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[2019] ZAWCHC 80
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Growthpoint Properties Ltd v All persons intending to occupy Erf 165639, Cape Town and Others (22326/2018) [2019] ZAWCHC 80; [2019] 3 All SA 759 (WCC) (28 June 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
no: 22326/2018
GROWTHPOINT
PROPERTIES
LTD
Applicant
v
ALL
PERSONS INTENDING TO OCCUPY ERF 165639,
CAPE
TOWN
Respondents
RECLAIM
THE
CITY
First
Interested Party
#UNITEBEHIND
Second
Interested Party
SOCIAL
JUSTICE
COALITION
Third
Interested Party
Coram:
Justice J I Cloete
Heard:
3 June 2019
Delivered:
28 June 2019
JUDGMENT
CLOETE
J
:
Introduction
[1]
This is the extended return day of a rule
nisi
granted
ex
parte
by Savage J in chambers on 4 December 2018, interdicting
the respondents from entering or remaining on the applicant’s
immovable
property, being erf 165639 Cape Town, which is a portion of
vacant land currently utilised as a parking lot and situated at
5 Lower
Loop Street, Cape Town (“the property”). The
respondents were also interdicted from erecting or attempting to
erect
any form of structure on the property, be it of a temporary,
permanent or semi-permanent nature.
[2]
On the return day, 15 January 2019, the applicant consented to
the first to third interested parties being granted leave
to
intervene and oppose, and the rule
nisi
was extended to 3 June
2019 by Masuku AJ, together with an agreed timetable for the filing
of further affidavits. By the time
the matter came before me on
3 June 2019 the only parties who opposed the granting of a final
interdict were the first and
second interested parties. It is common
cause that on the evening of 4 December 2018 the respondents
vacated the property
after the
ex parte
order was served upon
them by the sheriff and have not returned. They have also formally
undertaken not to return to the property.
[3]
The first interested party, Reclaim the City, is a voluntary social
movement comprised of Cape Town working class residents
(including
domestic workers, waitrons, call-centre workers, carers and security
guards), learners, university students and professionals.
It was
formed to ‘
advocate for just and equal access to land and
housing for all, undo the legacy of a segregated and unequal
apartheid city…
advocate for an accountable government on
issues of land, housing and spatial justice… resist and
prevent unjust practices
by government and all sources of private
property power’.
[4]
In order to realise its objectives and vision, Reclaim the City
‘
protests in a variety of non-violent forms’
. The
early form of the social movement was launched at a public community
meeting held in Cape Town on 13 February 2016 as
a direct
response to the sale, by the Western Cape Government, of state land
in Cape Town to private sector investors. The applicant
is one of
those investors.
[5]
The second interested party, #UniteBehind, is a civil society
coalition which was formed in April 2017 by over 20 organisations
and
movements. It ‘…
strives to advance the rights
enshrined in our Constitution and in particular the right to human
dignity, land reform and housing,
health education, safety and
security, basic service delivery’
and ‘
foster
genuine political participation of all people in our society to
achieve openness, transparency and direct accountability…
done
through organising, protest action, citizen assemblies and political
education’.
[6]
For convenience, I refer to the first and second interested parties
as “the interested parties”. They oppose the
granting of
a final interdict in their capacity as civic society organisations
acting in the public interest and in their own interest,
in order to
uphold and protect the constitutional right to protest contained in
s 17 of the Constitution, which provides that:
‘
Everyone
has the right, peacefully and unarmed, to assemble, to demonstrate,
to picket and to present petitions.’
[7]
The crux of the interested parties’ opposition lies in their
contention that the applicant breached the duty of utmost
good faith
in the
ex parte
application and how this impacted what they
describe as the respondents’ constitutional right to protest.
They say that their
opposition is procedural in nature to vindicate
their constitutional rights as well as to ensure that the applicant’s
conduct
does not set an unsavoury precedent for future cases.
[8]
In particular, they contend that the duty of utmost good faith is
more stringent when it concerns and affects constitutional
rights as
is the case, so they argue, in the present matter. They submit that
confirmation of the rule
nisi
would set a weighty precedent to
sanction the manner in which the applicant initially approached court
in what they consider to
be an attempt to obtain a tactical advantage
over the respondents.
[9]
It is necessary to place the interested parties’ opposition in
proper context. This court is
not
called upon to determine
whether or not the constitutional right to protest enshrined in s 17
of the Constitution extends
to the right to do so on privately owned
property. The interested parties accepted, in their answering
affidavit, that the applicant,
as owner of the property, is entitled
to prevent access thereto by third parties.
[10]
However, at the same time, the interested parties maintained that
their interest in this application ‘
is to uphold the right
to protest as enshrined in section 17 of the Constitution’
;
that the respondents’ presence on the property ‘
was
pursuant to an exercise of the right to protest’
; and that
‘
there is no settled case law on whether the right to
property automatically outweighs the right to protest, and thus a
Court might
have refused the
ex parte
order had the Applicant
not withheld all the facts’.
[11]
This apparent contradiction, which gave rise to some confusion, was
taken up with
Ms Matsala
, who appeared for the interested
parties. She rightly accepted that in order for them to have advanced
a case on the issue of whether
s 17 extends to privately owned
property, the interested parties were obliged to follow the procedure
laid down in rule 16A
of the uniform rules of court. Given their
failure to do so
Ms Matsala
conceded that it was not an issue
that was properly before me.
[12]
The interested parties’ opposition thus boiled down to the
following, namely that the applicant breached the duty of
utmost good
faith in not disclosing all material facts when it brought the
ex
parte
application. Had it done so, it was submitted, then Savage
J would have been made aware of the facts relating to the nature and
context of the protest and the sequence of events, and might have
refused the interim order, alternatively granted an order in
different terms. I will thus approach the determination of this
matter on that basis, and it is therefore also not necessary for
me
to make a finding on whether or not, where constitutional rights are
at risk, a more stringent duty is placed upon an applicant
in
ex
parte
proceedings.
[13]
Before turning to the allegations in the papers, it is convenient to
refer to the established legal principles pertaining to
the duty of
utmost good faith in
ex parte
applications.
Applicable
legal principles
[14]
These were recently re-stated by the Supreme Court of Appeal in
Recycling and Economic Development Initiative of South Africa v
Minister of Environmental Affairs; Kusaga Taka Consulting (Pty) Ltd
v
Minister of Environmental Affairs
2019 (3) SA 251
(SCA) at paras
[45] to [52]:
‘
Disclosure
– legal principles
[45]
The principle of disclosure in
ex
parte
proceedings is
clear. In
NDPP v
Basson
this court
said:
“
Where an order
is sought ex parte it is well established that the utmost good faith
must be observed. All material facts must be
disclosed which might
influence a court in coming to its decision, and the withholding or
suppression of material facts, by itself,
entitles a court to set
aside an order, even if the non-disclosure or suppression was not
wilful or mala fide (Schlesinger v Schlesinger
1979 (4) SA 342
(W) at
348E–349B).”
[46]
The duty of the utmost good faith, and in particular the duty of full
and fair disclosure, is imposed because orders granted
without notice
to affected parties are a departure from a fundamental principle of
the administration of justice, namely,
audi
alteram partem
. The
law sometimes allows a departure from this principle in the interests
of justice but in those exceptional circumstances the
ex
parte
applicant
assumes a heavy responsibility to neutralise the prejudice the
affected party suffers by his or her absence.
[47]
The applicant must thus be scrupulously fair in presenting her own
case. She must also speak for the absent party by disclosing
all
relevant facts she knows or reasonably expects the absent party would
want placed before the court. The applicant must disclose
and deal
fairly with any defences of which she is aware or which she may
reasonably anticipate. She must disclose all relevant
adverse
material that the absent respondent might have put up in opposition
to the order. She must also exercise due care and make
such enquiries
and conduct such investigations as are reasonable in the
circumstances before seeking
ex
parte
relief. She may
not refrain from disclosing matter asserted by the absent party
because she believes it to be untrue. And even where
the
ex
parte
applicant has
endeavoured in good faith to discharge her duty, she will be held to
have fallen short if the court finds that matter
she regarded as
irrelevant was sufficiently material to require disclosure. The test
is objective.
[48]
As Waller J said in
Arab
Business Consortium
,
points in favour of the absent party should not only be drawn to the
Judge’s attention, but must be done clearly:
“
There should be
no thought in the mind of those preparing affidavits that provided
that somewhere in the exhibits or in the affidavit
a point of
materiality can be discerned, that is good enough.”
[49]
The
ex parte
litigant
should not be guided by any notion of doing the bare minimum. She
should not make disclosure in a way calculated to deflect
the Judge’s
attention from the force and substance of the absent respondent’s
known or likely stance on the matters
in issue. Generally this will
require disclosure in the body of the affidavit. The Judge, who hears
an
ex parte
application,
particularly if urgent and voluminous, is rarely able to study the
papers at length and cannot be expected to trawl
through annexures in
order to find material favouring the absent party.
[50]
In regard to the court’s discretion as to whether to set aside
an
ex parte
order
because of non-disclosure, Le Roux J said in
Schlesinger
v Schlesinger
“
. . . [U]nless
there are very cogent practical reasons why an order should not be
rescinded, the Court will always frown on an order
obtained
ex
parte
on incomplete information and will set
it aside even if relief could be obtained on a subsequent application
by the same applicant.”
[51]
This is consistent with the approach in English law, that if material
non- disclosure is established a court will be
“astute to
ensure that a plaintiff who obtains [an
ex
parte
order] without
full disclosure, is deprived of any advantage he may have derived by
that breach of duty”.
[52]
As to the factors that are relevant in the court’s exercise of
its discretion whether or not to set aside an
ex
parte
order on grounds
of non-disclosure, in
NDPP
v Phillips
this court
said that regard must be had to the extent of the non-disclosure, the
question whether the Judge hearing the
ex
parte
application
might have been influenced by proper disclosure, the reasons for
non-disclosure and the consequences of setting the
provisional order
aside.’
The
allegations on the papers
[15]
The deponent to the applicant’s founding and replying
affidavits was Mr Timothy Irvine (“Irvine”), who
is
employed as its asset manager. The founding affidavit was not
supported by any confirmatory affidavit(s) when the
ex parte
application came before Savage J. In the founding affidavit Irvine
however stated that he deposed to it ‘
by virtue of my
personal knowledge of the facts thereof and in my capacity as a
representative of the registered owner of the relevant
property’.
[16]
The case made out in the founding affidavit may be summarised as
follows. An unlawful invasion of the property had commenced
that day,
i.e. 4 December 2018. A large group of persons had arrived
at the property claiming an entitlement to occupy
it. Irvine believed
that they had either been encouraged by ‘
third parties’
or duped by these third parties into believing that the property was
public land which they were entitled to occupy.
[17]
He alleged that at the time of deposing to the founding affidavit
(the time was not disclosed) no persons were resident on
the property
and nor had any residential structures been erected. However there
was a group of several dozen people, to the applicant
unknown, who
were in the process of beginning to erect rudimentary structures.
Irvine annexed a photograph ‘
showing circumstances as they
are as at approximately 08h00 this morning’.
[18]
The photograph in question depicts a group of about 30 people milling
about on the property, some of whom were brandishing
flags bearing
the inscription “RTC”. Irvine stated that the property is
encircled by a fence and that the only way
to gain entry is through
the boom at the gate of the property. According to him, it appeared
that during the course of the morning
these people (i.e. the
respondents) simply forced their way through this boom and onto the
property.
[19]
He alleged that the respondents were persons wholly unknown to the
applicant and that ‘
for obvious reasons the respondents have
no inclination to disclose their identities to the applicant’.
Irvine went further, alleging that ‘
where the respondents
might at present be resident is a matter… unknown and
accordingly it is impossible for the applicant
to ascertain their
identities or to serve papers on them in the ordinary course’.
[20]
According to him, given that some of the individuals were in the
process of erecting structures on the property with the intent
to
occupy, if the hearing of the application was to be delayed in order
to effect service on these individuals, the very object
of the
interim interdict sought would be frustrated. He maintained that:
‘
10.6
Further, there is the very real concern, as I am informed has
happened in many previous cases of this nature, that service
of these
papers will precipitate exactly the sort of conduct that the
applicant fears, namely an orchestrated and large scale invasion
of
the land with the intent of occupying same before an order
concretizes the rights of the applicant.’
[21]
Irvine stated that he had personally attended at the property and
estimated that there were approximately 12 structures
in the
process of being erected, all along the boundary, evidently with the
intention to create the impression of occupation. He
had been
informed that the manner in which the land invasion was taking place
is an example of what is commonly referred to as
“plot
farming”, alternatively was being driven with a political
motive. What “plot farming” entails is
a consortium of
persons, frequently with fake proprietary credentials or fake
credentials, indicating that they are officials of
an organ of state,
who let it be known that they are entitled to make either private or
public land, as the case may be, available
to persons in need, almost
uniformly in exchange for payment of an “administrative fee”
or some form of simulated purchase
or lease agreement. Person acting
under these misrepresentations then pay for the “right”
to build a structure.
[22]
He further stated that:
‘
14.6
I suppose that it is technically possible that a large group of
persons all independently and spontaneously decided to take
steps to
occupy the land of the applicant on the same day, but would submit
that this is extraordinarily unlikely. The fact that
such a large
group of persons at the same time are attempting to occupy the land
is indicative of the fact that this is indeed
such a case of plot
farming or a politically motivated land invasion.’
[23]
Irvine maintained that a further indicator of the fact that the
respondents had been misled as to the nature of the land in
question
was evidenced by a photograph taken during the course of the morning
in which a banner is evident displaying the words
“RECLAIM
ALL
PUBLIC LAND”
.
While the City was previously the owner of
the land in question, it was purchased by the applicant for
development purposes in 2016.
[24]
Irvine went on to state that:
‘
18.
I should point out that the applicant’s attorney of record, Mr
Andre Pepler has been in telephonic communication with
one Mr Jonty
Cogger, who purports to act on behalf of an organisation known as
Ndifuna Ukhwazi
.
18.1
It is unsure whether this organisation is the organisation which is
in fact orchestrating the land invasion or not but Mr Cogger
apparently takes the view that the occupation of land is “symbolic”
and in so doing they simply wish to create an opportunity
to engage
with the applicant and the City of Cape Town.
18.2
I attach hereto in this regard email correspondence received from Mr
Cogger by applicant’s attorneys of record during
the course of
this morning.
18.3
While Mr Cogger might represent some of the people seeking to occupy
the property there is no way of knowing whether this is
indeed the
case.
18.4
Further, in the event structures are erected on the property it could
very well encourage other third parties to similarly
erect
structures.
18.5
Further, while Mr Cogger might refer to this as “symbolic”
we have only his word in this regard, and I should point
out that
this is the undertaking of a person who has already clearly seen fit
to act in breach of the law by making himself a party
to the unlawful
occupation of land. In any event, whether it is “symbolic”
or not is with respect of no moment, the
occupation of the land
remains unlawful.
18.6
The applicant has no certainty to the effect that the persons
currently on the property will vacate same during the course
of this
afternoon, although it sincerely hopes that this is indeed the case.
18.7
The applicant will happily liaise with this gentleman and engage with
him and whatsoever organisation he represents in due
course, but will
do so once the applicant’s rights have been protected. In the
event that the occupation of the land in question
is indeed
“symbolic”, then there can be no prejudice occasioned by
this.
18.8
Further, the applicant has no knowledge as to whether or not all the
persons seeking to occupy the property are in fact represented
by Mr
Cogger and in the circumstances applicant elects to err in favour of
a more generous interpretation of the rights of the
respondents and
to afford any person who feels that he or she has the right to occupy
the land to approach this honourable court
and give reasons why this
should be the case…’
[25]
The email to which Irvine referred was sent to Pepler at 11h21 that
day and reads as follows:
‘
Dear
Mr Pepler
Our
telephone conversation earlier today refers.
We
note that Growthpoint Property Limited has instructed you to obtain
an urgent interdict against a protest occurring at Site B
today
[i.e.
the property].
You
indicated that you require more information on the nature of protest.
Kindly find attached a joint statement from the social
movements
participating in the protest, which include Reclaim the City, Social
Justice Coalition and #UniteBehind. This statement
explains the
reasons and the intention for the protest.
https://www.facebook.com/751429941654979/posts/1379555322175768/
My
instructions are that the erection of structures at Site B symbolise
the struggle that the majority of Capetonians, and South
Africans,
face in the struggle for access to adequate housing. As such the
structures have been erected to demonstrate the plight
of
homelessness and inequality in access to land and property as well as
a system where well-located land is sold to private entities
without
the concomitant redress. As indicated in the public statement, the
participants have engaged in various protests in the
last few months
without producing adequate or sufficient answers as to the
circumstances of the disposal of Site B to Growthpoint.
At
the heart of today’s protest is a desire for public
accountability for the sale of valuable well-located public land to
private entities. With this in mind, my instructions are to request
an audience with your client and the relevant officials at
the City
of Cape Town to explain the disposal of Site B at a convenient time.
This, they believe, is the most practical solution
without engaging
in protracted legal processes.
We
wait for your response.
Regards,
Jonty
Cogger
Attorney
1 Ndifuna Ukhwazi Law Centre
+27
72 456 1185 +27 21 012 5094 nu.org’
[26]
The contents of the statement posted on Facebook, referred to in
Cogger’s email, did not form part of the founding papers.
It
was only on 20 December 2018 (16 days after the
ex parte
order was granted) that Pepler deposed to a “supplementary
affidavit”. After confirming the correctness of Irvine’s
founding affidavit to the extent that it related to him, Pepler
added:
‘
4.
I wish in addition to confirm that I did speak to Mr Cogger early on
the morning of 4 December 2018. I confirm that Mr Cogger
sent me a
WhatsApp message at 8:57 requesting permission to go onto the
property to take legal instructions and that I responded
immediately
thereafter confirming that he may go onto the property to take such
instructions.
5.
Although it was not expressly stated I believe it is common cause
between Mr Cogger and I that he would be on the property for
the
purpose of taking instructions as the attorney for the persons then
occupying or seeking to occupy the property.
6.
Mr Cogger called me back at 9:23 to relay his client’s
instructions to me. I requested that he put same in writing –
which eventuated in the email being annexure “FA6” to the
founding affidavit deposed to by Timothy William Irvine.
7.
I thereafter called Mr Cogger on his mobile phone at around 19:00
that evening when I arrived at the property together with the
sheriff
in order to execute the order handed down earlier in the day under
the above case number. The purpose was to attempt to
arrange for a
peaceful vacation of the property. Mr Cogger was still at the
property that evening, and he and I had an initial
discussion on the
vacation of the property by those persons occupying same.
8.
The evening ended when the persons occupying the property voluntarily
vacated same and, at the same time, dismantled and removed
the
structures that they had erected along with black plastic chairs,
mattresses, portable generators and portable toilets…’
[27]
It will immediately be apparent that what Pepler disclosed about
Cogger’s involvement in his supplementary affidavit
of
20 December 2018 paints a very different picture to that
“disclosed” by Irvine in the founding affidavit. It
is
abundantly clear that, by the time the
ex parte
application
served before Savage J, Pepler was aware that: (a) Cogger was
acting in his capacity as the attorney for the persons
then occupying
or seeking to occupy the property; (b) despite this knowledge,
Cogger was not given any notice of the
ex parte
application;
and (c) the first time Cogger, in his capacity as attorney for
the respondents, had any notice of the application
was after the
ex
parte
order was granted in chambers.
[28]
In the answering affidavit filed on behalf of the interested parties
the deponent, Ms Karen Hendricks (“Hendricks”)
who is a
member of both, submitted that the applicant failed to disclose
and/or suppressed material facts in its
ex parte
application:
28.1 First, the applicant failed to
disclose that it knew and had prior engagement with the first
interested party whose members
were present on the property on
4 December 2018. Throughout his affidavit, Irvine claimed that
the respondents were wholly
unknown to him. These claims were
patently false;
28.2 Secondly, the applicant failed to
disclose, and as a result misled Savage J, as to the reason for the
respondents’ presence
at the property. The applicant (via
Pepler) was informed by Cogger both telephonically and in writing on
the day of the protest
that people had gathered on the property to
protest against its disposal by the City to the applicant, in
circumstances where it
was believed by the protesters that some
corruption, collusion or negligence was at play in the disposal and
related processes.
The applicant knew that the protesters were not on
the property for the purpose of a large scale orchestrated land
invasion as
Irvine claimed, but were rather voicing and protesting a
legitimate grievance of significant public interest and concern; and
28.3 Thirdly, the applicant failed to
disclose that its attorney had approached the interested parties’
attorney early on
the morning of 4 December 2018 to inform him
of the applicant’s instructions to apply for an urgent
interdict. Clear
lines of communication had been established between
Pepler and Cogger. Despite knowing that the interested parties (in
addition
to the respondents) were legally represented, Irvine
misrepresented the nature of Cogger’s presence on the property.
[29]
Hendricks set out in some detail why the interested parties believe
that corruption, collusion or negligence was involved in
the disposal
of the property and subsequent processes. It is not necessary to set
out these details in this judgment, nor to make
any finding on
whether or not the interested parties’ grievances are
well-founded. The point is rather that the applicant
well knew of the
existence of these grievances, but did not disclose them in the
ex
parte
application.
[30]
Hendricks pointed out
inter alia
that on 4 October 2018,
a peaceful protest was held outside the applicant’s offices in
Claremont. At this protest, a
list of questions was handed over to
Irvine himself as well as the applicant’s head of marketing,
Ms Nadine Kuzmanich.
This protest ended when Ms Kuzmanich
addressed the protesters and undertook to respond to the questions
within two weeks.
This is borne out by an email addressed by
Kuzmanich to the first interested party dated 25 October 2018
which reads as follows:
‘
As
promised, attached please find our statement regarding Growthpoint’s
position on Site B
[i.e.
the property]
, which
we will also be issuing to the media.
We
are confident that our statement will give answers to all your
questions and provide the context that is so important.
We
would like to emphasise that we are significantly committed to the
City of Cape Town and its people, but we believe that the
provision
of social housing is the responsibility of the City. We cannot
prescribe how the City directs its proceeds from the sale
or the
significant administered costs that we pay them.
Regards
Nadine’
[31]
Hendricks also pointed out that on 10 October 2018 a further
peaceful protest was held outside the offices of the applicant’s
town planner, Nigel Burles & Associates. In subsequent email
correspondence, Burles agreed to meet on 16 October 2018
to
answer any questions relating to the disposal of the property.
Annexed to the answering affidavit is an email dated 11 October
2018 addressed to Burles by a member of the first interested party’s
co-ordinating committee, thanking Burles for agreeing
to meet with
them and setting out a short list of questions. It concluded with the
following sentiments, namely ‘…
we would really
appreciate it if you can answer the questions. We think it is
important so that we and other residents in Cape Town
can better
understand how this happened’.
[32]
It was also pointed out that on 24 October 2018 a further
peaceful protest was held outside the private residence of the
consultant contracted by the applicant to submit the land use
application, namely Mr Jappie Hugo. It ended at about midday
as
Mr Hugo refused to address the protesters.
[33]
On 8 November 2018 a further protest was held at the Civic Centre,
which resulted in a meeting with certain City officials.
They were
however unable to provide any further information on the City’s
forensic investigation into the interested parties’
grievances.
[34]
On 27 November 2018 a penultimate peaceful protest was held at
Alderman Ian Nielson’s private residence in
Cape Town. He
is currently the Deputy Mayor, but at the time of disposal of the
property he was the Executive Director of Asset
Management at the
City. The protest ended when Mr Nielson left the premises with a
police escort.
[35]
According to Hendricks, the final protest occurred on 4 December
2018. Its purpose was two-fold: first, to raise awareness
of the sale
of well-located public land to private entities; and secondly,
erecting empty structures on the property to showcase
the
inequalities of living conditions in Cape Town between the affluent
inner city and the poor marginalised periphery of the city.
The
intention was to gain an audience with both the applicant and the
City to account to the protesters for the disposal of the
property.
This is borne out by Cogger’s email to Pepler. Instead of this
occurring, the protest ended peacefully after Pepler
arrived at the
property with the
ex parte
order.
Discussion
[36]
While it is so that Cogger’s email was referred to in the
founding affidavit, and was undoubtedly read by Savage J, what
cannot
seriously be disputed is that the real purpose of the occupation, not
only in light of the history between the parties,
but also the
communications between Pepler and Cogger, must have been known to
Irvine. He did not disclose this in the founding
affidavit. Instead
he portrayed a picture of entirely unknown persons who appeared
intent on orchestrating a large scale land invasion
of indefinite
duration. Not only that, but the case advanced by the applicant was
such as to deflect Savage J’s attention
from the known or
likely stance on the matters in issue on the part of the absent
respondents, who any reasonable person in the
applicant’s
position would have realised were on the property as members of at
least the first interested party.
[37]
Irvine painted a picture of grave and imminent prejudice to the
applicant if the order was not granted on an
ex parte
basis.
He did not pertinently draw to Savage J’s attention in his
affidavit that the logo on the flags brandished by some
of the
protesters were clearly those of the first interested party; he did
not disclose the fact that prior protests had occurred
in a peaceful
and orderly fashion and had ended when either engagement had taken
place, was promised or refused; and he misled
Savage J as to Cogger’s
actual purpose for being on the property.
[38]
I agree with the interested parties that, in so doing, the applicant
breached its duty of utmost good faith. Had the respondents
(and thus
the interested parties) been afforded the opportunity to be heard in
circumstances which were clearly not of dire urgency
as claimed, it
may well have become apparent to Savage J that the protest action did
not pose a real threat to the applicant’s
property rights. The
court hearing the application for interim relief would also have been
in a position to make a determination,
favourable to the applicant or
not, or indeed somewhere in between, after having had the benefit of
all relevant and material facts.
[39]
Irvine’s allegations regarding Cogger are particularly
concerning. On Pepler’s own subsequent admission Cogger
did
not, as Irvine alleged, see fit to act in breach of the law by making
himself a party to the unlawful occupation of land. Pepler
knew and
understood why Cogger was entering onto the property, and he also
knew that Cogger was doing so with the applicant’s
permission.
[40]
If Pepler knew that Cogger had the applicant’s permission then
it is highly unlikely that Irvine, who was furnishing
instructions to
Pepler, was oblivious to this. Pepler, as the applicant’s
attorney, should also have ensured that all relevant
and material
facts were disclosed in the founding papers. There is no apparent
reason why he could not have deposed to an affidavit
setting out the
full extent of his communications with Cogger, and what he understood
Cogger’s role to be, before the matter
came before Savage J.
[41]
As set out in the Supreme Court of Appeal authority to which I have
referred, in an
ex parte
application the applicant has a duty
of utmost good faith to bring all material facts before the court
which
might
affect the granting or otherwise of the
ex
parte
order. The failure to do so can lead to the order
being set aside if it is shown that the court
might
have come
to a different conclusion had it been fully appraised of all the
facts. In the instant matter, not only was the application
brought on
the basis of utmost urgency, reliance was placed on uncorroborated
hearsay evidence, and to the applicant’s knowledge
an attorney
was both local and available to accept service.
[42]
In the replying affidavit Irvine took the opportunity to set out ‘…
in
a little bit more detail the events that took place on 4 December
2018, as since established by applicant’.
Essentially this
amounted to information that Irvine obtained from Mr Mzwanele Ndlovu
of Interpark, which manages the parking lot
on the applicant’s
behalf, and who was present at the property on the day in question.
According to Ndlovu, the persons who
entered the property did so by
ignoring his instruction to the contrary and proceeding to open the
boom and move onto the property
both on foot and in minibus taxis,
motor cars, a truck and a bakkie. Ndlovu immediately contacted his
controller and informed him
that the property had been taken over by
persons unknown to him. After they took control of the property these
individuals closed
the boom and the gate and did not let any of the
persons entitled to park on the property to enter it. They sealed the
gate to
the property with a chain and a padlock.
[43]
Two issues arise therefrom. The first is that Irvine does not explain
why he was not able to obtain this information from Ndlovu
and
incorporate it in his founding affidavit along with a confirmatory
affidavit by Ndlovu when the
ex parte
application came before
Savage J. The second is that these allegations were raised for the
first time in reply and the interested
parties were therefore unable
to deal with them. In any event, none of this detracts from Irvine’s
duty to have taken the
court into his confidence about the real
purpose of the occupation and the events which preceded it.
[44]
Irvine also persisted in his allegation that he had no knowledge of
the identity of the actual persons on the property on 4
December
2018. To my mind, this is a contrived allegation. It may well be that
he did not know the identity of each individual
but it is clear from
photographs attached, not only to the founding affidavit but also to
the answering affidavit, who these individuals
purported to
represent, namely the interested parties.
[45]
Significantly, Irvine was constrained to concede in the replying
affidavit that he was aware of the protests that took place
on at
least 4 October, 10 October and 24 October 2018. He sought
however to place reliance on the fact that none of the prior
protests
had taken place on private property. That of course did not relieve
him of the obligation to disclose, in the founding
affidavit, the
fact of the prior protests and the context in which they took place.
[46]
Irvine also went to some lengths to justify the
ex parte
application by referring to the contents of the Facebook post
referred to in Cogger’s email of 4 December 2018. While
some of the contents of that post, which was disclosed by the
interested parties, might be considered irresponsible, the fact of
the matter is that it was not drawn to Savage J’s attention
because it did not find its way into the founding papers. Not
only
that, but it did not form the basis of the case made out by the
applicant, because it makes clear reference to ‘
peaceful
protest’.
[47]
It is against this background that I am unable to agree with the
submission made by
Mr Rosenberg SC
who, together with
Mr
Wilkin
, appeared on behalf of the applicant on the extended
return date that, given that Savage J exercised her discretion
judicially,
there is no basis to discharge the interim order in
circumstances where the interested parties concede that the applicant
has the
right to refuse third parties access to the property. For all
of the reasons already given, that is not the test. I am instead
persuaded that the applicant omitted to place all relevant facts
before Savage J and that these omissions were material. The extent
of
the non-disclosure was also material. Savage J might have been
influenced by proper disclosure to grant a different order. The
reasons given for non-disclosure, to the extent that they were
advanced in reply, are flimsy and unpersuasive. In addition the
respondents have given a formal undertaking not to return to the
applicant’s property and I accept that this undertaking
includes the interested parties on whose behalf the respondents were
there in the first place.
[48]
Insofar as costs are concerned, there is every likelihood that the
entire application could have been avoided had the applicant
simply
taken the trouble to serve upon the respondents and interested
parties via Mr Cogger. The fact of the matter is that
the
protesters voluntarily vacated the property upon service of the order
and have not returned. In all the circumstances I see
no reason why
costs should not follow the result.
[49]
The following order is made:
1. The rule
nisi
granted
ex
parte
on 4 December 2018, and extended on 15 January 2019
and 3 June 2019 (pending judgment) is discharged.
2. The applicant shall pay the
costs of the first and second interested parties on the scale as
between party and party, including
any reserved costs orders.
___________________
J
I CLOETE
For
applicants
: Adv Sean
Rosenberg
SC, Adv L
Wilkin
Instructed
by:
Pepler
O’Kennedy Attorneys, André Pepler,
kyle@po.legal
For
respondents
: Adv Ms R
Matsala
Instructed by: Ndifuna Ukwazi Law
Centre