R1.3-million to be paid by CoE after court order

The Socio-Economic Rights Institute of South Africa (SERI) and Section27 last week welcomed a judgment handed down by the Pretoria High Court on August 29.

It follows the latest ruling on the matter of Thubakgale and Others vs Ekurhuleni Metropolitan Municipality and Others.

The court held that the City of Ekurhuleni (CoE) was in contempt of a December 2017 court order, which compelled them to provide houses and land to the 133 applicants living in the Winnie Mandela informal settlement by December 2018.

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Section27 intervened as amicus curiae (friend of the court) 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 CoE allocating these to the applicants as early as 1998.

The court ordered the CoE to provide them with housing by December 2018.

However, the city successfully appealed the decision before the Supreme Court of Appeal and extended the deadline for providing housing to June 30, 2019.

A day before this deadline expired, the CoE 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 counter-application, requesting that constitutional damages (monetary compensation given for violation of constitutional rights) be paid for the continued breach of their right to access adequate housing.

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However, the High Court dismissed both the city’s variation application and the applicants’ counter-application for constitutional damages.

The applicants then appealed the High Court order in the Constitutional Court. The Constitutional Court in December 2021 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 the applicants were not entitled to constitutional damages and that this particular remedy was not appropriate in cases involving socio-economic rights.

The applicants approached the High Court again in January 2022 for a second contempt application against the city, 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 the Constitutional Court judgment did not align with its 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.

Therefore, in appropriate circumstances, such as where justice was denied for over 20 years, constitutional damages may be an appropriate remedy.

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The High Court held the city was in contempt of the December 2017 court order and ordered that it provide houses to the applicants by no later than December 15, 2023, and have these houses registered in the applicants’ names.

Section27 lauded the judgement as a significant victory for the applicants and all communities fighting for appropriate socio-economic rights redress in the country.