Is Constitutional Damages the Appropriate Relief to Enforce Socio-Economic Rights?

On 7 December 2021, the Constitutional Court handed down a judgment in the case of Thubakgale and Others v Ekurhuleni Metropolitan Municipality and Others[1], dismissing a claim for constitutional damages sought by the applicants on the grounds of an alleged infringement of their constitutional right to access adequate housing by the respondents.

The Constitution of the Republic of South Africa (the "Constitution") affords everyone the right to have access to adequate housing.[2]  In terms of the Constitution, the state has an obligation to take reasonable legislative and other measures, within its available resources, to progressively realise this right.[3]

The core issues that the Constitutional Court had to decide were whether there had been an infringement of the right to access to adequate housing; and if so, whether the applicants were entitled to constitutional damages for such an infringement.

Facts of the case

In 1998, the residents of the Winnie Mandela informal settlement in Tembisa (the "Applicants"), who were beneficiaries in terms of the Upgrading of Informal Settlements Programme, contained in the National Housing Code, 2009 (the "Programme") and were allocated with houses and land.  As beneficiaries of the Programme, the Applicants were due to be given possession and ownership of the houses but they were not given possession or ownership.

It later transpired that the Ekurhuleni Metropolitan Municipality (the "Municipality"), responsible for the administration of the Programme, had given possession of the houses, originally earmarked for the Applicants, to other residents.  The Applicants, displeased with the conduct of the Municipality, approached the courts for relief; and ultimately embarked on protracted litigation which culminated with the decision of the Constitutional Court. 

High Court

The Applicants argued that the Municipality’s conduct amounted to a breach of their right to access to adequate housing, and sought an order compelling the Municipality to provide them with the houses that were allocated to them in terms of the Programme.  The Municipality argued that the Applicants were “queue-jumping”, and that its conduct did not amount to a violation of the latter’s right to access to adequate housing.

The respondent in the matter was the Municipality.  The High Court rejected the Municipality’s defenses that it lacked resources and that it had inherited the problem from its predecessor.  The High Court found in favour of the Applicants and ordered the Municipality to, inter alia, give the Applicants possession of the allocated land and houses by 31 December 2018, register them as titleholders of such houses by 31 December 2019, and include the Applicants in a steering committee which would oversee these processes.

The High Court held further that, in the event of non-compliance by the Municipality by the stipulated dates, the Applicants were entitled to approach it for further appropriate relief.

Supreme Court of Appeal

With the leave of the High Court, the Municipality sought to appeal the timeframes imposed by the High Court in relation to the dates on which the Applicants were to be given possession of the land and houses (21 December 2018), and registered as titleholders of such properties (31 December 2019).

The Municipality argued that the timeframes and dates ordered lacked a proper factual foundation, and submitted an updated progress report in support of such contention. 

The Supreme Court of Appeal ("SCA") upheld the Municipality’s appeal and amended the date for the provision of land and houses to 30 June 2019, and the registration as titleholders to 30 June 2020. 

De Novo Application brought by the Municipality for the variation of the SCA order

With less than 48 hours before the deadlines imposed by the SCA, the Municipality sought an order of extension by another year, and an order declaring that the Applicants be provided with flats, rather than the houses to which they were entitled in terms of the High Court order dated 15 December 2017.

The Applicants opposed the  application brought by the Municipality, and filed a counter-application in which they claimed constitutional damages for the Municipality’s alleged infringement of their constitutional right to access to adequate housing.  The Applicants sought an amount of R5000 per applicant for every month after 30 June 2019 that the order granted by the High court on 15 December 2017 was not complied with.

The Municipality’s application was dismissed on the grounds that the High Court, in the de novo application, did not have the power to revive and extend the operation of an order that had already become final. 

The High Court, in the de novo application, also declined to award the Applicants constitutional damages on the grounds that:

• the Applicants ought to have sought relief by filing an application for contempt of court, which would be the more appropriate remedy in the circumstances;
• the awarding of constitutional damages would have a punitive effect on the Municipality for not complying with the High Court order dated 15 December 2017. The High Court, in this instance, reasoned that the relief sought by the Applicants, if granted, would not have had the effect of vindicating their rights, but would merely have amounted to a monetary compensation, which would have allowed them to house themselves until the Municipality housed them; and
• the amount claimed by the Applicants was arbitrary and not supported by any evidence to show the actual loss suffered by each applicant.

Constitutional Court

At the Constitutional Court, the Applicants sought to directly appeal the decision of the High Court in the de novo application.  The Court therefore had to decide whether it had jurisdiction to adjudicate on the matter and whether it was appropriate to grant direct leave to appeal the High Court’s order in the de novo application. 

The Constitutional Court:

• unanimously found that it had jurisdiction to adjudicate on the matter due to the constitutional issues it raised (in relation to the right to access to adequate housing); and the appropriateness of awarding constitutional damages for the infringement of such a right; and
• granted direct leave to appeal on the basis that the matter established the required exceptional circumstances required for direct appeal from the High Court, particularly the element of it being in the public interest.

However, the Constitutional Court was divided on the following core issues:

• Whether the Municipality’s conduct constituted a violation of the Applicants’ constitutional right to access to adequate housing; and
• Whether constitutional damages constituted appropriate relief for an infringement of the right to access to adequate housing, and for the enforcement of socio-economic rights in general.

With regard to the alleged violation of the right to access to adequate housing:

• the minority outlined the Municipality’s conduct over the years and concluded that there could be no doubt that such conduct “constituted an egregious breach of the Applicants’ rights of access to adequate housing” because of its continued refusal to give effect to the Applicants’ right to access to adequate housing.
• the majority held the view that there could not have been a violation or infringement of the Applicants’ right to access to adequate housing in circumstances where there was no obligation on the state to provide the Applicants with houses on demand or at a specified date.

Where a person approaches a competent court, alleging that a constitutional right has been infringed or threatened, the court is afforded the discretion of granting appropriate relief.[4]  Appropriate relief, which may include constitutional damages, is regarded as relief that is required to protect and enforce the Constitution.[5]  A determination of what constitutes appropriate relief will depend on the facts of each case and involve an evaluation of what other remedies are available.[6]

In relation to whether constitutional damages constituted appropriate relief, the minority held that they did, as they were the only effective remedy in the matter.  The minority reasoned that (i) constitutional damages were the most effective remedy available to the Applicants; and (ii) contempt of court proceedings, contractual relief, statutory remedies and delictual remedies would not properly vindicate the Applicants’ rights and thus could not be regarded as available alternative remedies. 

The minority ultimately held that constitutional damages constituted appropriate relief in the circumstances as they were the only effective remedy in the matter.  However, the minority disagreed with the amount claimed by the Applicants and held that it would have awarded a once-off amount of R10 000 per applicant as constitutional damages. 

The majority unanimously agreed that it was not appropriate to award constitutional damages in this particular case because:

• contempt of court proceedings were available to the Applicants as an appropriate remedy for the Municipality’s non-compliance with the High Court judgment dated 15 December 2017 and that it was open to the Applicants to use contempt of court proceedings as a remedy, which they chose not to, at their detriment;
• the Applicants had already successfully obtained a remedy in the High Court judgment dated 15 December 2017, and reopening that litigation for purposes of altering that final order would offend against our rule of law, which places a premium on finality in litigation, which in turn promotes the principle of certainty; and
• no proper case was pleaded for constitutional damages and there was no proof of any damages, let alone constitutional ones.

The majority was, however, divided on the appropriateness of constitutional damages to enforce socio-economic rights. Whereas Jafta J (Mogoeng CJ and Tshiqi J concurring) discounted the possibility of awarding constitutional damages to enforce socio-economic rights, Madlanga J (Mhlantla J concurring) were of the view that constitutional damages could be awarded, given the right set of facts.

Ultimately, the majority agreed with the High Court’s decision to reject the claim for constitutional damages and dismissed the appeal. 

Conclusion

The decision of the majority to refuse to award constitutional damages was based on the fact that other remedies, such as contempt of court proceedings, were available to the Applicants, and they opted for the wrong one. 

However, not all the Justices concurring with the outcome of the matter agreed that “there is no room for constitutional damages where one is enforcing a socio-economic right” as was stated by Jafta J (Mogoeng CJ and Tshiqi J concurring).[7]

Madlanga J (Mhlantla J concurring) was of the view that the possibility of the appropriateness of constitutional damages to enforce socio-economic rights could not be completely discounted. Madlanga J effectively stated that, had the option of contempt of court proceedings not been available to the Applicants, constitutional damages could have been awarded as the most appropriate remedy. 

With the majority being split on the appropriateness of constitutional damages to enforce socio-economic rights, it remains to be seen whether the Constitutional Court will, in subsequent cases where the litigants have exhausted all other available remedies to enforce their socio-economic rights, award constitutional damages or not.