Mathale v Linda and Another (A507/2013) [2014] ZAGPPHC 779 (2 October 2014)

Mathale v Linda and Another (A507/2013) [2014] ZAGPPHC 779 (2 October 2014)

The court held that section 78 enforcement orders from magistrates' courts are generally not appealable unless they have the effect of a final judgment. Even if the approach in the High Courts is adopted, the appellant must show that the matter involves a constitutional issue and that irreparable harm would result if the order is not appealable. The appellant failed to demonstrate irreparable harm, as the plot in question was lawfully allocated to the first respondent, and any harm to the appellant was outweighed by the harm suffered by the respondent. The appeal was therefore dismissed.

Citation
[2014] ZAGPPHC 779
Parties
Appellant: Nthome Steven Mathale; Respondent: JJZ Linda; Respondent: Ekurhuleni Metropolitan Municipality
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
2 October 2014
Case Number
A507/2013
Procedural Posture
Civil Appeal / Appeal Against Section 78 Enforcement Order From Magistrate's Court
Outcome
Appeal dismissed with costs.
Judges
M W Msimeki, J W Louw
Legal Topics
Magistrates Court Act Section 78, Eviction, Interlocutory Orders, Constitutional Right to Housing, Interests of Justice, Allocation of Land
Civil Procedure Land and Property Constitutional Law Magistrates Court Act Section 78 Eviction Interlocutory Orders Constitutional Right to Housing Interests of Justice +1 more

Case Brief

Summary, issues, holding and outcome

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Parties

Nthome Steven Mathale

Appellant

JJZ Linda

Respondent

Ekurhuleni Metropolitan Municipality

Respondent

Procedural Posture

Civil Appeal / Appeal Against Section 78 Enforcement Order From Magistrate's Court

Legal Issues

  1. 1 Whether the section 78 enforcement order is appealable.
  2. 2 If not, whether it is in the interests of justice to allow the appeal.
  3. 3 Whether the magistrate was correct in finding that the respondent would suffer irreparable harm if the eviction order was not executed and enforced.

Ratio Decidendi

The court held that section 78 enforcement orders from magistrates' courts are generally not appealable unless they have the effect of a final judgment. Even if the approach in the High Courts is adopted, the appellant must show that the matter involves a constitutional issue and that irreparable harm would result if the order is not appealable. The appellant failed to demonstrate irreparable harm, as the plot in question was lawfully allocated to the first respondent, and any harm to the appellant was outweighed by the harm suffered by the respondent. The appeal was therefore dismissed.

Court Disposition

Appeal dismissed with costs.

Orders

  • The appeal is dismissed with costs.