The Supreme Court of Appeal also made an ancillary order that the Municipality had to register the applicants as the titleholders of their respective erven by June 30, 2020. The appeal sought to change the date of implementation of the High Court order from Decemto June 30, 2019. The respondent later appealed to the Supreme Court of Appeal, with the leave of the High Court. The High Court, inter alia, ordered the 1st respondent to provide each of the 1st and 3rd to 134th applicants with a house at Tembisa Extension 25, or at another agreed location, on or before Decemand register the residents as the titleholders of their respective erven by December 31, 2019. The respondents opposed the application but did not dispute any of the applicants’ material allegations. They sought an order compelling the Municipality to provide houses that were to be allocated to them in terms of their successful subsidy applications. The applicants launched an application in the High Court. After some investigations, they discovered that the Municipality had unlawfully given possession of the subsidized houses intended for the applicants, to other residents. However, some of them started receiving utilities accounts for services directed to land on which they did not live. They made efforts for several years to get their land and houses, to no avail. Although they ought to have been given possession and ownership of that stand and the house constructed on it, that did not happen. A particular stand developed with that subsidy in the Tembisa area was matched to each applicant. That was done under the Upgrading of Informal Settlements Programme as provided for in the National Housing Code, 2009. The 1st and 3rd to 134th applicants in Thubakgale I had applied for and were granted a state housing subsidy, some by 1998. Reported by Faith Wanjiku and Bonface NyamweyaĬonstitutional Law - Bill of Rights- right to housing – obligation of the state to provide for adequate housing- failure of the state to provide adequate housing- whether the Municipality’s ‘dummy numbers’ scheme of houses allocation amounted to the failure of the realization of the fundamental rights to access to housing- whether there was breach of the right- whether there were constitutional damages accruing from the state failure- whether the litigants were entitled to another remedy other than constitutional damages- Constitution of the Republic of South Africa, 1996 (The Constitution of South Africa), section 26 and 152 Housing Act, 1997 (The Housing Act), sections 3 (4) (g), 3 (5) (a), and 9 (1) National Housing Code, 2009 (The National Housing Act), section 4 (2).Ĭonstitutional Law - violation of constitutional rights – appropriate reliefs- whether constitutional damages would be appropriate relief in this case- contempt proceedings and declaratory relief as possible alternative remedies- whether the applicants in the counter-application in Thubakgale II merited constitutional damages amounting to R 5000 per applicant for every month after 30 June 2019 that the court order was not complied with- the Constitution of South Africa, section 38.Ĭontempt of Court - contempt of court proceedings- whether the Municipality’s appeal in Thubakgale II and III amounted to an abuse of court process to evade its constitutional obligations- whether contempt of court proceedings could yield a more appropriate remedy where the Municipality had delayed the execution of a court order, thereby effectively failing to comply with it- whether awarding the R 5000 for constitutional damages would have a punishing effect on the Municipality for not complying with a court order- whether the claimed amount was supported by any evidence as to the actual loss suffered by each applicant in Thubakgale II’s counter application.
Mogoeng, CJ & J Jafta, Khampepe, Madlanga, Majiedt, Mhlantla, Theron, Tshiki, JJ Tlaletsi, AJ Thubakgale & Others v Ekurhuleni Metropolitan Municipality & Others ZACC 45
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