Constitutional Court says emergency shelter rules are unconstitutional

On December 1, the Constitutional Court handed down a judgment in the Dladla v City of Johannesburg case. It said the city had breached the rights of 11 people to whom it had provided temporary accommodation.

The city provided former residents of Saratoga Avenue accommodation at the Ekuthuleni Shelter in Johannesburg’s inner city in 2012. When they got to the shelter, residents were subjected to the its rules, locking them out during the day and separating men and women into different dormitories. This meant heterosexual couples were separated and parents with children of the opposite sex were separated.

Residents approached the Socio-Economic Rights Institute of SA (Seri), which took up their case and asked the Court to declare the shelter rules invalid because the rules negatively affect the dignity of residents.

In the judgment, the Court found that the rules separating the residents’ families and locking them out during the day were in breach of the Constitution.

The Dladla judgment was a great victory for all residents, and especially for mothers living in the shelter. A study on women in Johannesburg’s inner city found that one in three households there are headed by women earning less than R1,600 a month.

Women living in the Ekuthuleni Shelter generally secure their livelihoods through recycling waste materials, informal trade, or part-time work. Despite their low incomes, they remain the primary caregivers of their families.

Lindiwe (not her real name), for example, is a 33-year-old woman living in the Ekuthuleni Shelter with her two-year-old daughter. She says it is difficult raising a child while abiding by the shelter’s rules. Daytime lock-outs denied her the flexibility of structuring a daily routine around the feeding, bathing and sleeping needs of her child. The separation of male and female dormitories made it impossible to raise her child with the help of a male partner at night.

Beyond the individual consequences, enforced segregation of men and women had a negative impact on residents’ social interactions and collective mobilisation strategies. It created communal division, and limited the ability of residents to organise and identify as a collective to challenge unfair inner-city housing practices.

As a result, men and women have tended to mobilise separately. This inhibited information sharing and collective action.

In a social context, where men are generally regarded as decision-makers, segregated living spaces run the risk of limiting female access to information and decision-making processes. Information sharing that remains between men disadvantages women from making an equal contribution to planning and implementing mobilisation strategies around pro-poor, inner-city accommodation policies.

As the need for housing for the poor escalates, SA’s courts are inundated with cases about unlawful evictions in terms of the Prevention of Illegal Eviction from and Unlawful Occupation of Land (PIE) Act.

The PIE Act requires the position of women-headed households to be considered by courts before an eviction is granted. Resistance against evictions in Johannesburg’s inner city has contributed to the development of robust and progressive housing jurisprudence, building on the groundbreaking Constitutional Court case in 2000, that involved Mrs Grootboom.

There is a need for progressive housing policy that aligns with the advancements made in the courts and seeks to alleviate the injustices that women face.

The Dladla case was born out of the Blue Moonlight judgment handed down in 2011. In Blue Moonlight, the court decided that municipalities have a constitutional obligation to provide temporary emergency accommodation to all evictees who would be rendered homeless by an eviction.

In meeting its constitutional obligation to the residents, the City of Johannesburg offered them alternative accommodation in two buildings, one of them being the Ekuthuleni Shelter. The first building offered as alternative accommodation was reserved for residents who could afford rentals between R600 and R1,000. Ekuthuleni Shelter, managed by the Metropolitan Evangelical Services, was offered for the poorest residents.

It is this group, comprising the poorest residents, that was relocated from Saratoga Avenue, which challenged the constitutionality of the conditions of Ekuthuleni Shelter because the highly prohibitive rules placed an additional burden on women, who PIE seeks to protect.

The Centre for Applied Legal Studies joined the Dladla case as a friend of the court. It argued that a gendered perspective on the specific needs of women in relation to shelter is echoed in the provision of other basic services.

Not unlike housing, a lack of access to water and sanitation affects women disproportionately, and the process of assessing the specific implications for women in the design and delivery of basic services is essential to ensure women and men benefit equally, and that inequality is not perpetuated.

Given that structural inequalities have women as primary caretakers, and often primary breadwinners, the systematic assessment of the specific needs of women in decisions such as the design, location and construction of sanitation and water facilities, for example, is as important as it is for shelter conditions.

The Dladla judgment confirmed that the shelter’s rules are unconstitutional on the basis that they are an infringement of one’s right to dignity, privacy and freedom and security. The daytime lock-out rules and the separation of families according to the sex of a person perpetuated gender stereotypes and strained familial relationships.

Boys and girls under the age of 16 were forced to live with their mothers or a female caregiver. Boys older than 16 were forced to live in the male dormitory, presumably with a male caregiver, if present.

Residents contended that the shelter rules — which were presented as a safety mechanism to ensure a stable living environment — had an adverse effect on them. A heterosexual married couple said the enforced separation "felt like a divorce", and at night, women would bear the brunt of taking care of the children.

Although the court did not reference the gendered dimensions of housing or, indeed, the resident’s housing rights, there is a possibility that the outcome will have a positive impact on women, children and families living in shelters against future violations of their housing related rights to privacy, dignity, family life, and freedom and security.

• Ebrahim is a researcher at Seri; Sujee is an attorney with the Centre for Applied Legal Studies; and Molopi is a research and advocacy officer at Seri.