CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 117/18
In the matter between:
AWELANI REXON MUHANELWA Applicant
and
FLOYD GCINGCA Respondent
Neutral citation: Muhanelwa v Gcingca [2019] ZACC 21
Coram: Mogoeng CJ, Cameron J, Froneman J, Jafta J, Khampepe J,
Ledwaba AJ, Madlanga J, Mhlantla J, Nicholls AJ and Theron J
Judgment: Froneman J (unanimous)
Decided on: 17 May 2019
Summary: Jurisdiction — no constitutional issue or arguable point of law of
general public importance — not in interests of justice to grant
leave to appeal
Spoliation order — legal requirements for owner to regain
possession — impact of spoliation order on owner’s right of
access to housing
ORDER
2
On appeal from the High Court of South Africa, Gauteng Local Division,
Johannesburg:
1. The application for leave to appeal is dismissed with costs.
JUDGMENT
FRONEMAN J (Mogoeng CJ, Cameron J, Jafta J, Khampepe J, Led waba AJ,
Madlanga J, Mhlantla J, Nicholls AJ and Theron J concurring):
In the end this matter turns on a building dispute that does not involve
constitutional or other legal matters of general public importance. The application for
leave to appeal must be dismissed. “In the end ”, only because there seemed to be a
possibility of wider issues being involved.
The respondent (builder) agreed to do building work for the applicant (owner)
on the disputed property (property). While the building work progressed the owner
vacated the property and the builder took control and occupation of it. The work was
done, but not to the satisfaction of the owner. He sought to retake possession with the
consent of the builder, but this was refu sed. The owner then took matters in his own
hands, obtained an “occupation certificate” and moved back onto the property with his
family. This resulted in a successful spoliation application by the builder in the High
Court,1 against which the owner soug ht leave to appeal, ultimately to this Court after
his application for leave to appeal was dismissed by both the High Court and Supreme
Court of Appeal.
Directions were issued calling for written submissions on two issues:
1 High Court of South Africa, Gauteng Local Division, Johannesburg (High Court).
FRONEMAN J
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(a) What will be legally required for the owner to regain possession of the
property after the spoliation order is given effect to?
(b) Does the spoliation order impact the owner’s right of access to housing
and result in the permanent dispossession or eviction of the owner?
The builder’s answer was short and sweet: the owner can pay him the
outstanding monies owed for the building work, or he can bring court proceedings to
determine the dispute about the monies owed, together with an application for
substitution of the builder’s lien by way of security pending the outcome of the legal
proceedings.
The owner’s response was more roundabout. It involved an argument that the
spoliation order should not have been granted because the provisions of PIE 2 applied.
This is not strictly an answer to the questions posed in the directions. There is, in any
event, artificiality in the submission that the owner here was an unlawful occupier
under PIE. And this Court has approved that it is conducive to clarity to retain the
“possessive focus” of the remedy of spoliation and keep it distinct from constitutional
relief.3 It is only when spoliation proceedings seek to serve as the judicial foundation
for permanent dispossession or eviction in terms of section 26(3) of the Constitution
that alarm bells start ringing.4 That is not the case here.
This is a commercial dispute between private parties. The owner may regain
possession by ordinary legal means in the manner suggested by the builder. There is
nothing on record to suggest that he is no t in a financial position to do so. He
deliberately moved back onto the property after spoliation proceedings were brought.
2 Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE).
3 Schubart Park Residents’ Association v City of Tshwane Metropolitan Municipality [2012] ZACC 26; 2013 (1)
SA 323 (CC); 2013 (1) BCLR 68 (CC) at para 29.
4 Section 26(3) of the Constitution reads as follows:
“No one may be evicted from their home, or have their home demolished, without an order of
court made after considering all the relevant circumstances. No legislation may permit
arbitrary evictions.”
FRONEMAN J
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These are additional factors why it is not in the interests of justice to grant leave to
appeal.
The following order is made:
1. The application for leave to appeal is dismissed with costs.
For the Applicant:
For the Respondent:
S L Mohapi instructed by KMNS Inc
R J Stevenson instructed by Roland T
Eloff Attorneys