Machele and 67 Others v William Marofane Mailula and Others  ZACC 7 (26 March 2009) The Constitutional Court of South Africa held that eviction will 'always' be a constitutional matter. The court further held an interim execution order for eviction was appealable where irreparable harm would result, were leave not granted. The applicants established irreparable harm largely on the basis that eviction involves the indignity and trauma of losing one's home.
In November 2008, the South Gauteng High Court in South Africa made a series of orders in relation to premises known as Angus Mansions ('the premises'). The premises were occupied by 62 families (the applicants) and ostensibly owned by the first respondent Mr William Mailula ('the respondent'), although this issue is still to be determined.
On 5 November 2008, the High Court granted an eviction order in favour of the respondent. Amongst those to be evicted were six people with disabilities, seven elderly people, 79 children (22 of these in receipt of state child support grants) and 31 woman-headed households. The High Court made further orders permitting the applicants leave to appeal to the Supreme Court of Appeal.
On 13 November 2008, the High Court granted the respondent leave to execute the eviction order ('the interim execution order') on 15 December 2008. This interim execution order was made even though the applicants had appealed the eviction order.
On 20 November 2008, the applicants appealed the interim execution order to the Constitutional Court of South Africa. The appeal was made to the Constitutional Court because the applicants believed interim orders could not be appealed to the Supreme Court of Appeal.
A hearing was held in the Constitutional Court on 3 December 2008. At this hearing the Court ordered that the interim execution order be suspended pending the applicants appeal to the Supreme Court of Appeal. The reasons for this decision were handed down on 26 March 2009.
The Constitutional Court noted 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 referred to the High Court's failure to consider the PIE as 'inexcusable.'
The Constitutional Court identified 3 issues to be considered in the appeal: whether an interim execution order could be appealed; whether a constitutional issue had been raised; and whether the applicants could establish they would suffer irreparable harm.
The Court noted that in general it is not in the interests of justice for a litigant to be granted leave to appeal an interim order of execution. The decision of Minister of Health v Treatment Action Campaign (No 1) established that, to be granted leave to appeal an interim order of execution, the applicant would need to show irreparable harm would result were leave not granted.
As to whether the matter raised a constitutional issue, the Court referred to a past in which Parliament made laws which discriminated against entire communities and involved the widespread removals of people from one area to another. The Court noted that the Constitution specifically protects against arbitrary evictions and stated 'an eviction from one's home will always raise a constitutional matter.' Accordingly the relief sought by the applicants was held to be a constitutional matter.
In relation to the issue of 'irreparable harm', the respondent argued the applicants were not the 'poorest of the poor' and would be able to immediately find other premises to rent following eviction. The Court dismissed this argument on the basis that the Constitution applied regardless of socio-economic status. In any event the court noted that the applicants were recipients of housing subsidies and therefore were a group of society in need of protection. Finally, the Court referred to the indignity and trauma of losing one's home, aside from the issue of whether alternative premises were available.
The respondent argued he would suffer irreparable harm if the interim execution order were to be suspended. He contended a utility debt to the City of Johannesburg (fifth respondent) would result in possible foreclosure, however the Court found it was unlikely this would occur. As such, the harm to the respondent would be both minimal and repairable. Ultimately the interim execution order was suspended and the decision granting leave to execute the eviction order was referred back to the Supreme Court of Appeal.
Relevance to the Victorian Charter
The Victorian Charter does not contain explicit provisions about the right to adequate housing or about arbitrary or illegal evictions, as found in the South African Constitution and the PIE. Nonetheless, in circumstances where vulnerable people are to be evicted (similar to the circumstances above), the Charter does contain provisions which may be engaged by eviction processes, including the right to life (s 9), the right of a person not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with (s 13) and the right to protection of families and children (s 17).
It is also notable that, in their recent Concluding Observations on Australia, the UN Human Rights Committee identified that the fact of homelessness itself raises significant human rights issues, including in relation to the rights to equality and non-discrimination, enshrined in arts 2 and 26 of the ICCPR and s 8 of the Victorian Charter.
The decision is available at http://www.saflii.org/za/cases/ZACC/2009/7.html.
Chris Povey is a lawyer and policy officer with the PILCH Homeless Persons' Legal Clinic