Dladla and Others v City of Johannesburg and Another

• Jurisdiction: South Africa
• Judge: Wepener J
• Judgment Date: 22 August 2014
• Citation: 2014 (6) SA 516 (GJ)
• Docket Number: 39502/12
• Hearing Date: 12 August 2014
• Counsel: A de Vos SC (with S Wilson and M Stubbs) for the applicants. C Loxton SC (with A Pullinger) for the first respondent. C van der Merwe for the second respondent. BD Lokokotla for the amicus curiae.
• Court: Gauteng Local Division, Johannesburg

Wepener J: H

[1] The applicants are all persons residing at a shelter known as Ekuthuleni Overnight/Decant Shelter (Ekuthuleni). They were relocated to the shelter pursuant to an order of the Constitutional Court, [1] which order reads, inter alia, as follows:

'The City of Johannesburg Metropolitan Municipality must provide I those Occupiers whose names appear in the document entitled Survey

Wepener J

A 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.'

B [2] Although this order was issued on 1 December 2011, some of the applicants in this matter are those occupiers referred to in the court order and are still housed in the temporary accommodation in Ekuthuleni. The relief sought by the applicants flows from them being housed at Ekuthuleni. A number of the original residents referred to in the court C order in Blue Moonlight have already left Ekuthuleni, but nothing turns on this fact as there are indeed some of those individuals who are still, pursuant to the court order, being accommodated by the City of Johannesburg (the City) with the assistance of the second respondent.

[3] Whilst the applicants fall in a category of persons who require temporary or emergency accommodation, they do not fall into the D category of persons who normally visit an overnight shelter as set out hereinafter. It is also common cause that the City's policy on how to deal with persons, such as those in the category of the applicants, has not been finalised.

[4] The first respondent is the City of Johannesburg, a metropolitan E municipality and the local authority that was ordered to provide the residents with temporary accommodation as set out above. The second respondent is a company incorporated not for profit in terms of the Companies Act. [2] It operates the shelter with which this application is concerned.

F [5] Although it was submitted on behalf of the second respondent that it is not an organ of state which can be subject to any order in this matter, the City did not advance this submission and indeed said in its written heads of argument that:

'This managed care model is managed and implemented on behalf of G the City by the Metropolitan Evangelical Services, the second respondent herein. . . .'

The court having brought this to the attention of counsel for the second respondent during argument, the issue was not further pursued. In the circumstances, despite the second respondent being the entity providing H services for the City, the matter can be approached on the basis that it is acting on behalf of the City and that any order which this court may issue binding the City would be binding on the second respondent and would have to be implemented by the second respondent.

[6] At the outset of the hearing the Centre for Applied Legal Studies I (hereafter referred to as CALS) applied to be admitted as an amicus curiae in the matter in order to submit a limited argument in relation to it. Although the application was (faintly) opposed by the first respondent only, this court ordered that the amicus be allowed to present argument.

Wepener J

[7] The relief sought by the applicants is as follows: A

'1.

Interdicting and restraining the respondents from evicting the applicant from the Ekuthuleni Shelter, Corner De Villiers and Nugget Street, Johannesburg (the shelter) without an order of court authorising them to do so. B

2.

Declaring that rules 3 and 4 of the Ekuthuleni Overnight/Decant Shelter House Rules are an unjustifiable infringement of the applicants' constitutional rights to dignity, freedom and security of the person, privacy and access to adequate housing, enshrined in ss 10, 12, 14 and 26 of the Constitution of the Republic of South Africa, 1996. C

3.

Interdicting and restraining the respondents 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.

4.

Declaring that the respondents' refusal to permit the applicants to D reside in communal rooms together with their spouses or permanent life partners is an unjustifiable infringement of the applicants' constitutional rights to dignity, privacy and access to adequate housing, enshrined in ss 10, 14, and 26 of the Constitution.

5.

Directing the respondents forthwith to permit those of the applicants who wish to do so, to reside together with their spouses or life partners in communal rooms at the shelter, for the duration of the E applicants' stay at the shelter.

6.

In the alternative to prayers 2 – 5, an order:

6.1

reviewing and setting aside the decisions by the first respondent, alternatively the second respondent, to apply rules 3 and 4 of the respondents' Decant Shelter Rules to the applicants and to prohibit the applicants from living in rooms F with their spouses or life partners; and

6.2

directing the respondents:

6.2.1

not to apply rules 3 and 4 to the applicants; and

6.2.2

to permit the applicants to reside in rooms at the shelter together with their life partners or spouses. G

7.

Declaring that accommodation at the shelter does not constitute Housing Assistance in Emergency Circumstances within the meaning of the Emergency Housing Programme contained in part 3 of the National Housing Code, 2009.

8.

Declaring that the first respondent's failure to provide housing H assistance in emergency circumstances to persons who, such as the applicants, are unable to pay R600 or more per month in rent is in conflict with ss 9 and 26(2) of the Constitution, and the Emergency Housing Programme, contained in the National Housing Code, 2009.

9.

Directing the first respondent to devise and implement, within its I available resources, a programme to provide housing assistance in emergency circumstances to persons, such as the applicants, who cannot afford to pay R600 or more per month in rent.'

[8] The background facts to this application are contained in the Constitutional Court judgment in Blue Moonlight and of particular J

Wepener J

A relevance is the discussion regarding temporary and emergency accommodation. [3] Having sketched the factual background of the matter, the Constitutional Court issued the order already referred to above.

[9] The temporary accommodation provided by the City to the applicants is provided pursuant to the order of court. [4] It is the ambit of the B temporary accommodation provided by the City upon which much of the applicants' case turns.

[10] Pursuant to the order of the Constitutional Court, the City concluded that it was obliged to supply the residents with temporary relief in an emergency situation as it had been afforded a period of five C months to comply with the order. The conclusion of the City was, in my view, justified if regard is had to para 96 of the Blue Moonlight judgment. [5] Whether this has a bearing on the duties and obligations of the City is a question of interpretation and the clear statement in para 98 of the judgment. [6] However, whether a period of 6 months, 12 months or longer D was foreseen, is of no consequence as it has turned out that some of the persons who were the beneficiaries of the order of the Constitutional Court are still, some three years later, housed by the City pursuant to that order.

[11] There are some factual disputes on the papers before me and it has not been shown that the well-established approach taken by our courts E over a period of many decades should not be applied. The approach has been set out as follows:

'Motion proceedings, unless concerned with interim relief, are all about the resolution of legal issues based on common cause facts. Unless the circumstances are special they cannot be used to resolve factual issues F because they are not designed to determine probabilities. It is well established under the Plascon-Evans rule that where in motion proceedings disputes of fact arise on the affidavits, a final order can be granted

Wepener J

only if the facts averred in the applicant's (Mr Zuma's) affidavits, which A have been admitted by the respondent (the NDPP), together with the facts alleged by the latter, justify such order. It may be different if the respondent's version consists of bald or uncreditworthy denials, raises fictitious disputes of fact, is palpably implausible, far-fetched or so clearly untenable that the court is justified in rejecting them merely on the papers.' [7] B

[12] Certain disputes arose also by virtue of the contents of the replying affidavit and the City submitted that the applicants were not entitled to introduce that new evidence. [8] In addition, at the outset of the hearing I drew the parties' attention to the principles applicable to application proceedings regarding the sets of affidavits which may be filed. [9] Having C regard to the aforegoing, the applicants did not persist to rely on the additional affidavits and new matter contained in the reply and no party applied for any additional affidavits to be accepted for purposes of this hearing. On the contrary, reliance on new matter and additional affidavits was specifically abandoned.

[13] As the matter stood at the outset of the hearing, a large number of D issues required determination. The first issue was whether the allegation by the applicants that Ekuthuleni is their home, is correct. The City disputed that Ekuthuleni was the home of the applicants on the basis that it is only temporary accommodation as in the case of a hotel or university residence. The City put it thus: E

'The City denies that the applicants have a clear right...