Mr Nthome Steve Mathale had occupied stand 8702 in Winnie Mandela Park, Tembisa since 1994, where he built a home and lived with his family for nearly 20 years. During a municipal formalisation process, the Ekurhuleni Metropolitan Municipality allocated the same stand to Mr July Janson Zenzele Linda, while offering Mr Mathale alternative accommodation in Esselen Park, which he refused. Mr Linda obtained an eviction order against Mr Mathale under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE). Mr Mathale appealed the eviction order. While that appeal was pending, Mr Linda successfully applied in the Magistrates’ Court for an execution order under section 78 of the Magistrates’ Court Act to enforce the eviction pending appeal. Mr Mathale appealed the execution order, but the High Court dismissed the appeal, holding it was not in the interests of justice to entertain it. Applications to the Supreme Court of Appeal failed, prompting an appeal to the Constitutional Court.
Condonation and leave to appeal were granted. The appeal was upheld. The High Court order was set aside and replaced with an order upholding the appeal and setting aside the Magistrates’ Court execution order. All cost orders in the Magistrates’ Court and High Court were set aside, and no costs were awarded in any court.
The case clarifies that execution orders under section 78 of the Magistrates’ Court Act are appealable where they are final in effect, particularly in eviction matters. It strengthens procedural protection against eviction and reinforces the constitutional importance of housing, dignity, and protection from irreparable harm. The judgment guides lower courts on the correct test for appealability and underscores judicial sensitivity in eviction-related disputes.