Machele and Others v Mailula and Others

The first respondent (Mr Mailula) obtained an eviction order from the South Gauteng High Court against 68 applicants (families residing in Angus Mansions, a block of flats in Johannesburg) on 5 November 2008. The court granted the applicants leave to appeal to the Supreme Court of Appeal, recognizing the matter was complex with novel points of law and reasonable prospects of success. Despite the pending appeal, on 13 November 2008, Willis J granted Mr Mailula leave to execute the eviction order, authorizing the eviction to be carried out on 15 December 2008. The 62 families facing eviction included 6 people with disabilities, 7 elderly people, 79 children (22 receiving child-support grants), and 31 woman-headed households - approximately 300 people in total. The eviction arose from a dispute over the validity of a sale of Angus Mansions between Philani-ma-Afrika (a section 21 company established by the Gauteng Department of Housing to protect residents' tenure, which had received government housing subsidies) and Mr Mailula. The High Court found the sale valid and granted the eviction order. Significantly, the court granted the eviction order without considering the Constitution (particularly section 26 protecting housing rights) or the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE). Believing the interim execution order was not susceptible to appeal to the full bench or Supreme Court of Appeal, the applicants urgently approached the Constitutional Court on 20 November 2008 to prevent eviction before the appeal on the merits could be determined.

• Whether an interim execution order granted pending an appeal on the merits is appealable to the Constitutional Court
• What circumstances justify granting leave to appeal against an interim execution order
• Whether eviction cases always raise constitutional matters within the Constitutional Court's jurisdiction
• Whether the applicants would suffer irreparable harm if the eviction was executed pending the appeal
• What constitutes 'appropriate relief' under section 38 of the Constitution when housing rights are threatened
• Whether the Constitutional Court should hear the matter when an appeal on the merits was already pending in the Supreme Court of Appeal
• Whether courts must apply PIE in all eviction proceedings

1. The order of Willis J in the Johannesburg High Court on 13 November 2008, granting the First Respondent leave to execute an eviction order against 62 of the applicants on 15 December 2008, is suspended pending the final determination of the appeal in the Supreme Court of Appeal, pursuant to leave granted to the applicants by the High Court on 5 November 2008. 2. The application for leave to appeal against the High Court's order of 13 November 2008 is referred to the Supreme Court of Appeal to be adjudicated, to the extent it may be so adjudicated given the provisions of section 20 of the Supreme Court Act 59 of 1959, simultaneously with the appeal referred to in sub-paragraph 1. 3. Costs are to be costs in the appeal.

1. Eviction from one's home will always raise a constitutional matter because section 26(3) of the Constitution specifically protects against arbitrary evictions and requires court consideration of all relevant circumstances, and any measure permitting deprivation of existing access to adequate housing limits section 26(1) rights. 2. Interim execution orders are generally not appealable because granting leave to appeal defeats the purpose of such orders. However, an applicant can succeed in seeking leave to appeal an interim execution order where: (a) the matter raises a constitutional issue, and (b) the applicant demonstrates that irreparable harm would result if leave is not granted. 3. In determining whether to grant leave to appeal an interim execution order, courts must weigh any irreparable harm to the applicant against any irreparable harm the respondent may suffer if the execution order is overturned. 4. The application of PIE is not discretionary—courts must consider PIE in eviction cases. PIE is of great importance given the continued vulnerability of millions to arbitrary evictions and must be interpreted consistently with constitutional values. 5. Under section 38 of the Constitution, courts have discretion to grant "appropriate relief" when rights in the Bill of Rights are infringed or threatened. Appropriate relief depends on the circumstances and may include suspension of execution orders and referral to another court already seized with related proceedings to avoid undesirable parallel litigation. 6. Loss of one's home constitutes irreparable harm in eviction proceedings regardless of the availability of alternative accommodation or the socio-economic status of those facing eviction. The sudden loss of one's home is an indignity for anyone, and constitutional protections apply regardless of socio-economic status.

1. The Court specifically declined to express any view on the proper constitutional interpretation of section 20 of the Supreme Court Act (regarding appealability of interim orders to the full bench or Supreme Court of Appeal), stating this matter should in the first instance lie with the Supreme Court of Appeal. 2. The Court also expressly declined to express any view on the merits of the appeal serving before the Supreme Court of Appeal regarding the validity of the sale of Angus Mansions and the substantive eviction order. 3. The Court noted the historical context of evictions under apartheid, referencing the frequent widespread forced removals before the Constitution protected all citizens, and contrasting this with current constitutional protections. This historical framing provided context but was not necessary to the decision. 4. The Court observed that while the rationale for non-appealability of interim orders is generally sound, it does not always account for situations where injustice falls on the party seeking to appeal the interim order rather than on the party in whose favor it was granted—acknowledging this case presented such a situation. 5. The Court commented that even if alternative accommodation were available to the evicted applicants (which it doubted), this would not diminish the trauma of losing one's home, especially in the midst of litigation. 6. The Court noted that PIE was enacted with the manifest objective of ensuring evictions take place in a manner consistent with constitutional values, and its provisions must be interpreted against this background—though this general principle was not strictly necessary for the disposition of the interim relief. 7. The Court stated it was "highly unlikely" the second respondent (financier) would foreclose given its indication it would abide the Court's decision, though this was based on counsel's concession rather than independent determination.

This case is significant in South African housing rights jurisprudence for several reasons: 1. It affirms that eviction from one's home will always raise a constitutional matter within the Constitutional Court's jurisdiction, regardless of the socio-economic status of those facing eviction. 2. It strongly reinforces that courts must apply PIE in all eviction proceedings, describing the failure to do so as "inexcusable." This underscores PIE's mandatory nature and its critical role in giving effect to section 26 constitutional protections. 3. It establishes that interim execution orders in eviction cases can be appealed to the Constitutional Court where: (a) a constitutional matter is raised, and (b) irreparable harm would result without intervention—even where such orders are generally not appealable under the Supreme Court Act. 4. It demonstrates the Constitutional Court's approach to exercising appropriate remedial discretion under section 38, particularly in choosing to suspend execution orders and refer matters to the Supreme Court of Appeal rather than determine them itself when another court is already seized with related proceedings. 5. It provides guidance on assessing irreparable harm in eviction contexts, emphasizing that loss of one's home constitutes harm and indignity regardless of the availability of alternative accommodation or the affected persons' socio-economic status. 6. It reinforces the transformative constitutional values underlying housing rights protections, explicitly contrasting the current constitutional dispensation with the apartheid history of forced removals and arbitrary evictions. 7. It clarifies the interaction between different levels of courts when both constitutional issues and civil appeals arise from the same matter, favoring efficient judicial administration while protecting constitutional rights. The judgment is particularly important for its strong language on the non-discretionary application of PIE and its reaffirmation that housing rights protections apply to all, not just the "poorest of the poor."