On Thursday, 26 February 2026, the Supreme Court of Appeal (SCA) will hear the matter of Ekurhuleni Metropolitan Municipality v Thubakgale and Others. The Municipality has approached the Court seeking to overturn a 2023 High Court order that held it in contempt for failing to provide the respondents with houses, and ordered a fine of R1 330 000 for the contempt.
The residents applied for housing in 1998 and, despite 10 years of engagement, litigation, extended deadlines and multiple court orders, the Ekurhuleni Municipality has failed to comply with its constitutional obligations. In the SCA, the residents seek an order dismissing the Municipality’s appeal but seek a counter-claim for constitutional damages.
SECTION27 has intervened as amicus curiae (friend of the court) on the question of whether people whose socio-economic rights have been violated can claim constitutional damages, which provide monetary compensation for breach of constitutional rights. This intervention is necessary because of the Constitutional Court judgment in Thubakgale v Ekurhuleni Metropolitan Municipality in 2021, where the Court held that constitutional damages are not an appropriate remedy to vindicate socio-economic rights and could not be awarded in this case, despite the ongoing violation of constitutional rights.
SECTION27 argues that the Constitutional Court judgment preventing the possibility of constitutional damages for socio-economic rights violations was not aligned with its own broader socio-economic rights jurisprudence, or with the relevant provisions in the Constitution relating to violations of socio-economic rights. SECTION27 supports its argument that constitutional damages can be an appropriate remedy to vindicate socio-economic rights and that the residents are entitled to constitutional damages in this case. This is supported by section 38 of the Constitution, which provides that a Court may grant an “appropriate remedy” where a right in the Bill of Rights has been infringed, while section 172 of the Constitution states that a Court “may grant a just and equitable remedy” when deciding a constitutional matter. Finally, SECTION27 provides a framework for when constitutional damages would be appropriate, such as where justice has been denied for over 20 years, constitutional damages may be an appropriate remedy.
It is past time for the residents to be granted the appropriate relief that the constitution promises for rights violations, which must, in this case, include constitutional damages.
For media enquiries contact:
Pearl Nicodemus | nicodemus@section27.org.za | 082 298 2636
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