About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2018
>>
[2018] ZAWCHC 126
|
|
All Those Persons Mentioned in Annexure "X" v Welbeloond (Pty) Ltd and Others (16420/2018) [2018] ZAWCHC 126 (26 September 2018)
Republic
of South Africa
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
Number:
16420/2018
In
the matter between:
ALL
THOSE PERSONS MENTIONED IN
ANNEXURE
“X”
Applicant
and
WELBELOOND
(PTY)
LTD
First
Respondent
SHERIFF
OF THE HIGH COURT, CAPE
TOWN
Second
Respondent
MINISTER
OF
POLICE
Third
Respondent
SOUTH
AFRICAN POLICE SERVICES,
WESTERN
CAPE PROVINCIAL
COMMISSIONER
Fourth
Respondent
STATION
COMMANDER, MILNERTON
POLICE
STATION
Fifth
Respondent
CITY
OF CAPE
TOWN
Sixth
Respondent
J U D G M E N T:
HANDED DOWN ON WEDNESDAY, 26 SEPTEMBER 2018
MACWILLIAM
AJ:
[1]
On 7 September 2018 this matter was
postponed for hearing to 20 September 2018 on the urgent roll.
[2]
As the duty judge dealing with urgent
applications on 20 September 2018, the papers were only brought
to me on the afternoon
of 19 September 2018. The papers
were voluminous and brought to me too late to read them in advance.
At that time,
I indicated that the parties should approach the Judge
President with a view to ascertaining whether the matter could be set
down
separately before a dedicated judge who had had an opportunity
to read the papers in advance.
[3]
Unfortunately, I was advised by the duty
judge during the following week’s court vacation that it was he
who would have to
hear the matter, with the result that I heard the
matter on 20 and 21 September 2018.
[4]
It was the 9
th
urgent application which had been set down on 20 September 2018,
in circumstances where the papers ran to some 750 pages and
five sets
of Heads of Argument were filed of record. At the start of his
argument, the Applicants handed up a bundle of authorities
of 140
pages and referred to a further judgment which ran to 114 pages.
Copies of further cases were also handed up during
the hearing.
[5]
At the start of his argument, the
Applicants’ counsel emphasised that the Applicants were seeking
to enforce their Constitutional
rights and argued that the matter was
inherently urgent. He called in aid of his argument the opening
passage in the judgment
of Fortuin J to the following effect:
“
[1]
This is an application in which, at the outset, it is necessary to
ask the following pertinent question: What does one
do with
60 000 people when neither the owner of the land on which they
reside, nor the local authority in whose jurisdiction
they live, can
or want to accommodate them? The further question that needs to
be answered is why are we in this situation?
I decided to start
this judgment with a quotation from a publication called
Business
as Usual
by
the Centre on Housing Rights & Evictions, also known as COHRE:
‘
The
growing elite fear that shacks (which are nothing more than the homes
of the very poor) will be a threat to a
“
world
class”
future,
and the consequent demand for their annihilation, is a desire to
escape the suffering of the past by excluding it from sight
and mind
and concern rather than by overcoming it by patient collective
effort. This injunction to take seriously the history
that has
produced a situation where shacks are the best housing option for
millions of people is an injunction to see poverty -
and not the
effort of the poor to house themselves - as a social crisis.’
”
[6]
The Applicants’ counsel further
stated unequivocally that in the hearing before me, the Applicants
sought a final order against
all of the Respondents. That order
was in the following terms:
“
1.
The Applicant’s non-compliance with the Uniform Rules of Court
as they relate to forms, service and time periods is condoned
and the
matter is heard on an urgent basis in terms of Rule 6(12);
2. Declaring the actions
and/or conduct of those Respondents who unlawfully evicted the
Applicants from and demolished their homes
from ERF 39371 Cape Town,
Western Cape, without an eviction order, to be invalid, inconsistent
with the Constitution and unlawful;
3. Declaring that the
Respondents’ seizure of the Applicants’ personal
property, including but not limited to building
materials, housing
structures, electrical appliances, furniture, clothing and personal
effects, is unlawful;
4. Directing that the
Respondents and/or its duly appointed officials immediately,
alternatively, within such period as this Honourable
Court may deem
fit, restore possession forthwith to the Applicants of the property
ERF 38371 Cape Town, Western Cape;
5. Directing that the
Respondents and/or its duly appointed officials restore possession
forthwith to the Applicants of the property
in paragraph 3 above;
6. Directing that the
Respondents provide and/or erect habitable temporary shelters on ERF
38371 Cape Town, Western Cape, and, provide
temporary accommodation
for the Applicants at the Respondents’ expense until such time
as these shelters have been provided
and/or erected;
7. Interdicting and
restraining the Respondents from any further unlawful interference
with the Applicants’ property in paragraph
3 and/or 4 and/or 6
above;
8. That the costs of this
application be paid by the Respondents, jointly and severally, the
one paying the other to be absolved,
on an attorney and own client
scale.”
[7]
Not only that, but this final order was
sought in circumstances of extreme urgency, in circumstances where
none of the Applicants
described where they were staying at the time
when their affidavits were signed.
[8]
The papers were served in the course of
Tuesday, 4 September 2018, and the matter was set down on
7 September 2018.
[9]
The Respondents denied that the Applicants
had made out a case for urgency which justified the matter being
heard as one of such
extreme urgency and alleged that there were
serious disputes of fact which could not be resolved om the papers.
All of the
Respondents asked that the application be dismissed with
costs. It was argued that in the circumstances of this case,
the
application amounted to an abuse of process.
[10]
Thereafter, only limited time was allowed
to the Respondents to file their answering affidavits and the matter
proceeded in front
of me for final relief 14 days later.
THE
APPLICANTS’ CASE
[11]
The application was brought by 81 persons
who were listed in annexure “X” to the Notice of Motion.
The Founding
Affidavit was signed by the first of those persons and
initially two confirmatory affidavits were filed by two other of
those persons.
A further 79 confirmatory affidavits were
signed over the period 5 to 11 September 2018. The
deponents all stated
in their affidavits no more than that they were
“
residing
at Dunoon, Milnerton”
.
None of them indicated what their current housing situation was or
what property, if any, they had lost or when or in what
circumstances
they had been evicted.
[12]
In the Founding Affidavit, the deponent
states that the Applicants were previously backyard dwellers in the
Dunoon area and that
the living conditions in Dunoon were terrible.
As a result, the Applicants moved on to Erf 38371, the First
Respondent’s
property, in February 2018, where they remained in
occupation until April 2018 when the officials of the Second, Fifth
and Sixth
Respondents demolished their houses and took away their
property. They state that at that time, there were
approximately
108 housing structures on the land.
[13]
During May 2018 they again rebuilt their
homes on the property where they stayed peacefully until 21 August
2018, when the
Second Respondent and officials of the Fifth and Sixth
Respondents came to demolish their houses again. That
demolition took
place on 24 August 2018 when the Applicants
state that all of their belongings were removed. As a result,
they erected
a large shelter to accommodate 25 of them, but that
shelter was also demolished on 31 August 2018. As a
result, they
say that they were left destitute and again made
homeless during the course of the weekend.
THE
RESPONDENTS’ OPPOSITION
[14]
The picture painted by the Respondents in
their affidavits was a completely different one. This picture
is best encapsulated
in the affidavits filed by the Sixth Respondent,
the City of Cape Town. In the affidavit of Barry Robertson, the
City’s
Principal Field Officer of its Northern Anti-Land
Invasion Unit (where the land in question falls) he provided a
chronology in
following terms:
“
16.
Insofar as the chronology of relevant events is concerned, I confirm
as follows:
16.1 As set out above, the
Dunoon area has been identified as a so-called ‘hot spot’
for land invasions and, as a result,
the City constantly monitors the
area through regular patrols conducted by members of its Land
Invasion Unit.
16.2 In and during February
2018, the property in question was observed as being completely
vacant and unoccupied. This observation
was made by members of
the City’s Land Invasion Unit, whilst conducting routine
patrols of vacant land in the vicinity.
In this regard, I refer
to the confirmatory affidavit of Heloise Lelani Stark, a senior field
officer in the employ of the City’s
Land Invasion Unit,
delivered evenly herewith. Ms Stark is responsible for
monitoring and ensuring that regular patrols
of the area are
conducted, as well as attending to any complaints that may arise as a
result of land invasions and related activity.
To the extent
that Ms Stark’s affidavit bears relevance, I note that it
is filed for the purpose of confirming what
is stated in relation to
the City’s observations of the property, at all time material
to the present matter.
16.3 The City continued to
monitor the property during the course of March 2018. During
this time the property remained unoccupied.
16.4 On or about 3 April
2018, the City received complaints regarding a possible land invasion
in progress at the property.
In response, members of the City’s
Land Invasion Unit were dispatched to investigate these complaints,
and discovered that
a number of plots had been ‘pegged out’
by potential land invaders. For the sake of clarity, I note
that it is
generally a practice for potential land invaders to peg
out a plot prior to any attempt to erect a structure. This
‘pegging
out’ enables persons attempting to invade land
to identify the portion and extent of the property which they intend
to occupy.
16.5 At that stage, the City
took steps to establish contact with the owner of the property (i.e.
the First Respondent) who requested
the City’s assistance in
removing these pegs.
16.6 The City obliged the
owner with the above request, albeit that the property is privately
owned land. The reason for obliging
said request, is for the
same reason already advanced in relation to the City’s active
monitoring of the property.
16.7 On 12 April 2018,
the City scheduled a demolition operation in respect of half erected
structures in the Dunoon area.
This operation was scheduled to
take place in relation to City owned land that was in the process of
being unlawfully occupied,
and on the basis that the action to be
taken would have amounted to an act of counter-spoliation.
16.8 At this juncture, it is
pertinent to mention that the City, particularly members of its Land
Invasion Unit, are well aware
that they may not demolish or remove
any structure that may have been erected on land (whether it be on
City or privately owned
land), and which is both completed and
occupied. In other words, when a structure, irrespective of the
fact that it has been
erected unlawfully, is completed and becomes
occupied, then an eviction order must be sought in accordance with
the provisions
of the Prevention of Illegal Eviction from and
Unlawful Occupation of Land Act, No. 19 of 1998 (hereafter ‘PIE’).
16.9 At the time of the
operation scheduled for 12 April 2018, the City received further
reports that the property in the question
may have become the subject
matter of a further potential land invasion. At that stage,
members of the City’s Land
Invasion Unit were dispatched to
investigate and assess the extent to which the property had been
invaded. Upon attendance
at the property, it was established
that numerous plots had been pegged out, and that there was 1 half
built structure present
at the property. Again, the owner of
the property was informed of the situation and was advised to take
appropriate measures
to protect the property in future. The
City however, with knowledge of the property owner, proceeded to
schedule and operation
to remove the pegs, as well as and half built
structure. This occurred on 15 April 2018. By the
time this operation
was carried out, approximately 200 pegs were
present at the property, along with four incomplete and unoccupied
structures.
These pegs and structures were duly removed from
the property.
16.10 On 4 May 2018, the City
once again conducted routine patrols of the Dunoon area, including
the property in question.
The property appeared to be vacant.
16.11 On 26 May 2018, and at
the conclusion of a further patrol of the Dunoon area, it was
established that the property remained
vacant, and that no
irregularities or unlawful activity had been observed at any of the
properties in the vicinity.
16.12 Thereafter, and on or
about 6 June 2018, the City received complaints from the owner of the
property, pertaining to a further
attempted land invasion. The
City, once again, dispatched members of its Land Invasion Unit to
investigate the complaint,
and on 9 June 2018 it was established
that illegal structures were in the process of being erected at the
property, as well
as on adjacent City owned land. At the
request of the owner of the property, and on 10 June 2018, the
City provided
assistance in removing all incomplete and unoccupied
structures. At the same time, the City attended to quell the
situation
on its own land. During the course of this operation,
11 incomplete and unoccupied structure were removed from the property
and adjacent City owned land, along with approximately 200 pegs.
At this operation, the City’s Law Enforcement and
Metro Police
departments, provided assistance to the Land Invasion Unit. No
incidents of violence and/or riotous behaviour
on the part of the
potential land invaders occurred on that day.
16.13 With regard to the
above, I accordingly refer the Honourable Court to the confirmatory
affidavit deposed to by Charlotte Maree,
who is the Superintendent
responsible for the City of Cape Town, Metro Police: Tactical
Response Unit (hereafter ‘TRU’)
filed evenly herewith.
I pause to mention that TRU inter alia provides protection services
in respect of operations related
to land invasions. At all
times material to the present matter, Superintendent Maree was
responsible for the deployment of
the TRU and its officials to the
property.
16.14 I also refer to the
confirmatory affidavit deposed to by Ricardo Martin Petersen, who is
a Principal Inspector, employed by
the City of Cape Town: Law
Enforcement, Anti Land Invasion Unit (hereafter ‘Law
Enforcement’). At all times
material to the present
matter, Principal Inspector Petersen was responsible for the
deployment of Law Enforcement Officers to
the property in question.
16.15 On 12 June 2018,
the City received further reports from the owner of the property,
advising that a land invasion was
again in progress. The City
did not take any steps to assist the owner in relation to the
complaint.
16.16 On 17 June 2018, the
City again received reports from the owner of the property, save that
on this occasion it was reported
that 5 structures were in the
process of being erected at the property. The City, as with the
owner’s report of 12 June
2018, did not take any active
steps to assist the owner in relation to the complaint.
16.17 On 22 June 2018, and
according to information at the disposal of the City, a demolition
operation occurred at the property.
This operation was however
arranged by the property owner, and without the intervention of the
City’s Land Invasion Unit.
16.18 I do however pause to
mention, that assistance was indeed provided to the property owner by
the City’s Law Enforcement
Officials, in particular, those
falling under the control and/or command of Principal Inspector
Petersen. I once again refer
to his confirmatory affidavit that
is delivered evenly herewith.
16.19 I am advised that on
the occasion described above, approximately 118 structures were
demolished. This information was
conveyed to me by Principal
Inspector Petersen, who unfortunately could not comment as to whether
any of these structures had been
occupied. Presumably, the
structures were not occupied as the Applicants have clearly not
raised any complaint in relation
to this operation.
16.20 In
amplification of the above, Inspector Petersen has advised me that to
the extent that Law Enforcement was involved in the
operation of
22 June 2018, the officials under his control did not attend on
the property
per
se
,
but merely provided support to the property owner, the Sheriff and
members of SAPS, by
inter
alia
:
16.20.1 Monitoring the flow
of traffic on Malibongwe Drive (which is situated adjacent to the
property in question); and
16.20.2 Providing support to
members of SAPS, in the event of possible protest action spilling
over from the property and into the
streets.
16.21 Save as set out above,
Law Enforcement had no other involvement in the demolition operation
of 22 June 2018.
16.22 On 28 June 2018,
members of the City’s Land Invasion Unit observed that 2
structures were in the process of being erected
on the property, and
endeavoured to contact the owner to alert it to this happening.
The City’s attempts to establish
contact with the owner were
unsuccessful. No further attempts were made to address the
situation on the part of the City.
16.23
Notwithstanding the events of 28 June 2018, I have managed to
ascertain that the property remained vacant thereafter.
In this
regard, and on or about 12 July 2018, the City conducted an
aerial survey of the Dunoon area. The purpose of
this survey
was to monitor
inter
alia
,
the extent and growth of informal settlements in the area.
Aerial photographs were taken for the purpose of discharging
this
objective.
16.24 I accordingly attach a
copy of a relevant photograph, taken in 12 July 2018, which
depicts the Doornbacht informal settlement,
as well as the property
in question. This photograph is annexed annexures ‘
CCT 1
’,
confirms that the property was indeed vacant and unoccupied as at
12 July 2018. I confirm that the only dwellings
and/or
structures depicted in the attached photograph are those situated on
the (City owned) Doornbacht land.
16.25 According to the City’s
knowledge, the property remained vacant until 18 August 2018,
when a subsequent patrol
of the area by the City’s Land
Invasion Unit, revealed that structures were in the process of being
erected thereon.
16.26 Further reports were
then received on 19 August 2018, with regard to a land invasion
in progress of the property.
This culminated in a demolition
operation being scheduled for 21 August 2018 by the owner of the
property. I can confirm
that the City’s Land Invasion
Unit had no hand in this scheduled intervention, save that some of
its officials attended at
the property (but remained on the
outskirts) purely for the purpose of observing the happenings on the
day. The scheduled
operation was however to be supported by the
City’s Law Enforcement Officials, under the command of
Principal Inspector Petersen.
The extent of this assistance, I
am advised, is the same as that which was provided by Law Enforcement
on 22 June 2018.
16.27 I am advised further,
that as at 21 August 2018 there were approximately 10 half
erected and incomplete structures present
at the property.
16.28 The scheduled operation
however, did not take place and was deferred to 24 August 2018.
16.29 As at 24 August
2018, I am advised that there were 81 structures present on the
property, none of which appeared to be
both complete and occupied.
I pause to mention that in consultation with Principal Inspector
Petersen, I was advised that
on 24 August 2018 the City’s
Law Enforcement officials, in fact attended upon the property (as
opposed to merely waiting
in the road and controlling traffic) for
the purpose of supporting SAPS and providing protection to the
Sheriff if the need arose.
16.30 At the time of this
operation, and according to Principal Inspector Petersen’s
reports, there were approximately 20
persons (potential land
invaders) at the property and, of the 81 structures referred to
above, it appeared to him that these were
unoccupied. The
officials under the command of Principal Inspector Petersen, however,
did not have any active participation
in the demolition of these
structures.
16.31 On 31 August 2018,
a further 7 incomplete and unoccupied structures were in the process
of being erected at the property.
These structures were also
demolished without the intervention of the City’s Land Invasion
Unit, although assistance was
again provided to the property owner by
the City’s Law Enforcement Officials under the command of
Inspector Petersen.
As with the operation of 22 June 2018,
as detailed above, Law Enforcement merely assisted in controlling
traffic on Malibongwe
Drive, which is adjacent to the property.
16.32 I am advised by
Principal Inspector Petersen, that according to his observation,
which was made from the road adjacent to
the property, there appeared
to be 7 structures that were in the process of being erected the
property. This observation,
however, was made from a distance
and from the adjacent road.
16.33 Inspector Petersen
could however, confirm, with a great degree of certainty, that there
was no ‘big’ temporary
structure erected on the property,
and which appeared capable of accommodating 25 people, at the
relevant time.”
[15]
The City further filed affidavits by
Mr Meiring, the Manager of the City’s Department of
Informal Settlements and Backyarders,
Ms Stark of the City’s
Anti-Land Invasion Unit, Mr Petersen, the Principal Officer of
Law Enforcement and the Anti-Land
Invasion Unit and Ms Maree, a
Superintendent of the City’s Tactical Response Unit, the latter
three confirming the allegations
made concerning them and their units
in Mr Robertson’s affidavit as set out in paragraph 16
above.
[16]
In the First Respondent’s Answering
Affidavit, apart from disputing that a case had been made out for
extreme urgency and
disputing that the Applicants had ever taken
occupation of the land or the structures which had been demolished
(which the deponent
alleged took place while they were in the course
of construction), the First Respondent relied upon a court order
which had been
granted by this Court on 30 March 2017, as
amended by this Court on 22 June 2018, to justify the actions
which it took
- it alleged that all if its actions had been
authorised by orders of this Court.
[17]
The order as amended (as in the case of the
two orders which preceded it) was addressed to
“
THE
PERSONS WHOSE IDENTITIES ARE UNKNOWN, WHO HAVE AND/OR WHO INTEND TO
OCCUPY ERF 38371, CAPE TOWN, WESTERN CAPE
”
.
The order as amended, provided:
“
1.1
that the respondents be interdicted and restrained from entering
and/or remaining on the property known as Erf 38371 Cape Town,
Western Cape (‘the property’);
1.2 that the respondents be
interdicted and restrained from erecting or attempting to erect any
form of structure, be it of a temporary
or permanent or
semi-permanent nature on the property;
1.3 that in the event that
the respondents act in a manner contrary to the relief as prayed
above, that the applicant, duly supported
by law enforcement officers
of the City of Cape Town and/or the officers of the South African
Police Service, and/or the Sheriff,
Cape Town North, insofar as same
may be necessary, is authorised to bar them from entry to the
property and/or remove them from
the property together with their
belongings.”
[18]
In its Answering Affidavit, the First
Respondent went on to allege that:
“
7.
After a period of relative peace, on 21 March 2018,
approximately 10 shacks and pole structures (‘structures’)
were erected by people on the property. I called Mr Barry
Robertson of the CALIU
[the
City’s Anti-Land Invasion Unit]
.
The CALIU, under the protection of the metro police and the SAP
removed the structures. The applicants admit that
they were
part of the group of occupiers.
8. When removing the
structures, on this and on all other occasions, before and
afterwards, copies of the court orders were made
available at the
property by the CALIU and/or the sheriff.
9. On 13 April 2018, people
returned to the property and erected another approximately 10
structures. I contacted CALIU once
again and the structures
were removed in the same manner.
10. On 10 June 2018,
approximately 20 structures were erected on the property. I
contacted the sheriff and the CALIU removed
the structures, again
under the protection of the metro police and SAPS.
11. Each time the sheriff
implements the orders on the property she erects boards with copies
of the relevant court order attached.
I annex a photograph
illustrating this as Annexure ‘AM7’. This is also
apparent from the returns of service where
it is one of the items for
which she invoices Welbeloond. I annex a copy of a return of
service received as Annexure ‘AM8’.
12. By this stage I had
incurred legal costs in the amount of approximately R170 000.00
to obtain the court orders as well
as the sheriff’s fees.
13. On or about 21 June 2018,
118 structures were erected on the property. These structures
had been erected over approximately
11 days since the previous
removal of structures on 10 June 2018. On this occasion,
the sheriff subcontracted Salie
Davids Construction (SDC) to remove
the structures. This was done at a substantial cost of
approximately R110 000.00.
14. Around this time the
sheriff indicated that she required the variation of the final order
and Welbeloond’s legal representatives
attended to this.
15. SDC, on removal of the
structures on this and subsequent occasions, took the materials
removed to the municipal dump.
Typically, there would be very
little in the structures so what was removed was, in the main,
building materials.
16. On Tuesday 21 August
2018, 10 structures were again erected on the property and once again
I requested the sheriff to act, which
she did, again using SDC as a
sub-contractor. By the time SDC removed the structures on
24 August 2018, 10 had grown
to 81.
17. A week later, on Friday
31 August 2018, 7 structures were removed from the property by SDC
following the same protocol.
18. Immediately after the
removal of the 7 structures on 31 August 2018, people commenced
building more structures and at the
time of deposing to this
affidavit, there are 3 structures on the property. I have asked
the sheriff to arrange for their
removal.
19. Up to date this situation
has cost Welbeloond approximately R440 000.00 in legal fees and
other costs. This amount
excludes the cost of opposing this
application.”
[19]
Apart from certain of the events which took
place on 22 June 2018 and in August 2018, the remainder of the
factual allegations
made in these paragraphs were not dealt with in
the Applicants’ Replying Affidavit.
[20]
Answering Affidavits to similar effect were
also filed by the Second Respondent and the Third to Fifth
Respondents (
“
the
SAPS Respondents”
).
[21]
All of the deponents to the Respondents’
affidavits denied under oath that any of the structures which were
demolished in
the course of 2018 were occupied.
[22]
In the circumstances, a significant dispute
of fact had been raised by the Respondents.
THE
APPLICANTS’ REPLY
[23]
A single replying affidavit was signed by
the First Applicant on 14 September 2018. Amongst other
things, the Applicants
alleged that the disputes which had arisen
were no more than bare denials which were far-fetched and clearly
untenable.
[24]
In the replying affidavit, heavy emphasis
was placed on annexures to the SAPS answering affidavits, which
referred to
“
evictions”
having taken place on the property on 22 June
2018, 21 August 2018, 24 August 2018 and 31 August
2018.
Inconsistencies and inadequacies in the various opposing
affidavits were also highlighted, and the service on the Applicants
of
the court orders on which the First Respondent relied, was
disputed.
[25]
In essence, the First Applicant, in her
Replying Affidavit, restricted the Applicants’ reply to
argument that the annexures
to the police report and the returns by
the sheriff indicated that the Applicants were indeed in occupation
of the property.
However, none of the Applicants filed
affidavits in which they replied to the factual statements under oath
by all of the Respondents
that no occupation had taken place.
One would have thought that, in the result, it was clear that a
substantial dispute of
fact had arisen which could not be resolved on
affidavit.
[26]
It is particularly striking that not one of
the other 80 Applicants filed any affidavits at all in reply and
none of the Applicants
described where they were and what they were
doing during the period in question, whether they were in fact in
occupation of their
own homes, let alone what actually happened on
the days described in the City’s chronology (save in relation
to the events
which took place on 22 June 2018, which is dealt
with further hereafter).
THE
STRIKING OUT APPLICATION
[27]
On the day before the hearing, the
Applicants filed an application to strike out paragraphs 16.2 to
16.2, 16.9 to 16.16, 16.22,
the first sentence of paragraph 16.26 and
paragraph 16.27 of the City’s affidavit which I have quoted
above, on the grounds
that the allegations contained therein were
hearsay.
[28]
Not only were most of the allegations in
these paragraphs confirmed by confirmatory affidavits, but the
Applicants had proceeded
as a matter of extreme urgency. In
this situation, the fact that certain of the factual allegations
contained in the City’s
comprehensive opposing affidavits may
not have been covered by each of the confirmatory affidavits filed,
is not unsurprising.
[29]
In any event, and in particular insofar as
the aerial photograph is concerned, the City relied on
Section 3(1)
of the
Law of Evidence Amendment Act, 45 of 1988
. In my
opinion, the City made out a compelling case for this evidence to be
taken into account. In the short time available
to the City,
the City had put up no less than 5 affidavits and a comprehensive
answer, in litigation where a very flimsy case had
been made out
against it in the first case - the City having disputed any active
role in the events of August 2018, which role
was not disputed by any
factual averment in reply.
[30]
On the other hand, what does call for
censure, is the Applicants’ attempt to hide behind the alleged
hearsay nature of the
City’s evidence so as to not to answer
the allegations of fact which plainly called for an answer by the
Applicants.
At issue is the occupation by each of the
Applicants of the property, and there is no-one better placed to put
the correct facts
before the Court than them - that is if they had
genuine grounds to dispute the facts. Instead, they chose to
hide behind
the alleged hearsay nature of the evidence. They
did not even put up their own version in the alternative, in the
event that
the City’s allegations were not struck out, which is
the usual way to deal with disputed evidence of this nature.
THE
EVENTS OF 22 JUNE 2018
[31]
In reply, the Applicants conceded that the
events of 22 June 2018 described in paragraphs 16.17 to 16.21 of
the City’s
affidavit quoted above
[1]
had occurred and sought to justify their failure to deal with it in
their Founding Affidavit in the following way:
“
65.1
In this regard I wish to point out that we returned to the property
the next day, being 23 June 2018, and restored our
structures on
the property. This is not contained in my founding affidavit
for the following reasons:
65.1.1 at the time we
consulted with our legal representatives we were focussed on the
events of 21 and 24 August 2018;
65.1.2 we were quite anxious
as we had been rendered homeless by these events, coupled with the
fact that we didn’t have any
funds either to sustain ourselves
nor children;
65.1.3 this period seemed
inconsequential to us as we were back in our homes the very next
day. Such a short time period did
not alert us to it being
relevant at the time when the founding papers were drawn up, unlike
the period during April 2018.”
[32]
This response not only lacks credibility,
but it is unsupported by any other affidavit. It also seemed
strange that of all
the events described by the Respondents, the
Applicants elected to only deal with, and to admit, this specific
one. It seemed
strange, until one realises that the Applicants
wished to rely on the hearsay police reports concerning the events of
22 June in
their Replying Affidavit.
THE
ABANDONMENT OF THE CASE BASED ON SPOLIATION
[33]
In the course of his argument in reply, and
to everyone’s surprise, the Applicants’ counsel disavowed
any reliance on
the principles relating to spoliation for the relief
which the Applicants seek. He did this notwithstanding the
express statement
in the Applicants’ Founding Affidavit that
“
the
Applicants are, mainly seeking a relief by way of a
mandament
van spolie
,
as the Respondents unlawfully deprived us of possession without
following legal procedures”
.
[34]
The Applicants now narrowed their argument
to one based solely upon the Constitution. In terms of this
argument, the Applicants
now argued that they were entitled to all
the relief which they seek, even if their occupation of the property
was unlawful and
even if that occupation had not been peaceful.
[35]
For this argument, the Applicants’
counsel relied, in the first instance, on
Tswelopele
Non-Profit Organisation and Others v City of Tshwane Metropolitan
Municipality and Others
.
[2]
[36]
While their reliance on that case may be
relevant to certain of the relief sought by the Applicants, that case
does not provide
an alternative basis to obtain what amounts to a
spoliation order without satisfying the requirements for a
mandament
van spolie
.
[37]
The Applicants also relied on
Schubert
Park Residents’ Association and Others v City of Tshwane
Metropolitan Municipality and Another
.
[3]
However, that case once again dealt with a different issue where, in
the first instance, the requisites for a
mandament
van spolie
had already been
established, but it was not possible for the court to order the
immediate restoration of possession.
[38]
In the result, neither case is authority
for the proposition that in the circumstances of this matter, the
Applicants had established
an entitlement to the final relief sought
by them.
URGENCY
[39]
Insofar as urgency is concerned, the First
Respondent points out that by no later than April 2018, if the
Applicants were in occupation
of their homes and they had been
evicted, they would, and should, have proceeded to court for relief,
but they failed to do so.
Their explanation that they did not
know what their rights were at that time, against the history of this
matter, is, at best,
dubious, especially in the light of the
deficient nature of their Replying Affidavit. Plainly, this
land has a history of
invasions from nearby areas, so much so that
the First Respondent went to court to attempt to stop those invasions
in 2017 already.
[40]
It is not in dispute that all of the
Respondents believe that they were acting lawfully in terms of court
orders granted by this
Court, the first having been granted on
15 March 2017, the second on 30 March 2017 and the third,
being the amendment
of the second order on 22 June 2018.
[41]
As it turned out when their actions were
challenged in their Answering Affidavits, and apart from the First
Applicant, none of the
other Applicants filed affidavits to set out
their version of the facts or explain their actions, or their
knowledge of the court
orders (or the lack thereof).
[42]
In any event, the First Respondent alleged
that at all times it acted in accordance with the law, as do the
remaining Respondents,
and in the light of the existence of the court
orders which have not been set aside,
[4]
it is not possible to reject their version on motion in these
circumstances, let alone to decide this issue as one of extreme
urgency.
COSTS
[43]
This Court will always have regard to the
rights and interests of the poor and underprivileged and will always
regard their Constitutional
rights in the most serious light.
There are countless judgments from the courts of our land which
emphasise that.
[44]
However, that does not mean that the
underprivileged are entitled to abuse court processes.
[45]
There can be no doubt that significant
disputes of fact were raised by the Respondents, which the Applicants
elected to deflect
by way of argument in their Replying Affidavit -
and they did so at their peril when they failed to address the
specific and detailed
factual averments made in the Answering
Affidavits.
[46]
Furthermore, there were simply no grounds
made out to justify the extreme urgency with which the Applicants
proceeded in this case,
as the aforegoing analysis indicates.
[47]
Moreover, the Applicants persisted with
their claims for far-ranging final relief on motion when it was plain
that they had failed
to lay any basis to do this, let alone that it
was inappropriate to do so in front of the Urgent Court.
[48]
When I asked the Applicants’ counsel
why the Applicants should not be ordered to pay the Respondents’
costs, he called
in aid the Constitutional Court decision of
Biowatch
.
[5]
[49]
However, that principle does not have
application in this matter, certainly insofar as the First and Second
Respondents are concerned.
Insofar as the Third to Sixth
Respondents are concerned, significant relief was sought against them
on the strength of vague, unsubstantiated
allegations which were
comprehensively answered in their opposing affidavits. Not
daunted, the Applicants persisted with
their claim for final relief
against all of the Respondents, without attempting in any effective
way to deal with the factual allegations
made in the answering
affidavits.
[50]
While in the normal course I would have
been very reluctant to make a costs order against indigent
applicants, the circumstances
of this matter are such that I have
decided to accede to the Respondents’ request and to order that
the costs should follow
the result and that the Applicants should pay
the Respondents’ costs jointly and severally, the one paying
the others to
be absolved.
THE
ORDER
[51]
In the circumstances, the application is
dismissed with costs, such costs to be paid jointly and severally by
the Applicants.
MACWILLIAM AJ
DATE
OF HEARING:
20 September 2018
21 September 2018
APPEARANCES
For
the Applicant: Adv. A Njeza and Adv. K Adriaanse
Instructed
by: Melanie Stevens Attorneys,
Cape
Town
For
the 1
st
Respondent: Adv. P Myburgh
Instructed
by: Norton Rose Fulbright South Africa,
Cape
Town
For
the 2
nd
Respondent: Adv. D Mitchell
Instructed
by: Marlon Shevelew & Associates,
Cape
Town
For
the 3
rd
, 4
th
, 5
th
Respondents: Adv.
H Cronje
Instructed
by: State Attorneys, Cape Town
For
the 6
th
Respondent: Adv. R Wynne
Instructed
by: Timothy & Timothy Attorneys,
Cape
Town
[1]
In the Applicants’ Replying Affidavit, reference is made to
paragraphs 16.22 to 16.29 of the City’s affidavit, but
that
reference appears to be an error as those paragraphs did not deal
with the events of 22 June 2018 as appears from the paragraphs
which
are quoted above.
[2]
2007 (6) SA 511
(SCA)
[3]
2013 (1) SA 323 (CC)
[4]
cf
Oudekraal Estates (Pty) Limited v City of Cape Town and
Others
2004 (6) SA 222 (SCA)
[5]
Biowatch Trust v Registrar, Genetic Resources
2009 (6)
SA 232
at p. 246 paras [22] and [23]