Machele v. Mailula [2009] ZACC 7

An appeal to the Constitutional Court  against an interim execution order from the South Gauteng High Court, allowing for the eviction of the applicants, while an appeal regarding the merits of the eviction was still pending before the Supreme Court of Appeal. This case dealt with the right to have access to adequate housing.

Date of the Ruling: 
Mar 26 2009
South African Constitutional Court
Type of Forum: 

The dispute in this case consists of two elements and arose when the first respondent purportedly purchased a property, Angus Mansions, in Johannesburg. In the initial action, the first respondent sought the eviction of approximately 300 people who were residing on the property (the applicants). The opposing action called into question the validity of the sale agreement and, consequently, the eviction order.

In November 2008, the High Court confirmed the validity of the sale agreement and ordered the eviction of the applicants. However, the High Court also granted leave to appeal against its findings to the Supreme Court of Appeal (SCA). Consequently, the applicants sought to prevent their eviction until the validity of the eviction order had been confirmed in the SCA. One week later, though, the High Court granted the first respondent an interim execution order, which permitted the initial eviction order to be carried out. The effect of this order was that the applicants would be evicted and rendered homeless, despite the fact that leave to appeal to the SCA had been granted in respect of both the sale agreement and the eviction order. The applicants appealed directly to the Constitutional Court, on an urgent basis.

In December 2008, the Constitutional Court ordered the eviction stayed, pending the outcome of the proceedings in the SCA, but gave no reasons for its finding. In March 2009, in a separate judgement, the Constitutional Court issued the reasons for its prior judgement and unanimously held that an eviction from one’s home always raised a constitutional issue. The Constitutional Court considered that the eviction order was made without regard to the Constitution, in particular to section 26 (right to adequate housing, provisions against illegal/arbitrary evictions) or to the provisions of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 1998 (PIE).  The Constitutional Court declared the High Court’s failure to consider the PIE, ‘inexcusable.The Court agreed that the applicants would suffer irreparable harm if the execution order was carried out and noted in this context that the applicants received housing subsidies and fell into a socio-economic class particularly in need of protection. In contrast, the Court found that the potential harm to the first respondent would be minimal and reparable.  The Court ruled that it was in the interests of justice to suspend the eviction of the applicants. In addition, the Court stated that it would be fair and just to refer the High Court’s  decision to grant leave to execute the eviction order to the SCA to be adjudicated simultaneously with the pending appeal in that Court on the merits of the eviction and the sale agreement.

Enforcement of the Decision and Outcomes: 

The matter before the SCA questioned the validity of the sale agreement and argued for the setting aside of the eviction order for the occupants of the property. The SCA held the sale of the property to be invalid and set aside the orders made by the High Court by granting the relief sought with regards to the sale of the property and setting aside the eviction order.

Significance of the Case: 

The Constitutional Court rejected the decision of the High Court to grant the eviction order solely on the basis of the first respondent’s property rights, while failing to have regard to important constitutional and legislative provisions. The Court emphasized the need to consider the constitutional implications of arbitrary evictions, which are specifically protected against in section 26(3) of the Constitution and the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 19 of 1998 (PIE), and reiterated that the application of PIE is not discretionary. Therefore, all courts are obliged to consider the provisions of PIE in eviction cases, regardless of whether or not it is pleaded before a court.

In deciding whether the interim eviction order was subject to appeal, the Constitutional Court confirmed that it could be appealed and adjudicated, as cases associated with evictions and subsequent homelessness always raised constitutional matters (See, Jaftha v Schoeman and Others; Van Rooyen v Stoltz and Others 2005 (2) SA 140 (CC) at para 34).

Finally, this case illustrates a conflict of constitutional interests between property rights and housing rights and appears to regard the protection afforded by PIE as very wide. As Justice Skweyiya states, “the sudden loss of one’s home is an indignity for anyone, and the protections provided by the Constitution apply regardless of socio-economic status” [para 29].

(Updated June 2015)