The Socio-Economic Rights Institute of South Africa (SERI) and Section27 celebrated a recent judgment delivered by the Pretoria High Court on August 29, in the case of Thubakgale and Others vs Ekurhuleni Metropolitan Municipality and Others. This judgment marks the culmination of a complex legal journey.
The court found that the City of Ekurhuleni (CoE) was in contempt of a December 2017 court order, which had mandated them to provide housing and land to 133 applicants residing in the Winnie Mandela informal settlement by December 2018.
Section27, acting as amicus curiae (friend of the court), argued that communities seeking redress for socio-economic rights violations should have the right to receive constitutional damages under appropriate circumstances.
The roots of this matter stretch back to 2015 when the applicants, represented by SERI, approached the High Court seeking assistance after being denied housing and land for over two decades, despite the CoE having initially allocated these resources to them in 1998.
The court had initially ordered the CoE to provide housing by December 2018. However, the city appealed this decision at the Supreme Court of Appeal, extending the housing deadline to June 30, 2019.
On the eve of this extended deadline, the CoE approached the High Court, seeking to amend the court order and obtain an extension until June 2021 for housing provision.
The applicants responded with a counter-application, requesting constitutional damages as compensation for the ongoing violation of their right to adequate housing. Nevertheless, the High Court dismissed both the city’s variation application and the applicants’ counter-application for constitutional damages.
Subsequently, the applicants appealed the High Court’s decision to the Constitutional Court, which, in December 2021, delivered its judgment on whether the applicants were entitled to constitutional damages as a suitable remedy for violating their right to adequate housing.
In a divided decision, most of the Constitutional Court ruled that the applicants were not entitled to constitutional damages, particularly in socio-economic rights cases.
In January 2022, the applicants returned to the High Court with a second contempt application against the city, citing its failure to provide housing and land following the original 2017 order. Alternatively, they again sought constitutional damages.
As an amicus curiae, Section27 argued that the Constitutional Court’s judgment did not align with its broader jurisprudence on socio-economic rights or the relevant constitutional provisions related to violations of these rights. Specifically, Section 38 of the Constitution allows courts to grant an “appropriate remedy” for infringed rights in the Bill of Rights, while Section 172 permits courts to grant a “just and equitable remedy” in constitutional matters. Therefore, constitutional damages might be an appropriate remedy in cases like this one, where justice had been denied for over two decades.
The High Court ruled that the city was indeed in contempt of the December 2017 court order and mandated that it provide houses to the applicants by no later than December 15, 2023, with these houses registered in the applicants’ names.
Section27 praised this judgment as a significant victory for the applicants and all communities in South Africa fighting for appropriate redress of socio-economic rights violations.
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