High Court. Picture: GALLO IMAGES/VATHISWA RUSELO
High Court. Picture: GALLO IMAGES/VATHISWA RUSELO

On Friday, the Constitutional Court held that the rules of a temporary shelter provided by the City of Johannesburg infringed on residents’ rights to dignity‚ freedom and security of the person and privacy.

The shelter’s residents had been evicted from a dilapidated private building.

Not only did the shelter not allow spouses to sleep together, but residents also had to leave in the morning and return before lockdown every night.

According to the Court, the rules did not pass constitutional muster and needed to be struck down.

The case had its beginning in 2007‚ when the owners of a building in Saratoga Avenue‚ near Doornfontein, Johannesburg applied for the eviction of 86 people.

In 2012, the Constitutional Court ordered the eviction of the remaining 33 residents‚ and that the residents be provided with temporary accommodation as near as possible to where they had been evicted.

The city provided the residents with accommodation at the shelter. But the residents complained about the constitutionality of the rules of the shelter.

While the High Court in Johannesburg agreed that the rules were unconstitutional in 2015‚ the Supreme Court of Appeal (SCA) disagreed with the decision in May 2016. In that judgment‚ the SCA said there had been only one married couple among the remaining 11 occupiers.

They were married in terms of customary law, and were allocated a room designed for occupation by four people.

The SCA also found that the rules imposed by the shelter were not unreasonable. It said the limitation on husbands and wives and permanent life partners sleeping together in the strictly temporary emergency accommodation provided was‚ in the single relevant instance‚ relaxed.

"In any event‚ husbands and wives and permanent life partners do not have the right‚ always and everywhere‚ to sleep together‚" Judge Nigel Willis said in 2016.

However‚ the Constitutional Court set aside the SCA judgment.

In a majority judgment‚ Justice Nonkosi Mhlantla said she was not persuaded by the city’s argument that because the accommodation was temporary the evictees were not entitled to the full protection of the other fundamental rights in the Constitution.

"The argument‚ reiterated several times by the city‚ that the shelter does not constitute a ‘home’‚ and therefore the applicants had diminished expectations with respect to dignity‚ freedom and security of the person‚ and privacy, is without merit‚" Mhlantla said.

She said the Constitution conferred the rights to human dignity‚ freedom and security of the person and privacy on everyone‚ regardless of where they were at any given time.

"The lockout rule limits the right to dignity because it is cruel‚ condescending and degrading. It forces the applicants out onto the streets during the day with no place whatsoever to call their own and to rest. As a result‚ people seek refuge on the street while they wait for the shelter to re-open‚" Mhlantla said.

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