On Thursday, 18 February the Constitutional Court heard an application for leave to appeal against a judgment dismissing the claims of 133 residents of Winnie Mandela informal settlement for constitutional damages from the Ekurhuleni Metropolitan Municipality for the breach of their rights of access to adequate housing.

The Constitutional Court heard an application for leave to appeal against a judgment of the North Gauteng High Court which dismissed the applicants’ claims for constitutional damages from the Ekurhuleni Metropolitan Municipality for the breach of their rights to access to adequate housing. (Photo: Gallo Images / Foto24 / Nicolene Olckers)

The Thubakgale and Others v Ekurhuleni Metropolitan Municipality and Others case dates back to 1998 when the 133 residents applied to receive Reconstruction and Development Programme (RDP) houses. Their application was approved in 2000. 

To date, they still have not received houses and have been living in shacks without running water, electricity or proper sanitation even though subsidies were paid to the Ekurhuleni municipality to build their houses.

The houses that were built and registered in the names and municipal accounts of the 133 residents are now being inhabited by other people. Together with the Ekurhuleni Concerned Residents Association they have been trying to engage with the Department of Human Settlements, the Presidency as well as the Ekurhuleni municipality to rectify the issue, but to no avail.

The matter went to the North Gauteng High Court, where it was submitted that the municipality had breached the residents’ right to housing guaranteed in section 26 of the Constitution. The court ordered the municipality to provide the residents “with a house at Tembisa Extension 25, or at another agreed location, by 31 December 2018 and to register the residents as titleholders by 31 December 2019”.

The municipality accepted it was in breach of the residents’ right, but contended that the deadlines set were too stringent and took the matter to the Supreme Court of Appeal (SCA), asking that deadlines be moved to 31 December 2021 for the delivery of the houses and 31 December 2022 for the registration of residents as titleholders. 

The SCA did not agree and instead made the dates to be complied with earlier, ruling that the houses were to be delivered to the residents by 30 June 2019 and registration was to occur by 30 June 2020. 

On 28 June 2019 the municipality applied for an extension for the delivery of the houses to 30 June 2020 and the date of registration to 30 June 2021. It also changed its undertaking from delivering houses to delivering “walk up houses” (apartments).

The residents opposed this and brought an application of constitutional damages in the form of R5,000 per person per month until the municipality delivers their houses. 

The high court found against the municipality and dismissed its application as well as the residents’ claim for constitutional damages, and the residents then brought the matter before the Constitutional Court to appeal against the dismissal of constitutional damages.

Johannah Thubakgane from Winnie Mandela informal settlement in Tembisa lives with her children and grandchildren in a two-room shack. (Photo: Gallo Images / Rapport / Elizabeth Sejake)

Representing the residents, advocate Stuart Wilson made the case that, “It’s not just about patrimonial loss… it’s every day waking up cold, it’s every day walking to the tap to pour cold water to wash, it’s every day having to buy the paraffin, it’s every day walking past the house you were supposed to be given 10 years ago and seeing how comfortable people are in there, and it’s a million other indignities, minor frustrations and resentments, that’s the breach of the constitutional rights in this case.”

While the justices of the Constitutional Court said they were keen for the residents to receive housing as per the Constitution, they questioned Wilson on the impact the damages would have on the public purse over and above the provision of houses. 

They said the damages needed to be weighed against the interests of people in the municipality who do not have housing and how the delivery of those houses would be affected and asked whether Wilson should not be pursuing a supervisory order instead.

Wilson argued that in light of the repeated failures of the state to abide by the high court and SCA’s orders a damages claim was justified and the appropriate remedy. He did, however, concede that it was for the Constitutional Court to decide the quantum of the damages.

Advocate Chris Georgiades, representing the Ekurhuleni Municipality, said that the residents had been “unreasonable” in their engagements and were constantly “shifting the goalposts”, as the municipality had conceded it had breached its responsibility to provide them with housing.

Georgiades said there was no need to further institute a “punitive” claim for constitutional damages, particularly in light of the budgetary constraints and impact of lockdown the municipality was facing. 

He said that imposing constitutional damages would make the municipality’s other service delivery responsibilities even more difficult to deliver on.

He said that the residents had suffered no patrimonial loss and that they were seeking to get a “windfall”.

Justice Steven Majiedt asked: “Mr Georgiades, can I just check with you, has the municipality ever budgeted for the houses for these applicants?”

Georgiades answered that the municipality had said it would include the houses in one of its housing projects. He said there was no specific budgeting for the 133 residents but that the municipality had tried to include them in a housing project, most of which was made up of flats.

Justice Chris Jafta said he was troubled by that response and asked: “Why would the municipality not budget for meeting that responsibility? Why would the applicants be included in some other housing projects? I don’t understand that. Unless from the word go the municipality never intended to comply with that order.”

Justice Mbuyiseli Madlanga said: “Due to municipal bungling, and who knows, maybe worse, the applicants didn’t get the housing that they should have gotten a long time ago.”

“If the money that had been allocated for the applicants had been used for the applicants, the respondents would not be finding themselves in this situation,” said Justice Leona Theron.

Justice Majiedt said the fact that some of the applicants had since died was a sad reminder that some will never have their socioeconomic rights vindicated while still alive.

Judgment was reserved. DM/MC