On 18 February, SERI, representing 133 residents of the Winnie Mandela informal settlement, located in the Ekurhuleni Metropolitan Municipality appeared before the Constitutional Court for an appeal application. On 7 December 2021, the Constitutional Court handed down its judgment in the matter ‘Thubakgale and Others v Ekurhuleni Metropolitan Municipality and Others’. In a 5-4 judgment, the Constitutional Court dismissed the residents’ appeal application and rejected their claim for constitutional damages against the Ekurhuleni Metropolitan Municipality.
The residents approached the Constitutional Court to appeal a decision by the High Court denying them constitutional damages for a breach in their constitutional right to access adequate housing, after the municipality failed to provide them with houses. In December 2017, the North Gauteng High Court ordered Ekurhuleni Municipality to build houses for 133 informal settlement residents whose allocated RDP units had been given to other people as a result of fraud or negligence.
The Municipality had until 30 June 2019 to provide the residents with houses. However, on 28 June 2019, the last working day before it was due to comply with the December 2017 order, the municipality delivered a variation application to request the court to extend, by one year, the period within which it must provide the residents with plots of land and houses.
In a counter-application, the residents argued that the High Court has no power to vary orders to correct breaches of constitutional rights after those orders have come into effect. The residents also sought constitutional damages of R5 000 per resident for every month from 30 June 2019 until the date on which the municipality provides the residents with the houses to which they are entitled in terms of the December 2017 court order.
The High Court dismissed the Municipality’s variation application as well as the residents’ counter-application, to which the residents approached Constitutional Court in an appeal application. The question before the Constitutional Court was whether the award of constitutional damages is “appropriate relief” under section 38 of the Constitution, 1996, for an admitted and ongoing breach of the residents’ constitutional rights of access to adequate housing.
In the judgment handed down on 7 December, the majority held that constitutional damages could not be awarded to the residents. Three of the five justices held that constitutional damages cannot be awarded to enforce socio-economic rights because they do not impose a directly enforceable obligation upon the state to deliver by a particular date. They also held that the residents have other remedies available to them and that the only other way for the residents to enforce the 2017 High Court order is through contempt of court proceedings given that the residents had already been granted a court order in their favour.
The dissenting minority disagreed that constitutional damages are inappropriate when dealing with socio-economic rights. They also disagreed that the residents must show that constitutional damages are the only remedy available to them in order to seek them. The minority would have granted the residents an award of R 10 000 per applicant, a supervisory order to ensure that the residents received houses and an opportunity to return to the court one year later if they have not received the houses.
Despite the outcome, our clients are comforted by the recognition of the ‘sustained and egregious breach of their rights’ by the municipality. While SERI is disappointed by the dismissal of the appeal, it is also emboldened by the minority judgment which espoused a constitutionalism that can propel South Africa’s transformation into a society that is able to improve the quality of life of all citizens and free the potential of each person.