Brief Summary

Eviction — Urgent application for leave to appeal — Eviction order granted by High Court pending appeal — Applicants sought suspension of execution order to prevent imminent eviction — Constitutional Court suspended High Court's execution order pending final determination of appeal — Court referred application for leave to appeal to Supreme Court of Appeal for adjudication.

Comprehensive Summary

Summary of Judgment

1. Introduction

This matter came before the Constitutional Court of South Africa by way of an urgent direct access application for leave to appeal. The immediate controversy concerned an interim execution order granted by the South Gauteng High Court, Johannesburg (as renamed), authorising the execution of an eviction order notwithstanding that an appeal on the merits was pending.

The applicants were numerous residents (62 families, with approximately 300 people affected) of Angus Mansions, a block of flats in Johannesburg. The first respondent was Mr William Marofane Mailula, described in the judgment as the purported owner of Angus Mansions. The other cited respondents included the Trust for Urban Housing Finance, J N Bhana & Associates, the Registrar of Deeds, and the City of Johannesburg, though only Mr Mailula was represented in the Constitutional Court and opposed the relief. The Trust for Urban Housing Finance abided the decision of the Court.

The procedural history was central to the Court’s disposition. On 5 November 2008, the High Court (Willis J) granted an eviction order in favour of Mr Mailula and simultaneously granted the applicants leave to appeal to the Supreme Court of Appeal. On 13 November 2008, the High Court further granted Mr Mailula leave to execute the eviction order, authorising eviction on 15 December 2008, despite the pending appeal. On 20 November 2008, the applicants approached the Constitutional Court urgently, contending that (on their understanding of section 20 of the Supreme Court Act 59 of 1959) the interim execution order was not susceptible to appeal to a full bench or to the Supreme Court of Appeal, and that they faced eviction and homelessness before their appeal could be finalised.

The dispute’s general subject matter concerned eviction from homes and the constitutional and statutory safeguards applicable to eviction proceedings, including the obligations arising under section 26 of the Constitution and the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE). Although the merits of the eviction and a related sale dispute were pending before the Supreme Court of Appeal, the Constitutional Court was concerned in this proceeding with the interim execution order and the appropriate interim relief.

2. Material Facts

It was common cause that the applicants resided at Angus Mansions and that an eviction order had been granted against them. The intended eviction would have affected 62 families, including persons with disabilities, elderly persons, and children, and would have impacted approximately 300 people. The planned execution date was 15 December 2008, set by the High Court’s interim execution order.

The High Court had heard two applications together. The first was brought on behalf of the 68th applicant, Philani-ma-Afrika (Philani), seeking to set aside the sale of Angus Mansions to Mr Mailula on the basis that the sale was invalid. The second was Mr Mailula’s application to evict the applicants. The High Court dismissed Philani’s application and then granted the eviction order, treating the eviction as flowing from its finding that the sale was valid.

A dispute existed between the parties as to whether Mr Mailula was in fact the owner of the building and thus entitled to institute eviction proceedings. The Constitutional Court expressly did not decide that ownership dispute, indicating that it was an issue expected to be canvassed in the Supreme Court of Appeal.

A further material aspect of the factual matrix was the stance of the Trust for Urban Housing Finance (the financier in relation to the property). In the Constitutional Court proceedings, the second respondent abided the Court’s decision, which bore on the Court’s assessment of the likelihood of foreclosure and the nature of harm alleged by Mr Mailula.

The Constitutional Court also recorded that, in granting the eviction order, the High Court did not have regard to the constitutional and statutory framework governing evictions, particularly section 26 of the Constitution and PIE. The High Court’s grant of leave to appeal was motivated by its view that the matter was complex, involved novel legal points and competing interests, and that another court might reach a different conclusion; the Constitutional Court understood that these considerations related primarily to the validity of the sale rather than to an eviction enquiry under PIE.

3. Legal Issues

The Court identified that it was required to determine issues arising from the interim execution order, rather than the merits of the underlying eviction and sale dispute. The questions it addressed were confined to three issues.

First, the Court considered in what circumstances an interim execution order is appealable to the Constitutional Court, given the general rule that interim orders are not appealable and the applicants’ reliance on the prevailing understanding of section 20 of the Supreme Court Act 59 of 1959.

Second, the Court considered whether the matter raised a constitutional issue, in light of section 167(3) of the Constitution (limiting the Constitutional Court to constitutional matters and issues connected to decisions on constitutional matters) and the nature of eviction from a home under section 26.

Third, the Court considered whether the applicants had shown irreparable harm such as to justify intervention and the suspension of the execution order, including a comparative assessment of potential harm to both the applicants and Mr Mailula.

These issues largely concerned the application of legal principles to the established or accepted factual position (the existence of an eviction order and execution order, a pending appeal, and the practical consequences of eviction), together with an evaluative assessment inherent in the interests of justice enquiry and the weighing of irreparable harm and balance of convenience.

4. Court’s Reasoning

The Court approached the appealability of interim execution orders through the framework articulated in Minister of Health v Treatment Action Campaign (No 1) [2002] ZACC 16; 2002 (5) SA 703 (CC). It accepted as a general principle that it is ordinarily not in the interests of justice to grant leave to appeal against an interim execution order, because allowing such appeals can defeat the purpose of interim execution (given that the noting of an appeal ordinarily suspends the operation of the order).

At the same time, the Court emphasised that TAC I acknowledged a basis for departure from the general rule where irreparable harm is demonstrated. The “primary consideration” for intervention was whether irreparable harm would result if leave to appeal were not granted, and this required weighing the harm to the applicant against harm to the respondent, as well as considering the balance of convenience.

On the constitutional character of the matter, the Court reasoned that eviction from one’s home will always raise a constitutional matter. It grounded this conclusion in the constitutional protection against arbitrary eviction in section 26(3) and relied on the reasoning in Jaftha v Schoeman and Others; Van Rooyen v Stoltz and Others [2004] ZACC 25; 2005 (2) SA 140 (CC); 2005 (1) BCLR 78 (CC) that measures permitting deprivation of existing access to adequate housing limit the right protected in section 26(1). The Court thus held that the interim relief sought, which would determine whether eviction could occur before the appeal was heard, implicated constitutional rights and therefore constituted a constitutional matter within its jurisdictional compass.

The Court’s assessment of irreparable harm proceeded on the practical consequences of eviction. It held that the applicants had shown that, if evicted, they would suffer irreparable harm through the loss of their homes, and that the indignity and trauma associated with sudden loss of one’s home during litigation was material. The Court rejected the relevance of Mr Mailula’s contention that the applicants were not the “poorest of the poor” and could rent accommodation, holding that constitutional protections apply regardless of socio-economic status, and noting that the availability of alternative accommodation (which the applicants disputed and the Court doubted) would not eliminate the trauma of losing one’s home under these circumstances.

In contrast, the Court found that the harm alleged by Mr Mailula was neither material nor irreparable. Although the High Court had viewed Mr Mailula as risking loss of the building due to inability to pay municipal utilities, and Mr Mailula alleged possible foreclosure and increased renovation costs, counsel for Mr Mailula conceded that foreclosure was highly unlikely given the second respondent’s stance in the Constitutional Court. The Court further reasoned that renovation could not commence until the title dispute was resolved in the Supreme Court of Appeal, and that continued occupation by the applicants (who were paying tenants) could not, on the Court’s analysis, constitute irreparable harm to Mr Mailula in the interim.

A further strand of reasoning related to the role and mandatory application of PIE in eviction cases. The Court stressed that courts must consider PIE in eviction proceedings and described it as enacted to ensure fairness and legitimacy, and to guide courts in resolving competing constitutional rights. It criticised the High Court’s authorisation of eviction without regard to PIE as “inexcusable”, particularly in a context of widespread housing vulnerability. This observation did not determine the merits of the eviction appeal (which was pending in the Supreme Court of Appeal), but formed part of the context in which the Court assessed the propriety of execution pending appeal and the constitutional stakes involved.

On the question of remedy, the Court treated section 38 of the Constitution as empowering a competent court to grant appropriate relief where rights are infringed or threatened. It accepted that the execution order threatened the applicants’ rights. However, it considered that it was undesirable for two courts to be seized with the same litigation, especially since an appeal on the merits was already pending in the Supreme Court of Appeal. The applicants had approached the Constitutional Court because of their understanding of section 20 of the Supreme Court Act, but the Court held that the proper constitutional interpretation of that provision should, in the first instance, be addressed by the Supreme Court of Appeal. For these institutional and procedural reasons, the Court concluded that the appropriate interim remedy was not to determine the execution appeal definitively itself, but rather to suspend the execution order pending the Supreme Court of Appeal’s final determination of the appeal, and to refer the application for leave to appeal against the execution order to the Supreme Court of Appeal to be adjudicated simultaneously, to the extent possible.

5. Outcome and Relief

The Constitutional Court ordered that the High Court’s order of 13 November 2008, granting Mr Mailula leave to execute the eviction against 62 of the applicants on 15 December 2008, be suspended pending the final determination of the appeal in the Supreme Court of Appeal, pursuant to the leave to appeal granted by the High Court on 5 November 2008.

The Court further ordered that the application for leave to appeal against the High Court’s 13 November 2008 execution order be referred to the Supreme Court of Appeal to be adjudicated, to the extent permitted given section 20 of the Supreme Court Act 59 of 1959, simultaneously with the pending appeal in that court.

On costs, the Court ordered that costs are to be costs in the appeal, reflecting the parties’ agreement on this issue.

Cases Cited

Port Elizabeth Municipality v Various Occupiers [2004] ZACC 7; 2005 (1) SA 217 (CC); 2004 (12) BCLR 1268 (CC).

Minister of Health v Treatment Action Campaign (No 1) [2002] ZACC 16; 2002 (5) SA 703 (CC).

Jaftha v Schoeman and Others; Van Rooyen v Stoltz and Others [2004] ZACC 25; 2005 (2) SA 140 (CC); 2005 (1) BCLR 78 (CC).

Fose v Minister of Safety and Security and Another [1997] ZACC 6; 1997 (3) SA 786 (CC); 1997 (7) BCLR 851 (CC).

United Democratic Movement v President of the Republic of South Africa and Others (African Christian Democratic Party and Others Intervening; Institute for Democracy in South Africa and Another as Amici Curiae) (No 2) [2002] ZACC 21; 2003 (1) SA 495 (CC); 2002 (11) BCLR 1179 (CC).

Du Toit and Another v Minister of Welfare and Population Development and Others [2002] ZACC 20; 2003 (2) SA 198 (CC); 2002 (10) BCLR 1006 (CC).

National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others [1999] ZACC 17; 2000 (2) SA 1 (CC); 2000 (1) BCLR 39 (CC).

Livanos v ABSA Bank Ltd [1999] 3 All SA 221 (W).

South African Druggists Ltd v Beecham Group plc 1987 (4) SA 876 (T).

Tuckers Land and Development Corporation (Pty) Ltd v Soja (Pty) Ltd 1980 (1) SA 691 (W).

South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (3) SA 534 (A).

Legislation Cited

Constitution of the Republic of South Africa, 1996 (sections 1(c), 26, 38, 167(3)).

Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998.

Supreme Court Act 59 of 1959 (section 20).

Renaming of High Courts Act 30 of 2008.

Companies Act 61 of 1973 (section 21).

Rules of Court Cited

No specific Rules of Court were cited in the text of the judgment.

Held

The Court held that the execution of an eviction order pending an appeal implicates constitutional rights under section 26 and therefore raises a constitutional matter for purposes of Constitutional Court jurisdiction. Applying the approach in Minister of Health v Treatment Action Campaign (No 1), the Court held that intervention in respect of an interim execution order turns primarily on irreparable harm and the interests of justice, requiring a balancing of harm between the parties.

On the facts before it, the Court held that the applicants faced irreparable harm if evicted, whereas Mr Mailula had not established irreparable harm if execution were suspended. Given that the underlying merits were already before the Supreme Court of Appeal, the Court held that the appropriate relief was to suspend the execution order pending the Supreme Court of Appeal’s final determination, and to refer the execution-order appeal issue to the Supreme Court of Appeal to be dealt with simultaneously to the extent possible under section 20 of the Supreme Court Act.

LEGAL PRINCIPLES

The judgment applied the principle that an interim execution order is generally not appealable because an appeal would ordinarily suspend the interim order and defeat its purpose; however, where irreparable harm would result absent intervention, it may be in the interests of justice to entertain relief against such an order, with the assessment requiring consideration of irreparable harm to both sides and the balance of convenience as articulated in Minister of Health v Treatment Action Campaign (No 1).

It applied the principle that eviction from one’s home engages constitutional protections under section 26 of the Constitution and therefore raises a constitutional matter, including where interim execution would effect eviction before appellate scrutiny.

It reiterated that the application of PIE in eviction cases is mandatory and that courts must consider its provisions when deciding whether an eviction order is just and equitable, given the constitutional context and the statute’s purpose of ensuring fairness and legitimacy in eviction proceedings.

It applied the remedial principle that section 38 of the Constitution empowers courts to grant appropriate relief where rights are infringed or threatened, and that the chosen remedy may properly account for institutional considerations, including avoiding parallel adjudication where another appellate court is already seized with the merits.

Machele and Others v Mailula and Others (CCT 99/08) [2009] ZACC 7; 2010 (2) SA 257 (CC) ; 2009 (8) BCLR 767 (CC) (26 March 2009)