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[2011] ZACC 33
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City of Johannesburg Metropolitan Municipality 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)

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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 37/11
[2011] ZACC 33
In the matter between:
CITY OF JOHANNESBURG METROPOLITAN MUNICIPALITY
….......
Applicant
and
BLUE MOONLIGHT PROPERTIES 39 (PTY) LTD
….....................
First Respondent
OCCUPIERS OF SARATOGA AVENUE
….................................
Second
Respondent
and
LAWYERS FOR HUMAN RIGHTS
…..................................................
Amicus
Curiae
Heard on : 11 August 2011
Decided on : 1 December 2011
JUDGMENT
VAN DER WESTHUIZEN J (Moseneke DCJ, Cameron J, Froneman J, Jafta J,
Khampepe J, Mogoeng J, Nkabinde J, Skweyiya J and Yacoob
J
concurring):
Introduction
This
matter concerns the fate of 86 people (Occupiers), who are poor and
unlawfully occupy a property called “Saratoga
Avenue”
in Berea in the City of Johannesburg (property). The property
comprises old and dilapidated commercial premises
with office
space, a factory building and garages. The case deals with the
rights of the owner of the property, Blue Moonlight
Properties 39
(Pty) Ltd (Blue Moonlight) and with the obligation of the City of
Johannesburg Metropolitan Municipality (City)
to provide housing
for the Occupiers if they are evicted. Ultimately we must decide
whether the eviction of the Occupiers is
just and equitable.
Seventeen
years into our democracy, a dignified existence for all in South
Africa has not yet been achieved. The quest for a
roof over one’s
head often lies at the heart of our constitutional, legal,
political and economic discourse on how to
bring about social
justice within a stable constitutional democracy. In view of
prevailing socio-economic conditions, this
is understandable. An
estimated 423 249 households in Johannesburg alone are, for
example, without adequate housing.
1
Approximately 1,8 million households in the country were living in
informal housing by 2001.
2
The present number may be higher.
The
practical questions to be answered in this case are whether the
Occupiers must be evicted to allow the owner to fully exercise
its
rights regarding its property and, if so, whether their eviction
must be linked to an order that the City provide them
with
accommodation. The City’s position is that it is neither
obliged nor able to provide accommodation in these circumstances.

The owner wishes to exercise its right to develop its property and
wants no part in the dispute about the City’s
responsibilities
or the plight of the Occupiers. And the Occupiers
do not want to end up homeless on the street. All parties rely on
the Constitution,
statutory law giving effect to the Constitution
and judgments of this Court.
The City applies for leave to appeal against a judgment of the
Supreme Court of Appeal.
3
That Court dismissed an appeal against a judgment of the South
Gauteng High Court, Johannesburg
4
(High Court). Blue Moonlight and the Occupiers are the respondents.
The Occupiers also apply for leave to cross-appeal, should
leave to
appeal be granted to the City. Lawyers for Human Rights, a South
African non-profit organisation that provides free
legal services,
was admitted as a friend of the Court (amicus curiae).
This judgment first provides some background on the factual and
litigation history of this matter. Thereafter an overview of
the
applicable constitutional, legal and policy framework is given.
Then an analysis based on the findings of the Supreme Court
of
Appeal and the submissions of the parties to this Court follows.
The interpretation of Chapter 12 of the National Housing
Code
5
(Chapter 12) and the constitutionality of the City’s housing
policy as set out in its 2010 Housing Report (Housing Report)
are
at the heart of the matter.
6
The question of the resources available to the City has also been
raised. This case does not deal directly with a programme,
or
measures, to realise progressively the right of access to adequate
housing.
7
But the City’s obligations with regard to this right and the
implications of the constitutional protection against arbitrary

deprivation of property
8
are of overall import to the questions of eviction and provision of
temporary accommodation for emergency reasons. Finally,
a
conclusion is reached and a remedy fashioned.
Factual and litigation background
The Occupiers comprise 81 adults and five children.
9
One child is a person with disability, two adults are pensioners
and a number of the households are headed by women. The average

income per household is R940 per month. Many of the Occupiers send
a portion of their income to family members in other parts
of the
country. Most of them do not have formal employment and make their
living in the informal sector in the central business
district. The
location of the building is crucial to the Occupiers’ income.
The majority of them say that they would
not be able to afford the
transport costs necessitated by living elsewhere. The Occupiers,
relying on expert evidence, also
state that if they were to be
evicted, they would have to sleep on the street as they would not
be able to find affordable
accommodation.
All
the Occupiers have resided at the property for more than six
months; several of them have lived there for many years. One
had
resided there since 1976, but passed away during these proceedings;
another has resided at the property since 1990. It
is common cause
that their occupation is unlawful. It was once lawful though. They
lived on the property with the permission
of a company which
operated from the property until 1999; they then paid rent to a
caretaker who ostensibly acted on behalf
of the owner until 2000;
and they subsequently paid rent to two different property letting
firms until 2004.
In
2004 Blue Moonlight purchased the property with the hope of
redeveloping it. The Occupiers allege that they paid rent to
an
individual and into two bank accounts until the end of 2005, but
Blue Moonlight contends that it never received payments.
The
condition of the property has deteriorated over the years. In 2000
and 2002 – while their occupation was presumably
still lawful
– the Occupiers laid two complaints with the Housing
Tribunal, but nothing came of them. In 2005 the City
issued two
notices warning Blue Moonlight to remedy the fire safety and the
health and sanitation conditions on the property.
It is not
disputed that the current conditions are abysmal.
On
28 June 2005 Blue Moonlight posted a notice to vacate the property
by 31 July 2005. This notice also purported to cancel
any lease
that may have existed. Another notice, to the same effect, was
posted on 6 January 2006 with a deadline of 5 February
2006.
On
25 May 2006 Blue Moonlight commenced eviction proceedings in the
High Court under the Prevention of Illegal Eviction from
and
Unlawful Occupation of Land Act
10
(PIE). The Occupiers opposed the eviction on the basis that they
would be rendered homeless. They applied to join the City
to the
proceedings by reason of its constitutional and statutory duties in
relation to housing. The City did not oppose and
was joined by an
order of the High Court dated 23 October 2007.
On 4
February 2010 the High Court ordered eviction by 31 March 2010. The
City was ordered to pay Blue Moonlight an amount equivalent
to fair
and reasonable monthly rental from 1 July 2009 until the eviction
date. The Court found the City’s housing policy

unconstitutional to the extent that it discriminates against people
in desperate need of housing who are subject to eviction
from land
by private landowners. The City was ordered to remedy this defect
and to report under oath to the Court by 12 March
2010 the steps
taken to do so. The City was further ordered to provide the
Occupiers with temporary accommodation, or to pay
R850 per month to
each Occupier or household head until the outcome of the structural
interdict was finally determined.
Before the Supreme Court of Appeal the City successfully applied
for the admission of new evidence in the form of the updated

Housing Report, because of the time lapsed since the High Court
proceedings. On 30 March 2011 the Supreme Court of Appeal set
aside
the High Court’s structural interdict. The compensation order
awarded in favour of Blue Moonlight was also set
aside.
11
The Supreme Court of Appeal upheld the eviction order and ordered
the Occupiers to vacate the premises by 1 June 2011. It declared

the City’s housing policy unconstitutional to the extent that
it excluded the Occupiers from consideration for temporary
housing.
It also required the City to provide the Occupiers with “temporary
emergency accommodation”.
In
this Court the City applies for leave to appeal against those parts
of the Supreme Court of Appeal’s order that declared
its
housing policy unconstitutional and ordered it to provide
accommodation to the Occupiers. The Occupiers oppose the City’s

application for leave to appeal. They also apply for conditional
leave to cross-appeal, seeking that any order of eviction
be linked
to the provision of suitable alternative accommodation by the City
and that a structural interdict be granted against
the City to
ensure that it takes appropriate steps to remedy its housing
policy. Blue Moonlight filed a notice to abide, but
made
submissions to this Court relating to its rights in relation to the
property.
Leave to appeal
The
applications for leave to appeal and to cross-appeal raise
constitutional issues relating to the interpretation of PIE,
the
constitutionality of the City’s policy and the roles of the
various spheres of government in proceedings regarding
evictions
and housing. The appeal and cross-appeal bear reasonable prospects
of success. It is in the interests of justice
to grant leave to
appeal and to cross-appeal.
Constitutional and legal framework
The issues to be determined require a consideration of rights
enshrined in our Constitution, which may compete in circumstances

where homelessness is a likely result of eviction, as well as
constitutional allocation of powers and functions to municipalities

and the other spheres of government. Policy has been formulated and
statutes enacted to create a scheme for the protection
and
realisation of these rights. It is necessary to set out briefly the
constitutional, legislative and policy framework, as
a basis for
the analysis that follows, with reference to the jurisprudence of
this Court and other courts.
Section 25(1) of the Constitution, on which Blue Moonlight relies,
states: “No one may be deprived of property except
in terms
of law of general application, and no law may permit arbitrary
deprivation of property.”
The right to have access to adequate housing is protected in
section 26:
“
(1)
Everyone has the right to have access to adequate housing.
(2) The state must take
reasonable legislative and other measures, within its available
resources, to achieve the progressive
realisation of this right.
(3) No one may be evicted from
their home, or have their home demolished, without an order of court
made after considering all
the relevant circumstances. No
legislation may permit arbitrary evictions.”
12
The Occupiers anchor their case in section 26. However, they also
engage the right to equality – protected in section
9 of the
Constitution – and specifically section 9(1), which provides
that “[e]veryone is equal before the law
and has the right to
equal protection and benefit of the law.” Blue Moonlight also
relies on this provision, as well
as on the right of access to
courts in section 34.
13
As to the state’s responsibility to legislate, Part A of
Schedule 4 of the Constitution lists housing as one of the
functional areas of concurrent national and provincial legislative
competence.
The
municipality’s role in relation to housing must be determined
by reference to the Constitution and various enactments.
Chapter 7 of the Constitution sets out the functions and powers of
local government. Section 152 states the objects of local

government and requires municipalities to strive to achieve these
objects.
14
Section 153(a) provides that a municipality must “structure
and manage its administration and budgeting and planning
processes
to give priority to the basic needs of the community, and to
promote the social and economic development of the community”.

Section 156 authorises municipalities to carry out their
functions.
15
These provisions must be read with Chapter 3 of the Constitution.
It enshrines the principle of co-operative government.
16
The principal instruments enacted to give effect to the
constitutional obligations of the various organs of state in
relation
to housing are the Housing Act
17
and the National Housing Code. The Housing Act expressly gives
effect to the Constitution. Its long title states that it aims

“[t]o provide for the facilitation of a sustainable housing
development process” and “to define the functions
of
national, provincial and local governments in respect of housing
development”. The preamble recognises that the Act
gives
effect to section 26 of the Constitution and specifically mentions
the right to have access to adequate housing.
18
Section 9 obliges municipalities, as part of the process of
integrated development planning, to take all reasonable and

necessary steps within the framework of national and provincial
housing legislation and policy to ensure, amongst other things,

that the inhabitants of their respective areas have access to
adequate housing.
19
These functions must be considered with reference to the functions
and responsibilities of municipalities set out in the Local

Government: Municipal Systems Act
20
(Municipal Systems Act). Section 1 defines “basic municipal
services” as “a municipal service that is necessary
to
ensure an acceptable and reasonable quality of life and, if not
provided, would endanger public health or safety or the

environment”. Section 4 provides for the rights and duties of
municipal councils.
21
According to section 8(2) “[a] municipality has the right to
do anything reasonably necessary for, or incidental to,
the
effective performance of its functions and the exercise of its
powers.” Section 11(3) provides for the exercise of

legislative and executive authority by municipalities through a
number of means.
22
Finally, section 23(1) places an obligation on municipalities to
“undertake developmentally-oriented planning”
in order
to ensure that they achieve the objects of local government in
section 152 of the Constitution, give effect to their
developmental
duties in section 153 of the Constitution, and “together with
other organs of state contribute to the progressive
realisation of
the fundamental rights contained in sections . . . 25 [and] 26 . .
. of the Constitution.” Section 73(1)
places a general duty
on municipalities to give effect to the provisions of the
Constitution and to “give priority to
the basic needs of the
local community; promote the development of the local community;
and ensure that all members of the
local community have access to
at least the minimum level of basic services.”
The National Housing Code was enacted under section 4 of the
Housing Act. It contains the national housing policy and sets
out
the principles, guidelines and standards that apply to the various
programmes effected by the state in relation to housing.
Chapter 12
of the Code was introduced after the decision of this Court in
Grootboom
.
23
It is entitled “Housing assistance in emergency housing
circumstances” and provides for assistance to people who
find
themselves in a housing emergency for reasons beyond their
control.
24
Chapter 12 is incorporated into the City’s housing policy set
out in the Housing Report filed in the Supreme Court of
Appeal. The
Housing Report sets out the City’s overall goals and
describes four housing programmes: permanent accommodation;
housing
under the Reconstruction and Development Programme; temporary
accommodation (which is also referred to by the City
as “temporary
accommodation as decant”); and emergency accommodation. The
emergency accommodation programme is
intended to provide for crises
as envisioned by Chapter 12.
25
Evictions from land are dealt with under PIE. Section 4, concerning
eviction of unlawful occupiers by an owner or a person
in charge of
land, provides that courts may only grant an order for eviction if
it is just and equitable to do so, after considering
all the
relevant circumstances. Where an unlawful occupier has occupied the
land for more than six months, those circumstances
include the
availability of alternative land where the occupier may be
relocated.
26
A just and equitable date for eviction must be determined.
Eviction and PIE
It
is common cause that Blue Moonlight is the owner, that the
Occupiers’ occupation is unlawful and that they have occupied

the property for more than six months. The High Court and the
Supreme of Appeal held that Blue Moonlight had complied with
the
requirements of PIE and was entitled to an eviction. The crucial
question before this Court is therefore whether it is
just and
equitable to evict the Occupiers, considering all the
circumstances, including the availability of other land, as
well as
the date on which the eviction must take place.
Before
this Court, Blue Moonlight submits that an eviction may be delayed
on equitable grounds, but that an indefinite delay
would amount to
an arbitrary deprivation of property in violation of section 25(1)
of the Constitution. The provisions of PIE
are not designed to
allow for the expropriation of land.
27
A private owner has no obligation to provide free housing.
The
Occupiers submit that it would not be just and equitable to grant
an eviction order, if the order would result in homelessness.
28
The City notes that the eviction is sought at the instance of the
property owner, not at its own instance. It also notes that
Blue
Moonlight is entitled to eviction if PIE is complied with, but
emphasises that the City cannot be held responsible for
providing
accommodation to all people who are evicted by private landowners.
In
determining whether the eviction of the Occupiers will be just and
equitable, it is necessary to address—
(a) the rights of the owner in a constitutional and PIE era;
(b) the obligations of the City to provide accommodation;
(c) the sufficiency of the City’s resources;
(d) the constitutionality of the City’s emergency housing
policy; and
(e) an appropriate order to facilitate justice and equity in the
light of the conclusions on the earlier issues.
The South African constitutional order recognises the social and
historical context of property and related rights.
29
The protection against arbitrary deprivation of property in section
25 of the Constitution is balanced by the right of access
to
adequate housing in section 26(1) and the right not to be evicted
arbitrarily from one’s home in section 26(3).
30
This Court noted in
FNB
:
“
The
purpose of section 25 has to be seen both as protecting existing
private property rights as well as serving the public interest,

mainly in the sphere of land reform but not limited thereto, and
also as striking a proportionate balance between these two
functions.”
31
(Footnote omitted.)
Historical
context is relevant to one’s understanding of the
constitutional protection against arbitrary deprivation of
property
and to access to adequate housing.
32
Apartheid legislation undermined both the right of access to
adequate housing and the right to property. Section 25 prohibits

arbitrary deprivation of property,
33
but also addresses the need to redress the grossly unequal social
conditions.
34
Section 26 highlights the transformative vision of the
Constitution.
35
PIE
was adopted with the manifest objective of overcoming past abuses
like the displacement and relocation of people. It acknowledges

their quest for homes, while recognising that no one may be
deprived arbitrarily of property. The preamble quotes sections

25(1) and 26(3) of the Constitution.
36
In
PE Municipality
it was stated that the court is required
“to balance out and reconcile the opposed claims in as just a
manner as possible,
taking account of all of the interests involved
and the specific factors relevant in each particular case.”
37
Unlawful occupation results in a deprivation of property under
section 25(1). Deprivation might however pass constitutional
muster
by virtue of being mandated by law of general application and if
not arbitrary.
38
Therefore PIE allows for eviction of unlawful occupiers only when
it is just and equitable.
This
Court has also recognised the concept of ubuntu as underlying the
Constitution and PIE and that it is relevant to their

interpretation. In
PE Municipality
it was stated:
“
Thus,
PIE expressly requires the court to infuse elements of grace and
compassion into the formal structures of the law. It is
called upon
to balance competing interests in a principled way and to promote
the constitutional vision of a caring society based
on good
neighbourliness and shared concern. The Constitution and PIE confirm
that we are not islands unto ourselves. The spirit
of
ubuntu
,
part of the deep cultural heritage of the majority of the
population, suffuses the whole constitutional order. It combines
individual rights with a communitarian philosophy. It is a unifying
motif of the Bill of Rights, which is nothing if not a structured,

institutionalised and operational declaration in our evolving new
society of the need for human interdependence, respect and

concern.”
39
(Footnote omitted.)
A
court must consider an open list of factors in the determination of
what is just and equitable.
40
The relevant factors to be taken into account in this case are the
following. The Occupiers have been in occupation for more
than six
months. Some of them have occupied the property for a long time.
The occupation was once lawful. Blue Moonlight was
aware of the
Occupiers when it bought the property. Eviction of the Occupiers
will render them homeless. There is no competing
risk of
homelessness on the part of Blue Moonlight, as there might be in
circumstances where eviction is sought to enable a
family to move
into a home.
It
could reasonably be expected that when land is purchased for
commercial purposes the owner, who is aware of the presence
of
occupiers over a long time, must consider the possibility of having
to endure the occupation for some time. Of course a
property owner
cannot be expected to provide free housing for the homeless on its
property for an indefinite period. But in
certain circumstances an
owner may have to be somewhat patient, and accept that the right to
occupation may be temporarily
restricted, as Blue Moonlight’s
situation in this case has already illustrated. An owner’s
right to use and enjoy
property at common law can be limited in the
process of the justice and equity enquiry mandated by PIE.
In
order to conclude whether eviction by a particular date would in
the circumstances of this case be just and equitable, it
is
mandatory to consider “whether land has been made available
or can reasonably be made available”.
41
The City’s obligations are material to this determination.
The City’s obligations; non-joinder of the other spheres of
government
The duty regarding housing in section 26 of the Constitution falls
on all three spheres of government – local, provincial
and
national – which are obliged to co-operate.
42
In
Grootboom
this Court made it clear that “a
co-ordinated State housing program must be a comprehensive one
determined by all three
spheres of government in consultation with
each other . . . Each sphere of government must accept
responsibility for the implementation
of particular parts of the
program”.
43
In
this case, the national and provincial spheres of government are
not before this Court.
44
An application by the City to join the provincial government as a
party in the proceedings was refused by the High Court. The
Supreme
Court of Appeal noted that the City was “aggrieved”
about this but found that, although generally speaking
the
provincial government has an important role to play, its joinder
was not necessary in these proceedings because only the
City’s
obligations were at issue and the province did not have any direct
and substantial interest in any order that
may have been made.
45
Generally,
a party must be joined in proceedings if it has a direct and
substantial interest in any order the court might make,
or when an
order cannot be effected without prejudicing it.
46
The Rules of this Court require the joinder of an organ of state
responsible for executive, administrative or legislative conduct

that is being constitutionally challenged.
47
This Court has also joined other spheres and organs of state in
cases where they were not responsible for the conduct.
48
In
view of the intertwined responsibilities of the national,
provincial and local spheres of government with regard to housing,

it would generally be preferable for all of them to be involved in
complex legal proceedings regarding eviction and access
to adequate
housing. Indeed, joinder might often be essential and a failure to
join fatal. Whether it is necessary to join
a sphere in legal
proceedings will however depend on the circumstances and nature of
the dispute in every specific case. In
this matter the absence of
the provincial government is not fatal. The obligations and conduct
of the City have to be considered.
The joinder of the City as the
main point of contact with the community is essential.
The
constitutional and legal framework set out in [16] to [29] above
demonstrates that local government has an important role
to play in
the provision of housing.
49
The City does not deny that it has a role to play in this regard.
It submits, however, that its role is a secondary and limited
one,
especially in view of Chapter 12 of the Housing Code.
Chapter 12 of the Housing Code
Chapter 12 provides for assistance to people who find themselves in
need of emergency housing for reasons beyond their control.

Included in the definition of an emergency is the situation where
people are “evicted or threatened with imminent eviction
from
land or from unsafe buildings, or situations where pro-active steps
ought to be taken to forestall such consequences”.
50
It is undisputed that the Occupiers will be rendered homeless by
eviction unless the City provides them with accommodation.
It was
accepted by counsel on behalf of the City that their situation
constitutes an emergency.
Much
of the City’s oral argument in this Court dealt with whether,
on a proper interpretation of Chapter 12, it is entitled
or obliged
to fund emergency accommodation. The City contends that it is
neither entitled nor obliged to do so. It submits
that when its
application to the provincial government for assistance was
refused, the City exhausted its constitutional mandate.
The
City states that the National Housing Code was adopted pursuant to
Grootboom
, which suggests that the responsibility to fund
emergency housing does not lie with local government. Based on
Grootboom
, the City argues that local governments have an
important obligation to ensure that services are provided to the
communities
they govern, that “funding” language was
used only in connection with national government and that local
governments
are allocated certain implementation responsibilities
only in terms of legislation.
51
The
City argues
52
that the functional area of housing appears in Schedule 4A of the
Constitution. Schedules 4B and 5B do not confer on local
government
any function that can be seen to place the onus on it to be the
organ primarily responsible for the fulfilment of
the right of
access to adequate housing. Local government is not primarily
responsible for the achievement of this right. The
Housing Act
requires local governments to act only as a point of delivery. They
are entirely dependent on the national and
provincial governments
and confined to acting within the parameters set in national and
provincial policies.
Grootboom
does not place the primary
responsibility to fulfil the right of access to adequate housing on
local government, but rather
requires local government to respect,
protect and promote this right. As to emergency housing,
Grootboom
requires national government to devolve funds and make
provision for those desperately in need of shelter.
According
to the Occupiers, the City is entitled and obliged to use its own
resources to fund emergency housing under Chapter
12. Application
to the province for funds is a measure of last resort to be taken
when the City lacks the resources to address
the situation. The
Occupiers are supported by the amicus, submitting that the City can
fund housing under Chapter 12 because
of its duties to prioritise
“basic needs” under section 153(a) of the Constitution
and sections 1, 4(2) and 73(1)
of the Municipal Systems Act.
53
It further submits that co-operative government failed in this
case, but the obligations on provincial and national government

under principles of co-operative governance and equitable
allocation of revenue do not exonerate local government from
predicting
and planning for basic services, including under Chapter
12. The amicus argues that Chapter 12 draws a rational distinction

between well-resourced municipalities – which are required to
provide emergency housing with their own means if able –
and
under-resourced municipalities, which cannot meet emergency housing
needs from their own resources and are entitled to
provincial
funding.
The
City disagrees and submits that merely because one municipality has
more resources than another does not permit it to deploy
those
resources, because municipalities’ role in the sphere of
housing is secondary and cannot usurp the primary obligations
of
the provincial and national spheres of government.
54
Chapter
12 must be interpreted in light of the relevant constitutional and
statutory framework of which it is a part.
55
For example, section 9 of the Housing Act requires municipalities
to take all reasonable and necessary steps to ensure access
to
adequate housing. Sections 4(1) and 8(2) of the Municipal Systems
Act empower municipalities with a degree of general, financial
and
institutional autonomy to carry out their functions, and section
4(2) places the duty on them to provide for the democratic

governance and efficient provision of services to their
communities.
56
Section 4(2)(j) requires them to “contribute, together with
other organs to state, to the progressive realisation of
the
fundamental rights contained in sections 24, 25, 26, 27 and 29 of
the Constitution.” It would hardly be possible
for the City
to carry out its constitutional and legislative obligations without
being entitled or obliged to fund itself in
the sphere of emergency
housing.
The
City’s interpretation of Chapter 12 is premised on its view
that local government is not primarily responsible for
the
achievement of the right of access to adequate housing. Its
reliance on
Grootboom
is misplaced though. While Yacoob J
described the constitutional distribution of housing roles amongst
the three governmental
spheres in
Grootboom
, he did not
delineate absolute and inflexible divisions of governmental
responsibilities among the three spheres.
57
At
the time of
Grootboom
there was no—
“
express
provision to facilitate access to temporary relief for people who
have no access to land, no roof over their heads, for
people who are
living in intolerable conditions and for people who are in crisis
because of natural disasters such as floods
and fires, or because
their homes are under threat of demolition.”
58
Therefore,
the essential question was—
“
whether
the nationwide housing programme is sufficiently flexible to respond
to those in desperate need in our society and to
cater appropriately
for immediate and short-term requirements.”
59
By
virtue of the glaring gap in the national housing framework this
Court accentuated the need for national government to legislate
and
ultimately fulfil the right of access to adequate housing. Without
a national policy to get the ball rolling from a legislative
and
budgetary perspective, it would be impossible for the other spheres
of government to do anything meaningful. It is in this
light that
this Court in
Grootboom
held:
“
Effective
implementation requires at least adequate budgetary support by
national government. This, in turn, requires recognition
of the
obligation to meet immediate needs in the nationwide housing
program. Recognition of such needs in the nationwide housing
program
requires it to plan, budget and monitor the fulfilment of immediate
needs and the management of crises. This must ensure
that a
significant number of desperate people in need are afforded relief,
though not all of them need receive it immediately.
Such planning
too will require proper co-operation between the different spheres
of government.”
60
The
City’s submission that national or provincial government is
the primary duty-bearer in relation to funding emergency
housing is
cogent only to the extent that, but for the existence of a national
emergency housing policy and budget, the attempt
of a local
authority to fulfil the right of access to adequate housing would
be empty. There is no basis in
Grootboom
for the assertion
that local government is not entitled to self-fund, especially in
the realm of emergency situations in which
it is best situated to
react to, engage with and prospectively plan around the needs of
local communities.
The
City argues that the Supreme Court of Appeal’s finding that
the City was empowered to act outside of the national
housing
policy in the absence of a statutory prohibition violates the
principle of legality. Relying on
Fedsure
,
61
it submits that an organ of state is not authorised to take action
not prohibited by law; it is prohibited from taking action
not so
authorised. The City would have acted
ultra vires
if it met
the Occupiers’ circumstances, as the Supreme Court of Appeal
found it should have done, so the City argues.
This
argument is unpersuasive. In
Fedsure
this Court described
the central features of the principle of legality under the
Constitution:
“
It
seems central to the conception of our constitutional order that the
Legislature and Executive in every sphere are constrained
by the
principle that they may exercise no power and perform no function
beyond that conferred upon them by law. At least in
this sense,
then, the principle of legality is implied within the terms of the
interim Constitution. Whether the principle of
the rule of law has
greater content than the principle of legality is not necessary for
us to decide here. We need merely hold
that fundamental to the
interim Constitution is a principle of legality.”
62
The
Court did not endeavour to determine when a local authority would
be acting outside its legally conferred powers in particular

situations. It stated the importance of legality and
constitutionality. Drawing on the work of Dicey, the Court noted
that
there is “nothing startling in this proposition –
it is a fundamental principle of the rule of law”.
63
This axiomatic holding cannot serve to show that the City would act
unlawfully if it accommodates the Occupiers’ emergency

situation.
The
City relies on its Housing Report, the document in which its policy
is contained, for its interpretation of Chapter 12.
It submits that
both the Housing Report and Chapter 12 make it clear that local
government’s capacity to provide emergency
accommodation is
directly dependent on funding from the provincial government. The
City’s responsibility is to process
an application to the
province for emergency assistance and to implement the emergency
measure as approved and funded. But
the correct interpretation of
Chapter 12 cannot be based on the Housing Report, as the Housing
Report is itself based on an
interpretation of Chapter 12.
The
City submits that it cannot budget for that which it is unable to
show is a current need. Counsel was adamant that an emergency

situation covered by Chapter 12 is not something which it can
predict, plan and budget for and thus all that is expected of
it is
to deal with an emergency as it arises in an
ad hoc
fashion
by way of an application to the province.
64
Unpredictability is central to an emergency situation and the
City’s only duty and entitlement is to identify emergency

situations and apply to the province for their alleviation.
There
is no unequivocal indication in the wording of Chapter 12 that
local government’s capacity to provide emergency

accommodation is dependent solely on funding by provincial
government. If the City were required always to apply, on an
ad
hoc
basis, to the province to fund emergency situations in
order to be able to act, it would go against the very essence of an

emergency policy. Emergencies cannot be dealt with on the basis of
ad hoc
applications only. Besides truly exceptional or
unforeseen circumstances, the budgetary demands for a number and
measure of
emergency occurrences are at least to some extent
foreseeable, especially with regard to evictions. Predictions can
be made
on the basis of available information. For example, surveys
may serve to establish how many buildings in a municipality are

dilapidated and might give rise to sudden eviction proceedings.
Notwithstanding
the City’s apparently inconsistent stance in respect of the
Occupiers,
65
the conclusion seems inevitable that the City itself believes that
it is entitled and duty-bound to provide for and to fund
at least
those who currently benefit under its policy. Otherwise, it would
have to admit that it is acting
ultra vires
in funding the
accommodation of people presently included in the policy.
The
City refers to specific sections of Chapter 12 to buttress its
argument. For example, it relies on section 12.2.2 which
states
that the City has to account for the funding provided only if the
funds “contributed materially to a future permanent
housing
solution for the beneficiary.” This, it argues, supports the
idea that it has no duty or power to fund emergency
or temporary
housing needs.
However,
other provisions of Chapter 12 are important. Section 12.4.1 states
that municipalities must “[i]nitiate, plan
and formulate
applications for projects relating to emergency housing
situations”. Section 12.6.1(b) states that “[t]he

provision for possible emergency housing needs must be identified
through pro-active planning or in response or reaction to
a request
for assistance from other authorities or the public.” Section
12.6.1(c) states:
“
The
municipality must immediately investigate and assess the identified
need giving due consideration to the following aspects:
. . .
If the situation requires
intervention, and, if so,
whether the municipality can itself
address the situation utilising its own means
.
If the situation requires
immediate or emergency assistance beyond the means of the
municipality, in which case the provincial
housing department must
be notified immediately and be requested to assist”.
(Emphasis added.)
These
provisions indicate a legislative purpose that the City ought to
plan proactively and to budget for emergency situations
in its
yearly application for funds.
Besides
its entitlement to approach the province for assistance, the City
has both the power and the duty to finance its own
emergency
housing scheme. Local government must first consider whether it is
able to address an emergency housing situation
out of its own
means. The right to apply to the province for funds does not
preclude this. The City has a duty to plan and
budget proactively
for situations like that of the Occupiers. This brings the issue of
available resources to the fore.
Resources
The
Supreme Court of Appeal made findings on the issue of resources,
which the City attacks. According to the City, it lacks
the
resources to provide the Occupiers with emergency housing if they
are evicted. It is simply impossible to assist them,
it says.
But
the City’s budget was the product of its incorrect
understanding of Chapter 12. Had the City prepared a budget on
a
proper understanding of Chapter 12, it might have made provision
for emergency housing. It is thus not strictly necessary
to
consider the attack on the factual findings of the Supreme Court of
Appeal. However, it would be quite inappropriate for
a court to
order an organ of state to do something that is impossible, the
more so in a young constitutional democracy. Hence,
the City’s
assertion about a lack of resources deserves consideration.
The
City’s Housing Report states that it is urgently relocating
people from identified dangerous buildings to temporary

accommodation due to the threat to their safety, but that the City
does not have alternative accommodation available to temporarily
or
permanently accommodate those who face homelessness as a result of
eviction by private property owners.
The
Supreme Court of Appeal rejected the City’s submission that
it lacked resources. It observed that the City spoke “in
the
vaguest terms” about the affordability of meeting demands for
housing. It noted that the record showed that the City
had been
operating in a financial surplus for the past year. Furthermore,
the City did not state that it was unable to reallocate
funds or to
meet the temporary housing needs of the Occupiers. Finally, it
observed that the Occupiers sought only temporary
housing, whereas
the City’s affidavits mainly set out its inability to meet
the Occupiers’ permanent housing needs.
This, coupled with
the fact that the City had three years of prior knowledge of the
Occupiers’ circumstances, led the
Court to find that to a
great extent the City had itself to blame for its unpreparedness to
deal with the Occupiers’
plight.
66
In
this Court counsel for the City criticised the Supreme Court of
Appeal’s findings as factually and legally wrong. The
City
submits that it is not obliged to go beyond its available budgeted
resources to secure housing for homeless people. To
do so would
amount to incurring unauthorised expenditure. Resources not
budgeted for are not available.
The
Occupiers put the City’s budgetary projections in its
Integrated Development Plan before the High Court. The City

objected to the projections being used. It pointed out that not all
projections are accurate. A budget surplus was predicted,
but the
City says this projection was incorrect and that it is now in a
budget deficit. Projections are an unreliable source
of
information, because they are simply estimates that may prove to be
inaccurate, the City submits. However, it has not provided

documentation to substantiate its claims of a deficit. The
Occupiers’ calls for it to do so went unanswered.
67
The
City provided information relating specifically to its housing
budget, but did not provide information relating to its budget

situation in general. We do not know exactly what the City’s
overall financial position is. This Court’s determination
of
the reasonableness of measures within available resources cannot be
restricted by budgetary and other decisions that may
well have
resulted from a mistaken understanding of constitutional or
statutory obligations. In other words, it is not good
enough for
the City to state that it has not budgeted for something, if it
should indeed have planned and budgeted for it in
the fulfilment of
its obligations.
Furthermore,
this being an application for leave to appeal against a decision of
the Supreme Court of Appeal, the question is
whether this Court has
been persuaded that the findings of the Supreme Court of Appeal are
wrong, factually or in law, and
should be set aside. I cannot
answer yes. The Supreme Court of Appeal’s finding that the
City has not shown that it is
incapable of meeting the needs of the
Occupiers has to stand.
Constitutional validity of the differentiation in the City’s
policy on emergency housing
It
is now necessary to determine the constitutional validity of the
differentiation in the City’s housing policy. That
policy
distinguishes between those relocated by the City itself and those
evicted by private landowners. I deal with this differentiation

because the City relied on that policy to support its position that
it is not obliged to provide emergency accommodation for
people
evicted by private landowners, whether they are rendered homeless
or not. The High Court and the Supreme Court of Appeal
found the
policy to be unconstitutional.
The policy is set out in the Housing Report the City files when
served with a notice in terms of section 4(2) of PIE. It states

that while the City is taking steps, within its available
resources, to provide access to those in need, it faces challenges

of an existing housing backlog, continuous influx of people into
the City through urbanisation and immigration, illegal land
and
building invasions, unemployment and poverty.
68
The policy’s overall goals are stated as formalising informal
settlements, providing 100 000 housing units by 2011
and
effectively managing the City’s housing stock. These goals
are to be achieved through private sector investment,
stimulation
of a functioning secondary property market in historically
disadvantaged areas and rejuvenation of the inner city
in
collaboration with private and government stakeholders.
69
In relation to temporary or emergency accommodation, the City’s
delivery target for the year commencing 1 July 2010 was
to provide
100 beds (that is one bed per person).
70
The
Housing Report contains separate sections on “temporary
accommodation”
71
and “emergency accommodation”.
72
“Temporary accommodation” is defined as very cheap
housing provided for a maximum of one year. The City uses

designated buildings, listed in the policy,
73
to accommodate affected households while attempting to address
their longer-term needs. These buildings are referred to by
the
City as “temporary accommodation as decant”. The City’s
approach is to engage with communities and, as
far as possible and
within its resources, relocate households to temporary
accommodation from identified “bad buildings”,

described as “unfit for human occupation due
inter alia
to serious fire hazard (they are multi-storey buildings) and/or the
risk caused by unhygienic conditions within such buildings.”
74
However,
the temporary accommodation programme is not available to persons
evicted by private owners. The Housing Report notes
that an average
of 200 eviction proceedings are instituted each month, and states:
“
26 .
. . The City does not currently have alternative accommodation
available to temporarily or permanently accommodate those
who face
homelessness as a result of such eviction or threatened eviction.
All the buildings that have been identified by the
City for purposes
of alternative accommodation can be categorised into one of the
following categories:
26.1 currently occupied;
26.2 have been earmarked and
will be occupied by affected households from other identified
buildings;
26.3 are currently being
converted or refurbished; or
26.4 there is no budget
available to undertake their refurbishment.
27 Where an eviction
application is instituted by a private landowner and it is brought
to the attention of the City that the
matter may be an ‘
emergency
’
as envisaged and defined in Chapter 12 of the National Housing Code,
the procedures described below will apply.”
75
The
City’s housing policy differentiates between those relocated
by the City and those whose eviction is sought by private

landowners. Persons relocated at the instance of the City are
housed in temporary accommodation in one of the buildings made

available by the City for this purpose. Persons evicted by private
landowners are however not so housed.
The “emergency accommodation” programme is outlined in
the Housing Report within the parameters of Chapter 12,
which aims
to assist people who, for reasons beyond their control, find
themselves in an emergency housing situation that they
are unable
to address. The City’s functions, when faced with households
in need of emergency accommodation, are to “[investigate]
and
[assess] whether a particular set of circumstances merits the
submission to Province of an application for assistance under

Chapter 12.”
76
Besides the process of application to the province, the City has
planned for City-owned recreational facilities to be used
in
situations of extreme emergency like natural disasters. The City
has also earmarked specified buildings as part of its emergency

accommodation stock. At the time of the Housing Report, these
buildings were occupied, already earmarked for households to
be
relocated in the future or not ready for occupation.
77
At
the time of the proceedings in the High Court, the City’s
housing policy was reflected in a report filed in early 2009
(2009
Report). The Housing Report was not before that Court. The housing
policy considered by the High Court, therefore, was
slightly
different from the Housing Report under consideration by this Court
in that the former did not contain the Chapter
12 safeguards for
those facing eviction by private landowners. The Reports are
substantially similar, however. The 2009 Report
likewise stated
that the City was focused, “without being obliged to do so,
from its own resources and within its financial
constraints, on the
provision of shelter to occupiers of dangerous buildings, who
qualify as being desperately poor and who
find themselves in a true
crisis situation.”
78
The
Supreme Court of Appeal held that the policy inflexibly and
therefore irrationally excluded from temporary emergency

accommodation those who are evicted by private landowners. This
differentiation violated section 9(1) of the Constitution, which

provides that everyone is equal before the law and has the right to
equal protection and benefit of the law.
79
The differentiation bore no rational connection to the City’s
legitimate purpose of providing temporary accommodation
to those
who are vulnerable and most in need.
80
Further, the City’s inflexible approach undermined the
Occupiers’ right to dignity, a founding value and right

entrenched in section 10 of the Constitution.
81
The Supreme Court of Appeal declared the policy unconstitutional to
the extent that it excluded the Occupiers from consideration
for
temporary emergency housing.
The
City submits that the approach adopted by the Supreme Court of
Appeal deviates from
Grootboom
and has the potential to
handicap reasonable policies and programmes. The City also submits
that the section 9 enquiry does
not arise.
In considering these submissions, it must be accepted that state
resources for housing in any country – and particularly
in
South Africa – are limited. Section 26(2) recognises this by
stating that reasonable legislative and other measures
must be
taken within available resources. Because the demand necessarily
exceeds the availability of resources, any housing
policy will have
to differentiate between categories of people and to prioritise.
The differentiation needs to be scrutinised
though.
The present challenge deals with section 9(1) and section 26(2) of
the Constitution. The concepts of rationality
82
and reasonableness are thus central. A policy which is irrational
could hardly be reasonable. Whether a policy which meets
the
requirements for rationality would necessarily be reasonable does
not have to be decided here.
In
the area of the right of access to adequate housing, of which the
provision of temporary or emergency accommodation is a
part, the
question is essentially one of
reasonableness
. The
availability of resources is an important factor in determining the
reasonableness of the measures employed to achieve
the progressive
realisation of the right.
83
This does not mean that the state may arbitrarily decide which
measures to implement. The measures taken must be reasonable.
While
there will be a range of possible measures that may be reasonable
and the Court will not set aside a policy for the mere
reason that
other measures may have been more desirable or favourable, the
enquiry must still take place.
84
A
policy that, for example, differentiates between general housing
needs and emergency situations might well be understandable.
The
question is whether it is reasonable to differentiate within the
category of emergencies between people relocated by the
City and
those evicted by private landowners and inflexibly to include the
first but exclude the second group.
In
Grootboom
this Court held that a reasonable housing
programme cannot disregard those who are most in need. A programme
that leaves out
the most desperate and vulnerable, even if
conceived with the best of intentions, will fail to respond to the
actual circumstances
that section 26 is intended to ameliorate.
85
The
City argues that the needs of those who live on properties it has
designated as “bad buildings” are greater
than those
rendered homeless through eviction by a private landowner. While
the City’s programme to relocate persons
from “bad
buildings” cannot in itself be faulted, these relocations
occur under the “temporary accommodation”
part of its
policy. People who are evicted by private landowners fall under the
“emergency accommodation” part
of the housing policy.
The question is whether under the City’s policy anyone in a
housing crisis – besides those
relocated by the City from
“bad buildings” – will ever qualify for temporary
or emergency housing.
By
drawing a rigid line between persons relocated by the City and
those evicted by private landowners, the City excludes from
the
assessment, whether emergency accommodation should be made
available, the individual situations of the persons at risk
and the
reason for the eviction. Affected individuals may include children,
elderly people, people with disability or women-headed
households,
for whom the need for housing is particularly great or for whom
homelessness would result in particularly disastrous
consequences.
86
Individuals may have a range of incomes – some may be able to
afford subsidised housing while others may be completely
destitute.
In the present case, the Occupiers have a myriad of personal
circumstances to be taken into account in considering
their
eligibility for housing.
87
Furthermore, it cannot necessarily be assumed that the City evicts
or relocates mainly for reasons of safety whilst private
property
owners do so only for commercial reasons. Once an emergency of
looming homelessness is created, it in any event matters
little to
the evicted who the evictor is. The policy does not meaningfully
and reasonably allow for the needs of those affected
to be taken
into account.
88
The
City rightly argues that “queue jumping” must not be
permitted. Opportunists should not be enabled to gain preference

over those who have been waiting for housing, patiently, according
to legally prescribed procedures. But, as the Supreme Court
of
Appeal found, queue jumping is not in issue in this case.
89
The Occupiers do not claim permanent housing, ahead of anyone else
in a queue. They have to wait in the queue or join it. What
they
ask is not to be excluded from the City’s provision of
temporary housing, even though their situation is an emergency

under Chapter 12, simply because they are being evicted by a
private landowner and not by the City.
This
Court found that the occupiers in
PE Municipality
could not
accurately be defined as “queue jumpers”, as they were
a homeless community that had been evicted once
and then found land
to occupy with what they considered to be the owner’s
permission where they had been residing for
eight years.
90
They did not deliberately invade land with an intention of
disrupting the housing programme and placing themselves at the
front of the queue. Here, too, the Occupiers did not invade the
building.
As a result, I find that whereas differentiation between emergency
housing needs and housing needs that do not constitute an
emergency
might well be reasonable, the differentiation the City’s
policy makes is not. To the extent that eviction may
result in
homelessness, it is of little relevance whether removal from one’s
home is at the instance of the City or a
private property owner.
The policy follows from the City’s incorrect understanding of
its obligations under Chapter 12
and its claim that it lacks
resources. The City’s housing policy is unconstitutional to
the extent that it excludes the
Occupiers and others similarly
evicted from consideration for temporary accommodation. The
exclusion is unreasonable.
Summary
The
findings are briefly summarised. To the extent that it is the owner
of the property and the occupation is unlawful, Blue
Moonlight is
entitled to an eviction order. All relevant circumstances must be
taken into account though to determine whether,
under which
conditions and by which date, eviction would be just and equitable.
The availability of alternative housing for
the Occupiers is one of
the circumstances. The eviction would create an emergency situation
in terms of Chapter 12. The City’s
interpretation of Chapter
12 as neither permitting nor obliging them to take measures to
provide emergency accommodation, after
having been refused
financial assistance by the province, is incorrect. The City is
obliged to provide temporary accommodation.
The finding of the
Supreme Court of Appeal that the City had not persuaded the Court
that it lacks resources to do so has not
been shown to be incorrect
and must stand.
The
City’s housing policy is unconstitutional in that it excludes
people evicted by a private landowner from its temporary
housing
programme, as opposed to those relocated by the City. Blue
Moonlight cannot be expected indefinitely to provide free
housing
to the Occupiers, but its rights as property owner must be
interpreted within the context of the requirement that eviction

must be just and equitable. Eviction of the Occupiers would be just
and equitable under the circumstances, if linked to the
provision
of temporary accommodation by the City.
Just and equitable remedy
It
must be emphasised that this case concerns temporary relief in an
emergency as defined in Chapter 12 and not permanent housing.
A
remedy must be formulated. The order of the Supreme Court of Appeal
requires the Occupiers to vacate the premises on a specific
date.
91
It also declares the City’s policy unconstitutional. It
orders the City to provide “temporary emergency
accommodation”
to the Occupiers. The order does not link the
date of eviction to a specified date on which the City has to
provide the accommodation.
Thus, from the date of eviction until
the date on which the City provides emergency housing, the
Occupiers may find themselves
homeless. This may be a long time.
The
relief sought in the Occupiers’ cross-appeal must therefore
be considered in order not to render them homeless. The
date of
eviction must be linked to a date on which the City has to provide
accommodation. Requiring the City to provide accommodation
14 days
before the date of eviction will allow the Occupiers some time and
space to be assured that the order to provide them
with
accommodation was complied with and to make suitable arrangements
for their relocation. Although Blue Moonlight cannot
be expected to
be burdened with providing accommodation to the Occupiers
indefinitely, a degree of patience should be reasonably
expected of
it and the City must be given a reasonable time to comply. The date
should not follow too soon after the date of
the judgment.
92
The
City’s appeal has to be dismissed. The Occupiers’
cross-appeal must succeed to the extent that eviction must
be
ordered, but the City must provide the Occupiers with temporary
accommodation on a date linked to the date of eviction.
The
Occupiers’ submissions in support of a structural interdict
against the City in their written argument were neither
persuasive,
nor seriously pursued during oral argument. In this respect the
cross-appeal cannot succeed.
The
City mounted a wide-ranging attack against the judgment of the
Supreme Court of Appeal. We have found most of its criticisms

unpersuasive. The judgment of the Supreme Court of Appeal is
strongly reasoned. There is no reason not to confirm its
conclusions
in all material respects.
Costs
The
City has lost its appeal to this Court. The eviction order that the
Supreme Court of Appeal granted in favour of Blue Moonlight
has not
been upset. It was the City’s stance in the matter that
brought Blue Moonlight to this Court. It was entitled
to be heard.
The Occupiers have been partially successful in their cross-appeal.
They have ensured that they will not be evicted
before the City
provides them with temporary accommodation. It follows that the
City must pay the costs of Blue Moonlight and
the Occupiers in this
Court. There is no need to interfere with the costs order of the
Supreme Court of Appeal.
Order
The
following is ordered:
(a) The application for leave to appeal is granted.
(b) The appeal is dismissed.
(c) The application for leave to cross-appeal is granted.
(d) The cross-appeal is upheld to the extent set out below.
(e) Paragraphs 5.1 to 5.4 of the order of the Supreme Court of
Appeal are set aside and replaced with the following:
(i) The first respondent in the South Gauteng High Court,
Johannesburg and all persons occupying through them (collectively,

the Occupiers) are evicted from the immovable property situate at
Saratoga Avenue, Johannesburg, and described as Portion 1 of
Erf
1308, Berea Township, Registration Division IR, Gauteng (the
property).
(ii) The Occupiers are ordered to vacate the property by no later
than 15 April 2012, failing which the eviction order may be
carried
out.
(iii) The housing policy of the second respondent in the South
Gauteng High Court, Johannesburg, the City of Johannesburg
Metropolitan
Municipality, is declared unconstitutional to the
extent that it excludes the Occupiers and other persons evicted by
private
property owners from consideration for temporary
accommodation in emergency situations.
(iv) 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.
(f) The applicant is ordered to pay the costs of the first and
second respondents, including the costs of two counsel, in this

Court.
For the Applicant: Advocate JJ Gauntlett SC and Advocate FB Pelser
instructed by Moodie & Robertson.
For the First Respondent: Advocate MSM Brassey SC and Advocate GA
Fourie instructed by Schindlers Attorneys.
For the Second Respondent: Advocate P Kennedy SC, Advocate H Barnes
and Advocate S Wilson instructed by Wits Law Clinic.
For the Amicus Curiae: Advocate AA Gabriel SC and Advocate BSM
Bedderson instructed by Lawyers for Human Rights.
1
A
household consists of approximately three people. See the City’s
Housing Report (referred to at [5] and [13] below) at
para 6.
2
Statistics
South Africa (Stats SA)
Census 2001: Primary tables South Africa
Report No 03-02-04 (2001) at 78.
3
City
of Johannesburg Metropolitan Municipality v Blue Moonlight
Properties 39 (Pty) Ltd and Another
2011 (4) SA 337
(SCA).
4
Blue
Moonlight Properties 39 (Pty) Ltd v The Occupiers of Saratoga Avenue
and Another
, Case No 11442/2006, South Gauteng High Court,
Johannesburg, 4 February 2010, unreported.
5
National
housing programme: housing assistance in emergency circumstances
(April 2004 Final Version).
6
The
National Housing Code and the Housing Report are briefly explained
in [27]-[28] below.
7
Section
26 of the Constitution recognises the right of access to adequate
housing and is quoted in [18] below.
8
See
section 25(1) of the Constitution, dealt with in [17] and [34]-[37]
below.
9
The
Occupiers’ details are set out in a document entitled “Survey
of Occupiers of 7 Saratoga Avenue, Johannesburg”
(Survey)
filed in the High Court on 30 April 2008. An affidavit filed by the
Occupiers at the commencement of the proceedings
initially gave a
different number of people. However, the Survey was conducted
pursuant to an order of the High Court dated 6
February 2008 that
required the City to conduct a survey and record in writing the
particulars of the Occupiers. When the City
failed to complete this
task, it was undertaken by the Occupiers’ attorneys and the
Survey was filed by consent.
10
19
of 1998.
11
Above
n 3 at paras 69-71. The Supreme Court of Appeal found this case to
be factually distinguishable from
Modderfontein Squatters,
Greater Benoni City Council v Modderklip Boerdery (Pty) Ltd (Agri SA
and Legal Resources Centre, amici
curiae); President of the Republic
of South Africa and Others v Modderklip Boerdery (Pty) Ltd (Agri SA
and Legal Resources Centre,
amici curiae)
2004 (6) SA 40
(SCA)
(
Modderfontein
), where the eviction order had been already
granted but ignored by the unlawful occupiers, the state had failed
to assist the
landowner to execute the eviction order, and the
private landowner was the innocent victim of a land invasion rather
than the
purchaser of occupied land.
12
On
section 26, see for example
Government of the Republic of South
Africa and Others v Grootboom and Others
[2000] ZACC 19
;
2001
(1) SA 46
(CC);
2000 (11) BCLR 1169
(CC) (
Grootboom
);
Port
Elizabeth Municipality v Various Occupiers
[2004] ZACC 7
;
2005
(1) SA 217
(CC);
2004 (12) BCLR 1268
(CC) (
PE Municipality
);
Jaftha v Schoeman and Others; Van Rooyen v Stoltz and Others
[2004] ZACC 25
;
2005 (2) SA 140
(CC);
2005 (1) BCLR 78
(CC);
Occupiers of 51 Olivia Road, Berea Township, and 197 Main Street,
Johannesburg v City of Johannesburg and Others
[2008] ZACC 1
;
2008 (3) SA 208
(CC);
2008 (5) BCLR 475
(CC) (
Olivia Road
);
Residents of Joe Slovo Community, Western Cape v Thubelisha Homes
and Others
[2009] ZACC 16
;
2010 (3) SA 454
(CC);
2009 (9) BCLR
847
(CC);
Joseph and Others v City of Johannesburg and Others
[2009] ZACC 30
;
2010 (4) SA 55
(CC);
2010 (3) BCLR 212
(CC); and
Gundwana v Steko Development CC and Others
[2011] ZACC 14
;
2011 (3) SA 608
(CC);
2011 (8) BCLR 792
(CC).
13
Section
34 states: “Everyone has the right to have any dispute that
can be resolved by the application of law decided in
a fair public
hearing before a court or, where appropriate, another independent
and impartial tribunal or forum.”
14
Section
152 provides:
“
(1) The objects of local
government are—
(a) to provide democratic and accountable government
for local communities;
(b) to ensure the provision of services to communities
in a sustainable manner;
(c) to promote social and economic development;
(d) to promote a safe and healthy environment; and
(e) to encourage the involvement of communities and
community organisations in the matters of local government.
(2) A municipality must strive, within its financial
and administrative capacity, to achieve the objects set out in
subsection
(1).”
15
The
relevant subsections provide:
“
(1) A municipality has
executive authority in respect of, and has the right to administer—
(a) the local government matters listed in Part B of
Schedule 4 and Part B of Schedule 5; and
(b) any other matter assigned to it by national or
provincial legislation.
. . .
(5) A municipality has the right to exercise any power
concerning a matter reasonably necessary for, or incidental to, the
effective
performance of its functions.”
16
Section
40 provides:
“
(1) In the Republic,
government is constituted as national, provincial and local spheres
of government which are distinctive,
interdependent and
interrelated.
(2) All spheres of government must observe and adhere
to the principles in this Chapter and must conduct their activities
within
the parameters that the Chapter provides.”
17
107
of 1997.
18
The
preamble states that “in terms of section 26 of the
Constitution . . . everyone has the right to have access to adequate

housing, and the state must take reasonable legislative and other
measures, within its available resources, to achieve the progressive

realisation of this right” and recognises that “housing,
as adequate shelter, fulfils a basic human need” and
that
“housing is a vital part of integrated developmental
planning”.
19
Section
9 of the Housing Act provides in part:
“
(1) Every municipality must,
as part of the municipality’s process of integrated
development planning, take all reasonable
and necessary steps within
the framework of national and provincial housing legislation and
policy to—
(a) ensure that—
(i) the inhabitants of its area of jurisdiction have
access to adequate housing on a progressive basis;
. . .
(b) set housing delivery goals in respect of its area
of jurisdiction;
(c) identify and designate land for housing
development;
(d) create and maintain a public environment conducive
to housing development which is financially and socially viable;
(e) promote the resolution of conflicts arising in the
housing development process;
(f) initiate, plan, co-ordinate, facilitate, promote
and enable appropriate housing development in its area of
jurisdiction”.
20
32
of 2000.
21
Section
4 provides:
“
(1) The council of a
municipality has the right to—
(a) govern on its own initiative the local government
affairs of the local community;
(b) exercise the municipality’s executive and
legislative authority, and to do so without improper interference;
and
(c) finance the affairs of the municipality by—
(i) charging fees for services; and
(ii) imposing surcharges on fees, rates on property
and, to the extent authorised by national legislation, other taxes,
levies
and duties.
(2) The council of a municipality, within the
municipality’s financial and administrative capacity and
having regard to
practical considerations, has the duty to—
(a) exercise the municipality’s executive and
legislative authority and use the resources of the municipality in
the best
interests of the local community;
(b) provide, without favour or prejudice, democratic
and accountable government;
. . .
(e) consult the local community about—
(i) the level, quality, range and impact of municipal
services provided by the municipality, either directly or through
another
service provider; and
(ii) the available options for service delivery;
(f) give members of the local community equitable
access to the municipal services to which they are entitled;
(g) promote and undertake development in the
municipality;
. . .
(j) contribute, together with other organs of state, to
the progressive realisation of the fundamental rights contained in
sections
24, 25, 26, 27 and 29 of the Constitution.
(3) A municipality must in the exercise of its
executive and legislative authority respect the rights of citizens
and those of
other persons protected by the Bill of Rights.”
22
These
include:
“
(a) developing and adopting
policies, plans, strategies and programmes, including setting
targets for delivery;
(b) promoting and undertaking development;
. . .
(e) implementing applicable national and provincial
legislation and its by-laws;
. . .
(h) preparing, approving and implementing its budgets;
. . .
(n) doing anything else within its legislative and
executive competence.”
23
See
Chapter 12 at section 12.1 and
Grootboom
above n 12.
24
See
below n 50 for the definition of emergency housing circumstances.
25
Housing
Report at para 28.
26
Section
4 provides:
“
(1) Notwithstanding anything
to the contrary contained in any law or the common law, the
provisions of this section apply to proceedings
by an owner or
person in charge of land for the eviction of an unlawful occupier.
. . .
(6) If an unlawful occupier has occupied the land in
question for less 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 the rights and
needs of the elderly, children, disabled persons and households
headed by
women.
(7) 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.
(8) If the court is satisfied that all the requirements
of this section have been complied with and that no valid defence
has
been raised by the unlawful occupier, it must grant an order for
the eviction of the unlawful occupier, and determine—
(a) a just and equitable date on which the unlawful
occupier must vacate the land under the circumstances; and
(b) the date on which an eviction order may be carried
out if the unlawful occupier has not vacated the land on the date
contemplated
in paragraph (a).”
27
See
Ndlovu v Ngcobo; Bekker and Another v Jika
2003 (1) SA 113
(SCA) at 17-8.
28
Citing
PE Municipality
above n 12 at para 28;
Modderfontein
above n 11 at para 26; and
Occupiers, Shulana Court, 11 Hendon
Road, Yeoville, Johannesburg v Steele
2010 (9) BCLR 911
(SCA) at
para 16.
29
This
is in accordance with the post-World War II trend in Germany and
elsewhere. For example, Article 14 of the German Basic Law
provides
that “[p]roperty and the right of inheritance shall be
guaranteed” but also that “[p]roperty entails

obligations” and “[i]ts use should also serve the public
interest.” See for example the
Co-Determination Decision
BVerfGE 50, 290 (1979) and the
Investment Aid Case
BVerfGE 4,
7 (1954).
30
See
for example Wilson “Breaking the tie: evictions from private
land, homelessness and a new normality”
(2009) 126(2)
SALJ
270.
31
First
National Bank of SA Ltd t/a Wesbank v Commissioner, South African
Revenue Service and Another; First National Bank of SA
Ltd t/a
Wesbank v Minister of Finance
[2002] ZACC 5
;
2002 (4) SA 768
(CC);
2002 (7) BCLR 702
(CC) (
FNB
) at para 50, relying on Van
der Walt
The
Constitutional Property Clause
(
Juta
& Co Ltd, Kenwyn 1997) at 15-6.
32
For
a more detailed summary of the historical context that preceded
section 26 of the Constitution and PIE see
PE Municipality
above
n 12 at paras 8-10.
33
Section
25(1).
34
Section
25(4)-(9).
35
PE
Municipality
above n 12 at para 17.
36
The
preamble of PIE provides in relevant part:
“
WHEREAS no one may be
deprived of property except in terms of law of general application,
and no law may permit arbitrary deprivation
of property;
AND WHEREAS no one may be evicted from their home, or
have their home demolished without an order of court made after
considering
all the relevant circumstances”.
37
PE
Municipality
above n 12 at para 23.
38
See
Harksen
v Lane NO and Others
[1997] ZACC 12
;
1998 (1)
SA 300
(CC);
1997 (11) BCLR 1489
(CC) (
Harksen
) where the
distinction was drawn between deprivations (under section 25(1)) and
expropriations (as per the rest of section 25).
Although the precise
relationship between the two was not stated, this Court made
observations about their differing attributes.
Goldstone J
articulated that “[t]he word ‘expropriate’ is
generally used in our law to describe the process
whereby a public
authority takes property (usually immovable) for a public purpose
and usually against payment of compensation”
(at para 32). In
that case the impugned law did not amount to a compulsory
acquisition or expropriation because the property
was not
appropriated by the state, nor was the applicant deprived thereof
permanently (at para 36). For an analytical framework
for section
25, see
FNB
above n 31.
39
PE
Municipality
above n 12 at para 37.
40
See
subsections 4(6) and 4(7) of PIE above n 26.
41
Section
4(7) of PIE above n 26.
42
See
section 40(1) of the Constitution above n 16.
43
Grootboom
above n 12 at para 40.
44
On
the eve of the hearing the Minister for Human Settlements filed an
affidavit with this Court. Neither the Minister nor his
department
is party to these proceedings. The Minister did not ask to be
joined. The affidavit was filed very late without any
explanation or
request for condonation. Its admission was opposed by the Occupiers.
There is no basis for the affidavit’s
admission.
45
Above
n 3 at para 68.
46
See
for example
Amalgamated Engineering Union v Minister of Labour
1949 (3) SA 637
(A) at 659 and
Selborne Furniture Store (Pty) Ltd
v Steyn NO
1970 (4) SA 422
(A) at 423A-B.
47
Rule
5 of the Rules of the Constitutional Court.
48
For
example, in
Nokotyana and Others v Ekurhuleni Metropolitan
Municipality and Others
[2009] ZACC 33
;
2010 (4) BCLR 312
(CC),
dealing with the need for people in an informal settlement for
lighting and toilets, the Court joined the provincial Member
of the
Executive Council for Local Government and Housing. Because the
delay by the province to take a decision on an application
to
upgrade the status of the settlement under the National Housing Code
was unjustified and unacceptable, it was ordered to make
a decision
within a stipulated time. The Court also ordered the province to pay
the costs of the applicants, as its conduct had
contributed to their
dilemma. See paras 36, 55 and 62.
49
The
primary duties placed on national and provincial governments do not
absolve local governments. The Constitution places a duty
on local
governments to ensure that services are provided in a sustainable
manner to the communities they govern: see section
152(1)(b), read
with sections 152(2) and 153(a) of the Constitution, discussed at
[22] above. A municipality must be attentive
to housing problems in
the community, plan, budget appropriately and co-ordinate and engage
with other spheres of government
to ensure that the needs of its
community are met. Its duty is not simply to implement the state’s
housing programme at
a local level. It must plan and carry some of
the costs, as is shown below. See section 9 of the Housing Act and
sections 4,
8(2), 11(3) and 23(1) of the Municipal Systems Act,
discussed at [24]-[26] above. See also the discussion of Chapter 12
below.
50
Chapter
12 defines “Emergencies” at section 12.3.1 as the
following:
“
An Emergency exists when the
MEC, on application by a municipality and or the provincial housing
department, deems that persons
affected,
a. Owing to situations beyond their control:
•
have become homeless as a
result of a declared state of disaster . . .
. . .
•
are evicted or threatened
with imminent eviction from land or from unsafe buildings, or
situations where pro-active steps ought
to be taken to forestall
such consequences;
•
whose homes are demolished or
threatened with imminent demolition, or situations where proactive
steps ought to be taken to forestall
such consequences; or
. . .
•
live in conditions that pose
immediate threats to life, health and safety and require emergency
assistance.
b. Are in a situation of exceptional housing need,
which constitutes an Emergency that can reasonably be addressed only
by resettlement
or other appropriate assistance, in terms of this
Programme.”
51
See
Grootboom
above n 12 at paras 39-40 and 47.
52
The
City relies on De Visser “A Perspective on local government’s
role in realising the right to housing and the answer
of the
Grootboom
judgment” (2003) 7(2)
Law, Democracy &
Development
201.
53
See
[22], [25] and [26] above.
54
In
support of its submission, counsel for the City referred to Chapter
12 at 254, 259, 277, 278, 280 and 286, especially during
oral
argument.
55
See
[16]-[29] above.
56
See
section 4 and section 8(2), set out in n 21 and [25] respectively.
57
Grootboom
above n 12 at paras 39-44.
58
Id
at para 52.
59
Id
at para 56.
60
Id
at para 68.
61
Fedsure
Life Assurance Ltd and Others v Greater Johannesburg Transitional
Metropolitan Council and Others
[1998] ZACC 17
;
1999 (1) SA 374
(CC);
1998 (12) BCLR 1458
(CC) at paras 55-6 (
Fedsure
).
62
Id
at para 58.
63
Id
at para 56.
64
Section
12.3.3 of Chapter 12 provides:
“
In terms of section 12.5 of
this part of the Code
•
funds will be made available
by the provincial departments of housing either through the
reservation of funds or reprioritisation
as emergency circumstances
arise, to fund projects approved under this Programme; and
•
the authority to consider and
approve projects and the financing of such projects will vest in the
Member of the Executive Council,
responsible for Housing of the
Provincial Government.”
65
In
April 2009 the City made an application to the province for funding
in terms of Chapter 12. It did so despite having hitherto
denied
that the Occupiers were eligible for assistance in terms of the
Emergency Housing Programme.
66
Above
n 3 at paras 49, 50 and 52.
67
During
oral argument counsel for the City was asked from the bench how much
time the City would require if ordered to provide
the Occupiers with
temporary accommodation. Counsel undertook to file a response in
writing. After two written requests for more
time, the City
responded in a letter dated 25 August 2011. It stated that it cannot
accommodate the Occupiers in any building
or vacant land owned by
the City and that it cannot divert any funds, because this would
adversely impact other housing projects.
At best, it could apply to
the province for funding in terms of Chapter 12 of the National
Housing Code to consider the application
and allocate funding in the
next budget cycle, commencing on 1 July 2012. It appears that
further correspondence was exchanged
between Blue Moonlight, the
Occupiers and the City. Not all of this correspondence was sent to
this Court. There is no need to
go into the details of this
exchange, however, because it does not take the matter any further.
The matter must in any event
be adjudicated on the evidence as it
was at the date of the hearing. The letter was supposed to respond
to a specific question.
The response maintained the position that
the City took in its submissions, namely that it is unable to
provide accommodation.
68
See
Housing Report at paras 7-10.
69
Id
at paras 12-3.
70
Id
at para 14.6.
71
Id
at paras 22-7.
72
Id
at paras 28-38.
73
Id
at para 25.
74
Id
at para 24. The City notes that prior to this Court’s judgment
in
Olivia Road
above n 12, the City obtained eviction orders
against the occupiers of “bad buildings” by way of
section 12 of the
National Building Regulations and Building
Standards Act 103 of 1977, but since that judgment such evictions
have ceased and
the City now seeks to relocate the occupiers of such
buildings voluntarily. The Housing Report states at para 24:
“
The City considers it a
priority to assist the occupiers of these buildings by relocating
them to temporary accommodation because
of the threat to their
lives. The City endeavours to do so on an emergency basis within its
resources. . . . The City’s
approach is to engage in so far
possible, with the owners and occupiers of these buildings in order
to negotiate the urgent voluntary
relocation of the occupiers to
temporary alternative accommodation provided by the City”.
75
The
City’s Housing Report then goes on at paras 31-3 to describe
the procedure that it thinks should be followed under Chapter
12:
that in an emergency situation the City assesses and investigates
the scenario and, if it feels that it attracts an emergency
status,
applies to the province for an emergency to be declared and an
emergency project to be approved.
76
Id
at para 32.
77
Id
at paras 36-8. For example, the Alexandra Emergency facility was
vacant and to be handed over to the City in early 2011 and
Stand 902
New Doornfontein/Linatex was to commence development in the
2010/2011 financial year but potential beneficiaries were
already
identified.
78
2009
Report at para 6.
79
See
[19] above for the text of section 9(1) of the Constitution.
80
See
above n 3 at paras 59-61 and 66.
81
Id
at para 67.
82
In
Harksen
above n 38 at para 43 Goldstone J, interpreting
section 8(1) of the interim Constitution, posed the question whether
the differentiating
measure bears a rational connection to a
legitimate governmental purpose.
83
Grootboom
above n 12 at para 46. See also
Soobramoney v Minister of
Health, KwaZulu-Natal
[1997] ZACC 17
;
1998 (1) SA 765
(CC);
1997
(12) BCLR 1696
(CC) at para 11 where Chaskalson P held that both the
obligations imposed and rights conferred by section 26 are limited
by the
availability of resources.
84
Grootboom
above n 12 at para 41.
85
Id
at para 44 the Court stated:
“
To be reasonable, measures
cannot leave out of account the degree and extent of the denial of
the right they endeavour to realise.
Those whose needs are the most
urgent and whose ability to enjoy all rights therefore is most in
peril, must not be ignored by
the measures aimed at achieving
realisation of the right. It may not be sufficient to meet the test
of reasonableness to show
that the measures are capable of achieving
a statistical advance in the realisation of the right. Furthermore,
the Constitution
requires that everyone must be treated with care
and concern. If the measures, though statistically successful, fail
to respond
to the needs of those most desperate, they may not pass
the test.”
86
These
are also factors to be considered under sections 4 and 6 of PIE.
87
The
Survey above n 9 reveals, for example, that the Occupiers’
ages range from 11 months to 68 years and that their incomes
range
from nil to R2 200 monthly.
88
See
Khosa and Others v Minister of Social Development and Others;
Mahlaule and Others v Minister of Social Development and Others
[2004] ZACC 11
;
2004 (6) SA 505
(CC);
2004 (6) BCLR 569
(CC) at para
49 where this Court noted that when determining whether an exclusion
is reasonable regard must be had to: the purpose
of the right in
question; the impact of the exclusion on those excluded; the
relevance of the ground of exclusion to the purpose
of the right in
question; and the potential impact the exclusion has on other
intersecting rights. From the foregoing, it is
evident that the
Occupiers are disproportionately impacted by the exclusion. The
effect that this exclusion has on their rights
to life and dignity
is significant.
89
Above
n 3 at para 55.
90
PE
Municipality
above n 12 at para 55.
91
The
Supreme Court of Appeal ordered:
“
1. The application by the
appellant to have new evidence admitted on appeal succeeds and the
appellant is to pay the costs of
the application on the unopposed
scale.
2. Save as is reflected in the substituted order set
out hereunder, the appeal is dismissed and the appellant is ordered
to pay
the second respondents’ costs, including the costs of
two counsel.
3. No order is made in respect of the cross-appeal by
the second respondent.
4. In respect of the abandoned cross-appeal by the
first respondent, no costs order is made in relation thereto.
5. The order of the court below is set aside and
substituted as follows:
‘
1. The first respondent and
all persons occupying through them (collectively ‘the
occupiers’) are evicted from the
immovable property situate at
Saratoga Avenue, Johannesburg, and described as Portion 1 of Erf
1308, Berea Township, Registration
Division IR, Gauteng (‘the
property’);
2. The first respondent and all persons occupying
through them are ordered to vacate by no later than 1 June 2011,
failing which
the Sheriff of the Court is authorised to carry out
the eviction order;
3. The second respondent’s housing policy to the
effect that it only provides temporary emergency accommodation to
those
evicted from unsafe buildings by the City itself or at its
instance, in terms of the National Building Regulations and Building

Standards Act 103 of 1977, is declared unconstitutional to the
extent that it excludes the occupiers from consideration for such

accommodation;
4. The second respondent shall provide those occupiers
whose names appear in the document entitled ‘Survey of
Occupiers
of 7 Saratoga Avenue, Johannesburg’ filed on 30
April 2008, and those occupying through them, with temporary
emergency
accommodation as decant in a location as near as feasibly
possible to the area where the property is situated, provided that

they are still resident at the property and have not voluntarily
vacated it;
5. The second respondent is ordered to pay the
applicant’s costs and the costs of the first respondent,
including the costs
of two counsel.’”
92
It
seems that the distinction apparently drawn by the City between
temporary accommodation and emergency accommodation in its
policy is
erroneous. The City also refers to temporary accommodation as
“temporary accommodation as decant”. For
a discussion on
the difference between temporary accommodation and emergency
accommodation under the City’s policy, see
[28] and [78]-[82]
above. Chapter 12 provides for temporary accommodation as a part of
its emergency provisions. The “temporary
emergency
accommodation as decant”, ordered by the Supreme Court of
Appeal, can be provided, as it is a type of temporary
accommodation
in emergency circumstances that falls within the scheme of Chapter
12. The Supreme Court of Appeal was justified
in ordering it,
although the term “as decant” does not necessarily add
clarity.