City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd and Occupiers of Saratoga Avenue

86 poor people (the Occupiers) unlawfully occupied a dilapidated commercial property at Saratoga Avenue in Berea, Johannesburg. Their occupation was once lawful - they had paid rent to various parties from 1976 to 2005. Blue Moonlight Properties 39 (Pty) Ltd (Blue Moonlight) purchased the property in 2004 for redevelopment. The property's conditions had deteriorated significantly - the City had issued notices about fire safety and health violations in 2005. Blue Moonlight posted eviction notices in 2005 and 2006, then commenced eviction proceedings under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE) in May 2006. The Occupiers opposed on the basis they would be rendered homeless. The City was joined to the proceedings. The Occupiers included elderly persons, children, people with disabilities, and women-headed households, with average household income of R940 per month. Most worked in the informal sector in the central business district and could not afford to live elsewhere or transport costs from a distant location. The City's housing policy provided temporary accommodation to people it relocated from "bad buildings" but excluded people evicted by private landowners from this program.

• Whether it is just and equitable to evict the Occupiers under PIE when eviction would render them homeless
• Whether the City has an obligation to provide temporary emergency accommodation to people evicted by private landowners
• The correct interpretation of Chapter 12 of the National Housing Code regarding emergency housing
• Whether the City is entitled and obliged to fund emergency accommodation from its own resources or only after obtaining provincial funding
• Whether the City's housing policy is unconstitutional to the extent it differentiates between persons relocated by the City and those evicted by private landowners
• Whether the City has sufficient resources to provide temporary accommodation
• The relationship between property rights under section 25(1) and the right to adequate housing under section 26 of the Constitution

The application for leave to appeal was granted but the appeal was dismissed. The application for leave to cross-appeal was granted and the cross-appeal was partially upheld. The order of the Supreme Court of Appeal was modified to: (1) evict the Occupiers by 15 April 2012; (2) declare the City's housing policy unconstitutional to the extent it excludes people evicted by private property owners from consideration for temporary accommodation in emergency situations; (3) order the City to provide temporary accommodation to the Occupiers in a location as near as possible to the property by 1 April 2012 (14 days before eviction); and (4) order the City to pay the costs of Blue Moonlight and the Occupiers, including costs of two counsel.

A municipality has both the power and duty to finance emergency housing from its own resources under Chapter 12 of the National Housing Code, and must first consider whether it can address emergency housing situations from its own means before applying to the province for funding. A housing policy that inflexibly differentiates between persons relocated by a municipality and those evicted by private landowners, excluding the latter from temporary accommodation, is unconstitutional as it is unreasonable and violates section 9(1) of the Constitution - where eviction results in homelessness constituting an emergency, the identity of the evictor is immaterial. An eviction under PIE can only be just and equitable if it does not result in homelessness, and where temporary accommodation is required to prevent homelessness, the eviction order must be linked to the provision of such accommodation. Municipalities cannot rely on budget constraints as a defense if those budgets were formulated based on incorrect understanding of constitutional and statutory obligations. Property rights under section 25(1) must be balanced against housing rights under section 26, and while property owners cannot be expected to provide free housing indefinitely, they may be required to exercise patience and accept temporary restrictions on property use in the process of the justice and equity inquiry mandated by PIE.

The Court made several important observations: (1) that seventeen years into democracy, a dignified existence for all has not been achieved and housing remains central to social justice discourse; (2) that the principle of ubuntu, combining individual rights with communitarian philosophy, suffuses the Constitution and PIE, requiring courts to infuse grace and compassion into formal legal structures; (3) that while it would generally be preferable for national, provincial and local government to be joined in complex eviction and housing proceedings, joinder is not always essential and depends on the circumstances; (4) that reasonable housing programmes cannot disregard those most in need - measures that fail to respond to the needs of the most desperate may not pass the test of reasonableness even if statistically successful; (5) that 'queue jumping' concerns are not applicable where occupiers seek only temporary emergency accommodation rather than permanent housing ahead of others; (6) that when land is purchased for commercial purposes with knowledge of long-term occupiers, the owner must reasonably expect potential restrictions on immediate vacant possession; and (7) that emergency situations, while unpredictable in specific instances, can be anticipated and planned for in the aggregate, particularly regarding evictions.

This case is a landmark judgment on the interplay between property rights and the right to adequate housing in South Africa. It clarified that municipalities have a primary, not merely secondary, role in providing emergency housing and must budget for and fund such accommodation from their own resources when able to do so. The judgment emphasized that housing policies must be reasonable and cannot rigidly exclude vulnerable groups who face homelessness through eviction, regardless of whether eviction is by a public or private party. The case reinforced that eviction orders under PIE must be just and equitable considering all circumstances, including the availability of alternative accommodation, and that property rights must be balanced against constitutional housing rights. It established that municipalities cannot hide behind budget constraints if those budgets were formulated based on incorrect understanding of constitutional and statutory obligations. The judgment also demonstrated the practical application of the constitutional principle of cooperative governance in the housing context, while clarifying that municipalities bear direct responsibility even when other spheres of government may also be involved. The case is significant for its recognition that emergency housing needs can be anticipated and planned for, not merely responded to on an ad hoc basis.