Justice for the families of the CTCHC housing scheme
Women have historically been disproportionately and negatively impacted by a lack of access to adequate housing, and evictions. There exists an ongoing discrimination faced by women in respect of access to land, housing, tenure security, and ownership; which also operates when women attempt to access social housing schemes. The Women’s Legal Centre (‘WLC’) therefore welcomes the unanimous decision of the Constitutional Court in the matter of Amardien and 12 Others v Registrar of Deeds and 4 Others (Case CCT 212/17), which was handed down on 28 November 2018. The decision sets aside and replaces the order of the High Court which upheld the cancellation of instalment sale agreements between CTCHC and the Applicants, and the sale of their homes. Had the matter not come before the Constitutional Court, the High Court decision would have opened the Applicants, along with their families, up to eviction and the loss of their homes.
The 12 Applicants, of which eight are women, were all beneficiaries and purchasers of homes under a state-subsidised housing project administered via the Cape Town Community Housing Company (‘CTCHC’). The CTCHC was established to provide social housing to persons who did not qualify for free state housing, or who did not have the financial means to acquire banking finance by way of a mortgage. Recognising that there are vulnerable and disadvantaged persons in South Africa who fall within this gap, the CTCHC was set up to provide access to housing, and thus be a vehicle through which the state is able to give effect to the realisation of the right to housing in South Africa. The Applicants thus applied, qualified for, and received housing in terms of the scheme established by CTCHC, and for which it was a requirement that they pay a certain instalment amount each month, in terms of the instalment sale agreement, to CTCHC.
Unfortunately, due to deficiencies with the homes they occupied, and other financial constraints experienced by the Applicants in various manifestations, they lagged behind with the instalments to the CTCHC. However, instead of entering into a process of meaningful engagement that would recognise and accommodate the inherently vulnerable and financially-constrained positions of the Applicants, CTCHC opted to cancel the instalment sale agreements, failed to disclose to the Applicants the amounts owing in terms of the instalment sale agreements, and sell the Applicants’ homes to the S&N Trust. The Applicants therefore did not know the full amount owing in terms of their respective instalment sale agreements before cancellation of their contracts, and were therefore not in a position to remedy this state of affairs. Additionally, CTCHC chose not to have the homes remain within its social housing scheme. The purported cancellation and failure to provide an amount in the notices issued to the Applicants of their outstanding debts became the subject matter of the application to the Western Cape High Court, and ultimately the Constitutional Court.
The outcome of the initial application was a negative one, which found no fault with the deficient notices issued by CTCHC, the cancellation of the agreements, or the immediate sale of the homes to the Trust. Even more, the High Court found that each Applicant, who had struggled to maintain their respective payments in terms of their instalment sale agreements, were responsible for paying their share of the costs of the application.
The appeal of the High Court judgment was brought by the Legal Resources Centre (‘LRC’), which first launched the initial challenge in the High Court in 2016. This is a fantastic victory for the organisation, and the WLC is proud of its involvement in it before the Constitutional Court.
Aware of the highly technical approach adopted in the judgment of the High Court (per Judge Binns-Ward), and consequently its prejudicial consequences for families and particularly women in need of social housing, the WLC entered the matter as amicus curiae in the Constitutional Court. We argued that the best interpretive approach for the Court to take in these proceedings was a gendered and feminist one. In South Africa, and in the application itself, the face of beneficiaries of social housing is a predominantly female one. Our arguments aimed to assist the Court in adopting an interpretive approach that would be mindful of the role of social housing in South Africa, in light of the right to housing in section 26 of the Constitution, and that often it is women and women-headed households who benefit from social housing at reduced rates and are impacted by decisions made in terms thereof. We believed it was necessary to place before the Court an interpretation that would best protect the rights of women who access social housing, especially where they do not qualify for private financing or free social housing schemes.
We therefore commend the LRC for bringing the application in the High Court, and for pursuing it to the Constitutional Court. In turn, we were happy to be involved in a decision that protects the rights of beneficiaries of social housing, and that we could assist in ensuring the Applicants’ rights to housing were upheld and protected.
The full judgment can be accessed at:
29 November 2018