Clarendon Heights Body Corporate and Others v Dumakude and Others (2025/041948; 2025/050558) [2025] ZAGPJHC 779 (25 July 2025)

Case Note

Clarendon Heights Body Corporate and Others v Dumakude and Others; Rapid Residential Property (Pty) Ltd and Others v Onuoha and Others
[2025] ZAGPJHC 237 (High Court of South Africa, Gauteng Division, Johannesburg)
25 July 2025

Reportability

This matter raises important questions concerning the interaction between the constitutional right of access to adequate housing and the property owner’s right not to be arbitrarily deprived of property. It addresses the procedural and substantive safeguards built into the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998, especially the employment of interim interdicts and urgent eviction proceedings under section 5. Because the judgment engages with the growing phenomenon of so-called “building hijackings” in inner-city Johannesburg and highlights the courts’ role in balancing competing constitutional rights, it is of clear precedential value and therefore reportable.

The decision is also significant because it consolidates two urgent applications, spells out the duties of local authorities in producing meaningful reports on alternative emergency accommodation, and confirms the circumstances in which interim relief will be granted against unlawful occupiers who allegedly intimidate lawful residents and owners. The guidance given is likely to influence future applications that combine interdictory relief with eviction proceedings in the same motion.

Cases Cited

Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (Constitutional Court)

Jaftha v Schoeman; Van Rooyen v Stoltz 2005 (2) SA 140 (Constitutional Court)

Residents of Joe Slovo Community, Western Cape v Thubelisha Homes and Others (Centre on Housing Rights and Evictions and Another, Amici Curiae) 2010 (3) SA 454 (Constitutional Court)

President of the Republic of South Africa v Modderklip Boerdery (Pty) Ltd 2005 (5) SA 3 (Constitutional Court)

YG Property Investments (Pty) Ltd v Selota and Others 2022 JDR 3608 (Gauteng Division, Johannesburg)

Legislation Cited

Constitution of the Republic of South Africa, 1996, section 26 and section 25

Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998, sections 4 and 5

Rules of Court Cited

None expressly cited in the judgment.

HEADNOTE

Summary

The applicants, comprising the body corporate, several property-owning companies and individual owners of units in Clarendon Heights, sought urgent relief against a number of identified and unidentified unlawful occupiers. Two separate but related applications were issued and subsequently consolidated. In Part A of each application the applicants asked for interdicts restraining intimidation, rental collection and interference with their proprietary rights, together with an eviction order in terms of section 5 of the PIE Act. Part B sought final eviction in the ordinary course under section 4.

Interim orders were granted on two separate occasions by different judges, authorising service of section 5(2) notices, granting wide-ranging interdicts, and directing the City of Johannesburg to file a report on the availability of emergency accommodation. On the consolidated return date the matter was postponed sine die, with directions for further pleadings and preservation of the interim interdicts.

The judgment analyses the constitutional framework, the purpose of the PIE Act, and the mischief of “building hijackings”. It emphasises the court’s duty to protect both the occupiers’ housing rights and the owners’ property rights while condemning the activities of criminal syndicates exploiting vulnerable residents.

Key Issues

Whether the applicants satisfied the requirements for urgent interim interdicts pending finalisation of eviction proceedings.

Whether the court could authorise service of section 5 notices and grant interim relief without granting an immediate eviction order.

The extent of the City of Johannesburg’s obligation to provide a comprehensive report on alternative accommodation.

The balancing of constitutional rights under sections 25 and 26 when confronting unlawful occupation facilitated by criminal elements.

Held

The court confirmed the interim interdicts, finding that the applicants had made out a prima facie case of unlawful occupation coupled with intimidation and interference with ownership. It held that the requirements of section 5(1) of the PIE Act for urgent relief had been met but that immediate eviction would be premature pending proper ventilation of the occupiers’ circumstances and the City’s report.

It further held that consolidation was appropriate and that the postponement sine die, coupled with directions for the filing of full pleadings and a special allocation, struck an equitable balance between the competing rights. The City was compelled to comply strictly with its reporting obligations.

THE FACTS

Clarendon Heights is a multi-storey residential building in Hillbrow, Johannesburg. Over time various flats and rooms in the building were taken over by individuals described by the applicants as unlawful occupiers, many of whom allegedly pay rent to self-styled “building managers” rather than to the registered owners. The applicants alleged that these occupiers barred owners, agents and contractors from entering, collected rentals illegally and intimidated lawful residents and staff.

During March and April 2025 the applicants launched two separate urgent applications. The first application, instituted on 27 March 2025, sought both interim interdicts and an urgent eviction in terms of section 5. The second, issued on 10 April 2025, mirrored the relief but added a prayer for consolidation.

On 1 April 2025 Kuny J granted interim orders in the first application, including authorisation of a section 5 notice and an order obliging the City to furnish a report on emergency accommodation. On 15 April 2025 Manoim J granted similar relief in the second application and ordered consolidation.

When the consolidated matter returned to court on 22 April 2025 before Fisher J, the occupiers had filed a late answering affidavit. Following negotiations, the parties agreed on a draft order that postponed the merits sine die, preserved all interim interdicts and set a framework for further affidavits and a special trial allocation.

THE ISSUES

The court had to decide whether the applicants had established a sufficient basis for urgent interim relief, including whether they faced irreparable harm if the interdicts were not granted. It further had to consider whether it was just and equitable to grant an immediate eviction order under section 5 or whether the matter should be postponed for full ventilation under section 4.

A related issue was the adequacy of the City’s participation. The court needed to determine whether the municipality had complied, or would be compelled to comply, with its constitutional and statutory duty to consider the provision of emergency accommodation to occupiers who might be rendered homeless by eviction.

ANALYSIS

The court began by reaffirming that the PIE Act gives effect to section 26(3) of the Constitution, which prohibits evictions without a court order after considering all relevant circumstances. It noted that section 5 enables urgent relief where harm to persons or property is imminent, provided all procedural safeguards, including service of a section 5(2) notice, are respected.

Citing Port Elizabeth Municipality v Various Occupiers and other Constitutional Court precedents, the court stressed that eviction proceedings require a balancing exercise. While ownership confers entitlements to use and enjoy property, these entitlements are not absolute and must yield where necessary to protect vulnerable occupiers from homelessness. Conversely, the right to housing cannot be used as a shield for criminal conduct that jeopardises safety and municipal governance, as illustrated by the phenomenon of building hijackings.

Applying these principles, the court found that the applicants had demonstrated a clear right to protection against intimidation and unlawful interference, as well as a well-grounded apprehension of irreparable harm. The relief granted by Kuny J and Manoim J was therefore confirmed. However, the court held that a final decision on eviction should await full pleadings and a meaningful report from the City. This approach protected the occupiers’ procedural rights while maintaining the rule of law and safeguarding the applicants’ property.

REMEDY

The court made the interim interdicts operative pending the hearing of Part B, restrained the occupiers from acts of interference and intimidation, and preserved the applicants’ rights to collect rentals from lawful tenants. It postponed the eviction aspect sine die, ordered the exchange of further affidavits, and directed the parties to approach the Deputy Judge President for special allocation once pleadings were closed. The City of Johannesburg was compelled to file a comprehensive report on available emergency accommodation within ten days of the order.

LEGAL PRINCIPLES

An applicant for urgent interim relief under section 5 of the PIE Act must show a well-founded fear of imminent harm to persons or property, compliance with the notice requirements in section 5(2), and that granting relief is just and equitable in the circumstances.

Courts must balance the constitutional right to property in section 25 against the right to access to adequate housing in section 26, ensuring that neither right is given automatic precedence. The presence of criminal or coercive conduct by occupiers may tip the scales in favour of interim relief, but eviction remains subject to a full enquiry into all the circumstances, including the municipality’s plans for alternative accommodation.

Municipalities bear a constitutional and statutory duty to participate actively in eviction proceedings brought under the PIE Act, to investigate and, where appropriate, to provide or identify temporary emergency accommodation for occupiers who may be rendered homeless. Failure to do so can result in judicial directives compelling a proper report and may postpone eviction until compliance is achieved.