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City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd and Another (2012 (2) BCLR 150 (CC); 2012 (2) SA 104 (CC))  ZACC 40;  ZACC 33 (1 December 2011)
CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 37/11
In the matter between:
CITY OF JOHANNESBURG METROPOLITAN MUNICIPALITY ….......Applicant
OCCUPIERS OF SARATOGA AVENUE ….................................Second Respondent
LAWYERS FOR HUMAN RIGHTS …..................................................Amicus Curiae
Heard on : 11 August 2011
Decided on : 1 December 2011
VAN DER WESTHUIZEN J (Moseneke DCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Mogoeng J, Nkabinde J, Skweyiya J and Yacoob J concurring):
Factual and litigation background
Leave to appeal
Constitutional and legal framework
“(1) Everyone has the right to have access to adequate housing.
(2) The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right.
(3) No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.”12
Eviction and PIE
(a) the rights of the owner in a constitutional and PIE era;
(b) the obligations of the City to provide accommodation;
(c) the sufficiency of the City’s resources;
(d) the constitutionality of the City’s emergency housing policy; and
(e) an appropriate order to facilitate justice and equity in the light of the conclusions on the earlier issues.
“The purpose of section 25 has to be seen both as protecting existing private property rights as well as serving the public interest, mainly in the sphere of land reform but not limited thereto, and also as striking a proportionate balance between these two functions.”31 (Footnote omitted.)
“Thus, PIE expressly requires the court to infuse elements of grace and compassion into the formal structures of the law. It is called upon to balance competing interests in a principled way and to promote the constitutional vision of a caring society based on good neighbourliness and shared concern. The Constitution and PIE confirm that we are not islands unto ourselves. The spirit of ubuntu, part of the deep cultural heritage of the majority of the population, suffuses the whole constitutional order. It combines individual rights with a communitarian philosophy. It is a unifying motif of the Bill of Rights, which is nothing if not a structured, institutionalised and operational declaration in our evolving new society of the need for human interdependence, respect and concern.”39 (Footnote omitted.)
The City’s obligations; non-joinder of the other spheres of government
Chapter 12 of the Housing Code
“express provision to facilitate access to temporary relief for people who have no access to land, no roof over their heads, for people who are living in intolerable conditions and for people who are in crisis because of natural disasters such as floods and fires, or because their homes are under threat of demolition.”58
Therefore, the essential question was—
“whether the nationwide housing programme is sufficiently flexible to respond to those in desperate need in our society and to cater appropriately for immediate and short-term requirements.”59
“Effective implementation requires at least adequate budgetary support by national government. This, in turn, requires recognition of the obligation to meet immediate needs in the nationwide housing program. Recognition of such needs in the nationwide housing program requires it to plan, budget and monitor the fulfilment of immediate needs and the management of crises. This must ensure that a significant number of desperate people in need are afforded relief, though not all of them need receive it immediately. Such planning too will require proper co-operation between the different spheres of government.”60
“It seems central to the conception of our constitutional order that the Legislature and Executive in every sphere are constrained by the principle that they may exercise no power and perform no function beyond that conferred upon them by law. At least in this sense, then, the principle of legality is implied within the terms of the interim Constitution. Whether the principle of the rule of law has greater content than the principle of legality is not necessary for us to decide here. We need merely hold that fundamental to the interim Constitution is a principle of legality.”62
“The municipality must immediately investigate and assess the identified need giving due consideration to the following aspects:
. . .
These provisions indicate a legislative purpose that the City ought to plan proactively and to budget for emergency situations in its yearly application for funds.
Constitutional validity of the differentiation in the City’s policy on emergency housing
“26 . . . The City does not currently have alternative accommodation available to temporarily or permanently accommodate those who face homelessness as a result of such eviction or threatened eviction. All the buildings that have been identified by the City for purposes of alternative accommodation can be categorised into one of the following categories:
26.1 currently occupied;
26.2 have been earmarked and will be occupied by affected households from other identified buildings;
26.3 are currently being converted or refurbished; or
26.4 there is no budget available to undertake their refurbishment.
27 Where an eviction application is instituted by a private landowner and it is brought to the attention of the City that the matter may be an ‘emergency’ as envisaged and defined in Chapter 12 of the National Housing Code, the procedures described below will apply.”75
Just and equitable remedy
(a) The application for leave to appeal is granted.
(b) The appeal is dismissed.
(c) The application for leave to cross-appeal is granted.
(d) The cross-appeal is upheld to the extent set out below.
(e) Paragraphs 5.1 to 5.4 of the order of the Supreme Court of Appeal are set aside and replaced with the following:
(i) The first respondent in the South Gauteng High Court, Johannesburg and all persons occupying through them (collectively, the Occupiers) are evicted from the immovable property situate at Saratoga Avenue, Johannesburg, and described as Portion 1 of Erf 1308, Berea Township, Registration Division IR, Gauteng (the property).
(ii) The Occupiers are ordered to vacate the property by no later than 15 April 2012, failing which the eviction order may be carried out.
(iii) The housing policy of the second respondent in the South Gauteng High Court, Johannesburg, the City of Johannesburg Metropolitan Municipality, is declared unconstitutional to the extent that it excludes the Occupiers and other persons evicted by private property owners from consideration for temporary accommodation in emergency situations.
(iv) The City of Johannesburg Metropolitan Municipality must provide those Occupiers whose names appear in the document entitled “Survey of Occupiers of 7 Saratoga Avenue, Johannesburg” filed on 30 April 2008 with temporary accommodation in a location as near as possible to the area where the property is situated on or before 1 April 2012, provided that they are still resident at the property and have not voluntarily vacated it.
(f) The applicant is ordered to pay the costs of the first and second respondents, including the costs of two counsel, in this Court.
For the Applicant: Advocate JJ Gauntlett SC and Advocate FB Pelser instructed by Moodie & Robertson.
For the First Respondent: Advocate MSM Brassey SC and Advocate GA Fourie instructed by Schindlers Attorneys.
For the Second Respondent: Advocate P Kennedy SC, Advocate H Barnes and Advocate S Wilson instructed by Wits Law Clinic.
For the Amicus Curiae: Advocate AA Gabriel SC and Advocate BSM Bedderson instructed by Lawyers for Human Rights.
1A household consists of approximately three people. See the City’s Housing Report (referred to at  and  below) at para 6.
2Statistics South Africa (Stats SA) Census 2001: Primary tables South Africa Report No 03-02-04 (2001) at 78.
4Blue Moonlight Properties 39 (Pty) Ltd v The Occupiers of Saratoga Avenue and Another, Case No 11442/2006, South Gauteng High Court, Johannesburg, 4 February 2010, unreported.
5National housing programme: housing assistance in emergency circumstances (April 2004 Final Version).
6The National Housing Code and the Housing Report are briefly explained in - below.
7Section 26 of the Constitution recognises the right of access to adequate housing and is quoted in  below.
8See section 25(1) of the Constitution, dealt with in  and - below.
9The Occupiers’ details are set out in a document entitled “Survey of Occupiers of 7 Saratoga Avenue, Johannesburg” (Survey) filed in the High Court on 30 April 2008. An affidavit filed by the Occupiers at the commencement of the proceedings initially gave a different number of people. However, the Survey was conducted pursuant to an order of the High Court dated 6 February 2008 that required the City to conduct a survey and record in writing the particulars of the Occupiers. When the City failed to complete this task, it was undertaken by the Occupiers’ attorneys and the Survey was filed by consent.
1019 of 1998.
11Above n 3 at paras 69-71. The Supreme Court of Appeal found this case to be factually distinguishable from Modderfontein Squatters, Greater Benoni City Council v Modderklip Boerdery (Pty) Ltd (Agri SA and Legal Resources Centre, amici curiae); President of the Republic of South Africa and Others v Modderklip Boerdery (Pty) Ltd (Agri SA and Legal Resources Centre, amici curiae) 2004 (6) SA 40 (SCA) (Modderfontein), where the eviction order had been already granted but ignored by the unlawful occupiers, the state had failed to assist the landowner to execute the eviction order, and the private landowner was the innocent victim of a land invasion rather than the purchaser of occupied land.
12On section 26, see for example Government of the Republic of South Africa and Others v Grootboom and Others  ZACC 19; 2001 (1) SA 46 (CC); 2000 (11) BCLR 1169 (CC) (Grootboom); Port Elizabeth Municipality v Various Occupiers  ZACC 7; 2005 (1) SA 217 (CC); 2004 (12) BCLR 1268 (CC) (PE Municipality); Jaftha v Schoeman and Others; Van Rooyen v Stoltz and Others  ZACC 25; 2005 (2) SA 140 (CC); 2005 (1) BCLR 78 (CC); Occupiers of 51 Olivia Road, Berea Township, and 197 Main Street, Johannesburg v City of Johannesburg and Others  ZACC 1; 2008 (3) SA 208 (CC); 2008 (5) BCLR 475 (CC) (Olivia Road); Residents of Joe Slovo Community, Western Cape v Thubelisha Homes and Others  ZACC 16; 2010 (3) SA 454 (CC); 2009 (9) BCLR 847 (CC); Joseph and Others v City of Johannesburg and Others  ZACC 30; 2010 (4) SA 55 (CC); 2010 (3) BCLR 212 (CC); and Gundwana v Steko Development CC and Others  ZACC 14; 2011 (3) SA 608 (CC); 2011 (8) BCLR 792 (CC).
13Section 34 states: “Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.”
14Section 152 provides:
“(1) The objects of local government are—
(a) to provide democratic and accountable government for local communities;
(b) to ensure the provision of services to communities in a sustainable manner;
(c) to promote social and economic development;
(d) to promote a safe and healthy environment; and
(e) to encourage the involvement of communities and community organisations in the matters of local government.
(2) A municipality must strive, within its financial and administrative capacity, to achieve the objects set out in subsection (1).”
15The relevant subsections provide:
“(1) A municipality has executive authority in respect of, and has the right to administer—
(a) the local government matters listed in Part B of Schedule 4 and Part B of Schedule 5; and
(b) any other matter assigned to it by national or provincial legislation.
. . .
(5) A municipality has the right to exercise any power concerning a matter reasonably necessary for, or incidental to, the effective performance of its functions.”
16Section 40 provides:
“(1) In the Republic, government is constituted as national, provincial and local spheres of government which are distinctive, interdependent and interrelated.
(2) All spheres of government must observe and adhere to the principles in this Chapter and must conduct their activities within the parameters that the Chapter provides.”
17107 of 1997.
18The preamble states that “in terms of section 26 of the Constitution . . . everyone has the right to have access to adequate housing, and the state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right” and recognises that “housing, as adequate shelter, fulfils a basic human need” and that “housing is a vital part of integrated developmental planning”.
19Section 9 of the Housing Act provides in part:
“(1) Every municipality must, as part of the municipality’s process of integrated development planning, take all reasonable and necessary steps within the framework of national and provincial housing legislation and policy to—
(a) ensure that—
(i) the inhabitants of its area of jurisdiction have access to adequate housing on a progressive basis;
. . .
(b) set housing delivery goals in respect of its area of jurisdiction;
(c) identify and designate land for housing development;
(d) create and maintain a public environment conducive to housing development which is financially and socially viable;
(e) promote the resolution of conflicts arising in the housing development process;
(f) initiate, plan, co-ordinate, facilitate, promote and enable appropriate housing development in its area of jurisdiction”.
2032 of 2000.
21Section 4 provides:
“(1) The council of a municipality has the right to—
(a) govern on its own initiative the local government affairs of the local community;
(b) exercise the municipality’s executive and legislative authority, and to do so without improper interference; and
(c) finance the affairs of the municipality by—
(i) charging fees for services; and
(ii) imposing surcharges on fees, rates on property and, to the extent authorised by national legislation, other taxes, levies and duties.
(2) The council of a municipality, within the municipality’s financial and administrative capacity and having regard to practical considerations, has the duty to—
(a) exercise the municipality’s executive and legislative authority and use the resources of the municipality in the best interests of the local community;
(b) provide, without favour or prejudice, democratic and accountable government;
. . .
(e) consult the local community about—
(i) the level, quality, range and impact of municipal services provided by the municipality, either directly or through another service provider; and
(ii) the available options for service delivery;
(f) give members of the local community equitable access to the municipal services to which they are entitled;
(g) promote and undertake development in the municipality;
. . .
(j) contribute, together with other organs of state, to the progressive realisation of the fundamental rights contained in sections 24, 25, 26, 27 and 29 of the Constitution.
(3) A municipality must in the exercise of its executive and legislative authority respect the rights of citizens and those of other persons protected by the Bill of Rights.”
“(a) developing and adopting policies, plans, strategies and programmes, including setting targets for delivery;
(b) promoting and undertaking development;
. . .
(e) implementing applicable national and provincial legislation and its by-laws;
. . .
(h) preparing, approving and implementing its budgets;
. . .
(n) doing anything else within its legislative and executive competence.”
23See Chapter 12 at section 12.1 and Grootboom above n 12.
24See below n 50 for the definition of emergency housing circumstances.
25Housing Report at para 28.
26Section 4 provides:
“(1) Notwithstanding anything to the contrary contained in any law or the common law, the provisions of this section apply to proceedings by an owner or person in charge of land for the eviction of an unlawful occupier.
. . .
(6) If an unlawful occupier has occupied the land in question for less than six months at the time when the proceedings are initiated, a court may grant an order for eviction if it is of the opinion that it is just and equitable to do so, after considering all the relevant circumstances, including the rights and needs of the elderly, children, disabled persons and households headed by women.
(7) If an unlawful occupier has occupied the land in question for more than six months at the time when the proceedings are initiated, a court may grant an order for eviction if it is of the opinion that it is just and equitable to do so, after considering all the relevant circumstances, including, except where the land is sold in a sale of execution pursuant to a mortgage, whether land has been made available or can reasonably be made available by a municipality or other organ of state or another land owner for the relocation of the unlawful occupier, and including the rights and needs of the elderly, children, disabled persons and households headed by women.
(8) If the court is satisfied that all the requirements of this section have been complied with and that no valid defence has been raised by the unlawful occupier, it must grant an order for the eviction of the unlawful occupier, and determine—
(a) a just and equitable date on which the unlawful occupier must vacate the land under the circumstances; and
(b) the date on which an eviction order may be carried out if the unlawful occupier has not vacated the land on the date contemplated in paragraph (a).”
29This is in accordance with the post-World War II trend in Germany and elsewhere. For example, Article 14 of the German Basic Law provides that “[p]roperty and the right of inheritance shall be guaranteed” but also that “[p]roperty entails obligations” and “[i]ts use should also serve the public interest.” See for example the Co-Determination Decision BVerfGE 50, 290 (1979) and the Investment Aid Case BVerfGE 4, 7 (1954).
31First National Bank of SA Ltd t/a Wesbank v Commissioner, South African Revenue Service and Another; First National Bank of SA Ltd t/a Wesbank v Minister of Finance  ZACC 5; 2002 (4) SA 768 (CC); 2002 (7) BCLR 702 (CC) (FNB) at para 50, relying on Van der Walt The Constitutional Property Clause (Juta & Co Ltd, Kenwyn 1997) at 15-6.
32For a more detailed summary of the historical context that preceded section 26 of the Constitution and PIE see PE Municipality above n 12 at paras 8-10.
35PE Municipality above n 12 at para 17.
36The preamble of PIE provides in relevant part:
“WHEREAS no one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property;
AND WHEREAS no one may be evicted from their home, or have their home demolished without an order of court made after considering all the relevant circumstances”.
37PE Municipality above n 12 at para 23.
38See Harksen v Lane NO and Others  ZACC 12; 1998 (1) SA 300 (CC); 1997 (11) BCLR 1489 (CC) (Harksen) where the distinction was drawn between deprivations (under section 25(1)) and expropriations (as per the rest of section 25). Although the precise relationship between the two was not stated, this Court made observations about their differing attributes. Goldstone J articulated that “[t]he word ‘expropriate’ is generally used in our law to describe the process whereby a public authority takes property (usually immovable) for a public purpose and usually against payment of compensation” (at para 32). In that case the impugned law did not amount to a compulsory acquisition or expropriation because the property was not appropriated by the state, nor was the applicant deprived thereof permanently (at para 36). For an analytical framework for section 25, see FNB above n 31.
39PE Municipality above n 12 at para 37.
40See subsections 4(6) and 4(7) of PIE above n 26.
41Section 4(7) of PIE above n 26.
42See section 40(1) of the Constitution above n 16.
43Grootboom above n 12 at para 40.
44On the eve of the hearing the Minister for Human Settlements filed an affidavit with this Court. Neither the Minister nor his department is party to these proceedings. The Minister did not ask to be joined. The affidavit was filed very late without any explanation or request for condonation. Its admission was opposed by the Occupiers. There is no basis for the affidavit’s admission.
45Above n 3 at para 68.
47Rule 5 of the Rules of the Constitutional Court.
48For example, in Nokotyana and Others v Ekurhuleni Metropolitan Municipality and Others  ZACC 33; 2010 (4) BCLR 312 (CC), dealing with the need for people in an informal settlement for lighting and toilets, the Court joined the provincial Member of the Executive Council for Local Government and Housing. Because the delay by the province to take a decision on an application to upgrade the status of the settlement under the National Housing Code was unjustified and unacceptable, it was ordered to make a decision within a stipulated time. The Court also ordered the province to pay the costs of the applicants, as its conduct had contributed to their dilemma. See paras 36, 55 and 62.
49The primary duties placed on national and provincial governments do not absolve local governments. The Constitution places a duty on local governments to ensure that services are provided in a sustainable manner to the communities they govern: see section 152(1)(b), read with sections 152(2) and 153(a) of the Constitution, discussed at  above. A municipality must be attentive to housing problems in the community, plan, budget appropriately and co-ordinate and engage with other spheres of government to ensure that the needs of its community are met. Its duty is not simply to implement the state’s housing programme at a local level. It must plan and carry some of the costs, as is shown below. See section 9 of the Housing Act and sections 4, 8(2), 11(3) and 23(1) of the Municipal Systems Act, discussed at - above. See also the discussion of Chapter 12 below.
50Chapter 12 defines “Emergencies” at section 12.3.1 as the following:
“An Emergency exists when the MEC, on application by a municipality and or the provincial housing department, deems that persons affected,
a. Owing to situations beyond their control:
• have become homeless as a result of a declared state of disaster . . .
. . .
• are evicted or threatened with imminent eviction from land or from unsafe buildings, or situations where pro-active steps ought to be taken to forestall such consequences;
• whose homes are demolished or threatened with imminent demolition, or situations where proactive steps ought to be taken to forestall such consequences; or
. . .
• live in conditions that pose immediate threats to life, health and safety and require emergency assistance.
b. Are in a situation of exceptional housing need, which constitutes an Emergency that can reasonably be addressed only by resettlement or other appropriate assistance, in terms of this Programme.”
51See Grootboom above n 12 at paras 39-40 and 47.
52The City relies on De Visser “A Perspective on local government’s role in realising the right to housing and the answer of the Grootboom judgment” (2003) 7(2) Law, Democracy & Development 201.
53See ,  and  above.
54In support of its submission, counsel for the City referred to Chapter 12 at 254, 259, 277, 278, 280 and 286, especially during oral argument.
55See - above.
56See section 4 and section 8(2), set out in n 21 and  respectively.
57Grootboom above n 12 at paras 39-44.
58Id at para 52.
59Id at para 56.
60Id at para 68.
62Id at para 58.
63Id at para 56.
64Section 12.3.3 of Chapter 12 provides:
“In terms of section 12.5 of this part of the Code
• funds will be made available by the provincial departments of housing either through the reservation of funds or reprioritisation as emergency circumstances arise, to fund projects approved under this Programme; and
• the authority to consider and approve projects and the financing of such projects will vest in the Member of the Executive Council, responsible for Housing of the Provincial Government.”
65In April 2009 the City made an application to the province for funding in terms of Chapter 12. It did so despite having hitherto denied that the Occupiers were eligible for assistance in terms of the Emergency Housing Programme.
66Above n 3 at paras 49, 50 and 52.
67During oral argument counsel for the City was asked from the bench how much time the City would require if ordered to provide the Occupiers with temporary accommodation. Counsel undertook to file a response in writing. After two written requests for more time, the City responded in a letter dated 25 August 2011. It stated that it cannot accommodate the Occupiers in any building or vacant land owned by the City and that it cannot divert any funds, because this would adversely impact other housing projects. At best, it could apply to the province for funding in terms of Chapter 12 of the National Housing Code to consider the application and allocate funding in the next budget cycle, commencing on 1 July 2012. It appears that further correspondence was exchanged between Blue Moonlight, the Occupiers and the City. Not all of this correspondence was sent to this Court. There is no need to go into the details of this exchange, however, because it does not take the matter any further. The matter must in any event be adjudicated on the evidence as it was at the date of the hearing. The letter was supposed to respond to a specific question. The response maintained the position that the City took in its submissions, namely that it is unable to provide accommodation.
68See Housing Report at paras 7-10.
69Id at paras 12-3.
70Id at para 14.6.
71Id at paras 22-7.
72Id at paras 28-38.
73Id at para 25.
74Id at para 24. The City notes that prior to this Court’s judgment in Olivia Road above n 12, the City obtained eviction orders against the occupiers of “bad buildings” by way of section 12 of the National Building Regulations and Building Standards Act 103 of 1977, but since that judgment such evictions have ceased and the City now seeks to relocate the occupiers of such buildings voluntarily. The Housing Report states at para 24:
“The City considers it a priority to assist the occupiers of these buildings by relocating them to temporary accommodation because of the threat to their lives. The City endeavours to do so on an emergency basis within its resources. . . . The City’s approach is to engage in so far possible, with the owners and occupiers of these buildings in order to negotiate the urgent voluntary relocation of the occupiers to temporary alternative accommodation provided by the City”.
75The City’s Housing Report then goes on at paras 31-3 to describe the procedure that it thinks should be followed under Chapter 12: that in an emergency situation the City assesses and investigates the scenario and, if it feels that it attracts an emergency status, applies to the province for an emergency to be declared and an emergency project to be approved.
76Id at para 32.
77Id at paras 36-8. For example, the Alexandra Emergency facility was vacant and to be handed over to the City in early 2011 and Stand 902 New Doornfontein/Linatex was to commence development in the 2010/2011 financial year but potential beneficiaries were already identified.
782009 Report at para 6.
79See  above for the text of section 9(1) of the Constitution.
80See above n 3 at paras 59-61 and 66.
81Id at para 67.
82In Harksen above n 38 at para 43 Goldstone J, interpreting section 8(1) of the interim Constitution, posed the question whether the differentiating measure bears a rational connection to a legitimate governmental purpose.
83Grootboom above n 12 at para 46. See also Soobramoney v Minister of Health, KwaZulu-Natal  ZACC 17; 1998 (1) SA 765 (CC); 1997 (12) BCLR 1696 (CC) at para 11 where Chaskalson P held that both the obligations imposed and rights conferred by section 26 are limited by the availability of resources.
84Grootboom above n 12 at para 41.
85Id at para 44 the Court stated:
“To be reasonable, measures cannot leave out of account the degree and extent of the denial of the right they endeavour to realise. Those whose needs are the most urgent and whose ability to enjoy all rights therefore is most in peril, must not be ignored by the measures aimed at achieving realisation of the right. It may not be sufficient to meet the test of reasonableness to show that the measures are capable of achieving a statistical advance in the realisation of the right. Furthermore, the Constitution requires that everyone must be treated with care and concern. If the measures, though statistically successful, fail to respond to the needs of those most desperate, they may not pass the test.”
86These are also factors to be considered under sections 4 and 6 of PIE.
87The Survey above n 9 reveals, for example, that the Occupiers’ ages range from 11 months to 68 years and that their incomes range from nil to R2 200 monthly.
88See Khosa and Others v Minister of Social Development and Others; Mahlaule and Others v Minister of Social Development and Others  ZACC 11; 2004 (6) SA 505 (CC); 2004 (6) BCLR 569 (CC) at para 49 where this Court noted that when determining whether an exclusion is reasonable regard must be had to: the purpose of the right in question; the impact of the exclusion on those excluded; the relevance of the ground of exclusion to the purpose of the right in question; and the potential impact the exclusion has on other intersecting rights. From the foregoing, it is evident that the Occupiers are disproportionately impacted by the exclusion. The effect that this exclusion has on their rights to life and dignity is significant.
89Above n 3 at para 55.
90PE Municipality above n 12 at para 55.
91The Supreme Court of Appeal ordered:
“1. The application by the appellant to have new evidence admitted on appeal succeeds and the appellant is to pay the costs of the application on the unopposed scale.
2. Save as is reflected in the substituted order set out hereunder, the appeal is dismissed and the appellant is ordered to pay the second respondents’ costs, including the costs of two counsel.
3. No order is made in respect of the cross-appeal by the second respondent.
4. In respect of the abandoned cross-appeal by the first respondent, no costs order is made in relation thereto.
5. The order of the court below is set aside and substituted as follows:
‘1. The first respondent and all persons occupying through them (collectively ‘the occupiers’) are evicted from the immovable property situate at Saratoga Avenue, Johannesburg, and described as Portion 1 of Erf 1308, Berea Township, Registration Division IR, Gauteng (‘the property’);
2. The first respondent and all persons occupying through them are ordered to vacate by no later than 1 June 2011, failing which the Sheriff of the Court is authorised to carry out the eviction order;
3. The second respondent’s housing policy to the effect that it only provides temporary emergency accommodation to those evicted from unsafe buildings by the City itself or at its instance, in terms of the National Building Regulations and Building Standards Act 103 of 1977, is declared unconstitutional to the extent that it excludes the occupiers from consideration for such accommodation;
4. The second respondent shall provide those occupiers whose names appear in the document entitled ‘Survey of Occupiers of 7 Saratoga Avenue, Johannesburg’ 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 area where the property is situated, provided that they are still resident at the property and have not voluntarily vacated it;
5. The second respondent is ordered to pay the applicant’s costs and the costs of the first respondent, including the costs of two counsel.’”
92It seems that the distinction apparently drawn by the City between temporary accommodation and emergency accommodation in its policy is erroneous. The City also refers to temporary accommodation as “temporary accommodation as decant”. For a discussion on the difference between temporary accommodation and emergency accommodation under the City’s policy, see  and - above. Chapter 12 provides for temporary accommodation as a part of its emergency provisions. The “temporary emergency accommodation as decant”, ordered by the Supreme Court of Appeal, can be provided, as it is a type of temporary accommodation in emergency circumstances that falls within the scheme of Chapter 12. The Supreme Court of Appeal was justified in ordering it, although the term “as decant” does not necessarily add clarity.