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[2015] ZAKZDHC 9
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Woodglaze Trading (Pty) Ltd v Persons who are presently occupying the Hilldale Complex situated at Castlehill Drive and Others (13019/14) [2015] ZAKZDHC 9 (18 February 2015)
In
the High Court of South Africa
KwaZulu-Natal
Local Division, Durban
Case
No : 13019/14
In
the matter between :
Woodglaze
Trading (Pty)
Ltd
..................................................................................................
Applicant
and
The
persons who are presently
occupying
the Hilldale Complex
situated
at Castlehill
Drive
.......................................................................................
First Respondents
The
Ethekwini
Municipality
...................................................................................
Second
Respondent
Department
of Human Settlements
(Province
of
KwaZulu-Natal)
..................................................................................
Third
Respondent
Judgment
Lopes,
J :
[1]
This matter has its origins in the unfortunate fact that a great
number of people in our country find themselves in the situation
that
they are unemployed and/or without the necessary resources to ensure
that they are able to live in what may be described as
adequate and
proper housing. Inevitably this results in a tension developing
between those persons in society who are so
disadvantaged and the
ability of national, provincial and local government to provide the
necessary facilities to enable them to
be accommodated in housing in
accordance with the Constitution.
[2]
The applicant, Woodglaze Trading (Pty) Ltd (‘Woodglaze’)
is a company which purchased property from the second respondent,
the
Ethekwini Municipality with the purpose of developing sixteen
accommodation blocks each compromising six apartments.
In total
therefore it was envisaged that 96 units would be constructed at what
is described as the Hilldale Complex at Castlehill
Drive in Newlands
(‘the development’). The purpose of the development
was to develop medium to high density housing
for residential
development in the Newlands area. Although the
construction appeared to have been pursuant to a contract
concluded
with the Ethekwini Municipality, I was told by Mr
Pammenter
SC, who appeared for Woodglaze, that the
development is privately funded, and the units are to be leased to
members of the public
on a normal commercial basis.
[3]
The following matters are common cause, or at least not disputed on
the papers :
(a)
Woodglaze started the construction of the 96 units with an envisaged
completion date being the end of January 2014;
(b)
construction was delayed but towards the end of September 2013 the
project was nearing completion. In this regard lease agreements
had
been concluded with 96 individuals who had each paid a deposit of
R6 500 to Woodglaze, who was obliged to give those
individuals vacant possession of the units upon their completion;
(c)
at that stage, Woodglaze had expended some R22m in the development of
the units;
(d)
during December of 2013 a group of some 100 persons from the nearby
Polokwane and West Ridge squatter camps at Newlands invaded
the
development by overpowering security guards and occupying the units.
None of these were persons with whom Woodglaze had
concluded
contracts, and their occupation of the units was clearly unlawful;
(e)
Woodglaze accordingly moved an urgent application which came before
this court on the 6
th
December 2013. Kruger J
granted a rule calling upon the unlawful occupiers to restore
peaceful and undisturbed possession
of the development to Woodglaze,
together with interim relief;
(f)
the rule was confirmed by Nkosi J on the 14
th
January 2014;
(g)
Woodglaze’s version is that the order of the 14
th
January 2014 was fully executed and the unlawful occupiers removed
from the units, possession of which was then restored to Woodglaze.
Woodglaze was then obliged to expend some R4m in repairing the damage
caused by the unlawful occupiers. These allegations,
as will
appear below, are partly denied by the first respondents;
(h)
on the 7
th
October 2014 a similar incident occurred when
security guards at the development were overcome by persons who then
unlawfully invaded
the units. Despite efforts by the
employees of Woodglaze, and after the intervention of employees of
the third respondent,
the Department of Human Settlements, the
unlawful occupiers refused to vacate the premises;
(i)
on the 14
th
November 2014 Woodglaze brought an urgent
application in this court before van Zyl J who granted a rule calling
upon the unlawful
occupiers to show cause why they should not restore
peaceful and undisturbed possession of the units to Woodglaze.
The order
of van Zyl J also set out the manner in which service of
the order was to be effected, including the reading out of the order
in
both English and isiZulu over a loudhailer at the development, by
handing out copies of the application papers and the order, and
by
affixing them to a prominent position at the entrance to the
development. Pursuant to that order the first respondents
were
removed from the development on the 17
th
December 2014
(after discussions between the various parties’
representatives had afforded them a further temporary
reprieve).
They now reside in tents on property alongside the development;
(j)
on the 21
st
November 2014, and no doubt having satisfied
himself that there had been service in accordance with the rule,
Nkosi J confirmed
the rule and made a further order dealing with
service of the final order, once again by loudhailer and the handing
out of copies,
and affixing a copy of the application and his order
at a prominent position at the entrance of the development;
(k)
on the 13
th
January 2015 the first respondents, described
in the papers merely as the persons who formerly occupied the
development, brought
an urgent application (‘the
reconsideration application’) seeking the following relief :
(i) interdicting
Woodglaze from permitting or taking steps to allow any third parties
to occupy the units in the development;
(ii) interdicting
the South African Police Services from assisting any third party to
occupy the units;
(iii) setting aside
the confirmation of the rule granted by Nkosi J on the 21
st
November 2014;
(iv) dismissing the
spoliation application brought by Woodglaze on the 14
th
November 2014;
(v) after
restoration of the property to the first respondents, interdicting
and restraining Woodglaze from taking any steps with
the intention of
evicting them from the property without a court order entitling them
to do so;
(vi) restoring the
status quo ante of the grant of the interim order and final order,
and allowing the first respondents to resume
occupation of the units
that they occupied prior to their eviction.
[4]
The matter came before Ploos van Amstel J, and he granted interim
relief to the first respondents, only interdicting Woodglaze
from
allowing third parties to occupy the units, and making provision for
the delivery of further affidavits.
[5]
Both the main application and the reconsideration application now
come before me by way of a direction from the Judge President,
upon
the request of the first respondents, that the reconsideration
application be heard as a matter of urgency.
[6]
Mr
Pillemer
who appears for the first respondents submits that
this is an application for reconsideration in terms of Rule 6(12)(c)
of the
Uniform Rules. Rule 6(12)(c) provides :
‘
A
person against whom an order was granted in his absence in an urgent
application may by notice set down the matter for reconsideration
of
the order.’
[7]
The first respondents are entitled to a reconsideration of the main
application once they establish two facts :
(a) that the main
application was heard as a matter of urgency; and
(b) that the first
order was granted in their absence.
[8]
In
Oosthuizen v Mijs
2009 (6) SA 266
(W) at 269 C – D
Wepener AJ quoted with approval what was said in
Sheriff Pretoria
North-East v Flink and Another
[2005] 3 All SA 492
(T):
‘
Once
these jurisdictional facts have been established, the Court is free
to reconsider the order initially given in the widest sense
of the
word. By direct implication, it is free to consider any
judgment given in the urgent application, which led to the
order.’
[9]
In
ISDN Solutions (Pty) Ltd v CSDN Solutions CC and Others
1996 (4) SA 484
(W) at 486 H – 487 C, Farber AJ stated :
‘
The
Rule has been widely formulated. It permits an aggrieved person
against whom an order was granted in an urgent application
to have
that order reconsidered, provided only that it was granted in his
absence. The underlying pivot to which the exercise
of the
power is coupled is the absence of the aggrieved party at the time of
the grant of the order.
Given this, the
dominant purpose of the Rule seems relatively plain. It affords
to an aggrieved party a mechanism designed
to redress imbalances in,
and injustices and oppression flowing from, an order granted as a
matter of urgency in his absence. …
Factors relating to
the reasons for the absence, the nature of the order granted and the
period during which it has remained operative
will invariably fall to
be considered in determining whether a discretion should be exercised
in favour of the aggrieved party.
So, too, will questions
relating to whether an imbalance, oppression or injustice has
resulted and, if so, the nature and extent
thereof, and whether
redress is open to attainment by virtue of the existence or other or
alternative remedies … Each
case will turn on its facts
and the peculiarities inherent therein.’
[10]
This was quoted with approval by Sutherland J in
Industrial
Development Corporation of South Africa v Sooliman
2013
(5) SA 603
(GSJ) para 14 and Southwood J in
Lourenco
and Others v Ferela (Pty) Ltd and Others (No. 1)
1998
(3) SA 281
(T) at 290 E – H. I accept that the above
represents a correct interpretation of the requirements of Rule
6(12)(c).
[11]
It is common cause that the first requirement has been established,
and further that the first respondents were not present
when the
orders were granted. Why they were not present is a question
which flows naturally from their absence.
[12]
Prior to moving the initial application before van Zyl J, Woodglaze
engaged the services of the Deputy Sheriff for Verulam
to ensure
service of the notice of motion affidavit, annexures and certificate
of urgency. According to the returns of service
of the Deputy
Sheriff, service was effected by affixing a copy to the main gate of
the development on the 10
th
November 2014. In addition there was service
upon a Mr Sizwe Mbambo, the order sought was read out in English and
isiZulu
on a loudhailer, and there was also service on a Mr Sandile
Dlamini, a Mr Menzies Zulu and a Mr Mangushi Mkhize The
persons named by the Deputy Sheriff were persons apparently in charge
of the premises at the time of his arrival. The rule
granted by
van Zyl J on the 14
th
November 2014 was presumably granted on the basis
of these returns of service.
[13]
There are also in the court papers, a further ten returns of service
dealing with service on the first respondents of the application
papers and the rule granted on the 14
th
November 2014. According to these returns
service took place on the 17
th
November 2014. The modes of service which
the Deputy Sheriff alleges he carried out included service upon Mr
Sandile Mhlongo,
Miss Gugu Gulne, Mr Bhekani Memela, Mr Thami Zwane,
Mr Menzies Zull (presumably intended to be Mr Menzies Zulu), Mr
Bongani Mhlongo,
Mr Eric Mkhize, Mr Sibusiso Mkhize, Mr Zama Mzunza
and Mr Alungile Shanga. The allegation is made in all the
returns that
the persons served were then occupying the development,
over the age of 16 and apparently in charge of the premises.
The
order was also read out by loudhailer in both English and
isiZulu.
[14]
Presumably relying on these returns of service, Nkosi J confirmed the
rule on the 21
st
November 2014. The importance of
these returns relates both to the interpretation of Rule 6(12)(c) and
consequently whether
or not reconsideration of the rule granted and
confirmed is appropriate. In order to strengthen the suggestion
of the first
respondents that they are entitled to invoke the rule,
the deponent to the affidavit in support of the reconsideration
application,
Mr Sanele Wiseman Xhakaza states in paragraph 18 :
‘
We
were not present at nor were we advised of the proceedings which took
place on 14 November 2014. … We were removed
from the
property on 17 December 2014, but were not provided with copies of
the 2014 application or the interim order prior to
this. The
2014 final order, which is the subject of this application, was
granted on 21 November 2014 by Nkosi J in our absence.’
[15]
At paragraph 30 of the affidavit Mr Xhakaza states :
‘
We
accordingly dispute the veracity of the information contained in the
Sheriff’s return of service which states that he served
the
interim order in the 2014 application on us on 17 November 2014 and
that he served copies on various residents personally.
In fact,
we do not recognise any of the names of the individuals upon whom
personal service claims to have been effected.
We refer in this
regard to the list of the residents still living in tents alongside
the property marked “AA”.’
[16]
At paragraph 33 Mr Xhakaza states :
‘
The
2014 final order was erroneously sought and granted, because the
residents had not been given proper notice of the 2014 application
and the interim order which was in place. On that ground alone,
the 2014 final order is a nullity.’
[17]
In the affidavit for Woodglaze to oppose the reconsideration order
deposed to by Mr Inderjeeth the General Manager of Woodglaze,
he
refers to the various returns of service and states :
‘
The
residents cannot impeach the contents of those returns. The
occupiers were given proper notice both in the 2013 and 2014
applications. The court was satisfied and the Orders ensued.
There is no nullity. ‘
[18]
Mr Inderjeeth accuses the deponent to the founding affidavit in the
reconsideration application of being untruthful with regard
to the
non-service of the order. Significantly, at least one of the
returns of service records the presence of Mr Inderjeeth
when service
was affected.
[19]
So what am I to make of the competing allegations in the
reconsideration application? On the one hand I have the returns
of service of the Deputy Sheriffs who certify that they have effected
service both prior to the grant of the rule and the grant
of the
final order. On the other hand I have the allegations by Mr
Xhakaza who claims that there was no service and that
is why there
was no representation on behalf of the first respondents when the
rule and final order was granted. (Counsel
are agreed that the
first respondents were not present at court when the provisional and
final orders were granted.)
[20]
With regard to the acceptance of the Deputy Sheriffs’ returns
of service, sub-s 43(2) of the Superior Courts Act, 2013
(which
commenced on the 23
rd
August 2013) provides :
‘
(2)
The return of the Sheriff or a Deputy Sheriff of what has been done
upon any process of a court, shall be
prima
facie
evidence
of the matters therein stated.’
[21]
The provisions of this Act are in identical terms to the now repealed
s 36(2) of the Supreme Court Act, 1959 which previously
governed
these matters. I am therefore able to consider authorities on
the repealed Act dealing with this matter.
[22]
In
Sussman & Co (Pty) Ltd v
Schwarzer
1960 (3) SA 94
(O) Potgieter
J held that where a return of service is filed which on the face of
it is valid, it can be relied upon by the applicant.
If the
respondent wishes to challenge the facts set out in the return, the
onus is on the respondent to show by clear evidence
that although the
return shows that the requirements of the Act had been complied with,
they were in fact not complied with and
that the return is not a
proper return. Different considerations obviously apply where
the return of service is, on the face
of it, insufficient.
[23]
In
Deputy Sheriff for Witwatersrand District v Harry Goldberg and
the Assignees of Goldberg Bros. & Gersin
1905 TS 680
at 684,
Solomon J stated :
‘
It
is, I think, clear, in the first place, that if the return can be
impeached it can only be impeached on the clearest and most
satisfactory evidence. Now the Sheriff’s clerk has made
an affidavit in this case explaining the circumstances under
which
the return was made …’
The
judgment then goes on to deal with the affidavit of the Sheriff’s
clerk. It continues at 684 – 685 :
‘
That
is the evidence of the Sheriff’s clerk as to what took place
and the facts upon which he based his return, and clearly
upon those
facts he was justified in making the return that service had been
made on Harry Goldberg. But then we have the
denial that the
Sheriff’s return was correct. We have the affidavits of
Harry Goldberg and Nick Goldberg. Harry
Goldberg says that he
was never served with a copy of the summons and makes an affidavit to
that effect. Nick Goldberg says
that it was he who was served
with a copy of the summons, but denies that a second copy was left
with him to be served upon his
brother. Now I must say,
speaking for myself, that I should certainly not have been prepared
upon that evidence to come to
the conclusion that Harry Goldberg’s
evidence was necessarily to be accepted, and therefore to hold that
he had not been
served with a copy of the summons. If I had
been sitting in the case I certainly think that I should have
required the witnesses
to be produced in court. They might have
been examined and cross-examined, and other evidence also might have
been produced
to show whether Harry Goldberg’s evidence was
true or not. But, simply upon the strength of his affidavit and
that
of Nick Goldberg, I should certainly hesitate to come to the
conclusion that there had been no service of the summons made upon
Harry Goldberg. However, the learned Judge in the court below
was satisfied from those affidavits that Harry Goldberg had
not been
served, and for the purpose of this appeal let me accept his finding.
…’
[24]
In that case the court of appeal held that the further conduct of the
person alleged to have been served ratified the act of
the person who
had accepted service on Harry Goldberg’s behalf. The
judgment granted on the return of service was then
upheld.
[25]
What
Goldberg
was
really concerned with, however, is whether or not the summons
actually came to the attention of the person upon whom the Sheriff
alleged he had served, but who had denied such service. In the
circumstances the court was so satisfied. The principle,
however, remains that clear evidence is required to be adduced by the
person challenging the facts set out in the Sheriff’s
return of
service.
[26]
Is the evidence of Mr Xhakaza sufficient to disregard the prima facie
case established by the Deputy Sheriffs’ returns?
The
problem which presents itself here is that Mr Xhakaza speaks in very
general terms in his affidavit about the identity of the
first
respondents. He is, however, careful to mention that the
persons referred to in the returns of service are persons
of whom ‘we
do not recognise the names of …’. A comparison is
made in this regard between the list of
the residents still living in
the tents alongside the property and those allegedly served with
documents by the Deputy Sheriff.
A list of the
first respondents is also put up as an annexure to Mr Xhakaza’s
affidavit. From my own perusal
of that list none of the persons
reflected thereon bear the same names as the persons in the Deputy
Sheriffs’ returns of
service.
[27]
In reply to a challenge to the authority of Mr Xhakaza to represent
the first respondents, he attaches to his replying affidavit
an
annexure reflecting a resolution passed by a list of named persons.
In addition some 60 affidavits are put up, apparently
confirming his
authority.
[28]
The confirmatory affidavits, which are all identical in form were
annexed to the first respondents’ replying affidavit
and record
merely that the deponents have read ‘the answering affidavit’
of Mr Xhakaza and confirm the contents as
true and correct. It
is not clear to me whether in using the phrase ‘answering
affidavit’ the persons preparing
those documents intended to
refer to the affidavit by Mr Xhakaza to lead the reconsideration
application, or his replying affidavit
and/or solely with regard to
the question of authority.
[29]
What is significant is that in the founding affidavit in the
reconsideration application Mr Xhakaza was vague about the persons
who occupied the development at the various stages. Examples of
this are where he states :
‘
Most
of the residents took up occupation on the property at the beginning
of December 2013.’
‘
We
have come mainly from transit and squatter camps in Newlands where we
had been residing for many years.’
‘
In
December 2013 shortly after we took occupation of the property the
Applicant brought an urgent (spoliation) application to remove
us
from the property (“the 2013 application”). We are
not in possession of the founding papers in the 2013 application,
but
became aware of the application as the interim and final orders were
attached to the 2014 application.’
‘
The
2013 application was heard on the 6 December 2013 and an interim
order was granted by Kruger J on this date. The interim
order
was not implemented : Some time on or about 7 December 2013 the
Sheriff came onto the property. He removed some of
our
possessions from our units but did not confiscate them. Instead
he proceeded to take photos of the units and the property
generally,
after which he allowed us to return to our respective units. We
also took possessions back into our units.’
‘
We
did not understand at the time that an order had been granted by a
Court directing that we vacate the property. We were
not
provided with copies of the 2013 application in December when it was
issued, the 2013 interim order or the final order which
was granted
in January 2014.’
[30]
Mr Xhakaza then refers to the fact that notices had been pinned up on
the property requiring them to vacate the property and
in this regard
he annexes to his founding affidavit various notices drafted by
Woodglaze referring to the fact that the High Court
had granted an
order that persons occupying the premises illegally must be ejected.
He maintains that from this ‘they’
did not understand
that a court application had already been brought and an order
granted. Mr Xhakaza then relates that a
group of residents had
then approached Pro Bono.org (Durban) in February 2014 and told them
that they had not been served with
court papers and never appeared in
court. Apparently the advice they were given was that they
could not be evicted without
a court order and if it happened again
they were to approach Pro Bono.org.
[31]
Mr Xhakaza directly contradicts the contents of two sets of returns
made by different Deputy Sheriffs in two different years.
This
would suggest an improbable degree of dereliction of their duties or
a highly improbable level of duplicity. Mr Xhakaza
also states
that during ‘their’ occupation of the development,
construction continued from December of 2013 until
April of 2014,
including the laying of pipes and paving and that the builders had
left the property during or about April 2014.
Security guards
came onto the property intermittently but stopped coming in April of
2014 and never attempted to remove them from
the property.
[32]
In the affidavit to oppose the reconsideration application, Mr
Inderjeeth paints a somewhat different picture.
He states that
on or about the 7
th
December 2013 the possessions of those who had
unlawfully invaded the development were removed but they then
forcibly took back
their possessions. With the assistance of
the South African Police, on the 11
th
December 2013 some 120 persons were ejected.
[33]
Mr Inderjeeth also records that construction work could not have
continued had the unlawful occupiers continued in occupation
from
December 2013. He maintains that the unlawful occupiers
only again returned during October of 2014.
[34]
Mr Inderjeeth does admit that sometime during late June 2014 three or
four families again invaded the property and took up
residence, but
after having been shown the court orders, they vacated the premises.
Mr Inderjeeth also confirms that the
unlawful occupiers of the
development were evicted on the 17
th
December 2014.
[35]
The fact of the matter is that the first respondents chose not to
attend court. They give as their only reason for not
doing so
the fact that they were unaware that court orders would be, or were
obtained, and they deny entirely the prima facie evidence
established
in the returns of the Deputy Sheriffs.
[36]
Given the events which occurred prior to October of 2014, it is
wholly improbable that the first respondents did not understand
that
they had been evicted pursuant to a court order. This is more
particularly so if they had approached the Pro Bono.org
organisation
which, on the evidence of Mr Xhakaza did not assist them to be
reinstated when their allegations were apparently that
they had been
evicted without a court order. There is also no indication
(other than the use of the word ‘we’)
to indicate which
of the first respondents were in occupation during 2013 and remained
in occupation until their eviction in 2014.
It also seems to me
improbable that they could have continued to do so in circumstances
where Woodglaze was continuing to carry
out the construction of the
units. Mr Xhakaza confirms that there were no utilities
available to the units of the development
at the time that they
occupied the units in 2013. Viewed together with the undisputed
allegation in the Deputy Sheriff’s
returns that Mr Inderjeeth
was present at the time the orders were served I have no confidence
in resolving the dispute of fact
regarding the returns of service on
the papers alone, in favour of the first respondents.
[37]
In all the circumstances I am of the view that there is no acceptable
explanation for the absence of the first respondents
from court at
both the hearing of the rule granted on the 14
th
November 2014 and the return date on the
21
st
November
2014 when the rule was confirmed. In my view the evidence which
is adduced to challenge the contents of the returns
of the Deputy
Sheriffs does not pass the test of ‘clear evidence’ set
forth in the
Sussman
and
the
Goldberg
cases.
[38]
Mr
Pillemer
submitted that only in the event that I were to be
against him on the submissions that he made regarding the right of
the first
respondents to have the final order reconsidered, that I
should refer the matter for the hearing of oral evidence.
Despite
the practice which formerly prevailed in this division, I of
the view that it may no longer be proper to adopt that approach.
In this regard I refer to the judgment of Harms DP in
Law Society,
Northern Provinces v Mogami and Others
2010 (1) SA 186
(SCA),
paragraph 23 where the Deputy President stated :
‘
An
application for the hearing of oral evidence must, as a rule, be made
in
limine
and
not once it becomes clear that the applicant is failing to convince
the Court on the papers or on appeal. The circumstances
must be
exceptional before a court will permit an applicant to apply in the
alternative for the matter to be referred to evidence
should the main
argument fail.’
[39]
The dispute of fact regarding the reasons why the first respondents
were not present at court on either the 14
th
or the 21
st
November 2014 emerges clearly from the stark
contrast between the two versions. In those circumstances I
would have expected
an application for a referral to oral evidence at
the outset. I do not believe that this is a matter where it can
be suggested
that circumstances are so exceptional that a referral to
oral evidence could only be considered in the alternative, and as a
last
resort. Mr
Pammenter
SC submitted, correctly in my view, that the first
respondents having not elected to apply for oral evidence on the
issue of why
they did not attend court, must stand or fall on the
papers. As stated above, they bore the duty to adduce clear
evidence
in that regard and have failed to do so.
[40]
With regard as to whether an imbalance, oppression or injustice has
resulted, in my view it has not. In this regard I
am not
unsympathetic to the plight of the first respondents. In this
regard I refer to the dicta of Yacoob J in
Government of the RSA
and Others v Grootboom and Others
2001 (1) SA 46
(CC), paragraph
2 where he stated :
‘
The
issues here remind us of the intolerable conditions under which many
of our people are still living. The respondents are
but a
fraction of them. It is also a reminder that, unless the plight
of these communities is alleviated, people may be tempted
to take the
law into their own hands in order to escape these conditions.
The case brings home the harsh reality that the
Constitution’s
promise of dignity and equality for all remains for many a distant
dream. People should not be impelled
by intolerable living
conditions to resort to land invasions. Self-help of this kind
cannot be tolerated, for the unavailability
of land suitable for
housing development is a key factor in the fight against the
country’s housing shortage.’
At
paragraph 92 Yacoob J continued :
‘
This
judgment must not be understood as approving any practice of land
invasion for the purpose of coercing a State structure into
providing
houses on a preferential basis to those who participate in any
exercise of this kind. Land invasion is inimical
to the
systematic provision of adequate housing on a planned basis. It
may well be that the decision of a State structure,
faced with the
difficulty of repeated land invasion, not to provide housing in
response to those invasions, would be reasonable.’
[41]
If I were to have entertained and granted the reconsideration order,
I would surely be opening the door to anarchy and civil
disorder.
Viewing the evidence as a whole, and the conduct of the first
respondents, society at large would never accept
as just and
equitable that in a free and democratic society, economically
deprived persons could simply help themselves to the
assets of
others.
[42]
This is not a case where the invasion of the properties by the first
respondents occasioned no great inconvenience to
Woodglaze.
Indeed, Woodglaze maintains that it spent approximately R4m repairing
damage caused by the first invasion.
In addition all those
persons who had signed the 96 contracts with Woodglaze to lease the
units in the development have been left
waiting by the conduct of the
first respondents, and have been unable to be given what they were
contractually entitled to receive.
[43]
Mr
Pillemer
also
submitted that I should take into account the fact that in the main
application Woodglaze relied on the fact that the provisions
of the
Prevention of Illegal Eviction from and Unlawful Occupation of Land
Act, 1998 was not used by Woodglaze and ignored by both
the judges
concerned. In my view whilst those considerations may play a
role in an overall assessment of the justice and
equity of this
decision, they do not outweigh the fact that the first respondents
have not satisfied the jurisdictional requirements
for a
reconsideration. If the first respondents were unhappy with the
final order on the basis that an incorrect assessment
of the law had
been made by the learned judge who confirmed the rule, then that
should have been dealt with either on appeal or
possibly by way of a
review. It is not for me to second guess those decisions.
[44]
In all the circumstances the application for reconsideration cannot
succeed. With regard to the question of costs, given
the plight
of the first respondents, there would appear to be no utility in
making any order for costs against them. In my
view it would
only lead to a further waste of time and effort for no reward.
In the circumstances I make the following order
:
The
application for reconsideration is dismissed.
Date
of hearing : 5
th
February 2015
Date
of judgment : 18
th
February 2015
Counsel
for the Applicant : C J Pammenter SC with I Pillay (instructed
by Omprakash Ramlakhan Incorporated)
Counsel
for the Respondents : R Pillemer (instructed by Seri Law Clinic)