City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd

Blue Moonlight Properties owned commercial buildings at Saratoga Avenue, Berea, Johannesburg, which had been occupied by desperately poor persons, many since the 1970s when they worked for Kernel Carpets which previously operated from the property. After Kernel Carpets ceased trading in 1999, conditions deteriorated. Blue Moonlight purchased the property in 2004 and sought to evict 62 adults and 9 children who were unlawfully occupying the buildings. The occupiers were all desperately poor with an average household income of R790 per month, most with no formal employment and some with no income at all. The majority had lived there for more than two years. Blue Moonlight served eviction notices in 2005 and 2006 and brought eviction proceedings under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE). The occupiers accepted they were unlawful occupiers but argued that if evicted they would be rendered homeless with no alternative accommodation they could afford. They sought an order that the City of Johannesburg had a constitutional obligation to provide them with temporary emergency shelter. The City's housing policy only provided temporary accommodation to persons evicted by the City itself from unsafe buildings under the National Building Regulations and Building Standards Act 103 of 1977, not to persons evicted by private landowners.

• Whether the City of Johannesburg had a constitutional obligation to provide temporary emergency accommodation to desperately poor persons evicted from privately-owned buildings by private landowners
• Whether the City's housing policy, which only provided temporary accommodation to those evicted by the City itself from unsafe buildings and not to those evicted by private landlords, was unconstitutional
• Whether the City had the power and resources to provide temporary emergency accommodation from its own funds without national or provincial government funding
• Whether the provincial government was a necessary party to the proceedings
• Whether compensation (constitutional damages) should be awarded to the property owner against the City
• The appropriate relief in eviction proceedings involving desperately poor occupiers and the progressive realisation of the right to adequate housing

The appeal was largely dismissed. The order of the court below was set aside and substituted with an order that: (1) The occupiers are evicted from the property by no later than 1 June 2011; (2) The City's housing policy is declared unconstitutional to the extent that it excludes the occupiers from consideration for temporary emergency accommodation; (3) The City must provide those occupiers listed in the survey filed on 30 April 2008, and those occupying through them, with temporary emergency accommodation as decant in a location as near as feasibly possible to the property, provided they are still resident and have not voluntarily vacated; (4) The City is ordered to pay the costs of Blue Moonlight and the occupiers, including costs of two counsel. The cross-appeal by the occupiers was dismissed as academic. Blue Moonlight's cross-appeal was abandoned.

The ratio decidendi is that: (1) Municipalities have a direct constitutional obligation under s 26 of the Constitution, the Housing Act 107 of 1997, and the Local Government: Municipal Systems Act 32 of 2000 to contribute to the progressive realisation of the right of access to adequate housing within their area of jurisdiction; (2) Municipalities have the power and are obliged to use their own resources, if necessary, to provide temporary emergency accommodation to desperately poor persons who would otherwise be rendered homeless upon eviction, provided such action is not inconsistent with national housing policy; (3) A municipal housing policy that inflexibly and arbitrarily excludes categories of desperately poor evictees from consideration for temporary emergency accommodation, without rational connection to the legitimate purpose of assisting those most vulnerable and in need, is unconstitutional as it violates the right to equality under s 9(1) of the Constitution, is irrational and arbitrary, and violates the right to dignity under s 10; (4) A municipality cannot avoid its constitutional housing obligations by claiming lack of resources without proper evidence demonstrating inability to reallocate funds or reprioritise spending; (5) Providing temporary emergency accommodation to evictees does not allow them to 'jump the queue' but places them at the entry point of the progressive path toward permanent housing; (6) The provision of temporary emergency accommodation to desperately poor evictees is a constitutional imperative that fulfills an important role in the progressive realisation of the right of access to adequate housing.

The court made several obiter observations: (1) The use of ratepayer contributions to prevent long-standing residents who contributed to the economic life of Johannesburg from squatting in public places can hardly be objectionable; (2) Proportionality is a constitutional watchword and in dealing with socio-economic rights, a court's role can be described as 'the art of the possible'; (3) Compensation (constitutional damages) is not always available or ordinarily appropriate as a remedy whenever a fundamental right has been breached; the peculiar facts of Modderklip render it distinguishable and it is not authority for automatic compensation orders; (4) The granting of a stipend to occupiers in the alternative to accommodation is extraordinary, has no basis in law, and would create potential for abuse by unscrupulous landlords who might see the State as a default source of rental income; (5) While courts must be mindful of the separation of powers and limits of judicial intrusion into other branches of government, where the Constitution mandates courts to ensure the State respects, protects, promotes and fulfils Bill of Rights, such intrusion is constitutionally required; (6) It is important that housing programmes work not just in theory but respond to the needs of those most desperate - the greatest good for the many cannot be achieved at the cost of intolerable hardship for the few if such distress could be avoided by reasonable application of judicial and administrative statecraft.

This is a seminal case in South African housing rights jurisprudence. It establishes that municipalities have direct, not merely derivative, constitutional obligations to contribute to the progressive realisation of the right of access to adequate housing. It clarifies that municipalities have the power to use their own resources (including ratepayer contributions) to provide emergency temporary shelter to desperately poor evictees, not only when funded by provincial or national government. The judgment develops the principle that inflexible, irrational housing policies that arbitrarily exclude categories of desperately poor persons from emergency assistance violate the Constitution's equality guarantee and the right to dignity. It emphasises that the progressive realisation of housing rights requires municipalities to provide temporary emergency accommodation as an entry point to permanent housing, and that this is a constitutional imperative that cannot be avoided by pleading budgetary constraints without proper evidence. The case contributes to the coherent jurisprudence on evictions, the right to housing, and the interplay between property rights, housing rights, and the obligations of different spheres of government in South Africa's co-operative governance framework.