Wessel Hamman Trust and Others v Emfuleni Local Municipality and Another ZAGPJHC 731 (13 August 2024)
There exists precedent in our law for awarding constitutional damages to a party where such party’s constitutional rights have been affected. In this judgment, the Court was approached for such an order, the applicant Trust, as owner of a holiday resort, alleging that it suffered constitutional damages because the local authority had failed in its statutory duty to remove illegal occupiers from land adjacent to its resort.
The background facts were briefly as follows: The Trust owned land on which a holiday resort was developed, in what it describes as a peaceful and tranquil setting approximately 35km from Johannesburg. The resort trades on the peace and quiet of the area and the possibility of an escape from city life.
The neighbouring land belongs to the municipality and has been earmarked for the construction of certain low income housing developments. Following one initially successful development two further township developments were planned but have not yet eventuated. These developments were not the subject of the dispute. Rather, what has become problematic, is the illegal occupiers that settled themselves on the municipality’s land since April 2021. There is no infrastructure provided by the municipality in the form of roads, water or storm water systems, sanitation or electricity.
The Trust had sought the intervention of the municipality, demanding that it take action to prevent the further and continued unlawful occupation of the land, for the removal of illegal occupants and the provision of temporary accommodation elsewhere. They received no response. Ultimately the matter landed before the courts and some three judgments were handed down, essentially obliging the municipality to address the illegal occupation on its land.
The municipality however did not comply with its obligations under these orders. This prompted the Trust to bring an application to court for the payment of constitutional damages. In this regard it argued that the value of its property has been reduced because of the municipality’s failure to comply with its statutory obligations to enforce its planning by-laws, the National Building Regulations and Standards Act, 1977, and the Health Act, 1977.
The court rejected the application. It explained that constitutional damages arise in a context where “such an award is necessary to protect and enforce chapter 3 rights*. Such awards are made to compensate persons who have suffered loss as a result of the breach of a statutory right if, on a proper construction of the statute in question, it was the Legislature’s intention that such damages should be payable, and it would be strange if damages could not be claimed for, at least, loss occasioned by the breach of a right vested in the claimant by the supreme law. When it would be appropriate to do so, and what the measure of damages should be, will depend on the circumstances of each case and the particular right which has been infringed.” (Chapter 3 rights refers to the rights listed in Chapter 3 of the Constitution, housing the Bill of Rights.) The reasoning for ordering such damages rests on the consideration that “without effective remedies for breach of constitutional rights, the values underlying and the right entrenched in the Constitution cannot properly be upheld or enhanced.”
The Trust did not provide evidence to support an inference that any of its constitutional rights have been compromised. It is not a case where the Trust was deprived of its property – at best, its complaint was based of nuisance in consequence of neglect of the adjoining property. This gives rise to a cause of action in delict. The failure of a municipality to comply with its own municipal by-laws or other related laws under which property use is authorised and regulated, while unlawful, does not by itself engage fundamental rights.
The claim for constitutional damages therefore failed. The Court notes that it remained open for the Trust to seek other forms of redress.
