2018 SCMR 453 CONSTITUTIONAL-COURT-OF-SOUTH-AFRICA

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NOMSA ELLEN DLADLA VS CITY OF JOHANNESBURG Right to human dignity---Right to have access to adequate housing---Freedom and security of the person---Right to privacy---Scope---Temporary shelter accommodation provided by the City Government---Condition that residents leave during the day for certain hours and prohibition on opposite gender partners living together---Whether such shelter conditions unlawfully infringed the resident's Fundamental Rights to dignity, freedom and security of the person, privacy and access to adequate housing---Residents (applicants) had been evicted from a building in which they resided pursuant to an order of the court ("the court order")---eviction was subject to the condition that the City Government would provide the residents with temporary alternative accommodation in a location as near as feasibly possible to the building in which they had lived---City Government provided temporary accommodation to the residents at a shelter, which was run by a service provider, with whom the City Government had concluded a contract to provide the temporary accommodation---Upon arrival at the shelter, the residents were told that, in exchange for living there, they had to comply with certain rules---First rule required residents to live in separate dormitories based on gender ("the family separation rule"); this prevented couples from staying together and separated children over the age of 16 from their caregivers of the opposite gender---Second rule prohibited residents from being inside the shelter from 8 a.m. to 5:30 p.m. every day and required the gates of the shelter to be locked again at 8 p.m. ("the lockout rule")---Any occupant who had not returned by 8 p.m. was locked out and had to find accommodation elsewhere for the rest of the night---[Per Mhlantla. J (Majority view): Argument reiterated several times by the City Government that the shelter did not constitute a "home", therefore the residents had diminished expectations with respect to dignity, freedom and security of the person, and privacy was without merit---Just because the shelter did not constitute a home in the everyday, colloquial sense of the term did not mean that the residents were not entitled to the protection of their Fundamental Constitutional Rights to dignity, freedom and security of the person, and privacy---Constitution (of South Africa) conferred said Rights on everyone, regardless of where they were at a given time---'Family separation' and lockout rules constituted an infringement of the rights to dignity, freedom and security of the person, and privacy---Lockout rule limited the right to dignity because it was condescending and degrading; it forced the residents out onto the streets during the day with no place whatsoever to call their own and to rest---Resultantly people sought refuge on the street while they waited for the shelter to re-open---Lockout rule also disproportionately affected people who worked the night shift and slept during the day---Lockout rule also undercut the ability of the residents to make plans and to make use of their time as they saw fit---Clearly, the implication was that the residents could not manage their own affairs and had to be shepherded to and fro---Family separation rule created a vast chasm between parents and children, between partners and between siblings; it eroded the basic associative privileges that inhered in and form the basis of the family---Lockout and family separation rules also impaired the right to privacy---Fact that the residents were forced out onto the street during the day meant ipso facto they did not have privacy for the duration thereof---Right to privacy could only be given effect if the residents had a place they could call their own to which they could retreat at any time---Lockout rule impinged their ability to avail themselves of such solitude---Finally, the lockout and family separation rules limited the right to freedom and security of the person as they restricted their movements in critical respects---Residents could not go about their business because the lockout rule prevented them from accessing the shelter during the day and barred them from entry after 8 p.m.---Since parents could not visit their children and partners of different gender could not stay with each other, the family separation rule materially affected the movements of the residents---Lockout rule exposed the residents to the vagaries of street life both during the day and at night---Section 36 of the Constitution of South Africa permitted the limitation of Fundamental Rights only to the extent that such limitation was imposed by law of general application and was reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom---In the present case, the 'family separation rule' and 'lockout rule' were not "law of general application" because they were agreed by the City Government and a service provider in a private contract that only bound them---'Family separation' and 'lockout' rules infringed the Fundamental Rights of residents provided under Ss. 10, 12 & 14 of the Constitution of South Africa and such infringement could not be justified---Constitutional Court of South Africa interdicted and restricted the City Government from enforcing the 'lockout rule' and 'family separation rule' as against the residents of the shelter]---[Per Cameron J; (agreeing with his own reasons): Rules that the shelter had imposed on the residents in providing them with temporary accommodation were measures under S. 26(2) of the Constitution of South Africa, which provided that the State must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of the 'right to have access to adequate housing'---Provision of temporary accommodation under the 'court order' and the rules imposed by the shelter in fulfilling that order could not be separated---Since the rules were sourced in the 'court order', the temporary housing at issue, even though afforded in response to a court order, remained a S. 26 measure to achieve the progressive realisation of the right of access to adequate housing, which meant that standard of reasonableness provided under S. 26(2) of the Constitution of South Africa applied in adjudging the Constitutional acceptability of the rules---In addition, the absence of a "law of general application" did not preclude determining whether the rules were reasonable---Moreover, the 'court order' was a "law of general application"---Reasonableness criteria in S. 36(1) & S. 26(2) of the Constitution of South Africa entailed the same interpretive process---Consequently, in addition to unreasonably limiting the residents' rights to dignity, freedom and security of the person, and privacy under Ss. 10, 12 & 14 of the Constitution of South Africa, the shelter's rules also unreasonably limited the residents' right of access to adequate housing under S. 26 of the Constitution]---[Per Jafta, J; (agreeing with his own reasons): Application of the impugned rules on the residents constituted an unjustifiable violation of their rights guaranteed by Ss. 10, 12 & 14 of the Constitution of South Africa