The Supreme Court of Appeal on 18 May 2016, in the case of City of Johannesburg v Dladla (403/15)  ZASCA 66, (Dladla) held that the Ekhuthuleni Overnight/Decant Shelter House Rules (house rules) of the temporary emergency accommodation provided by the City of Johannesburg (the City) to occupiers, is not unconstitutional.
The respondents in this appeal (the occupiers) had been evicted from a dilapidated building in Berea, Johannesburg in terms of an order granted by the Johannesburg High Court. The order was upheld by the Supreme Court of Appeal and the Constitutional Court in the landmark case of City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd & another  ZASCA; 2011 (4) SA 337 (SCA) and City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd & another  ZACC 33; 2012 (2) SA 104 (CC).
In the Constitutional Court judgment, the court directed that the occupiers had to vacate the properties by a given date, but stipulated that the City was to provide the evictees with "temporary accommodation in a location as near as feasibly possible to the area" in which the building was situated. Of particular note, Van der Westhuizen J, delivering the unanimous judgment made the following remark: "it must be emphasised that this case concerns temporary as defined in Ch 12 and not permanent housing". The obligation, while derived from the right to progressive realisation of adequate housing in terms of section 26(2) of the Constitution, is distinct from the obligation to address permanent housing needs. In order to comply with the order of court, the City engaged the services of Metropolitan Evangelical Services (MES), a not-for-profit entity, to provide temporary emergency accommodation to evictees at the Ekhuthuleni shelter. MES provided the shelter but imposed house rules by which the occupiers had to abide if they took up residence.
The contentious house rules of the shelter were:
- Restriction of entry to the shelter by 20h00 every night.
- All residents had to sign a register every night.
- All residents had to vacate the shelter by 08h00 on Mondays to Fridays, and at 9h00 on Saturdays and Sunday.
- Dormitories are gender differentiated.
These house rules were met with much resistance and an application was launched by the occupiers to have them declared unconstitutional. In the court a quo (High Court of South Africa, Gauteng Local Division, Johannesburg), Wepener J held that the house rules were unconstitutional in that they unjustifiably infringed the occupants’ constitutional right to dignity, freedom and security of a person as well as privacy enshrined in the Constitution of the Republic of South Africa, 1996 as amended. It was further held that the respondents (applicants in the appeal) were interdicted from implementing the house rules and the applicants who wished to reside together with their spouses or permanent life partner, were permitted to do so.
The respondents appealed to the Supreme Court of Appeal. The court noted that the primary purpose of restriction on day occupation was not merely to ensure safety and protection of the occupiers, but it was also to encourage the residents to go out and try to find gainful employment and not become dependent on the City. The court further noted that the unarticulated but self-evident premise of the gender differentiation was that it is required in terms of widely prevailing norms of modesty and decency in society. These rules were challenged in the court a quo and were found to be unconstitutional.
In terms of the gender differentiation, the subject had become academic as there was only one married couple resident in the shelter and the wife had left to go to Limpopo to find temporary employment. Counsel for the occupiers argued that this might be so, however, she wished to defend the High Court Order for future relevance, as the City would apply the house rules to other persons who may be given temporary accommodation in the future with similar circumstances.
Willis JA pointed out that the court a quo was correct in observing that the shelter was not intended, nor designed, to provide temporary accommodation for persons that were in the position of the occupiers, as it was common cause, that the accommodation provided was of a higher standard than that of the building in Berea. The shelter is known as a "managed care model", which is intended to provide short-term, often overnight, accommodation for the destitute.
The court was very mindful of the case of Bernstein & others v Bester & Others NNO  ZACC 2; 1996 (2) SA 751 (CC), as was the court a quo, about the fact that a very high level of protection is given to the individual's intimate personal sphere of life. However, the qualification in the case was also important to note,
"But this intimate core is narrowly construed. The inviolable core is left behind once an individual enters into relationships with persons outside this closest intimate sphere; the individual's activities then acquire a social dimension and the right of privacy in this context becomes subject to limitation."
Willies JA pointed out that emergency accommodation will often, necessarily, entail a "social dimension" of which the law must take cognisance.
He further confirmed that constitutional rights may be limited. The court in its reasoning relied on the case of Coetzee v Government of the Republic of South Africa; Matiso & others v Commanding Officer Port Elizabeth Prison & others  ZACC 7; 1995 (4) SA 631 (CC), in which it was stated that no right enshrined in the Bill of Rights is absolute. There may be circumstances that arise where the limitation of a right, even one of fundamental importance, may be justified.
The court accepted the City's argument that the occupiers were wrong in describing the shelter as their home and argued that the differentiation was made clear in the Blue Moonlight case. The City had further argued that the court a quo was wrong in failing to distinguish between emergency and ordinarily prevailing situations. The court agreed with finding of Binns-Ward J in the City of Cape Town v Hoosain NO & others unreported WCHC case number 1033/2011, delivered on 24 October 2012;  ZAWCHC 180 where it was stated:
"Once it is recognised that an emergency accommodation by its very nature will be invariably fall short of the standards reasonably expected of permanent housing accommodation, it follows that those who need to occupy such accommodation must accept less than what would ordinarily be acceptable. The apparent harshness of an acceptance of this recognition has to be seen against the realities imposed by the vast scale of the housing backlogs which the State, in general, and the City, in particular, are having to engage."
The limitation on husbands and wives and permanent life partners sleeping together in strictly temporary emergency accommodation provided, was, in this single relevant instance, relaxed. Husbands and wives and permanent life partners in any event do not have the right, always and everywhere, to sleep together. There are instances in which the right must yield, temporarily, to broader practical demands, such as those for which this shelter was designed. The court held that the gender differentiation in this context, temporary accommodation, was not unreasonable and therefore not unconstitutional.
The court pointed out that the correct remedy in this instance, which the occupiers should have pursued, was not to challenge a bona fide institution such as MES, but rather for an order in which the accommodation provided by the City, through the MES, was not what the Constitutional Court in Blue Moonlight ordered. In other words, those occupiers that wished to sleep with their spouses in temporary accommodation should have applied for an order for alternate accommodation, in which they could have exercised their rights.
The court found that the house rules in an attempt to provide temporary accommodation in an emergency situation were not unreasonable. The court upheld the appeal and replaced the court a quo order with an order that the application be dismissed.
The Centre for Applied Legal Studies has launched an application to the Constitutional Court to appeal against the order handed down by the SCA.
As published in Without Prejudice in November 2016.