VAN DER WESTHUIZEN J
[92] By drawing a rigid line between persons relocated by the City and those evicted
by private landowners, the City excludes from the assessment, whether emergency
accommodation should be made available, the individual situations of the persons at
risk and the reason for the eviction. Affected individuals may include children,
elderly people, people with disability or women-headed households, for whom the
need for housing is particularly great or for whom homelessness would result in
particularly disastrous consequences.86 Individuals may have a range of incomes –
some may be able to afford subsidised housing while others may be completely
destitute. In the present case, the Occupiers have a myriad of personal circumstances
to be taken into account in considering their eligibility for housing.87 Furthermore, it
cannot necessarily be assumed that the City evicts or relocates mainly for reasons of
safety whilst private property owners do so only for commercial reasons. Once an
emergency of looming homelessness is created, it in any event matters little to the
evicted who the evictor is. The policy does not meaningfully and reasonably allow for
the needs of those affected to be taken into account.88
[93] The City rightly argues that ―queue jumping‖ must not be permitted.
Opportunists should not be enabled to gain preference over those who have been
86
These are also factors to be considered under sections 4 and 6 of PIE.
87
The 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.
88
See Khosa and Others v Minister of Social Development and Others; Mahlaule and Others v Minister of
Social Development and Others [2004] 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.
43
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