THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case No: 403/2015

In the matter between:

THE CITY OF JOHANNESBURG
APPELLANT

and

DLADLA, ELLEN NOMSA
FIRST RESPONDENT
& 33 OTHER RESPONDENTS
SECOND TO 34TH RESPONDENTS

Neutral citation:
City of Johannesburg v Dladla (403/15) [2016] ZASCA 66
(18 May 2016)
Coram:
Mpati P and Leach, Pillay, Willis and Mbha JJA

Heard:
3 May 2016

Delivered:
18 May 2016

Summary:
Local authority – powers and duties when providing temporary
accommodation – rules of a shelter providing temporary accommodation in an
emergency are not unconstitutional – appeal upheld.

ORDER

On appeal from: Gauteng Local Division of the High Court, Johannesburg
(Wepener J sitting as the court of first instance): reported sub nom Dladla & others v
City of Johannesburg Metropolitan Municipality & another [2014] 4 All SA 51 (GJ).
1 The appeal is upheld.
2 The order of the court a quo is set aside and replaced with the following:
„The application is dismissed.‟

JUDGMENT
___________________________________________________________________
Willis JA (Mpati P and Leach, Pillay and Mbha JJA concurring):

[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 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.
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.

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 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.

[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
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 before us. That order was upheld in
this court1 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
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 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

1 City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd & another
[2011] ZASCA 47; 2011 (4) SA 337 (SCA) (Blue Moonlight SCA judgment).
2 City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd [2011]
ZACC 33; 2012 (2) SA 104 (CC) (Blue Moonlight CC judgment).
3 Para 98. The reference to „Ch 12‟ is to the National Housing Code (National housing programme:
housing assistance in emergency circumstances (April 2004 Final Version)).

[4] At the time that the application was launched, there were 33 occupiers. 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 quo, MES cannot operate effectively
with some of its residents being bound by its rules and others not. Accordingly, some
89 beds that could be used by other persons are not in use.

[5] The City engaged the services of MES to provide the kind of temporary
accommodation in question, even though the accommodation had not been made
available by 12 April 2012. Running like a golden thread in the City‟s papers is that it
had recourse to the facilities of MES because it was doing the best it could with the
resources available to it. The occupiers had brought an urgent application for an
extension of their eviction until the accommodation had been provided. Satchwell J
gave the occupiers an extension of time to 2 May 2012. Her order, which has been
referred to by the parties as „the interim order‟, relaxed the application of the
impugned rules.

[6] In the meantime, some of those who had been evicted had negotiated with
the City that they could stay at a building at the corner of Hancock and Claim Street
in Johannesburg, paying a rental of R600 per month per unit. The remainder were
told that they could stay at the Shelter. The City insisted that the occupiers could
stay at the Shelter only if each one of them was to sign a document styled „Client‟s
Responsibilities and Standards‟. This document incorporated „house rules‟ and a
disciplinary code. It was in this way that the Shelter came to be used in order to
provide temporary accommodation for a number of the persons who had been
evicted from Saratoga.

[7] The house rules of the Shelter included the regulation of food being prepared
and consumed in a dining room area, provisions that the use of electrical appliances
such as stoves, heaters, television sets and radios in bedrooms were prohibited, that
violence, abusive language and unruly behaviour were not allowed, that drugs,
alcohol and dangerous weapons were not permitted and that those who entered the

premises under the influence of drugs or alcohol could be required to vacate until
they returned sober. Each of the occupiers in writing agreed to be bound by these
rules but „reserved‟ his or her rights. Other than rules 3 and 4 of the house rules, the
occupiers have no objection thereto.

[8] Rules 3 and 4, which were the subject of the court a quo‟s order, provided for
the closure of entry to the Shelter by 20h00 every night and that all residents sign a
register every night (rule 3); and that all residents vacate the Shelter by 8h00 on
Mondays to Fridays, and at 9h00 on Saturdays and Sundays (rule 4). The rules
provided that the management of the Shelter could, in their discretion, exempt
individual residents from the application of these rules. The answering affidavit
indicates that exemptions have been allowed with a considerable measure of
liberality. The primary purpose of the rules was not merely to ensure the safety and
protection of the occupiers but also to encourage residents to get out into the world,
to familiarise themselves with it and, so it is intended, find gainful employment, even
if only in the informal sector. The costs of allowing permanent access to and egress
from the Shelter would increase its running costs substantially, by reason of the
increased costs in staff, supervision and wear and tear. These rules were challenged
by the occupiers as being unconstitutional. The court a quo found that this was
indeed so.

[9] The City has been laudatory about the effectiveness of the Shelter provided
by MES. The City does not, however, hold it out as a model to be used whenever
temporary accommodation is to be made available in an emergency. On the
contrary, it contends that the facilities would be better used for the purposes and the
persons for whom it had been designed. Moreover, as a result of the interim order,
the MES, with the City‟s concurrence, decided that no persons additional to the
occupiers would be accommodated at the Shelter, until all the occupiers had left.

[10] The design of the Shelter consists of 30 small dormitories, consisting of two to
four bunks per dormitory. The dormitories were gender differentiated. The gender
differentiation arises from the fact that each dormitory sleeps more than two persons.
The unarticulated but self-evident premise of this gender differentiation is that it is
required according to widely prevailing norms of modesty and decency in society.

The policy of gender differentiation has the consequence that the occupiers do not
share the same room with their spouses or life partners. This separation of the
occupiers from their spouses or life partners was also subject to constitutional
challenge. Here again, the court a quo found in favour of the occupiers.

[11] There has, in fact, been only one married couple among the occupiers. They
were married in terms of customary law. They were allocated a room designed for
occupation by four people. The wife had left to go to Limpopo in December 2012, to
take up temporary employment. These two persons have been residents, as a
married couple, at the Shelter since that time. The question of married couples
among the occupiers would seem to be of „academic‟ relevance only. Ms De Vos,
who appeared for the occupiers said that she wished to defend the order of the high
court because of its future relevance, because, so she submitted, the City intended
to apply this same policy to persons who may be given temporary accommodation in
similar circumstances in future. This is not the case, as mentioned previously.

[12] The only child among the occupiers stays with her mother in a female
dormitory. There are gender differentiated ablution facilities, having hot and cold
water. The Shelter has a communal kitchen with cooking and dining facilities, as well
as provision for storage facilities, enabling each occupier to store food. In addition,
there is a communal study area, courtyard and television room. MES employs a
cleaning crew that cleans the Shelter daily. The Shelter has a fulltime manager. The
occupiers are protected by security guards. Access to and egress from the Shelter is
controlled via a biometric system to ensure that only registered residents gain
access thereto.

[13] MES also provides the residents of the Shelter with a free hot lunch every day
as well as a resource and training facility with computers providing access to the
internet. Local newspapers are also made available for free. Access is given to
primary health care as well as the opportunity for recreation. The Shelter is known as
a „managed care model‟. It is intended to provide short-term, often overnight,
accommodation for the destitute. It aims to be a „holistic model‟ addressing the
physical, emotional, mental and spiritual needs of the destitute, helping to provide
them with skills and opportunities to change their lives for the better.

[14] The affidavits of both the City and MES make it clear that the Shelter was not
designed for the requirements demanded by the occupiers. Nevertheless, the City
has succeeded in providing them with temporary accommodation – a „roof over their
heads‟. The court a quo also correctly observed that the Shelter was neither
designed for, nor intended to provide temporary accommodation for persons in the
position of the occupiers. Indeed this was common cause. The accommodation
provided at the Shelter is of a higher standard than that at Saratoga. All of this is also
all provided free of charge.

[15] The court a quo also correctly noted that: „What is not in dispute is that the
need for temporary accommodation far outweighs the City‟s ability to provide it.‟ It is
also clear that the City turned to MES in desperation. The statistics filed of record
show that every year thousands of people stream into our cities, and especially
Johannesburg, in search of a better life. This is a worldwide phenomenon. It is easily
understandable: the pull of the cities gathers momentum from the poverty and
drudgery of the rural areas. The conundrum is that accommodation that is consistent
with human dignity is not readily available. In the short term, given the demands
upon the State in other fields such as education, policing and health, the wherewithal
to solve the problem of housing is not to hand. This is a difficulty with which all
developing countries are faced. Relative to thousands of others, the position of the
occupiers is a privileged one. The occupiers did not bring an application that the City
provides them with alternative temporary occupation.

[16] There can be no doubt that, ordinarily, all persons in South Africa have a
constitutional right to freedom of movement.4 Likewise, falling at least under the
constitutional rights to dignity, freedom, privacy, association and residence,5
husbands and wives and permanent life partners have a constitutional right to live
together. This was recognised even under the dark days of apartheid under the
landmark case of Komani NO v Bantu Affairs Administration Board, Peninsula Area.6
There can be no debate about this. Like the court a quo, I am acutely mindful of what

4 See s 12 of the Constitution of the Republic of South Africa, 1996.
5 See ss 10, 12, 14, 18 and 21 of the Constitution.
6 Komani NO v Bantu Affairs Administration Board, Peninsula Area 1980 (4) SA 448 (A) at 473D.

the Constitutional Court said in Bernstein & others v Bester & others NNO7 about the
fact that a „very high level of protection is given to the individual‟s intimate personal
sphere of life‟.8 Nevertheless, it is important to note the qualification in Bernstein that:
„But this intimate core is narrowly construed. This 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.‟9 (Footnote omitted.)
Temporary accommodation provided to cover an emergency situation will often,
necessarily, entail a „social dimension‟ of which the law must take cognisance.

[17] I am also keenly mindful of the Constitutional Court‟s injunction in Dawood &
another v Minister of Home Affairs & others; Shalabi & another v Minister of Home
Affairs & others; Thomas & another v Minister of Home Affairs & others,10 that a
central aspect of marriage is cohabitation and any significant impairment thereof
would be a limitation of the right to dignity.11

[18] Constitutional rights may, however, be limited.12 As Kriegler J pointed out
when delivering the majority judgment of the Constitutional Court in Coetzee v
Government of the Republic of South Africa; Matiso & others v Commanding Officer
Port Elizabeth Prison & others,13 no right enshrined in the Bill of Rights is absolute.14
There may be circumstances where the limitation of a right, even one of fundamental
importance, may be justified.15 Kriegler J went on to say: „In making the
determination [whether the limitation of the right is justified], especially in regard to a
right as fundamental as the one in question, namely personal freedom, one really

7 Bernstein & others v Bester & others NNO [1996] ZACC 2; 1996 (2) SA 751 (CC).
8 Paragraph 77.
9 Ibid.
10 Dawood & another v Minister of Home Affairs & others; Shalabi & another v Minister of Home
Affairs & others; Thomas & another v Minister of Home Affairs & others [2000] ZACC 8; 2000 (3) SA
936 (CC).
11 Paragraph 37.
12 See s 36 of the Constitution.
13 Coetzee v Government of the Republic of South Africa; Matiso & others v Commanding Officer Port
Elizabeth Prison & others [1995] ZACC 7; 1995 (4) SA 631 (CC).
14 Paragraph 11.
15 Ibid.

need not go beyond the test of reasonableness‟.16 Reasonableness depends on the
facts of each particular case.17

[19] The occupiers have described the Shelter as their home. The City has
responded that this is dialectically false: to portray temporary emergency
accommodation as a home is a contradiction in terms. Indeed, the thrust of the City‟s
argument was that the occupiers incorrectly claimed to have the same rights as if
they were living in their homes rather than in emergency temporary accommodation.
The City contends that this distinction was recognised by the Constitutional Court in
Blue Moonlight.18 It was in failing properly to distinguish between emergency and
ordinarily prevailing situations that, in the argument of the City, the court a quo had
been clearly wrong.

[20] We were referred to the judgment of Binns-Ward J in City of Cape Town v
Hoosain NO & others,19 in which he said:
„Once it is recognised that emergency accommodation by its very nature will 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.‟ 20
I agree.

[21] I fail to see the relevance of the occupiers‟ reliance on Teddy Bear Clinic for
Abused Children & another v Minister of Justice and Constitutional Development &
another.21 I do not see how the dignity and privacy of the single child who may be
affected by an order of court are in any material way diminished by the rules of MES.

16 Ibid.
17 See, for example, Kruger v Coetzee 1966 (2) SA 428 (A) at 430E-G; Za v Smith & another [2015]
ZASCA 75; 2015 (4) SA 574 (SCA) para 24.
18 Blue Moonlight CC judgment para 98.
19 City of Cape Town v Hoosain NO & others unreported WCHC case number 1033/2011, delivered
on 24 October 2012; [2012] ZAWCHC 180.
20 Paragraph 14.
21 Teddy Bear Clinic for Abused Children & another v Minister of Justice and Constitutional
Development & another [2013] ZACC 35; 2014 (2) SA 168 (CC).

[22] The thrust of the argument by the amicus was that housing must have special
regard to the needs of the vulnerable and, in particular, women and children. In this
connection, we were referred to South African, foreign and international law. About
this aspect of policy there can be no confusion: South African law in this field is, by
now, trite. It is abreast of the best in the world and, in the submission of Mr Loxton,
who appeared for the City, goes further to protect the socially disadvantaged than
any other country. The evaluation of any municipal, regional or national
government‟s housing policy – whether by an electorate, the courts, or experts in
areas as diverse as urban and regional planning, social work, economics,
architecture and building, construction and engineering – will have regard to a
multiplicity of factors, including, but not limited to, safety, protection from the
elements, access to utilities such as electricity and clean water, refuse collection,
public transport, schools, clinics, parks and other centres of sport and recreation,
regulation, aesthetics, inter-digitation and general spatial design. An evaluation of
broad, long-term political policy takes place on a different footing from a judgment
dealing with the facts in a temporary situation created by an emergency. With this
proposition, counsel for both the amicus and the City agreed. It is self-evidently
correct. The best must not become the enemy of the good.

[23] The rules relating to entry to and egress from the Shelter are not dissimilar
from those at other institutional buildings. They were designed, inter alia, to ensure
the safety and protection of the occupiers. They are also intended to discourage an
attitude of dependence. There are cost factors too. These rules cannot, in all the
circumstances, be said to be unreasonable. As for the sleeping arrangements,
without displacing other persons at the Shelter, MES cannot both 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. The
limitation on husbands and wives and permanent life partners sleeping together in
the strictly temporary emergency accommodation provided was, in the single
relevant instance, relaxed. In any event, husbands and wives and permanent life
partners do not have the right, always and everywhere, to sleep together. There are
instances in which this right must yield, albeit temporarily, to broader practical
demands such as those related to the reason for which the Shelter was designed. In

context, the provision of temporary accommodation separated on the basis of
gender, is not unreasonable and therefore not unconstitutional.

[24] The proper remedy for the occupiers was not to have applied for the striking
down of the rules of a bona fide institution such as MES but to have applied for an
order that the accommodation provided by the City, through the agency of MES, was
not that which had been ordered by the Constitutional Court. In other words, the
occupiers who wished to sleep with their spouse in temporary accommodation
intended to cater for an emergency, should have applied for an order that they be
given alternative accommodation, where they could exercise these rights. They may
or may not have been successful but the rules of MES in the Shelter offered by the
City, in an attempt to accommodate the occupiers in an emergency situation are not,
in themselves, unreasonable. The appeal must succeed. Appropriately, the City did
not seek an award of costs in the event that it was successful.

[25] The following order is made:
1 The appeal is upheld.
2 The order of the court a quo is set aside and replaced with the following:
„The application is dismissed.‟

______________________
N P WILLIS
Judge of Appeal

APPEARANCES:

For Appellant:

C D A Loxton SC (with him A W Pullinger)
Instructed by:
Moodie & Roberston, Johannesburg
Lovius Block, Bloemfontein

For First to 33 Respondents:
A M De Vos SC (with her S Wilson and M Stubbs)
Instructed by:
Socio-Economic Rights Institute, Johannesburg
Webbers, Bloemfontein

For Amicus Curiae:

E Webber
(Heads of argument prepared by J Brickhill, with
him, J Bleazard)
Instructed by:
Centre for Applied Legal Studies, Johannesburg
Webbers, Bloemfontein
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF
APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

18 May 2016

STATUS

Immediate

City of Johannesburg v Dladla & others (403/15) [2016] ZASCA 66 (18 May 2016)

Please note that the media summary is for the benefit of the media and does
not form part of the judgment.

This morning the Supreme Court of Appeal (SCA) upheld an appeal against an order
in the South Gauteng High Court, Johannesburg and replaced that order with one
dismissing the application with costs. The high court had set aside certain rules of an
urban shelter as being constitutionally invalid.

The respondents in the appeal are residents at the Ekuthuleni Shelter.  Metropolitan
Evangelical Services (MES), a company incorporated not for profit in terms of s 21 of
the Companies Act 71 of 2008 operated the Shelter. It is a community based,
Christian organisation.

The occupiers had been evicted from a dilapidated building in Saratoga Avenue,
Berea, Johannesburg. The Constitutional Court, in a case well known as ‘Blue

Moonlight’, 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
Saratoga was situated.

The City engaged the services of MES to provide the kind of temporary
accommodation in question. The house rules of the Shelter included the regulation of
food being prepared and consumed in a dining room area, provisions that the use of
electrical appliances such as stoves, heaters, television sets and radios in bedrooms
were prohibited, that violence, abusive language and unruly behaviour were not
allowed, that drugs, alcohol and dangerous weapons  were not permitted and that
those who entered the premises under the influence of drugs or alcohol could be
required to vacate until they returned sober. Each of the occupiers in writing agreed
to be bound by these rules but ‘reserved’ his or her rights.

The primary purpose of the rules was not merely to ensure the safety and protection
of the occupiers but also to encourage residents to get out into the world, to
familiarise themselves with it and, so it is intended, find gainful employment, even if
only in the informal sector.  The costs of allowing permanent access to and egress
from the Shelter would increase its running costs substantially, by reason of the
increased costs in staff, supervision and wear and tear. These rules were challenged
by the occupiers as being unconstitutional.  The court a quo found that this was
indeed so.

The design of the Shelter consists of 30 small dormitories, consisting of two to four
bunks per dormitory. The dormitories were gender differentiated.  The gender
differentiation arises from the fact that each dormitory sleeps more than two persons.
The unarticulated but self-evident premise of this gender differentiation is that it is
required according to widely prevailing norms of modesty and decency in society.
The policy of gender differentiation has the consequence that the occupiers do not
share the same room with their spouses or life partners. This separation of the
occupiers from their spouses or life partners was also subject to constitutional
challenge. Here again, the court a quo found in favour of the occupiers.

The SCA affirmed that husbands and wives and permanent life partners have a
constitutional right to live together. The SCA found that husbands and wives and
permanent life partners do not have the right, always and everywhere, to sleep
together.  There are instances in which this right must yield, albeit temporarily, to
broader practical demands such as those related to the reason for which the Shelter
was designed. In context, the provision of temporary accommodation separated on
the basis of gender, is not unreasonable and therefore not unconstitutional.

The SCA found that the rules of MES in the Shelter offered by the City, in an attempt
to accommodate the occupiers in an emergency situation are not, in themselves,
unreasonable and that the appeal must succeed.