Johnson Matotoba Nokotyana and Others v Ekurhuleni Metropolitan Municipality and Others

Residents of the Harry Gwala Informal Settlement occupied land in the 1980s near Wattville Township in Ekurhuleni. They refused relocation to Chief Albert Luthuli Extension 4. In August 2006, the Municipality submitted an application to the MEC to upgrade the Settlement to a formal township, but after three years no decision had been made. The Settlement had approximately 1,000 households living in squalid conditions with inadequate sanitation facilities and no high-mast lighting for safety and emergency vehicle access. The Municipality provided existing pit latrines. The applicants sought interim basic services pending the upgrade decision: communal water taps, temporary sanitation facilities, refuse removal, and high-mast lighting. The High Court ordered water taps and refuse removal but refused sanitation and lighting, finding Chapters 12 and 13 of the National Housing Code inapplicable until an upgrade decision was made.

• Whether the residents were entitled to temporary sanitation facilities and high-mast lighting under section 26 of the Constitution (right to access to adequate housing)
• Whether Chapter 12 of the National Housing Code (emergency housing assistance) applied to the Settlement's circumstances
• Whether Chapter 13 of the National Housing Code (informal settlement upgrading) imposed obligations before a decision to upgrade was taken
• Whether the Municipality's failure to provide interim services was unreasonable in terms of section 26(2) of the Constitution
• Whether the three-year delay by provincial government in deciding the upgrade application was constitutionally permissible
• Whether the right to adequate housing includes a minimum core content regarding basic sanitation and electricity

1. Condonation granted for late filing of Municipality's written argument. 2. Leave to appeal granted. 3. Appeal dismissed. 4. MEC for Local Government and Housing, Gauteng, ordered to take final decision on the upgrade application within 14 months. 5. MEC ordered to pay applicants' costs in the Constitutional Court. No order as to costs in the High Court (that court's order on costs undisturbed).

1. Where legislation has been enacted to give effect to a constitutional right (here, Chapters 12 and 13 of the National Housing Code for section 26 housing rights), litigants must rely on that legislation or challenge its constitutional validity, rather than bypassing it to rely directly on the constitutional provision. 2. Chapter 12 of the National Housing Code (emergency housing assistance) only applies where the MEC has determined that an emergency exists; it does not apply simply because residents live in poor conditions. 3. Chapter 13 of the National Housing Code (informal settlement upgrading) operates on a phased development process; municipalities are only obliged to provide capital-intensive services in the second phase after a decision to upgrade has been taken, to avoid fruitless and wasteful expenditure. 4. Unreasonable delays by provincial government in deciding upgrade applications for informal settlements violate section 237 of the Constitution (obligation to perform constitutional duties diligently and without delay) and the reasonableness requirement in section 26(2). 5. Courts should not pronounce on the reasonableness or rationality of policies introduced after the High Court judgment and not challenged in those proceedings, as this would make the appellate court a court of first instance on those issues. 6. It is not just and equitable to make orders benefiting only litigants before the court where many others are similarly situated, particularly where government resources cannot extend the same relief to all.

The Court made several observations not strictly necessary for the decision: 1. The Court noted the "desperate plight" of poor communities and that "their patience is often tested to the limit by unfortunate and unjustified delays," emphasizing that "bureaucratic efficiency and close co-operation between different spheres of government and communities are essential." 2. The Court observed that South Africa's history of "land dispossession, institutionalised discrimination and systemic deprivation" means "the need for housing and basic services is still enormous and the differences between the wealthy and the poor are vast." 3. The Court noted the scale of informal settlements nationally: approximately 1.8 million households (7-8 million people) living in squalid conditions, with 502 upgrading projects underway. 4. Van der Westhuizen J commented on the irony of the settlement's name honoring Harry Gwala, an anti-apartheid icon who "dedicated his life to the pursuance of social, political and economic equality." 5. The Court expressed sympathy but restraint: "It is tempting to order the Municipality to accept the assistance offered in order to improve the lives of at least the applicants before this Court... Unfortunately though, it is not so exceptional or unique." 6. The Court acknowledged that "access to housing and basic services is important and relates to human dignity" but did not need to decide whether adequate housing includes a minimum core content or whether basic sanitation and electricity form part of the right. 7. The Court noted that it was unnecessary to decide whether its previous section 26 jurisprudence was correct in not establishing minimum content for the right to adequate housing, as the applicants urged.

This case illustrates the limited but important role of courts in enforcing socio-economic rights, particularly the right to adequate housing under section 26. It demonstrates judicial restraint in not imposing specific service delivery standards on municipalities where legislative schemes exist (Chapters 12 and 13 of the National Housing Code). The judgment reinforces the principle that litigants must challenge legislation if it inadequately realizes constitutional rights, rather than bypassing it to rely directly on the Constitution. Significantly, it addresses administrative delays in government decision-making affecting socio-economic rights, establishing that unreasonable delays (here, three years) violate section 237 (duty to perform constitutional obligations diligently and without delay) and section 26(2) (reasonableness requirement). The case highlights the systemic challenges of informal settlements in South Africa (approximately 1.8 million households, 7-8 million people) and the competing resource constraints facing municipalities. It also addresses concerns about preferential treatment and discrimination where one community receives benefits others do not, refusing to create inequality through litigation-driven relief.