After years of non-compliance with court docket orders, the municipality of Ekurhuleni has discovered itself within the Constitutional Courtroom as residents of the Winnie Mandela casual settlement demand compensation after they by no means acquired the RDP homes for which they have been authorized in 2000.
On Thursday, 18 February the Constitutional Courtroom heard an software for depart to enchantment in opposition to a judgment dismissing the claims of 133 residents of Winnie Mandela casual settlement for constitutional damages from the Ekurhuleni Metropolitan Municipality for the breach of their rights of entry to sufficient housing.
The Thubakgale and Others v Ekurhuleni Metropolitan Municipality and Others case dates again to 1998 when the 133 residents utilized to obtain Reconstruction and Growth Programme (RDP) homes. Their software was authorized in 2000.
So far, they nonetheless haven’t acquired homes and have been residing in shacks with out operating water, electrical energy or correct sanitation although subsidies have been paid to the Ekurhuleni municipality to construct their homes.
The homes that have been constructed and registered within the names and municipal accounts of the 133 residents are actually being inhabited by different individuals. Along with the Ekurhuleni Involved Residents Affiliation they’ve been attempting to interact with the Division of Human Settlements, the Presidency in addition to the Ekurhuleni municipality to rectify the problem, however to no avail.
The matter went to the North Gauteng Excessive Courtroom, the place it was submitted that the municipality had breached the residents’ proper to housing assured in part 26 of the Structure. The court docket ordered the municipality to offer the residents “with a home at Tembisa Extension 25, or at one other agreed location, by 31 December 2018 and to register the residents as titleholders by 31 December 2019”.
The municipality accepted it was in breach of the residents’ proper, however contended that the deadlines set have been too stringent and took the matter to the Supreme Courtroom of Attraction (SCA), asking that deadlines be moved to 31 December 2021 for the supply of the homes and 31 December 2022 for the registration of residents as titleholders.
The SCA didn’t agree and as a substitute made the dates to be complied with earlier, ruling that the homes have been to be delivered to the residents by 30 June 2019 and registration was to happen by 30 June 2020.
On 28 June 2019 the municipality utilized for an extension for the supply of the homes to 30 June 2020 and the date of registration to 30 June 2021. It additionally modified its endeavor from delivering homes to delivering “stroll up homes” (residences).
The residents opposed this and introduced an software of constitutional damages within the type of R5,000 per particular person monthly till the municipality delivers their homes.
The excessive court docket discovered in opposition to the municipality and dismissed its software in addition to the residents’ declare for constitutional damages, and the residents then introduced the matter earlier than the Constitutional Courtroom to enchantment in opposition to the dismissal of constitutional damages.
Representing the residents, advocate Stuart Wilson made the case that, “It’s not nearly patrimonial loss… it’s every single day waking up chilly, it’s every single day strolling to the faucet to pour chilly water to clean, it’s every single day having to purchase the paraffin, it’s every single day strolling previous the home you have been alleged to be given 10 years in the past and seeing how snug individuals are in there, and it’s 1,000,000 different indignities, minor frustrations and resentments, that’s the breach of the constitutional rights on this case.”
Whereas the justices of the Constitutional Courtroom mentioned they have been eager for the residents to obtain housing as per the Structure, they questioned Wilson on the affect the damages would have on the general public purse over and above the supply of homes.
They mentioned the damages wanted to be weighed in opposition to the pursuits of individuals within the municipality who would not have housing and the way the supply of these homes can be affected and requested whether or not Wilson shouldn’t be pursuing a supervisory order as a substitute.
Wilson argued that in mild of the repeated failures of the state to abide by the excessive court docket and SCA’s orders a damages declare was justified and the suitable treatment. He did, nevertheless, concede that it was for the Constitutional Courtroom to resolve the quantum of the damages.
Advocate Chris Georgiades, representing the Ekurhuleni Municipality, mentioned that the residents had been “unreasonable” of their engagements and have been continually “shifting the goalposts”, because the municipality had conceded it had breached its duty to offer them with housing.
Georgiades mentioned there was no have to additional institute a “punitive” declare for constitutional damages, notably in mild of the budgetary constraints and affect of lockdown the municipality was going through.
He mentioned that imposing constitutional damages would make the municipality’s different service supply obligations much more troublesome to ship on.
He mentioned that the residents had suffered no patrimonial loss and that they have been in search of to get a “windfall”.
Justice Steven Majiedt requested: “Mr Georgiades, can I simply test with you, has the municipality ever budgeted for the homes for these candidates?”
Georgiades answered that the municipality had mentioned it will embrace the homes in one among its housing tasks. He mentioned there was no particular budgeting for the 133 residents however that the municipality had tried to incorporate them in a housing challenge, most of which was made up of flats.
Justice Chris Jafta mentioned he was troubled by that response and requested: “Why would the municipality not price range for assembly that duty? Why would the candidates be included in another housing tasks? I don’t perceive that. Until from the phrase go the municipality by no means meant to adjust to that order.”
Justice Mbuyiseli Madlanga mentioned: “As a result of municipal bungling, and who is aware of, possibly worse, the candidates didn’t get the housing that they need to have gotten a very long time in the past.”
“If the cash that had been allotted for the candidates had been used for the candidates, the respondents wouldn’t be discovering themselves on this state of affairs,” mentioned Justice Leona Theron.
Justice Majiedt mentioned the truth that a number of the candidates had since died was a tragic reminder that some won’t ever have their socioeconomic rights vindicated whereas nonetheless alive.
Judgment was reserved. DM/MC