The Analytical Reasoning Defects in Thubakgale.

In Thubakgale & Others v Ekurhuleni Metropolitan Municipality & Others [2021] ZACC 45, 2022 (8) BCLR 985 (CC), the Constitutional Court was confronted with a seemingly straightforward question: are constitutional damages competent and appropriate relief to vindicate an infringement of a socio-economic right? The Court was split in addressing this question. Jafta J's judgment answered the question in the negative because, in his view, socio-economic rights can never attract constitutional damages; whereas, the minority judgment, per Majiedt J, held that constitutional damages may be awarded to vindicate violations of socio-economic rights, provided such damages constitute effective relief in light of the facts. In this article, I argue that, despite the seemingly straightforward question, the Court reasoned itself into a Gordian knot. I identify several reasoning defects that reveal the underlying weakness in the asserted justifications proffered by Jafta J's judgment and to a degree, the minority judgment. I argue that the applicants all have property entitlements that are worthy of constitutional protection under Section 25(1) of the Constitution. I contend that Jafta J's judgment ignores the plain text of Section 38 and Section 172(1)(b) of the Constitution and impermissibly fetters this wide discretion afforded to courts. Jafta J's judgment also conflicts with previous jurisprudence of the Constitutional Court and the Supreme Court of Appeal. Undoubtedly, this has adverse consequences for the rule of law. Furthermore, Jafta J's reasoning creates inequality between litigants who claim relief for socio-economic rights violations and those who seek to vindicate their civil and political rights. Moreover, Jafta J's judgment mischaracterises all socio-economic rights as being subject to progressive realisation, and therefore courts can only examine the reasonableness of the legislative and other measures taken by the state. This is plainly not true as other socio-economic rights are not subject to the reasonableness standard. Jafta J's judgment also follows the long tradition of the Constitutional Court by conflating the right contained in Section 26(1) with the obligations that arise under Section 26(2). It is argued that rights and obligations are analytically distinct and should not be conflated. The starting point should be to give primacy to rights by setting out their entitlements and benefits that are a denouement of specific rights and to then consider the obligations as a secondary endeavour. The progressive realisation caveat qualifies the obligation but not the right. [ABSTRACT FROM AUTHOR]