The Court – instead of ordering the eviction of the 60 000 unlawful occupants – ordered that the City of Cape Town negotiate with the owners to purchase the land upon which the Marikana informal settlement is located. The Court further ordered that the national and provincial government should make funds available for the purchase of the properties if the cost exceeded the City’s budget.

A cursory reading of the judgment might suggest judicial overreach and elicit accusations of the Court having transgressed the separation of powers doctrine. Arguably, this is hardly the case, as the Court merely relied on existing laws and policies to arrive at its decision. The starting point is the Constitution, which obliges the State to respect, protect, promote and fulfil the rights in the Bill of Rights. Thereafter, sections 25 and 26 respectively protect against the arbitrary deprivation of property and also guarantee access to adequate housing, free from arbitrary eviction. The National Housing Act, which gives effect to section 26 of the Constitution, grants municipalities the power to purchase, and where there is no agreement, the power to expropriate land. This is in order to give meaning to the right to access adequate housing. Policies such as the National Housing Code and the National Housing Programmes enable municipalities to apply for grants to upgrade informal settlements or to provide housing in emergency situations. As such, the municipality had failed to make use of the available remedies in order to address the unlawful occupants’ need for accommodation.

The Court rejected the municipality’s argument that the unlawful occupiers were already on the housing list, on the basis that being on a list had no practical meaning, since the municipality would be unable to accommodate all the occupiers at any point in time. The Court too rejected the municipality’s arguments that accommodating the occupiers would interfere with existing housing plans and policies. On this, the Court stated that in view of the constitutional imperative for emergency situations, the municipality had a duty to be flexible and adapt plans as and when the need arose. The Court again rejected the municipality’s argument that the land in question was unsuitable for permanent settlement – pointing out that the Emergency Housing Programme does not require permanence.

The Constitution empowers the courts to foment new and creative remedies so as to guarantee effective relief where a constitutional right has been infringed. The City of Cape Town in this instance had been well aware of the situation for a long time and had failed to meaningfully respond to the land owners’ pleas for assistance. This meant that the City of Cape Town had acted unreasonably in its failure to protect the constitutional rights of both the property owners and the occupiers in failing to resort to the policies in place.

Ultimately, municipalities are at the coalface with regard to the realisation of rights and making the Constitution a living document that is capable of meeting the competing and often urgent demands for needs to be fulfilled. While the decision goes some way in clarifying the lengths to which municipalities should go in order to fulfil the right to adequate housing, the real concern is that this municipality, arguably one of the better run in the country, was seemingly unaware of its capabilities. The risk of further unlawful occupation remains, as people will move to areas where there are more opportunities. As was pointed out by the Court in this instance, a sizeable number of the occupants had previously been evicted from various areas in the City and had no other alternatives for accommodation. Regardless of political differences that may arise between the national governing party and the official opposition party governing the Western Cape Province and the City of Cape Town, the duty lies with all three levels of government to plan South African cities with awareness of this reality.

By Ms Phephelaphi Dube: Director, Centre for Constitutional Rights

*First published by Huffington Post