Thubakgale: Bringing Home the Right to Adequate Housing Against a Recalcitrant Municipality

by | Nov 2, 2023

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About Justin Winchester

Justin is a Rhodes Scholar pursuing a DPhil in Law after having completed his BCL at the University of Oxford. He graduated as the top student in his BCom and LLB degrees from the University of Cape Town. Justin’s research explores ways in which equality and anti-discrimination law can alleviate economic inequality. He also takes interest in administrative and constitutional law, human rights, customary law, and the relationship between private law and fundamental rights.

An August 2023 housing rights decision of the Pretoria High Court in South Africa is the latest in a protracted dispute for the Thubakgale applicants against a municipality, in their battle for homes built and promised to them since 2017. The case is a valuable addition to judicial precedents enforcing positive, programmatic and resource-intensive rights, thereby overcoming over-cautiousness to deference.

The Ekurhuleni Metropolitan Municipality (the Municipality) had allocated State-subsidised houses to individuals who succeeded in their applications for housing, some since 1998. Before the successful individual applicants could occupy the houses, other people in need of housing unlawfully occupied the houses. The applicants pursued court proceedings to fulfil their right to housing.

In December 2017, the Pretoria High Court gave the ‘initial’ order that the Municipality must provide houses to the applicants by 31 December 2018. On appeal, the Supreme Court of Appeal (SCA) pushed that date back to 30 June 2019. Just one day before the SCA’s order was supposed to be fulfilled, the Municipality sought a further extension to 1 July 2020, which was refused by the SCA. (There was a counter-application for constitutional damages that the SCA also refused which went to the Constitutional Court, which Sfiso Nxumalo and Tanweer Jeera have canvassed in a previous blog post.)

In what was the fifth round of litigation in respect of the initial order, the applicants brought contempt of court proceedings against the Municipality. On 29 August 2023, the Pretoria High Court of South Africa ordered officials of the Municipality — in no ambiguous terms — “to provide each of the [134] applicants with land and a house” by 15 December 2023 [27.6]. Thubakgale v Ekurhuleni Metropolitan Municipality (2023)* marked a hard-won victory for the residents and a triumph of housing rights over State recalcitrance.

On account of the Municipality admitting that it had notice of the court order and that it had not complied with said order, it bore the onus of disproving that its failure to comply with the initial order was not wilful or mala fide (in bad faith) [6]. For the majority in a 2-1 split, Justice Phahlane held that the Municipality failed to rebut this presumption. For Justice Phahlane, the Municipality had “not put in place any measures to facilitate the delivery of the houses to the applicants” [11]; “had not, at the time of hearing this application, shown what it had done to obey the court order” [16]; and “[n]othing ha[d] been placed before the court to show that the municipality would ever comply with the court order” [16]. Any further procedural objections brought by the Municipality were excuses and delay tactics. This ongoing defiance by the Municipality emboldened Justice Phahlane to order the construction of the homes and their registration in the name of the applicants’.

Justice Kuny, in dissent, thought that the extremely high threshold for contempt had not been met. Rather, he felt that certain factors beyond the Municipality’s control needed to be accounted for, citing in particular the large-scale vandalism of the housing site in May and December 2021, delays caused by the COVID-19 lockdown restrictions, and the lack of funding by the provincial treasury [48]. In Justice Kuny’s view, the vandalism (2021) and pandemic restrictions (March 2020) occurred long after the date by which Municipality was supposed — and had itself proposed — to fulfil the initial order (June 2019).

As to resource scarcity, this is undoubtedly an important concern. But, as argued by the applicants, the Municipality cannot rely on its own failure to plan and budget to evade their positive duties under the Constitution. Since the landmark decision in Grootboom, the duty contained in section 26(2) of the Constitution — to progressively realise the right to adequate housing — requires there to at least be a plan aimed at realising the right. On this, Justice Phahlane was clear: there was none. The State had failed to fulfil this most primary and basic aspect of the duty. As a result, Phahlane J’s decision ‘brings home’ the constitutional vision of accountable governance by taking seriously the commitment to “achieve the progressive realisation of the right”.

There are two other notable points. First, the case highlights the significance of procedural rules for rights realisation: the shifting of the burden of proof required the State to foreground its reasons for non-compliance, which Justice Phahlane rightly approached with a critical eye. Secondly, the case clarifies that constitutional damages can in principle be brought for the violation of socio-economic rights under the Constitution’s rubric of “appropriate relief” for alleged infringements with rights. In terms of Justice Phahlane’s order, the applicants are entitled to constitutional damages (to be quantified at a later date), should the Municipality fail to provide the applicants with houses by the 15 December 2023 deadline.

*The judgment was marked as not reportable by the Court. As such, there is no digital transcription.

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