Johannesburg - Residents of a sprawling Tembisa informal community are headed to the Constitutional Court to argue for monthly payment of R5000 each from the government as constitutional damages for housing failure.
Winnie Mandela informal settlement residents won an order before North Gauteng High Court Judge Mmonoa Teffo in December, 2017 directing Ekurhuleni Metropolitan Municipality to provide them with land and houses by no later than December 31, 2018.
Ekurhuleni was granted extra six months – until June 30, 2019 – to provide the housing after it sought to appeal against Judge Teffo’s judgment.
Fast-forward to 2021; the municipality was yet to fulfil court orders that would benefit the Winnie Mandela residents who were approved for social housing as far back as 1998.
The Socio-Economic Rights Institute (Seri), a public interest law centre, is now assisting 134 residents to claim R5 000 from Ekurhuleni “for every month that the order of Teffo J has gone and will remain unfulfilled”.
“Constitutional damages are the only form of relief left open to the applicants to remedy a clear, egregious, and ongoing breach of their rights of access to adequate housing that has stretched out for the better part of two decades,” said the residents’ papers filed at the Supreme Court of Appeal.
They have been “unnecessarily required to endure the condition of effective homelessness for the duration of the respondents’ refusal to obey the order of Teffo J”, added their papers.
The R5 000 monthly payment would enable the 134 to afford rent in Tembisa.
Said their papers: “There is no empirical monetary standard against which their loss can be measured, but we submit that R5000 a month, which would indisputably allow the applicants to house themselves in the Tembisa area, constitutes the only appropriate relief now available to them, since none of the other remedies granted by the various courts below have worked.”
The Constitutional Court bid sought to have an unfavourable ruling by North Gauteng High Court Judge Annali Basson set aside. Judge Basson dismissed the residents’ claim for constitutional damages.
But her basis for ruling against the damages claim was flawed, the residents' lawyers will argue before the apex court’s Bench.
“Basson J found that the quantum of damages sought was ’arbitrary’. But there was no basis laid for this conclusion,” said the court papers.
“The damages were calculated on the basis of what it would cost the residents to house themselves in the Tembisa area for so long as the order of Teffo J goes unfulfilled.”
Ekurhuleni will oppose the application. In its papers, the metro said it understood that an agreement had been reached with the residents on temporary housing.
This would happen “in a few months’ time until free-standing houses at Esselen Park are ready in a few years”, said the metro. “As a result, the applicants will be imminently housed.”
Ekurhuleni accused the applicants of overlooking other remedies available to them just to have it slapped with punitive constitutional damages.
“At the level of principle, granting constitutional damages (which would total more than R15 million for the 23-month period) would unduly punish the municipality,” said the metro’s papers.
“But even if this court does find constitutional damages to be appropriate, significant portions of the 23-month period ought not to attract constitutional damages for a variety of reasons, including the municipality’s explanation for the period of delay (eg lockdown).”
The apex court will hear the matter on February 18.