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Constitutional damages are the appropriate remedy available to vindicate constitutional rights

Thubakgale & Others v Ekurhuleni Metropolitan Municipality & Others [2021] ZACC 45

Case CCT 157 of 2020

Constitutional Court of South Africa

Mogoeng, CJ & J; Jafta, Khampepe, Madlanga, Majiedt, Mhlantla, Theron, Tshiki, JJ; Tlaletsi, AJ

December 7, 2021

Reported by Faith Wanjiku and Bonface Nyamweya

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Constitutional 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).

Constitutional 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.

Contempt 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.

Brief facts:

The 1st and 3rd to 134th applicants in Thubakgale I had applied for and were granted a state housing subsidy, some by 1998. That was done under the Upgrading of Informal Settlements Programme as provided for in the National Housing Code, 2009. A particular stand developed with that subsidy in the Tembisa area was matched to each applicant. Although they ought to have been given possession and ownership of that stand and the house constructed on it, that did not happen. They made efforts for several years to get their land and houses, to no avail. However, some of them started receiving utilities accounts for services directed to land on which they did not live. After some investigations, they discovered that the Municipality had unlawfully given possession of the subsidized houses intended for the applicants, to other residents.

The applicants launched an application in the High Court. 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 respondents opposed the application but did not dispute any of the applicants’ material allegations. 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 December 31, 2018 and register the residents as the titleholders of their respective erven by December 31, 2019.

The respondent later appealed to the Supreme Court of Appeal, with the leave of the High Court. The appeal sought to change the date of implementation of the High Court order from December 31, 2018 to June 30, 2019. That was granted. 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. On June 28, 2019, a few hours before the deadline, the respondents applied to the High Court for an order seeking to extend the deadline by another year. They also sought an order to provide the applicants with flats rather than the houses agreed before. The applicants opposed the application and filed a counter-application for constitutional damages. They sought an amount of R 5000 per applicant for each month after June 30, 2019 that the order of Teffo J was not complied with.


  1. Whether there was a breach of the housing rights by the Municipality due to the state failure to provide the 1st and 3rd to the 134th Applicants with houses.
  2. Whether the litigants were entitled to another remedy other than constitutional damages for the breach of their housing rights.
  3. Whether the Municipality’s appeal in Thubakgale II and III amounted to an abuse of court process to evade its constitutional obligations.

Relevant provisions of the law

Constitution of the Republic of South Africa, 1996

Section 26- Housing

1) Everyone has the right to have access to adequate housing.

2) The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right.

Section 38- Enforcement of Rights

Anyone listed in this section has the right to approach a competent court, alleging that a right in the Bill of Rights has been infringed or threatened, and the court may grant appropriate relief, including a declaration of rights. The persons who may approach the court are-

(a)anyone acting in their own interest;

(b)anyone acting on behalf of another person who cannot act in their own name;

(c)anyone acting as a member of, or in the interest of, a group or class of persons;

(d)anyone acting in the public interest; and

(e)an association in the interest of its members.

Section 152-Objects of local government.

(1)The objects of local government are-

(a)to provide democratic and accountable government for local communities;

(b)to ensure the provisions of services to communities in a sustainable manner;

(c)to promote social and economic development;

(d)to promote a safe and healthy environment; and

(e)to encourage the involvement of communities and community organisations in the matters of local government.

(2)A municipality must strive, within its financial and administrative capacity, to achieve the objects set out in subsection (1).

Housing Act, 1997

Section 3- Functions of national Government

(3)(4) (g) [to] institute and finance national housing programmes;

(3) (5) (a) The Housing Subsidy Scheme;

Section 9- Functions of Municipalities

(1) Every municipality must, as part of the municipality’s process of integrated development planning, take all reasonable and necessary steps within the framework of national and provincial housing legislation and policy to-

(a) ensure that-

(i) the inhabitants of its area of jurisdiction have access to adequate housing on a progressive basis;

(ii) conditions not conducive to the health and safety of the inhabitants of its area of jurisdiction are prevented or removed;

(b) set housing delivery goals in respect of its area of jurisdiction;

(c) identify and designate land for housing development;

(d) create and maintain a public environment conducive to housing development which is financially and socially viable;

(e) promote the resolution of conflicts arising in the housing development process;

(f) initiate plan, co-ordinate, facilitate, promote and enable appropriate housing development in its area of jurisdiction;

(h) plan and manage land use and development.

National Housing Code, 2009

Section 4- Housing Assistance in Emergency Housing Situations

(2) The steering committee should clearly define the reasons, conditions, objectives, scope, resources and any arrangements pertaining to the project and communicate them to all concerned. The municipality should determine the willingness, in principle, of the persons/families to participate in and support the project and (where applicable) to relocate where applicable, and the reaction of the recipient community if applicable, to any planned relocation. The reasons for any conflict pertaining to the project, if any, should clearly be determined by the municipality and steering committee, and a process of mediation and conflict resolution should be entered into where appropriate.

Held by majority

1. The state persistently infringed the applicants’ right of access to adequate housing, despite houses having been allocated to the residents more than two decades before. The residents were presented to be in a deplorable condition with regards to their housing condition.

2. The excuses by the Municipality about budgetary constraints and processes were seen as delaying tactics to continue to deprive the applicants access to adequate housing. That was a violation of section 4 (2) of the National Housing Code that provided for the Municipality’s willingness to emancipate, using the available resources, those in deplorable housing conditions. Section 152 (1) (b) of the Constitution of South Africa also emphasized that one of the roles of the Municipality was to provide services to communities in a sustainable manner. The Housing Act affirmed that in section 9 (1) that outlined the Municipality’s role in the process of integrated development planning where it was expected to take reasonable steps to see to it that the inhabitants had access to adequate housing on a progressive basis, notwithstanding identifying and distributing land for house development.

3. The Municipality’s appeal in Thubakgale II and the last-minute appeal at the Supreme Court of Appeal, amounted to an abuse of the court process intentioned for the respondents’ evading their constitutional obligations on the implementation of the housing plan as ordered in Thubakgale I.

4. The court was under an obligation, as enshrined in section 38 of the Constitution of South Africa, to grant appropriate relief to anyone who sought to enforce a threatened or infringed right in the Bill of Rights. Appropriate relief was required to protect and enforce the Constitution. It could include a declaration of rights, an interdict, a mandamus or relief of a different nature in order to foster the protection and enforcement of the Constitution.

5. Damages would only be punitive where they went beyond what was necessary to compensate the applicants, and what was necessary to compensate the applicants had to be determined by a court. What constituted appropriate relief would self-evidently differ depending on the circumstances of each case. In considering what effective remedy could be there, available alternatives remedies had to be weighed as well. Constitutional damages could still be the most effective remedy amidst other available remedies in a particular case.

6. An alternative remedy could only outweigh constitutional damages if it was found to be effective. Effectiveness, as understood in the light of section 38 of the Constitution of South Africa, was found to be axiomatically a component of appropriateness. Constitutional damages had to be effective relief. A claim for constitutional damages could not be refused on the basis that the applicant notionally had a delictual claim if that remedy would not be deemed effective in the circumstances.

7. The court disagreed with the respondents’ claim that the constitutional damages were not appropriate. The reasons were as follows:

 (a) Contempt proceedings did not preclude an award of constitutional damages; and

(b) it was not effective relief for a breach of rights as foreseen in section 38 of the Constitution of South Africa.

Thus, a contempt of court order would not vindicate the applicants’ rights to access to adequate housing by placing the applicants in the houses that they should have received some twenty years ago, pursuant to their subsidy allocations.

8. Contempt orders in civil law had a dual nature, punitive and coercive. What the applicants sought most was to be provided with the houses to which they were entitled. The court was concerned with the coercive aspect. Relief in civil law proceedings could take a variety of sanctions other than criminal law sanctions. Those could include: declaratory orders, a mandamus, and structural interdicts. Their objective was to compel a party to comply with a court order.

9. Bearing in mind that it was twenty years down the line and that thereafter, three court decisions had been issued, a contempt application was not a sufficient remedy. A coercive order would not help either, given the alarming extent of the Municipality’s intransigence towards providing housing for the applicants.

10. A declaratory relief would confirm the fact of infringement and, to a certain degree vindicate the applicants’ right to housing. It would however fail to provide an effective remedy.

11. A further possibility was a declaratory order coupled with a structural interdict. But that too had proved futile. The order made by the High Court in Thubakgale I included a structural interdict in paragraph 1.3. Yet, the structural interdict was as well breached by the respondent. Hence, it would not provide an effective remedy either.

12. Contractual remedies which might have been capable of providing relief, were not available for the applicants because the relationship between the Municipality and the applicants was not contractual in nature. The Municipality acted only as a developer in terms of national legislation in executing its constitutional mandate.

13. There were no statutory remedies available. Neither the Housing Act nor the National Housing Code provided a right to damages in the event that the granting of a subsidy did not result in a house actually being provided.

14. What remained was delict. The essential requisites for a successful claim in delict were:

(a) harm sustained by the plaintiff;

(b) conduct on the part of the defendant which was wrongful;

(c) a causal connection between the conduct and the plaintiff’s harm; and

(d) fault or blameworthiness on the part of the defendant.

15. In respect of proving harm, a plaintiff had to show that she had suffered patrimonial or pecuniary loss, or an injury to an interest of personality, or had to have experienced pain and suffering. The Aquilian action was the remedy for the recovery of compensation for pecuniary loss resulting from harm to a plaintiff’s person or property.

16. Sentimental damages as a solatium (compensation or consolation) for an injury to the personality were formally claimed under the actio iniuriarum. Pain and suffering, associated with physical injury, were formally redressed by the award of general damages under an action for pain and suffering.

17. The law of delict was largely concerned with patrimonial loss. Instances of non-patrimonial loss were limited to recognised interests like damage to reputation and good name, for which an action in defamation was available. However, the case at hand involved an infringement of a constitutional right. The traditional delictual claim did not elegantly map onto infringements of that nature. Thus, absent of a development of the common law, it did not appear that the applicants had a claim in delict. In any event, delictual relief would clearly not properly vindicate the applicants’ rights, and that, after all, was what the court was called upon to do.

18. Another potential remedy would be the eviction of the current residents from the houses that were built with the applicants’ housing subsidies, so that the applicants could finally be able to enjoy them. However, those rights were no longer absolute, given the legislative position in South Africa – in particular, the provisions of section 26 of the Constitution of South Africa, and the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act that demanded a court order and a consideration of all relevant circumstances before executing it.

19. Constitutional damages were the appropriate remedy to address systematic, pervasive and enduring infringements of constitutional rights as was the situation in that case.

20. The High Court was wrong in establishing that Constitutional damages were punitive in nature because the applicants never sought constitutional damages on those grounds. They did not seek to punish the Municipality, rather to hold it accountable for the infringement of their rights.

21. Constitutional damages were the appropriate relief as they were the only effective remedy in that matter. The applicants had been denied their fundamental right to adequate housing for over two decades. There were three court orders in their favour, confirming not only this right in general, but their specific entitlement to free-standing houses in Tembisa, on the strength of the subsidies allocated to them in accordance with the Upgrading of Informal Settlements programme.

22. The court disagreed that section 26 of the constitution never imposed any obligation directly enforceable against the state to provide the citizens with houses on demand. While it was true that the reasonableness test applied to the question of whether the progressive realisation of rights was achieved, it also compelled the state to act without unreasonable delay. The applicants’ rights as vested in section 26 were violated by the unreasonable delay of the Municipality and this amounted to the possibility of constitutional damages.

23. The test for whether different claims were based on a single cause of action was whether there was a substantial difference in the facta probanda. The facta probanda before Thubakgale I was whether the applicants had received the housing benefits for which they had been approved in terms of the housing policy. The facta probanda associated with the counter-application for constitutional damages was whether there had been a failure to provide the applicants with housing by 30 June 2019, as stipulated in the order of Thubakgale I. While it was true that these sets of facts to be proven did overlap, they were distinct.

24. The court had the power to craft a supervisory order based on the obligation to provide appropriate relief for an infringement of rights in terms of section 38 and the powers to grant an order which was just and equitable as provided for in section 172 of the Constitution of South Africa. A supervisory order was appropriate as a useful mechanism to ensure that organs of state performed their constitutional duties and that the Constitution was upheld.

Per Mogoeng, CJ and J; Jafta and Tshiqi, JJ (Dissenting Opinion)

1. In an appropriate case, constitutional damages could be awarded but not to enforce socio-economic rights. As a matter of principle, there was no room for constitutional damages where one was enforcing a socio-economic right.

2. The applicants did not seek an order evicting the illegal occupiers of houses allocated to them. They sought an order compelling the municipality to give them title to the land they themselves occupied.

3. The appeal was limited to the dismissal of the counter-application. For it to succeed, there had to be persuasion that the High Court in Thubakgale III erred in concluding that constitutional damages were not justified in that case. That raised the questionwhether socio-economic rights could be enforced by means of constitutional damages.

4. Concerning the rights enshrined in section 26 and 27 of the Constitution of South Africa, it was held that in order to determine the nature and content of the right of access to adequate housing, section 26(1) had to be read together with section 26(2). Consequently, section 26(1) did not create a self-standing right that was enforceable against the state. The right of access to adequate housing depended on the provisions of section 26(2) for it to be complete and enjoyable.

5. Section 26 of the Constitution however never imposed a directly enforceable obligation upon the state to provide every citizen with a house immediately. Rather the obligation was to take reasonable legislative and other measures to realise the right of access to adequate housing. It was the open-endedness of this obligation, which ruled out direct enforcement. Without direct enforcement there could be no legal basis for concluding that certain individuals had to be given houses by a particular date.

6. A failure by the state to provide houses to a particular group of people who needed them could not give rise to a claim that those people should be provided with houses immediately or by a particular date. The failure to provide a house could not cause an injury or damage to the individual in need of a house. And without an injury, there could be no claim for constitutional damages. Section 26 also ruled out any direct claims for damages.

7. The first ruling failed to distinguish socio-economic rights from other rights. With regard to other rights, the approach was simply that if a right conferred upon a claimant was breached, she had to be compensated for the violation. Not so in relation to socio-economic rights. A breach of those rights arising from non-fulfilment or non-enjoyment of the rights did not translate into an injury or damage that warranted compensation to be ordered.

8. The objective of socio-economic rights was not to give South Africans access to basic necessities of life within a fixed period of time. But it was to set goals to achieve this purpose over time. It was not lost on the framers of the Constitution that when the Constitution was adopted, millions of people in this country had no access to basic necessities of life and that with limited resources available to it, the state cannot possibly grant access to those necessities at once. The Housing Act and the National Housing Code further manifested that fact that those rights ought to be realised in a progressive manner.

9. The rule of law, which formed part of the Constitution of South Africa, placed a premium on finality in litigation which in turn promoted the principle of certainty. Certainty itself was a component of the rule of law. The twin principles of finality and certainty could not be achieved if courts allowed litigants, in whose favour an order settling the matter was made, to reopen a case and seek a fresh remedy based on the same cause of action.The bedrock of that principle was the once-and-for-all rule which required a litigant to seek all remedies in one action or proceedings.Once a matter reached finality and an order defining the parties’ rights was issued, it was usually expected that there would be compliance with it. If the order was not carried out, the party in whose favour it was granted had to proceed to the phase of execution.

10. It was apparent that constitutional damages were not sought for the breach of the Constitution but for the failure to comply with the order. The damages in question were not sought from the date on which the cause of action arose but from the date following the day on which the High Court in Thubakgale I delivered the judgment until the date on which the municipality delivered houses in terms of that order. To describe the damages sought as constitutional damages was a misnomer.

11. The applicants’ pleading was so defective that it failed to disclose a claim for damages recognised in law. A claim for damages for failing to comply with a court order only was not known in the law. Were such a claim to be recognised, there would be no end to litigation and that would be contrary to the rule of law.

12. Awarding damages in that matter would have treated the applicants differently from those thousands and perhaps millions countrywide. It would be the taxpayer that received the punishment and not the officials responsible for non-compliance with the court order. By parity of reasoning, those damages would have no deterrent effect upon the relevant officials.

13. The High Court ruling that dismissed the applicants’ pursuit of constitutional damages was upheld. It was stated that the applicant had a wide range of remedies and chose the wrong one, constitutional damages. Per Madlanga andMhlantla, JJ (Dissenting opinion) It was not convincing that the applicants had met the stringent test for the award of constitutional damages. Contempt of court proceedings was available to the applicants to enforce the High Court’s order in Thubakgale I. They did not pursue them for reasons that appeared purely to have been for convenience. Hence, constitutional damages were not available for the applicants. Appeal upheld; the respondents were directed to pay the applicants’ costs, including the costs of two counsel.


i. The application for leave to appeal was granted.

ii. The respondents were granted leave to adduce further evidence.

iii. Paragraph 2 of the order of the High Court in Thubakgale v Ekurhuleni Metropolitan Municipality 2018 (6) SA 584 (GP) was set aside and instead:

(a) It was declared that the 1st respondent, the Ekurhuleni Metropolitan Municipality (Municipality), was liable to compensate each of the 1st and 3rd to 134th applicants for the following breaches of their rights under section 26 of the Constitution of South Africa—

(i) the Municipality’s failure to provide the 1st and 3rd to 134th applicants with the plot of land and the house constructed using that applicant’s housing subsidy; and

(ii) the first to fourth respondents’ failure to take the steps necessary to implement the order granted by this court in Thubakgale v Ekurhuleni Metropolitan Municipality 2018 (6) SA 584 (GP).

(b) The Municipality was directed to pay to 1st and 3rd to 134th applicants the sum of R10 000 as and for constitutional damages.

iv. The Municipality was ordered to report back to the Court and to the applicants’ attorneys in writing every three months after the delivery of this judgment on the progress made in settling the applicants permanently in Esselen Park. The Municipality’s report had to include responses to any concerns submitted to them by the applicants in written form.

v. The amount in paragraph 4(b) had to be paid into the trust account of the applicants’ attorneys within one month of the date of that order.

vi. The applicants were granted leave to approach the Court after a year from the granting of that order for a reassessment of the constitutional damages awarded, in the event of further delays on the part of the municipality in fulfilling its constitutional obligations as set out herein.

Relevance to Kenya’s legal system

Article 22 (1) and (2) of the Constitution of Kenya, 2010 (the Constitution), provides for the enforcement of the Bill of Rights. Article 43 talks about economic and social rights. In subsection 1 (b), it points out that every person has the right to accessible and adequate housing, and to reasonable standards of sanitation.

The Housing Act (CAP 117), in section 7B (a) notes that the Corporation may undertake and encourage research and experiment in housing related matters, and undertake and encourage the collection and dissemination of information concerning housing and related matters.

In Satrose Ayuma and 11 Others v Registered Trustees of the Kenya Railways Staff Retirement Benefits Scheme and 3 Others (Petition 65 of 2010), the court held that the 1st respondent was the registered proprietor of the property comprising Muthurwa Estate and that the 1st to 10th petitioners resided in that estate. It was also uncontested that the 1st respondent desired to demolish the Muthurwa Estate and put up modern residential and commercial buildings thereon.As such, the court believed that the dispute in that matter revolved around the issue of forced eviction and whether the 1st respondent was indeed entitled to evict the petitioners from the estate and whether that eviction or intended eviction had violated any of the Petitioners’ rights as alleged. And if in the affirmative, the court had to determine the appropriate reliefs that court could grant in the circumstances.

However, before considering these issues, the court had first to address the preliminary issue raised by the respondents; that the 1st respondent being a private body, could not owe the petitioners any guarantee of fundamental human rights and freedoms, and at the very least that it could not violate the same. It was thereby declared that the 1st respondent violated the petitioners’ rights to accessible and adequate housing contrary to Article 43 of the Constitution but limited to the manner in which the forced evictions from Muthurwa Estate was conducted on or about 12th July 2010.

The South African case clearly sets out a grand judgement that constitutional damages are the appropriate remedy available to vindicate constitutional rights as can be seen in the Kenyan situation in Satrose Ayuma and 11 Others v Registered Trustees of the Kenya Railways Staff Retirement Benefits Scheme and 3 Others (Petition 65 of 2010), Article 22 (1) and (2) of the Constitution of Kenya, 2010, notwithstanding the Housing Act (CAP 117), 2012. Hence it is jurisprudential in the Kenyan legal system.

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