Local government responsibility to prevent homelessness: the Blue Moonlight case

The Socio-Economic Rights Institute of SA (SERI) is involved in a number of important public interest cases that have progressively developed the right to housing as enshrined in the Constitution. These cases challenge municipal housing policies in an attempt to make local government more responsive to the needs of the poor living within their jurisdiction when they are evicted and rendered homeless. 

In City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd (Blue Moonlight), SERI represents a community of 86 desperately poor people who were living in a disused industrial property situated in Berea, in the Johannesburg inner city. The occupiers were sued for eviction by the new owner of the building. The occupiers opposed the eviction order on the grounds that the City of Johannesburg had not complied with its constitutional obligations, arguing that the City had to provide them with temporary alternative accommodation pending the allocation of formal housing as part of the national housing programme. 

The case turned on the City’s housing policy, which allowed the provision of temporary alternative accommodation for occupiers that the City evicted from dangerous buildings but failed to provide the same to occupiers who would effectively be rendered homeless if evicted by private owners. The Constitutional Court upheld the arguments of the occupiers by declaring the City’s housing policy unconstitutional and stating that the City was obliged to provide temporary alternative accommodation to those that may be rendered homeless as a result of eviction.

The outcome of this case was a successful challenge to a local governmental policy which failed to pass constitutional scrutiny. However, the case has since raised some pressing issues in relation to the adequacy of the temporary accommodation provided by the City, as well as the backlog of temporary accommodation the City is required to provide.

Blue Moonlight also raised another crucial issue facing communities, namely the enforcement of court orders. The state has displayed an increasingly lackadaisical attitude to implementing court orders. In Blue Moonlight, the residents had to launch an urgent application to the High Court seeking an order for the City to comply with the Constitutional Court’s order and stay the eviction process until the City had done so. The court ordered such a stay and ruled that the City was obliged to report back to the residents its progress in the provision of alternative accommodation.

Since these developments the residents have been provided with alternative accommodation. However, what has been provided by the City is woefully inadequate, with severe restrictions of basic freedoms and other dubious conditions imposed on the occupiers who were moved to a NGO-run shelter. As a result some of the residents who have been accommodated this alternative accommodation are once again instituting legal proceedings.