Dumakude and Others v Clarendon Heights Body Corporate and Others (Appeal) (041948/2025 ; 050558/2025) [2025] ZAGPJHC 1259 (10 December 2025)

Case Note

Dumakude, Mxoleleni & 37 Others v Clarendon Heights Body Corporate & Others
Case No: 041948/2025
Date: 10 December 2025

Reportability

This case is reportable as it addresses critical issues regarding unlawful evictions and the appropriate procedural approach when challenging an eviction order pending appeal. It highlights the courts' need to balance property rights against individuals' rights to housing and the potential for homelessness. The case further discusses the nuances of section 18 of the Superior Courts Act 10 of 2013, particularly regarding emergency housing and procedural fairness in property law. As such, the judgment is informative for future cases involving unlawful occupiers and highlights the court's approach to ensuring compliance with previous orders by appellants.

Cases Cited

1. De Aguair v Real People Housing (Pty) Ltd 2011 (1) SA 16 (SCA)
2. S v De Jager 1965 (2) SA 612 (A)
3. Road Accident Fund v Le Roux 2002 (1) SA 751 (W)
4. Colman v Dunbar 1933 AD 141
5. Knoop NO and Another v Gupta (Execution) 2021 (3) SA 135 (SCA)
6. Incubeta Holdings (Pty) Ltd v Ellis 2014 (3) SA 189 (GSJ)
7. Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC)
8. City of Johannesburg v Changing Tides 74 (Pty) Ltd and Others 2012 (6) SA 294 (SCA)
9. Occupiers of Erven 87 & 88 Berea v De Wet N.O and Another 2017 (5) SA 346 (CC)
10. Occupiers of Saratoga Avenue v City of Johannesburg Metropolitan Municipality and Another 2012 (9) BCLR 951 (CC)

Legislation Cited

• Superior Courts Act 10 of 2013
• Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE)

Rules of Court Cited

None cited explicitly in the judgment.

HEADNOTE

Summary

This case involves an appeal regarding an eviction order granted against unlawful occupiers of a building named Clarendon Heights in Hillbrow. The eviction order was sought by the body corporate of the building due to unlawful occupation and gross negligence of management and safety concerns. The court ultimately found that while exceptional circumstances justifying eviction existed, the necessary evidentiary basis to conclude that immediate eviction would not cause irreparable harm to the occupiers was absent. Thus, the appeal was upheld, and the eviction order was suspended pending the outcome of the appeal.

Key Issues

The main legal issues addressed in this case include whether extraordinary circumstances justified allowing eviction pending appeal under section 18(3) of the Superior Courts Act and whether the appellants' circumstances suggested irreparable harm would arise from immediate eviction. Additionally, the court examined the requirements needed for the admittance of further evidence on appeal and emphasized the procedural fairness harkened by the law.

Held

The court held that while the respondents (landowners) presented compelling reasons for eviction due to safety and management concerns, the lack of evidence regarding the appellants' personal circumstances led to the conclusion that executing the eviction order pending appeal would cause irreparable harm to them. Therefore, the appeal was upheld, and the eviction order remained suspended.

THE FACTS

The respondents, Clarendon Heights Body Corporate, initiated urgent proceedings to secure the eviction of the unlawful occupants of the building, which involved claims of mismanagement and a "building hijack" situation. Urgency stemmed from safety and structural concerns that arose from the unauthorized control of the property, including threats to contractors attempting to provide necessary services. The court had previously issued interim interdicts which mandated that the trainees comply with directives for affidavits concerning their circumstances; however, they failed to comply. The original judgment confirmed the unlawful occupation, issuing a 48-hour eviction notice to the occupiers.

Subsequent to the main judgment, the appellants filed an application to raise further evidence about personal circumstances in opposition to the eviction order pending appeal. The court hearing revealed procedural missteps on behalf of the appellants’ legal representatives, leading to issues regarding their ability to present their case effectively. By the end, the eviction order was challenged under section 18(4), leading to the current appeal being deliberated in terms of potentially irreparable harm and the need for comprehensive evidentiary bases.

THE ISSUES

The legal questions that arose included whether the court could enforce an eviction while an appeal was pending under section 18(4) and if the court had properly considered the potential irreparable harms that could be faced by the appellants. A crucial factor included whether the necessary evidentiary material could be admitted on appeal, given the initial failures to provide such evidence during previous hearings.

ANALYSIS

The court began by clarifying that an appeal under section 18(4) does not permit re-evaluation of the merits of the eviction itself but focuses on the execution of the eviction order during the appeal process. The fundamental point examined by the court was whether extraordinary circumstances existed justifying the order of execution and whether, under section 18(3), the appellants would not suffer irreparable harm should eviction occur.

The court highlighted existing evidence of significant risks presented by the unlawful occupation. However, it placed great emphasis on the absence of any verified personal details from the appellants, which would serve to demonstrate their vulnerability. It was determined that since necessary information surrounding potential homelessness and relevant support accommodations was inadequately supplied, the court could not make a legally sound decision to execute against the occupiers.

In summary, while the eviction grounds appeared justifiable, the procedural failures hindered an adequate assessment of the appellants' circumstances. Therefore, it became necessary to err on the side of caution, ensuring that the occupants were not wrongfully displaced in circumstances that lacked the requisite evidentiary substance.

REMEDY

The court's order results in the suspension of the eviction pending the finalization of the appeal, highlighting the priority of ensuring procedural fairness and adequate representation of vulnerable groups in eviction cases. Interim interdicts securing access to utilities and management of the property were maintained to protect against unlawful disruptions during the ongoing litigation cycle.

LEGAL PRINCIPLES

The decision emphasizes key legal principles, such as the need to establish exceptional circumstances for eviction pending appeal, the requirement for a detailed evidentiary foundation supportive of eviction, and the courts' obligation to thoroughly assess both potential harms to occupants and the context of unlawful occupations. The ruling also underscores the importance of complying with procedural requirements to warrant the acceptance of further evidence on appeal, advocating for a balance between property rights and the preservation of human dignity through protections against homelessness.