THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Non-Reportable

Case no: 125/2018

In the matter between:

EKURHULENI METROPOLITAN MUNICIPALITY
FIRST APPELLANT

EXECUTIVE MAYOR, EKURHULENI MUNICIPALITY
SECOND APPELLANT

CITY MANAGER, EKURHULENI MUNICIPALITY
THIRD APPELLANT

HEAD OF DEPARTMENT, HUMAN SETTLEMENT,
EKURHULENI MUNICIPALITY
FOURTH APPELLANT

and

THUPETJI ALEXANDER THUBAKGALE
FIRST RESPONDENT

EKURHULENI CONCERNED RESIDENTS ASSOCIATION
SECOND RESPONDENT

THE RESIDENTS OF WINNIE MANDELA INFORMAL
SETTLEMENT
THIRD TO 134th RESPONDENT

Neutral citation:  Ekurhuleni Metropolitan Municipality & others v Thupetji Alexander
Thubakgale & 134 others (125/2018) [2018] ZASCA 76 (31 May 2018)

Bench:
Ponnan, Swain and Mbha JJA and Davis and Pillay AJJA

Heard:
2 May 2018

Delivered:
31 May 2018

Summary:
Municipality – right to housing – dates fixed by court for delivery of houses
incapable of fulfilment.

_____________________________________________________________________

ORDER
______________________________________________________________________

On appeal from: Gauteng Division of the High Court, Pretoria (Teffo J sitting as court of
first instance):

1.
The appeal is upheld.
2.
Paragraphs 1.1 and 1.2 of the order of the high court are set aside and substituted
with the following:
‘1.
The first respondent is ordered to:
1.1
provide each of the first and third to one hundred and thirty-fourth applicants (the
residents) with a house at Tembisa Extension 25, or at another agreed location, on or
before 30 June 2019;
1.2
register the residents as the titleholders of their respective erven by 30 June 2020.’
3.
The first appellant shall pay the respondents’ costs, including the costs of two
counsel.

______________________________________________________________________

JUDGMENT
______________________________________________________________________

Ponnan JA (Swain and Mbha JJA and Davis and Pillay AJJA concurring):

[1] On 15 December 2017 and on the application of the respondents, the Gauteng
Division of the High Court (per Teffo J) issued the following order against the first
appellant, the Ekurhuleni Metropolitan Municipality (the Municipality):
‘1.
The first respondent is ordered to:
1.1
provide each of the first and the third to one hundred and thirty-fourth applicants (‟the
residents”) with a house at Tembisa Extension 25, or an another agreed location, on or before
31 December 2018;
1.2
register the residents as the titleholders of their respective erven by 31 December 2019;
1.3
deliver written reports to the residents, through their attorneys, and to the registrar and
the court, not more than three months, from the date of this order, and at three months intervals
thereafter, setting out the timeline for completion of, and the progress which has been made in
providing, the houses referred to in paragraph 1.1 above.
2.
The second, third and fourth respondents are ordered to take all the necessary
administrative and other steps necessary to ensure that the first respondent complies with the
order in paragraph 1 above.
3.
The respondents will establish a Steering Committee which will meet quarterly to
oversee the process of construction. The Steering Committee will include –
3.1
three representatives from the residents, to be chosen from the residents to be chosen
by the residents themselves;
3.2
a representative from the second applicant;
3.3
representatives from the first, fifth and sixth respondents, one of whom shall have direct
responsibility for the construction of the houses to be provided to the residents.
4.
In the event that the respondents fail to comply with their obligations in terms of
paragraphs 1 to 3 above, the applicants may supplement their papers and enroll this application
on 10 days’ notice for further appropriate relief.

5.
The first respondent is directed to pay the applicants’ costs including the costs of two
counsels.’

[2] On 8 February 2018 Teffo J granted leave to the Municipality to appeal against
paragraphs 1.1 and 1.2 of her order. In its notice of appeal filed with this court, the
Municipality contended that the effective dates in those paragraphs should be the 31
December 2021 and 31 December 2022 respectively.

[3] At the hearing of the appeal on 2 May 2018, counsel for the Municipality took the
view that the dates fixed by Teffo J lacked a proper factual foundation. Whether that
was so hardly need detain us, because it came to be accepted by the parties that as the
evidence on record was dated, leave should be granted to the: (a) Municipality to file an
updated progress report with the registrar of this court; and (b) respondents to file a
response thereto, if so advised.

[4] The Municipality states in its updated progress report dated 8 May 2018 that ‘the
project manager   . . . estimates that the houses in Phase 1 will be completed and ready
for the 134 [Respondents] to occupy by 30 June 2019’. In an affidavit filed in response
to the Municipality’s report, the respondents’ attorney persists in the assertion that the
Municipality is ‘more than capable of providing the respondents . . . with the houses to
which they are entitled by the deadline the High Court set: 31 December 2018’. There
is, however, nothing in that affidavit to gainsay the statement by the Municipality’s that
the houses will only be ready for occupation some six months after the date fixed by the
high court. In these circumstances, the dates fixed by the high court, which are
incapable of fulfillment, cannot stand. To that extent the appeal must accordingly
succeed.

[5] The Municipality commendably accepted that, irrespective of its success in the
appeal, it would be liable for the costs of the appeal.

[6] In the result:
1.
The appeal is upheld.
2.
Paragraphs 1.1 and 1.2 of the order of the high court are set aside and substituted
with the following:
‘1.
The first respondent is ordered to:
1.1
provide each of the first and third to one hundred and thirty-fourth applicants (the
residents) with a house at Tembisa Extension 25, or at another agreed location, on or
before 30 June 2019;
1.2
register the residents as the titleholders of their respective erven by 30 June 2020.’
3. The first appellant shall pay the respondents’ costs, including the costs of two counsel.

_________________
V M Ponnan
Judge of Appeal

APPEARANCES:

For First to Fourth Appellants:
C Georgiades (with him Z Ngwenya)

Instructed by:

Tshiqi Zebediela Inc, Kempton Park

Matsepes Attorneys, Bloemfontein

For Respondents:

S Wilson (with him I De Vos)

Instructed by:

Socio Economic Rights Institute, Braamfontein

Webbers, Bloemfontein