Litigation: Shack dwellers fail in bid for constitutional damages

The Constitutional Court has ruled (five judges to four) against awarding constitutional damages to about 130 residents of an informal settlement. The residents of the Winnie Mandela informal settlement have been litigating for years against the Ekurhuleni municipality and its officials, reports GroundUp. They were allocated sites and RDP houses in 1998, which they say were then given to others in a corrupt process. They secured a court order, compelling the municipality to provide them with housing within a certain timeframe, but the municipality did not comply.

They sought an order for constitutional damages totaling about R15m from the Gauteng High Court (Pretoria) but were unsuccessful. They then appealed to the Constitutional Court. In the main judgment handed down this week, Judge Chris Jafta (with Judges Mogoeng Mogoeng and Zukisa Tshiqi concurring) said as a matter of principle, constitutional damages could not be awarded to enforce socio-economic rights. Jafta conceded that the matter had a ‘long sad history, permeated by deplorable conduct on the part of the municipality'. However, he said the mere existence of a right under the Constitution did not give rise to a positive obligation on the state to provide housing on demand. He said the applicants should have applied for a contempt of court order when the municipality did not comply with the order of the lower court. Or they should have sought eviction proceedings against the illegal occupants of their houses.

Judge Mbuyiseli Madlanga (with Judge Nonkosi Mhlantla concurring) agreed that the application could not succeed. In a separate judgment, they reiterated a previous ruling in the Constitutional Court that constitutional damages could only be awarded ‘if they were the most appropriate remedy available to vindicate constitutional rights’. But Judge Steven Majiedt (with Judges Sisi Khampepe, Leona Theron and Pule Tlaletsi concurring) took the opposite stance, notes GroundUp. ‘All the facts demonstrate poor governance at a local level and appalling levels of maladministration which continue to plague the residents of Winnie Mandela informal settlement. And there is no end in sight. Twenty years and three court decisions later, it would provide cold comfort to suggest that a contempt of court application is the answer,’ he said. Majiedt said it was also unlikely that eviction proceedings would be successful. He said it was unquestionable that constitutional damages were the appropriate remedy in this case, and he would have awarded a once-off amount of R10 000 per applicant ‘as a token’ to acknowledge the harm suffered and avoid a situation where the public purse was not drained entirely.

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