housing allocation - PAJA - Winnie Mandela informal settlement - North Gauteng High Court

SERI represents 133 residents of the Winnie Mandela informal settlement, located in Ekurhuleni Metropolitan Municipality. The residents have lived in shacks at the settlement without sufficient access to basic services since 1994. All the residents are members of the Ekurhuleni Concerned Residents Association (ECRA) and have been approved and allocated a particular state-subsidised stand, only to find other people living there when they tried to move in. As a result, the residents cannot take possession of the stands allocated to them. By fraud or negligence, those stands have been given to other people, unknown to the residents.

Even though the residents cannot move onto their stands, the municipality is sending them water and electricity bills, and charging them for municipal rates. In addition the Gauteng Department of Human Settlements (GDHS) will not provide the residents with other stands or houses, because the housing subsidy database records them as already having received a stand. The residents are accordingly marked as “inactive” on the housing subsidy database.

Despite the residents’ exhaustive efforts through ECRA to address this with the municipality and the GDHS, these requests have been ignored and the government has refused to provide a logical explanation for the misallocation of the serviced stands and housing subsidies.

In May 2015 the residents, represented by SERI, launched an application in the North Gauteng High Court pursuant to section 8(1)(a)(ii) of the Promotion of Administrative Justice Act 3 of 2000 (PAJA), to compel the municipality and the GDHS to take the necessary steps to grant the residents title to the land where they currently reside, and take necessary steps to upgrade the residents’ housing accommodation where they currently reside in terms of the Upgrading of Informal Settlements Programme (UISP), or provide them with housing opportunities in developments that are close to Winnie Mandela.

Soon after launching this application, the residents were invited to negotiations by the municipality and the GDHS. A memorandum of understanding was reached between the municipality, the province and the residents in terms of which the municipality would deliver a report outlining how it would provide for housing delivery to the residents. The GDHS and the municipality failed to comply with the undertakings given during the negotiations and the residents have continued with court action seeking an order enforcing those undertakings. The matter was set down for 22 May 2017. 

In December 2017, the North Gauteng High Court ordered the municipality to provide each of the residents with a house at Tembisa Extension 25, or at another agreed location by 31 December 2018 and register the residents as the titleholders of their respective erven by 31 December 2019. The municipality took the matter up on appeal and was heard on a preferential basis on 2 May 2018 in the Supreme Court of Appeal. 

The appeal was brought on a  very narrow basis with the Supreme Court of appeal only having to decide whether the deadline set for the provision of the houses constituted appropriate relief. The court did not enter into the merits of whether or not the date ordered by the High court was appropriate but extended the deadline to 30 June 2019 with the city paying the residents’ legal costs.

As of 31 December 2018, the municipality had failed to abide by the High Court order. On 31 January 2019, SERI filed an application of contempt to hold the Ekurhuleni Metropolitan Municipality, the Mayor of Ekurhuleni, the City Manager, and the Head of Municipal Department of Human Settlements to account for failing to enforce the December 2017 High Court order. 

On 28 June 2019, the last working day before it was due to comply with the December 2017 order, the municipality delivered a variation application to request the court to extend, by one year, the period within which it must provide the residents with plots of land and houses which the residents have now been entitled for up to 20 years. 

On behalf of the residents, SERI filed an answering affidavit in the main application and founding affidavit in the counter-application. In it, SERI argued that the High Court has no power to vary orders to correct breaches of constitutional rights after those orders have come into effect. SERI also sought constitutional damages of R5000 per resident for every month from 30 June 2019 until the date on which the municipality provides the residents with the houses to which they are entitled in terms of the December 2017 court order. 

The High Court dismissed the Municipality's variation application as well as the residents' counter-application. SERI, on behalf of the residents, approached the Constitutional Court in an appeal application to seek damages for the ongoing breach of their constitutional rights of access to adequate housing. The matter was argued on 18 February 2020.

On 7 December 2021, the Constitutional Court dismissed the application and rejected the residents' claim for constitutional damages. On 7 December 2021, SERI, on behalf of the residents, instituted contempt proceedings in the North Gauteng High Court. The hearing was heard on 10 August 2022.

• Watch the Constitutional Court hearing here.

Contempt Application

• Resident's Contempt application (20 December 2021) here. 

Constitutional Court

• Constitutional Court judgment (7 December 2021) here.
• Residents' heads of argument (23 December 2020) here.
• Respondents' heads of argument (11 January 2021) here.

Variation Application

• Residents' founding affidavit (25 July 2019) here.
• Residents' answering affidavit (25 July 2019) here. 
• Municipality's variation application (28 June 2019) here.

Contempt Application

• Contempt application (31 January 2019) here. 

Supeme Court of Appeal 

• SCA order (31 May 2018) here.
• Respondents' heads of argument for the SCA (3 April 2018) here. 
• Respondents' practice note for the SCA (3 April 2018) here.

High Court

• North Gauteng High Court judgment (15 December 2017) here. 
• Residents' heads of argument (23 December 2016) here.
• Residents' supplimentary replying affidavit here.
• Municipality's confirmatory affidavit (15 August 2016) here.
• Residents' replying affidavit (4 May 2016) here.
• Municipality's supplementary answering affidavit here.
• Municipality and GDHS's answering affidavit here.
• Founding affidavit here (Part 1) and here (Part 2).
• Notion of motion (29 May 2015) here.