Muhanelwa v Gcingca

The applicant, Mr Muhanelwa, was the owner of a property on which the respondent, Mr Gcingca, a builder, agreed to perform building work. During construction, the owner vacated the property and the builder took control and occupation of it. After completion, the owner was dissatisfied with the workmanship and sought to retake possession with the builder’s consent, which was refused. The owner then unilaterally obtained an occupation certificate and moved back into the property with his family. The builder successfully obtained a spoliation order in the High Court restoring possession to him. The owner’s applications for leave to appeal were dismissed by the High Court and the Supreme Court of Appeal, after which he sought leave to appeal to the Constitutional Court.

The application for leave to appeal was dismissed with costs.

The case reinforces the strict possessory nature of the mandament van spolie and clarifies that spoliation proceedings should generally be kept distinct from constitutional eviction and housing rights analysis. It confirms that not every property dispute implicates section 26 of the Constitution or PIE, particularly in commercial disputes between private parties, and sets limits on when constitutional jurisdiction will be engaged.