Occupiers of Clarendon Heights, a sectional title building in Hillbrow said to be hijacked, will be able to remain in their homes this Christmas, in spite of the court earlier ordering their eviction within 48 hours.

The occupiers – about 38 – against whom the order was earlier obtained in the Gauteng High Court, Johannesburg, tried in vain to obtain leave to appeal the eviction order. They will now petition the Supreme Court of Appeal (SCA) in a bid to appeal the eviction order.

While a pending appeal usually suspends an order, the Clarendon Heights Body Corporate and the City of Joburg meanwhile obtained an order that they must be evicted, even though the appeal is still pending.

In the latest saga, the residents appealed this order and, in a judgment, delivered earlier this month, Judge Leonie Windell agreed to suspend the eviction order for now. This is because of the uncertainty of where the residents will go if they are evicted within 48 hours and potential homelessness.

While she acknowledged exceptional circumstances and ongoing harm to the body corporate and the city, there was insufficient evidence on the occupiers’ vulnerability, household composition or the availability of temporary emergency accommodation.

The judge, however, ordered that interim interdicts regulating occupation, access, utilities, security and management of the building shall remain in force pending final determination of the appeal or further order of the court.

In March this year, the body corporate and City of Joburg instituted urgent proceedings in terms of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE), alleging that the building had been taken over and managed without the authority of the body corporate.

The allegations included that rental payments were being collected by persons other than the registered owners, and that contractors and management were being denied access. The respondents further alleged that these circumstances resulted in what is referred to in urban housing matters as a “building hijack”, accompanied by serious security and safety concerns affecting residents and the property.

The city was directed to file a report on the availability of temporary emergency accommodation and engagement with the occupiers. It also had to conduct an occupancy audit and file a report on vulnerability, emergency accommodation availability and relocation planning.

The court subsequently granted an eviction order against the occupiers. It noted that funds were being collected unlawfully, that contractors, agents and plumbers had been denied access, and that threats and acts of violence had occurred when attempts were made to enter or maintain the building.

The property had deteriorated significantly, municipal utilities had been interfered with, and insurers had threatened to withdraw risk cover.

The occupiers applied for leave to appeal, which was dismissed. The petition to the SCA was lodged in August and remains pending.

Now dealing with the question of whether the eviction should proceed pending the appeal, Judge Windell ruled that the eviction’s consequences cannot be reversed if later found wrongful.

“That concern is heightened by the 48-hour time-frame in the original order. Short notice in an inner-city context involving multiple households carries a real risk of abrupt displacement, disruption to schooling or employment, and immediate loss of shelter. Harm of that kind cannot be remedied by the outcome of an appeal or by a costs award,” she said.

The eviction order accordingly remains suspended pending the outcome of the petition to the SCA and any further appeal that may follow.

zelda.venter@inl.co.za

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