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WILSON J:
1 On 4 February 2026, I made an order restoring the applicants to possession
of a property they leased and occupied for residential purposes in the
Fernbrook Estate, Maroeladal, Randburg. I found that the applicants had been
unlawfully evicted from that property by a representative of the first
respondent, Humayl, which had leased the property to them.
2 The respondents now seek leave to appeal against my order. The applicants
seek interim execution of the order under section 18 of the Superior Courts
Act 10 of 2013.
3 I deal with each application, in turn, below.
The application for leave to appeal
4 Humayl’s defence to what was essentially a spoliation application was that the
first applicant did not live at the property, and so could not have been evicted
from it, and that the second and third applicants agreed to leave the property
when Humayl’s representative, a Mr. Munchy, came to the property with other
employees of Humayl and functionaries of Eskom on 24 January 2026. Eskom
was there to disconnect the electricity supplied to the property . The
respondents’ version on the papers was that the second and third applicants
quit the property of their own volition, the second applicant having expressed
frustration with the first applicant’s conduct in relation to the property.
5 In my judgment a quo I rejected that version as far-fetched, in light of the
material common cause facts. Those facts were that the parties had been
locked in a protracted dispute about the applicants’ occupation of the property
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for at least several months. There was a rental dispute in the Magistrates’
Court and there is a hotly contested eviction application pending in this court.
It was plainly unrealistic to suggest that the applicants would have suddenly
quit the property of their own volition having fought so hard for so long to
remain there.
6 In any event, I found that, even if the respondents’ version is taken at face
value, I could not conclude, as the applicable law requires, that the second
and third applicants’ vacation of the property was free, voluntary and informed
(see, generally, Occupiers, Berea v De Wet 2017 (5) SA 346 (CC)). On the
respondents’ version, the second applicant left the property having had an
angry altercation with the first applicant, in which she said "I am leaving this
premises with my son [the third applicant]. I had enough of your nonsense and
I will not take the fall for you." This did not seem to me to be consistent with a
considered, informed decision to waive the applicants’ constitutional right to
stay at the property unless ordered by a court to leave it.
7 Mr. Cassim, who appeared for the respondents, could not really gainsay this.
He emphasised what the respondents regard as the applicants’ bad faith,
repeatedly referred to the first applicant has a “building hijacker”, and
emphasised the rental and other arrears said to have been run up on the
lease. But none of this bore on the question of whether the second and third
applicants consented to leave the property in the required legal sense. Even
on the respondents’ version, that inference cannot reasonably be drawn.
8 Were it otherwise, any spontaneous decision to leave one’s home taken in the
heat of the moment in the presence of a landlord’s representative against the
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background of a tenancy dispute would ground an inference of consent.
Obviously, that cannot be. There is no prospect that a court of appeal would
conclude that the decision allegedly made to quit the property in this case was
free, voluntary and informed.
9 It is the respondents’ version that the first applicant no longer resides at the
property because the records of a credit reference agency dug up by the
respondents’ attorney specifies a different address for him. I regarded that
version as improbable in my judgment a quo, given that there is an eviction
application pending against the first applicant in which his residence at the
property is acknowledged, and given also that he has fought tooth and nail to
retain possession of the property in those proceedings. There mere fact that
a different address appears on the records of an organisation with no direct
knowledge of or involvement in the dispute is of no moment. Mr. Cassim could
not persuade me that there was any prospect that a court of appeal would
decide otherwise.
10 For all these reasons, the application for leave to appeal stands no prospects
of success, and will be dismissed.
Interim execution
11 Subsections 18 (1) and (3) of the Superior Courts Act 10 of 2013 permit the
execution of a final order granted at first instance pending any appeal against
it, provided that three jurisdictional requirements have been met. These
requirements are that there are exceptional circumstances justifying such
execution; that the applicant for interim execution will suffer irreparable harm
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if interim execution is not permitted; and that the respondent will suffer no
irreparable harm if it is.
12 In this case there are clearly exceptional circumstances, in that the
respondents’ prospects of success on appeal are very weak (see Zero Azania
(Pty) Ltd v Caterpillar Financial Services SA (Pty) Ltd 2024 (2) SA 574 (GJ),
paragraph 13).
13 It seems to me that the applicants are suffering irreparable and ongoing harm
in that they have been deprived of possession of a property they occupied as
their home suddenly and without due process of law. Every day that this
situation is allowed to continue constitutes irreparable harm. The very purpose
of the spoliation proceedings that resulted in the order I granted was t o
promptly reverse an unlawful act of dispossession while a background dispute
about the applicants’ right to occupy the property is determined. It would be
perverse indeed if the respondents were permitted to short-circuit that process
by keeping the applicants out of the property while pursuing a meritless appeal
based on the fanciful suggestion that the applicants spontaneously
abandoned that dispute.
14 There can be no irreparable harm to the respondents in executing my order
pending appeal. If, against all appearances, the proposed appeal is pursued
further and succeeds, the applicants will have to leave the property. In any
event, if the eviction application the respondents are presently pursuing
against the applicants has the merit Mr. Cassim claims, then the respondents’
true remedy seems to me to lie in the pursuit of that application. During
argument Mr. Cassim informed me that the documents relevant to that
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application have been exchanged, and that the registrar has been asked to
allocate a date for the hearing of the application. On the lead times currently
applicable to opposed motions in this court, the respondents can presently
expect to be allocated a date on or shortly after 1 June 2026 – long before any
appeal against my order would be heard.
Costs
15 The costs of the application for leave to appeal will follow the result.
16 In the interim execution application, the relief originally sought extended to an
order holding the respondents and their attorney in contempt of court, and an
order restoring the electricity supplied to the property. The contempt relief has
nothing to do with the interim execution of my order. I specifically declined to
order the reconnection of electricity to the property, for the reasons given in
my judgment a quo. There is no cross-appeal against that order. Nor is there
any basis for the electricity to be reconnected under the guise of the interim
execution of an order I never made.
17 The wide-ranging and inappropriate relief sought in the application for interim
execution significantly and understandably widened the scope of the
respondents’ answering papers, resulting in the creation of wholly irrelevant
factual and legal disputes. The respondents should not have to bear the costs
of opposing relief that should never have been claimed in the first place. Each
party will pay their own costs in the interim execution application.
Order
18 For all these reasons –