Neelam Rahim | neelam@radioislam.co.za

4-minute read
10 September 2023 | 15:38 CAT

Image: Section27

Twenty-six years after being allocated housing in Ekurhuleni Municipality, some residents still live in squalid conditions after their houses were given away. After several court cases, they are returning to the High Court.

The Ekurhuleni Municipality has been ordered to pay a million-33-thousand fine for not providing housing and land for over two decades. In its reaction, the Socio-Economic Rights Institute or SERI and SECTION27, has welcomed the judgment handed down by the High Court of South Africa, Gauteng Division in Pretoria.

The Court held that the Ekurhuleni Metropolitan Municipality (“the Municipality”) is in contempt of a December 2017 court order, in which it was compelled to provide houses and land to the one hundred and thirty-three applicants living in the Winnie Mandela informal settlement by December 2018. SECTION27 intervened as amicus curiae (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.

According to Section27, In 2015, the applicants represented by SERI approached the High Court for assistance after being deprived of housing and land for over 20 years, despite the Municipality allocating these to the applicants as early as 1998. The Court ordered the Municipality to provide them with housing by December 2018.

However, the Municipality successfully appealed the decision before the Supreme Court of Appeal and extended the housing provision deadline to 30 June 2019. A day before this deadline expired, the Municipality approached the High Court to change the court order and grant them an extension until June 2021 to provide housing to the applicants.

The applicants challenged this with a so-called “counter-application”. They requested that constitutional damages (monetary compensation given when constitutional rights are violated) be paid for the continued breach of the applicant’s right to access adequate housing. However, the High Court dismissed the Municipality’s variation application and the applicants’ counter-application for constitutional damages.

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 violating 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 says that courts have the power to make any “just and equitable” order when deciding a constitutional matter. The Constitution thus provides courts with broad discretion to determine an appropriate remedy to remedy rights violations and does not preclude constitutional damages from being appropriate relief.

Listen to the full interview on Your World Today with Mufti Yusuf Moosagie.