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[2016] ZASCA 66
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City of Johannesburg v Dladla and Others (403/2015) [2016] ZASCA 66; 2016 (6) SA 377 (SCA) (18 May 2016)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No: 403/2015
DATE:
18 MAY 2016
Reportable
In
the matter between:
THE
CITY OF
JOHANNESBURG
.................................................................................
APPELLANT
And
DLADLA,
ELLEN
NOMSA
.............................................................................
FIRST
RESPONDENT
&
33 OTHER RESPONDENTSSECOND
TO
.................................................
34
TH
RESPONDENTS
Neutral
citation:
City of Johannesburg v Dladla
(403/15)
[2016] ZASCA 66
(18 May
2016)
Coram:
Mpati P and
Leach, Pillay, Willis and Mbha JJA
Heard:
3 May 2016
Delivered:
18 May 2016
Summary:
Local authority
–
powers
and duties when providing temporary accommodation – rules of a
shelter providing temporary accommodation in an emergency
are not
unconstitutional – appeal upheld.
ORDER
On
appeal from:
Gauteng Local Division of
the High Court, Johannesburg (Wepener J sitting as the court of first
instance): reported
sub nom Dladla &
others v City of Johannesburg Metropolitan Municipality & another
[2014] 4 All SA 51
(GJ).
1
The appeal is upheld.
2
The order of the court a quo is set aside and replaced with the
following:
‘
The
application is dismissed.’
JUDGMENT
Willis
JA (Mpati P and Leach, Pillay and Mbha JJA concurring):
[1]
This appeal is against the following order made by the Gauteng Local
Division, Johannesburg (Wepener J):
‘
1.
Rules 3 and 4 of the “Ekuthuleni Overnight/Decant Shelter House
Rules” are an unjustifiable infringement of the applicants’
[respondents in present appeal] constitutional rights to dignity,
freedom and security of person as well as privacy enshrined in
ss
10,12 and 14 of the Constitution.
2.
The respondents [appellant and Metropolitan Evangelical Services] are
interdicted and restrained from enforcing rules 3 and 4
of the
“Ekuthuleni Overnight/Decant Shelter House Rules” as
against the applicants for the duration of the applicants’
stay
at Ekuthuleni.
3.
The respondents’ refusal to permit the applicants to reside in
communal rooms together with their spouses or permanent
life partners
is an infringement of the applicants’ constitutional rights to
dignity and privacy enshrined in ss 10 and 14
of the Constitution.
4.
The Respondents are directed forthwith to permit those of the
applicants who wish to do so, to reside together with their spouses
or permanent life partners in communal rooms at Ekuthuleni for the
duration of the applicants’ stay at Ekuthuleni.
5.
The City is ordered to pay the costs of the application, such costs
to include the costs of two counsel. The City is further
ordered to
pay the costs of the amicus curiae in relation to its application to
be admitted as
amicus curiae
.’
The
appellant, the City of Johannesburg (the City), brought the appeal
with the leave of this court.
[2]
The respondents in this appeal (the occupiers) are residents at
Ekuthuleni Shelter (‘the Shelter’ also referred
to simply
as ‘Ekuthuleni’), at the corner of De Villiers and Nugget
Streets, Johannesburg. The second respondent in
the application
before the court a quo was the Metropolitan Evangelical Services
(MES), a company incorporated not for profit in
terms of
s 21
of the
Companies Act 71 of 2008
. It is a community based, Christian
organisation that operated the Shelter.
[3]
The occupiers had been evicted from a dilapidated building in
Saratoga Avenue, Berea, Johannesburg (Saratoga) in terms of an
order
granted by the same court that heard the matter that is now on appeal
before us. That order was upheld in this court
[1]
and the Constitutional Court.
[2]
The case is well known as ‘
Blue
Moonlight
’.
In the Constitutional Court judgment, it was directed that the
occupiers were to vacate their homes by 15 April 2012, but
the court
stipulated that the City was to provide the evictees with ‘temporary
accommodation in a location as near as feasibly
possible to the area’
in which Saratoga was situated, on or before 1 April 2012. For
reasons that will appear more fully
later, it needs to be emphasised
that the order of the Constitutional Court was that the occupiers be
provided with temporary accommodation
and not that the City provide
them with housing that was permanent in nature. Van der Westhuizen J,
delivering the unanimous judgment
of the court, said so in the
following terms: ‘It must be emphasised that this case concerns
temporary as defined in Ch 12
and not permanent housing.’
[3]
[4]
At the time that the application was launched, there were 33
occupiers. At the time when the application was heard this number
had
approximately halved. It is common cause that there are now only 11
occupiers. In addition, there is one child occupying the
premises.
The accommodation at MES can host approximately 100 persons. By
reason of the order of the court a quo, MES cannot operate
effectively with some of its residents being bound by its rules and
others not. Accordingly, some 89 beds that could be used by
other
persons are not in use.
[5]
The City engaged the services of MES to provide the kind of temporary
accommodation in question, even though the accommodation
had not been
made available by 12 April 2012. Running like a golden thread in the
City’s papers is that it had recourse to
the facilities of MES
because it was doing the best it could with the resources available
to it. The occupiers had brought an urgent
application for an
extension of their eviction until the accommodation had been
provided. Satchwell J gave the occupiers an extension
of time to 2
May 2012. Her order, which has been referred to by the parties as
‘the interim order’, relaxed the application
of the
impugned rules.
[6]
In the meantime, some of those who had been evicted had negotiated
with the City that they could stay at a building at the corner
of
Hancock and Claim Street in Johannesburg, paying a rental of R600 per
month per unit. The remainder were told that they could
stay at the
Shelter. The City insisted that the occupiers could stay at the
Shelter only if each one of them was to sign a document
styled
‘Client’s Responsibilities and Standards’. This
document incorporated ‘house rules’ and a
disciplinary
code. It was in this way that the Shelter came to be used in order to
provide temporary accommodation for a number
of the persons who had
been evicted from Saratoga.
[7]
The house rules of the Shelter included the regulation of food being
prepared and consumed in a dining room area, provisions
that the use
of electrical appliances such as stoves, heaters, television sets and
radios in bedrooms were prohibited, that violence,
abusive language
and unruly behaviour were not allowed, that drugs, alcohol and
dangerous weapons were not permitted and that those
who entered the
premises under the influence of drugs or alcohol could be required to
vacate until they returned sober. Each of
the occupiers in writing
agreed to be bound by these rules but ‘reserved’ his or
her rights. Other than
rules 3
and
4
of the house rules, the
occupiers have no objection thereto.
[8]
Rules 3
and
4
, which were the subject of the court a quo’s
order, provided for the closure of entry to the Shelter by 20h00
every night
and that all residents sign a register every night
(rule
3)
; and that all residents vacate the Shelter by 8h00 on Mondays to
Fridays, and at 9h00 on Saturdays and Sundays
(rule 4).
The rules
provided that the management of the Shelter could, in their
discretion, exempt individual residents from the application
of these
rules. The answering affidavit indicates that exemptions have been
allowed with a considerable measure of liberality.
The primary
purpose of the rules was not merely to ensure the safety and
protection of the occupiers but also to encourage residents
to get
out into the world, to familiarise themselves with it and, so it is
intended, find gainful employment, even if only in the
informal
sector. The costs of allowing permanent access to and egress from the
Shelter would increase its running costs substantially,
by reason of
the increased costs in staff, supervision and wear and tear. These
rules were challenged by the occupiers as being
unconstitutional. The
court a quo found that this was indeed so.
[9]
The City has been laudatory about the effectiveness of the Shelter
provided by MES. The City does not, however, hold it out
as a model
to be used whenever temporary accommodation is to be made available
in an emergency. On the contrary, it contends that
the facilities
would be better used for the purposes and the persons for whom it had
been designed. Moreover, as a result of the
interim order, the MES,
with the City’s concurrence, decided that no persons additional
to the occupiers would be accommodated
at the Shelter, until all the
occupiers had left.
[10]
The design of the Shelter consists of 30 small dormitories,
consisting of two to four bunks per dormitory. The dormitories
were
gender differentiated. The gender differentiation arises from the
fact that each dormitory sleeps more than two persons. The
unarticulated but self-evident premise of this gender differentiation
is that it is required according to widely prevailing norms
of
modesty and decency in society. The policy of gender differentiation
has the consequence that the occupiers do not share the
same room
with their spouses or life partners. This separation of the occupiers
from their spouses or life partners was also subject
to
constitutional challenge. Here again, the court a quo found in favour
of the occupiers.
[11]
There has, in fact, been only one married couple among the occupiers.
They were married in terms of customary law. They were
allocated a
room designed for occupation by four people. The wife had left to go
to Limpopo in December 2012, to take up temporary
employment. These
two persons have been residents, as a married couple, at the Shelter
since that time. The question of married
couples among the occupiers
would seem to be of ‘academic’ relevance only. Ms De Vos,
who appeared for the occupiers
said that she wished to defend the
order of the high court because of its future relevance, because, so
she submitted, the City
intended to apply this same policy to persons
who may be given temporary accommodation in similar circumstances in
future. This
is not the case, as mentioned previously.
[12]
The only child among the occupiers stays with her mother in a female
dormitory. There are gender differentiated ablution facilities,
having hot and cold water. The Shelter has a communal kitchen with
cooking and dining facilities, as well as provision for storage
facilities, enabling each occupier to store food. In addition, there
is a communal study area, courtyard and television room. MES
employs
a cleaning crew that cleans the Shelter daily. The Shelter has a
fulltime manager. The occupiers are protected by security
guards.
Access to and egress from the Shelter is controlled via a biometric
system to ensure that only registered residents gain
access thereto.
[13]
MES also provides the residents of the Shelter with a free hot lunch
every day as well as a resource and training facility
with computers
providing access to the internet. Local newspapers are also made
available for free. Access is given to primary
health care as well as
the opportunity for recreation. The Shelter is known as a ‘managed
care model’. It is intended
to provide short-term, often
overnight, accommodation for the destitute. It aims to be a ‘holistic
model’ addressing
the physical, emotional, mental and spiritual
needs of the destitute, helping to provide them with skills and
opportunities to
change their lives for the better.
[14]
The affidavits of both the City and MES make it clear that the
Shelter was not designed for the requirements demanded by the
occupiers. Nevertheless, the City has succeeded in providing them
with temporary accommodation – a ‘roof over their
heads’.
The court a quo also correctly observed that the Shelter was neither
designed for, nor intended to provide temporary
accommodation for
persons in the position of the occupiers. Indeed this was common
cause. The accommodation provided at the Shelter
is of a higher
standard than that at Saratoga. All of this is also all provided free
of charge.
[15]
The court a quo also correctly noted that: ‘What is not in
dispute is that the need for temporary accommodation far outweighs
the City’s ability to provide it.’ It is also clear that
the City turned to MES in desperation. The statistics filed
of record
show that every year thousands of people stream into our cities, and
especially Johannesburg, in search of a better life.
This is a
worldwide phenomenon. It is easily understandable: the pull of the
cities gathers momentum from the poverty and drudgery
of the rural
areas. The conundrum is that accommodation that is consistent with
human dignity is not readily available. In the
short term, given the
demands upon the State in other fields such as education, policing
and health, the wherewithal to solve the
problem of housing is not to
hand. This is a difficulty with which all developing countries are
faced. Relative to thousands of
others, the position of the occupiers
is a privileged one. The occupiers did not bring an application that
the City provides them
with alternative temporary occupation.
[16]
There can be no doubt that, ordinarily, all persons in South Africa
have a constitutional right to freedom of movement.
[4]
Likewise, falling at least under the constitutional rights to
dignity, freedom, privacy, association and residence,
[5]
husbands and wives and permanent life partners have a constitutional
right to live together. This was recognised even under the
dark days
of apartheid under the landmark case of
Komani
NO v Bantu Affairs Administration Board, Peninsula Area
.
[6]
There can be no debate about this. Like the court a quo, I am acutely
mindful of what the Constitutional Court said in
Bernstein
& others v Bester & others NNO
[7]
about the fact that a ‘very high level of protection is given
to the individual’s intimate personal sphere of life’.
[8]
Nevertheless, it is important to note the qualification in
Bernstein
that:
‘
But
this intimate core is narrowly construed. This inviolable core is
left behind once an individual enters into relationships with
persons
outside this closest intimate sphere; the individual’s
activities then acquire a social dimension and the right of
privacy
in this context becomes subject to limitation.’
[9]
(Footnote omitted.)
Temporary
accommodation provided to cover an emergency situation will often,
necessarily, entail a ‘social dimension’
of which the law
must take cognisance.
[17]
I am also keenly mindful of the Constitutional Court’s
injunction in
Dawood
& another v Minister of Home Affairs & others; Shalabi &
another v Minister of Home Affairs & others; Thomas
& another
v Minister of Home Affairs & others
,
[10]
that a central aspect of marriage is cohabitation and any significant
impairment thereof would be a limitation of the right to
dignity.
[11]
[18]
Constitutional rights may, however, be limited.
[12]
As Kriegler J pointed out when delivering the majority judgment of
the Constitutional Court in
Coetzee
v Government of the Republic of South Africa; Matiso & others v
Commanding Officer Port Elizabeth Prison & others
,
[13]
no right enshrined in the Bill of Rights is absolute
.
[14]
There may be circumstances where the limitation of a right, even one
of fundamental importance, may be justified.
[15]
Kriegler J went on to say: ‘In making the determination
[whether the limitation of the right is justified], especially in
regard to a right as fundamental as the one in question, namely
personal freedom, one really need not go beyond the test of
reasonableness’.
[16]
Reasonableness depends on the facts of each particular case.
[17]
[19]
The occupiers have described the Shelter as their home. The City has
responded that this is dialectically false: to portray
temporary
emergency accommodation as a home is a contradiction in terms.
Indeed, the thrust of the City’s argument was that
the
occupiers incorrectly claimed to have the same rights as if they were
living in their homes rather than in emergency temporary
accommodation. The City contends that this distinction was recognised
by the Constitutional Court in
Blue
Moonlight
.
[18]
It was in failing properly to distinguish between emergency and
ordinarily prevailing situations that, in the argument of the City,
the court a quo had been clearly wrong.
[20]
We were referred to the judgment of Binns-Ward J in
City
of Cape Town v Hoosain NO & others
,
[19]
in which he said:
‘
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 which the State, in general, and the
City, in particular, are having to engage.’
[20]
I
agree.
[21]
I fail to see the relevance of the occupiers’ reliance on
Teddy
Bear Clinic for Abused Children & another v Minister of Justice
and Constitutional Development & another
.
[21]
I do not see how the dignity and privacy of the single child who may
be affected by an order of court are in any material way diminished
by the rules of MES.
[22]
The thrust of the argument by the amicus was that housing must have
special regard to the needs of the vulnerable and, in particular,
women and children. In this connection, we were referred to South
African, foreign and international law. About this aspect of
policy
there can be no confusion: South African law in this field is, by
now, trite. It is abreast of the best in the world and,
in the
submission of Mr Loxton, who appeared for the City, goes further to
protect the socially disadvantaged than any other country.
The
evaluation of any municipal, regional or national government’s
housing policy – whether by an electorate, the courts,
or
experts in areas as diverse as urban and regional planning, social
work, economics, architecture and building, construction
and
engineering – will have regard to a multiplicity of factors,
including, but not limited to, safety, protection from the
elements,
access to utilities such as electricity and clean water, refuse
collection, public transport, schools, clinics, parks
and other
centres of sport and recreation, regulation, aesthetics,
inter-digitation and general spatial design. An evaluation of
broad,
long-term political policy takes place on a different footing from a
judgment dealing with the facts in a temporary situation
created by
an emergency. With this proposition, counsel for both the amicus and
the City agreed. It is self-evidently correct.
The best must not
become the enemy of the good.
[23]
The rules relating to entry to and egress from the Shelter are not
dissimilar from those at other institutional buildings.
They were
designed, inter alia, to ensure the safety and protection of the
occupiers. They are also intended to discourage an attitude
of
dependence. There are cost factors too. These rules cannot, in all
the circumstances, be said to be unreasonable. As for the
sleeping
arrangements, without displacing other persons at the Shelter, MES
cannot both accommodate all the potential occupiers
and allow men and
women to sleep in the same dormitory without offending many people’s
sense of decency, modesty and decorum.
The limitation on husbands and
wives and permanent life partners sleeping together in the strictly
temporary emergency accommodation
provided was, in the single
relevant instance, relaxed. In any event, husbands and wives and
permanent life partners do not have
the right, always and everywhere,
to sleep together. There are instances in which this right must
yield, albeit temporarily, to
broader practical demands such as those
related to the reason for which the Shelter was designed. In context,
the provision of
temporary accommodation separated on the basis of
gender, is not unreasonable and therefore not unconstitutional.
[24]
The proper remedy for the occupiers was not to have applied for the
striking down of the rules of a bona fide institution such
as MES but
to have applied for an order that the accommodation provided by the
City, through the agency of MES, was not that which
had been ordered
by the Constitutional Court. In other words, the occupiers who wished
to sleep with their spouse in temporary
accommodation intended to
cater for an emergency, should have applied for an order that they be
given alternative accommodation,
where they could exercise these
rights. They may or may not have been successful but the rules of MES
in the Shelter offered by
the City, in an attempt to accommodate the
occupiers in an emergency situation are not, in themselves,
unreasonable. The appeal
must succeed. Appropriately, the City did
not seek an award of costs in the event that it was successful.
[25]
The following order is made:
1
The appeal is upheld.
2
The order of the court a quo is set aside and replaced with the
following:
‘
The
application is dismissed.’
N
P WILLIS
Judge
of Appeal
APPEARANCES:
For
Appellant: C D A Loxton SC (with him A W Pullinger)
Instructed
by: Moodie & Roberston, Johannesburg
Lovius
Block, Bloemfontein
For
First to 33 Respondents: A M De Vos SC (with her S Wilson and M
Stubbs)
Instructed
by:Socio-Economic Rights Institute, Johannesburg
Webbers,
Bloemfontein
For
Amicus Curiae: E Webber
(Heads
of argument prepared by J Brickhill, with him, J Bleazard)
Instructed
by:Centre for Applied Legal Studies, Johannesburg
Webbers,
Bloemfontein
[1]
City
of Johannesburg Metropolitan Municipality v Blue Moonlight
Properties 39 (Pty) Ltd & another
[2011]
ZASCA 47
;
2011 (4) SA 337
(SCA) (
Blue
Moonlight SCA judgment
).
[2]
City
of Johannesburg Metropolitan Municipality v Blue Moonlight
Properties 39 (Pty) Ltd
[2011]
ZACC 33
;
2012 (2) SA 104
(CC) (
Blue
Moonlight CC judgment
).
[3]
Para
98. The reference to ‘Ch 12’ is to
the
National Housing Code (National housing programme: housing
assistance in emergency circumstances (April 2004 Final Version)).
[4]
See
s 12 of the Constitution of the Republic of South Africa, 1996.
[5]
See
ss 10, 12, 14, 18 and 21 of the Constitution.
[6]
Komani
NO
v
Bantu
Affairs Administration Board, Peninsula Area
1980
(4) SA 448
(A) at 473D.
[7]
Bernstein
& others v Bester & others NNO
[1996]
ZACC 2; 1996 (2) SA 751 (CC).
[8]
Paragraph
77.
[9]
Ibid.
[10]
Dawood
& another v Minister of Home Affairs & others; Shalabi &
another v Minister of Home Affairs & others; Thomas
&
another v Minister of Home Affairs & others
[2000]
ZACC 8; 2000 (3) SA 936 (CC).
[11]
Paragraph
37.
[12]
See
s 36 of the Constitution.
[13]
Coetzee
v Government of the Republic of South Africa; Matiso &
others
v Commanding Officer Port Elizabeth Prison & others
[1995]
ZACC 7; 1995 (4) SA 631 (CC).
[14]
Paragraph
11.
[15]
Ibid.
[16]
Ibid.
[17]
See,
for example,
Kruger
v Coetzee
1966 (2) SA 428
(A) at 430E-G;
Za
v Smith & another
[2015] ZASCA 75
;
2015 (4) SA 574
(SCA) para 24.
[18]
Blue
Moonlight CC judgment
para
98.
[19]
City
of Cape Town v Hoosain NO & others
unreported
WCHC case number 1033/2011, delivered on 24 October 2012;
[2012]
ZAWCHC 180.
[20]
Paragraph
14.
[21]
Teddy
Bear Clinic for Abused Children & another v Minister of Justice
and Constitutional Development & another
[2013]
ZACC 35
;
2014 (2) SA 168
(CC).