Kabelo Betlane v Shelly Court CC

The applicant (Betlane) was a tenant of residential premises owned by the respondent (Shelly Court CC), paying approximately R1,100 per month. A dispute arose regarding arrear rental which the applicant contested. On 17 October 2007, the High Court granted an eviction order against the applicant with attorney and client costs. The applicant applied for leave to appeal in November 2007. However, on 13 May 2008, while the application for leave to appeal was still pending, the respondent obtained a writ of execution and the applicant was evicted on 23 May 2008. The applicant, an unrepresented lay litigant, made various attempts to challenge his eviction. Subsequently, Bhika AJ, Satchwell J, and Ntsebeza AJ made various orders that effectively barred the applicant from pursuing any further legal proceedings relating to his eviction unless he paid costs previously ordered against him or furnished security for those costs. The applicant then approached the Constitutional Court for direct access to challenge these restraining orders. Shortly before the hearing (29 July 2010), the respondent abandoned all the restraining orders relating to security for costs.

• Whether it is in the interests of justice to grant direct access to the Constitutional Court after the respondent abandoned the restraining orders
• Whether it is in the interests of justice to grant leave to appeal against the eviction order directly to the Constitutional Court
• Whether the writ of execution issued while an application for leave to appeal was pending was lawful
• Whether the execution of the eviction order pursuant to that writ was lawful
• The appropriate costs order in circumstances where pro bono legal representation was provided

The application for direct access was dismissed. The application for leave to appeal was dismissed except in respect of the writ of execution. Leave to appeal against the issuance of the writ of execution was granted and the appeal was upheld. The writ of execution was set aside. The respondent was ordered to pay all disbursements incurred by the Socio-Economic Rights Institute Law Clinic from its appointment to the date of hearing. Each party was ordered to pay its own costs.

Where an application for leave to appeal has been made, Rule 49(11) of the Uniform Rules of Court operates to suspend the execution of the order in question unless the court which gave the order directs otherwise. A registrar has no power to issue a writ of execution while such an application is pending. A writ of execution issued in contravention of Rule 49(11) is unlawful, and an eviction carried out pursuant to such an unlawful writ is also unlawful. The Constitutional Court will not ordinarily grant direct access or hear appeals directly from the High Court without the benefit of consideration by intermediate appellate courts, except in exceptional circumstances where important constitutional issues arise and it is in the interests of justice. Pleadings and notices of motion prepared by unrepresented lay litigants must be construed purposively and compassionately, with substance prevailing over form.

The Court noted that ordinarily an eviction carried out pursuant to an invalid writ of execution amounts to spoliation and the evictee would be entitled to restitution, but where premises are already occupied by a bona fide third party, restitution is impossible and cannot be ordered. The Court observed that eviction by its very nature implicates the right to housing under section 26 of the Constitution and therefore raises a constitutional issue. The Court expressed gratitude to the Cape Bar Council, SERI, and counsel who provided pro bono representation to the applicant. The judgment suggests that judicial officers ought to provide appropriate assistance to unrepresented lay litigants. The Court noted that an application for leave to appeal should have been properly ventilated in the High Court and that various allegations about the conduct of the eviction proceedings and factual disputes regarding rental payments would be better addressed by the Supreme Court of Appeal or Full Court rather than by the Constitutional Court as court of first and last instance.

This case clarifies important principles regarding the suspension of execution of court orders pending applications for leave to appeal. It confirms that Rule 49(11) of the Uniform Rules of Court operates automatically to suspend execution when an application for leave to appeal is made, and that only the court which made the original order (not a registrar) has the power to authorize execution notwithstanding the pending application. The case also demonstrates the Constitutional Court's approach to lay litigants, emphasizing that they should not be held to the same standards as represented parties and that their pleadings should be construed purposively and compassionately. The judgment affirms that eviction from a home always raises constitutional issues relating to the right to housing under section 26 of the Constitution. It also illustrates the Court's discretion regarding mootness - that abandonment of orders does not automatically deprive the Court of jurisdiction to decide constitutional issues of importance, though in this case the security for costs issue was considered moot. The case provides guidance on appropriate costs orders where pro bono representation has been provided and disbursements have been incurred.