Mtolo and Another v Lombard and Others

Mr Alias Mtolo (first applicant) and Mrs Maneheng Mtolo (second applicant) were employed by Mr Theunis Christoffel Lombard (first respondent) and lived with their eight children in a house on property owned by Mrs Maria Helentje Lombard (fourth respondent) in Vanderbijlpark from 2010. On 16 June 2021, the first respondent informed the applicants the property had been sold. On 6 July 2021, the roof and windows of the applicants' house were removed, rendering it uninhabitable. The parties disputed who removed them—the applicants claimed the respondents did; the respondents claimed the first applicant and his brother-in-law removed them themselves to salvage building materials. The applicants and their children were forced to vacate and became homeless, sleeping in the open or in their car, relying on community members for basic necessities like bathing facilities. The children's schooling, including two grade 12 students, was disrupted. The applicants obtained an urgent order from Keightley J declaring the demolition unlawful and requiring alternative accommodation. When this was not provided, they obtained a further order from Antonie AJ on 5 August 2021 requiring the respondents to replace the roof and windows "to make it fit for human occupation" by 10 August 2021, with leave to approach the Court urgently if there was non-compliance. The respondents claimed they complied, but the applicants disputed this, alleging the roof was rudimentary, insecure with bricks on top, posed safety risks, and the house remained unfit for habitation. They approached the High Court urgently pursuant to the leave granted. Dippenaar J struck the matter from the roll on 25 August 2021 for lack of urgency, citing non-compliance with the practice manual on urgent applications. The applicants then sought direct leave to appeal to the Constitutional Court.

• Whether leave to appeal directly to the Constitutional Court should be granted under section 167(6)(b) of the Constitution on grounds of interests of justice
• Whether the High Court erred in striking the matter from the urgent roll for lack of urgency despite it implicating constitutional rights to dignity, housing, and basic education
• Whether the respondents had complied with Antonie AJ's order requiring them to replace the roof and windows 'to make it fit for human occupation'
• The proper interpretation of the order of Antonie AJ—whether it required only replacement of the roof and windows or broader repairs to render the house habitable
• Whether urgent applications implicating fundamental constitutional rights should be struck from the roll for technical non-compliance with practice directives on urgency
• What remedial orders are just and equitable under section 172(1)(b) of the Constitution in circumstances of alleged non-compliance with court orders affecting housing rights

1. Leave to appeal directly to the Constitutional Court granted. 2. Appeal upheld; order of Gauteng Local Division High Court of 25 August 2021 striking application from roll set aside. 3. First and fourth respondents must repair roof of applicants' home at Plot 8, Ardenworld, Vanderbijlpark within seven calendar days. 4. Roof must be repaired to render house fit for human habitation, including repairs to defects necessary to repair the roof. 5. Applicants may take occupation as soon as repairs effected if satisfied. 6. Paragraphs 3 and 5 of Antonie AJ's order of 5 August 2021 continue to apply. 7. If applicants not satisfied, Emfuleni Local Municipality must inspect and report within four calendar days on safety and fitness for human occupation. 8. Applicants' attorneys must file report with High Court and serve on respondents. 9. Costs incurred by Municipality to be borne by first and fourth respondents. 10. Municipality granted leave to apply to High Court if unwilling to comply, giving reasons within three court days. 11. Matter remitted to High Court for supervision of compliance. No order as to costs between the parties.

1. Where an urgent application implicates fundamental constitutional rights (dignity, housing, education) and the facts demonstrate severe ongoing violation of those rights (homelessness, children sleeping in cars, disrupted schooling), courts must not rigidly apply practice directives on the set-down of urgent matters. The clamant need to assist litigants whose rights are severely violated must be balanced against technical compliance with procedural rules. 2. Direct appeals to the Constitutional Court under section 167(6)(b) remain exceptional and a last resort, but will be entertained when facts unequivocally cry out for urgent intervention, particularly where High Courts have erred in striking plainly urgent applications from the roll for lack of urgency. 3. Court orders must be interpreted contextually in light of what was pleaded and placed before the court. An order requiring replacement of a roof and windows "to make it fit for human occupation" is tied to those specific items but extends to defects integral to or connected with the roof repair that affect the safety, health, and welfare of occupants. 4. On motion proceedings involving disputed facts, where a respondent's denial of an applicant's version is untenable or fanciful on an objective analysis of the evidence (including photographic evidence), the court may reject that denial and accept the applicant's version, notwithstanding the general Plascon-Evans rule. 5. Homelessness and the denial of shelter violate the constitutional right to dignity. Even modest homes are entitled to protection as they provide comfort and safety essential to human dignity. 6. Remedial orders under section 172(1)(b) must be just and equitable, which requires consideration of fairness to respondents—they cannot be held liable for matters beyond what they had notice of in the pleaded case. 7. Courts have supervisory jurisdiction to ensure compliance with orders protecting housing rights, and may enlist municipal authorities to inspect and verify compliance, with costs borne by non-compliant parties.

1. The Court noted that being "reduced to having to live in a hall is, in and of itself, downright degrading; it is at odds with human dignity" (para 24). However, the Court clarified this should not be understood to mean that organs of state violate dignity by providing emergency accommodation in halls or tents during disasters—such emergency measures are distinguishable from the degrading circumstances in this case. 2. The Court commented on the severe pressure faced by judges in busy High Court divisions handling urgent courts and motion courts, expressing understanding of these challenges while nevertheless maintaining that systems must not be applied so rigidly as to defeat access to justice (para 30). 3. Madlanga J observed: "a home is more than brick and mortar, it is often a place of comfort [and] safety" (para 42, quoting Mhlantla J), affirming the deeper meaning of "home" beyond its physical structure. 4. The Court noted that remitting the matter to the High Court should not be read to suggest the Constitutional Court is "averse to make orders of remittal" (para 44)—this was simply the appropriate course in these circumstances where the High Court ought not to have struck the matter from the roll. 5. The Court explained that its order essentially sought to enforce compliance with "the High Court's own order granted by Antonie AJ" and therefore was not "foisting this Court's process on the High Court" (para 44). 6. The judgment contains an implied criticism of the practice of striking matters from urgent rolls without giving reasons, as occurred before Dippenaar J (para 13: "we do not know the reasons for this order as no reasons were given for it").

This case is highly significant in South African housing and eviction law for several reasons: 1. **Urgency and Access to Justice**: It reinforces that courts must not rigidly apply practice directives on urgency when fundamental constitutional rights (dignity, housing, education) are at stake. Technical non-compliance with filing deadlines should not automatically defeat plainly urgent applications involving severe ongoing violations of rights. 2. **Constitutional Rights Protection**: The case demonstrates the interconnection between the right to dignity (section 10), access to adequate housing (section 26), and children's right to basic education (section 29). Homelessness is recognized as inherently degrading and violative of dignity, with cascading effects on education and wellbeing. 3. **Enforcement of Court Orders**: The judgment emphasizes the critical importance of compliance with court orders protecting housing rights and provides a robust supervisory mechanism involving municipal inspection and High Court oversight. 4. **Direct Access to Constitutional Court**: The case clarifies the application of the interests of justice test under section 167(6)(b) for direct appeals in urgent housing matters, particularly where High Courts have erred in striking urgent applications from the roll. While such direct appeals should be exceptional and a last resort (per Informal Traders), the Constitutional Court will intervene when facts "unequivocally cry out for urgent intervention." 5. **Interpretation of Court Orders**: The judgment provides guidance on interpreting remedial orders contextually—they must be understood in light of what was pleaded and placed before the court, but should be interpreted purposively to achieve their protective aim (safety, health, and welfare of occupants). 6. **Critique of High Court Practice**: The judgment sounds a strong warning against the "worrying trend" of striking plainly urgent applications from the roll, building on the Court's earlier interventions in Informal Traders and Moko. This is an important statement about access to justice for vulnerable litigants. 7. **Modest Homes and Dignity**: The Court's recognition that even a "modest home" is entitled to protection affirms that dignity does not depend on the grandeur of one's dwelling—"a home is more than brick and mortar, it is often a place of comfort [and] safety."