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[2014] ZAGPJHC 211
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Dlaldla and Others v City of Johannesburg Metropolitan Municipality and Another (39502/12) [2014] ZAGPJHC 211; 2014 (6) SA 516 (GJ); [2014] 4 All SA 51 (GJ) (22 August 2014)
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE
NUMBER: 39502/12
DATE:
22 AUGUST 2014
In the matter
between:
DLADLA, ELLEN
NOMSA &
OTHERS
...............................................
Applicants
And
CITY OF
JOHANNESBURG METROPOLITAN
MUNICIPALITY
.........................................................................
First
Respondent
METROPOLITAN
EVANGELICAL SERVICES
.....................
Second
Respondent
Coram: WEPENER J
Heard: 12 August
2014
Delivered: 22
August 2014
Summary:
Infringement of fundamental rights enshrined in Constitution –
duty to desist – right to dignity obliges local
authority to
respect family unit also when it is obliged by law or court order to
supply homeless persons with temporary accommodation.
JUDGMENT
WEPENER J:
[1] The applicants
are all persons residing at a shelter known as Ekuthuleni Overnight /
Decant Shelter (Ekuthuleni). They were
relocated to the shelter
pursuant to an order of the Constitutional Court which order reads,
inter alia, as follows:
‘The City of
Johannesburg Metropolitan Municipality must provide those Occupiers
whose names appear in the document entitled
“Survey of
Occupiers of 7 Saratoga Avenue, Johannesburg” filed on 30 April
2008 with temporary accommodation in a location
as near as possible
to the area where the property is situated on or before 1 April 2012,
provided that they are still resident
at the property and have not
voluntarily vacated it.’
[2] Although this
order was issued on 1 December 2011, some of the applicants in this
matter are those occupiers referred to in
the court order and are
still housed in the temporary accommodation in Ekuthuleni. The relief
sought by the applicants flow from
them being housed at Ekuthuleni. A
number of the original residents referred to in the court order in
Blue Moonlight have already
left Ekuthuleni, but nothing turns on
this fact as there are indeed some of those individuals who are
still, pursuant to the court
order, being accommodated by the City of
Johannesburg (the City) with the assistance of the second respondent.
[3] Whilst the
applicants fall in a category of persons who require temporary or
emergency accommodation, they do not fall into
the category of
persons who normally visit an overnight shelter as set out
hereinafter. It is also common cause that the City’s
policy on
how to deal with persons, such as those in the category of the
applicants, has not been finalised.
[5] The first
respondent is the City of Johannesburg, a metropolitan municipality
and the local authority that was ordered to provide
the residents
with temporary accommodation as set out above. The second respondent
is a company incorporated not for profit in
terms of the Companies
Act . It operates the shelter with which this application is
concerned.
[6] Although it was
submitted on behalf of the second respondent that it is not an organ
of State which can be subject to any order
in this matter, the City
did not advance this submission and indeed said in its written heads
of argument that:
‘This managed
care model is managed and implemented on behalf of the City by the
Metropolitan Evangelical Services, the second
respondent herein….’
The court having
brought this to the attention of counsel for the second respondent
during argument, the issue was not further pursued.
In the
circumstances, despite the second respondent being the entity
providing services for the City, the matter can be approached
on the
basis that it is acting on behalf of the City and that any order
which this court may issue binding the City would be binding
on the
second respondent and would have to be implemented by the second
respondent.
[7] At the outset of
the hearing the Centre of Applied Legal Studies (hereafter referred
to as CALS) applied to be admitted as an
amicus curiae in the matter
in order to submit a limited argument in relation to it. Although the
application was (faintly) opposed
by the first respondent only, this
court ordered that the amicus be allowed to present argument.
[8] The relief
sought by the applicants is as follows:
‘1.
Interdicting and restraining the respondents from evicting the
applicant from the Ekuthuleni Shelter, Corner De Villiers
and Nugget
Street, Johannesburg (‘the shelter’) without an order of
court authorising them to do so.
2. Declaring that
rules 3 and 4 of the ‘Ekuthuleni Overnight / Decant Shelter
House Rules’ are an unjustifiable infringement
of the
applicants’ constitutional rights to dignity, freedom and
security of the person, privacy and access to adequate housing,
enshrined in section 10, 12, 14 and 26 of the Constitution of the
Republic of South Africa, 1996.
3. Interdicting and
restraining the respondents 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 the shelter.
4. Declaring that
the respondents’ refusal to permit the applicants to reside in
communal rooms together with their spouses
or permanent life partners
is an unjustifiable infringement of the applicants’
constitutional rights to dignity, privacy
and access to adequate
housing, enshrined in section 10, 14, and 26 of the Constitution.
5. Directing the
respondents forthwith to permit those of the applicants who wish to
do so, to reside together with their spouses
or life partners in
communal rooms at the shelter, for the duration of the applicants’
stay at the shelter.
6. In the
alternative to prayers 2 to 5, an order:
6.1 reviewing and
setting aside the decisions by the first respondent, alternatively
the second respondent, to apply rules 3 and
4 of the respondents’
Decant Shelter Rules to the applicants and to prohibit the applicants
from living in rooms with their
spouses or life partners; and
6.2 directing the
respondents:
6.2.1 not to apply
rules 3 an 4 to the applicants; and
6.2.2 to permit the
applicants to reside in rooms at the Shelter together with their life
partners or spouses.
7. Declaring that
accommodation at the shelter does not constitute ‘Housing
Assistance in Emergency Circumstances’ within
the meaning of
the Emergency Housing Programme, contained in Part 3 of the National
Housing Code, 2009.
8. Declaring that
the first respondent’s failure to provide housing assistance in
emergency circumstances to persons who,
such as the applicants, are
unable to pay R600 or more per month in rent is in conflict with
sections 9 and 26(2) of the Constitution,
and the Emergency Housing
Programme, contained in the National Housing Code, 2009.
9. Directing the
first respondent to devise and implement, within its available
resources, a programme to provide housing assistance
in emergency
circumstances to persons, such as the applicants, who cannot afford
to pay R600 or more per month in rent.’
[9] The background
facts to this application are contained in the Constitutional Court
judgment in Blue Moonlight and of particular
relevance is the
discussion regarding temporary and emergency accommodation . Having
sketched the factual background of the matter,
the Constitutional
Court issued the order already referred to above.
[10] The temporary
accommodation provided by the City to the applicants is provided
pursuant to the order of court . It is the ambit
of the temporary
accommodation provided by the City upon which much of the applicants’
case turns.
[12] Pursuant to the
order of the Constitutional Court, the City concluded that it was
obliged to supply the residents with temporary
relief in an emergency
situation as it had been afforded a period of five months to comply
with the order. The conclusion of the
City was, in my view, justified
if regard is had to para 96 of the Blue Moonlight judgment . Whether
this has a bearing on the
duties and obligations of the City is a
question of interpretation and the clear statement in para 98 of the
judgment . However,
whether a period of six months, twelve months or
longer was foreseen, is of no consequence as it has turned out that
some of the
persons who were the beneficiaries of the order of the
Constitutional Court are still, some three years later, housed by the
City
pursuant to that order.
[13] There are some
factual disputes on the papers before me and it has not been shown
that the well-established approach taken
by our courts over a period
of many decades should not be applied. The approach has been set out
as follows:
‘Motion
proceedings, unless concerned with interim relief, are all about the
resolution of legal issues based on common cause
facts. Unless the
circumstances are special they cannot be used to resolve factual
issues because they are not designed to determine
probabilities. It
is well established under the Plascon-Evans rule that where in motion
proceedings disputes of fact arise on the
affidavits, a final order
can be granted only if the facts averred in the applicant's (Mr
Zuma's) affidavits, which have been admitted
by the respondent (the
NDPP), together with the facts alleged by the latter, justify such
order. It may be different if the respondent's
version consists of
bald or uncreditworthy denials, raises fictitious disputes of fact,
is palpably implausible, far-fetched or
so clearly untenable that the
court is justified in rejecting them merely on the papers. ’
[14] Certain
disputes arose also by virtue of the contents of the replying
affidavit and the City submitted that the applicants
were not
entitled to introduce that new evidence . In addition, at the outset
of the hearing I drew the parties’ attention
to the principles
applicable to application proceedings regarding the sets of
affidavits which may be filed . Having regard to
the aforegoing, the
applicants did not persist to rely on the additional affidavits and
new matter contained in the reply and no
party applied for any
additional affidavits to be accepted for purposes of this hearing. On
the contrary, reliance on new matter
and additional affidavits was
specifically abandoned.
[15] As the matter
stood at the outset of the hearing, a large number of issues required
determination. The first issue was whether
the allegation by the
applicants that Ekuthuleni is their home, is correct. The City
disputed that Ekuthuleni was the home of the
applicants on the basis
that it is only temporary accommodation as in the case of a hotel or
university residence. The City put
it thus:
‘The City
denies that the applicants have a clear right or any right at all.
This is because the facility is not a home within
the meaning of
section 26 of the Constitution. It is an institutional facility akin
to a hospital. It is designed to do no more
than alleviate the
emergency housing situation that the applicants faced at the time.’
The relevance of the
question of a home lies in the provisions of the PIE Act as read
with s 26(3) of the Constitution .
However, the City,
in its written argument, accepted that it will need to apply to a
court for an order to exclude any of the applicants
from accessing
Ekuthuleni, should such an applicant refuse to vacate Ekuthuleni at
the City’s behest. In the circumstances,
the need for an order
in terms of prayer 1 of the notice of motion has fallen away and the
question whether Ekuthuleni is indeed
the home of the applicants is
no longer alive.
[16] During argument
in reply, it was also submitted that prayers 7, 8 and 9 were not
necessary to be adjudicated. The latter two
prayers were not
persisted with as it is common cause that the City is in the process
of finalising the development and adoption
of a policy framework for
persons in the position of the applicants, but that it has not yet
been finalised. The issue in prayer
7 is common cause and correct and
needs no order. The issues which then remained were whether rules 3
and 4 issued by Ekuthuleni
and the imposition of a policy to separate
persons by gender, and in particular spouses or permanent life
partners from each other,
constitutes a violation of the applicants’
constitutional rights. The rules complained of are contained in a set
of rules
which the second respondent, (admittedly with the approval
of the City), made applicable to the applicants’ day to day
life.
The rules read:
‘3. The gate
for the Shelter opens at 17h30 Monday – Sunday and closes at
20h00. All residents will be required to sign
the register every
night.
4. All residents
will be required to vacate the shelter by 08:00 in the mornings
Monday – Friday and 09:00 on Saturday and
Sunday.’
[17] The signing of
the register is not in issue. It is the obligation of the applicants
to vacate the shelter for the entire day,
every day of the week, and
to return during the late afternoon. The second bone of contention is
that the shelter has a policy
to separate genders to the extent that
it also disallows spouses or permanent life partners from staying
together. Incidental thereto,
is the plight of mothers caring for
their children during the day.
[18] The applicants’
case, put simply, is that the limitations contained in rules 3 and 4
and the prohibition of spouses of
living together are a violation of
their constitutional rights as enshrined in s 10, 12 and 14 of the
Constitution.
[19] The alternative
prayers were sought only in the event of the court finding that
Ekuthuleni does not afford the applicants a
home, or that there is no
infringement of their constitutional rights. Having come to the
conclusion below, the need to consider
the review sought by the
applicants falls away. The issue is whether Ekuthuleni is the home of
the applicants need not be decided
and much of the voluminous paper
work before me (and arguments contained in the written heads) have
become moot since the concession
which the City had made.
[20] The applicants
base their application on the fact that the temporary accommodation
in which they find themselves is their home.
The City sets out a
policy, as well as an amended policy since the judgment in Blue
Moonlight, and describes the various steps
and programmes which it
implements regarding the supply of housing as well as emergency and
temporary accommodation. As far a temporary
accommodation is
concerned, the City facilitates a transition of evictees, such as the
applicants, from their temporary accommodation
at Ekuthuleni to
improved accommodation options, referred to as a movement along the
housing ladder where persons on the lowest
rung of the ladder need
complete assistance and those on the highest would be in a position
of transformation to housing where
no assistance is required by them.
[21] The City’s
version and argument were that Ekuthuleni is an overnight facility,
being temporary accommodation akin to
hotels, hospitals and student
residences providing occupation for a limited period of time without
ever constituting the occupants’
home. The mere fact of
residence, so it was submitted, does not make an institution, such as
Ekuthuleni, a home notwithstanding
the fact that an individual may
have no other access to accommodation. It was further submitted that
the notion of shelters as
temporary accommodation would be rendered
futile if residents would be allowed to claim the shelter to be their
home and set up
permanent residence there. The essence of temporary
accommodation, so it was submitted, is that the occupants must be
transitory
to the higher rungs of the accommodation ladder as they
progress and socially transform with assistance and care of social
workers.
It is in these circumstances that the supply of the
temporary accommodation is referred to as a managed care program for
persons
in need of accommodation in contrast to permanent settlement
solutions.
[22] In its quest to
find service providers to supply temporary accommodation, the City
engaged the second respondent who was the
only entity that agreed to
comply with the City’s requirements. The City states that this
managed care model is in place
in order to assist individuals to
improve their station in life. These persons, like the applicants,
must actively participate
in the process and co-operate in order for
the model to be beneficial to them. They must consult with the social
workers, participate
in the needs analysis, participate in the
compilation of individual development plans and pursue the goals of
the individual development
plans whilst attending training, job
interviews and the like. It further contends that the provision of a
roof over one’s
head is only one facet of the enhanced shelter
model, employed at Ekuthuleni. The aim is to empower destitute
individuals, families
and communities through a holistic model that
addresses their physical, emotional, mental and spiritual needs. The
destitute are
provided with skills and or opportunities in order to
put them into a position to transition to improve their life station.
[23] The second
respondent was originally formed by church organisations and has
developed to a non-profit institution providing
much needed help for
the poor, homeless and destitute. The managed care model, and as the
name of the shelter indicates, primarily
caters for the supply of
overnight facilities. It is not a facility primarily developed to
accommodate persons in an emergency
or temporary, as ordered in Blue
Moonlight. The City utilised existing facilities, ie the overnight
facilities, in order to attempt
to satisfy the order of the
Constitutional Court.
[24] What is not in
dispute is that the need for temporary accommodation far outweighs
the City’s ability to provide it. In
so far as the applicants
allege that they are accommodated in ‘purported fulfilment of
its obligations… under the
National Housing Code, 2009’,
I have already indicated that the prayer in relation to such relief
has been abandoned as the
parties are aware that the City does not
have a policy for this category of accommodation in place and that it
is only the temporary
emergency accommodation, pursuant to the order
of the Constitutional Court, that is relevant.
[25] The deponent,
on behalf of the second respondent, Jacques Pienaar (Pienaar), who
joined the second respondent in 1996 as a
volunteer, and who is
currently its executive manager: finance and information technology,
set out the particulars of the facilities
supplied by the second
respondent in some detail and I may not do justice to it in the
following summary, though the broad outline
is given so as to
understand its make-up. The Ekuthuleni facility consists of thirty
gender differentiated dormitories or rooms
which can accommodate one
hundred people. The relatively small rooms have bunk beds and there
are common areas with kitchen and
dining facilities. Each occupier
has a locker for the storage of food and a trunk for personal items.
Other items are locked in
three locked store rooms. There are also
gender differentiated ablution facilities, a communal study area, a
court yard and television
room.
[26] Pienaar’s
evidence is that the second respondent, and consequently Ekuthuleni,
complies with all relevant by-laws and
legislation at the facility.
It is cleaned daily and has a twenty four hour guard service and
security system. The facility has
a manager on duty seven days a
week. During October 2012 a security gate was installed between the
dormitories of the men and women
after incidents where a male person
harassed female residents, which included sexual harassment. Pienaar
relates other incidents
which, in the view of the second respondent,
justified the separation of males and females by way of a security
gate. Added to
the accommodation there is a centre a short distance
away where hot meals are served each day, social development services
are
offered and a crèche is supplied for young children. There
are computers available for use. Internet and local newspapers
are
made available for purposes of investigating employment opportunities
and assistance is given for the compiling of curriculum
vitae for
submission for employment opportunities. There is, in addition, a
health care clinic and hospice which has an in-patient
unit and which
provides health care services to the occupiers of all the second
respondent’s facilities, including the occupiers
of Ekuthuleni.
There is also a soccer field for five-a-side soccer available. All
the above facilities are supplied to residents
at no charge. Pienaar
alleges that the facilities are in contrast to the living conditions
at Saratoga Avenue, the building from
which the occupiers were
evicted and thereafter placed in Ekuthuleni. At Saratoga Avenue there
was no sanitation, no running water
and no electricity. There was no
cleaning service and the place was unhygienic and pest ridden.
[27] Pienaar states
that Ekuthuleni is not only the supplier of a roof over their head
for destitute persons, but the second respondent
attempts to address
the physical, emotional, mental and spiritual needs of those in its
‘managed care model’. The end
result is that the second
respondent’s ultimate goal is, as set out by Pienaar, as
follows:
‘The ultimate
goal of the enhanced shelter model is to assist persons to
re-integrate with the community and to become self-sustaining
members
of society. The approach is one that provides opportunity and
promotes aspiration. This approach is premised on the notion
that
individuals ought to take responsibility for their lives and to seek
to live independent and meaningful lives.’
The shelter is
subject to a three-phased programme being intake, intervention and
sustainable exit. The last stage is stated to
be a phase where the
occupier, after receiving all the support offered by Ekuthuleni,
exits it to be self-sustainable. Pienaar
says:
‘It is clear
that the enhanced shelter model is therefore a multi-disciplinary
response to a socio-economic challenge, which
involves a process from
being homeless to becoming self-sustaining.’
And further:
‘The shelter
is merely a stepping stone to housing options. Once an individual
leaves the shelter and becomes self-sustaining,
he or she secures
other accommodation that is affordable and accessible. In so doing, s
/ he / makes way for another needy individual
in the shelter and so
the cycle of social empowerment takes place.’
Pienaar adds that
the accommodation at the shelter is provided for a short period of
time, generally six months, but which period
can be extended up to
twelve months on approval of a social worker. This extended period is
in order to permit an individual to
complete his or her development
plan in order to make a sustainable exit.
[28] The model
described as the managed care model, is the model which the City
utilises for persons who are destitute and who seek
overnight
accommodation on an ad hoc basis. These persons arrive at a shelter
late in the afternoon and disappear again in the
mornings. They are
in a league of their own and are referred to as homeless individuals.
The applicants are in a different category
of persons. They were
evicted form premises where they had stayed for a considerable period
of time. They are now to be housed
pursuant to the order in Blue
Moonlight, which is a category of persons wholly different from those
only seeking overnight accommodation.
[29] It is common
cause that the City has not finalised its policy on how to deal with
this category of persons, but that it is
in the process of doing so –
that being the reason why prayer 9 was not persisted with for the
time being.
[30] The programme
or the policy which the City applies to persons such as the
applicants, whether they are to be housed for a period
of six, twelve
months or longer as practice has shown, requires some consideration.
The City imposed, inter alia, the rules which
it imposes on destitute
persons using its overnight facilities by requiring them to leave the
facility by day and by separating
family members by gender. The
applicants contend that these rules violate their fundamental rights
as contained in ss 10 , 12
and 14 of the Constitution. The
applicants allege that the effect of the regime imposed by Ekuthuleni
is to deprive the residents
of peace, privacy, security and dignity
which any human being is entitled to associate with a home - this as
a result of the two
rules which allow them to be locked out of their
homes during the day and prohibiting them from living with their
spouses, life
partners or children. Although the applicants refer to
their home, I am of the view that the same can be said of the place
where
they reside.
[31] The separation
of spouses (or life partners) is, in my view, an infringement of a
fundamental human right. In Dawood , O’Regan
J at paras 33 to
37, said:
‘[33] In terms
of common law, marriage creates a physical, moral and spiritual
community of life. This community of life includes
reciprocal
obligations of cohabitation, fidelity and sexual intercourse, though
these obligations are for the most part not enforceable
between the
spouses. Importantly, the community of life establishes a reciprocal
and enforceable duty of financial support between
the spouses and a
joint responsibility for the guardianship and custody of children
born of the marriage. An obligation of support
flows from marriage
under African customary law as well. In terms of Muslim personal law,
the husband bears an enforceable duty
of support of the wife during
the subsistence of the marriage.
[34] Section 10 of
the Constitution provides as follows:
“Everyone has
inherent dignity and the right to have their dignity respected and
protected.”
This Court has on
several occasions emphasised the importance of human dignity to our
constitutional scheme. It is clear from the
text of the Constitution
itself that human dignity is a fundamental value of our Constitution.
Section 1 of the Constitution provides:
“The Republic
of South Africa is one, sovereign, democratic state founded on the
following values:
(a) human dignity,
the achievement of equality, and the advancement of human rights and
freedoms;
. . . .”
Similarly, s 7(1) of
the Constitution states:
“This Bill of
Rights is a cornerstone of democracy in South Africa. It enshrines
the rights of all people in our country and
affirms the democratic
values of human dignity, equality and freedom.”
And s 36(1):
“The rights in
the Bill of Rights may be limited only in terms of law of general
application to the extent that the limitation
is reasonable and
justifiable in an open and democratic society based on human dignity,
equality and freedom. . . .”
Finally, s 39(1)
states:
“When
interpreting the Bill of Rights, a court, tribunal or forum -
(a) must promote the
values that underlie an open and democratic society based on human
dignity, equality and freedom;
. . . .”
[35] The value of
dignity in our Constitutional framework cannot therefore be doubted.
The Constitution asserts dignity to contradict
our past in which
human dignity for black South Africans was routinely and cruelly
denied. It asserts it too to inform the future,
to invest in our
democracy respect for the intrinsic worth of all human beings. Human
dignity therefore informs constitutional
adjudication and
interpretation at a range of levels. It is a value that informs the
interpretation of many, possibly all, other
rights. This Court has
already acknowledged the importance of the constitutional value of
dignity in interpreting rights such as
the right to equality, the
right not to be punished in a cruel, inhuman or degrading way, and
the right to life. Human dignity
is also a constitutional value that
is of central significance in the limitations analysis. Section 10,
however, makes it plain
that dignity is not only a value fundamental
to our Constitution, it is a justiciable and enforceable right that
must be respected
and protected. In many cases, however, where the
value of human dignity is offended, the primary constitutional breach
occasioned
may be of a more specific right such as the right to
bodily integrity, the right to equality or the right not to be
subjected
to slavery, servitude or forced labour.
[36] In this case,
however, it cannot be said that there is a more specific right that
protects individuals who wish to enter into
and sustain permanent
intimate relationships than the right to dignity in s 10. There is no
specific provision protecting family
life as there is in other
constitutions and in many international human rights instruments. The
applicants argued that legislation
interfering with the right to
enter into such relationships infringed the rights to freedom of
movement and the rights of citizens
to reside in South Africa. It may
well be that such legislation will have an incidental and limiting
effect on these rights, but
the primary right implicated is, in my
view, the right to dignity. As it is the primary right concerned, it
is the right upon which
we should focus.
[37] The decision to
enter into a marriage relationship and to sustain such a relationship
is a matter of defining significance
for many, if not most, people
and to prohibit the establishment of such a relationship impairs the
ability of the individual to
achieve personal fulfilment in an aspect
of life that is of central significance. In my view, such legislation
would clearly constitute
an infringement of the right to dignity. It
is not only legislation that prohibits the right to form a marriage
relationship that
will constitute an infringement of the right to
dignity, but any legislation that significantly impairs the ability
of spouses
to honour their obligations to one another would also
limit that right. A central aspect of marriage is cohabitation, the
right
(and duty) to live together, and legislation that significantly
impairs the ability of spouses to honour that obligation would also
constitute a limitation of the right to dignity. Like all rights,
however, the question of whether such a limitation is
unconstitutional
or not will depend upon whether it is reasonable and
justifiable in an open and democratic society in terms of s 36(1) of
the Constitution.’
[32] Although the
Dawood matter concerned legislation there is, in my view, no
difference between legislation or rules imposed by
an authority on
persons, which rules have the same consequence, ie an infringement of
the right to dignity.
[33] South Africa is
also a member state of the African Union (formerly the Organisation
of African Unity), and as such, accepted
to be bound by the African
Charter of Human and Peoples’ Rights (the Banjul Charter). The
Banjul Charter provides in article
18:
‘1. The family
shall be the natural unit and basis of society. It shall be protected
by the State which shall take care of
its physical health and moral.
2. The State shall
have the duty to assist the family which is the custodian or morals
and traditional values recognized by the
community.
3. The State shall
ensure the elimination of every discrimination against women and also
ensure the protection of the rights of
the woman and the child as
stipulated in
international
declarations and conventions.’
[34] In addition,
the African Union subscribes to the Grand Bay (Mauritius) Declaration
and Plan of Action, 1999, which states in
clause 10:
‘The
Conference recognizes that the development and energization of the
civil society, the strengthening of the family unit
as the basis of
human society, the removal of harmful traditional practices and
consultation with community leaders should all
be seen as building
blocks in the process of creating an environment conducive to human
rights in Africa and as tools for fostering
solidarity among her
peoples.’
[35] In Bernstein
and Others v Bester and Others NNO the Constitutional Court held :
‘. . . A very
high level of protection is given to the individual's intimate
personal sphere of life and the maintenance of
its basic
preconditions and there is a final untouchable sphere of human
freedom that is beyond interference from any public authority.
So
much so that, in regard to this most intimate core of privacy, no
justifiable limitation thereof can take place. . . .’
[36] I am also of
the view that the assumption that family accommodation must be
provided is implicit in some of the more recent
decisions locally. An
example is City of Johannesburg v Changing Tides 74 (Pty) Ltd and
Others , where Wallis JA held :
‘. . . without
greater detail as to their circumstances and their needs if evicted —
the needs of a family with three
children being different from those
of three young men sharing living quarters — he could not be
satisfied that the order
he was making was just and equitable. . . .‘
and :
‘. . . What
the City needs to know is who requires temporary emergency
accommodation and the nature of their needs, for example,
whether
dormitory accommodation would suffice or whether a flat of some sort
is required for a family with children, or whether
an aged or
disabled person has some special needs. . . .’
[37] The rules and
the limited gender separation as referred to herein which the
applicants object to, in my view, have humiliating
consequences. It
compromises and disrupts the family as a unit; it creates emotional
distance in a relationship; the inability
to live as a family
represents a loss of support for them of one another; it creates an
additional financial burden or the couple’s
limited financial
resources; couples must implement ways to mitigate the lack of
communication that the rule imposes on them; the
most basic
associative privileges connected to a marriage or permanent
relationship are denied to them.
[38] The splitting
up of families at the shelter cuts to the very heart of the right to
dignity and the right to family life. In
the circumstances the
applicants are entitled to a declaration that the splitting up of
families by gender at Ekuthuleni, is in
violation of ss 10, 12 and 14
of the Constitution.
[39] Once an
infringement of a fundamental right has been established (and this
fact was not seriously contended for otherwise by
counsel for the
respondents), the provisions of s 36(1) of the Constitution comes
into play as a limitation of the constitutional
right may be
justified. The submission on behalf of the respondents was that the
limitation is reasonable having regard to the
purpose of the short
term emergency accommodation which is provided. But even if the
provision of accommodation was only for a
period of six months (which
it has been shown it is not), a violation of a fundamental right,
enshrined in the Constitution, should
not and cannot be justified
unless it meets the provisions of s 36(1) of the Constitution. This
aspect of the matter does not need
much elaboration. Section 36 of
the Constitution provides for a justified
‘. . .
limitation of the right, considering the nature and importance of the
right, and the extent of its limitation on the
one hand, . . . in
relation to the purpose, importance and effect of the provision
causing the limitation, taking into account
the availability of less
restrictive means to achieve the purpose of the provision, on the
other.’
The provision
referred to by O’Regan J regarding the justified limitation
should be introduced by a law of general application
as set out in s
36(1) of the Constitution. No such law has been shown or submitted by
the respondents to exist. In August v Electoral
Commission and Others
it was said at para 23:
‘In the
absence of a disqualifying legislative provision, it was not possible
for respondents to seek to justify the threatened
infringement of
prisoners' rights in terms of s 36 of the Constitution as there was
no law of general application upon which they
could rely to do so.’
[40] In the absence
of any legislative provision there can be no justified limitation of
the right of spouses (and life partners)
to co-habit. Any
infringement of that right is an infringement of the right to dignity
and unconstitutional and falls to be struck
down.
[41] In addition,
the respondents aver that the daily lock-out rule admits of
exceptions and will no longer be applied on weekends.
But the default
position, ie that the residents will be locked out of Ekuthuleni,
unless special permission is granted, should
be considered. In my
view, the daily lock-out rule also violates the residents’
rights to privacy and dignity. In NM and
Others v Smith and Others
(Freedom of Expression Institute as Amicus Curiae) , the
Constitutional Court said:
‘The right to
privacy recognises the importance of protecting the sphere of our
personal daily lives from the public. In doing
so, it highlights
inter-relationship between privacy, liberty and dignity as the key
constitutional rights which construct our
understanding of what it
means to be a human being. All these are therefore inter-dependant
and mutually reinforcing. We value
privacy for this reason at least –
that the constitutional conception of being a human asserts and seeks
to foster the possibility
of human beings choosing how to live their
lives within the overall framework of the broader community. The
protection of this
autonomy, which flows from our recognition of
individual human worth, presupposes personal space within which to
live this life.’
(footnotes omitted)
[42] The lock-out
also results in residents being exposed to dangers inherent in street
life and inhibits their freedom in material
respects and thus clearly
infringes on their right to freedom, security and dignity.
[43] If the
applicants should feel unwell or wish to attend to some private or
personal matter, it must be done or suffered elsewhere
than the place
where they stay. If they feel like a rest because of a hard day’s
work which may end earlier than the lock-out
time, they are not able
to return to their place of safety where their entire life
possessions are kept. In my view, the rules
breach their right to
dignity, privacy and security and fall foul of the applicants’
constitutionally entrenched rights.
[44] Although the
argument, submitted on behalf of the amicus, mainly concentrated on
the right to adequacy of housing, this was
so because the issue was
alive until the concession was made by the first respondent and the
undertaking given that the applicants
would not be evicted from the
shelter without it first obtaining a court order. Nevertheless, the
argument submitted by the amicus
was, especially in relation to the
African Charter of Human and Peoples’ Rights (the Banjul
Charter) and the Grand Bay (Mauritius)
Declaration and Plan of
Action, 1999, most valuable and of assistance to the court.
[45] The second
respondent is a supplier of services to the City. The City is the
entity that was required by the Constitutional
Court to house the
applicants. The City has not finalised its plan of action. It opposed
the application. It was not obliged to
limit the housing of the
applicants to a managed care model. I am of the view that the second
respondent, as the service provider,
should not be the party to bear
the costs of the application.
[46] The amicus
requested that the City should pay its costs in relation to the
admission application only. The amicus relied on
Jeebhai and Others v
Minister of Home Affairs and Another , where it was held :
‘The amicus
contended that the respondents ought to pay their costs for having
unreasonably opposed their application to be
admitted as amicus
curiae in this court. In this matter the submissions of the amicus
were of considerable assistance to the court.
There were no proper
grounds for opposing its application and I agree that it is
appropriate that the respondents pay such costs.’
[47] The admission
of the amicus was opposed to the end, though the argument was not
convincingly presented before this court.
[48] The applicants
were successful in their application. The City only conceded the
relief in prayer 1, when submitting its heads
of argument and the
remainder of the relief was obtained in this court. In the
circumstances I grant the following order which
does not impact on
the provision of gender separated ablution facilities:
1. Rules 3 and 4 of
the ‘Ekuthuleni Overnight / Decant Shelter House Rules’
are an unjustifiable infringement of the
applicants’
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
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 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.
Wepener J
Counsel for
Applicant: A. De Vos SC
S. Wilson
M. Stubbs
(Heads of
argument drawn by: P.M. Kennedy SC, S. Wilson and M. Stubbs)
Attorneys for the
Applicants: SERI Law Clinic
Counsel for the
First Respondent: C. Loxton SC
A. Pullinger
Attorneys for the
First Respondent: Moodie and Robertson Attorneys
Counsel for the
Second Respondent: C. Van der Merwe
Attorneys for the
Second Respondent: Edward Nathan Sonnenbergs
Counsel for the
Amicus Curiae: B.D. Lokokotla
Attorneys for the
Amicus Curiae: Legal Resources Center