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:

• declare that the respondents' refusal to permit the residents to reside in communal rooms with their spouses or permanent life partners is an unjustifiable infringement of the residents' constitutional rights to dignity, privacy and access to adequate housing as enshrined in sections 10, 14 and 26 of the Constitution;
• direct the respondents to permit those of the residents who wish to do so, to reside together with their spouses/life partners in communal rooms at the shelter, for the duration of their stay;
• in the alternative to the above requests, to review and set aside the decision by the City or MES to apply rules 3 of 4 of the Decant Shelter House Rules to the residents, and allow them to reside in rooms together with their spouses/life partners (Rule 3 states that the shelter opens at 17:30 and closes at 20:00, while Rule 4 states that all residents are required to vacate the shelter by 08:00 in the morning from Monday to Friday, and by 09:00 on Saturday and Sunday);
• declare that accommodation at the shelter does not constitute "Housing Assistance in Emergency Circumstances" within the meaning of the Emergency Housing Programme, contained in Part 3 of the 2009 National Housing Code;
• declare that the City's failure to provide housing assistance in emergency circumstances to people who, such as the residents, are unable to pay R600 or more per month in rent is in conflict with sections 9 and 26(2) of the Constitution, and the Emergency Housing Programme;
• direct the City to devise and implement, within its available resources, a programme to provide housing assistance in emergency circumstances to people who cannot afford to pay R600 or more per month in rent.

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.

• Constitutional Court judgment (1 December 2017) here.
• SERI press statement (1 December 2017) here.
• The City of Johannesburg's heads of argument in response to Centre for Child's heads of argument (30 January 2017) here.
• The City of Johannesburg's heads of argument in response to CALS's heads of argument (20 January 2017) here.
• Shelter residents fight City of Johannesburg over “lock-out” rules, Safura Abdool Karim, GroundUp (16 January 2017).
• Centre for Child Law's heads of argument (13 January 2017) here.
• CALS's heads of argument (13 January 2017) here.
• City of Johannesburg heads of argument (14 November 2016) here.
• Residents' practice note in the Constitutional Court (28 October 2016) here, and heads of argument here.
• Constitutional Court's directions granting leave to appeal (17 August 2016) here.
• City's replying affidavit (29 June 2016) here and annexures here.
• Residents' founding affidavit (8 June 2016) here.
• Residents' notice of appeal to the Constitutional Court (8 June 2016) here.
• SCA judgment (18 May 2016) here.
• SCA media summary (18 May 2016) here.
• Residents' heads of argument in the SCA (9 December 2015) here.
• Residents' answering affidavit (20 January 2015) here.
• City of Johannesburg application for leave to appeal to the SCA (27 November 2014) here.
• City of Johannesburg application for leave to appeal (12 September 2014) here.
• SERI press statement (22 August 2014) here.
• High Court judgment (22 August 2014) here.
• SERI media alert (11 August 2014) here and (21 August 2014) here.
• City of Johannesburg heads of argument (23 June 2014) here.
• MES heads of argument (13 June 2014) here.
• Residents' heads of arguments (5 May 2014) here.
• Occupiers' supplementary replying affidavit (5 February 2014) here.
• City of Johannesburg's further affidavit (3 December 2013) here.
• Occupiers' replying affidavit (30 August 2013) here. Royston supporting affidavit here. Stevens supporting affidavit here.
• Letter from the City of Johannesburg re: case management in respect of certain matters (7 August 2013) here.
• MES answering affidavit (24 June 2013) here and here.
• City of Johannesburg answering affidavit (26 June 2013) here and here.
• Interim order (10 April 2013) here.
• Concise heads of argument (8 April 2013) here and practice note (8 April 2013) here.
• Ekuthuleni: 'Place of peace' by name but a shelter it is not, op-ed by Jackie Dugard and Kathleen Hardy in the Daily Maverick (11 January 2013).
• Notice of motion and founding affidavit (18 October 2012) here (part 1) and here (part 2).