Ekurhuleni Municipality ordered to pay a R1 330 000 fine for failing to provide housing and land after 20 years

6 September 2023, Johannesburg – The Socio-Economic Rights Institute of South Africa (SERI) and SECTION27 welcome the judgment handed down by the High Court of South Africa (Gauteng Division, Pretoria) in the matter of Thubakgale and Others v Ekurhuleni Metropolitan Municipality and Others on 29 August 2023. The Court held that the Ekurhuleni Metropolitan Municipality (“the Municipality”) is in contempt of a December 2017 court order, in which it was compelled to provide houses and land to the one hundred and thirty-three applicants living in the Winnie Mandela informal settlement by December 2018. SECTION27 intervened as amicus curiae (friend of the court) in the matter and argued that communities claiming redress for socio-economic rights should be entitled to constitutional damages in appropriate circumstances.

This matter has a complex history. In 2015, the applicants represented by SERI approached the High Court for assistance after being deprived of housing and land for over 20 years, despite the Municipality allocating these to the applicants in as early as 1998. The court ordered the Municipality to provide them with housing by December 2018. However, the Municipality successfully appealed the decision before the Supreme Court of Appeal and extended the deadline for the provision of housing to 30 June 2019. A day before this deadline expired, the Municipality approached the High Court to change the court order and grant them an extension until June 2021 to provide housing to the applicants. The applicants challenged this with a so-called “counter-application”, and requested that constitutional damages (monetary compensation given when constitutional rights are violated) be paid for the continued breach of the applicants’ right to access adequate housing However, the High Court dismissed the municipality’s variation application and the applicants’ counter-application for constitutional damages.

The applicants then appealed the High Court order in the Constitutional Court, and in December 2021, the Constitutional Court handed down its judgment on whether the applicants were entitled to constitutional damages as an appropriate remedy to vindicate their right to access adequate housing. In a split decision, the majority of the court held that the applicants are not entitled to constitutional damages and that this particular remedy is not appropriate in cases involving socio-economic rights.

In January 2022, the applicants approached the High Court again for a second contempt application against the Municipality, based on its failure to provide housing and land in terms of the original 2017 order. In the alternative, the applicants again claimed constitutional damages. As an amicus curiae, SECTION27 argued that the Constitutional Court judgment was not aligned with its own broader socio-economic rights jurisprudence or the relevant provisions in the Constitution relating to violations of socio-economic rights. In particular, Section 38 of the Constitution provides that a Court may grant an “appropriate remedy” where a right in the Bill of Rights has been infringed, while section 172 states that a court “may grant a just and equitable remedy” when deciding a constitutional matter.  Thus, in appropriate circumstances, such as where justice has been denied for over 20 years, constitutional damages may be an appropriate remedy.

Importantly, the High Court held that the Municipality was in contempt of the December 2017 court order and ordered that it provide houses to the applicants by no later than 15 December 2023, and have the houses registered in the applicants’ names by April 2023. The judgment further endorsed SECTION27’s submissions in respect of constitutional damages, as Phahlane J stated the following in paragraph 22 of her judgment: “… Having regard to the cumulative circumstances surrounding the applicants, and the submissions made, I am of the view that nothing precludes this Court from awarding constitutional damages to the applicants as an effective remedy, and ultimately the appropriate relief within the meaning of section 38 of the constitution.”

This is a significant victory for the applicants and all communities fighting for appropriate socio-economic rights redress in the country, as this judgment affirms the importance of constitutional damages as an appropriate remedy for socio-economic rights matters.

Click here to download the judgment.

For media queries contact:

SERI: Khululiwe Bhengu| khululiwe@seri-sa.org | 0825908826

SECTION27: Pearl Nicodemus | nicodemus@section27.org.za | 082 298 2636