SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 636/23
In the matter between:
THE CITY OF JOHANNESBURG
METROPOLITAN MUNICIPALITY FIRST APPELLANT

THE EXECUTIVE MAYOR,
CITY OF JOHANNEBURG SECOND APPELLANT

THE CITY MANAGER,
CITY OF JOHANNESBURG THIRD APPELLANT

THE DIRECTOR OF HOUSING,
CITY OF JOHANNESBURG FOURTH APPELLANT

and

OCCUPIERS OF [PORTION 9[...]
OF THE FARM RANDJESFONTEIN NO 405 FIRST RESPONDENT

RYCKLOFF -BELEGGINGS (PTY) LTD SECOND RESPONDENT

THE INTERNATIONAL COMMISSION
OF JURISTS AMICUS CURIAE

Neutral C itation: The City of Johannesburg Metropolitan Municipality and Others
v Occupiers [ of Portion 9[...] of the Farm Randjesfontein No
4[…]] and Others (636/23) [2024] ZASCA 47 (23 April 2025)
2
Coram: MAKGOKA , SCHIPPERS and MOTHLE JJA and HENDRICKS and
NAIDOO AJJA
Heard: 27 August 2024
Delivered: This judgment was handed down electronically by circulation to the
parties’ representatives by email, publication on the Supreme Court of Appeal
website, and released to SAFLII. The date and time for hand down is deemed to be
23 April 2025 at 11h00 .

Summary: Property law – Prevention of Illegal Eviction from Unlawful Occupation
of Land Act 19 of 1998 (PIE) – eviction of unlawful occupiers – emergency temporary
accommodation – whether a municipality obliged to consider an unlawful occupier’s
right to earn a living when determining emergency temporary accommodation –
intersection between s 28 of the Constitution and s 4(7) of PIE.



3
_______________________________________ ____________________ _______

ORDER
_______________________________________ ____________________ _______
On appeal from : Gauteng Division of the High Court, Johannesburg (Wright J sitting
as court of first instance) :

The following order shall issue:
1 Paragraph 2(b) of the high court’s order is amended and the City of
Johannesburg Metropolitan Municipality is directed to provide temporary emergency
accommodation for the first to the seventy -first Occupiers of the farm Randjesfontein
number 4[...] as specified in that paragraph, within sixty (60) days of the date of this
Court’s order.
2 Save as aforesaid, the appeal is dismissed with costs, including costs of two
counsel where so employed.
_______________________________________ ____________________ _______

JUDGMENT
_______________________________________ ____________________ _______
Mothle JA (Makgoka and Scheepers JJA and Hendricks and Naidoo AJJA
concurring ):

[1] This appeal raises our country’s perennial problem – homelessness. In
President of the Republic of South Africa v Modderklip Boerdery (Pty) Ltd1 the
Constitutional Court remarked as follows :
‘The problem of homelessness is particularly acute in our society. It is a direct
consequence of apartheid urban planning which sought to exclude African people
from urban areas, and enforced this vision through policies regulating access to land
and housing which meant that far too little land and too few houses were supplied to
African people. The painful consequences of these policies are still with us eleven
years into our new democracy, despite government’s attempt to remedy them. The
frustration and helplessness suffered by many who still struggle against heavy odds

1 President of the Republic of South Africa v Modderklip Boerdery 2005 (5) SA 3 (CC) para 36.
4
to meet the challenge merely to survive and to have shelter can never be
underestimated. The fact that poverty and homelessness still plague many South
Africans is a painful reminder of the chasm that still needs to be bridged before the
constitutional ideal to establish a society based on social justice and improved
quality of life for all citizens is fully achieved.’

Two decades later, despite a plethora of legislation and case law, the problem
persists.

[2] The first to fourth appellants are respectively; the City of Johannesburg
Metropolitan Municipality (the City) , the Executive Mayor, the City Manager and the
Director of Housing , collectively referred to as ‘the City ’. The first to seventy -first
respondent s are the Occupiers , who are in unlawful occupation of Portion Erf 9[...] of
the Farm Randjiesfontein no. 4[...], situated in Midrand, within the municipality of
Johannesburg , (the property) . The property belongs to the seventy -second
respondent , Rycloff -Bellegings (Pty) Ltd ( Rycloff) . The City appeals against the
judgment and orders of the Gauteng Division of the High Court, Johannesburg (the
high court). That court, at the instance of Rycloff, granted an order of eviction against
the first respondent (the Occupiers) and ordered the City to provide them temporary
emergency accommodation ( TEA) subject to a condition that: ‘The land chosen by
the City shall be land where the 1st to 71st respondents can live at night and there
lawfully and safely sort the reclaimed waste and from where they can reasonably go
during the day to use their flat -bed trollies lawfully and safely to collect waste’ . It is
against this order (the impugned order) that the City appeals, with the leave of the
high court. The International Commission of Jurists (ICJ) was admitted in this Court
as Amicus Curiae.

[3] The Occupiers eke out a living as waste pickers . This they do by extract ing
from the waste , recyclable materials from industrial sites located near the property
and transport ing it to the property on flat-bed trollies . On arrival at the property , they
sort, clean and store the materials in industrial bags, with a view to sell ing the stored
materials to recycling companies. In order to do this work, which is their sole source
of income, the Occupiers have built shacks on the property , where they reside with
their families.
5

[4] Adjoining the property is Erf 6[...] M[...] P[...] , Extension 9, also owned by
Rycloff. The latter property houses a large commercial business centre , the
International Business Gateway. Rycloff is in the process of finalising an offer to
lease and redevelop Midridge Park, valued at R456 461 243.66 . The prospective
lessee is not willing to proceed with the envisaged development , because of the
Occupiers ’ continue d occupation of the property neighbouring Midridge Park. It
became obvious that the continued presence of the Occupiers on the property w ould
be an impediment to the envisaged development.

[5] On 22 May 2019, Rycloff launched an application for eviction of the Occupiers
from the property , in terms of s 4 of the P revention of Illegal Eviction from and
Unlawful Occupation of Land Act 19 of 1998 ( the PIE Act ). A plethora of interlocutory
applications over d elay in the acquisition of suitable temporary emergency
accommodation, supervised orders for relocation of the Occupiers and contempt of
court applications ensued , and continued for about three years . During this period,
several sites for relocation were identified, but the City and the Occupiers could not
reach an agreement on a suitable site to which the Occupiers could be relocated .
The Occupiers preferred alternative accommodation nearer the industrial si tes, in
order to continue their waste -picking activities . In 2022, the City identified Erf 1[...]
K[...] S[...] I[...] S[...] (K[...] S[...] ), as the relocation destination acceptable to both
parties . However, t he City imposed a condition for relocation to K[...] S[...] , that the
Occupiers would not be allowed to conduct their waste picking activities on the
identified site. The Occupiers object ed to that condition.

[6] The eviction application eventually came before the high court, which granted
an eviction order against the Occupiers . In paragraph 2 of its order, the high court
directed that the City must, by no later than 4 March 2023, on land of its choice but
within the municipal area of the City, provide temporary emergency accommodation
for the occupiers, subject to certain conditions. The condition, which is the source of
the dispute in this appeal, is stated in paragraph 3 of the high court’s order.
Dissatisfied with the impugned order, the City sought and was granted leave by the
high court to this Court, specifically against the impugned order.

6
The parties’ contentions
[7] The City contend s, first , that the ‘right to earn a living’, which it submit s is
essentially a ‘commercial interest ’, is not relevant to the determin ation of what is just
and equitable in terms of s 4(7) of the PIE Act. Related to that, it was submitted, the
section does not afford an unlawful occupier the right to choose where they wish to
live, upon eviction. Second , that the collection, sorting and storing of material from
waste by the Occupiers , is an unlawful activity , as it is conducted in an area zoned
‘special’ , contrary to the relevant zoning regulations.

[8] The Occupiers submitted , in the main , that the eviction w ould not be just and
equitable, if it did not take into account their means of earning a living, i.e. if they are
not relocated close to areas which create high value waste for them to collect , store
and sell extracted recyclable material, to the recycling companies. They further relied
on s 26(3) of the Constitution ,2 to contend that the City has an obligation to act
reasonably, as the right to earn a living is a component of the right to dignity.

[9] The thrust of Rycloff’s submission was that the high court order exceeds what
is envisaged in s 26(3) of the Constitution read with s 4 of the PIE Act. Further, that
the impugned order offends the separation of powers doctrine in that it deprives the
City of its discretionary power to identify suitable temporary emergency
accommodation, which is congruent with the prevention of homeless ness and the
balan cing of competing interests that the City must consider.

[10] ICJ advanced three submissions in support of the Occupiers : (a) the role of
both binding and ‘non -binding’ international law; (b) the State’s obligations relating to
the rights to housing and work in the context of international human rights law; and
(c) the eviction of occupiers which results in reduce d access to existing work
opportunities , would also result in a violation of the rights of the children of the
occupiers .

[11] Before I consider these submissions, it is important to state what the case is
not about. It is not about whether the Occupiers wish to be relocated to a temporary

2 Constitution of the Republic of South Africa, 1996.
7
emergency accommodation of their choice. Both the City and the Occupiers agree
that K[...] S[...] should be the destination for relocation. The dispute is whether the
Occupiers should continue to ‘earn their living’, at K[...] S[...] . In this regard, the
protagonists in th e dispute are thus the City, supported by Rycloff on the one side
and the Occupiers, supported by ICJ on the other.

[12] The PIE Act primarily gives expression to the right of access to adequate
housing as provided for in s 26 of the Constitution. It regulates the circumstances
under which evictions may be conducted. The Constitutional Court in Port Elizabeth
Municipality v Various Occupiers ,3 set out the history of evictions under the then
government policy of apartheid , and the enactment of the PIE Act, following the
advent of constitutional democracy. In essence, the PIE Act is intended to prevent
the erstwhile arbitrary and violent evictions and forced removals that were a
cornerstone of apartheid laws. Section 4(7) of the PIE Act, provides:
‘If an unlawful occupier has occupied the land in question for more than six months
at the time when the proceedings are initiated, a court may grant an order for
eviction if it is of the opinion that it is just and equitable to do so, after considering all
the relevant circumstances, including, except where the land is sold in a sale of
execution pursuant to a mortgage, whether land has been made available or can
reasonably be made available by a municipality or other organ of state or another
land owner for the relocation of the unlawful occupier, and including the rights and
needs of the elderly, children, disabled persons and households headed by women.’

[13] Section 4(7) has been crafted such that the manner by which evictions are
conducted, respects the constitutional rights of occupiers, in particular the vulnerable
amongst them. It does not expressly oblige a municipality to provide for temporary
emergency accommodation for evicted occupiers. Our courts have applied a wide
interpretation to s 4(7). Recently, in Charnell Commando v City of Cape Town4
(Charnell ), the Constitutional Court considered a municipality’s failure to develop a
policy addressing temporary emergency accommodation, in dealing with a

3 Port Elizabeth Municipality v Various Occupiers [2004] ZACC 7; 2004 (12) BCLR 1288 (CC); 2005
(1) SA 217 (CC) from para 8.
4 Charnell Commando and Others v City of Cape Town and Another [2024] ZACC 27 ; 2025 (13)
BCLR 248 (CC) para 84.

8
homelessness crisis. The municipality instead applied a housing plan, intended as a
long-term solution. The majority judgment, following City of Johannesburg v Blue
Moonlight Properties ,5 held:
‘I acknowledge that the City operates within finite resources and must make difficult
decisions about how to allocate those resources most effectively to meet the needs
of its diverse population. However, a lack of resources cannot be accepted as an
excuse in the present circumstances, because that is simply not the reasoning
behind its failure to prioritise emergency housing. The availability of resources is
evident. The City cannot hide behind the argument that it is providing social housing
in the inner city by disregarding its crucial responsibilities in relation to emergency
housing. Those whose needs are most urgent and whose ability to enjoy all rights is
most in peril, must not be ignored. The City’s commitment to long -term social
housing plans should not come at the expense of addressing urgent concerns. This
is particularly the case when one considers the applicable waiting lists prevalent in
the applications for state -subsidised housing and the policies against queue -jumping.
The right of access to adequate housing, especially in emergency situations, is a
fundamental human right that demands immediate attention. This Court cannot
ignore the City’s failure to progressively realise its constitutional obligation in terms of
section 26 as far as emergency housing is concerned. ’

[14] The courts are empowered to exercise a broad discretion, to ensure that the
evictions are conducted in a just and equitable manner. In determining what is just
and equitable, a court cannot ignore a possible breach of other constitutional rights,
including socio -economic rights . As submitted by the ICJ, South Africa ratified the
United Nation’s International Covenant on Economic, Social and Cultural Rights
(ICESCR) on 12 January 2015 , to deepen the enforcement of socio -economic rights
in our Bill of Rights. In this regard, s 39(1) of the Constitution provides that the courts
must consider international law, and s 39(2) provides that when interpreting
legislation, the courts must promote the spirit, purport and objects of the Bill of
Rights .

5 City of Johannesburg v Blue Moonlight Properties 39 (Pty) Ltd and Another (CC) [2011] ZACC 33;
2012 (2) BCLR 150 (CC); 2012 (2) SA 104 (CC) (1 December 2011) . In this case, the Court identified
the obligation to plan to provide housing in instances of emergency. Thus, it developed jurisprudence
on the right to alternative accommodation as a shield against homelessness in addition to other
existing housing programs.
9

[15] The issue for determination is whether a court ordering an eviction under
s 4(7) of the PIE Act must , as part of just and equitable enquiry, consider an
occupier’s ‘right to earn a living’. As mentioned, the City considers the Occupiers’
activities unlawful, as according to it, the Occupiers conduct a waste recycle
business and are therefore involved in a ‘commercial interest’ activity which, it
submit s, falls outside the purview of s 4(7) of the PIE Act. On the other hand, the
Occupiers characterised their activity as collect ing, sort ing and storing material
extracted from waste, to sell it to recycling companies.

[16] However, the City’s view is contradicted in a letter dated 26 September 2022,
from the City’s own attorneys, addressed to Seri Law Clinic representing the
Occupiers. Paragraphs 3.1 and 3.2 of that letter state:
‘The City has no interest in encroaching on your client’s ability to earn a living,
however the City is not obligated by any statute or policy to provide Temporary
Emergency Accommodation (TEA) that would enable the continuation of your clients
recycling activities .
The City has endeavoured (as an indulgence to your clients) to find TEA that would
cater for your client’s needs. In this respect, and coincidentally, erf 1[...] K[...] S[...] is
situated next to a recycling facility .’ (Own emphasis.)

[17] Recycling is defined by s 1 of the National Environmental Management:
Waste Act 59 of 2008 (the Waste Act) as ‘a process where waste is reclaimed for
further use, which process involves the separation of waste from a waste stream for
further use and the processing of that separated material as a product or raw
material’. The organs of State in all spheres of government are enjoined to
implement the provisions of the Waste Act, including taking uniform measures that
seek to reduce the amount of waste generated by business or domestic entities.

[18] The activities of waste pickers are described in the expert report filed by
Dr Samson ,6 in which he states:

6Volume 5, p 817 of the record.
10
‘Waste picking is prevalent in unequal societies, where a person is sufficiently
wealthy to throw away used commodities that retain value and other residents being
so poor that they are willing to go through their waste to generate a relatively small
income to support themselves and their families.
Waste pickers perform several stages of work before they sell materials they have
salvaged. These include waking early (often by 4 am); travelling by foot (most
frequently with a trolley) to high income suburbs; salvaging materials from bins;
travelling home by foot, this time with a trolley that can carry up to 200 kgs of
recyclables. When they are not salvaging, the waste pickers must then classify the
recyclables into different categories, do rudimentary cleaning of the materials,
prepare the materials for sale, and then transport the materials, again by foot, to sell
to buyback centres or another kind of buyer.
Waste pickers’ incomes are low, as they are currently only paid for the sale of the
recyclables and not for their services. Prices are so low as this is the bottom level of
the global recycling value chain and many actors seek to extract profits before the
final sale of the materials for recycling.’

[19] It is clear that we are here dealing with the collection , sorting and storing of
recyclable material at K[...] S[...] , and not recycling in the sense of commercial
interests, as characterised by the City. Waste picking occurs at different levels,
including instances where people ordinarily produce waste while cleaning their
homes . The waste is often separated from re -usable materials, before its disposal at
municipal dump sites.

Section 4(7) of the PIE Act and commercial interests.
[20] I turn now to the City’s submission, which is two -pronged. First, that the right
to work amounts to a commercial interest, which is not protected by the PIE Act. For
this contention, the City relied on Turnover Trading 191 (Pty) Ltd v Moshela and
Others7 (Turnover ). There, it was held that an unlawful occupier is not entitled to
resist eviction on the basis that the business undertaking conducted on another’s
property, is the source of their livelihood.


7 Turnover Trading 191 (Pty) Ltd v Moshela and Others [2020] ZAGPPHC 240 para 33.
11
[21] The present case is distinguishable from Turnover . First, in that case, the
occupier resisted eviction on the basis that he wished to continue conducting
business on the property. In the present case, the Occupiers are not resisting
eviction. They join issue with the relocation to a place where they would not be able
to earn a living at. Second, in this case, as noted by the high court, there are
children, as well as households headed by women – two vulnerable groups in
society specifically mentioned in s 4(7) of the PIE Act. In Turnover , the high court
judgment specifically records that the question of children did not arise. Therefore,
the City’s reliance on Turnover as authority prohibiting sorting and storing of
recyclable material, is inapposite.

[22] What is more, both this Court and the Constitutional Court have recognised
that the right of Occupiers to earn a living is a relevant factor to be considered by a
court in terms of s 4(7) of the PIE Act. For example, in City of Johannesburg v Rand
Properties (Pty) Ltd ,8 this Court acknowledged the link between the location of
residence and employment opportunities. The Court stated as follows: ‘ Obviously,
the State would be failing in its duty if it were to ignore or fail to give due regard to
the relationship between location of residence and the place where persons earn or
try to earn their living. ’

[23] This was confirmed by the Constitutional Court in Residents of Joe Slovo
Community, Western Cape v Thubelisha Homes and Others9 , thus:
‘Some of the reasons advanced by the residents for refusing to relocate to the TRUs
in Delft are a lack of schools and other amenities and a lack of employment . What
must be stressed here is that relocation is necessary to develop Joe Slovo so that
decent housing can be built there. This will benefit the residents. Moreover, the
Constitution does not guarantee a person a right to housing at government expense
at the locality of his or her choice. Locality is determined by a number of factors
including the availability of land. However, in deciding on the locality, the government

8 City of Johannesburg v Rand Properties (Pty) Ltd [2007] ZASCA 25; [2007] 2 All SA 459 (SCA);
2007 (6) SA 417 (SCA); 2007 (6) BCLR 643 (SCA) para 44 .
9 Residents of Joe Slovo Community, Western Cape v Thubelisha Homes and Others (Centre on
Housing Rights and Evictions and Another, as Amici Curiae) [2009] ZACC 16; 2009 (9) BCLR 847
(CC); 2010 (3) SA 454 (CC) para 254.
12
must have regard to the relationship between the location of residents and their
places of employment .’ (Own emphasis.)

[24] In Dladla v City of Johannesburg10 the Constitutional Court considered
conditions the City had imposed on occupiers whom it had granted temporary
accommodation. Those were that: (a) the occupiers should be out of the
accommodation between 08h00 and 17h30 every day and return by 20h00; (b) men
and women were prohibited from living together through the provision of single -sex
dormitories; (c) children were separated from their caregiver depending on their age.
The Constitutional Court declared these unconstitutional. It defined the State’s duty
to provide temporary accommodation in the following terms:
‘Temporary accommodation of necessity entails more than just providing a roof and
four walls; it must include all that is reasonably appurtenant to making the temporary
accommodation adequate. The provision of housing entails not only the delivery of a
building or tent. The conditions the state attaches to the accommodation are part of
its provision. Therefore, any rules the Shelter implemented to regulate the conduct of
its inhabitants necessarily informed the adequacy of the housing it was providing. It
cannot be that the provision of temporary accommodation implicates section 26(2)
while rules designed to fulfil that provision do not.’11

[25] As mentioned, in this Court, the City first contended that ‘ the waste recycling
activity as conducted by the Occupiers, is [per se] unlawful .’ However, counsel for
the City could not point to any authority for this proposition . The debate veered to the
question whether the sorting and storing of material extracted from waste, is
prohibited by the municipal zoning by -laws. It was submitted on behalf of the City
that K[...] S[...] was zoned ‘special’, even though in the City’s heads of argument it is
designated as a residential area. T o clarify this aspect, the parties were directed to
submit the by -law on the zoning of the land to which the Occupiers are to be
relocated, including further submissions on that issue . Both the City and the
Occupiers complied, as directed.


10 Dladla and Another v City of Johannesburg and Others [2017] ZACC 42; 2018 (2) BCLR 119 (CC);
2018 (2) SA 327 (CC) .

11 Ibid para 57.
13
[26] Attached to the City’s further submissions, were the Johannesburg Land Use
Scheme, 2018 (the scheme) and a copy of the Zoning Certificate for Erf 1[...] K[...]
S[...]. The City submits that K[...] S[...] is zoned ‘Special Use’ and the Zoning
Certificate has an annexure which indicates that K[...] S[...] shall be used solely for
public road.12 Considering the scheme and the absence of a prohibition policy
consistent with the Waste Act, there is no support for the City’s contention,
concerning the alleged unlawfulness of the Occupiers’ waste picking, based on the
municipal zoning.

[27] Any municipal zoning which involves human activity , such as business,
industrial, residence, agriculture or special zoning, will undoubtedly produce waste,
whose disposal must be managed in terms of the environmental laws. The City failed
to refer to any law or policy which prohibits waste collection, sorting and storing in
any specified area. The Waste Act, the Regulations, by -laws or policy documents
that deal with waste management were not referred to nor attached. No case was
made out which demonstrate s any breach, or potential breach of any legal
provisions. On the contrary, the Waste Act and its Regulations encourages waste
collection as part of the prevention of environmental degradation.

[28] The high court conducted an inspection in loco at the property. The note of
the inspection indicates that there are communal areas with seating, which is kept
neat and tidy. It has well-maintained vegetable gardens and the waste is stored in
‘several rows of neatly sorted recyclable waste, contained in industrial sized bags.’13
The material transported to the Occupiers’ shacks to later sell to recycling
companies is not the waste, but the extracted recyclable materials of the waste.

[29] The case of the Occupiers, supported by the ICJ, is grounded on the
occupiers’ right to dignity, finds expression within the context of socio -economic
rights. The Occupiers submit, on authority of the decision in Dladla that the City must
act reasonably in giving effect to the rights in s 26 (3) of the Constitution, with
reference to socio -economic rights, to protect the dignity of the Occupiers. This

12 The City has also attached the copies of Zoning Certificates of Portions 46 and 51, zoned as
‘agriculture’ and whose relevance to this case is not explained.
13 Volume 10 p 1940, para 5.
14
approach is also supported by the majority in Charnell ,14 where the Constitutional
Court stated thus:
‘In determining if a set of measures are “reasonable”, the measures ought also to be
scrutinised within their social, economic and historical context. A housing programme
must be balanced, consider all sections of society, be flexible, and be able to
reasonably respond progressively to housing crises and short, medium and long -
term needs. To be reasonable, there must be sufficient weight towards the most
needy and vulnerable, so that they can live in conditions of dignity, equality and
freedom guaranteed by the Bill of Rights. The state will be failing in its constitutional
duties unless it takes reasonable steps towards addressing the needs of the most
vulnerable groups.’
[30] The minority judgment in Charnell15 agree s with the majority judgment on the
role of socio -economic rights in giving effect to the right to dignity when dealing with
socio -economic rights, as follows:
‘Socio -economic rights in the South African Constitution have two important
foundations. The first is universalistic in nature and rooted in the notion that every
individual is entitled to be treated with dignity and, as such, must be provided with
the necessary conditions for living a life of dignity. That idea has been behind the
recognition of these rights at the international level in the Universal Declaration of
Human Rights and enshrined in the binding ICESCR. South Africa signed the
ICESCR on 3 October 1994 and ratified it on 12 January 2015: that change in the
legal status of the ICESCR is an important development for this Court to grapple
with.
….

This case implicates both these foundations of a central socio -economic right: the
right to have access to adequate housing enshrined in section 26 of the Constitution.
The B[...] residents are facing eviction and potential homelessness. The duty on the
state to ensure dignified treatment of persons facing eviction and to be provided with
alternative accommodation has been established by legislation – in the form of the
PIE Act – and by this Court. This is also a community that, against all odds, survived

14 Charnell Commando and Others v City of Cape Town and Another [2024] ZACC 27 ; 2025 (13)
BCLR 248 (CC) para 73.
15 Per Bilchitz AJ with Dodson AJ concurring at paras 117 and 119.
15
in inner city Cape Town against a sustained onslaught of forced removals and the
attempted banishment of people classified by the apartheid government as Black or
Coloured from this area in pursuance of spatial apartheid in terms of the various
iterations of the Group Areas Act. To allow their removal from that area would
consolidate the legacy of apartheid rather than undermine it.’ (Footnotes excluded)

[31] In this regard, t he CESCR General Comment No. 4 (the General Comment) is
important. It concerns the right to adequate housing as provided in article 11(1) of
the CESCR,16 and recognises the indivisibility, interdependence and interrelatedness
of human rights.17 One of the defining features of what constitutes adequate housing
in the General Comment is the location, in respect of which the General Comment
states:
‘Adequate housing must be in a location which allows access to employment
options, health -care services, schools, childcare centres and other social facilities.
This is true both in large cities and in rural areas where the temporal and financial
costs of getting to and from the place of work can place excessive demands upon
the budgets of poor households.’18

[32] This principle was confirmed by the C onstitutional Court in Dladla as stated in
paragraph 24 of this judgment. The City in the present case acted unreasonably by
seeking to subject the relocation of the Occupiers to a condition that prevents the
latter from earning a living at the temporary emergency accommodation. This
condition fails to recognise the principle that human rights are indivisible,
interdependent and interrelated.

[33] First, the City misconstrued the conduct of the Occupiers as recyclers, when
in effect, they are reclaimers who collect and sell waste material to recyclers for re -
use. Second, the City sought to rely on the municipal zoning as prohibiting the
sorting and storing of waste material, when it does not do so. Third, the City’s

16 International Covenant on Economic, Social and Cultural Rights, often referred to as second
generation rights or group rights.
17 Vienna Declaration and Programme of Action adopted on 25 June 1993 at the Second World
Conference on Human Rights.
18 Ibid at 4.
16
condition is not supported by any law or policy and is thus arbitrary, irrational and
unreasonable. In the circumstances, the appeal must fail.

[34] Since the terms of the high court order concerning the envisaged relocation
dates are no longer capable of implementation due to the lapse of time as a result of
the appeal, it is necessary and appropriate for this Court to intervene. Consequently,
the high court order must be dismissed. The City has been unsuccessful, in terms of
the Biowatch principle19 and should accordingly be ordered to pay the costs.







[35] The following order shall issue:
1 Paragraph 2(b) of the high court’s order is amended and the City of
Johannesburg Metropolitan Municipality is directed to provide temporary emergency
accommodation for the first to the seventy -first Occupiers of the farm Randjesfontein
number 4[...], as specified in that paragraph, within sixty (60) days of the date of this
Court’s order .
2 Save as aforesaid, the appeal is dismissed with costs, including costs of two
counsel where so employed .




___________________
S P MOTHLE
JUDGE OF APPEAL

19Biowatch Trust v Registrar Genetic Resources and Others [2009] ZACC 14; 2009 (6) SA 232 (CC);
2009 (10) BCLR 1014 (CC).
17
Appearances:

For appellant s: C Georgiadies (with him N Mahlangu)
Instructed by: BM Kolisi Inc., Johannesburg
Phatshoane Henny Attorneys, Bloemfontein

For 1st respondent : I de Vos (with her O Mohlasedi)
Instructed by: SERI Law Clinic, Johannesburg
RC Ishmail Attorneys, Bloemfontein

For 2nd respondent: WR Mokhare SC (with h im M Majozi)
Instructed by: Werksmans Attorneys , Johannesbur g
Symington de Kock Inc. , Bloemfontein

For Amicus Curiae: A de Vos SC
Instructed by: Lawyers for Human Rights, Pretoria
Webbers, Bloemfontein.