12 August 2015 – On Thursday, 13 August 2015 at 10h00 the Constitutional Court will hear an application for leave to appeal concerning whether execution orders granted in terms of section 78 of the Magistrates’ Court Act are appealable.
The first respondent, Mr Linda, instituted eviction proceedings against the applicant, Mr Mathale, who had been living on property that was allocated to Mr Linda by the Ekurhuleni Municipality, following the formalisation of the Winnie Mandela Township.
Mr Mathale resided unlawfully on the property in question for approximately 20 years whilst Mr Linda also similarly unlawfully occupied another property in the same area.
In 1999 the Ekurhuleni Municipality decided to formalise the Winnie Mandela Township and allocated official “stand numbers” to its occupants to determine which part of the land they occupied. In the allocation process, Mr Linda was allocated the property occupied by Mr Mathale and Mr Mathale was allocated property elsewhere. However, Mr Mathale refused to vacate the property that had been officially allocated to Mr Linda, stating that he had built a home and family life around the township. Given Mr Mathale’s refusal to vacate the property and the scarcity of land, the portion that he was initially assigned was subsequently offered to someone else.
Mr Linda was successful in his eviction application before the Magistrates’ Court of Tembisa. Mr Mathale lodged an appeal against this judgment. A year later, Mr Linda successfully obtained an execution order to have Mr Mathale immediately evicted notwithstanding the upcoming appeal.
In the High Court (Gauteng Local Division, Johannesburg), Mr Mathale appealed against the execution order. While accepting that section 78 execution orders could be appealable, the Court held that this execution order should not be appealable as it would not be in the interest of justice. Mr Mathale then applied for leave to appeal to the Supreme Court of Appeal, which dismissed his application.
In this Court, Mr Mathale argues that execution orders granted in terms of section 78 should be appealable and that this execution order should be overturned. He argues that if this execution order is given effect, then he and his family will become homeless. He further contends that the High Court and Magistrates’ Court erred in finding that this execution order should have been granted and in deciding that this execution order is not appealable.
Mr Linda, on the other hand, argues that those courts were correct in granting him the execution order and in refusing to hear an appeal against him. He argues that this matter does not raise a constitutional issue and, even if it does, the fact that Mr Mathale has no lawful title to the property should be dispositive of the matter.