- The High Court upheld the appellants’ appeal against execution pending eviction, citing a lack of verified evidence on personal circumstances and potential homelessness.
- Application to adduce further evidence was dismissed due to lateness and failure to meet diligence and materiality requirements.
- Interim interdicts regulating access, utilities, security, and management remain in force, ensuring safety while litigation continues.
In early 2025, Clarendon Heights, a sectional title building in Hillbrow, became the centre of a dispute when the body corporate alleged that occupiers had taken control of the building without authority.
The respondents claimed rental payments were being unlawfully collected, contractors denied access, and safety and security were compromised, amounting to a so-called “building hijack”. Urgent proceedings under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE) followed.
An eviction order was granted on 25 July 2025 by Acting Judge S Snyman after the occupiers failed to file affidavits detailing their personal circumstances, as directed by Judge F Fisher. Despite opportunities to provide verified evidence, only temporary emergency accommodation forms were uploaded without supporting affidavits. The occupiers’ subsequent application for leave to appeal was initially dismissed, and execution of the eviction order was granted under Section 18(3) on 3 October 2025.
Application to adduce further evidence rejected
The occupiers sought to introduce affidavits on appeal, converting the previously submitted temporary emergency accommodation forms into sworn statements. Judge L Windell, in the High Court in Johannesburg, emphasised that admission of further evidence on appeal is an exceptional indulgence. The court noted that the material was available long before the eviction hearing and could have been presented earlier.
The new affidavits did not provide decisive evidence addressing the central issues of unlawful building control, safety risks, and insurance threats. Judge Windell held: “The inference is unavoidable that the application seeks to regularise material that could and should have been filed earlier. That is the very purpose for which evidence on appeal may not be admitted.” The court therefore dismissed the application to adduce further evidence, with costs.
Execution pending appeal set aside
The appeal under Section 18(4) considered whether execution of the eviction order could proceed despite the appeal. Judge Windell, with Judge Y Yacoob and Judge W Wanless concurring, notes that execution pending appeal is extraordinary and requires a demonstration of exceptional circumstances, irreparable harm to respondents, and proof that appellants will not suffer irreparable harm.
While the court acknowledged exceptional circumstances and ongoing harm to the body corporate and associated respondents, there was insufficient evidence on the occupiers’ vulnerability, household composition, or availability of temporary emergency accommodation.
“The absence of affidavits containing verified personal circumstances of the occupiers, the failure by the City to file the report required by Judge F Fisher, and the fact that eviction was ordered to occur within 48 hours, rendered it impossible to determine whether immediate execution might result in displacement or homelessness. In those circumstances, caution must prevail.”
Consequently, the Section 18(3) execution order was set aside, the eviction order remains suspended pending the outcome of the petition to the Supreme Court of Appeal, and the interim interdicts remain operative to regulate access, utilities, security, and management.
Costs and procedural issues
The court also addressed the wasted costs arising from the appearance on 26 November 2025, when a purported advocate representing the occupiers could not produce proof of enrolment.
The attorney representing the appellants was directed to file an affidavit explaining why a personal costs order should not be made de bonis propriis, with the respondents permitted to reply. Other costs of the appeal were awarded against the respondents.
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