Case Note: Mathale v Linda and Another [2015] ZACC 38

/ / 2015, Property Law


The Applicant unlawfully resided on a property in a township (“the Property”) and was in undisturbed possession of that Property for a period of 20 (Twenty) years. The Property was subsequently allocated and transferred to the First Respondent, by the Ekurhuleni Metropolitan Municipality (“the Second Respondent”), following the formalisation of the township.

The Applicant refused to vacate the Property, despite being offered an alternative portion of land by the Second Respondent, for the reasons that, inter alia, he had already built a home on the Property with his own hands and with his own funds. As a result of his refusal to accept the alternative portion of land offered to him, the Second Respondent gave the land to another person.

The First Respondent applied to the Magistrates Court to evict the Applicant in terms of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE).

The First Respondent successfully obtained the eviction order from the abovementioned Court. The Applicant subsequently lodged an appeal against such Judgment and such appeal proceedings are still pending.

One year later, the First Respondent applied, in terms of section 78 of the Magistrates Court Act (“the Act”), for the eviction order to be implemented pending the finalisation of the appeal. The application was granted by the Magistrates Court. Once again, the Applicant lodged an appeal against this Judgment.

The appeal was dismissed by the High Court on the basis that it was in the interests of justice to proceed in terms of section 78 of the Act.

The matter was then referred to the Constitutional Court.

The Applicant argued that the aforementioned decision violated his Constitutional right to equality and requested that the Court extend the law so as to make section 78 orders appealable on the same basis as interim orders emanating from the High Court.

The First Respondent contended that the issue was not a Constitutional issue that would invoke the Court’s jurisdiction and that the current legal position was clear in that execution orders are not appealable. He also argued that the Applicant was at fault when he refused to accept the offer of an alternative portion of land from the Second Respondent.


The Constitutional Court held that interim execution orders are interlocutory in nature as they provide interim relief pending the finalisation of a legal action and as such normally such orders are not subject to appeal as this would defeat the very purpose of the relief sought.

The Court held further that section 78 of the Act must be considered with reference to section 83(b) of the Act. Section 83(b) states that any party may appeal any rule or any order which has the effect of a final judgment. The Court interpreted this section to mean that all orders, even if they are interlocutory, are appealable if they have the effect of a final judgment.

The execution order has the effect of a final judgment as it would render the Applicant homeless and therefore the Court held that it was appealable.


As a result of this case, eviction orders in terms of section 78 of the Act will be appealable if they have the effect of a final judgment.

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