Dladla and Others v City of Johannesburg and Another
Jurisdiction | South Africa |
Citation | 2018 (2) SA 327 (CC) |
Dladla and Others v City of Johannesburg and Another
2018 (2) SA 327 (CC)
2018 (2) SA p327
Citation |
2018 (2) SA 327 (CC) |
Case No |
CCT 124/16 |
Court |
Constitutional Court |
Judge |
Mogoeng CJ, Nkabinde ADCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Madlanga J, Mhlantla J, Mojapelo AJ, Pretorius AJ and Zondo J |
Heard |
December 1, 2017 |
Judgment |
December 1, 2017 |
Counsel |
A de Vos SC (with S Wilson, I de Vos and M Stubbs) for the applicants. |
Flynote : Sleutelwoorde
Local authority — Powers and duties — To shelter evicted persons — Rules of shelter — Separation of sexes, including heterosexual partners — Lockout between 08h00 and 17h30 — Entry between 17h30 and 20h00 — Entry C barred thereafter — Constitution, ss 10, 12, 14 and 26.
Headnote : Kopnota
Applicants were evicted from a private property by an order of the Constitutional Court; and the City of Johannesburg was directed to temporarily accommodate them (see [37]). This it did by contracting Metropolitan Evangelical D Services to house them at its shelter. Metropolitan made residence there subject to the rules that men and women, including partners, were separated; and that the residents leave by 08h00; were locked out from 08h00 to 17h30; could enter from 17h30 to 20h00; and were barred from entering thereafter (see [10]).
Applicants obtained an order that the rules were unconstitutional (High Court); E it was overturned on appeal (Supreme Court of Appeal); and they applied for leave to appeal to the Constitutional Court. It granted leave and held:
temporary accommodation was a measure to realise the right of access to adequate housing; and the City had provided satisfactory accommodation. (See [40] – [41] and s 26(2) of the Constitution.)
however, the rules were not such a measure, and accordingly could not be F tested against s 26, but only ss 10, 12 and 14. (See [41].)
the rights in those sections (to dignity, freedom and security of the person, and privacy) were limited by the rules; and the limitations were unjustifiable. (Only a law of general application could authorise a limitation of a right, and here it was not a law, but a contract, which imposed the right-limiting rules.) (See [48] – [53].) G
2018 (2) SA p328
The A Supreme Court of Appeal's order set aside and replaced with an order:
declaring the lockout rule and refusal to allow heterosexual partners to live together an infringement of the mentioned rights;
interdicting enforcement of the lockout rule; and
directing that the above partners be allowed to reside together. (See [54].)
Cameron J agreed that the rules were invalid and concurred in the majority's B order (see [55] and [101].) However, his reasoning differed. He held that:
s 26(1) gave a right to temporary housing, and s 26(2) required that any measure taken to fulfil the right be reasonable (see [64], [68]);
the measure here, provision of the shelter, included its rules, which were thus required to be reasonable (see [57] – [59]); but
they were not, for the reasons in the majority judgment (see [79]).
He C held further that:
a right-infringing measure did not itself need to be a law of general application but could be sourced in one;
'law' of general application included the common law; and
here the measure, the rules, were sourced in common law, the order. (See [98] and [100].)
Jafta J D agreed with the majority that the rules unjustifiably limited the rights in ss 10, 12 and 14. In his view s 26(2) did not apply, because provision of the shelter, including its rules, was not a 'measure' to realise the right of access to adequate housing. Provision of the accommodation was merely in fulfilment of the eviction order. (See [102] – [103], [112] and [120] – [121].)
He concurred in the majority's order (see [130]).
Madlanga J E agreed with Cameron J that the rules were a measure; that they were not reasonable; and thus that they were invalid. However, he believed it unnecessary to decide that the eviction order was a law of general application. (See [131] – [133].)
Cases cited
Southern F Africa
Carmichele v Minister of Safety and Security and Another (Centre for Applied Legal Studies Intervening) 2001 (4) SA 938 (CC) (2002 (1) SACR 79; 2001 (10) BCLR 995; [2001] ZACC 22): referred to
City G 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): considered
City of Johannesburg v Dladla and Others 2016 (6) SA 377 (SCA): reversed on appeal
Dawood and Another v Minister of Home Affairs and Others; Shalabi and Another v Minister of Home Affairs and Others; Thomas and Another v H 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): considered
Government of the Republic of South Africa and Others v Grootboom and Others I 2001 (1) SA 46 (CC) (2000 (11) BCLR 1169; [2000] ZACC 19): referred to
Head of Department, Mpumalanga Department of Education and Another v Hoërskool Ermelo and Another 2010 (2) SA 415 (CC) (2010 (3) BCLR 177; [2009] ZACC 32): referred to
Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors J (Pty) Ltd and Others: In re Hyundai Motor Distributors (Pty) Ltd and Others v Smit NO and Others 2001 (1) SA 545 (CC) (2000 (2) SACR 349; 2000 (10) BCLR 1079; [2000] ZACC 12): referred to
2018 (2) SA p329
A Lee v Minister for Correctional Services 2013 (2) SA 144 (CC) (2013 (2) BCLR 129; [2012] ZACC 30): referred to
Mazibuko and Others v City of Johannesburg and Others 2010 (4) SA 1 (CC) (2010 (3) BCLR 239; [2009] ZACC 28): referred to B
Minister of Health and Others v Treatment Action Campaign and Others (No 2) 2002 (5) SA 721 (CC) (2002 (10) BCLR 1033; [2002] ZACC 15): referred to
Minister of the Interior v Machadodorp Investments (Pty) Ltd and Another 1957 (2) SA 395 (A): referred to
More v Minister of Co-operation and Development 1986 (1) SA 102 (A): C referred to
Paulsen and Another v Slip Knot Investments 777 (Pty) Ltd 2015 (3) SA 479 (CC) (2015 (5) BCLR 509; [2015] ZACC 5): dictum in paras [29] – [31] applied
Residents of Joe Slovo Community, Western Cape v Thubelisha Homes and Others (Centre on Housing Rights and Evictions and Another, Amici Curiae) D 2010 (3) SA 454 (CC) (2009 (9) BCLR 847; [2009] ZACC 16): referred to
S v Makwanyane and Another 1995 (3) SA 391 (CC) (1995 (2) SACR 1; 1995 (6) BCLR 665; [1995] ZACC 3): dictum in para [329] applied
Soobramoney v Minister of Health, KwaZulu-Natal 1998 (1) SA 765 (CC) (1997 (12) BCLR 1696; [1997] ZACC 17): referred to E
Van Biljon and Others v Minister of Correctional Services and Others 1997 (4) SA 441 (C) (1997 (6) BCLR 789): referred to.
Canada
Greater Vancouver Transportation Authority v Canadian Federation of Students 2009 SCC 31: referred to. F
European Court of Human Rights
The Sunday Times v United Kingdom (1979 – 80) 2 EHRR 245: referred to.
Legislation cited
Statutes
The Constitution, 1996, ss 10, 12, 14 and 26: see Juta's Statutes of South Africa 2016/17 vol 5 at 1-27 – 1-28. G
Case Information
A de Vos SC (with S Wilson, I de Vos and M Stubbs) for the applicants.
CDA Loxton SC (with AW Pullinger) for the first respondent.
E Webber for the first amicus curiae, the Centre for Applied Legal Studies. H
JFD Brand for the second amicus curiae, the Centre for Child Law.
An application for leave to appeal against a decision of the Supreme Court of Appeal. The majority judgment is at [1] – [54] (Mhlantla J); and the concurring judgments are at [55] – [101] (Cameron J), [102] – [130] (Jafta J), and [131] – [133] (Madlanga J). I
Order
Leave to appeal is granted.
The appeal is upheld.
The order of the Supreme Court of Appeal is set aside and replaced with the following: J
2018 (2) SA p330
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 ss 10, 12 and 14 of the Constitution.
The City of Johannesburg and Metropolitan Evangelical Services B 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.
It is declared that the City of Johannesburg and Metropolitan C 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 ss 10 and 14 of the Constitution.
The City of Johannesburg and Metropolitan Evangelical Services D 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.'
The City of Johannesburg is ordered to pay the applicants' costs, E 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 F and Zondo J concurring):
Introduction
[1] This application for leave to appeal is against an order of the...
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