Johannesburg - Ekurhuleni Metropolitan municipality has failed to build houses for 133 residents that it had promised in 1994 and is now blaming Covid-19 for the delay.
The delay is now going to force the country’s fourth biggest metro, to pay constitutional damages amounting to R15 million to the residents of Winnie Mandela Informal Settlement in Tembisa, who have been without electricity, water and adequate sanitation since 1994.
Ekurhuleni has missed several deadlines to build the houses, which were initially imposed by North Gauteng High Court Judge Mmonoa Teffo in December 2017.
Judge Teffo ordered the municipality to provide each resident with a house before the end of 2018, register them as titleholders a year later, file progress reports to the court every three months and that its mayor Mzwandile Masina and senior management, ensure compliance with the judgment.
Instead, the municipality has repeatedly asked for the deadline to provide the houses to be extended and were granted by the Supreme Court of Appeal (SCA) until the end of June 2019.
In its latest attempt, the municipality has offered residents houses in nearby Esselen Park by June 30 next year but only in the event unforeseen delays are not experienced and only if funding is received, according to papers filed at the Constitutional Court by the Socio-Economic Rights Institute of SA (Seri), which represents the residents.
Seri executive director Nomzamo Zondo has told the apex court that the residents cannot accept the municipality’s conditions.
According to Zondo, the residents’ plight should have been alleviated 20 years ago when their RDP houses were approved and later built in Tembisa. They were not allocated to the 133 families but to other people not entitled to them.
“The facts on which the claim for damages arises are truly extraordinary. They disclose an appalling catalogue of corruption, mismanagement and disregard for the rule of law,” Zondo states in the residents’ application.
According to the residents, the municipality and its officials either allowed this to happen or were part of a corrupt scheme that enabled it.
The residents have approached the Constitutional Court to challenge North Gauteng High Court Judge Annali Basson’s ruling dismissing their counter application to force the municipality to pay R5 000 a month in constitutional damages from June 2019, which is the market-related rental around Tembisa.
Zondo said the residents were also challenging the high court’s decision to refuse to award them constitutional damages at the SCA.
They will pursue the SCA challenge if the Constitutional Court refuses their leave to appeal directly to it.
“The applicants (residents) accept that, ordinarily, they would have to pursue an appeal to the SCA before approaching this court (Constitutional Court). However, the truly extraordinary facts of this case militate in favour of allowing a direct appeal,” read the papers.
In its heads of argument filed by its counsel Chris Georgiades SC, Hannine Drake and Lerato Phasha last week, the municipality argued that granting R15m in constitutional damages over a 23-month period would unduly punish it and that it has to balance its obligations towards the other 118 informal settlements in its jurisdiction.
The municipality also insists that the 23-month period for which the residents seek constitutional damages should not attract compensation for a variety of reasons, including the Covid-19-enforced lockdown.
It also blames work stoppages on site due to several incidents of Covid-19 infections among the workers, which necessitated a shutdown for disinfection.
Ekurhuleni has told the Constitutional Court that no constitutional damages award has ever been open-ended and future delays that may occur must first be considered.
Oral arguments in the matter will be heard on February 18.