## Facts

- Blue Moonlight Properties 39 (Pty) Ltd bought a dilapidated commercial/industrial building in Berea, Johannesburg (often referred to as “Saratoga Avenue”) with the intention of redeveloping it.
- More than 80 poor people were unlawfully occupying the building as their homes and had no adequate alternative accommodation; many earned poverty-level incomes in insecure work.
- Blue Moonlight brought eviction proceedings under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE) and joined the City of Johannesburg as a party because eviction risked leaving the occupiers homeless.
- The City had a temporary accommodation program for people displaced when the City removed them from unsafe or unsuitable premises, but it did not extend that assistance to people evicted from privately owned property.
- The occupiers alleged that, without City assistance, eviction would result in homelessness, engaging the City’s constitutional and statutory housing duties.
- The High Court declared the City’s refusal to make its temporary accommodation program available in this situation unconstitutional, ordered eviction on a timetable, and (pending eviction) ordered the City to pay the owner compensation calculated as market-related rental.
- On appeal, the Supreme Court of Appeal upheld the eviction and the declaration of unconstitutionality, but set aside the compensation order.
- The City sought leave to appeal to the Constitutional Court against the order requiring it to accommodate people made homeless by private evictions and against the finding that its policy was unconstitutional as applied.

## Issues

1. Whether the City’s temporary accommodation program was constitutionally reasonable if it excluded indigent occupiers who would be rendered homeless by eviction from private property.
2. Whether, under the Constitution, the Housing Act, and the National Housing Code, a municipality must plan and budget for emergency/temporary accommodation for people displaced by private evictions.
3. Whether PIE permits (and may require) an eviction order to be delayed or conditioned to avoid homelessness, and how that affects an owner’s section 25 property interests.
4. What role the municipality must play in PIE eviction proceedings where homelessness is a likely consequence, including reporting to the court on available accommodation and relocation plans.

## Decision

- The Constitutional Court granted leave to appeal but dismissed the City’s appeal on the merits.
- The Court held that the City’s approach—limiting temporary accommodation to people displaced by City action and excluding those evicted from private property—was unconstitutional and unreasonable where eviction would cause homelessness.
- The Court confirmed that the City, as part of the state, bears obligations under section 26 of the Constitution and housing legislation to provide temporary accommodation to people in desperate need, including those displaced by private evictions.
- The Court rejected the City’s position that it had no duty to act absent dedicated provincial funding, holding that the City must plan and budget for foreseeable emergency housing needs.
- The Court affirmed that PIE requires eviction orders to be “just and equitable” after considering all relevant circumstances, including the occupiers’ vulnerability and the practical availability of alternative accommodation.
- The Court accepted that the owner is not required to provide free housing to unlawful occupiers, but also that PIE (as a law of general application) may delay eviction to prevent homelessness while the state fulfills its duties.
- The Court did not reinstate the High Court’s compensation (market-rent) order to the owner; the Supreme Court of Appeal’s setting aside of that relief stood.

## Legal Principles

- The right of access to adequate housing (Constitution section 26) imposes duties on municipalities as part of the state; those duties include addressing immediate and desperate housing need.
- A municipal emergency/temporary accommodation program is unreasonable if it categorically excludes indigent people who will be made homeless by eviction from private land.
- Municipalities must plan and budget for emergency housing situations; lack of earmarked provincial funding does not, by itself, excuse inaction where homelessness is a predictable result of evictions.
- PIE gives effect to section 26(3) by requiring courts to order eviction only when it is “just and equitable,” considering all relevant circumstances, including the probability of homelessness.
- PIE, as a law of general application, can limit an owner’s section 25(1) property rights in eviction matters, but it does not transfer the state’s housing obligations to the owner.
- Where indigent unlawful occupiers face homelessness, the municipality should be joined and must participate meaningfully, including providing the court with information on available accommodation, timing, and relocation arrangements.

## Conclusion

The Constitutional Court held that Johannesburg’s temporary accommodation policy was unconstitutional insofar as it excluded people who would be left homeless by eviction from private property, confirmed that municipalities must plan and fund emergency housing responses, and reaffirmed that PIE evictions must be structured on just-and-equitable terms that take homelessness risk seriously while recognizing that the duty to provide alternative accommodation rests with the state rather than private owners.


City of Johannesburg v. Blue Moonlight Properties, 2012 (2) SA 104 (2012)