City of Johannesburg v Dladla and Others

• Jurisdiction: South Africa
• Judge: Mpati P, Leach JA, Pillay JA, Willis JA and Mbha JA
• Judgment Date: 18 May 2016
• Citation: 2016 (6) SA 377 (SCA)
• Docket Number: 403/2015
• Hearing Date: 03 May 2016
• Counsel: C Loxton SC (with A Pullinger) for the appellant. A de Vos SC (with S Wilson and M Stubbs) for the respondents. E Webber for the amicus curiae, the Centre for Applied Legal Studies. Heads of argument prepared by J Brickhill and J Bleazard.
• Court: Supreme Court of Appeal

City of Johannesburg v Dladla and Others
2016 (6) SA 377 (SCA)

2016 (6) SA p377

Citation	2016 (6) SA 377 (SCA)
Case No	403/2015
Court	Supreme Court of Appeal
Judge	Mpati P, Leach JA, Pillay JA, Willis JA and Mbha JA
Heard	May 3, 2016
Judgment	May 18, 2016
Counsel	C Loxton SC (with A Pullinger) for the appellant.; A de Vos SC (with S Wilson and M Stubbs) for the respondents.; E Webber for the amicus curiae, the Centre for Applied Legal Studies. Heads of argument prepared by J Brickhill and J Bleazard.

Flynote : Sleutelwoorde E

Local authority — Powers and duties — To shelter evicted persons — Rules of F shelter — Entry and exit time — Male-only and female-only dormitories — Rules not unconstitutional — Constitution, ss 10, 12, 14, 18 and 21.

Headnote : Kopnota

In this case a private landowner obtained a High Court order evicting the G occupiers of a building in the inner city of Johannesburg. The order was upheld in the Supreme Court of Appeal (SCA) and the Constitutional Court, which also ordered the City to provide temporary accommodation. To this end, the City arranged for the occupiers to be accommodated at a shelter run by a not-for-profit company. A precondition was that the occupiers H agree to the rules of the shelter. One of the rules was that residents enter by eight in the evening, and leave by eight in the morning (nine on weekends); and another was that its dormitories were separated by gender — they were male only, or female only. The occupiers successfully challenged the constitutionality of the rules in the High Court, and the City appealed to the SCA. I

The issue was whether the rules justifiably or unjustifiably limited the constitutional right to freedom of movement, and the right of married couples and permanent life partners to live together (see [16], [18]).

Held, that the entry-and-exit rule was reasonable in the circumstances: it was intended to ensure the safety of residents, to discourage dependency, and to reduce the running costs of the shelter (see [23]). J

2016 (6) SA p378

A So too, the gender-separation rule was reasonable: it was necessary in order for the shelter to accommodate all and yet maintain decency and decorum (see [23]).

Appeal upheld (see [25]).

Cases Considered

Annotations

Case law B

Bernstein and Others v Bester and Others NNO 1996 (2) SA 751 (CC) (1996 (4) BCLR 449; [1996] ZACC 2): dictum in para [77] applied

City of Cape Town v Hoosain NO and Others [2011] ZAWCHC 391: dictum in para [14] approved

City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd and Another 2011 (4) SA 337 (SCA): referred to C

City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd and Another 2012 (2) SA 104 (CC) (2012 (2) BCLR 150; [2011] ZACC 33): referred to

Coetzee v Government of the Republic of South Africa; Matiso and Others v Commanding Officer, Port Elizabeth Prison, and Others D 1995 (4) SA 631 (CC) (1995 (10) BCLR 1382; [1995] ZACC 7): dictum in para [11] applied

Dawood and Another v Minister of Home Affairs and Others; Shalabi and Another v Minister of Home Affairs and Others; Thomas and Another v Minister of Home Affairs and Others 2000 (3) SA 936 (CC) (2000 (8) BCLR 837; [2000] ZACC 8): referred to

Dladla and Others v City of Johannesburg and Another 2014 (6) SA 516 (GJ) ([2014] 4 All SA 51): reversed on appeal E

Komani NO v Bantu Affairs Administration Board, Peninsula Area 1980 (4) SA 448 (A): referred to

Kruger v Coetzee 1966 (2) SA 428 (A): referred to

Teddy Bear Clinic for Abused Children and Another v Minister of Justice and Constitutional Development and Another 2014 (2) SA 168 (CC) (2014 (1) SACR 327; 2013 (12) BCLR 1429; [2013] ZACC 35): referred to F

Za v Smith and Another 2015 (4) SA 574 (SCA): referred to.

Statutes Considered

Statutes

G The Constitution of the Republic of South Africa, 1996, ss 10, 12, 14, 18 and 21: see Juta's Statutes of South Africa 2015/16 vol 5 at 1-27 – 1-28.

Case Information

C Loxton SC (with A Pullinger) for the appellant.

A de Vos SC (with S Wilson and M Stubbs) for the respondents.

E Webber for the amicus curiae, the Centre for Applied Legal Studies. H Heads of argument prepared by J Brickhill and J Bleazard.

An appeal against a judgment of the Gauteng Local Division, Johannesburg (Wepener J), which was reported as Dladla and Others v City of Johannesburg and Another 2014 (6) SA 516 (GJ) ([2014] 4 All SA 51).

Order I

1.

The appeal is upheld.

2.

The order of the court a quo is set aside and replaced with the following:

J 'The application is dismissed.'

2016 (6) SA p379

Judgment

Willis JA (Mpati P, Leach JA, Pillay JA and Mbha JA concurring): A

[1] This appeal is against the following order made by the Gauteng Local Division, Johannesburg (Wepener J):

1.

Rules 3 and 4 of the Ekuthuleni Overnight/Decant Shelter House Rules are an unjustifiable infringement of the applicants' [respondents B in present appeal] constitutional rights to dignity, freedom and security of person as well as privacy enshrined in ss 10, 12 and 14 of the Constitution.

2.

The respondents [appellant 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 Ekuthuleni. C

3.

The respondents' refusal to permit the applicants to reside in communal rooms together with their spouses or permanent life partners is an infringement of the applicants' constitutional rights to dignity and privacy enshrined in ss 10 and 14 of the Constitution. D

4.

The Respondents are directed forthwith to permit those of the applicants who wish to do so, to reside together with their spouses or permanent life partners in communal rooms at Ekuthuleni for the duration of the applicants' stay at Ekuthuleni.

5.

The City is ordered to pay the costs of the application, such costs to include the costs of two counsel. The City is further ordered to E pay the costs of the amicus curiae in relation to its application to be admitted as amicus curiae.'

The appellant, the City of Johannesburg (the City), brought the appeal with the leave of this court. F

[2] The respondents in this appeal (the occupiers) are residents at Ekuthuleni Shelter ('the Shelter' also referred to simply as 'Ekuthuleni'), at the corner of De Villiers and Nugget streets, Johannesburg. The second respondent in the application before the court a quo was the Metropolitan Evangelical Services (MES), a company incorporated not for profit in terms of s 21 of the Companies Act 71 of 2008. It is a G community-based, Christian organisation that operated the Shelter.

[3] The occupiers had been evicted from a dilapidated building in Saratoga Avenue, Berea, Johannesburg (Saratoga), in terms of an order granted by the same court that heard the matter that is now on appeal H before us. That order was upheld in this court [1] and the Constitutional Court. [2] The case is well known as Blue Moonlight. In the Constitutional Court judgment, it was directed that the occupiers were to vacate their homes by 15 April 2012, but the court stipulated that the City was to

2016 (6) SA p380

Willis JA (Mpati P, Leach JA, Pillay JA and Mbha JA concurring)

A provide the evictees with 'temporary accommodation in a location as near as feasibly possible to the area' in which Saratoga was situated, on or before 1 April 2012. For reasons that will appear more fully later, it needs to be emphasised that the order of the Constitutional Court was that the occupiers be provided with temporary accommodation and not B that the City provide them with housing that was permanent in nature. Van der Westhuizen J, delivering the unanimous judgment of the court, said so in the following terms: 'It must be emphasised that this case concerns temporary as defined in ch 12 and not permanent housing.' [3]

[4] At the time that the application was launched, there were 33 occupiers. C At the time when the application was heard this number had approximately halved. It is common cause that there are now only 11 occupiers. In addition, there is one child occupying the premises. The accommodation at MES can host approximately 100 persons. By reason of the order of the court a...