Muhanelwa v Gcingca

The respondent builder agreed to do building work for the applicant owner on a property. While the building work progressed, the owner vacated the property and the builder took control and occupation of it. The work was completed but not to the satisfaction of the owner. When the owner sought to retake possession with the consent of the builder, this was refused. The owner then obtained an occupation certificate and moved back onto the property with his family. This resulted in a successful spoliation application by the builder in the High Court. The owner sought leave to appeal to the Constitutional Court after his applications for leave to appeal were dismissed by both the High Court and Supreme Court of Appeal.

• Whether the owner could regain possession of the property after the spoliation order is given effect to
• Whether the spoliation order impacts the owner's right of access to housing under section 26 of the Constitution and results in permanent dispossession or eviction
• Whether the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE) applied to the circumstances
• Whether there was a constitutional issue or arguable point of law of general public importance warranting leave to appeal

The application for leave to appeal was dismissed with costs.

The binding legal principles established are: (1) The spoliation remedy retains its 'possessive focus' and should be kept distinct from constitutional relief relating to housing rights under section 26 of the Constitution. (2) Spoliation proceedings only engage section 26(3) constitutional protections when they seek to serve as the judicial foundation for permanent dispossession or eviction, not in commercial disputes between private parties. (3) A property owner may regain possession after a spoliation order through ordinary legal means, including paying outstanding monies owed or bringing court proceedings to determine disputes about monies owed together with an application for substitution of a builder's lien by way of security. (4) Leave to appeal to the Constitutional Court will not be granted where there is no constitutional issue or arguable point of law of general public importance, and it is not in the interests of justice to do so.

The Court made non-binding observations that: (1) There was artificiality in the submission that the owner in this case was an unlawful occupier under PIE. (2) The Court approved as conducive to clarity the retention of the 'possessive focus' of the remedy of spoliation and keeping it distinct from constitutional relief. (3) The fact that there was nothing on record to suggest the owner was not in a financial position to pursue legal remedies, and that he deliberately moved back onto the property after spoliation proceedings were brought, were additional factors supporting the decision that it was not in the interests of justice to grant leave to appeal.

This case reinforces the Constitutional Court's approach to maintaining the distinct nature of the spoliation remedy from constitutional relief related to housing rights. It clarifies that spoliation proceedings only engage section 26(3) constitutional protections when they seek to serve as the judicial foundation for permanent dispossession or eviction. The judgment confirms that commercial disputes between private parties concerning building work and possession do not automatically raise constitutional issues or points of law of general public importance warranting Constitutional Court intervention. It also provides guidance on the legal means available to property owners to regain possession after a spoliation order, including payment of outstanding amounts or court proceedings with security substitution.