Thubakgale and Others v Ekurhuleni Metropolitan Municipality and Others

The applicants are residents of the Winnie Mandela informal settlement in Tembisa who were approved for state housing subsidies from as early as 1998 under the Upgrading of Informal Settlements Programme. Each applicant was matched to a specific stand and house, but the Ekurhuleni Metropolitan Municipality unlawfully allocated those subsidised houses to other people through maladministration and a so‑called “dummy numbers” scheme. Despite repeated engagements, investigations, and multiple court orders (including in Thubakgale I and II) compelling the Municipality to provide houses and register title, the applicants remained without housing for decades. After continued non-compliance, the applicants sought constitutional damages of R5 000 per month per applicant as compensation for the ongoing infringement of their section 26 right of access to adequate housing.

Leave to appeal was granted, but the appeal was dismissed. The respondents were granted leave to adduce further evidence. No order as to costs was made.

This case is a leading authority on remedies for socio-economic rights violations, particularly housing rights under section 26 of the Constitution. It clarifies that constitutional damages are not a default remedy for state failures in housing delivery, even in cases of serious maladministration and prolonged non-compliance. The judgment reinforces the Court’s cautious approach to monetary remedies against the state and emphasises structural and supervisory relief as the primary mechanisms for enforcing socio-economic rights.