Background

The Thubakgale applicants (applicants) live in the Winnie Mandela informal settlement in Tembisa, a township in the Ekurhuleni Municipality (the Municipality). Each applicant applied for a state housing subsidy in different years from 1998. They were granted those subsidies under the Upgrading of Informal Settlements Programme (UISP), as set out in the National Housing Code of 2009. In terms of this programme, the applicants had to be given possession and ownership of the land and houses built on the land through these subsidies. The implementation would be undertaken by the Municipality. However, this did not materialise. Several of the applicants received municipal utility bills for houses they did not occupy and when they approached the Municipality for an explanation, they discovered that the Municipality had unlawfully given possession of the subsidised houses to other non-beneficiaries, even though the houses were initially intended for them and were awarded to them on the national housing database. This was done through a “dummy numbers scheme” where the Municipality allocated a plot of land to more than one beneficiary.

Thubakgale I

In May 2015, the applicants approached the Pretoria High Court (HC) to force the Municipality to provide the houses assigned to them as per their successful UISP subsidy applications. The applicants argued that the Municipality failed to realise their right to access housing and had acted in such a way that one could only reasonably conclude that the Municipality refuses to realise this right. The Municipality denied this, argued that the applicants were “queue-jumping”, and also argued that it lacked resources to provide the applicants with housing. In December 2017, the HC ruled in the applicants' favour and rejected the Municipality’s resource constraint defence, stating that the Municipality failed to give a reasonable explanation for misallocating the stands and adopting a nonchalant attitude in addressing the applicants’ grievances. The approval of the applicant’s housing subsidies made them the lawful beneficiaries of the stands that were assigned to them. As such, the Municipality’s failure to give the applicants possession of the stands and houses was a breach of the right to adequate housing. The Municipality was ordered to provide the 133 applicants with houses at Tembisa Ext 25 or at another agreed upon location on or before 31 December 2018, and to register the applicants as titleholders by 31 December 2019.

Thubakgale II

The Municipality appealed the HC order to the Supreme Court of Appeal (SCA), asking for the deadline to be moved from 31 December 2018 to 31 December 2019. After considering an updated progress report filed by the Municipality setting out the date that the houses would become available, the SCA upheld the Thubakgale I order and also granted an extension for the houses to be provided by 30 June 2019. The Municipality was also ordered to register the applicants as titleholders by 30 June 2020.

Thubakgale III

On 28 June 2019, the Municipality approached the HC yet again for an application to vary the Thubakgale II order by extending the deadline to 1 July 2020, as well as for an order permitting the Municipality to provide flats instead of houses as stated in the Thubakgale I order. This was the revival of litigation that had already been finalised when the SCA pronounced on the matter in Thubakgale II. In response, the applicants brought a counter-application for constitutional damages of R5000 per applicant for every month after 30 June 2019 when the initial order was not honoured. This would be compensation for not being provided housing by 30 June 2019 as per the Thubakgale II court order. The HC dismissed both applications and reasoned that granting constitutional damages would have a punitive effect on the Municipality for not complying with a court order. Contempt of court proceedings were more appropriate in this case, as the Municipality delayed implementing a court order.

Thubakgale IV

The applicants approached the Constitutional Court (CC) in August 2020 for leave to appeal the Thubakgale III order, specifically focusing on the dismissal of their claim for constitutional damages. In a judgment delivered in December 2021 with a 5:4 split between the judges, the Court agreed that the Municipality’s conduct infringed the applicant’s right to access adequate housing in terms of section 26(1) and (2) of the Constitution and that the applicants were corruptly deprived of their houses. The Court was, however, divided on whether an award of constitutional damages was appropriate to remedy the infringement. The majority found that constitutional damages require an aggrieved party to incur an injury and socio-economic rights violations in the form of “non-fulfilment” or “non-enjoyment” (such as the failure to provide housing in this case) do not amount to an injury that can be compensated through constitutional damages. The majority reasoned that the applicants had already obtained court orders in their favour in the HC and SCA, and simply had to force execution of the existing court orders. The majority upheld the Thubakgale III order and advised the applicants to pursue contempt of court proceedings in the HC.

Thubakgale V

In December 2021, the applicants approached the HC for an order declaring Ekurhuleni to be in contempt of court for the Thubakgale I order, as well as a mandatory structural relief to ensure they are provided with houses at Esselen Park, Tembisa as per the housing programme by 31 December 2022. The applicants also asked for an order granting them permission to re-enrol the matter and apply for constitutional damages should the Municipality disobey this court order within a year and also to pursue further relief that will force the Municipality to provide them with houses. Furthermore, they asked for an order holding the Municipality’s Executive Mayor, the City Manager and the Head of Department for Human Settlements in contempt of their obligations to take all administrative and other steps necessary to ensure compliance with the various court orders. At the time when this round of litigation was heard, the Municipality had still not complied with the Thubakgale I order as amended by the SCA. The applicants argued that the Municipality’s con-compliance was in bad faith and wilful. The Municipality accepted that it had not complied with any of the court orders but disagreed that the non-compliance was in bad faith or willful.

In the judgment delivered on 28 August 2023 with a 2:1 split between the judges, the majority found that the jurisdictional requirements needed to hold a party in contempt had been met as there were several court orders against the Municipality, which the Municipality noted, and also accepted non-compliance with the said orders. The court further found that the Municipality had failed to prove that it did not act wilful and in bad faith as it (i) failed to plan and budget for the provision of the houses despite its assertions in the SCA that it would; (ii) it tried to vary the Thubakgale I order to lessen its obligations towards the applicants, (iii) it employed delaying tactics so as not to comply with the court orders. The Municipality was fined R1 330 000 for being in contempt of court, to be paid to the registrar of the HC within one month of the date of the court order. The Municipality was also ordered to provide the applicants with land and housing at Esselen Park, Tembisa by 15 December 2023 and to register them as titleholders by 30 April 2024. The Mayor, City Manager, and the Head of Department for Human Settlements were ordered to take all administrative and other steps to ensure that the applicants receive houses at Esselen Park by no later than 15 December 2023, failing which the applicants may re-enrol the matter for an order holding them in contempt of their respective obligations.

Commentary

The main interest in the Thubakgale case has been the debates raised in the Constitutional Court judgment on constitutional damages and whether this is an appropriate remedy for violations of socio-economic rights. The outcome in Thubakgale V suggests a possibility of more cases being brought against municipalities for constitutional damages claims in matters that affect socio-economic rights such as housing. Thubakgale V certifies that in appropriate cases municipalities will be held accountable and monetarily liable for unreasonable failures to fulfil their duties with regards to socio-economic rights.

The above, however, is not the focus of the commentary provided here. All five judgments show issues of maladministration and corruption in the Municipality, lack of accountability, disregard for the law, disregard for a Municipality’s positive obligations in terms of the Constitution, and disregard for the plight of its most vulnerable residents. There is no sense of accountability for its initial actions via its “dummy number scheme”’ that has created the mess it finds itself in today. The Municipality averred that there was a lack of funding and unforeseen delays caused by limitations in the budget it receives from the Gauteng Provincial Treasury, as well as the National Treasury’s reprioritisation of funding away from housing towards other functions. This is disingenuous reasoning considering that the 133 applicants had already been granted state housing subsidies and their houses were already built but corruptly given to non-beneficiaries by officials in the Municipality.

When one looks through the Municipality’s website and reads the draft annual report 2022/23, there is mention of the Esselen Park: Mega project budgeted for the financial year 2022/23 in the amount of R28 582 000 under the Municipality’s capital programme project for the year 2022/2023. Apart from this information, there is no other readily available data on the Municipality’s plan to accommodate the 133 applicants at Esselen Park. The Municipality’s submissions in Thubakgale V shed a bit more light on its plan – as of July 2022, the Municipality reported that it planned to temporarily accommodate the 133 Thubakgale applicants at Tembisa Ext 25 in partial fulfilment of the Thubakgale I order. The target date was prior to December 2022. The interim placement would be followed by permanent placement at the Esselen Park mega project through the Breaking New Ground housing units envisaged for the 2022/23 financial year. The Esselen Park project report stated that progress had been made with the water and sewer installations and that, subject to the availability of funds, the Municipality would be in a position to complete 133 houses by June 2023. This target date has long passed and the 133 houses for the applicants have not been built. This information, found in the judgment, is not available on the Municipality’s website. The lack of transparency makes it difficult for the residents to hold the Municipality to account.

Some may view a fine of R1,3 million as a drop in the ocean for a Metropolitan Municipality such as Ekurhuleni. There is also the possibility of a constitutional damages claim should the Municipality not meet the deadline of Thubakgale V. What that figure could be is guesswork at this stage, what remains though is that the loss of these amounts to litigation does cause a dent to the Municipality’s finances. Regardless of how “small” the dent might seem, this money could instead be channelled towards complying with the Thubakgale I order or used for delivery of basic services, as opposed to funding frivolous litigation and paying fines that could have been avoided. Although the majority judgment in Thubakgale IV wanted to avoid burdening the taxpayer when it ruled against granting the applicants constitutional damages, unfortunately, the taxpayers are bearing the brunt either way. However, one looks at it, the citizens of Ekurhuleni end up paying the price for the municipality’s maladministration while at the same time, the applicants who have been homeless for over two decades get no justice. Five time's a charm? It remains to be seen.

By Thabile Chonco-Spambo