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South Africa: North Gauteng High Court, Pretoria
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2012
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[2012] ZAGPPHC 113
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Hamusira v Minister of Defence (14570/12) [2012] ZAGPPHC 113 (9 May 2012)
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
CASENO:
14570/12
DATE:2012-05-09
In
the matter between
J
HAMUSIRA
................................................................................................................
Applicant
and
MINISTER
OF
DEFENCE
........................................................................................
Respondent
JUDGMENT
A.A.
LOUW J: The applicant is a rifleman in the employ of the South
African National Defence Force, stationed at 8 South African
Infantry, Batallion Upington.
The
applicant with his wife and three children, until some date last year
stayed in housing allocated to him and his family by the
respondent
at Buffel Street, Louisville. That house burnt down and this court
was then approached last year and made an order on
10 May 2011, which
granted the applicant's application at that stage. The order by
Claassen J dated 10 May 2011 is ANNEXURE JH1
to the papers on page 20
of the application before me. That order was granted, pending the
repair of the residence at 12 Buffel
Street Louisville.
Pending
that event, the respondent was ordered to make available another
house in Eland Street or was ordered to pay R2 000 per
month or make
available other suitable accommodation for the applicant and his
family. The respondent chose the first option and
a house at 26 Eland
Street was allocated to the applicant. That house in February this
year also burnt down and in February the
applicant then approached
the applicant for suitable housing again. It is so that in the first
correspondence which was within
a week or so after the house had
burnt down, reliance was not placed on the right flowing from the
order of 10 May 2011, but that
is undoubtedly the basis on which the
applicant is before court now. The applicant's argument quite simply
is not that he has an
independent right to housing, that he can claim
from the respondent, instead he relies on the 10 May 2011 order,
which the argument
is, is still valid. The respondent opposes this
argument saying that the order has been executed, has served its
purpose and is
obsolete.
I
do not agree. The order on my reading of it intended to provide for
remedies as set out in 1.1 of that order, pending the repair
of the
Buffel Street house. That has not happened, that is common cause. The
fact that the respondent chose an option which it
no longer can
provide, does not have the consequence that that is a final choice
which now has eliminated all the other options.
The duty is still in
terms of that court order to provide one of the options, at least
until the restoration of occupation to the
Buffel Street house.
The
present prayer 3 is the same as the court order of last year, except
that it has now of course eliminated the possibility of
the Eland
Street house. On my interpretation of the order therefore, the
applicant is entitled to prayer 3. Regarding contempt
of court, I do
not find any merits in that the court order was at least capable of
two interpretations. The respondent has chosen
the interpretation
which I reject. The respondent no doubt received legal advise. I
cannot in the circumstances find any form of
civil or criminal
contempt. I do not regard it necessary to postpone such prayers as
requested by the applicant for any reason.
I accept that the order
that I make will be complied with by the respondent. In the
circumstances I make the following order:
1.
The order in terms of prayer 3 of the notice of the notice of motion;
2.
The respondent is ordered to pay the costs of the application.
ON
BEHALF OF THE APPLICANT: APPEARANCE NOT NOTED
ON
BEHALF OF THE RESPONDENT: APPEARANCE NOT NOTED