THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Case no: 338/10

CITY OF JOHANNESBURG METROPOLITAN MUNICIPALITY       Appellant

and

BLUE MOONLIGHT PROPERTIES 39 (PTY) LTD
First Respondent

THE OCCUPIERS OF SARATOGA AVENUE                 Second Respondent

______________________________________________________________

Neutral citation:
City of Johannesburg Metropolitan Municipality v Blue
Moonlight (338/10) [2011] ZASCA 47 (30 March 2011)

CORAM:

Navsa, Tshiqi, Theron JJA and Plasket and Petse AJJA

HEARD:

18 February 2011
DELIVERED:
30 March 2011

SUMMARY: Eviction of desperately poor from privately owned building ─
constitutional duty of municipality to provide emergency temporary shelter ─
municipality held to have resources to provide emergency temporary shelter ─
fulfils important role in the progressive realisation of right of access to
adequate housing ─ no bar to using ratepayer contributions to provide
emergency temporary shelter to longstanding residents who otherwise would
be forced onto public spaces.

______________________________________________________________

______________________________________________________________
ORDER
______________________________________________________________

On appeal from:
South Gauteng High Court (Johannesburg) (Spilg J sitting
as court of first instance).
1.
The application by the appellant to have new evidence admitted on
appeal succeeds and the appellant is to pay the costs of the application on
the unopposed scale.
2.
Save as is reflected in the substituted order set out hereunder the
appeal is dismissed and the appellant is ordered to pay the second
respondents’ costs, including the costs of two counsel.
3.
No order is made in respect of the cross-appeal by the second
respondent.
4.
In respect of the abandoned cross-appeal by the first respondent, no
costs order is made in relation thereto.
5.
The order of the court below is set aside and substituted as follows:
‘1.
The first respondent and all persons occupying through them
(collectively “the occupiers”) are evicted from the immovable property situate
at Saratoga Avenue, Johannesburg and described as Portion 1 of Erf 1308
Berea Township, Registration Division IR, Gauteng (“the property”);
2.
The first respondent and all persons occupying through them are
ordered to vacate by no later than 1 June 2011, failing which the Sheriff of the
Court is authorised to carry out the eviction order;
3.
The second respondent’s housing policy to the effect that it only
provides temporary emergency accommodation to those evicted from unsafe
buildings by the City itself or at its instance, in terms of the National Building
Regulations and Building Standards Act 103 of 1977 is declared
unconstitutional to the extent that it excludes the occupiers from consideration
for such accommodation;
4.
The second respondent shall provide those occupiers whose names
appear in the document entitled “Survey of Occupiers of 7 Saratoga Avenue,
Johannesburg” filed on 30 April 2008, and those occupying through them, with
temporary emergency accommodation as decant in a location as near as

feasibly possible to the area where the property is situated, provided that they
are still resident at the property and have not voluntarily vacated it;
5.
The second respondent is ordered to pay the applicant’s costs and the
costs of the first respondent, including the costs of two counsel.’
______________________________________________________________
JUDGMENT
______________________________________________________________

NAVSA JA and PLASKET AJA (Tshiqi, Theron JJA and Petse AJA
concurring)

[1] Courts are increasingly being called upon to adjudicate disputes
involving homeless persons, owners of land or buildings and local authorities.
It was firmly established more than 15 years ago that the socio-economic
rights enumerated in our Constitution are justiciable.1 The adjudication of the
right of access to adequate housing more often than not presents intractable
problems. The challenge is to forge a coherent jurisprudence.

[2] The right of access to adequate housing cannot be seen in isolation. It
has to be seen in the light of its close relationship with other socio-economic
rights, all read together in the setting of the Constitution as a whole.2 It is
irrefutable that the State is obliged to take positive action to meet the needs of
those living in extreme conditions of poverty, homelessness or intolerably
inadequate housing. What is in dispute in the present case, as is frequently
the case in disputes concerning housing, is the extent of the State’s obligation
in this regard. This usually telescopes into an enquiry concerning the State’s
resources to meet its constitutional obligations. That issue, amongst others,
has come sharply into focus in this case. As stated in Government of the
Republic of South Africa & others v Grootboom & others,3 the precise form of

1 See Ex parte Chairperson of the Constitutional Assembly: In re Certification of the
Constitution of the Republic of South Africa, 1996 1996 (4) SA 744 (CC) para 78.
2 Government of the Republic of South Africa & others v Grootboom & others 2001 (1) SA 46
(CC) paras 23-24.
3 Government of the Republic of South Africa & others v Grootboom & others 2001 (1) SA 46
(CC).

the State’s obligation to provide housing depends on the context within which
the right is asserted by an aggrieved citizen.4

Orders issued by the court below

[3] On 4 February 2010 the South Gauteng High Court (Spilg J), ordered
the eviction of the second respondents, the occupiers of buildings situated at
Saratoga Avenue in Berea in Johannesburg (the occupiers), by no later than
31 March 2010. In addition, the court ordered the appellant, the City of
Johannesburg Metropolitan Municipality (the City), to pay the first respondent,
Blue Moonlight Properties 39 (Pty) Ltd (Blue Moonlight), the company that
owns the buildings occupied by the occupiers, an amount equivalent to the
fair and reasonable monthly rental of the premises from 1 July 2009 until
31 March 2010. The court directed that the amount either be agreed or
determined by a sworn valuator appointed by the President of the South
African Council for Property Valuers Profession. We shall for convenience
refer to the buildings as the property.

[4] Furthermore, the court declared the application of part of the City’s
housing policy unconstitutional. In terms of its housing policy, the City
provides emergency shelter to persons evicted by it from unsafe or ‘bad’
buildings owned by private landowners but not to persons evicted by private
landlords for other reasons. Spilg J held, erroneously, that the City’s housing
policy discriminated unfairly because persons evicted from state-owned
properties were provided with temporary shelter but persons, such as the
occupiers in this case, evicted by private landowners from their properties
were not. In fact the City’s policy is that only where it acts in terms of s 12(6)
of the National Building Regulations and Building Standards Act 103 of 1977
to evict persons from unsafe buildings, whether privately-owned or state-
owned, will temporary accommodation be afforded.

4 Paras 35-37.

[5] The court below went further and issued a structural interdict in terms
of which the City was ordered to remedy the defect in its housing policy and to
report to the court on what steps it had taken to do so and what steps it
intended to take in the future. The City was required to deliver the report by
12 March 2010. It was also ordered to report on the details of all state-owned
office buildings that are unoccupied and to report on when the buildings might
be occupied.

[6] Spilg J did not stop there. He went on and made the following orders
against the City:
‘6. a.
the Second Respondent shall provide each of the occupiers who are entitled to claim
as the First Respondent with at least temporary accommodation as decant in a location as
near as feasibly possible to the area where the property is situated and if rental is expected
then, unless there is agreement with the individual occupier or household head (as the case
may be), such rental may only be imposed pursuant to a court order, which application may
be dealt with at the same hearing to consider the report referred to in paragraph 5 above;
b.
ALTERNATIVELY and until such time as such accommodation is provided the
Second Respondent shall pay per month in advance, on the 25th of each month preceding the
due date of rental and commencing on the 25 March, to each occupier or household head (as
the case may be) entitled to claim as the First Respondent the amount of R850 per month
until the final determination of the relief referred to in paragraph 5(e) above that might be
sought;
PROVIDED THAT:
i.
The amount payable in the first month to each occupier or household head shall
include an additional sum of R850 should a deposit be required from a landlord, which shall
be refunded in full to the Second Respondent upon expiry of the lease or upon
accommodation being provided as aforesaid by the Second Respondent.
ii.
Where a monthly amount is paid to one of the First Respondents in lieu of
accommodation as provided for in paragraph 6(b) then such amount will be reviewed by the
parties every six months without prejudice to any party’s right to approach a court to increase
or decrease the amount;
7.
For the purposes of paragraphs 5 and 6 the persons entitled to claim as the First
Respondent are those whose names appear in the Survey of Occupiers of 7 Saratoga
Avenue, Johannesburg under filing notice of 30 April 2008 at pages 784 to 790 of the record
provided they are still resident at the property and have not voluntarily vacated.’

[7] The order set out in the preceding paragraph in terms of which the City
was required to pay a stipend of sorts is, to say the least, somewhat unusual.

Finally, the City was ordered to pay Blue Moonlight’s costs as well as the
costs of the occupiers, including the costs of two counsel.

[8] Lest the impression be created that the occupied buildings were of the
kind usually let for residential use it is necessary to have regard to the
description provided by Blue Moonlight:
‘The property comprises old commercial premises with a factory building, a number of
garages and a double-storey office space. The double storey office space and the garages
are occupied for residential purposes as are two or three shacks which have been erected in
the factory space. There are illegal electricity connections in the factory space, to the extent
that the electricity box therein glows red hot. Although water was previously disconnected, it
has been illegally reconnected.’

The facts

[9] It is necessary to describe the history of the occupation and to set out
the events leading to the orders being granted. It appears that a long time
before Blue Moonlight’s involvement a company known as Kernel Carpets
operated from the property. One of the occupiers, Mr David Goge, has lived
on the property since 1976, when he took up employment with Kernel
Carpets. Many of the occupiers were employed by Kernel Carpets and the
period of their occupation of the property varies. Kernel Carpets ceased
trading in 1999.

[10] After Kernel Carpets departed the scene the occupiers continued
paying rent to a caretaker who ostensibly collected it on behalf of the owner. A
property letting firm started collecting rentals during 2000. The property and
living conditions started to deteriorate. This led to a complaint being laid by
the occupiers with a housing tribunal. Nothing came of the complaint.

[11] During 2002 another management company began collecting rent from
the occupiers. That company was supplanted by two individuals who collected
rent from the occupiers. A complaint concerning their authority to collect
rentals was referred to a housing tribunal without any result. Living conditions
got worse and maintenance of the buildings was non-existent.  In 2004 Blue

Moonlight purchased the building. The occupiers alleged that in 2005 an
individual named Eddie, purporting to speak on behalf of Blue Moonlight,
engaged them and promised that the building would be renovated. According
to the occupiers, someone called Nkomo started collecting rent, ostensibly on
behalf of Blue Moonlight. The occupiers stated that they had paid rentals into
two bank accounts. Blue Moonlight’s response to these allegations is that they
had never received rentals from any of the occupiers and they put the
occupiers to the proof of the aforesaid assertions.

[12] It is clear that a stand-off developed between Blue Moonlight and the
occupiers. There are disputes concerning the termination of the water supply
to the building during certain periods and about whether it was safe for Blue
Moonlight’s representatives to enter the premises it owned. For present
purposes it is not necessary to explore this any further.

[13] On 28 June 2005 Blue Moonlight posted a notice to vacate at the
buildings. The occupiers were called upon to vacate the property by 21 July
2005. The notice purported to cancel any lease agreements that may have
been in existence.

[14] On 12 October 2005 the City served a notice on Blue Moonlight in
terms of the Fire Brigade Services Act 99 of 1987 calling upon it to do the
following:
‘Remove illegal combustible shacks
Provide fire fighting equipment
Remove unsafe electrical connections which are illegal
Remove combustible partitions
Submit plans for change of occupancy
Provide adequate escapes.’

[15] On 11 November 2005 the City’s environmental health practitioner sent
the following notice to Blue Moonlight in relation to the building:
‘TAKE NOTICE that the City Council of Johannesburg is satisfied that the above premises,
where the business of an Accommodation Establishment is conducted, do not comply with the
abovementioned By-Laws of the City of Johannesburg.

In order to make the premises comply with the said By-Laws, you are hereby required to do
the work or things herein specified forthwith namely:
1.
Take effective measures to prevent the harbouring or breeding and for the destruction
of flies, cockroaches and other insects, rodents and other vermin.
2.
Provide and maintain artificial lighting at every entrance, passage and staircase, of
which persons have the use in common. The level of illuminance of such lighting shall not be
less than 160 LUX at any point or in such entrance, passage or staircase.
3.
Every such entrance, passage or staircase shall be kept in a clean state and in good
repair.
4.
Eliminate the cause of dampness in the wall(s) / ceiling(s) of the premises and repaint
with a light coloured washable paint.
5.
Reglaze all broken windowpanes.
6.
Provide an adequate and constant supply of hot and cold running water to every bath,
wash hand basin, shower and wash up sink.
7.
Provide an adequate and constant supply of cold running water to the cistern(s),
urinal(s).
8.
Repair / replace the defective cistern(s).
9.
Replace the broken / missing toilet seat(s) and cover(s).
10.
Replace the broken / leaking water supply pipe(s).
11.
Replace the broken / leaking soil pipe(s) / waste pipe(s).
12.
Remove the accumulation(s) of domestic refuse; builder’s rubble from the courtyard
area.
13.
Repair / replace all broken suspended wooden floors.
14.
Repair / replace all broken wooden doors throughout the premises.
15.
Ensure adequate ventilation throughout the premises by installing windows where
there are no windows.
16.
Provide ablution facilities for use by separate sexes.
17.
Take effective measures to prevent wastewater / sewerage from running down into
the street.
18.
Maintain the premises in a clean and sanitary condition and in good repair at all
times.’

[16] This led to Blue Moonlight posting a further notice to the occupiers to
vacate on 6 January 2006. This was followed by an application to court for
substituted service. The application was subsequently served and was
opposed. When the main application was brought in May 2006 the buildings
were occupied by 62 adults and nine children. One of the children was 12
years old at the time and is disabled. Two of the occupiers are pensioners.
Ten of the households are headed by women. All of the occupiers have lived

on the property for more than six months. The majority have lived there for
more than two years. The occupiers are all desperately poor and most of
them have no formal employment. Many have no income at all. The average
household income at the time the application was brought was R790 per
month.

[17] In opposing the application for their eviction the occupiers stated that if
evicted they would be rendered homeless and in the short term would have
no shelter at all. In the medium term they were unaware of alternative
accommodation which any of them could afford. They contended that the City
was obliged to take reasonable measures to ensure the progressive
realisation of their constitutional right of access to adequate housing and that
this included an obligation to provide shelter should they be rendered
homeless as a result of their eviction. Importantly, they accepted that they
were unlawful occupiers and contended that for that very reason they were
entitled to assistance from the City.

[18] This led to an application by the occupiers for the City to be joined as a
respondent. Furthermore, they sought an order declaring that the City had a
constitutional obligation to make temporary emergency shelter available to
them on the basis that in the event of their eviction they would have no
alternative accommodation available and that they would be in a crisis or
intolerable situation.

[19] The City was duly joined as a respondent and entered the fray.
Numerous delays occurred in the prosecution of the case due, amongst other
reasons, to a pending decision in the Constitutional Court involving the City
and dealing with the City’s obligations to occupiers of privately owned
buildings whom the City had applied to evict on the basis that the buildings
they had occupied were unsafe and unhealthy. The case in question is

Occupiers of 51 Olivia Road, Berea Township and 197 Main Street,
Johannesburg v City of Johannesburg & others.5

[20] Before us, the City submitted that the court below had not properly
taken into account that there had been a full judicial process by Blue
Moonlight, in compliance with the Prevention of Illegal Eviction from and
Unlawful Occupation of Land Act 19 of 1998 (PIE) and that the position of the
occupiers was not comparable to persons evicted due to fire, flood or unsafe
buildings. Thus, it was argued, the City was not obliged to make emergency
provision for them. Put simply, the City adopted the position that it bore no
constitutional obligation to provide shelter when an eviction is prompted by a
private landlord asserting its superior right to property against occupiers. The
City pointed out that, in any event, it has limited housing stock to deal with life
threatening emergencies.

[21] The City contended that its housing policy that prioritises life
threatening situations was not random, arbitrary or discriminatory but was
carefully developed, within its budgetary constraints, giving priority to the most
pressing demands. The City was adamant that this policy was in line with the
policy of the national government in terms of a national legislative framework
and that it was unable to make policy that does not conform to that policy and
framework. It was emphatic that the duty to approve and fund emergency
relief in terms of prevailing legislation rests on the provincial government
through its housing department. The City was aggrieved that the court below
had refused its application to join the provincial government, which the City
had argued was a necessary party to the proceedings. The City argued that
the occupiers were seeking to obtain an unfair advantage over others who
were in the queue for State subsidised housing. In this regard it pointed to the
sequence of steps in its housing policy directed at the progressive realisation
of housing rights, namely, from emergency housing to temporary
accommodation and then finally to permanent accommodation.

5 Occupiers of 51 Olivia Road, Berea Township and 197 Main Street, Johannesburg v City of
Johannesburg and others 2008 (3) SA 208 (CC).

[22] The City was adamant in its submission that it had no original power to
initiate housing schemes or provide accommodation on its own. It contended
that it could not use ratepayer contributions or any of its own income to that
end. The corollary is that it had no obligation to house persons other than in
terms of national housing policy and only to the extent that it was funded by
national or provincial government. The contention that the City was precluded
from using ratepayer contributions to meet housing needs was mentioned for
the first time in argument before us. It was submitted that if any of the housing
schemes referred to by the City in its affidavit had in fact used ratepayer
contributions the City might have acted ulta vires. In a report it had filed
pursuant to an order by the high court to do so, it stated, however, that while it
was not obliged to do so, it focused on the ‘provision of shelter to occupants
of dangerous buildings, who qualify as being desperately poor and who find
themselves in a true crisis situation’ and that this assistance was funded ‘from
its own resources and within its financial constraints’.

[23] The City was particularly aggrieved at the ‘constitutional damages’ that
the court below appeared to have granted against it. It labelled the order
imposing direct financial obligations on it by payment to the landlord, and the
provision of a stipend of sorts to the occupiers, as extraordinary and
unwarranted.

[24] Blue Moonlight, on the other hand, contended that its rights to the
property owned by it could not indefinitely be thwarted by the occupants and
that it should not be obliged to carry the burden of continuing to house
persons who were in unlawful occupation, particularly since it received no
income and was under threat from the City about meeting safety and health
regulations. It was submitted that the occupiers stood in the path of its right to
develop the property in question. Significantly, before us, Blue Moonlight
refrained from asserting any entitlement to the monetary orders granted in its
favour by the court below. It expressly abandoned any reliance on those
orders and limited itself to contending that the eviction order by the court
below was justified.

[25] In order to begin to appreciate the issues raised in this appeal it is
necessary to start with the constitutional and legislative framework against
which they fall to be decided.

The legal framework

[26] In order to determine if the City owes the occupiers any obligations
concerning their accommodation on eviction from the property and, if so, the
nature of those obligations, it is necessary to start with s 26 of the
Constitution. It provides:
'(1)
Everyone has the right to have access to adequate housing.
(2)
The state must take reasonable legislative and other measures, within its available
resources, to achieve the progressive realisation of this right.
(3)
No one may be evicted from their home, or have their home demolished, without an
order of court made after considering all the relevant circumstances.  No legislation
may permit arbitrary evictions.'

[27] The Constitutional Court held, in Government of the Republic of South
Africa & others v Grootboom & others6 that subsecs (1) and (2) of s 26, being
related, need to be read together: the first defines the scope of the right,7
while the second 'speaks to the positive obligation imposed upon the State'.8
The court proceeded to say:9
'It requires the State to devise a comprehensive and workable plan to meet its obligations in
terms of the subsection. However subsec (2) also makes it clear that the obligation imposed
upon the State is not an absolute or unqualified one. The extent of the State's obligation is
defined by three key elements that are considered separately: (a) the obligation to "take
reasonable legislative and other measures"; (b) "to achieve the progressive realisation" of the
right; and (c) "within available resources".'

[28] In order to give effect to the fundamental right of access to adequate
housing, the state has developed a legislative and policy framework. In its
preamble, the Housing Act 107 of 1997 recognises, in express terms, that it

6 Footnote 2.
7 Para 34.
8 Para 38.
9 Para 38.

forms part of the legislative measures required to give effect to s 26. Its long
title states that its purpose is:
'To provide for the facilitation of a sustainable housing development process; for this purpose
to lay down general principles applicable to housing development in all spheres of
government, to define the functions of national, provincial and local governments in respect of
housing development and to provide for the establishment of a South African Housing
Development Board, the continued existence of provincial boards under the name of
provincial housing development boards and the financing of national housing programmes; to
repeal certain laws; and to provide for matters connected therewith.' (Our emphasis.)

[29] The Act deals specifically with the functions of the national, provincial
and local spheres of government in respect of housing. The national sphere of
government has the function, in essence, of establishing and facilitating a
'sustainable national housing development process' 10 and for that purpose
the Minister is required, inter alia, to determine national policy and set national
norms and standards,11 set national housing delivery goals and facilitate the
setting of provincial and local government housing delivery goals12 and
monitor performance, in all three spheres of government, against  'delivery
goals and budgetary goals'.13 In order to perform the functions allocated to
him or her the Minister is, inter alia, vested with the power to 'allocate funds
for national housing programmes to provincial governments, including funds
for national housing programmes administered by municipalities in terms of
section 10'.14 In terms of s 3(7), all provincial governments and municipalities
are obliged to furnish any 'reports, returns and other information' that the
Minister may require. Finally, the Minister is required to publish a National
Housing Code15 which must contain national housing policy and may contain
administrative
or
procedural
guidelines
concerning
the
‘effective
implementation and application of national housing policy’ and 'any other
matter that is reasonably incidental to national housing policy'.16

10 Section 1.
11 Section 3(2)(a).
12 Section 3(2)(b).
13 Section 3(2)(c).
14 Section 3(4)(d).
15 Section 4(2)(a)
16 Section 4(2)(b).

[30] Section 7 of the Act defines the role of provincial government. Section
7(1) provides that every provincial government must, after consultation with
organised local government, 'do everything in its power to promote and
facilitate the provision of adequate housing in its province within the
framework of national housing policy'. Section 7(2) spells out what this
obligation (which is to be undertaken by the respective MEC's for Housing)
entails. It includes the determination of provincial housing policy,17 the
promotion of the adoption of provincial legislation to ‘ensure effective housing
delivery';18 the taking of 'all reasonable and necessary steps to support and
strengthen the capacities of municipalities, to effectively exercise their powers
and perform their duties in respect of housing development',19 the
coordination of housing development provincially,20 and the taking of 'all
reasonable and necessary steps to support municipalities in the exercise of
their powers and the performance of their duties in respect of housing
development'.21

[31] The functions of local government in respect of housing are set out in
s 9. Section 9(1) provides:
'Every municipality must, as part of the municipality's process of integrated development
planning, take all reasonable and necessary steps within the framework of national and
provincial housing legislation and policy to ─
(a)
ensure that ─
(i)
the inhabitants of its area of jurisdiction have access to adequate housing on
a progressive basis;
(ii)
conditions not conducive to the health and safety of the inhabitants of its area
of jurisdiction are prevented or removed;
(iii)
services in respect of water, sanitation, electricity, roads, stormwater
drainage and transport are  provided in a manner which is economically efficient;
(b)
set housing delivery goals in respect of its area of jurisdiction;
(c)
identify and designate land for housing development;
(d)
create and maintain a public environment conducive to housing development which is
financially and socially viable;
(e)
. . . ;

17 Section 7(2(a).
18 Section 792)(b).
19 Section 7(2)(c).
20 Section 7(2)(d).
21 Section 7(2)(e).

(f)
initiate, plan, co-ordinate, facilitate, promote and enable appropriate housing
development in its area of jurisdiction;
(g)
. . . ;
(h)
. . . .'

[32] These functions must be viewed in the wider context of what are
described as the 'rights and duties’ of municipalities in s 4 of the Local
Government: Municipal Systems Act 32 of 2000.22 Section 4(1) empowers
municipal councils to govern, on their own initiative, 'the local government
affairs of the local community', to exercise their executive and legislative
authority without 'improper interference' and to finance their 'affairs' by
charging fees for services and imposing rates and other  forms of taxation.

[33] Section 4(2) prescribes a set of duties that municipalities are required
to comply with, subject to ‘financial and administrative capacity and having
regard to practical considerations'.  For present purposes, only one of these
duties needs be mentioned. It is the duty to 'contribute, together with other
organs of state, to the progressive realisation of the fundamental rights
contained in sections 24, 25, 26, 27 and 29 of  the Constitution'.23 Section 8(2)
provides that a City may do ‘anything reasonably necessary for, or incidental
to, the effective performance of its functions and the exercise of its powers'.

[34] Section 11(3) vests legislative or executive authority in municipalities to
perform a number of functions, including 'developing and adopting policies,
plans, strategies and programmes including setting targets for delivery';24 the
'promoting and undertaking of delivery';25 the implementation of 'applicable
national and provincial legislation' as well as by-laws;26 the preparation,
approval and implementation of budgets;27 the imposition and recovery of
rates, taxes, levies, duties, service fees and surcharges on fees . . .';28 and

22 A more correct description would be powers and duties.
23 Section 4(2)(j).
24 Section 11(3)(a).
25 Section 11(3)(b).
26 Section 11(3)(e).
27 Section 11(3)(h).
28 Section 11(3)(i).

the doing of 'anything else within its legislative and executive competence'.29
Finally, s 23(1) places an obligation on municipalities to undertake
'developmentally-oriented planning' aimed at ensuring that they achieve their
constitutional objects, give effect to their constitutionally enshrined
developmental duties and 'contribute to the progressive realization of the
fundamental rights contained in sections 24, 25, 26, 27 and 29 of the
Constitution'.30

[35] The third part of the legislative scheme is the National Housing Code
contemplated by s 4 of the Housing Act. Chapter 12 of the Code is headed
'Housing Assistance in Emergency Housing Circumstances'. As its heading
suggests, chapter 12 records policy in respect of 'assistance to people who,
for reasons beyond their control, find themselves in an emergency housing
situation such as the fact that their existing shelter has been destroyed or
damaged, their prevailing situation poses an immediate threat to their life,
health and safety, or they have been evicted, or, face the threat of imminent
eviction'.31

[36] The process created by chapter 12 is that when a municipality
considers that a housing emergency that falls within the terms of chapter 12
has arisen within its area of jurisdiction, it is required to apply to the provincial
government for 'project approval' for its plan to deal with the emergency. If the
provincial government approves the project, it provides funding to the
municipality to enable it provide temporary shelter for the victims of the
emergency. In this case, the City belatedly applied for funding to provide
temporary shelter for the occupiers and others who were similarly situated but
the provincial government, pleading a lack of funds, refused to assist.

[37] The final part of the legislative scheme is the City's own housing
programme. In dealing with the provision of alternative accommodation in the

29 Section 11(3)(n).
30 See generally Residents of Joe Slovo Community, Western Cape v Thubelisha Homes &
others (Centre on Housing Rights and Evictions and another, Amici Curiae) 2010 (3) SA 454
(CC) paras 348-351.
31 Introductory paragraph to chapter 12.

inner city, the City draws a distinction between the following forms of
emergency accommodation: (a) accommodation kept in reserve for possible
disasters; (b) temporary accommodation as decant, which is accommodation
'custom built to receive people who need to be removed from informal
settlements or bad buildings that are unsafe to occupy’; (c) transitional
accommodation, which is similar in nature to temporary accommodation but
'refers to accommodation established under the transitional housing
programme of government'; and (d) shelters, which are ‘social development
interventions' in terms of which private bodies such as churches provide
shelter, with limited support from the City, for vulnerable groups of people
such as street children.

[38] As far as the provision of any form of accommodation to people in the
position of the occupiers is concerned, the City's policy has been set out as
follows in its first report in terms of s 4(2) of PIE:
'The City itself has a programme that seeks to address the dangerous conditions presented
by bad buildings in the Inner City and elsewhere. These buildings present a danger to the
lives of those occupying them and the buildings surrounding them. There are hundreds of
problem buildings, and safety concerns make it inevitable that the City will have to evict the
occupiers of many of these bad buildings. The City is in fact obliged to do so in terms of the
National Building Regulations and Building Standards Act. The City will probably have to
accommodate many of the occupants of these buildings for various periods of time. Because
these occupants will be evicted for safety reasons, the City will obviously have to utilise any
accommodation available to it to accommodate those evicted from bad buildings. The
temporary accommodation as decant is just beginning to come on stream at the time this
Report is made. Because of the scale of the task facing the City, the City cannot for the time
being make any of its emergency shelters available for any persons evicted from private
property by way of PIE.’

[39] In Grootboom, the Constitutional Court considered it to be essential to
a reasonable housing programme that responsibilities be allocated not only to
the national and provincial spheres of government but also to the local sphere
of government, principally because of its important role in ensuring that

‘services are provided in a sustainable manner to the communities they
govern’.32 The court continued to say:33
‘Thus, a co-ordinated State housing program must be a comprehensive one determined by all
three spheres of government in consultation with each other as contemplated by chap 3 of the
Constitution. It may also require framework legislation at national level, a matter we need not
consider further in this case as there is national framework legislation in place. Each sphere
of government must accept responsibility for the implementation of particular parts of the
program but the national sphere of government must assume responsibility for ensuring that
laws, policies, programs and strategies are adequate to meet the State's s 26 obligations. In
particular, the national framework, if there is one, must be designed so that these obligations
can be met. It should be emphasised that national government bears an important
responsibility in relation to the allocation of national revenue to the provinces and local
government on an equitable basis. Furthermore, national and provincial government must
ensure that executive obligations imposed by the housing legislation are met.’

[40] The legislative framework that has been described above appears in
large measure to be designed to give effect to the obligations referred to in
Grootboom in a co-ordinated manner. It is clear from that framework that each
sphere of government has obligations imposed on it in respect of the right of
access to adequate housing; that they are required to work together ─ as one
would expect in a system predicated on principles of co-operative
government34 ─ to ‘achieve the progressive realisation of this right’; and that
each sphere is an independent bearer of the obligation. From this, and the
legislative scheme as a whole, we conclude that the City’s obligations to the
occupiers is not derivative, as was argued on its behalf, but direct and that the
City has the authority to fund its own housing programme and administer its
own housing policy from its own resources as well as from the national and
provincial spheres of government, within the parameters of the national
housing policy.

32 Footnote 2 para 39.
33 Para 40.
34 Constitution s 40.

Conclusions

[41] The City appeals against the order in terms of which it was required to
accommodate the occupiers and the associated monetary orders. It also
appeals against the order declaring its housing policy to be unconstitutional.
The City is also aggrieved that the court below refused its application to join
the provincial government as a party to the proceedings.

[42] We consider it convenient to deal first with the contention on behalf of
the City set out in para 22 above, namely, that it has no power to act other
than in accordance with national legislation and policy and only in
circumstances where it receives funding from national or provincial
government to that end. The City is obviously constrained to act within the
applicable legislative and policy framework. It is clear, however, from what is
set out in paras 32-38 above, that the City is not only empowered to act in
circumstances such as those under consideration, but is obliged to.

[43] We begin with the Constitution. Section 26(2), which is set out in para
26 above, obliges the State in all its guises to take reasonable legislative and
other measures ‘within its available resources’, to achieve the progressive
realisation of the right of access to adequate housing. Whatever the precise
parameters of the term ‘the State’ may be, there can be no doubt that for
purposes of the Bill of Rights and s 26 of the Constitution, in particular, it
includes the local sphere of government.35 Furthermore, the Constitutional
Court has made it clear, in Olivia Road, that the City owes those who live
within its precincts certain obligations. The court stated:36
‘The city has constitutional obligations towards the occupants of Johannesburg. It must
provide services to communities in a sustainable manner, promote social and economic
development, and encourage the involvement of communities and community organisations
in matters of local government. It also has the obligation to fulfil the objectives mentioned in
the preamble to the Constitution to “[i]mprove the quality of life of all citizens and free the

35 See too, s 40, although in this section, the term ‘government’ is used. Section 40(1)
provides: ‘In the Republic, government is constituted as national, provincial and local spheres
of government which are distinctive, interdependent and interrelated.’
36 Footnote 4 para 16.

potential of each person”. Most importantly it must respect, protect, promote and fulfil the
rights in the Bill of Rights.’
Later in the judgment the court stated, in the context of the interplay between
ensuring safe buildings and preventing homelessness, that ‘the city has a duty
to ensure safe and healthy buildings on the one hand and to take reasonable
measures within its available resources to make the right of access to
adequate housing more accessible as time progresses on the other’.37

[44] In Port Elizabeth Municipality v Various Occupiers38 the Constitutional
Court made the point that, generally speaking, courts should be reluctant to
grant eviction orders against persons who are ‘relatively settled’ in the
absence of reasonable alternative accommodation for them ‘even if only as an
interim measure pending ultimate access to housing in the formal housing
programme’. The court proceeded to state:39
‘The availability of suitable alternative accommodation will vary from municipality to
municipality and be affected by the number of people facing eviction in each case. The
problem will always be to find something suitable for the unlawful occupiers without
prejudicing the claims of lawful occupiers and those in line for formal housing. In this respect,
it is important that the actual situation of the persons concerned be taken account of. It is not
enough to have a programme that works in theory. The Constitution requires that everyone
must be treated with care and concern; if the measures, though statistically successful, fail to
respond to the needs of those most desperate, they may not pass the test. In a society
founded on human dignity, equality and freedom, it cannot be presupposed that the greatest
good for the many can be achieved at the cost of intolerable hardship for the few, particularly
if, by a reasonable application of judicial and administrative statecraft, such human distress
could be avoided.’

[45] The provisions of the Housing Act, referred to earlier in this judgment,
envisages an interactive approach between local and other spheres of
government to facilitate the provision of housing. In Port Elizabeth Municipality
the Constitutional Court said that ‘municipalities have a major function to
perform with regard to the fulfilment of the rights of all to have access to

37 Para 44.
38 Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC) para 28.
39 Para 29.

adequate housing’. It went on to say that municipalities have a ‘duty
systematically to improve access to housing to all within their area’.40

[46] Section 9 of the Housing Act, set out in para 31 above, obliges every
municipality, within the framework of national and provincial housing
legislation and policy, to ensure that inhabitants within its area of jurisdiction
have access to adequate housing on a progressive basis and to provide
conditions conducive to the health and safety of such persons. In terms of
s 9(1)(f) every municipality must initiate, plan, coordinate, facilitate, promote
and enable appropriate housing development in its area of jurisdiction.
Section 4(2) of the Local Government: Municipal Systems Act, referred to in
para 33 above, imposes a duty on municipalities to contribute ‘together with
other organs of State’, inter alia, to the progressive realisation of the right of
access to adequate housing. Section 8(2) of the same Act empowers
municipalities to take such steps as are reasonably necessary for or incidental
to the effective performance of their functions and powers.

[47] It is clear from the City’s own affidavits and reports that it has an
extensive and impressive housing programme, signifying that it is indeed
taking steps to comply with its constitutional and statutory obligations. The
question before us is whether it is doing so in respect of the occupiers.

[48] In our view, for all the stated reasons, there is no merit in the
submission that the City is not empowered or obliged to act other than as an
agent of national or provincial government with funding from those sources.
As we have shown, it uses its own resources to fund the housing needs of
certain persons who find themselves in dire circumstances of homelessness.
It would appear that the City has done so without any concern, before the
issue was raised in argument before us, that it may have been acting beyond
its powers. We conclude that the City is, indeed, empowered to provide for the
progressive realisation of the right of access to adequate housing within its
area of jurisdiction and to utilise its own resources to do so, if needs be, as

40 Para 56.

long as its actions in this regard are not inconsistent with the Housing Act or
the National Housing Code.

[49] The next question that falls to be addressed is whether the City is able,
within its available resources, to meet the needs of the occupiers. Whilst the
City has explained that operating within a budget surplus, which it
acknowledges, for at least one financial year, does not mean that it can
employ such monies at will, it does not anywhere state that it is unable to re-
allocate funds or that it is unable financially to meet the temporary housing
needs of the occupiers. All that is being sought at the moment, by the
occupiers, is temporary accommodation as an entrée to the progressive
scheme which envisages permanent accommodation in the future in the
sequence referred to earlier in this judgment. While we appreciate that the
City faces immense challenges as a result of the influx of persons into
Johannesburg, the papers do not attempt to grapple with, and inform us, as to
what is possible.

[50] In dealing with its financial constraints the City speaks in the vaguest
terms about the affordability of meeting demands for housing. Much of the
affidavits deposed to on behalf of the City is devoted to the cost of providing
permanent accommodation. It states that for the 2008/2009 financial year its
projections indicate a movement towards a budget deficit. It does not say in
terms that it has no funds to provide temporary emergency housing as decant
for the occupiers.

[51] The City has for a long time been faced with emergency housing
situations of all kinds. It appears to have adopted an entrenched position that
excludes persons such as the occupiers from assistance. It is abundantly
clear that but for this approach it could have adopted a long-term strategy,
which ought to have included financial planning, to deal with such exigencies.
It did not do so and that is what caused it to apply belatedly to the provincial
government for funding to deal with the occupiers’ needs. The City’s
application to provincial government for last-minute funding was misdirected
as it must have been clear to the City that the former’s budgetary and financial

resources had already been committed. The written response by the
provincial government to that effect could hardly have been surprising.

[52] To a great extent the City is to blame for its present unpreparedness to
deal with the plight of the occupiers. It knew of their situation from the time
that the litigation started, through its many delays extending over three
financial years. It did not, in all that time, make any provision, financial or
otherwise, to deal with a potentially adverse court order or take steps to re-
allocate resources or re-work priorities so that the occupiers could be
accommodated. As a result, the City has, through its general reports, vague
responses to its budget surplus and denial of any obligations towards the
occupiers, failed to make out a case that it does not have the resources to
provide temporary accommodation for the occupiers if they are to be evicted.

[53] The use of ratepayer contributions or any of the City’s own funds to
prevent the City being exposed to long standing residents, who in their
humble way contributed to the economic life-blood of Johannesburg, squatting
in public places accompanied by the attendant environmental impact can
hardly be objectionable. The City’s recent disavowal of its power and
entitlement to engage in accommodation projects on its own, without funding
from national or provincial government, is contradicted by its own
accommodation report in which it indicated that of its capital budget of R170
million for housing for the 2007/2008 financial year for R55 million is derived
from the City’s own funds. As indicated above, the City has an indispensible
role to play in the progressive realisation of the right of access to adequate
housing. It has a constitutional obligation in the circumstances of this case to
provide temporary emergency housing to the occupiers. We were not referred
by counsel on behalf of the City to any statutory prohibition against the use by
the City of its own funds to provide temporary emergency accommodation.

[54] Proportionality is a constitutional watchword. In dealing with the
interrelated issues of the limits of judicial intrusion and the reality of available
resources, balanced against the assertion of socio-economic rights, a court’s
role can rightly be described as ‘the art of the possible’.

[55] It is necessary at this stage to deal with the submission on behalf of the
City, that if it were compelled to accommodate the occupiers, it would be
enabling them to jump the queue of persons waiting their turn in the various
stages that lead ultimately to permanent accommodation. We fail to see how
they would be jumping the queue. They would be the last in the line and
would have to wait their turn like everyone else. Counsel for the occupiers
accepted, correctly, that this was the position and that, at this stage, they
were entitled to nothing more than temporary emergency accommodation.

[56] The court below found that the City’s housing policy was unfairly
discriminatory and hence unconstitutional because it drew an illegitimate
distinction between persons evicted from state-owned property and those
evicted from privately-owned property, rendering assistance to the former
category only. The court below erred in two respects.

[57] First, it categorised the differentiation in treatment incorrectly. It did not
involve a difference in treatment between those evicted from state-owned
properties and those evicted from privately-owned properties. Rather the
difference was one between persons evicted from privately-owned unsafe
buildings by the City itself, acting in terms of s 12(6) of the National Building
Regulations and Building Standards Act, and those evicted from privately-
owned buildings (which are not necessarily, but could be, dangerous
buildings) by private landowners.

[58] Secondly, the court below erred in categorising the differentiation in
treatment as unfair discrimination as contemplated by s 9(3) of the
Constitution. In Harksen v Lane NO & others41 the Constitutional Court held
that the right to be protected from unfair discrimination sought to ‘prevent the
unequal treatment of people based on such criteria which may, amongst other
things, result in the construction of patterns of disadvantage such as has

41 Harksen v Lane NO & others 1998 (1) SA 300 (CC).

occurred only too visibly in our history’42 and that discrimination on
unspecified grounds (ie on grounds other than the grounds listed in s 8(2) of
the interim Constitution and s 9(3) of the final Constitution) is established if a
differentiation of treatment ‘is based on attributes or characteristics which
have the potential to impair the fundamental dignity of persons as human
beings, or to affect them adversely in a comparably serious manner’.43 That
does not apply in respect of the differentiation in treatment in this matter: the
constitutionality of the differentiation must be considered against s 9(1) which
provides that ‘[e]veryone is equal before the law and has the right to equal
protection and benefit of the law’.

[59] We turn now to a consideration of the City’s policy against s 9(1) of the
Constitution. The policy is inflexible because it does not allow at all for the
provision of temporary accommodation for persons evicted from privately-
owned land, even if they are desperately poor and find themselves in a crisis,
while it provides temporary accommodation to those whom it evicts from
privately-owned dangerous buildings, if they are desperately poor and find
themselves in a crisis. It excludes one category of evictees from consideration
completely and includes another category completely without concerning itself
with any other personal circumstances of those to be evicted.

[60] The inflexibility of the policy, which effectively precludes a proper
consideration of the merits of the claims of evictees to be housed by the City,
is in itself a basis for setting it aside. In the pre-constitutional era, in dealing
with a fixed policy applied to the granting of housing permits by a township
housing authority, the court in Mahlaela v De Beer NO,44 said the following:
‘[I]f the permit is refused or the grant of a permit is not considered on the ground of a fixed
policy, there can be no proper exercise of a discretion or a performance of a duty and the
decision of the superintendent falls to be set aside on this ground. This is also trite.’

42 Para 50.
43 Para 47. See too National Coalition for Gay & Lesbian Equality and another v Minister of
Justice & another 1999 (1) SA 6 (CC) paras 16-17.
44 Mahlaela v De Beer NO 1986 (4) 782 (T) at p 791I.

[61] The policy is, as a result of its inflexibility, also irrational and can on
that basis alone be impugned. In Pharmaceutical Manufacturers Association
of SA & another: In Re Ex Parte President of the Republic of South Africa &
others,45 Chaskalson P held:
‘It is a requirement of the rule of law that the exercise of public power by the Executive and
other functionaries should not be arbitrary. Decisions must be rationally related to the purpose
for which the power was given, otherwise they are in effect arbitrary and inconsistent with this
requirement. It follows that in order to pass constitutional scrutiny the exercise of public power
by the Executive and other functionaries must, at least, comply with this requirement. If it
does not, it falls short of the standards demanded by our Constitution for such action.’
In Grootboom the Constitutional Court, in the context of the right of access to
adequate housing, held that ‘the real question in terms of our Constitution is
whether the measures taken by the State to realise the right afforded by s 26
are reasonable’.46

[62] It is, furthermore, arbitrary and unequal in its operation and effect. The
connection between arbitrariness and inequality was drawn by Ackermann J
in S v Makwanyane & others47 as follows:
‘Arbitrariness, by its very nature, is dissonant with these core concepts of our new
constitutional order. Neither arbitrary action nor laws or rules which are inherently arbitrary or
must lead to arbitrary application can, in any real sense, be tested against the precepts or
principles of the Constitution. Arbitrariness must also inevitably, by its very nature, lead to the
unequal treatment of persons. Arbitrary action or decision-making is incapable of providing a
rational explanation as to why similarly placed persons are treated in a substantially different
way. Without such a rational justifying mechanism, unequal treatment must follow.'

[63] Arbitrariness thus offends against equality which is a founding value of
our Constitution. Equal protection under the law is central to the rule of law,
another founding value of the Constitution.48

[64] In Harksen v Lane NO & others,49 the Constitutional Court set out the
method for analysing allegations of unequal treatment in the following terms:

45 Pharmaceutical Manufacturers Association of SA & another: In Re Ex Parte President of
the Republic of South Africa & others 2000 (2) SA 674 (CC) para 85.
46 Para 33.
47 S v Makwanyane & others 1995 (3) SA 391 (CC) para 156.
48 Van der Walt v Metcash Trading Ltd 2002 (4) SA 317 (CC) para 36.

‘Where s 8 [of the interim Constitution] is invoked to attack a legislative provision or executive
conduct on the ground that it differentiates between people or categories of people in a
manner that amounts to unequal treatment or unfair discrimination, the first enquiry must be
directed to the question as to whether the impugned provision does differentiate between
people or categories of people. If it does so differentiate, then in order not to fall foul of s 8(1)
of the interim Constitution there must be a rational connection between the differentiation in
question and the legitimate governmental purpose it is designed to further or achieve. If it is
justified in that way, then it does not amount to a breach of s 8(1).’

[65] In the application of its policy the City effectively ties its own hands and
renders itself blind to the real plight and homelessness of persons who find
themselves in the circumstances of the occupiers. It precludes itself from
considering the duties placed on it by the Constitution. As stated above, by
drawing the irrational and arbitrary distinction referred to, it is effectively
putting potentially vast numbers of persons beyond State assistance in the
face of an obligation to take positive steps to assist those who, because of
their poverty and because of circumstances beyond their control, find
themselves in dire need.

[66] The differentiation between persons who have been evicted by the City
from privately-owned dangerous buildings and by private landowners bears
no rational connection to the City’s legitimate purpose of providing temporary
accommodation to those who are vulnerable and most in need. Its policy does
not factor in the degree of need of evictees in either situation because the
personal circumstances and needs of all are irrelevant: while the unsafe
condition of buildings is a sufficient basis for the City providing
accommodation, as long as that the eviction is at its instance, the same does
not apply when persons are evicted from unsafe buildings by private landlords
even though the danger in the latter instance might in some cases be greater.
The City’s policy does not take this into account. Even though the City’s
notices to Blue Moonlight, referred to in paras 13 and 14 above, were not in
terms of the National Building Regulations and Buildings Standards Act, in
substance they addressed health and safety concerns. The distinction drawn

49 Footnote 39 para 42.

by the City between the occupiers and those evicted by virtue of a notice in
terms of the Act is also irrational.

[67] Having regard to the above, a further foundational value is implicated,
namely, the right to dignity entrenched in s 10 of the Constitution. This section
provides that ‘everyone has inherent dignity and the right to have their dignity
respected and protected’. The importance of dignity ─ particularly in the light
of our history ─ was emphasised by O’Regan J in S v Makwanyane &
another50 when she stated that recognition of the right to dignity ‘is an
acknowledgment of the intrinsic worth of human beings: human beings are
entitled to be treated as worthy of respect and concern’. And in Grootboom,
within the specific context of the right of access to adequate housing, the
Constitutional Court made the point that the ‘Constitution would be worth
infinitely less than its paper if the reasonableness of State action concerned
with housing is determined without regard to the fundamental constitutional
value of human dignity’.51 The inflexible application of the City’s policy
subjects the occupiers to continued violation of their dignity because its effect
is that they are rendered homeless on eviction and vulnerable to eviction
wherever they go because they are, on the uncontested evidence, unable to
afford other accommodation. We conclude, therefore, that to the extent that
the City’s policy treats the occupiers differently to those who are evicted from
privately-owned unsafe buildings by the City, it is unconstitutional. (There is
no need to enquire whether it is nonetheless a reasonable and justifiable
infringement of the right to equality in terms of s 36(1) of the Constitution
because the City’s policy is not a ‘law of general application’.)

[68] We turn to the question of non-joinder of the provincial government.
Generally speaking, the provincial government has an important role to play in
the progressive realisation of the constitutional right of access to adequate
housing. However, in these proceedings it is not clear to us that it has any role
at all. First, it was called upon at the eleventh hour by the City to provide
funds to deal with the crisis situation in which the occupiers (and others) found

50 Footnote 46 para 328.
51 Footnote 2 para 83.

themselves, a crisis which it could not on its own have foreseen or planned
for. It refused to assist because, it said, it lacked the resources in that financial
year, and that decision is not being challenged in these proceedings. The
provincial government fell out of the picture at that point. Secondly, no relief is
sought against the provincial government by either the owner, the occupiers
or the City. Thirdly, the joinder of the provincial government was sought by the
City on the basis of its own incorrect view that it had no primary obligation
towards the occupiers to provide accommodation. Last, it appears to us that
there is no impediment to the City’s fulfilment of its own constitutional
obligation to provide temporary emergency housing, by placing the occupiers
on the lowest rung of their climb towards ultimate permanent accommodation,
which sequence it should be borne in mind the City laudably established on its
own. Joinder of the provincial government would only be necessary if it had a
direct and substantial interest in any order that might be made or if that order
could not be carried into effect without prejudicing the provincial
government.52 This case, apart from the eviction order that is sought by Blue
Moonlight, concerns the City’s obligations and the obligations of no-one else:
no relief is claimed against the provincial, it cannot be said to have a real and
substantial interest in any order that may be made and any order that is made
can be carried out without any prejudice to the provincial government.
Consequently, its joinder was not necessary.

[69] It is necessary to deal briefly with two further aspects of the order made
by the court below. We begin with the structural interdict which the occupiers
persisted in before us. Counsel for the occupiers conceded that the setting
aside of the unconstitutional aspect of the policy coupled with an order that
obliged the City to house the occupiers in temporary emergency
accommodation en route to the ultimate realisation of permanent
accommodation would mean that they had succeeded in their primary
objective. Questioned by the court about the need for the structural interdict
counsel was unable to persuade us that it was necessary. In our view, the

52 Amalgamated Engineering Union v Minister of Labour 1949 (3) SA 637 (A). See too
Occupiers of Erf 101,102, 104 and 112 Shorts Retreat, Pietermaritzburg v Daisy Dear
Investments (Pty) Ltd and others 2010 (4) BCLR 354 (SCA) paras 11-14.

structural interdict would serve no purpose and, that being so, it cannot be
said to be relief which is appropriate.

[70] The other aspect concerns the compensation order ─ the so-called
constitutional damages awarded to the owner. Allied to this was the stipend
referred to above. The compensation order, an order that is, to say the least,
far-reaching, was ostensibly modelled on the decision of this court in
Modderfontein Squatters, Greater Benoni City Council v Modderklip Boerdery
(Pty) Ltd (Agri SA and Legal Resources Centre, Amici Curiae); President of
the Republic of South Africa and others v Modderklip Boerdery (Pty) Ltd (Agri
SA and Legal Resources Centre, Amici Curiae).53 In our view, the peculiar
facts of Modderklip render it distinguishable and it certainly is not authority for
the proposition that constitutional damages is always available, or ordinarily
appropriate, as a remedy whenever a fundamental right has been breached.

[71] In Modderklip Harms JA found that compensation was the only remedy
that was appropriate in the circumstances in order to remedy the violation of
the owner’s rights by the State.54 The Constitutional Court agreed with this
finding.55 It is, in any event distinguishable. First, in Modderklip the
compensation order was made not, as in this case, as an ancillary to an
eviction order but after an eviction order had been granted and ignored by the
40 000 unlawful occupiers of Modderklip Boerdery’s land. Secondly,
compensation was ordered because the State had violated the fundamental
rights of Modderklip Boedery by failing to assist it to execute the eviction order
which, in view of the large number of occupiers who had invaded the land,
Modderklip Boerdery was unable to do on its own. There is no question that,
in this case, Blue Moonlight will be able to execute an eviction order if it has
to. Thirdly, because of the large number of persons on the land, their eviction

53 Modderfontein Squatters, Greater Benoni City Council v Modderklip Boerdery (Pty) Ltd (Agri
SA and Legal Resources Centre, Amici Curiae); President of the Republic of South Africa and
others v Modderklip Boerdery (Pty) Ltd (Agri SA and Legal Resources Centre, Amici Curiae)
2004 (6) SA 40 (SCA).
54 Para 43.
55 President of the Republic of South Africa & another v Modderklip Boerdery (Pty) Ltd (Agri
SA & others, Amici Curiae) 2005 (5) SA 3 (CC) para 66. Note that Langa ACJ categorised the
relief ordered by this court as being ‘the most appropriate in the circumstances’. The only
other remedy suggested as being appropriate was a declarator.

was, for all practical purposes, impossible to achieve and that left Modderklip
Boerdery without the use and enjoyment of its land and, as stated above, with
compensation as the only viable and hence appropriate remedy. Once again,
the facts of this case are very different and there is no suggestion that Blue
Moonlight cannot evict the occupiers if it has to. Finally, Modderklip Boerdery
was the innocent victim of a land invasion and it took all reasonable steps –
and did so expeditiously – to safeguard its interests. In this case, Blue
Moonlight bought the property in the full knowledge that it was occupied by a
number of persons. For these reasons we consider that Modderklip is no
authority for the granting of the compensation order in the circumstances of
this case and that compensation cannot be said to be appropriate relief.
Wisely, Blue Moonlight eschewed any reliance on the compensation granted
to them.

[72] The granting of the stipend to the occupiers, albeit in the alternative, is
in itself extraordinary. It has no basis in law that we can discern and, if
allowed to stand, would have had the potential to serve as a precedent for
abuse by unscrupulous landlords who might see the State as a default source
of rental income. It, like the compensation order, is relief which is not
appropriate.

[73] In arriving at our conclusions we have been mindful of the doctrine of
the separation of powers and the limits of judicial intrusion into the domains of
other branches of government. We are, however, compelled to give effect to
the rights being asserted before us and to the extent that this may take us into
the City’s administrative system, we are of the view that it is an intrusion that
is mandated by the Constitution. In Minister of Health & others v Treatment
Action Campaign & others (No 2)56 the Constitutional Court held:
‘The primary duty of Courts is to the Constitution and the law, “which they must apply
impartially and without fear, favour or prejudice”. The Constitution requires the State to
“respect, protect, promote, and fulfil the rights in the Bill of Rights”. Where State policy is
challenged as inconsistent with the Constitution, Courts have to consider whether in
formulating and implementing such policy the State has given effect to its constitutional

56 Minister of Health & others v Treatment Action Campaign & others (No 2) 2002 (5) SA 721
(CC) para 99.

obligations. If it should hold in any given case that the State has failed to do so, it is obliged
by the Constitution to say so. Insofar as that constitutes an intrusion into the domain of the
Executive, that is an intrusion mandated by the Constitution itself.’

[74] It is not in dispute that Blue Moonlight has complied with the
requirements of PIE and that it is entitled to an eviction order. All that remains
is for us to determine the timing of the eviction. This is necessary in order to
allow the City to make the necessary arrangements for the temporary
accommodation of the occupiers and for the occupiers to make their
preparations for moving from a building that has, for many of them, been
home for many years. Taking all of the circumstances into account and the
suggestions of the parties, we consider a period of two months from the date
of this judgment to be just and equitable.

[75] For the reasons set out above, a number of orders issued by the court
below fall to be set aside. The eviction order has to be amended in
accordance with what is set out in the preceding paragraph. The declaration
of invalidity has to be in line with our reasoning. Even though the order of the
court below is being changed to a significant degree, the City has
nevertheless failed in its resistance to the order imposing an obligation on it to
accommodate the occupiers. Consequently, the appeal must fail in respect of
their primary point. The cross-appeal by the occupiers on the basis that the
court below ought to have made the eviction order conditional upon the
provision of suitable alternative accommodation to them became academic for
the reason set out in para 69 above and there is no need to make any order in
relation thereto. Blue Moonlight’s cross-appeal for the compensation order to
be varied was abandoned during the hearing. That cross-appeal therefore
should also fail.

[76] The City applied to have new evidence admitted on appeal, namely, an
updated housing report dated 21 December 2010. The application was
opposed by the occupiers. We inclined to admit the report and considered it in
arriving at our conclusions.

[77] The following order is made:
1.
The application by the appellant to have new evidence admitted on
appeal succeeds and the appellant is to pay the costs of the application on
the unopposed scale.
2.
Save as is reflected in the substituted order set out hereunder the
appeal is dismissed and the appellant is ordered to pay the second
respondents’ costs, including the costs of two counsel.
3.
No order is made in respect of the cross-appeal by the second
respondent.
4.
In respect of the abandoned cross-appeal by the first respondent, no
costs order is made in relation thereto.
5.
The order of the court below is set aside and substituted as follows:
‘1.
The first respondent and all persons occupying through them
(collectively “the occupiers”) are evicted from the immovable property situate
at Saratoga Avenue, Johannesburg and described as Portion 1 of Erf 1308
Berea Township, Registration Division IR, Gauteng (“the property”);
2.
The first respondent and all persons occupying through them are
ordered to vacate by no later than 1 June 2011, failing which the Sheriff of the
Court is authorised to carry out the eviction order;
3.
The second respondent’s housing policy to the effect that it only
provides temporary emergency accommodation to those evicted from unsafe
buildings by the City itself or at its instance, in terms of the National Building
Regulations and Building Standards Act 103 of 1977 is declared
unconstitutional to the extent that it excludes the occupiers from consideration
for such accommodation;
4.
The second respondent shall provide those occupiers whose names
appear in the document entitled “Survey of Occupiers of 7 Saratoga Avenue,
Johannesburg” filed on 30 April 2008, and those occupying through them, with
temporary emergency accommodation as decant in a location as near as
feasibly possible to the area where the property is situated, provided that they
are still resident at the property and have not voluntarily vacated it;

5.
The second respondent is ordered to pay the applicant’s costs and the
costs of the first respondent, including the costs of two counsel.’

_________________
M S NAVSA
JUDGE OF APPEAL

________________________
C PLASKET
ACTING JUDGE OF APPEAL

APPEARANCES:

For Appellant:

J J Gauntlett SC

J Both SC

A W Pullinger

Instructed by

Moodie & Robertson Johannesburg

Claude Reid Bloemfontein

For 1st Respondent:
M S M Brassey SC

G A Fourie

Instructed by

Schindlers Attorneys

Webbers Bloemfontein

For 2nd Respondent:
P Kennedy SC

H Barnes

S Wilson

Instructed by

The Wits Law Clinic Braamfontein

McIntyre & Van Der Post 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

30 March 2011

STATUS

Immediate

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

City of Johannesburg Metropolitan Municipality v Blue Moonlight
(338/10) [2011] ZASCA 47 (30 March 2011)

Media Statement

Today the Supreme Court of Appeal (SCA) found that the housing policy of the City of
Johannesburg was unconstitutional to the extent that it excluded the respondent occupiers
from consideration for temporary emergency accommodation. The SCA confirmed an order in
terms of which the City was obliged to provide those occupiers whose names appeared on a
list and those occupying through them with temporary emergency accommodation in a
location as near as feasibly possible to the area where the property is situated provided that
they are still resident at the property and have not voluntarily vacated it.

The South Gauteng High Court (Spilg J) at the instance of the owners of a building in Berea
had ordered the eviction of the occupiers and had ordered the City of Johannesburg to
provide temporary accommodation to the occupiers. It also made several allied orders
including a compensation order in favour of the owners and provided for a stipend of sorts
towards accommodation costs. The City’s housing policy in terms of which it had excluded
persons from being provided with temporary emergency accommodation who had not been
evicted by it on the basis of unsafe conditions in terms of the National Building Regulations
and Building Standards Act 103 of 1977. The occupiers had been evicted on the basis of
health and safety concerns expressed by the counsel through two of its departments. The
provisions of the aforesaid legislation were not relied upon.

The City was joined as a party to the proceedings in the court below after the owners had
served its application for conviction on the occupiers. Before the SCA the City disavowed any
obligation to house persons who fell into the category of the occupiers and who had been
evicted at the instance of a private landlord. Before the SCA the City for the first time raised
the defence that it had no original power to accommodate homeless persons and that it could
only act in conjunction with national and provincial government. It submitted that it was unable
to use its own funds, including ratepayer contributions to fund accommodation for desperately
poor and homeless persons who fell into the category of the occupiers.

The SCA held that municipalities had a significant role to play in the progressive realisation of
the right to adequate housing to poor persons such as the occupiers who were asserting their
rights in terms of s 26 of the Constitution.

The SCA, whilst recognising the doctrine of the separation of powers and the limits of judicial
intrusion and considering the facts of the case, held that the Municipality was obliged to
provide temporary emergency housing to the occupiers as decant. It arrived at this conclusion
after considering s 26 of the Constitution and a whole network of related legislation. The
provision of temporary emergency accommodation to the occupiers, who were long-standing
residents of Johannesburg and who were desperately poor, would put them in line in the right
sequence towards the ultimate realisation of permanent accommodation. The SCA held that
the City was not precluded from using its own funds to provide temporary emergency
accommodation. Indeed, it had on its own version of events expended tens of millions of its
own funds in the past towards providing housing to the indigent.

The SCA found that the City’s housing policy in terms of which it excluded from consideration
for temporary emergency housing persons such as the occupiers was unconstitutional. It held
the policy to be inflexible and irrational. It effectively precluded the City from a proper
consideration of the merits of the situation of desperately poor evictees. Furthermore, the
SCA found the policy to be arbitrary and unequal in effect. The SCA said the following:
‘In the application of its policy the City effectively ties its own hands and renders itself blind to
the real plight and homelessness of persons who find themselves in the circumstances of the
occupiers. It precludes itself from considering the duties placed on it by the Constitution. As
stated above, by drawing the irrational and arbitrary distinction referred to, it is effectively
putting potentially vast numbers of persons beyond State assistance in the face of an
obligation to take positive steps to assist those who, because of their poverty and because of
circumstances beyond their control, find themselves in dire need.’

The court went on to say the following:
‘The differentiation between persons who have been evicted by the City from privately-owned
dangerous buildings and by private landowners bears no rational connection to the City’s

legitimate purpose of providing temporary accommodation to those who are vulnerable and
most in need. Its policy does not factor in the degree of need of evictees in either situation
because the personal circumstances and needs of all are irrelevant: while the unsafe
condition of buildings is a sufficient basis for the City providing accommodation, as long as
that the eviction is at its instance, the same does not apply when persons are evicted from
unsafe buildings by private landlords even though the danger in the latter instance might in
some cases be greater. The City’s policy does not take this into account. Even though the
City’s notices to Blue Moonlight, referred to in paras 13 and 14 above, were not in terms of
the National Building Regulations and Buildings Standards Act, in substance they addressed
health and safety concerns. The distinction drawn by the City between the occupiers and
those evicted by virtue of a notice in terms of the Act is also irrational.’

Before the SCA, the owners disavowed reliance on the monetary orders made by the court
below in its favour. The SCA held that they were in any event not entitled to those orders. In
respect of the stipend, the SCA could find no basis for the order and held that it was
extraordinary to say the least. The appeal by the City against the order obliging it to house the
occupiers and against the declaration of constitutional invalidity failed. It was held by the SCA
that there was no need for the structural interdict crafted by the court below and that order
was accordingly not upheld. The City was ordered to pay the occupiers’ costs, including the
costs of two counsel.

--- ends ---