rights to dignity, privacy and adequate housing - shelter accommodation - inner city Johannesburg
SERI represents 33 former residents of Saratoga Avenue, who were moved to the Ekuthuleni shelter in May 2012 by the City of Johannesburg (the City) as part of the Blue Moonlight Constitutional Court judgment, in a two-part application before the South Gauteng High Court. The Ekuthuleni Shelter is run by Metro Evangelical Services (MES), an NGO operating in inner city Johannesburg.
In Part A of the application the 33 residents request that, pending the outcome of Part B of their application, the High Court interdict and restrain the City and MES from evicting them from the shelter without an order of court; suspend the application of certain shelter rules; and direct the City and MES to permit the residents to reside in rooms with their spouses/life partners.
Part B deals with these three issues as well as requests the High Court to do the following:
This application raises fundamental issues concerning the connection between socio-economic rights and the rights to dignity, privacy and freedom and security of the person.
The case was heard on 10 April 2013. Judge Satchwell granted an interim order that states that, pending the finalisation of Part B of the application, the Ekuthuleni house rules should be relaxed to the extent that the occupiers are permitted to remain in the shelter during the day; the cut-off time for entering the shelter at night is 22:00 (subject to MES’s discretion to permit people to enter at a later time by prior arrangement); and two of the occupiers are permitted to occupy a separate room at the shelter.
In June 2013, the City and MES filed their answering affidavits. On 7 August 2013, the City's lawyers sent a letter to the Judge President stating that there are approximately 350 eviction applications and notices in terms of the PIE Act served on the City each week and that approximately 20-25 of these seek relief from the City, usually in the form of temporary accommodation. The letter states that the City intends to apply for a stay of the current eviction applications, pending the final determination of the Dladla matter.
On 30 August 2013, the residents of Ekuthuleni filed their replying affidavits. This main affidavit by Paul Maobelo refers to two supporting affidavits which interrogate some of the key aspects of the City and MES' opposition to the application. The first affidavit - by Garth Stevens, a clinical psychologist and associate professor at the University of the Witwatersrand - deals with the three aspects of the regime enforced at Ekuthuleni and their appropriateness as part of an intervention intended to assist recently evicted and relocated people. The second affidavit - by Lauren Royston, a development planner and informal housing specialist - investigates the availability of low-cost rental housing in Johannesburg for people in the financial position of the residents.
On 5 May 2014, the residents of Ekuthuleni filed their heads of argument. These papers argue that the shelter constitutes a home for the purposes of the right of access to adequate housing enshrined in section 26 of the Constitution. Consequently, the residents argue that, contrary to the City's assertion that it can evict the residents at will, it is required to obtain a court order before evicting them from the shelter. This is in line with section 26(3) of the Constitution which protects occupiers against evictions without a court order. The residents further argue that the day-time lockout rule and the gender segregation rule (which separates families) infringe a number of constitutional rights, including the right to dignity, privacy, freedom and security of the person, and access to adequate housing.
The case was heard in the South Gauteng High Court on 12 August 2014, with the residents represented by advocates Anna Marie De Vos SC, Stuart Wilson and Mkhululi Stubbs. On 22 August 2014 judgment was handed down. The court found that the City and MES' day-time lockout rule is an unjustifiable infringement of the residents' constitutional rights to dignity, freedom and security of person, and privacy. The court also found that the City and MES' refusal to permit the residents to reside in communal rooms together with their spouses or permanent life partners is an infringement of their constitutional rights to dignity and privacy.
On 12 September 2014 the City filed an application in the South Gauteng High Court for leave to appeal to the SCA the whole judgment handed down by Judge Wepener. On 29 October the application for leave to appeal was dismissed with costs. In November the City petitioned the SCA for leave to appeal, which was granted in May. The appeal was heard in the SCA on 3 May 2016, and on 18 May 2016 reversed the High Court’s decision. The SCA agreed that the daily lockout rule, and the rule separating spouses in temporary accommodation provided by the City, do in fact violate the residents’ rights to dignity and privacy. But the court held that it is reasonable to limit those rights in circumstances where the state provide temporary shelter to evictees.
The residents were granted leave to appeal the SCA decision in the Constitutional Court, and the matter was heard on 16 February 2017. The Centre for Applied Legal Studies (CALS) and the Centre for Child Law were also admitted as amici in the Constitutional Court, and filed their heads of argument on 13 January 2017. On 1 December 2017, the Constitutional Court handed down a judgement which set aside the SCA and further found that the shelter’s rules violated residents’ rights to dignity, freedom and security of the person, and privacy.