The court would entertain similar direct appeals as an exception rather than the norm and as a last resort.
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And the trial court went so far as, upfront, to grant the applicants leave to again, apply to the court by way of urgency in the event of non-compliance with its order. It was not without some significance that before two judges of the same court the matter was entertained as one of urgency. To have the instant matter heard in due course, that was, not as one of urgency, meant it would be heard not earlier than the second quarter of 2022 and that could not be.
Whether by failing to restore the applicants’ home such that it was suitable for human habitation violated the applicants’ right of access to housing and, relatedly, their right to dignity, as well as their children’s right to basic education.
The applicants approached the Constitutional Court persisting in their assertion that the trial court’s order was not complied with. The urgent High Court application was struck from the roll for lack of urgency. They also averred that the applicants had since secured alternative accommodation. In response, the respondents alleged that they did comply with the court order.
Subsequently, the applicants brought an urgent High Court application, alleging that the house remained unfit for human occupation. The trial court also granted the applicants leave to approach it on an urgent basis in the event of non-compliance with the order. The trial court ordered the 1 st and 4 th respondents to restore the house to a state fit for human occupation and allow the applicants to resume possession of it. The applicants approached the South Gauteng High Court challenging the lawfulness of the eviction. All that had affected the children’s schooling, in particular that of two of the children who were in grade 12. The applicants averred that as a result, they lived in the open, with their eight children sleeping in the car.
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The applicants claimed that, despite an assurance by the 1 st respondent that they could reside on the property until they secured alternative accommodation, the 1 st respondent removed the roof and windows of their house, effectively evicting them. The property was sold to Mr Jacobus Hunter (3 rd respondent). The 1 st applicant was employed by Mr Theunis Christoffel Lombard (1 st respondent). Mr Alias Mtolo and Mrs Maheneng Mtolo(1 st & 2 nd applicants), lived with their children on property owned by Mrs Maria Helentje Lombard, (4 th respondent). Madlanga, Majiedt, Mhlantla & Tshiqi JJ Tlaletsi, Pillay, Madondo & Rogers AJJĬonstitutional Law –Bill of Rights - right of access to housing, right to dignity and right to basic education – where the roof and windows of a house had been removed forcing the inhabitants to live outside in the open thereby forcefully evicting them-whether by failing to restore the applicants’ home such that it was suitable for human habitation violated the applicants’ right of access to housing and, relatedly, their right to dignity, as well as their children’s right to basic education. Mtolo and Another v Lombard and Others ZACC 39
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