VAN DER WESTHUIZEN J
equal protection and benefit of the law.79
The differentiation bore no rational
connection to the City‘s legitimate purpose of providing temporary accommodation to
those who are vulnerable and most in need.80 Further, the City‘s inflexible approach
undermined the Occupiers‘ right to dignity, a founding value and right entrenched in
section 10 of the Constitution.81 The Supreme Court of Appeal declared the policy
unconstitutional to the extent that it excluded the Occupiers from consideration for
temporary emergency housing.
[85] The City submits that the approach adopted by the Supreme Court of Appeal
deviates from Grootboom and has the potential to handicap reasonable policies and
programmes. The City also submits that the section 9 enquiry does not arise.
[86] In considering these submissions, it must be accepted that state resources for
housing in any country – and particularly in South Africa – are limited. Section 26(2)
recognises this by stating that reasonable legislative and other measures must be taken
within available resources. Because the demand necessarily exceeds the availability
of resources, any housing policy will have to differentiate between categories of
people and to prioritise. The differentiation needs to be scrutinised though.
79
See [19] above for the text of section 9(1) of the Constitution.
80
See above n 3 at paras 59-61 and 66.
81
Id at para 67.
40
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