CONSTITUTIONAL COURT OF SOUTH AFRICA
Johnson Matotoba Nokotyana and Others v The Ekurhuleni Metropolitan Municipality and Others
Case CCT 31/09 Date of hearing: 15 September 2009
MEDIA SUMMARY
The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.
This is an application by members of the Harry Gwala Informal Settlement, situated on the eastern edge of Wattville Township on the farm Rietfontein, for leave to appeal against the judgment of the South Gauteng High Court, Johannesburg and deals with service delivery at the municipal level.
The applicants approached the High Court for an order against the Ekurhuleni Metropolitan Municipality to install communal water taps, temporary sanitation facilities, refuse removal facilitation and high-mast lighting in key areas, pending a decision by the Member of the Executive Council for Local Government and Housing, Gauteng (the MEC), on whether the settlement would be upgraded to a formal township. In August 2006 the Municipality submitted a proposal for its upgrading to the MEC, but a decision has not yet been taken.
The applicants argued in the High Court that the Municipality was obliged in terms of its statutory obligations, Chapter 12 and 13 of the National Housing Programme (the Housing Code) and the Constitution, to provide the settlement with the basic services demanded.
The High Court found that Chapter 12 of the Housing Code did not apply because the emergency housing requirements as defined in the chapter were not present. It furthermore held that Chapter 13 of the Housing Code was only of application once a decision had been taken to upgrade an informal settlement.
The Municipality accepted the obligation to provide communal water taps for the provision of water in accordance with the basic standards required by Regulation 3(b) of the Regulations Relating to Compulsory National Standards and Measures to Conserve Water. Based on the Municipality’s positive attitude towards the provision of communal water taps and refuse removal services, the High Court ordered it to provide such services. It dismissed the claim for sanitation services and high mast lighting though.
The applicants contend that the High Court failed to sufficiently recognise several constitutional and statutory provisions, but more specifically the right to adequate housing, provided for in section 26 of the Constitution.
As a result of directions issued by this Court, the MEC, the national Minister of Human Settlements (the Minister) and the Director-General of the national Department of Human Settlements (the DG) were joined in this matter.
Before this Court the Municipality contends that the constitutional and statutory provisions relied on by the applicants do not provide for an automatic right of every person, regardless of the circumstances, to receive the services demanded by the applicants. As far as sanitation is concerned, it states that it is able to provide one chemical toilet per ten families. In relation to high mast lighting, it submits that supply is dependant upon permission being granted to connect to the ESKOM grid, and that ESKOM will not likely relax their policy that electricity will not be provided to an area which has not been proclaimed as a formal township.
The MEC, the Minister and DG undertook to engage constructively with the Municipality to resolve the present dispute, and furthermore to supplement the funds of the Municipality in order to provide 1 chemical toilet per 4 households in the settlement. They stress that this relief should not have general application and be restricted to the settlement only, as the respondents are not in a position to extend this solution to all similarly placed informal settlements. They submit that this matter is unusual by reason of the inordinate delay in finalising the application for the upgrading of the settlement.
