”Footnote 55 This was cited with approval in Tents.Footnote 56 The same court, in Occupiers of 51 Olivia Road, Berea Township and 197 Main Street Johannesburg v City of Johannesburg and Others, found that occupiers must not have an uncompromising attitude and make “non-negotiable, unreasonable demands”.Footnote 57 In Tents the court said that “[w]hile an agreed resolution is ideal, meaningful engagement does not require agreement. An eviction can be granted even though the occupiers remain dissatisfied with the options the municipality has presented.”Footnote 58 Furthermore it said that “suitable alternative accommodation need not be accommodation that occupiers accept”.Footnote 59 In Grobler, the court stated that “[a] disturbing feature in this matter is that very little effort was made by Mrs Phillips to seriously consider the several offers of alternative accommodation made by Mr Grobler”.Footnote 60
Importantly, the state cannot just reject the views of the occupiers either; the municipality must engage meaningfully with the occupiers to determine their needs.Footnote 61 In Tents this included seriously considering and responding to their objections to the alternative accommodation offered; however, the municipality is not required to comply with all demands.Footnote 62 This suggests that occupiers may reject alternative accommodation if it does not comply with the general standards regarding suitability as accepted by the courts or laid down in legislation. However, their rejection will carry little weight if the court accepts the standard of the accommodation offered.
Guidelines relating to international standards of adequacy
This section tries to identify to what extent guidelines relating to the international standards on adequate housing have been created. The standards of affordability and cultural adequacy are not discussed: the former is not considered because alternative accommodation is generally free, while the latter has not been discussed by courts in respect of alternative accommodation.Footnote 63
Tenure security
As explained above, in terms of international law, tenure security entails having protection against forced evictions; it does not necessarily entail ownership or registered title.Footnote 64 In Port Elizabeth Municipality the court found that there must be some level of tenure security when it comes to alternative accommodation. In this case the municipality had offered alternative accommodation, but it was disputed whether the city owned the land, which would have put the occupiers at risk of further eviction. The court found that they must be able to live on the land without fear of being evicted until they are awarded permanent housing by the state.Footnote 65 This was confirmed in City of Johannesburg v Rand Properties (Pty) Ltd, in which the court ordered that the alternative accommodation to be provided must be “a place where [tenants] may live secure against eviction”.Footnote 66 Note that the tenure security of alternative accommodation does not require ownership; as with the ICESCR, it merely requires protection against eviction.
Tenure security also relates to the duration of the accommodation. Initial cases on alternative accommodation suggested that emergency accommodation need only be temporary.Footnote 67 This can be understood in two ways: 1) that the occupiers are only guaranteed accommodation for a short while, or 2) that the lower standard of the housing is temporary and that the accommodation is upgraded after a while. In Dladla the court specified that the accommodation would be for 12 months;Footnote 68 similarly, the rules of the shelters in Tents include that accommodation is only for six months. This was challenged based on the fact that it would create tenure insecurity. The court agreed with the occupiers and ordered that they be permitted to extend their stay in six-month increments, for as long as necessary.Footnote 69 This decision of the court is significant on two grounds: the first is that it indicates that alternative accommodation cannot be temporary in the sense that occupiers may face homelessness due to eviction. Instead, it creates the idea that alternative accommodation should be temporary only in the sense that the occupiers should move on to other (better) accommodation. This has not been the case, since persons provided with “temporary” accommodation have been living there for years with no end in sight (see below). In Dladla the court found that “[p]referably, when the order for temporary accommodation is made, the duration for providing that accommodation must be specified”.Footnote 70 In light of this interpretation of the term “temporary”, this finding could mean that courts should ideally determine the duration of the poorer quality accommodation, and hence when the accommodation should be upgraded. This might be a helpful approach; nevertheless, there might be separation of powers and queue-jumping issues.Footnote 71
The second significant aspect of the decision in Tents that states that the six-month limitation should not apply is that this was an exception that was made for the occupiers in this case. This means that all other persons making use of the shelters will not enjoy tenure security. This seems to suggest that the standard of emergency accommodation established by the courts does not apply to them; however, the state’s duty to provide emergency accommodation encompasses all destitute persons, not just those facing eviction.Footnote 72 There is no reason to think that the standards for emergency accommodation set by the courts in eviction cases would not apply when the cause of the emergency is something other than eviction.
Availability of services, facilities and infrastructure
The availability of services, materials, facilities and infrastructure requires, amongst other things, access to water, sanitation and electricity.Footnote 73 As stated above, the EHP requires one tap for every 25 families, one toilet for every five families, that roads need not be tarred and all shelters need not have vehicle access, and that electricity need not be provided. Interestingly, in Residents of Joe Slovo Community, Western Cape v Thubelisha Homes and Others, the court required very specific services, facilities and infrastructure.Footnote 74 Some of the standards exceeded those of the EHP, specifically in respect of tarred roads and electricity. It is unclear whether this means that the court did not agree with the EHP standards; most likely, the EHP had not been before the court, since it was published in the same year as the case. Importantly, the city approached the court to rescind this order after it was made.Footnote 75
As was found in Tents, the standards in the EHP stand unless they are challenged successfully in court.Footnote 76 Whether they could successfully be challenged is not certain. The offer made and accepted by the court in Baron exceeded the standards of the EHP because it required each household to have a tap, a toilet and electricity;Footnote 77 this suggests an understanding by the state that the standard of the EHP is too low. This could potentially relate to the reality that the emergency housing provided is often semi-permanent (see below). Moreover, since the international standard requires access to electricity, the offer in Baron is more desirable.
Habitability
Habitability, in terms of international law, requires that the space be adequate and that there be protection from the elements. It also requires the physical safety of the occupiers.Footnote 78 As explained above, emergency accommodation in terms of the EHP consists of prefab units with a floor area of at least 24m2. Unless successfully challenged in court, it can be assumed that this would constitute adequate space and provide protection from the elements. In Baron, units with a floor area of 26.5m2 were accepted by the court.Footnote 79 A point of concern is that neither the EHP nor Baron distinguishes between different household sizes, which may have implications for the adequacy of the allocated space. Moreover, physical safety relates not only to the structure of the home but also its location; occupiers have rejected offers of alternative accommodation due to the safety of the area in which it is situated.Footnote 80 This has never been the sole factor for a finding that the offer is unreasonable; in fact, alternative accommodation offered in areas known to be unsafe has been accepted by the courts (as was the case in Joe Slovo). Such accommodation would not comply with international standards.
Accessibility
Accessibility refers to the fact that the state should enable everyone to access adequate housing, which includes prioritizing those with special needs, such as the elderly, the disabled and children. It also includes providing “access to land” to the landless and the poor.Footnote 81 The EHP requires municipalities to identify emergency housing needs.Footnote 82 However, there is no mechanism for homeless persons to apply for housing in terms of the EHP, and this limitation to access has not been addressed by courts. It could be argued that homeless persons could access emergency housing through homeless shelters, thus they are provided with access. Nevertheless, homeless shelters do not prioritize children and family units, and also do not provide access to land. This leaves homeless families without a means of accessing emergency accommodation.
Location
Prior to the Constitutional Court case of Commando (CC), there was quite some confusion as to the element of “location” in the context of suitable alternative accommodation. In many eviction cases, the suitability of offered alternative accommodation was questioned on the basis of it being too far away from the place the occupiers faced eviction from, meaning that they would be far away from their current jobs, schools and other amenities.Footnote 83 If the accommodation was far from the city where the occupiers relied on finding informal jobs, it meant a struggle to get the same opportunities.Footnote 84 When demands regarding location first emerged, courts acknowledged the importance of taking location into account as it relates to jobs, schools, etc. However, they also made it clear that occupiers cannot demand accommodation in specific areas, and ordering such would be against the separation of powers.Footnote 85 After these cases, a few courts ordered the state to provide alternative accommodation as close as possible to the eviction site.Footnote 86
In Baron, the Constitutional Court accepted alternative accommodation, in the Wolwerivier TRA, as suitable, despite it being far away for the eviction site.Footnote 87 This created a precedent and led to the SCA in Commando (SCA) accepting an offer of alternative accommodation in the same Wolwerivier TRA, some 40km away from the eviction site. On appeal, in Commando (CC) the Constitutional Court referred to the jurisprudence requiring alternative accommodation to be “as near as possible” to the eviction site as a “principle” created by the court.Footnote 88 It acknowledged the previous finding that the state does not have a duty to provide alternative accommodation at a specific location and that this cannot be demanded, recognizing issues of separation of powers in this regard. Moreover, it acknowledged that the “as near as possible”principle is limited by the state’s available resources. The court found that determining reasonableness required balancing considerations regarding the state’s resources, its plans and the needs of the occupiers to be close to where they were evicted from.Footnote 89
The City’s offer of alternative accommodation 15km from the eviction site was unreasonable due to several factors, including the fact that the occupiers had been in the property for generations.Footnote 90 The court placed a lot of emphasis on the fact that the occupiers were being evicted from Woodstock, one of the only areas in the inner city of Cape Town from which black people were not forcibly removed during apartheid.Footnote 91 It found that that created spatial justice issues, stating that it is “unconscionable that residents should now, in the new democracy, face the ignominy of apartheid-style displacement when they had fought gallantly to remain in their properties”.Footnote 92 Another factor was that the gentrification of Woodstock that led to the eviction was actively supported by the City; the court found the City’s support of the gentrification without a plan to address the displacement it would cause unreasonable, as it amounted to a regressive measure. Additionally, availability of resources was not at issue because it was evident that the City had land available for accommodation in the inner city; the court thus ordered the City to provide alternative accommodation there.Footnote 93
The impact of this decision is still to be seen. Based on the court’s reasoning, it is clear that a court can order the state to provide alternative accommodation in a specific area, even the inner city, if such an order would be reasonable. The particular circumstances in this case suggest that such orders would not be made lightly; this is clear from the fact that the court calls the occupiers “no ordinary evictees” and because of the emphasis placed on their long-term occupation, as well as the spatial justice considerations connected with the historical and racial significance that they were being evicted from Woodstock.Footnote 94 Moreover, the order was not hampered by the “available resources” consideration, which may play a big role in other cases.
The court further found that “the accommodation to be provided by the City needs to ensure ‘continued access to schools, jobs, social networks and other resources which the applicants in this case enjoy where they currently stay’”.Footnote 95 This seems to relate more broadly to the location of the alternative accommodation. In other words, regardless of how close it is to the eviction site, alternative accommodation must be close to such amenities to be suitable. This is in line with the international standard of location, which does not speak to proximity to the eviction site but proximity to amenities. Notably, Baron did not consider the location of the alternative accommodation in this sense; the accommodation it accepted as suitable was not only far from the city but was also not on any formal public transport routes, making it hard for persons to access any amenities or to work (see below). Proximity to amenities links to the international standard that alternative accommodation cannot violate rights, since accommodation far away from such amenities compromises the right to “have access to healthcare services, food, water and social security”.Footnote 96
Non-violation of rights
While the Constitutional Court in Dladla agreed that emergency housing might not be of the same standard as permanent housing, it did find that the housing may not violate other fundamental rights.Footnote 97 This is in line with the international standard that the right to adequate housing be informed by other rights.Footnote 98 Interestingly, it is not that the standard of emergency housing cannot limit rights, only that it cannot violate them. This means that, if there is a law of general application allowing the limitation, the limitation could be justified and allowed.Footnote 99 In Dladla the rules of the homeless shelter that locked people out during the day and separated families were seen to limit the rights to dignity, freedom and security of the person, and privacy. These rules were not entrenched in a law of general application, which meant that the limitation violated their rights.Footnote 100
In Tents the court accepted that the right to privacy was possibly limited. It allowed the limitation seemingly because it was justified on the basis that this was emergency accommodation.Footnote 101 The fact that it being only emergency accommodation can justify a limitation of rights seems to water down the requirement that alternative accommodation cannot violate rights. Moreover, like Dladla, Tents involved the rules of a homeless shelter; hence the violation was not in terms of a law of general application. The court did not seem to consider this as an issue, because the violation of the rights was not directly argued; instead, the adequacy of the alternative accommodation was.Footnote 102 This creates a contradictory situation where the court said, on the one hand, that emergency accommodation cannot violate rights and, on the other, that the violation of rights can be allowed because it is emergency accommodation. It also creates the idea that rights may be limited because it is emergency accommodation, even without a law allowing it. Again, the issue emerges that poor standards are justified due to the temporary and emergency nature of the accommodation but are then allowed to endure indefinitely, as has been the case with TRA emergency accommodation (see below). It must, however, be kept in mind that Tents was a High Court decision and does not trump the findings in Dladla.
Issues arising from the courts’ findings
This section discusses some issues arising from the courts’ findings, including whether the alternative accommodation accepted by the courts complies with the international standards; whether the adequacy of the place the person is evicted from should factor into the determination of the adequacy of the alternative accommodation; and whether the standard created in eviction matters should be similarly applied in other evictions.
Does the alternative accommodation accepted by courts align with international standards?
Arguably, despite being of a lower standard than permanent housing, emergency housing should at least comply with the standards for adequate housing. This is due to the fact that General Comment No 7 on forced evictions requires states to ensure “adequate” alternative accommodation in eviction matters, and the international standards relate to adequacy.Footnote 103 Even if this is not accepted by courts, a determination of whether such housing does in fact comply with the standards is useful. Any rejection of offered alternative accommodation would be put in question if the accommodation complies with international standards; rejection based on the fact that the alternative accommodation is semi-permanent and should therefore be of a higher standard also carries less weight if the accommodation complies with international standards. Two forms of alternative accommodation that have been accepted by the Constitutional Court are, first, TRAs, as proposed by the EHP and accepted in cases such as Baron and Commando (SCA); and second, homeless shelters, as accepted in Dladla. That the court does not consider itself bound by what is proposed in the EHP is noteworthy.Footnote 104
Informal structures in TRAs
In Baron, the Constitutional Court accepted the TRA in Wolwerivier offered by the City of Cape Town as alternative accommodation. As this was a Constitutional Court decision, it created a precedent for what could be suitable alternative accommodation in a temporary relocation area.Footnote 105 The Wolwerivier TRA is used in this section to consider its adequacy as per the international standards identified above. The first standard is tenure security: as discussed above, the courts have ensured tenure security in respect of alternative accommodation by prohibiting further eviction while permanent housing is awaited.Footnote 106 The temporary nature of the alternative accommodation relates more to the fact that the standard of accommodation should be temporary, not the accommodation itself. Hence the reality that TRAs are not temporary accommodation but that people stay there indefinitely confirms the tenure security it ensures. Wolwerivier’s first residents, moved from Skandaalkamp, are still living there nine years later.Footnote 107
The second standard is the availability of services, materials, facilities and infrastructure, which requires access to “safe drinking water, energy for cooking, heating and lighting, sanitation and washing facilities, means of food storage, refuse disposal, site drainage and emergency services”.Footnote 108 In Baron, each unit was to have an inside toilet, a washbasin and electricity; information is not provided regarding refuse removal. The existence of gravel roads suggests that emergency vehicles would be able to access houses.Footnote 109 Based on this limited information, this standard seems to be met. Notably, the state’s EHP standards do not require electricity; hence TRAs in compliance with the EHP that do not provide access to electricity would fall short of this international standard.
The fourth standard is habitability, which requires that the space be adequate, that there be protection from the elements, and ensures the physical safety of the occupiers. The accommodation offered at Wolwerivier was described as “a 26.5m2 emergency housing structure, which consists of the prefabricated light gauge steel structure with corrugated cladding”.Footnote 110 The suitability of these structures (and the materials they were made of) was challenged in Baron, but the court dismissed this challenge (which basically amounted to a challenge of the EHP) without explaining why such structures would be adequate.Footnote 111 Instead, it substantiated its decision on the basis that City of Johannesburg v Changing Tides 74 (Pty) Ltd and Others (Changing Tides) “held that eviction is ordinarily just and equitable if alternative accommodation is made available”.Footnote 112 This seems to be a creative interpretation of the finding in Changing Tides that an eviction would “only” be just and equitable if the state provides alternative accommodation and would, conversely, not be just and equitable if it does not.Footnote 113 In other words, the purpose of the statement in the earlier case was to find that evictions should not lead to homelessness and that the state had a duty to provide emergency accommodation; the finding had nothing to do with the standard of the accommodation offered and whether any alternative accommodation offered would be acceptable. The interpretation in Baron makes it seem like any offer of alternative accommodation would comply with the state’s duty and that the standard of the accommodation need not be considered.
It is unfortunate that the court did not use this opportunity to investigate the habitability of the housing proposed in the EHP. Residents of Wolwerivier complain of the tremendous heat during the summer due to the type of building material used.Footnote 114 Moreover, a blanket size for houses, as offered in Baron, may not be suitable for larger households. Apart from the suitability of the structures themselves, the habitability standards may also be compromised due to safety issues. In Wolwerivier there are problems similar to those found in informal settlements, such as illness (for example TB) and destructive fires.Footnote 115 Due to overcrowding, there are violent protests when new people are moved there.Footnote 116 In Blikkiesdorp, another TRA, the area is very unsafe due to high crime.Footnote 117 When taking the above into account, the standard of habitability is likely not met in Wolwerivier.
The fifth standard, accessibility, refers to the fact that the state should enable all persons to access adequate housing. As stated above, it can be argued that TRAs as envisioned by the EHP do not meet this standard because they cannot be applied for by those in need of housing.Footnote 118 This may cause many to fall through the cracks. The sixth standard, location, requires that the location of the housing must enable access to “employment options, health-care services, schools, childcare centres and other social facilities”.Footnote 119 It is worth noting that this does not require accommodation to be located in the inner city or close to the facilities the occupiers currently use, as has been demanded by occupiers. Currently, the location of Wolwerivier, 30km from the city, does not meet the standard set by international law. The people there are poor and there is a high unemployment rate, which means that the location makes it difficult to earn a living. No bus routes run through Wolwerivier and public transport routes are 7km away; it has been described as “far away from everything”.Footnote 120 The City’s environmental impact assessment warned that the establishment of Wolwerivier will create “an isolated community resulting in long distances from places of employment, places of education, health facilities, basic infrastructure, shops, etc”; there is “no church, no school, no clinic, no police station, no shopping mall”, although there are spaza shops, a community centre, a creche and a mobile clinic.Footnote 121 Wolwerivier has been called “a human dumping ground” and “hell on earth”, and it “has become synonymous with neglect, despair, and human suffering”.Footnote 122
The final international standard is that the right to adequate housing be informed by other human rights.Footnote 123 Cogger has argued that the circumstances in Wolwerivier, a place of “neglect, despair, and human suffering”, violate the occupiers’ right to human dignity.Footnote 124 Moreover, the nature of the TRAs is reminiscent of a typical informal settlement: rudimentary houses from corrugated iron, huddled together on the outskirts of the city.Footnote 125 Hence evicting poor black persons from the inner city and placing them in informal settlements on the periphery reeks of apartheid injustices and ongoing spatial injustice. This arguably does not respect the dignity of the occupiers.
In conclusion, the TRA in Wolwerivier likely does not comply with international standards. Arguably, the housing falls short of the habitability and location standards and violates human rights. This is especially disconcerting considering that such housing is not actually temporary. This does not mean that TRAs cannot comply with these standards; with some changes, they could be temporary, upgradable shelters. Importantly, the location would have to be closer to amenities and on public transport routes, and overcrowding and the suitability of building materials should also be re-assessed. Moreover, to address challenges arising from unemployment, social programmes, akin to those at shelters aimed at assisting occupiers to find employment, can be offered.
Homeless shelters
The courts have accepted homeless shelters as suitable emergency accommodation in evictions; this was the case in Dladla and also in the more recent Tents. Homeless shelters take a range of different forms: in Dladla the Ekuthuleni shelter was under scrutiny, and in Tents the Safe Spaces shelter. The physical features of the Ekuthuleni shelter are not really discussed anywhere, save for the fact that it consists of single-sex dormitories and that there are no cooking facilities.Footnote 126 Food is provided, as is access to computers and newspapers to assist with job hunting.Footnote 127 The Safe Spaces initiative has shelters at four locations in the city and the northern suburbs.Footnote 128 The one under scrutiny in Tents is located under the Culemborg bridge and consist of prefab buildings. Inside there are bunkbeds, while there is also sleeping space outside under an overhead cover, with beds made of wooden pallets.Footnote 129 There are also toilets and (bucket) shower facilities, storage facilities, bedding, meals and clothing. Furthermore, services are offered that aim at getting people off the street, such as drug rehabilitation assistance and services aimed at securing employment and reuniting families.Footnote 130
In respect of tenure security, as explained earlier, the court in Tents found that the rule limiting stays to six months was not to apply to the evictees.Footnote 131 This exception was made for the respondents in Tents only, resulting in tenure insecurity for all other homeless persons being accommodated in Safe Spaces. As indicated, this is worrying, since it results in different standards for persons requiring the provision of emergency accommodation by the City. Hence this standard is met for those in Tents, but not for other homeless persons seeking shelter.
In respect of the availability of services, facilities and infrastructure, the only information provided is that there are toilets and (bucket) shower facilities and that no cooking is allowed. The absence of cooking facilities is mitigated by the fact that two meals are provided per day.Footnote 132 Considering the nature of the accommodation, it can be argued that this standard is met. Moreover, the additional support and services provided offer a more holistic approach, which increases the chances of people escaping homelessness.Footnote 133
The open areas of one of the Safe Spaces described in Tents do not comply with the standard of habitability as they do not offer protection from the elements, but the accommodation provided in the closed shelters do. Furthermore, the Safe Spaces homeless shelters offer 24-hour law enforcement protection.Footnote 134 Regarding the standard of accessibility, in Tents the state admitted that homeless shelters were not suitable accommodation for children.Footnote 135 Therefore, where children are involved, this standard is not met. This is not necessarily the case with all homeless shelters; in Dladla, children were allowed in the homeless shelter.Footnote 136 Moreover, accessibility also includes providing “access to land” to the landless and the poor.Footnote 137 Homeless shelters do not provide “access to land”. When it comes to the location standard, the location of the homeless shelter in Tents is one of its main attractions. All homeless shelters are well located, including one in the inner city of Cape Town.Footnote 138 This standard is therefore met.
In respect of right violations, the court in Dladla found that accommodation would not be adequate if it enforced lockout rules or separated partners and families, violating the rights to human dignity, privacy, and freedom and security of the person.Footnote 139 Seventeen years after Dladla, Tents revealed that in Cape Town’s Safe Spaces, there are still similar lockout rules.Footnote 140 The court confirmed that such rules would not be constitutional if they are enforced strictly.Footnote 141 Moreover, in the Tents ruling, accommodation is communal, and there is very little privacy, which was especially a problem for couples. It can be argued that their rights to privacy are infringed.
The court justified its failure to assess these potential right violations on the basis that the shelter is temporary, as well as that “the Safe Spaces are more dignified than their current situation, not less”.Footnote 142 The fact that the court did not fully assess the adequacy of the shelters is unfortunate, as the case may be seen as setting a precedent for treating shelters’ physical features as adequate.Footnote 143 Moreover, the finding that the accommodation must be indefinite suggests that it might not be short term and puts in question the finding that the temporary nature of the accommodation in some way excuses its physical deficiencies.Footnote 144 The court dismissed this idea on the basis that the City “has no incentive” to let the accommodation become semi-permanent and that “its goal is to get people out of safe spaces and into more permanent accommodation”.Footnote 145 While this might be so, the track record of the City does not show that it has been meeting this goal by transitioning people from Safe Spaces to permanent accommodation. Even on the most generous reading of the statistics, less than half of the persons leaving the shelter did so because they had alternative accommodation elsewhere.Footnote 146 Instead, the accommodation in Safe Spaces was temporary in nature due to the rule limiting stays to six months, regardless of the outcome. Moreover, when one considers the City’s track record with other forms of alternative accommodation, like TRAs, it is clear that emergency accommodation is not always temporary.Footnote 147
Homeless shelters such as Safe Spaces would likely not comply with international housing standards because there is no privacy. Moreover, the outside areas would not comply with the habitability requirement, children are not always catered for, and normal shelter rules do not comply with the requirement of tenure security. This indicates that shelters may comply with these standards if care is taken to ensure privacy, families are not separated and there are no outside sleeping areas. Additionally, rules should not violate the occupiers’ rights, and accommodation should be offered until permanent housing is secured or provided.
Could adequacy be determined based on where the person is being evicted from?
The court in Tents stated that a “key question may be whether [the accommodation offered] is better than [the] current accommodation”.Footnote 148 This is an interesting question, as it is understandable, and more likely, that the occupiers would reject alternative accommodation that is worse than their current accommodation. In Baron the occupiers argued that they could not “see themselves moving from a brick dwelling to a corrugated iron structure”.Footnote 149 In Tents the court justified this idea of reasonableness depending on whether the offered accommodation is better than the current accommodation on the basis that what is suitable for one person may not be suitable for another. The examples given were that some houses may be suitable for able-bodied but not disabled persons, and houses that are far from schools may be suitable for people without children but not for those with them. The court then suggested that whether a homeless shelter might qualify as suitable alternative accommodation may differ based on whether the person is being evicted from the street or from a “formal home”.Footnote 150 It is unclear how the suitability of alternative accommodation can have anything to do with where the person is being evicted from, as though persons who are used to having more somehow deserve better. The standard of the alternative accommodation should not be dependent on where the occupiers are evicted from but what the state can afford. Determining reasonableness in relation to where the occupiers are being evicted from creates the risk that they might unlawfully occupy “better” accommodation with the aim of obtaining better alternative accommodation. This was highlighted to some extent by the court in respect of property in well-located areas being occupied, and then the occupiers wishing to be accommodated in the vicinity.Footnote 151
Moreover, if this reasoning is to be accepted, the converse should also be true: persons should be able to receive “better” accommodation based on their personal circumstances. This has not been the case. In Oranje and Others v Rouxlandia Investments (Pty) Ltd (Oranje), the occupier was being evicted from a “manager’s” house to a smaller (five-roomed) house on the farm after he was declared medically unfit to continue his management responsibilities. The occupier rejected the alternative accommodation on the basis that it “does not befit the status of a manager” and that he wanted a “bigger and better” house.Footnote 152 This was rejected by the Supreme Court of Appeal. It must be kept in mind that the finding that adequacy could be linked to where an occupier is being evicted from was made in Tents, a High Court decision. The Oranje decision, which seems to contradict this, would therefore triumph.
Should the standard apply when the cause of the need for emergency accommodation is different?
The court in Tents distinguished between people in the case before it and other persons voluntarily entering homeless shelters.Footnote 153 It seemed to suggest that homeless shelters need not meet the same standards of adequate alternative accommodation as is required when its space is offered as alternative accommodation to persons facing eviction. It is unclear how a homeless shelter constitutes anything other than emergency accommodation, whether a person is provided with it in an eviction case or whether they approach the shelter directly; in both situations, the person is provided with accommodation by the state to prevent their homelessness. The state has a duty to provide all destitute persons with emergency accommodation, not just those facing eviction.Footnote 154 The court in this case found that homeless persons seeking emergency accommodation from the shelter “may not get the benefit of guaranteed couples accommodation or guaranteed accommodation beyond six months. But then, they enter the safe spaces voluntarily, not under threat of eviction.”Footnote 155 This argument is untenable for two reasons: it distinguishes between those persons who voluntarily vacate the streets and seek assistance at homeless shelters and those who refuse to cooperate, thereby punishing homeless persons willing to cooperate; and separating families has been expressly found to be an unconstitutional rule in homeless shelters which cannot be applied at all.Footnote 156 Hence it is argued here that the same standard should apply for all persons in need of emergency accommodation.
Conclusion
This article has considered courts’ interpretations over the past 30 years of what amounts to suitable alternative accommodation in eviction matters, with the aim of identifying general guidelines for such accommodation. It has identified four overarching guidelines: (1) adequacy should be determined based on the standard of reasonableness; (2) beneficiaries should be engaged with, in order to determine what would be reasonable in a specific situation; (3) a lower standard may be suitable for alternative accommodation, as opposed to permanent housing; (4) if a court accepts offered accommodation as being reasonable, any rejection of it by occupiers would carry little weight.
The article has further identified guidelines relating to specific international standards of housing adequacy: (1) alternative accommodation should ensure tenure security, in that no further eviction without alternative accommodation would be allowed; (2) there should be availability of services, facilities and infrastructure as required by the EHP, and electricity may also be required; (3) regarding habitability, a floor surface of 26.5m2 has been accepted, as has accommodation in unsafe areas – respectively, this is problematic for larger households and creates safety concerns; (4) in respect to accessibility, housing provided through the EHP has been accepted despite such housing not being accessible upon application. While family accommodation in homeless shelters is available upon application, such shelters do not sufficiently cater for families; (5) concerning location, a principle that alternative accommodation must be “as near as possible” to the eviction site has been confirmed. The suitability of the location of the accommodation must be determined based on reasonableness by balancing all of the relevant circumstances. It has also been confirmed that a court may order alternative accommodation in a specific location, if this is found to be reasonable; (6) alternative accommodation may not violate the rights of the occupiers.
The article has further considered the issues arising from the courts’ jurisprudence. First, currently accepted alternative accommodation, like the TRA in Wolwerivier and the Safe Spaces homeless shelters, likely does not comply with international standards; this article suggests ways in which they could become compliant. Second, it rejects the notion of the standard of alternative accommodation depending on where the occupier is being evicted from. Third, I have argued that the same standard should apply to all emergency housing situations, and specifically those in which a homeless person seeks housing of their own accord.
Competing interests
None
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