Shelter Residents Successfully Challenge Rules on Family Separation and Lockout

Dladla v City of Johannesburg, (2017) ZACC 42

This case grew out of the 2011 judgment in Blue Moonlight, where the Constitutional Court of South Africa held that municipalities have a constitutional obligation to provide temporary emergency accommodation to all evictees who would be rendered homeless. The Court ordered the city of Johannesburg to provide temporary accommodation to those facing eviction from their residence in a commercial building on Saratoga Avenue. The city contracted with Metropolitan Evangelical Services (MES) to provide the temporary accommodation at the Ekuthuleni Overnight/ Decant Shelter. The applicants in this case, 11 evictees who were moved into the shelter, challenged two of the shelter rules. The first, the lockout rule, forbade residents from accessing the shelter during the day and from leaving after 20h00. The second, the family separation rule, mandated separate dormitories for males and females, thereby separating heterosexual couples, and children over 16 from caregivers of the opposite sex.

The applicants argued that the city did not comply with the order in Blue Moonlight because the measures adopted were inconsistent with the right of access to adequate housing in section 26 of the South African Constitution. They also argued that the shelter rules infringed on their rights to dignity, freedom and security of the person, and privacy, enshrined respectively in sections 10, 12 and 14 of the Constitution.

The applicants won in the High Court, but the Supreme Court of Appeal reversed the decision. While the appeal Court acknowledged that the rules infringed on constitutional rights, they held that the infringement was reasonable.

The Constitutional Court granted leave to appeal because of the constitutional matters the case raised as well as its wider public importance. The Court held that by providing temporary accommodation, the city had complied with the constitutional right to adequate housing, and thus focused its deliberations on the constitutional rights of dignity, privacy and freedom and security of the person alleged to have been infringed by the shelter rules.   

The Court held that both the lockout and separation rules impaired the applicants’ constitutional rights. By forcing them out onto the street during the day, the lockout rule was “cruel, condescending and degrading,” a clear violation of dignity, privacy and freedom of the person. The rule also impaired the applicants’ right to security of the person. This was demonstrated by the fact that several applicants were assaulted on the street while locked out of the shelter. Moreover, the Court noted that dignity necessarily entails the right to family life, which the family separation rule impinged. 

On 1 December 2017, the Constitutional Court thus set aside the Supreme Court of Appeal order and replaced it with a ruling stating that the shelter rules infringed the applicants’ constitutional rights to dignity, freedom and security of the person, and privacy. 

A recognition of the interdependence and indivisibility of all rights, the Court’s judgment sets housing-related standards with respect to approximately 60,000 people living in Johannesburg’s inner city who need better and safer accommodation. The outcome is likely to have a positive impact on women, children and families living in shelters facing threats to their housing-related rights to privacy, dignity, family life, freedom and security. Commenting on the case, Nomzamo Zondo, the residents’ attorney and director of litigation at the Socio-Economic Rights Institute of South Africa (SERI) said, “The city has throughout treated our clients as less than human. …We hope that today’s judgment will result in a change in attitude towards poor and vulnerable people in Johannesburg’s inner city, and that the city …will begin to treat them with the care, respect and concern they deserve.”

For their contributions, special thanks to ESCR-Net members: Socio-Economic Rights Institute of South Africa (SERI) and the Global Economy (PHRGE) at Northeastern University.
 

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