OPINION | Thubakgale v Ekurhuleni Municipality: The battle for constitutional damages

A group of residents are heading back to court after homes similar to these were allocated to them in the Ekurhuleni municipality were given to someone else. (Photo: Lulekwa Mbadamane)

A group of residents are heading back to court after homes similar to these were allocated to them in the Ekurhuleni municipality were given to someone else. (Photo: Lulekwa Mbadamane)

Twenty-six years after being allocated housing in Ekurhuleni Municipality, a group of residents are still living in squalid conditions after their houses were given away. After several court cases, they are returning to the high court. Section27’s Mila Harding and Zeenat Sujee explain the complexity of the case.

Late last year, the Constitutional Court (CC), in the case of Thubakgale v Ekurhuleni Metropolitan Municipality, released a controversial judgment regarding constitutional damages – monetary compensation granted solely on the basis of a constitutional violation.

In a split verdict, the applicants were refused constitutional damages for the violation of their right to access adequate housing, 26 years after houses had been allocated to them. However, the majority of the Constitutional Court ruled that constitutional damages may still be available in future for the violation of socio-economic rights (such as education, housing, healthcare and water).

The applicants are again returning to the High Court for a remedy to vindicate the persistent violation of their rights – either through a contempt of court order or through constitutional damages if a contempt of court order is unavailable.

The case has a complex history.

Houses given away

The applicants had been allocated stands for housing, and houses were subsequently built for them. However, before the applicants were able to take ownership of the houses, the Municipality gave the houses to other people, either through corruption or extreme negligence, without the knowledge of the applicants.

READ | Crucial housing judgment still outstanding 16 months later, judiciary fails to explain why

Left without housing and forced to live in squalid conditions, the applicants were granted an order by the High Court in 2017 directing the Municipality to provide the applicants with housing before the end of 2018. The Municipality appealed this order to the Supreme Court of Appeal, which extended the due date to June 2019. However, the Municipality still did not comply with this order, leaving the applicants without a remedy for the gross violation of their rights.

The applicants, therefore, returned to the High Court and argued that there was no other relief capable of remedying the breach of their rights other than constitutional damages, which would allow the applicants to temporarily rent decent housing while the Municipality worked on providing them with their own houses. The High Court dismissed this claim.

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The applicants then appealed to the Constitutional Court, resulting in a judgment with three separate decisions.

In the first decision, Justice Majiedt (with three Justices concurring) ordered that constitutional damages should be awarded in the case. In the second, Justice Jafta (with two other Justices concurring), stated that the applicants claim for constitutional damages should fail and that, while constitutional damages may be available in cases concerning the violation of civil and political rights (such as the right to vote), such damages can never be awarded for the violation of socio-economic rights.

Door left open

Finally, in the third decision, Justice Madlanga (with one other Justice concurring) stated that constitutional damages could not be claimed in the particular case because the applicants could notionally launch contempt of court proceedings against the Municipality.

However, Justice Madlanga left the door open to potentially claim constitutional damages for socio-economic rights violations in future cases. In essence, while five Justices dismissed the applicants’ claim for damages in the particular case, six Justices were in agreement that constitutional damages might be an effective remedy for socio-economic rights violations – a majority on this point.

Approximately eight months later, the Municipality has still not provided the applicants with housing. This failure is demonstrative of the contemptuous attitude of the Municipality, which Justice Majiedt described in the following terms:

The state has not only failed to realise the fundamental right to access to housing, but has conducted itself in such a way that one can only reasonably conclude that it refuses to realise this right.

The applicants are thus forced to once again return to the High Court, this time to argue for a contempt of court order and a structural order enabling the applicants to monitor the progress of the Municipality. In addition, the applicants are again seeking constitutional damages as alternative relief if the elements of a contempt of court order cannot be proven.

Section27 has intervened as amicus curiae (a friend of the court) in the most recent High Court case to argue that constitutional damages can be an appropriate and effective relief for the violation of socio-economic rights. Section 38 of the Constitution states that courts may grant “appropriate relief” to anyone whose rights have been infringed or threatened. Section 172 of the Constitution states that courts have the power to make any order that is “just and equitable” when deciding a constitutional matter. The Constitution thus provides courts with wide discretion to determine an appropriate remedy to remedy rights violations and does not preclude constitutional damages from being appropriate relief.

Incorrect decision

Section27 argues that Justice Jafta failed to acknowledge the Constitutional Court’s own precedent regarding the ability of the courts to craft creative remedies for the violation of rights and the importance of the effectiveness of remedies for them to be considered just and equitable. This can include remedies such as supervisory orders that give the courts the power to monitor government’s compliance with a court order. In the same breath, constitutional damages could be used as response to the persistent failure of the state to remedy rights violations in compliance with court orders, but more importantly to ensure that persons inflicted with socio-economic harm would have some redress of some kind.

Section27 further argues that Justice Jafta’s contention that constitutional damages may never be available for the violation of socio-economic rights is in our opinion, incorrect. Justice Jafta’s reasoning appears to be that the socio-economic rights in the Constitution are subject to the state taking reasonable measures, within its available resources, to realise the rights progressively.

READ | OPINION: Qhamani Neza Tshazi – SA’s housing crisis is neither sustainable nor palatable

The courts have interpreted this to mean that when evaluating whether the state has fulfilled its obligations regarding socio-economic rights it must determine whether the steps the state has taken are “reasonable.” For measures to be reasonable, they must, among other factors, be at least capable of fulfilling the right and must include measures to assist the most vulnerable.

Justice Jafta argues that because socio-economic rights are progressively realisable, there can be no damages if the rights have not yet been fulfilled. The only exception to this would be for interferences to already existing entitlements, such as the state taking away housing, food, or water from someone who already has these.

Rights have remedies

Just because socio-economic rights are subject to progressive realisation within available resources does not mean they are not capable of individual enforcement or that constitutional damages may never be available. Justice Jafta’s reasoning is incorrect for several reasons – first, not all socio-economic rights are subject to that proviso – the right to basic education, for example, has been confirmed to be an immediately realisable right capable of direct enforcement.

Second, the Constitutional Court has confirmed that all socio-economic rights are justiciable under the Constitution. While the reasonableness of measures is central to determining whether there has been a violation of rights, this is a separate inquiry to a determination of an appropriate remedy. Such an inquiry occurs after a determination of whether or not there is a rights violation.

Rights must have remedies. The concept of progressive realisation cannot bar the individual enforcement of socio-economic rights through remedies such as constitutional damages in perpetuity. Finally, the Constitutional Court has confirmed on numerous occasions that all rights in the Constitution are interdependent – there is no meaningful right to dignity or substantive equality without food, water or housing.

Rights violated 

Another aspect of the judgments of both Justice Jafta and Justice Madlanga that Section27 differs with is the contention that constitutional damages should only be seen only as a remedy of last resort.

International and domestic case law has established that constitutional damages should not be viewed in that way. In the case of Ngomane v City of Johannesburg, the Supreme Court of Appeal stated that just because common law remedies or remedies in other legislation are notionally available, they should not be chosen over constitutional damages where they are not effective or appropriate.

In Justice Majiedt’s judgment, regarding the possibility of obtaining a contempt of court order, he aptly stated that although this is potentially available relief, it is not an effective remedy for the violation of the rights of the applicants and is thus not appropriate. In this regard, Justice Majiedt stated:

This can never be what the Constitution envisages – that state officials are permitted to evade compliance with court orders for years, assisted by the inevitable delays in High Court and appellate litigation. And so, as the applicants rightly contend, the respondents may or may not ultimately be held in contempt. But it is certain that the residents will be without their houses while the courts decide. They will continue to live in squalor in their shacks with no end in sight.

The courts have repeatedly and emphatically noted that the rights of the applicants in Thubakgale have been egregiously violated by the Municipality. However, the Municipality has failed to rectify this.

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There is a legal maxim that bears repeating in these circumstances: ubi jus ibi remedium – where there is a right, there is a remedy.

The applicants already have a trail of previous court orders with no means of enforcement and a potentially never-ending violation of their basic right to adequate housing, 26 years after it was promised to them. In a country where socio-economic rights violations remain persistent, enhanced and stronger relief is appropriate. A failure to grant constitutional damages in this particular case could render the right to housing or other socio-economic rights effectively unenforceable.

– Legal attorney Mila Harding and attorney Zeenat Sujee are with Section27

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