Pretoria - Six years after the court ordered the Ekurhuleni Metropolitan Municipality to provide houses and land to 133 people living in the Winnie Mandela informal settlement in Tembisa, nothing has been done despite promises. This has resulted in the Metro having to pay a fine of R1.3 million for contempt of court.
The Gauteng High Court, Pretoria, held the municipality in contempt of a 2017 court order, which said that it had to provide these people with houses by the end of 2018.
In addition to holding the municipality in contempt of court, two judges also ordered that it had to provide them with housing by December 15.
The municipality was ordered to report back to the court and to the applicant’s attorneys in writing every three months, after the date of this order, on the progress made in settling the applicants permanently in Esselen Park, Tembisa.
The Socio-Economic Rights Institute of South Africa (Seri) and NPO Section27 welcomed the judgment. Section27 intervened as a friend of the court in the matter and argued that communities claiming redress for socio-economic rights should be entitled to constitutional damages in appropriate circumstances.
This matter has a long history, as in 2015 the applicants approached the High Court for assistance after being deprived of housing and land for more than 20 years. The court ordered the municipality to provide them with housing by December 2018. However, the municipality successfully appealed against the decision before the Supreme Court of Appeal and extended the deadline for the provision of housing to June 30, 2019.
A day before this deadline expired, the municipality approached the court to grant it an extension of a year to provide housing to the applicants. The applicants challenged this with a counter-application and asked that constitutional damages (monetary compensation given when constitutional rights are violated) be paid for the continued breach of their right to access adequate housing. The court dismissed this at the time.
The applicants then appealed against the order in the Constitutional Court. In a split decision, the majority of the court held that the applicants are not entitled to constitutional damages and that this particular remedy is not appropriate in cases involving socio-economic rights.
The applicants again approached the High Court for a second contempt application against the municipality, 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.
In this application, Section27 argued that the Constitutional Court judgment was not aligned with its own broader socio-economic rights jurisprudence, or the relevant provisions in the Constitution relating to violations of socio-economic rights.
It said that in appropriate circumstances, such as where justice has been denied for over 20 years, constitutional damages may be an appropriate remedy.
Section27 said the judgment endorsed their submissions in respect of constitutional damages, as Judge Portia Phahlane stated in the judgment: “Having regard to the cumulative circumstances surrounding the applicants, and the submissions made, I am of the view that nothing precludes this court from awarding constitutional damages to the applicants as an effective remedy, and ultimately the appropriate relief within the meaning of section 38 of the Constitution.”
“This is a significant victory for the applicants and all communities fighting for appropriate socio-economic rights redress in the country, as this judgment affirms the importance of constitutional damages as an appropriate remedy for socio-economic rights matters,” Section27 said.