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[2017] ZACC 42
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Dladla and Another v City of Johannesburg and Others (CCT124/16) [2017] ZACC 42; 2018 (2) BCLR 119 (CC); 2018 (2) SA 327 (CC) (1 December 2017)

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CONSTITUTIONAL COURT OF
SOUTH AFRICA
Case CCT 124/16
In the matter between:
NOMSA ELLEN
DLADLA
First Applicant
TEN RESIDENTS OF THE
EKUTHULENI
SHELTER
Second to Eleventh Applicants
and
CITY OF
JOHANNESBURG
First Respondent
METROPOLITAN EVANGELICAL
SERVICES
Second Respondent
and
CENTRE FOR APPLIED LEGAL
STUDIES
First Amicus Curiae
CENTRE FOR CHILD
LAW
Second Amicus Curiae
Neutral citation:
Dladla v City of
Johannesburg
[2017] ZACC 42
Coram:
Mogoeng CJ, Nkabinde
ADCJ, Cameron J, Froneman J, Jafta J, Khampepe
J, Madlanga J, Mhlantla J, Mojapelo AJ, Pretorius AJ and Zondo J
Judgments:
Mhlantla J (majority) [1] to [54]
Cameron J
(concurring): [55] to [101]
Jafta J
(concurring): [102] to [130]
Madlanga J
(concurring): [131] to [133]
Heard on:
16 February 2017
Decided on:
1 December 2017
Summary:
Temporary housing accommodation — constitutionality of
Shelter rules — requirement that residents leave during day —

prohibition on opposite-sex partners living together — Shelter
rules unlawfully limited sections 10, 12 and 14 of the

Constitution
ORDER
On appeal from the
Supreme Court of Appeal (hearing an appeal from the
High Court
of South Africa, Gauteng Local Division, Johannesburg)
:
1.
Leave to appeal is granted.
2.
The appeal is upheld.
3.
The order of the Supreme Court of Appeal is set aside and replaced
with the following:
“(a)
It is declared that the application of rules 3 and 4 of the
Ekuthuleni Overnight/Decant Shelter
House Rules constitutes an
infringement of the applicants’ rights to dignity, freedom and
security of the person, and privacy
in sections 10, 12 and 14 of the
Constitution.
(b)
The City of Johannesburg and Metropolitan Evangelical Services are
interdicted and restrained
from enforcing rules 3 and 4 of the
Ekuthuleni Overnight/Decant Shelter House Rules as against the
applicants for the duration
of the applicants’ stay at the
Shelter.
(c)
It is declared that the City of Johannesburg and the
Metropolitan Evangelical Services’
refusal to allow the
applicants to reside in communal rooms together with their partners
of different sexes is an infringement
of the applicants’
constitutional rights to dignity and privacy, enshrined in sections
10 and 14 of the Constitution.
(d)
The City of Johannesburg and the Metropolitan Evangelical Services
are directed to permit those
of the applicants who wish to do so, to
reside together with their partners of different sexes in communal
rooms at Ekuthuleni
for the duration of the applicants’ stay at
Ekuthuleni.”
4.
The City of Johannesburg is ordered to pay the applicants’
costs including
the costs of two counsel in this Court, the Supreme
Court of Appeal and in the High Court of South Africa, Gauteng
Local Division,
Johannesburg.
JUDGMENT
MHLANTLA J (Mogoeng
CJ, Nkabinde ADCJ, Mojapelo AJ, Pretorius AJ and Zondo J concurring):
Introduction
[1]
This application for leave to appeal is against an order of
the Supreme Court of Appeal.
[1]
The applicants in this matter were the subject of this Court’s
judgment in
Blue Moonlight
[2]
and were evicted from a property in which they lived.
This Court ordered the first respondent, the City of Johannesburg
(City),
to provide temporary accommodation to the applicants.
The applicants are currently residing at the Ekuthuleni Shelter
(Shelter).
They moved to the Shelter after the City had
concluded a contract with the second respondent, Metropolitan
Evangelical Services
(MES).
[2]
Two
amici curiae
made submissions to this Court.  The
first is the Centre for Applied Legal Studies (CALS), a civil society
organisation and
law clinic involved in advocacy and strategic
litigation.  Its focus areas include the provision of and
advancement of basic
services, gender related issues, the protection
of the rule of law, business and human rights, and the protection of
a clean and
healthy environment.  The second is the Centre for
Child Law (CCL), a registered law clinic.  Its main objective is
to
promote the best interests of children in South Africa.
[3]
This matter concerns a constitutional challenge to the
validity of certain rules, imposed by the City and MES, upon the
applicants
as a condition for living in the Shelter.  The rules
in question will be referred to as the “lockout” and
“family
separation” rules respectively.  The lockout
rule required that the applicants be out of the Shelter between 08h00
and
17h30 every day and return by 20h00, or face the prospect of not
being allowed to enter the Shelter.  The family separation
rule
prohibited men and women from living together through the provision
of single-sex dormitories.
[3]
It also separated children from their caregiver depending on their
age.
[4]
Background
[4]
The applicants are 11 of the 33 people that lived at 7
Saratoga Avenue, Berea (Saratoga Avenue) until their eviction in
Blue
Moonlight
.  They had previously lived at Saratoga Avenue for
periods of up to 20 years.  This Court had ordered all
33 persons
to vacate Saratoga Avenue by 15 April 2012, subject
to the condition that the City provide them with “temporary
accommodation
in a location as near as feasibly possible to [Saratoga
Avenue]”.
[5]
[5]
The City was then forced to determine how to go about
providing temporary accommodation to the evictees in order to comply
with
the order of this Court.  In doing so, it conducted an
analysis of this Court’s order to assess whether its provision

of temporary accommodation to the applicants would constitute “queue
jumping”, in the sense that the City would be
providing them
with accommodation ahead of those who had applied for accommodation
through the necessary processes.  The City
concluded that, since
it would not be providing permanent housing to the applicants, its
provision of temporary housing would not
amount to “queue
jumping”.  It also assessed the extent of the plight of
the evictees.  The City’s
finding, based on its
assessment, was that a majority of people, when faced with an
emergency, would require minimum intervention,
while some would not
be able to take care of themselves.  The City accepted that it
would have to find a more permanent solution
for the more vulnerable
individuals.
[6]
The City decided not to give the applicants housing in a
temporary residential area, as provided for in terms of the Emergency
Housing
Policy in the National Housing Code.
[6]
It concluded that the best solution entailed a facilitation of
what it viewed to be an “empowered” transition
that would
discourage a “dependency relationship” with it.  The
City envisaged that this programme would ensure
that the evictees
would at some stage move to rental accommodation and “take
responsibility for their own lives”.  As
a result, the
City developed what it termed an institutional accommodation, which
was a “managed-care policy”, or temporary
accommodation
provision.
[7]
According to the City, this facility would be temporary and was
not intended to be a step in the realisation of the applicants’

right of access to adequate housing.
[7]
The City canvassed various service providers in the sector
providing managed care facilities.  Its chosen service
provider
was MES, a non-profit company incorporated in terms of
section 10 of the Companies Act.
[8]
MES operates the Shelter by providing relief for persons who are
experiencing or have experienced a crisis and are in need
of a
residence.  The Shelter, which accommodates approximately
100 people, is a temporary place for destitute individuals

looking for employment.  Its aim is to integrate persons into
society, assist them to find employment and provide the persons
with
a shelter for a temporary period until they are self-sustaining.
In this regard, MES provides its residents with temporary

accommodation for a period of about six months, which can be extended
to 12 months on approval of a social worker.  This extended

period permits an individual to complete his or her development plan,
in order to make a sustainable exit.  In addition to

accommodation, MES also provides its temporary residents, free of
charge, with food, as well as computers with internet access
and
local newspapers to facilitate job hunting.
[8]
The City negotiated with MES on the cost implications and
managed-care protocols that would be involved in temporarily housing
the
applicants.  The parties concluded a contract in terms of
which MES would provide the kind of accommodation envisaged by the

City at the Shelter.  At the time, the Shelter was not in use.
As a result, the business of the Shelter changed from
a
traditional overnight facility into a managed-care facility.
The City also retained the Shelter’s “Ekuthuleni

Overnight/Decant Shelter House Rules” (Shelter rules).
[9]
The City, however, did not provide the temporary accommodation
before the deadline set for the applicants to vacate Saratoga
Avenue.
As a result, the deadline was extended to 2 May 2012,
by means of an interim order issued by the High Court of
South Africa,
Gauteng Local Division, Johannesburg (High Court).
Thereafter, the evictees from Saratoga Avenue engaged the City
about their
needs for accommodation.  The parties agreed that
those persons who could afford a rental of R600 per month would move
to
a property known as MBV Phase 2 and the applicants, who did not
have the means to pay rent, would move to the Shelter.
[10]
When they arrived at the Shelter, the applicants were told
that their residency was conditional on their compliance with the
Shelter
rules set by MES.  Two of these rules are the subject
matter of this dispute, the lockout and family separation rules.  The

lockout rule forbade residents of the Shelter from being at the
Shelter during the day and from leaving after certain times at

night.  In this regard, the applicants had to leave the Shelter
from 08h00 and were re-admitted at 17h30.  The gates
of the
Shelter were locked again at 20h00.  This meant that any
occupant who came back after this time had to find alternative

accommodation for the night, which often meant sleeping on the
street.  The lockout rule could be relaxed if a special
arrangement
had been made for a resident to arrive after 20h00.
The lockout rule is embodied in rules 3 and 4 of the Shelter rules.
The
second impugned rule, the family separation rule was
enforced through the Shelter’s provision of separate
dormitories for
male and female residents.  The effect of the
separation rule was that heterosexual couples were not allowed to
stay in the
same dormitory as their partners and were thus separated
from their families.  This rule is not expressly listed in the
Shelter
rules, but was strictly enforced by the Shelter management.
[11]
The City contends that these conditions form part of what it
describes as its “managed-care policy”, which is intended

to assist people like the applicants, by “[facilitating] the
transition of evictees from a state of homelessness to a position
of
independence” through “a systematic approach that
identifies the cause of the homelessness, and seeks to place an

evictee in a position where they are able to secure their own
permanent accommodation.”
[12]
The applicants contended that the rules had an adverse effect
on them.  For instance, in relation to the impact of the family

separation rule, the first applicant lived with her granddaughter.
The social workers advised her that the Shelter was not
a
suitable place for minor children.  Consequently, the child was
taken into care by the Department of Social Services, as
the first
applicant was not in a position to take care of her on the streets
during the day when the child was not at school or
was ill.
Heterosexual married couples were also separated, and one
couple stated that the enforced separation “felt
like a
divorce”.  At night, women would bear the duty of taking
care of the children, as girls and boys under the age
of 16 had to
stay with their mothers.  Boys older than 16 stayed with their
fathers.  This perpetuated gender stereotypes.
[13]
In relation to the lockout rule, there is undisputed evidence
that some of the applicants, who worked night shifts, were not
permitted
to sleep at the Shelter during the day.  The rule also
meant that the applicants could not stay indoors during the day in
order to recuperate from medical procedures, such as trips to the
dentist.  Those who were unemployed were rendered vulnerable
to
violence as they had to wait outside or spend time in parks during
the day.
[14]
Due to the oppressive nature of the Shelter rules, some of the
residents moved out of the Shelter, although they had no alternative

accommodation.  In fact, some ended up living in an old
building, and one applicant even moved to a shack under a bridge.
As
a result, the applicants brought an application in the High Court and
sought an interdict against the City and MES to
prevent the further
enforcement of these rules.
Litigation history
High Court
[15]
In response to the interdict application, the High Court
granted an interim order in terms of which the impugned rules were
relaxed
until all of the applicants were successfully accommodated
elsewhere.  This, in effect, meant that the applicants were
permitted
access to the Shelter during the day and partners could
live together.
[16]
The applicants, thereafter, launched a constitutional
challenge against these rules.  They sought an order declaring
that the
lockout and family separation rules were unjustifiable
infringements on their constitutional rights to dignity, freedom and
security
of the person, privacy, and access to adequate housing,
enshrined in sections 10,
[9]
12,
[10]
14
[11]
and 26
[12]
of the Constitution.
[13]
In the alternative, the applicants requested the High Court declare
that the accommodation provided at the Shelter did not
constitute
“Housing Assistance in Emergency Circumstances” within
the meaning of the National Housing Code.
[14]
[17]
The High Court held that the lockout rule was a violation of
the rights to dignity, freedom and security of the person, and
privacy.
It caused the residents to be exposed to the dangers
inherent in street life and inhibited their freedom in material
respects.
[15]
[18]
The High Court also held that the family separation rule had
“humiliating consequences” for several reasons.
[16]
It compromised and disrupted the family as a unit and created
an emotional distance in the family relationship; and the inability

to live as a family represented a loss of support for one another.
The Court held further that the rule created an additional

financial burden, on the limited resources of couples, as they would
have to implement ways to mitigate the lack of communication
that the
rule imposed on them when the most basic associative privileges
connected to a permanent relationship were denied to them.
[17]
[19]
As a result, the High Court held that the separation of
families at the Shelter “cut to the very heart” of the
right
to dignity and the right to family life.
[18]
As a result, the High Court concluded that the family
separation rule at the Shelter constituted an infringement on the
rights enshrined in sections 10, 12 and 14 of the Constitution.
[20]
Once it had established that the impugned rules amounted to
infringements on the applicants’ fundamental rights, the High
Court applied section 36 of the Constitution
[19]
to assess whether the limitation of these rights could be justified.
In this regard, the High Court held that section 36(1)
provides that
constitutional rights may be limited only by a “law of general
application”.  The High Court held
that the Shelter rules
were not imposed by a “law of general application”, and
therefore did not represent a justifiable
limitation of the
applicants’ rights in terms of section 36.
[21]
As a result, the High Court concluded that the lockout and
family separation rules of the Shelter were unjustifiable
infringements
on the applicants’ constitutional rights to
dignity, freedom and security of the person, and privacy enshrined in
sections 10,
12 and 14 of the Constitution.  The Court
accordingly interdicted and restrained the City and MES from
enforcing the rules
against the applicants for the duration of their
stay at the Shelter.  In the light of this conclusion, the High
Court did
not consider the alternative claim, whether the Shelter
constituted “housing in emergency circumstances” as
required
by the National Housing Plan.
Supreme Court of Appeal
[22]
The City appealed to the Supreme Court of Appeal against the
decision of the High Court.  The Supreme Court of Appeal
criticised
the applicants for taking issue with the rules of a
bona
fide
institution such as MES, rather than applying for an order
that the accommodation provided by the City, through MES as its
agent,
was not that which had been ordered by the Constitutional
Court.
[20]
The Court held that the lockout rule was “not dissimilar
from those at other institutional buildings”, and that
its
purpose “to ensure the safety and protection of the occupiers”
and “to discourage an attitude of dependence”
was not
unreasonable in all circumstances.
[21]
Concerning the family separation rule, the Court reasoned that MES
could not accommodate all the potential occupiers and
allow men and
women to sleep in the same dormitory without offending many people’s
sense of decency, modesty and decorum.
[22]
Furthermore, partners did not have the right, “always and
everywhere”, to sleep together.  There were instances
in
which this right had to yield, albeit temporarily, to broader
practical demands, such as those related to the business of the

Shelter.
[23]
The Court held that, given all the circumstances, the rules
were not unreasonable.
[23]
The Supreme Court of Appeal accepted that the impugned rules
infringed the applicants’ constitutional rights but held that

the infringement was reasonable.  It further accepted the City’s
argument that, because the Shelter was not a permanent
home but
temporary accommodation, the applicants could not claim to have the
same rights as they would have in their homes.
[24]
In reaching this conclusion, the Supreme Court of Appeal
did not consider the question whether the rules were introduced
by a
“law of general application” as set out in section 36(1)
of the Constitution.  As a result, the Supreme Court
of Appeal
upheld the appeal and set aside the order of the High Court.
In this Court
[24]
The applicants now seek leave to appeal against the decision
of the Supreme Court of Appeal.
Applicants’ submissions
[25]
The applicants submit that the City has not complied with the
order in
Blue Moonlight
because the measures adopted by
the City were inconsistent with the right of access to adequate
housing in section 26 of the Constitution.
The applicants
submit that the temporary housing provided by the City is
inconsistent with the state’s obligation to
take reasonable
measures to progressively realise and give effect to the right of
access to adequate housing in section 26.  They
contend that the
lockout and family separation rules were designed to force them back
onto the streets as admitted by the City.
[26]
The applicants submit that their rights to dignity, freedom
and security of the person, and privacy were infringed by the lockout

and family separation rules.  The High Court and the Supreme
Court of Appeal both recognised that the rules were degrading
to the
applicants and disrupted family life.  The High Court also held
that the rules violated the right to freedom and security
of the
person and the right to privacy.  The applicants support the
conclusion of the High Court that the infringement on
their rights by
these rules was not a justifiable limitation in terms of section 36
because the rules were not introduced pursuant
to a “law of
general application”.  The applicants therefore submit
that the order of the Supreme Court of Appeal
should be set aside,
and that the order of the High Court, on the unconstitutionality of
the lockout and family separation rules,
should be reinstated.
City’s submissions
[27]
The City submits that the rights in question do not apply
because of the nature of the housing provided.  Because the
order
in
Blue Moonlight
directed it to provide “temporary”
housing, the City submits that the applicants are not entitled to the
full gamut
of rights included in the Constitution.  Rather, what
constitutes “reasonable” housing under section 26 depends

on the emergency and the temporary nature of the arrangement.  The
City contends that the applicants had diminished expectations
that
“necessarily attenuated” the rights in question, and that
the High Court erred in basing its findings on the premise
that the
Shelter was a “home”, which is commonly regarded as
permanent housing.  The City submits that the Shelter
was only
temporary in nature as opposed to a home.  Therefore, there has
been no infringement on the applicants’ rights
because the
Shelter constituted reasonable housing in these particular
circumstances.
[28]
In addition, the City does not dispute the allegation that the
rules had a negative impact on the applicants but submits that the

High Court failed to consider the degree to which the rights in
question were in fact limited by the impugned rules, taking into

account the manner in which the rules were implemented.  It
explained that the applicants could ask for the relaxation of
the
rules in deserving circumstances.  It denies that the rules
caused much prejudice.  The City submits that giving
full effect
to the panoply of rights in question would also necessarily undermine
the City’s ability to provide permanent
housing in terms of its
housing programme, in accordance with its constitutional mandate.
Thus, the City submits that the
Shelter constituted reasonable
housing under section 26 in this specific context and denies that the
applicants’ rights to
dignity, freedom and security of the
person, and privacy were violated by the lockout and family
separation rules.  The City
therefore submits that the
applicants have not established that a violation of their
constitutional rights has taken place in the
light of the emergency
nature of the arrangement, and, as a result, the need for a section
36 enquiry does not arise.
First amicus’ submissions
[29]
CALS submits that the right to adequate housing is recognised
in international human rights law both as a self-standing right and

as a component of the right to an adequate standard of living.  CALS
submits that international law is also concerned with
the impact of
housing on women.  In particular, women’s access to
adequate housing is critical to their enjoyment of
other human
rights, and a gendered perspective must be adopted in order to give
effect to women’s right to adequate housing.
States must
also adopt measures tailored to bring about circumstances in which
women enjoy the right to adequate housing.  The
right to
adequate housing is also integral to women’s overall wellbeing.
Because women are primarily responsible for
taking care of the
home, they are particularly vulnerable to gender-based violence
outside the home, and adequate housing is necessary
for their social
empowerment.  CALS concludes that the lockout and family
separation rules are coercive and demeaning, and
that they
disproportionately affect women, as women are burdened by any
disruptions in family life caused by the rules.  The
rules,
therefore, violate international human rights law in a number of
ways.
Second amicus’ submissions
[30]
CCL submits that the Supreme Court of Appeal erred in its
determination that, because
Blue Moonlight
called only for
temporary housing, the applicants do not enjoy the full gamut of
constitutional rights to which they are entitled.
CCL argues
that the duty imposed by the order was that the applicants should be
given a home, which is akin to permanent
housing.  It bases this
argument on four grounds.  First, although the order was vague,
it did require that housing be
provided close to the applicants’
former homes.  Second, the Prevention of Illegal Eviction from
and Unlawful Occupation
of Land Act (PIE)
[25]
itself protects the home of the evictee, and therefore, any remedy
provided under it must be akin to a home, albeit a temporary
one.
Third, section 26(3) of the Constitution and legislation
adopted pursuant to it, including PIE, show that there is a
general
protection against the invasion and loss of a home in the wide sense
of the term.  The right not to be arbitrarily
deprived of a home
in terms of section 26(3) of the Constitution must therefore be
given a generous interpretation.  Finally,
any accommodation
provided short of a home fails to take into account the rights of the
child enshrined in section 28 of the Constitution,
which are
paramount in any matter in which they are concerned.  Therefore,
the applicants are entitled to a home in the wide
sense of the term,
no matter how temporary the arrangement may be.  Therefore,
because the lockout and family separation rules
deprive the
applicants of certain basic characteristics of the home, they violate
the right of access to adequate housing, as well
as the rights to
dignity, freedom and security of the person, and privacy.
Issues
[31]
The issues to be determined are:
(a)
Whether leave to appeal should be granted;
(b)
If so, whether the applicants in their capacity
as temporary
residents are protected by the rights in sections 10, 12, 14 and 26;
(c)
If so, whether the lockout and family separation
rules infringe the
rights in sections 10, 12, 14 and 26; and
(d)
If so, whether the infringement constitutes a justifiable
limitation
of the applicants’ rights.
Leave to
appeal
[32]
This Court is empowered to decide matters of a constitutional
nature and any other matter that raises an arguable point of law of

general public importance, which ought to be considered by it.
[26]
Additionally, it must be in the interests of justice for leave
to appeal to be granted.
[27]
[33]
This application concerns the constitutional validity of the
lockout and family separation rules imposed on the occupiers at the

Shelter.  It therefore raises constitutional matters that engage
this Court’s jurisdiction.
[34]
Moreover, the City utilised MES as an agent in order to fulfil
the obligations imposed on it by this Court’s order in
Blue
Moonlight
.  As a result, the Shelter rules have become
susceptible to constitutional challenge, as if the City itself had
made them.
The rules are not being challenged as a measure
taken by a private actor, but rather the manner in which the City –

a public duty-bearer – decided to fulfil its constitutional
obligation pursuant to the
Blue
Moonlight
order.  This
is significant also because the Shelter is the City’s pilot
project, as it intends to implement these rules
in future
managed-care models.  It will therefore impact future parties in
need of temporary accommodation.  The effect
of this is that the
issue before this Court is one of wider public importance, and it is
in the interests of justice to decide
it.
[35]
It is also in the interests of justice that this Court
determines the question whether the City complied with the order that
this
Court issued in
Blue Moonlight
, as it remains central to
this application.  These factors lead to the conclusion that
leave to appeal be granted.
The constitutionality of the impugned
rules
[36]
In order to answer the question of whether the impugned rules
are constitutional, it is first necessary to determine whether the

City has materially complied with the order of this Court in
Blue
Moonlight
through its provision of temporary accommodation to the
applicants at the Shelter.
What was the City obliged to do in
terms of the order in Blue Moonlight?
[37]
The order in
Blue Moonlight
granted the City’s
application for leave to appeal, but dismissed the appeal.  The
order also upheld the occupiers’
cross-appeal to a limited
extent and set aside the order of the Supreme Court of Appeal in that
case.  This Court replaced
the order of the Supreme Court of
Appeal with an order that required the occupiers to vacate the
property by no later than 15 April 2012,
and that the City
was to provide the occupiers with “temporary accommodation in a
location as near as possible to the area
where the property is
situated on or before 1 April 2012”.  This Court
declared the City’s housing policy,
which made a distinction
between its obligation to provide temporary emergency accommodation
to persons evicted from public property
and private property, to be
unconstitutional.
[28]
According to the order in
Blue Moonlight
, anyone subject to an
eviction order, whether from private or public property, must be
provided temporary accommodation by the
City.  As a result, the
occupiers could not be evicted until the City had provided them with
temporary accommodation.
[38]
In its discussion of the City’s housing policy in
Blue
Moonlight
, this Court referred to sections set out in the City’s
2010 Housing Report in relation to “temporary
accommodation”.
[29]
The Housing Report defined “temporary accommodation”
as “very cheap housing provided for a maximum of one

year”.
[30]
Given that the order was intended to extend the provision of
temporary accommodation in the event of an emergency to persons

evicted by private property owners, it can be inferred that the order
intended to provide accommodation comparable to that provided
to
persons evicted by the City.  The order also did not expressly
impose any limitation on the occupiers’ rights when
it ordered
the City to provide temporary accommodation.
[39]
The City contends that the order was intended to diminish the
rights of the applicants because it provided for temporary
accommodation
only.  But the order did no such thing.  In
my view, the order meant that the City had to provide temporary
accommodation
in accordance with the general legal standards
applicable to the provision of temporary accommodation.  The
order was made
notwithstanding any other rights the occupiers had.
The order certainly did not limit the rights in question in the
present
case, namely, the rights to dignity, freedom and security of
the person, and privacy.
[40]
Moreover, this Court’s decision in
Blue Moonligh
t
recognised that the issue of the provision of temporary accommodation
necessarily implicates section 26(2) of the Constitution.
[31]
This decision was
motivated by a concern that the occupiers
would be rendered homeless should they be evicted.
[32]
At the same time, the Court held that, generally speaking, the risk
of homelessness is the same whether a person is evicted
by a private
property owner or the City.  Therefore, the Court eliminated the
distinction between persons evicted from public
property and those
evicted from private property.  As a result, the Court required
the City to take reasonable measures, within
its available resources,
to prevent homelessness on the part of the applicants by providing
temporary accommodation.
[41]
The City complied, by providing temporary accommodation in the
form of the Shelter, as required by section 26(2).  However,
the
Shelter rules do not themselves constitute a measure in terms of
section 26(2).  Despite the fact that the Shelter rules
were
imposed by the Shelter, and were intended to form a part of the
City’s managed-care policy, they cannot be deemed measures
for
purposes of section 26(2).  As the applicants note, were the
Shelter rules removed, the resultant accommodation provided
by the
Shelter would be satisfactory.  Thus, the Shelter rules can be
separated from the provision of accommodation at the
Shelter itself,
which, again, satisfies section 26(2).  Instead, the Shelter
rules should be analysed separately, insofar
as they implicate any
other rights in the Constitution.  So even though the temporary
accommodation provided by the Shelter
implicates section 26(2), the
Shelter rules themselves at most implicate, as argued here, the
rights to dignity, freedom and security
of the person and privacy.
[42]
The occupiers succeeded in obtaining a right to temporary
accommodation pursuant to the eviction order
.
The Court ordered that the temporary accommodation needed to
be as close as possible to the occupiers’ residence at the
time.
[33]
As a result, the order in no way limited any of the occupiers’
fundamental constitutional rights.  Therefore,
because the
Shelter rules implicate the applicants’ rights under sections
10, 12 and 14, those sections apply.
[43]
While I accept that temporary accommodation is provided to
alleviate a housing crisis and provides a structure for a limited
period,
I remain unpersuaded by the City’s contention that,
because the accommodation provided pursuant to the order in
Blue
Moonlight
need only have been temporary, the applicants are not
entitled to the full protection of the other fundamental rights in
the Constitution
during this temporary period.  The argument,
reiterated several times by the City, that the Shelter does not
constitute a
“home”, and therefore the applicants had
diminished expectations with respect to dignity, freedom and security
of the
person, and privacy is without merit.  Just because the
Shelter does not constitute a home in the everyday, colloquial sense

of the term does not mean that the applicants are not entitled to the
protection of their fundamental constitutional rights.
[44]
The City’s argument is misconceived.  The
Constitution confers the rights guaranteed by sections 10, 12 and 14
on everyone,
regardless of where they are at a given time.
These rights attach to every person and are enjoyed everywhere in the
country,
except where they are limited in terms of section 36 of the
Constitution.  Even those who are incarcerated continue to enjoy

these rights to the extent that the enjoyment is not justifiably
limited.  The real issue here is not whether the Shelter

constitutes a home, but whether the impugned rules amount to a
limitation of the rights in question.
[45]
The City also averred that, because the applicants have been
provided with temporary accommodation, they now have an unfair
advantage
over persons who have applied and have been waiting for
permanent housing.
[46]
I do not agree.  The fact that the applicants have been
provided with temporary accommodation in the form of the Shelter will

not enhance their chances for consideration for permanent housing.
In other words, this does not mean that they have “jumped

the queue”.  In terms of this Court’s order in
Blue
Moonlight
, the City was ordered to provide temporary
accommodation in line with its Housing Policy.  That
accommodation is for a period
of 12 months.  The occupiers have
been living at the Shelter for more than four years as a result of
the ongoing judicial
process.  Furthermore, the City did not
argue that the temporary period has expired.  That is why the
occupiers are still
allowed to continue to live there.  Moreover,
the applicants will have to adhere to the City’s procedures and
rules
and apply for permanent housing and follow the ordinary
processes.  The applicants will not now invariably be provided
permanent
housing merely because they have been provided with
temporary accommodation.
Breach of the rights
[47]
The temporary accommodation given by the City implicates the
rights to dignity, freedom and security of the person, and privacy.
The applicants are thus entitled to the
protection of their constitutional rights in sections 10, 12 and 14.
Again, the fact
that
Blue
Moonlight
called for temporary
accommodation only does not mean the applicants are not entitled to
the full protection of their constitutional
rights.  They flow
from this Court’s order.
I will show below that
the Shelter did not give effect to the applicants’ rights to
dignity, freedom and security of
the person, and privacy.
[48]
The lockout and family separation rules limit the applicants’
right to dignity.  The lockout rule limits the right to
dignity
because it is cruel, condescending and degrading.  It forces the
applicants out onto the streets during the day with
no place
whatsoever to call their own and to rest.  As a result, people
seek refuge on the street while they wait for the
Shelter to re-open.
The lockout rule also disproportionately affects people who
work the night shift and sleep during the
day.  They have
nowhere to rest and get ready for the next shift.  For them in
particular the Shelter is no shelter at
all.  The lockout rule
also treats people like children.  It undercuts the ability of
the applicants to make plans and
to make use of their time as they
see fit.  Clearly, the implication is that the applicants cannot
manage their own affairs
and have to be shepherded to and fro.
[49]
The right to dignity includes the right to family life.
[34]
This right in turn consists of the right to marry and the right
to raise a family.
[35]
The family separation rule creates a vast chasm – between
parents and children, between partners and between siblings
–
where there should be only intimacy and love.  As the High Court
notes, the family separation rule erodes the basic
associative
privileges that inhere in and form the basis of the family.
Therefore, in so many ways, the lockout and family
separation rules
limit the dignity of the applicants.
[50]
It is even more obvious that the lockout and family separation
rules impair the right to privacy set out in section 14 of the
Constitution.
The fact that the applicants are forced out onto
the street during the day means
ipso facto
they do not have
privacy for the duration thereof.  The right is given effect
only if the applicants have a place they can
call their own to which
they can retreat at any time.  The lockout rule destroys their
ability to avail themselves of such
solitude.  One would think
that people who have been evicted from their homes in which they had
some privacy would be provided
a substitute with a measure of the
same.  They were not.
[51]
Finally, the impugned rules limit the right to freedom and
security of the person.  It goes without saying that they
restrict
the movements of the applicants in critical respects.  As
the applicants have complained, they could not go about their
business
because the lockout rule prevented them from accessing the
Shelter during the day and barred them from entry after 20h00.
Because
parents could not visit their children and partners of
different sexes could not stay with each other, the family separation
rule
materially affected the movements of the applicants within the
Shelter as well.  The lockout rule also endangered the
applicants.
In particular, the lockout rule exposed the
applicants to the vagaries of street life both during the day and at
night.  Several
of the applicants have been assaulted.
According to the applicants’ submissions, one applicant
was even stabbed after
he was denied entry at night.  After a
long work shift, or a painful medical procedure, the applicants would
also have nowhere
to rest and would be forced to suffer on the street
after curfew.  The City did not dispute these facts, which
illustrate
the impact of the impugned rules on the applicants.
Is the limitation of the applicants’
rights by the impugned rules justified?
[52]
Now that it has been established that the applicants’
rights have been limited, the next question is whether the
limitations
of these rights can be justified under section 36(1)
of the Constitution.  For the limitations to be justified under
section 36, they must first and foremost be authorised by a “law
of general application”.  This is a threshold
test which
must be met before a justification analysis may begin.  It
cannot be gainsaid that here the impugned rules were
not authorised
by a “law of general application”.  The rules were
imposed by a contract concluded between the
City and MES.
Because the contract is a private agreement and does not bind third
parties, it is the very opposite of a “law
of general
application”.  Absent that law, the City may not invoke
section 36 in an attempt to justify the limitations
created by the
rules in question.
[53]
Consequently, the City has failed to prove that the
limitations flowing from the application of the impugned rules on the
applicants
were reasonable and justifiable in an open and democratic
society based on human dignity, equality and freedom as required by
section
36(1).  It follows that the application of those rules
to the applicants constitutes a violation of their rights guaranteed

by sections 10, 12 and 14 of the Constitution.  Therefore, the
appeal must succeed.
Order
[54]
In the result, the following order is made:
1.
Leave to appeal is granted.
2.
The appeal is upheld.
3.
The order of the Supreme Court of Appeal is set aside and replaced
with the following:
“(a)
It is declared that the application of rules 3 and 4 of the
Ekuthuleni Overnight/Decant Shelter
House Rules constitutes an
infringement of the applicants’ rights to dignity, freedom and
security of the person, and privacy
in sections 10, 12 and 14 of the
Constitution.
(b)
The City of Johannesburg and Metropolitan Evangelical Services are
interdicted and restrained
from enforcing rules 3 and 4 of the
Ekuthuleni Overnight/Decant Shelter House Rules as against the
applicants for the duration
of the applicants’ stay at the
Shelter.
(c)
It is declared that the City of Johannesburg and Metropolitan
Evangelical Services’
refusal to allow the applicants to reside
in communal rooms together with their partners of opposite sexes is
an infringement of
the applicants’ constitutional rights to
dignity and privacy, enshrined in sections 10 and 14 of the
Constitution.
(d)
The City of Johannesburg and Metropolitan Evangelical Services are
directed to permit those of
the applicants who wish to do so, to
reside together with their partners of opposite sexes in communal
rooms at Ekuthuleni for
the duration of the applicants’ stay at
Ekuthuleni.
4.
The City of Johannesburg is ordered to pay the applicants’
costs including
the costs of two counsel in this Court, the Supreme
Court of Appeal and in the High Court of South Africa, Gauteng
Local Division,
Johannesburg.
CAMERON J (Froneman J
and Khampepe J concurring and Madlanga J concurring except for [93]
to [100]):
[55]
I am indebted to my colleague
Mhlantla J for her judgment, which illuminatingly sets out the
facts and issues (first judgment).
I agree with her conclusion:
the rules of the Ekuthuleni Shelter that put the residents out on the
street during daylight hours
(lockout rule) and forbade partners of
opposite sex to overnight together (family separation rule) are not
constitutionally valid
and must be struck down.  But how do we
get to the conclusion that those rules are invalid?  Our reasons
and our approach
differ.
[56]
We start with the question: how does
the Bill of Rights govern the contentious rules of the Shelter?
The first judgment answers
this by saying, rightly, that the
Shelter’s rules infringed the residents’ rights to
dignity, freedom and security of the person, and privacy under
sections 10, 12 and 14 of the Constitution.
[36]
But the first judgment and the judgment of Jafta J (third
judgment)
conclude that the Shelter’s rules
did not concern a measure the City took under section 26 of the
Constitution to progressively
realise their rights of access to
housing.
[37]
The first judgment asserts that the Shelter’s rules “can
be separated from the provision of accommodation at
the Shelter
itself”,
[38]
and that, “even though the temporary accommodation provided by
the Shelter implicates section 26(2)”,
[39]
the impugned rules do not.
[40]
The third judgment, by contrast, reasons that the temporary
accommodation provided by the Shelter does not implicate section

26(2); instead, the City was merely carrying out the
Blue
Moonlight
[41]
court order, which the City was obliged to fulfil.
[42]
The City could not do so, the third judgment reasons, by
superimposing the impugned rules on the
Blue Moonlight
order.
[43]
Nothing in that order spoke about lockout or family separation.
If not authorised together with the eviction order
when originally
issued, add-on rules and conditions – like those in issue here
– are thus invalid and do not implicate
the residents’
rights under section 26 at all.
[57]
The distinction the first judgment
makes between the provision of temporary accommodation and the rules
the Shelter imposed in providing
it is unpersuasive.  The
Shelter’s rules were an integral part of the temporary
accommodation it provided.  Indeed,
the rules were sourced in
the
Blue Moonlight
order
sanctioning the temporary accommodation.  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.
[58]
This too is the fundamental
difficulty with the approach of the third judgment.  It is that
the
Blue Moonlight
order gave no details, no guidance on how the City was to provide the
residents with temporary accommodation.  The Court simply

ordered the City to provide the residents with “temporary
accommodation” as near as possible to their old homes.
It
did not say how the City should do this.  What type of
accommodation?  With or without other people?  In family

units?  Or separated by gender?  And how many people per
room?  What meals?  What ablutions?  What lockout

hours?  None of that was before the
Blue
Moonlight
Court.  And obviously
so.  It was the City that was obliged, in fulfilling the order,
to fill out the details.
And, in doing so, it had to act
reasonably.  And this requirement derived from the
reasonableness standard in section 26.
For, while this Court’s
order in
Blue Moonlight
mandated the provision of temporary emergency housing – rather
than permanent housing – it nonetheless engaged the
residents’
right under section 26 to access adequate housing.  Fulfilling
that order equally engaged that right.
[59]
The temporary housing at issue here,
even though afforded in response to a court order, remained a measure
to achieve the progressive
realisation of the right to adequate
housing.  All of the parties recognised this.  Their
arguments – that of the
residents, the City and the
amici
– proceeded on the implicit and explicit assumption that
section 26 governed whether the
Blue
Moonlight
order had been fulfilled.
This Court’s previous decisions on temporary housing –
Grootboom
,
[44]
Joe Slovo
[45]
and
Blue Moonlight
– have all repeatedly made clear that section 26 applies.
And the logic no less governs government’s actual
implementation of a court order granted under section 26: the
reasonableness criterion that governs the right itself applies here,

too.
[60]
The second question is: were the
Shelter’s rules reasonable?  The first judgment turns to a
limitations assessment under
section 36(1) of the Bill of
Rights.
[46]
It finds a simple reason why the City has failed to justify the
infringements the accommodation imposes: no “law of
general
application” can be found.
[47]
For the limitations to be justifiable under section 36, the first
judgment finds—
“
they
must first and foremost be authorised by a ‘law of general
application’.  This is a threshold test which must
be met
before a justification analysis may begin.  It cannot be
gainsaid that here the impugned rules were not authorised
by a ‘law
of general application’. . . .  Absent that law, the City
may not invoke section 36 in an attempt to
justify the
limitations.”
[48]
[61]
This approach is similar to that of
the High Court (Wepener J), which decided that it is not
possible to conduct a reasonableness
enquiry without first locating a
“law of general application”.
[49]
By contrast with the approach of the first judgment, however, the
High Court explicitly recognised that the City’s
efforts in
response to the
Blue Moonlight
order were measures to fulfil social and economic rights.
[50]
[62]
On appeal, the Supreme Court of
Appeal reversed the High Court’s judgment.  It concluded
that the measures were in fact
reasonable.
[51]
It cited rights-limitation as the basis for embarking on a
reasonableness enquiry,
[52]
but made no mention of any “law of general application”.
The approaches of the High Court and the Supreme Court
of Appeal
therefore implicitly differ on whether it is possible to enquire into
the reasonableness of a measure intended to fulfil
socio-economic
rights without first establishing the existence of a “law of
general application” enabling that measure.
[63]
The approach to “law of
general application” the High Court and the first judgment
adopt raises more problems than it
may seem to solve.  It
deflects attention from the first question that arises when measures
taken in progressive realisation
of social and economic rights are
assessed for reasonableness.  That is not whether they are
justified in terms of a “law
of general application”, but
whether, as section 26(2) of the Bill of Rights itself requires, they
are
reasonable
.
This has always been the central enquiry in determining the
constitutional soundness of socio economic rights measures.

The great cases this Court has decided in this field –
Grootboom
,
[53]
TAC
[54]
and
Mazibuko
[55]
– focussed almost exclusively on the reasonableness of the
measures at issue, and not on whether any “law of general

application” authorised them.
Was the temporary
housing here a section 26 “measure”?
[64]
The right at issue here is grounded
in section 26.  Section 26(1) is concerned with the provision of
adequate housing that
can be either temporary or permanent, while
section 26(2) demands that measures taken by a local authority in
progressively realising
this right must be reasonable.  The
third element in the housing rights provision, section 26(3), ensures
that no one will
be evicted from their home without a court order
made after considering all the relevant circumstances.  The
three parts of
section 26 must be read and understood together.
The cases say so.
[56]
And it makes good sense.
[65]
While
Blue
Moonlight
authorised merely a
standalone temporary housing programme, this does not change the fact
that section 26 of the Constitution is
implicated – nor that
section 26 governs whether the City, in fulfilling the
Blue Moonlight
order, did so properly and faithfully.  Indeed, this Court’s
judgment in
Blue Moonlight
approaches the question whether the City’s then temporary
emergency accommodation policy was constitutionally valid entirely
as
a matter of whether it was “reasonable” or a breach of
section 26.
[57]
Blue Moonlight
proceeds on the premise that a claim to temporary accommodation is a
right within section 26, falling under government’s
obligation
to take reasonable measures to provide access to adequate
housing.
[58]
And it finds that the City’s housing policy conflicted with
section 26 in that it failed to extend temporary accommodation
to
those evicted by private landowners.
[59]
The core of the Court’s reasoning in extending the section 26
right to temporary accommodation proceeds from sections
9(1) and
26(2) of the Bill of Rights.
[60]
[66]
I disagree with the conclusion of
the third judgment that the residents’ occupation of the
Shelter did not flow from a measure
the City took to progressively
realise their right of access to adequate housing.  The third
judgment claims that the “impugned
rules are all regressive
measures”,
[61]
but there is no basis for the conceptual distinction between
progressive measures that are constitutional and regressive measures

that are unconstitutional.  To say that no decision of this
Court holds that the imposition of unconstitutional rules, in
the
process of complying with an eviction order requiring temporary
housing, amounts to a breach of section 26(2),
[62]
is obviously correct, but it seems to me to beg the question.
This is whether the rules are constitutional or unconstitutional
in
the first place.  And that question can be answered only by
invoking the right at issue, which is the right of access to
housing,
section 26, and the requirement of reasonableness that section 26(2)
embodies, and under which
Blue Moonlight
issued its order.
[67]
The
Blue
Moonlight
Court was not oblique about
the fact that the section 26 right embraces government measures
providing temporary housing.
It spelt it out:
“
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
.”
[63]
(Emphasis in original.)
[68]
This is both logically and textually
sound.  Providing temporary housing, as this Court recognised in
Blue Moonlight
,
constitutes a measure in fulfilment of section 26.  The
first and third judgments swivel all this round to face the
other
way.  But the consequences are perilous.  If fulfilling a
temporary emergency housing order is not governed by
section 26, what
right applies?  How can evicted occupiers argue for their rights
under section 26 in future?  And what
must a government agency,
that wants to impose reasonable conditions on the temporary housing
it provides, do to ensure that those
conditions conform with the
order?  Must it hurry back to the court that issued the original
order each time?  That cannot
be.  The correct position is
surely that, when government provides temporary housing in fulfilment
of a court order, section 26(2)
and its reasonableness criterion
govern the way in which it does so.  For how else could one
determine whether the measures
to fulfil the court order are
reasonable?
[69]
What is more, this Court’s
approach in
Blue Moonlight
was consistent with its approach in every prior case concerning
temporary housing.  Every case has dealt with the constitutional

validity of these measures under section 26.
[70]
In
Grootboom
,
this Court had to consider temporary housing at a time when no
express policy existed to facilitate it.
[64]
The Court located the right to temporary accommodation squarely at
the heart of section 26:
“
The
national government bears the overall responsibility for ensuring
that the state complies with the obligations imposed upon
it by
section 26.  The nationwide housing programme falls short of
obligations imposed upon national government to the extent
that it
fails to recognise that the state must provide for relief for those
in desperate need.  They are not to be ignored
in the interests
of an overall programme focussed on medium and long-term objectives.
It is essential that a reasonable part
of the national housing budget
be devoted to this.”
[65]
[71]
The same appears from all the
judgments this Court delivered in
Joe
Slovo
.
[66]
There, the land from which the occupiers were sought to be evicted
was earmarked for government housing development.
[67]
In the interim, government sought to house the occupiers in temporary
accommodation.
[68]
Not all of the occupiers would be able to return to Joe Slovo –
but all would ultimately be provided with permanent
housing.
[69]
[72]
The judgments in
Joe
Slovo
give insight into how temporary
accommodation is integral to section 26.  In the context of
relocation to temporary accommodation,
Ngcobo J explained:
“
The
Constitution, in particular section 26(3), recognises that at times
it may be necessary for the government to relocate landless
people
and people who are living in deplorable conditions in order to
provide them with access to adequate housing.  This
may be
necessary either because the land they occupy must be upgraded or
developed in order to provide decent houses for them in
that area, as
the present case illustrates, or because they are occupying the land
without the permission of the landowner and
the landowner requires
the land.  However, these relocations must take place in
accordance with the Constitution and the law,
in particular section
26(3).”
[70]
Ngcobo J expressly
stated that temporary housing measures are measures under section
26.  He said that “government, consistent
with its
obligation to promote access to adequate housing, has committed
itself to alleviating the consequences of relocation”.
[71]
He further specifically describes the arrangement of temporary
accommodation as “the government . . . fulfilling its

constitutional obligation to facilitate the right of access to
adequate housing”.
[72]
To the same effect was Sachs J.
[73]
This makes unmistakably clear that the temporary housing measures
were part of government’s section 26 obligations.
[73]
This makes sense.  For it would
endanger a coherent understanding of government’s duties in
fulfilling its social and
economic rights obligations – as well
as vulnerable peoples’ rights to delivery – if section 26
were not implicated
at all.  It is against this background that
I do not agree with the third judgment’s suggestion that the
execution of
the
Blue Moonlight
order was not governed by section 26(2).
Were the Shelter’s
rules, post-Blue Moonlight, reasonable?
[74]
The rich text of the Bill of Rights
asks those bound by it, including courts, to understand it as a
whole, by reading its rights
and limitations together and
understanding the language it uses consistently and coherently.
[74]
This Court has laid down that, out of proper concern for
intelligibility, the same word where it appears a number of times
in
a statute must be understood to have the same meaning.
[75]
Of course, the Bill of Rights is no mere statute.  On the
contrary, it is a charter that governs the exercise of
power so as to
fulfil the fundamental values of our constitutional order.  But,
in understanding what it requires of those
bound by it, a proper
concern for its intelligibility all the more requires a broad
consonance of meaning.
[75]
This means that the word
“reasonable” in section 36(1) must mean the same, or at
least entail the same interpretive
process,
[76]
as where the Bill of Rights uses it elsewhere to prescribe what
measures the state is obliged to take to achieve social and economic

justice.
[77]
Section 36(1) is subject to the internal standard of reasonableness
built into section 26(2).  We should confront the
difficult
contextual questions this case raises within that reasonableness
enquiry.
[76]
To determine whether a measure is
“reasonable”, it is necessary to thoroughly scrutinise
any rights-limitations it may
inflict.  This must be done by a
careful assessment coordinate with, and closely akin to, that
required by section 36(1).
This means taking context into
account.  Counsel for the residents rightly suggested in reply
that this enquiry must be both
purpose- and circumstance based.
The nature of the right and the obligation must in each instance also
be assessed.
[77]
Hence, depending on the right
infringed, the reasonableness criterion may vary in intensity.
Some limitations on rights will
be approached with more scepticism
than others, and some infringements will be scrutinised more
intensely.  For example, the
scrutiny in determining the
reasonableness of a measure that affects the right to life will
differ if that measure is designed
to progressively realise the right
of access to healthcare – in contrast to where the disputed
measure is justified merely
by a lack of resources.
Demonstrated resource scarcity may mean that the measure could more
easily be shown to be reasonable.
[78]
But the scrutiny will nevertheless be intense because of the right at
issue.
[78]
Again, a rights-limitation imposed
by a measure to provide emergency housing may require different
treatment to one providing access
to non-emergency, adequate
housing.  Consider a disaster by fire or flood or earthquake.
Would lockout and family separation
rules in its aftermath be
reasonable?  It may well be that ad hoc arrangements do not
infringe dignity because those subjected
to them do not perceive or
feel them to infringe their dignity.  But even if they do
infringe dignity, they might nevertheless
be reasonable.
[79]
But the rules here were not
reasonable.  My reasons accord with those my colleague sets out
in explaining her conclusion that
the rules infringe on the
residents’ rights.  The lockout rule seems only tenuously
connected to any housing related
purpose.  The residents’
complaint seems warranted that the rule really aims to get them out
of the Shelter to forestall
any supposedly self-indulgent lazing
around and instead impel them to active job-seeking.  Indeed,
the City more or less acknowledged
this in its papers.
[80]
Counsel pointed out in reply that
the rules seemed to treat the residents as they do
because
they are poor
.  To put it this way
– that the rules were based on the residents’
socio-economic status – is another way
of challenging the
infringement they entailed.  Both rules appear to treat those
subject to them as worthy of less consideration.
They seem to
be telling the residents something about themselves as people,
demeaningly.
[81]
Two arguments the City made deserve
further consideration.
[82]
The first is that many tens of
thousands – in fact hundreds of thousands – of people in
the city of Johannesburg are
worse off than the residents.
Although the rules subjected the residents to daytime lockout and
night-time separation, they
had square nourishing meals, shelter from
the elements, warmth and protection, and effective ablutions.
This in a city where
many live in abject conditions, hungry,
shelterless and cold.  This fact, the City seemed to urge,
should make us judge the
limitations the rules impose more leniently.
[83]
The City’s second argument is
that the two rules save money – which the City urgently needs
for those even worse off
than these residents.
[84]
These two points are related.
The second, budgetary point seems a little easier to deal with than
the comparative welfare
point.  That the two rules save money,
however marginally, seems to me a justified inference.  Striking
them down will
require more expenditure on those subject to them with
the result that there will be less in the City’s budget for
others
worse off than those before us now.
[85]
Yet, as in
Blue
Moonlight
,
[79]
the City’s resources argument here was thin.  The most
detail the City gave was that abolishing the lockout rule would
raise
monthly costs per resident from R990 to R1 300.  (This cost
analysis was in fact provided by the Shelter, not the
City.)  As
against this, the residents correctly pointed out that the facilities
the City said ameliorated the lockout rule,
namely the daytime
drop-in centre and skills centre, themselves cost money because,
unlike the Shelter, they were open all day
using costly resources.
[86]
So, the City’s argument that
housing is a zero-sum game – where if you require better
treatment of one group, another
group necessarily suffers – is
not borne out by the facts here.  The material in the record is
unpersuasive.  The
City’s notional assertion that every
rand spent on the residents counts against money for others who need
shelter is undoubtedly
correct – but it cannot prevail in the
general terms in which the City propounded it here.
[87]
The comparative welfare argument is
more difficult.  It, too, has punch.  Why should we
countenance the residents’
complaints about what the City is
doing for them when others, who do not have what they have, are much
worse off and would want
it?
[88]
The question is hard.  It can only be
answered by moving back from the abstract.  These litigants are
before us now.
They make a claim to concern, respect and
dignified treatment that cannot be waved away by the fact that
others, who are worse
off than they, may also have claims.
The
reasonableness of public treatment of the vulnerable cannot depend
only on the fact that what they are getting is better than
that of
others who are worse off
.  The question is
not whether others are worse off, but whether these measures the City
is taking here, now, with this vulnerable
group, affords them
sufficient care, respect and dignity.  That question must be
answered each time in concrete terms, within
the framework the Bill
of Rights sets, including available resources.
[89]
A court should not have to determine
in the abstract who are the worst-off.  A court is obliged to
adjudge the claims of those
who are before it on their own merits.
If the comparative welfare of others, or their lack of it, could
without more justify
deprivation of benefits, this could imply a race
to the bottom, where the hierarchy of the worse-off determines who is
entitled
to dignity.  This could lead to infinite regressions of
impoverishment and misery.
[90]
Vulnerability and dependence explain
why prisoners in South Africa received anti-retroviral treatment long
before members of the
public did.
[80]
Their confined status gave them a special claim to concern and
treatment.
[81]
The fact that others, not imprisoned, were fatally worse off, did not
justify denying the prisoners treatment.
[91]
While the residents here are not in
prison, they were evicted from their homes and, thus, too, have a
special claim to concern.
Their eviction was constitutionally
permissible only because, under
Blue
Moonlight
, the City incurred an
obligation to provide them with suitable alternative
accommodation.
[82]
It would make a nonsense of that obligation to say the City fulfils
its duty to them so long as it provides accommodation
that is
marginally better than the worst-off have.
[92]
This is tough.  There is a
painful clash of principles here.  But we do better to
acknowledge it than to obscure it.
Hence, I would prefer to
defer final determination of what a “law of general
application” in section 36 means to another
case where we are
obliged to confront it.  However, I should say now that I do not
agree with the first judgment’s view
that “law of general
application” is a threshold consideration that can preclude
limitations analysis.  It is
possible – must be possible –
to enquire into the reasonableness of a measure intended to fulfil
section 26 without
first hunting down a “law of general
application” enabling that measure.
[93]
Nonetheless, recognising that we can
assess the reasonableness of the Shelter’s rules without a “law
of general application”,
it does seem to me that the order in
Blue Moonlight
was
indeed a “law of general application”, in which the
Shelter’s rules were sourced – and that they unlawfully

limited the residents’ rights to dignity, freedom and security
of the person, and privacy.
[94]
The complexities in construing “law
of general application” are considerable.  They were not
fully argued before
us.  The residents merely invoked the High
Court’s reasoning, which they described as “undoubtedly
correct”.
[83]
That reasoning (truncated, perhaps, because the point was not
properly argued there either)
[84]
was that a section 36 limitations assessment cannot get off the
ground at all “[i]n the absence of any legislative
provision”.
[85]
As the residents tersely put it, the section does not arise in this
case because there is no statute.
[95]
This argument cannot stand.  It
runs counter to the Constitution’s own provisions.  These
expressly state that section
36 may justify a rights-infringement
embodied not in statute but in judge-made law.  The Bill of
Rights explicitly empowers
the courts to “develop rules of the
common law to limit” a right, provided this is in accordance
with section 36.
[86]
So, the term “law” in section 36 must include at least
the common law.
[96]
The argument also sits uneasily with
our system of government.  It is true that section 36 derives
from an analogous provision
in the German Basic Law.
[87]
That provision is underpinned by the notion that the “
legislature
is the only body with the necessary legitimacy to limit the use of
the fundamental freedoms”
.
[88]
But there is a reason for this narrow approach.  It is because
“there is no system of common law in Germany”.
[89]
[97]
It has rightly been said that
common-law norms have a “legislative quality” –
this even though “deliberations
by judges are private and the
ordinary person who is a stranger to litigation will have few if any
opportunities to have input
in the result” – because of
“the combination of the open justice process, the historical
role of courts in identifying
and developing the common law, and the
public reasons given in a judgment explaining a particular common law
position”.
[90]
[98]
Section 36 states that a
rights infringement may be justified not “by” or
“under”, but “in terms
of” a “law of
general application”.  “In terms of” is much
broader than “by” or
“under”.  It is
advisedly capacious.  It allows that the policy at issue here,
though not itself law, may
be
sourced
in law.
[91]
Similarly, the analogous German provision says that the
rights infringement must be “by
or
pursuant to
a law”.
[92]
The government action that is the immediate cause of the
rights-infringement need not itself be a law, provided it is legally

authorised.
[93]
[99]
This, of course, does not suggest
that any policy, practice, standard or daily decision made by a
government agency or local authority
could justify a
rights infringement.  Policies meant for purely internal
use, for example, could not.
[94]
But that is for a different reason.  It is because people are
entitled to know the extent of their rights.  To
this end, norms
intended to limit rights must be both adequately accessible and
precisely formulated.
[95]
[100]
In the present case, the Shelter’s
rules were sourced in a “law of general application” –
the order in
Blue Moonlight
–
and were both accessible and precise.  They were also not
reasonable, for the reasons the first judgment gives.
[101]
For these reasons, I concur in the
order in the first judgment.
JAFTA J (Mogoeng CJ concurring except
for [116] to [118] and Mojapelo AJ concurring):
[102]
I have had the benefit of reading the judgments prepared by my
colleagues Mhlantla J (first judgment) and Cameron J (second
judgment).
I agree with the first judgment that the
application of the impugned rules of the Shelter on the applicants
constitutes an
unjustifiable violation of their rights which are
guaranteed by sections 10, 12 and 14 of the Constitution.
However, I do
not agree with the second judgment that those
rules amount to a measure contemplated in section 26(2) of the
Constitution
and that their application to the applicants violated
the provisions of this section.
[103]
I do not think that section 26(2) finds application here.
This is because the occupation of the Shelter by the applicants does

not flow from a measure taken by the City within its available
resources to make the applicants’ right of access to adequate

housing progressively realisable.  Instead, the City afforded
them accommodation at the Shelter in compliance with the Court’s

order in
Blue Moonlight
.
[96]
Blue Moonlight and background
[104]
In
Blue Moonlight
this Court granted an order in these
terms:
“(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 situated 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.”
[97]
[105]
It is apparent from the order that the City was directed to
give the applicants temporary accommodation on or before 1 April 2012

and that the applicants were to be evicted from Saratoga Avenue on 15
April 2012.  But the City failed to comply.  On

12 April 2012, the applicants instituted an urgent
application in the High Court, seeking to compel the City to obey
the
order before they could be evicted on 15 April 2012.
The High Court postponed the eviction to 2 May 2012 and
directed that
the City provide the applicants with accommodation by not later than
30 April 2012.
[106]
Acting in terms of the order, the City offered occupiers of
Saratoga Avenue who could afford R600 per month rental payment,
relocation
to a building known as MBV Phase 2 in the city centre.
As the applicants could not afford the rent, they were informed that

they would be accommodated at the Shelter which was designed for, and
provided, overnight accommodation to homeless people.
The
applicants were also told about the rules and conditions under which
they would stay at the Shelter.  They objected to
these rules
and conditions.  As the date of their eviction from Saratoga
Avenue was approaching, they were constrained to
relocate to the
Shelter.  They vacated Saratoga Avenue and moved into the
Shelter on 2 May 2012.
[107]
Despite their objections, upon arrival at the Shelter they
were subjected to the impugned rules.  The MES refused to engage

with them and their legal representatives.  They averred that
the Shelter merely told them that they would stay there for
six
months, which date would have expired on 31 October 2012.
According to the applicants, they had a document
that stated that
they would be accommodated at the Shelter for up to 12 months.
[108]
Fearing that they could be evicted on 31 October 2012, the
applicants launched an urgent application in the High Court against
the
City and MES.  This was after the City had refused to assure
them that they would not be evicted.  The application was

opposed by both parties who sought to justify the impugned rules for
various reasons, including the need to keep peace and order
at the
Shelter.
[109]
The High Court held that the rules in question constituted an
unjustifiable infringement of the applicants’ rights entrenched

in sections 10, 12 and 14 of the Constitution.  On appeal, the
Supreme Court of Appeal overturned this conclusion and set
aside the
order of the High Court.
[110]
The applicants sought to reverse the order of the Supreme
Court of Appeal in this Court.  It is against this background
that
the question of whether section 26(2) of the Constitution
applies must be assessed.
[111]
The applicants claimed that the impugned rules violated rights
in sections 10, 12 and 14 of the Constitution.  The

fact that the applicants also asserted that those rules were
inconsistent with section 26(2) of the Constitution does not, by
itself, make the section applicable.  What determines the
applicability of section 26(2) is the nature of the real dispute

between the parties.  And that dispute was not the state’s
failure to take a measure that would have progressively made
access
to adequate housing by the applicant realisable.
[112]
When the City offered the applicants temporary accommodation
at the Shelter, it was not discharging an obligation under section
26(2).  On the contrary, it was carrying out the order of this
Court in
Blue Moonlight
as reinforced by the High Court.
It is evident from the terms of that order that the City had no right
to impose the impugned
rules on the applicants in complying with the
order.  That order did not empower the City to violate the
applicants’
fundamental rights.
[113]
None of the decisions of this Court, cited in the second
judgment, deal with a situation in which there was an improper
compliance
with an eviction order.  I am not aware of any
decision that holds that the imposition of unconstitutional rules, in
the process
of complying with an eviction order requiring the state
to provide temporary accommodation, amounts to a breach of the
obligation
in section 26(2) of the Constitution.  It is
difficult to imagine an eviction case where a court concludes that it
is just
and equitable to issue an eviction order and grants it, but
later it is held that section 26(2) is implicated when that order is

wrongly carried out.
Circumstances under which section
26(2) applies
[114]
It seems to me that if section 26(2) were to apply, it must be
invoked
before
the eviction order is granted.  It must be
one of the “relevant circumstances” the court considers
before granting
an eviction order.  Once an order for eviction
is granted, part of which includes an order that the state must
provide alternative
or temporary accommodation, all that needs to
happen is to enforce that order.  The litigation must come to an
end.
Whatever is provided must accord with the terms of the
court’s order.
[115]
The enquiry into whether the rules of the Shelter constituted
a reasonable measure as contemplated in section 26(2) was not part
of
the case in
Blue Moonlight
.  The measure that was raised
in
Blue Moonlight
was the City’s housing programme which
afforded temporary accommodation to people evicted by the City itself
from buildings
that were considered to be unsuitable for human
habitation.  Therefore, the enforcement of the order granted
there cannot
depend on whether the rules adopted by the City, after
the order was issued, were reasonable.  If that evaluation could
lead
to the conclusion that the rules were reasonable, could it be
said that the rules determine how the City should comply with a court

order?  Litigants do not decide how they should carry out court
orders.  Nor do they have a right to impose conditions
on how an
obligation imposed by a court order should be discharged.
[116]
Differently put, section 26(2) indeed applies to eviction
proceedings – but at a different stage.  The view I take
here
accords with the decision of this Court in
Joe Slovo
.
In that matter Yacoob J said:
“The
applicants are being evicted and relocated in order to facilitate
housing development.  In the circumstances their
eviction
constitutes a measure to ensure the progressive realisation of the
right to housing within the meaning of section 26(2)
of the
Constitution.
. . .
Eviction is a
reasonable measure to facilitate the housing-development programme.
In addition, all the factors discussed in
relation to the question
whether it is just and equitable to grant the eviction order also
justify a conclusion that the eviction
is, in the circumstances,
reasonable.”
[98]
[117]
In the same matter Ngcobo J stated:
“I agree with
Yacoob J that, in these circumstances, the eviction and relocation of
the residents is a reasonable measure
to facilitate the
housing-development programme.  Neither the Constitution nor PIE
precludes the relocation sought by the
government.”
[99]
[118]
It is apparent from
Joe Slovo
that whether an eviction
measure, taken by the state, can be said to constitute a reasonable
measure in terms of section 26(2),
is dependent in part on the
question whether it will be just and equitable to grant the eviction
order.  In other words, whether
what was done to achieve an
eviction was reasonable, must be determined before the granting of
the eviction order.  And the
purpose of this enquiry would be to
decide whether the eviction would be just and equitable.  In
this regard Ngcobo J observed:
“The question
to be answered then is whether on the facts and circumstances of this
case it is just and equitable for the
residents to be relocated to
Delft.  A relevant factor in deciding whether it is just and
equitable to relocate the residents
is the purpose of the relocation.
And the purpose of the relocation must be viewed in the light
of the right of access to
adequate housing, and, in particular, the
constitutional duty of the government to facilitate the progressive
realisation of the
right of access to adequate housing imposed by
section 26(2) of the Constitution.”
[100]
[119]
That is not the case here.  The City here was obliged
merely to implement the
Blue Moonlight
order – but now
it seeks to invoke new rules in doing so, under the guise of
authority derived from section 26(2).  Once
a court reaches the
conclusion that the eviction should be granted and issues the order,
no new measure may be adopted by the state
under the guise of section
26(2), pertaining to the eviction order already granted by the court.
Do present rules constitute a section
26(2) measure?
[120]
Apart from the incorrect stage at which section 26(2) was
sought to be invoked here, the impugned rules can hardly be said to
qualify
as a measure whose purpose is to ensure the progressive
realisation of the right of access to adequate housing.
Section 26(2)
contemplates measures that are taken in the
furtherance of progressively making the right to adequate housing
realisable within
the state’s available resources.  On the
contrary, the impugned rules are all regressive measures.  For a
measure
to fall within the ambit of the section, it must seek to
achieve progressive access to adequate housing.  And if
implemented,
it should be capable of attaining that objective.
This is because the section empowers and obliges the state to take
measures
whose objective is to achieve that singular purpose.
The impugned rules do not meet this basic requirement.
Temporary accommodation
[121]
While it is true that temporary accommodation may constitute a
measure envisaged in section 26(2), it does not follow without more

that every temporary accommodation is provided in terms of this
section.  If that were the position, it would be fertile ground

for queue-jumping by unscrupulous and illegal occupiers of land.
The purpose of temporary accommodation in cases like the
present is
to avoid homelessness, arising from the execution of an eviction
order.  It does not amount to a progressive realisation
of
access to adequate housing.  And because the accommodation is
provided for a temporary period, it does not mean that once
provided,
the state must continue to provide it for as long as the occupiers
would be rendered homeless.
[122]
The duration of the temporary accommodation would depend on
circumstances relevant to a particular case.  These include the

financial resources of the occupiers, on the one hand, and those of
the state, on the other hand.  Here the duration of the

temporary accommodation was determined with reference to the City’s
own housing programme, which provided for temporary accommodation
for
a period of 12 months.  Preferably, when the order for temporary
accommodation is made, the duration for providing that
accommodation
must be specified.
Compliance with order
[123]
In complying with the
Blue Moonlight
order, the City
committed a monumental irregularity that should not be condoned.
It was ordered to provide temporary accommodation
to the applicants
without any conditions.  It decided, of its own accord, to
impose conditions under which the applicants
were to access that
accommodation.  This is impermissible.
[124]
What is more, the conditions introduced by the City
unjustifiably limited a number of the applicants’ fundamental
rights.
In doing so the City breached section 7(2) of the
Constitution which obliged it, as an organ of state to “respect,
protect,
promote and fulfil the rights in the Bill of Rights”.
[101]
This conduct by the City violated the dignity of vulnerable people
whose financial circumstances did not enable them to rent

accommodation as they could not afford the R600 monthly rental
charged by the City.  The residents of Saratoga Avenue who
could
pay this rent were not subjected to the same conditions that violated
their dignity.
[125]
The indignity suffered by the applicants at the hands of the
City was egregious.  Their sin was that they could not afford
R600 for rent.  Those who could were not subjected to the same
treatment.  The highhandedness with which their situation
was
handled by both the City and MES was remarkable.  These two
bodies adopted the attitude that said, if you come to stay
at my
house you must obey my rules.  This was at odds with why the
applicants ended up at the Shelter, which was chosen by
the City as a
temporary accommodation ordered by the Court.  It was as if the
applicants came there at the pleasure and generosity
of the City.
On the contrary, the City was not doing them a favour.  It was
discharging its obligation under a court
order.
[126]
In these circumstances the conduct of the City seriously
undermined not only the court order but also the Constitution.
That
conduct denied the applicants the enjoyment of rights guaranteed
to them by the supreme law, in circumstances where the applicants
had
already obtained judicial relief.  That relief was rendered
somewhat hollow.  With the kind of stance taken by the
City
here, the journey to an egalitarian society envisaged in the
Constitution would take a lot longer to complete, if ever
it will be
completed.  This is because the state on which the primary
mandate to drive that transformation falls, fails to
carry out its
constitutional obligation.
[127]
What makes matters worse is the fact that the applicants are
not only a group of poor people but are part of those who were denied

dignity under the apartheid order.  In
Makwanyane
O’Regan
J said about the right to dignity enshrined in section 10 of the
Constitution:
“Respect for
the dignity of all human beings is particularly important in South
Africa.  For apartheid was a denial of
a common humanity.  Black
people were refused respect and dignity and thereby the dignity of
all South Africans was diminished.
The new Constitution rejects
this past and affirms the equal worth of all South Africans.
Thus recognition and
protection of human dignity is the
touchstone of the new political order and is fundamental to the new
Constitution.”
[102]
[128]
As the first judgment illustrates, the impugned rules also
violated the applicants’ privacy and the rights guaranteed by
section
12 of the Constitution.  The City’s failure to
respect, protect and promote these rights does not accord with its
duty,
as part of the state, to be exemplary in its conduct.  In
Makwanyane
this duty was expressed in these terms by Langa J:
“Implicit in
the provisions and tone of the Constitution are values of a more
mature society, which relies on moral persuasion
rather than force;
on example rather than coercion.  In this new context, then, the
role of the State becomes clear.  For
good or for worse, the
State is a role model for our society.  A culture of respect for
human life and dignity, based
on the values reflected in the
Constitution, has to be engendered, and the State must take the
lead.”
[103]
[129]
Here the City ignored the applicants’ objection to the
rules and sought to justify them on a number of reasons.  With

regard to the daytime lockout rule, the City asserted that the rule
“incentivised” the applicants to go to work during
the
day or seek employment.  It is more concerning that when
resolution of the dispute eluded the parties and the applicants

decided to approach the courts, their efforts were initially
undermined by the City’s objection to them consulting with
their lawyers at the Shelter and the Shelter denying them permission
to use its facilities for such consultation.  All of this
did
not accord with respecting the applicants’ rights, let alone
promoting them.
[130]
It is for these reasons that I
support the order proposed in the first judgment.
MADLANGA J:
[131]
I have read the three judgments by my colleagues, Mhlantla J
(first judgment), Cameron J (second judgment) and Jafta J (third
judgment).
But for one issue, I agree with the reasoning in the
second judgment.
[132]
The second judgment first holds that the Shelter’s rules
constitute a “measure” under section 26(2) of the
Constitution.
It also holds that – as a consequence –
the “reasonableness” criterion elucidated in this Court’s

seminal jurisprudence
[104]
finds application in this case.  It then concludes that the
Shelter’s rules do not meet that reasonableness criterion.

That is sufficient to justify a holding that the Shelter’s
rules are constitutionally invalid.
[133]
But the second judgment does not end here.  Whilst it
states that in the present context the meaning of “law of
general
application” is best left for determination on another
day, it proceeds to hold that “the order in
Blue Moonlight
was indeed a ‘law of general application’, in which the
Shelter’s rules were sourced”.
[105]
This is not necessary at all.  As correctly pointed out by the
second judgment, the “complexities in construing
‘law of
general application’ are considerable” and the issue was
not fully canvassed by the parties.
[106]
In the circumstances, I am loath to be party to this debate,
especially as it appears to be
obiter
.
For the
Applicants:
A De Vos SC, S Wilson, I De Vos and M Stubbs
instructed by
Socio Economic Rights
Institute of South Africa
For the First
Respondent:

C D A Loxton SC and A W Pullinger
instructed by
Moodie and Robertson Attorneys
For the First Amicus
Curiae:

E Webber
instructed by
Legal Resources
Centre
For the Second Amicus
Curiae:

J F D Brand instructed by Centre for Child Law
[1]
City of Johannesburg v Dladla
[2016] ZASCA 66
;
2016 (6) SA
377
(SCA) (Supreme Court of Appeal judgment).
[2]
City of Johannesburg Metropolitan Municipality
v Blue
Moonlight Properties 39 (Pty) Ltd
[2011] ZACC 33
;
2012 (2) SA
104
(CC);
2012 (2) BCLR 150
(CC) (
Blue Moonlight
).
[3]
For ease of reference, the term “partners” will be used
throughout the main judgment.  In their submissions,
the
applicants and respondents referred to the family separation rule as
applying to “spouses and permanent life partners”.

Because the family separation rule separated men and women, the
rule’s effect was that only heterosexual partners were

separated.  However, this Court recognises that using
“partners” as a shorthand for the heterosexual couples

that were affected by the forced division of men and women in
separate dormitories does not imply that same-sex couples are
excluded from the category of “partners” in the general
sense of the term.
[4]
Boys and girls under the age of 16 were forced to live with a female
caregiver.  Boys older than 16 were forced to live
in the male
dormitory, presumably with a male caregiver if present.  Girls
older than 16 would remain in the female dormitory.
[5]
Blue Moonlight
above n 2 at para 104.
[6]
Department of Human Settlements “Part 3: Incremental
Interventions: Emergency Housing Programme” in The National

Housing Code (2009) (The National Housing Code).
[7]
The City intends to implement managed-care policies at other
shelters for people evicted from their homes.
[8]
71 of 2008.
[9]
Section 10 of the Constitution states:
“Everyone
has inherent dignity and the right to have their dignity respected
and protected.”
[10]
Section 12 of the Constitution reads:
“(1)
Everyone has the right to freedom and security of the person, which
includes the right­—
(a)
not to be deprived of freedom arbitrarily or without just cause;
(b)
not to be detained without trial;
(c)
to be free from all forms of violence from either public or private

sources;
(d)
not to be tortured in any way; and
(e)
not to be treated or punished in a cruel, inhuman or degrading way.
(2)
Everyone has the right to bodily and psychological integrity, which

includes the right—
(a)
to make decisions concerning reproduction;
(b)
to security in and control over their body; and
(c)
not to be subjected to medical or scientific experiments without

their informed consent.”
[11]
Section 14 of the Constitution states:
“Everyone
has the right to privacy, which includes the right not to have—
(a)
their person or home searched;
(b)
their property searched;
(c)
their possessions seized; or
(d)
the privacy of their communications infringed.”
[12]
Section 26 of the Constitution states:
“(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.”
[13]
Although the applicants sought a declaratory order stating that the
Shelter rules violated their section 26 rights, the High
Court did
not decide whether there was a section 26 violation, confining its
order to sections 10, 12 and 14.
[14]
The National Housing Code above n 6 at 15.
[15]
Dladla v City of Johannesburg
[2014] ZAGPJHC 211 (High Court
judgment) at para 40.
[16]
Id at para 35.
[17]
Id.
[18]
Id at para 36.
[19]
Section 36(1) provides:
“The rights
in the Bill of Rights may be limited only in terms of law of general
application to the extent that the limitation
is reasonable and
justifiable in an open and democratic society based on human
dignity, equality and freedom, taking into account
all relevant
factors, including—
(a)
the nature of the right;
(b)
the importance of the purpose of the limitation;
(c)
the nature and extent of the limitation;
(d)
the relation between the limitation and its purpose; and
(e)
less restrictive means to achieve the purpose.”
[20]
Supreme Court of Appeal judgment above n 1 at para 24.
[21]
Id at para 23.
[22]
Id.
[23]
Id.
[24]
Id at paras 19-20.
[25]
19 of 1998.
[26]
See section 167(3)(b) of the Constitution.
[27]
Paulsen v Slip Knot Investments 777 (Pty) Limited
[2015] ZACC
5
;
2015 (3) SA 479
(CC);
2015 (5) BCLR 509
(CC) at paras 29-31.
[28]
Blue Moonlight
above n 2 at para 104.
[29]
Id at paras 27-8 and 78.
[30]
Id at para 78.
[31]
Id at para 87.
[32]
Id at para 100.
[33]
Id at para 104.
[34]
Dawood v Minister of Home Affairs; Shalabi v Minister of Home
Affairs; Thomas v Minister of Home Affairs
[2000] ZACC 8
;
2000
(3) SA 936
(CC);
2000 (8) BCLR 837
(CC) at para 36.
[35]
Id at para 28.
[36]
See [47]-[51].
[37]
See [41] and [120].
[38]
See [41].
[39]
Id.
[40]
Id.
[41]
Blue Moonlight
above n 2.
[42]
See [119].
[43]
See [123].
[44]
Government of the Republic of South Africa v Grootboom
[2000]
ZACC 19
;
2001 (1) SA 46
(CC);
2000 (11) BCLR 1169
(CC) (
Grootboom
).
[45]
Residents of Joe Slovo Community, Western Cape v Thubelisha Homes
[2009] ZACC 16
;
2010 (3) SA 454
(CC);
2009 (9) BCLR 847
(CC) (
Joe
Slovo
).
[46]
Section 36(1) of the Constitution above n 19.
[47]
See [52].
[48]
Id.
[49]
High Court judgment above n 15 at paras 37-8.
[50]
Id at para 13.
[51]
Supreme Court of Appeal judgment above n 1 at para 23.
[52]
Id at para 18.
[53]
Grootboom
above n 44 at para 33 (“[T]he real question
in terms of our Constitution is whether the measures taken by the
state to realise
the right afforded by section 26 are reasonable”).
For further discussion on the reasonableness analysis, see also

paras 38, 41, 43-4, 46 and 63.
[54]
Minister of Health v Treatment Action Campaign (No 2)
[2002]
ZACC 15
;
2002 (5) SA 721
(CC);
2002 (10) BCLR 1033
(CC) (
TAC
)
at para 68 (holding that a programme for the realisation of
socio-economic rights that excluded a significant segment of society

could not be said to be reasonable).  See also paras 80-1
(concluding that a policy of waiting for a protracted period before

taking a decision on the use of nevirapine beyond the research and
training sites was not reasonable under section 27(2) of the

Constitution) and paras 93-5 (reasoning that the Court has a duty to
determine whether the measures taken in respect of the prevention
of
mother-child transmission of HIV were reasonable).
[55]
Mazibuko v City of Johannesburg
[2009] ZACC 28
;
2010 (4) SA 1
(CC);
2010 (3) BCLR 239
(CC) at para 161 (“When
challenged as to its policies relating social and economic rights,
the government agency must
explain why the policy is reasonable”).
See also para 162 (“Not only must government show that the
policy it
has selected is reasonable, it must show that the policy
is being reconsidered consistent with the obligation to
‘progressively
realise’ social and economic rights in
mind”) and para 67 (“[T]he positive obligations imposed
upon government
by the social and economic rights in our
Constitution will be enforced by courts . . . .  If
government’s adopted
measures are unreasonable, the courts
will similarly require that they be reviewed so as to meet the
constitutional standard
of reasonableness”).
[56]
See, for example,
Grootboom
above n 44 at para 34 (stating
that “[s]ubsections (1) and (2) are related and must be read
together”, and that these
two subsections imply a “negative
obligation”, explicitly provided in subsection (3), on the
state “to desist
from preventing or impairing the right of
access to adequate housing”).
[57]
Blue Moonlight
above n 2 at paras 86-97.
[58]
Id at para 88.
[59]
Id at para 97.
[60]
Id at para 87.
[61]
See [120].
[62]
See [113].
[63]
Blue Moonlight
above n 2 at para 88.
[64]
Grootboom
above n 44 at para 52.
[65]
Id at para 66.
[66]
There was no clear majority in
Joe Slovo
above n 45.  The
order is set out by the unanimous Court.  There were five
judgments: Yacoob J (Langa CJ
and Van der Westhuizen J
concurring) wrote the principal judgment; Moseneke DCJ (Sachs J
concurring);
Ngcobo J (Moseneke DCJ and Sachs J
concurring); O’Regan J; and Sachs J (Moseneke DCJ
and
Mokgoro J concurring).
[67]
Id at paras 25 and 126.
[68]
Id at paras 27 and 46.
[69]
Id at paras 33, 46 and 260.
[70]
Id at para 230.
[71]
Id at para 257.
[72]
Id at para 260.
[73]
Id at paras 335 and 360-1.
[74]
See
Investigating Directorate: Serious Economic Offences v
Hyundai Motor Distributors (Pty) Ltd: In re Hyundai Motor
Distributors
(Pty) Ltd v Smit N.O.
[2000] ZACC 12
;
2001 (1) SA
545
(CC);
2000 (10) BCLR 1079
(CC) at para 21.  See also
Carmichele v Minister of Safety and Security
[2001] ZACC 22
;
2001 (4) SA 938
(CC);
2001 (10) BCLR 995
(CC) at para 54.
[75]
Head of Department, Mpumalanga Department of Education v
Ho
ë
rskool Ermelo
[2009] ZACC 32
;
2010 (2) SA 415
(CC);
2010 (3) BCLR 177
(CC) at
paras 69-70 (citing
Minister of Interior v Machadodorp
Investments (Pty) Ltd
1957 (2) SA 395
(A) at 404D-E, as endorsed
in
More v Minister of Co-operation and Development
[1985]
ZASCA 89
;
1986 (1) SA 102
(A) at 115C-D).
[76]
The word “reasonable”, by itself, generally does not
require or bear interpretation, only application.  The
question
usually is not what “reasonable” itself means, as a
linguistic abstraction, but what the reasonable thing
to do is as a
matter of practical requirement.
[77]
Section 24(b) (environment) requires that the environment be
protected “through reasonable legislative and other measures”;

section 25(5) (property) requires the state to take reasonable
legislative and other measures to foster conditions to enable

citizens to gain access to land; section 26(2) (housing) requires
the state to take reasonable legislative and other measures
to
achieve progressive realisation of the right; section 27(2)
(health care, food, water, and social security) requires
the state
to take reasonable legislative and other measures to achieve the
progressive realisation of each of these rights; and
section
29(1)(b) (education) affords the right to further education, which
the state, through reasonable measures, must make
progressively
available and accessible.
Apart from these five instances and
section 36(1), the word “reasonable” appears five other
times in the Bill of Rights:
section 32(2) (national legislation
giving effect to the right of access to information may provide for
reasonable measures to
alleviate the administrative and financial
burden on the state); section 33(1) (right to administrative action
that is lawful,
reasonable, and procedurally fair); section 35(1)(d)
(right of everyone arrested for allegedly committing an offence to
be brought
before a court as soon as reasonably possible); and
section 37(6)(c) and (d) (emergency detainees’ rights to be
visited
“at any reasonable time” by a medical
practitioner and a legal representative).
[78]
See, for example,
Soobramoney v Minister of Health, KwaZulu-Natal
[1997] ZACC 17; 1998 (1) SA 765 (CC); 1997 (12) BCLR 1696 (CC).
[79]
Blue Moonlight
above n 2 at paras 68-75.
[80]
Van Biljon v Minister of Correctional Services
1997 (4) SA
441
(C) at para 52 (Brand J) (holding, on the basis of the right to
“adequate . . . medical treatment” in section 35(2)(e)

of the Constitution, that “[w]hat is provided for people
outside can . . . be no absolute standard for what is adequate
for
prisoners”).  The order was granted on 17 April 1997.
Free anti-retroviral treatment became available in
the public sector
only seven years later.  See Lopez Gonzalez “South Africa
celebrates 10 years of free HIV treatment”
(4 April 2014),
available at
https://www.health-e.org.za/2014/04/04/south-africa-celebrates-ten-years-free-hiv-treatment/.
[81]
See
Lee v Minister for Correctional Services
[2012] ZACC 30
;
2013 (2) SA 144
(CC);
2013 (2) BCLR 129
(CC) at para 100.
[82]
Blue Moonlight
above n 2 at para 104.
[83]
The respondent said no limitation question arose at all because no
right was infringed.  The
amici
did not consider the
point.
[84]
High Court judgment above n 15 at para 37 says that the respondents
did not submit that the requirement was met.
[85]
Id at para 38.
[86]
Section 8(3)(b) provides—
“When applying a provision of the
Bill of Rights to a natural or juristic person in terms of
subsection (2), a court—
. . .
(b)           may
develop rules of the common law to limit the right, provided
that
the limitation is in accordance with section 36(1).”
[87]
Article 19(1) of the German Basic Law (translation at
http://www.gesetze-im-internet.de/englisch_gg/englisch_gg.html#p0112)
provides:
“Insofar as, under this Basic
Law, a basic right may be restricted by or pursuant to a law, such
law must apply generally
and not merely to a single case.”
[88]
De Waal “A Comparative Analysis of the Provisions of German
Origin in the Interim Bill of Rights”
(1995) 11
SAJHR
1
at 5.
[89]
Id at 13.
[90]
Young “Does it Matter if Restrictions on the Right to Social
Welfare in Hong Kong are Prescribed by Law or Policy?”
(2014)
44
Hong Kong Law Journal
25
at 29.
[91]
See De Ville “The Right to Administrative Justice: An
Examination of Section 24 of the Interim Constitution”
(1995)
11
SAJHR
264
at 275 (arguing that the rights-infringing
decision must itself be a law “would clearly be absurd”).
[92]
Article 19(1) of the German Basic Law above n 87.  See Woolman
and Botha “Limitations” in Woolman et al (eds)
Constitutional Law of South Africa
2 ed (Juta & Co Ltd,
Cape Town 2008) at 34-47 fn 4.  The authors correctly point out
that “law of general application”
is the equivalent to
the phrase “prescribed by law” found in the Canadian
Charter of Rights and Freedoms, the European
Convention on Human
Rights, and the New Zealand Bill of Rights.
Woolman and Botha at 34-66 to 34-67
note:
“[T]here is a signal difference
between the Canadian jurisprudence that has developed around
‘prescribed by law’
in section 1 of the [Canadian
Charter of Rights and Freedoms], and the Bill of Rights
jurisprudence that has developed around
‘law of general
application’ in Final Constitution section 36.
South African courts have expressly recognized
that all forms of law
– legislation, subordinate legislation, regulation, common law
and customary law – can be characterized
as law of general
application.  It goes without saying that much of this has not
– as some Canadian jurists would
require for section 1
analysis of the Charter – passed through the democratic
law-making machinery of the state.
In so far as a law in South
Africa possesses the four formal hallmarks of the rule of law . . .
– parity of treatment,
non-arbitrariness, precision and
accessibility – it is law of general application.”
[93]
De Ville above n 91 at 275 says the German provision more accurately
captures the meaning of the requirement.
[94]
See
Canadian Federation of Students
v Greater
Vancouver Transportation Authority
2009 SCC 31
;
[2009] 2 SCR
295
(SCC) at para 63.
[95]
See
The Sunday Times v United Kingdom
, 26 April 1979, §
49, Series A no 30.  See also
Canadian Federation of
Students
id at para 65.
[96]
Blue Moonlight
above n 2.
[97]
Id at para 104.
[98]
Joe Slovo
above n 45 at paras 115-6.
[99]
Id at para 229.
[100]
Id at para 224.
[101]
Section 7(2) of the Constitution provides:
“The state must respect, protect,
promote and fulfil the rights in the Bill of Rights.”
[102]
S v Makwanyane
[1995] ZACC 3
;
1995 (3) SA 391
(CC);
1995 (6)
BCLR 665
(CC) (
Makwanyane
) at para 329.
[103]
Id at para 222.
[104]
Grootboom
above n 44;
TAC
above n 54; and
Mazibuko
above n 55.
[105]
See [93].
[106]
See [94].