Nomsa Ellen Dladla and Ten Residents of the Ekuthuleni Shelter v City of Johannesburg and Metropolitan Evangelical Services

Following the Constitutional Court's order in Blue Moonlight Properties (2012), the City of Johannesburg was obliged to provide temporary accommodation to 33 persons evicted from 7 Saratoga Avenue, Berea. The City contracted with Metropolitan Evangelical Services (MES) to accommodate 11 applicants who could not afford R600 monthly rent at the Ekuthuleni Shelter. The Shelter imposed two contentious rules: (1) a "lockout rule" requiring residents to leave between 08h00-17h30 and return by 20h00, or be locked out; and (2) a "family separation rule" that provided single-sex dormitories, separating heterosexual partners and children over 16 from their caregivers. The applicants had lived at Saratoga Avenue for up to 20 years before eviction. Upon relocating to the Shelter on 2 May 2012, they objected to these rules, which they claimed violated their constitutional rights to dignity, freedom and security of the person, privacy, and access to adequate housing. Some residents left the Shelter despite having no alternative accommodation. The applicants launched an application in the High Court challenging the constitutionality of the rules.

• Whether the applicants as temporary residents are protected by rights in sections 10, 12, 14 and 26 of the Constitution
• Whether the lockout and family separation rules infringe the applicants' constitutional rights to dignity, freedom and security of the person, and privacy
• Whether the Shelter rules constitute a 'measure' under section 26(2) for progressive realization of the right to housing
• Whether the Shelter rules were sourced in a 'law of general application' for purposes of section 36(1) limitations analysis
• Whether any infringement of constitutional rights by the rules is justifiable under section 36
• Whether the City properly complied with the Blue Moonlight order by imposing the impugned rules
• Whether temporary accommodation provided pursuant to a court order engages section 26(2) of the Constitution

Leave to appeal granted. Appeal upheld. Supreme Court of Appeal order set aside and replaced with declarations that: (1) Rules 3 and 4 of the Ekuthuleni Overnight/Decant Shelter House Rules infringe sections 10, 12 and 14 of the Constitution; (2) City of Johannesburg and MES interdicted and restrained from enforcing rules 3 and 4 against the applicants for the duration of their stay; (3) Refusal to allow applicants to reside with partners of opposite sex infringes sections 10 and 14; (4) City and MES directed to permit applicants who wish to reside with opposite-sex partners in communal rooms for duration of their stay. City ordered to pay applicants' costs including costs of two counsel in Constitutional Court, Supreme Court of Appeal and High Court.

Rules imposed on temporary shelter residents that: (1) lock them out during daytime hours and after curfew; and (2) separate heterosexual partners and families by gender, constitute unjustifiable violations of constitutional rights to dignity (section 10), freedom and security of the person (section 12), and privacy (section 14). Such rules are not authorized by a "law of general application" when they flow only from a private contract between a municipality and service provider, and therefore cannot be justified under section 36(1). A court order requiring a municipality to provide temporary accommodation does not authorize the municipality to impose conditions that violate fundamental constitutional rights. The temporary nature of housing does not diminish the constitutional rights of residents. When fulfilling court orders for temporary accommodation, municipalities remain bound by section 7(2) to respect, protect, promote and fulfill rights in the Bill of Rights.

Cameron J's judgment (concurring) offers extensive obiter on several issues: (1) The meaning of "law of general application" in section 36(1) should include not only statutes but also common law and may extend to court orders from which policies are sourced, though this requires further development in future cases. (2) The same word "reasonable" throughout the Bill of Rights (sections 24, 25, 26, 27, 29, 32, 33, 35, 36, 37) should generally bear consonant meaning or entail the same interpretive process. (3) Reasonableness assessments under section 26(2) must coordinate with and closely resemble section 36(1) limitations analysis, being both purpose- and circumstance-based. (4) The intensity of reasonableness scrutiny may vary depending on which rights are affected - for example, measures affecting the right to life warrant more intense scrutiny than other rights. (5) Emergency disaster situations (fire, flood, earthquake) might justify lockout and family separation rules that would otherwise be unreasonable. (6) Comparative welfare arguments (that beneficiaries of state programs are better off than others) cannot alone justify rights violations, as this could create a "race to the bottom" and infinite regressions of impoverishment. (7) The example of prisoners receiving anti-retroviral treatment before the general public illustrates that vulnerability and dependence create special claims to concern, regardless of comparative welfare. (8) Resource scarcity arguments require detailed evidentiary support and cannot prevail in general, abstract terms. Madlanga J notes that Cameron J's discussion of whether the Blue Moonlight order constituted a "law of general application" is unnecessary obiter given that the rules fail the reasonableness test. Jafta J offers obiter that: (1) The duration of temporary accommodation should preferably be specified in eviction orders. (2) The City's conduct amounted to "queue-jumping" concerns being unfounded, as temporary accommodation does not lead to permanent housing. (3) The treatment of applicants reflected a problematic attitude inconsistent with the Constitution's transformative aims and the journey toward an egalitarian society. All judgments emphasize the particular significance of dignity violations in post-apartheid South Africa, connecting contemporary treatment of poor persons to historical denials of humanity under apartheid.

This case significantly develops South African constitutional jurisprudence on socio-economic rights, particularly the right to housing, and the treatment of vulnerable persons by the state. Key significance includes: (1) Clarifies that temporary accommodation provided pursuant to court orders must respect all fundamental constitutional rights, not a diminished set. (2) Establishes that the state cannot impose conditions on court-ordered accommodation that violate fundamental rights under the guise of "managed-care" policies. (3) Addresses important questions about the relationship between section 26(2) (progressive realization of housing rights) and enforcement of court orders requiring temporary accommodation. (4) Considers the meaning of "law of general application" in section 36(1), though the judgments differ on whether private contracts between state and service providers can qualify. (5) Affirms that poverty cannot justify differential treatment that violates dignity, privacy and security. (6) Recognizes that socio-economic vulnerability creates special claims to constitutional protection, not diminished rights. (7) Addresses gender dimensions of housing policy, noting that family separation rules perpetuated gender stereotypes and disproportionately affected women. (8) Emphasizes the state's duty under section 7(2) to respect, protect and promote rights, particularly for marginalized groups. (9) Draws connections between apartheid's denial of dignity and contemporary treatment of poor persons. (10) Provides guidance for municipalities on constitutional limits of shelter management policies. (11) Establishes that reasonableness assessments under section 26(2) must include intensive scrutiny of how measures affect other fundamental rights. The case reflects tensions between resource constraints, administrative efficiency, and fundamental rights protection, ultimately prioritizing constitutional rights over paternalistic "managed-care" approaches.