Beyers and Others v Mlanjeni and Others

• Jurisdiction: South Africa
• Judge: Williamson J, Van Niekerk J and Foxcroft J
• Judgment Date: 12 December 1990
• Citation: 1991 (2) SA 392 (C)
• Hearing Date: 19 September 1990
• Court: Cape Provincial Division

Williamson J:

B This is the extended return day of a rule granted by Van Deventer AJ on 1 August 1990. The rule was granted ex parte on the basis of urgency and it reads as follows:

'It is ordered that:

1.

The respondents, all those holding under them and all other occupants of remainder erf 652, Hout Bay, Cape (hereinafter called C "the property") be called upon to show cause before this honourable Court on Thursday, 16 August 1990 at 10:00 or so soon thereafter as counsel may be heard, why an order in the following terms should not be made against them:

(a)

That the respondents, all those holding under them and all D other occupants of the property be interdicted and restrained from depriving the applicants of the possession, use and enjoyment of the property.

(b)

That the respondents, all those holding under them and all other occupants of the property restore possession thereof to E the applicants forthwith.

(c)

That the respondents, all those holding under them and all other occupants of the property be ejected from the property forthwith.

(d)

That the respondents, all those holding under them and all other occupants of the property pay the applicants' costs of F suit.

2.

Service of the applicants' notice of motion, supporting affidavits and this order be effected upon the respondents, all those holding under them and all other occupants of the property by the Sheriff of this honourable Court by leaving a true copy of the said process at every dwelling or structure referred to in annexure "AWB1" of G the founding affidavit of Andries Wessels Beyers and any other dwelling or structure which the Sheriff may find on the said property, and by the Sheriff's reading out over a loud-hailer, at a central place on the property, the terms of this order.'

On 16 August the matter was postponed to 20 August when Mr Knight, who H together with Mr Whitehead appeared for certain of the respondents, contended that the rule ought to be discharged. Mr Louw for the applicants resisted the attack. The matter was argued and Van Deventer AJ gave a judgment which forms pp 85 - 94 of the voluminous papers before us. In his judgment Van Deventer AJ rejected the various contentions advanced as to why the rule should be discharged and then extended the I return day further until 19 September and provided for the filing of affidavits by the parties within certain time periods. Provision was also made for the service of this new order and the costs of the hearing were reserved 'for the adjudication in the final instance'. Lengthy papers were filed and the matter was fully argued before us on the J extended return day.

Williamson J

A The papers show that the applicants are the owners of certain immovable property in Hout Bay known as the 'remaining extent of erf 652'. This much is not in dispute. Over the last few years a large number of squatters have settled on this erf which is some 4,8 hectares in extent and which comprises undulating sand dunes covered with wattle B and bush. It lies in the main along the western bank of the Disa River between Princess Street and the sea shore. It seems that many of the squatters have got together and have organised an informal body known as the Princess Bush Committee which represents a considerable number of them. The Legal Resources Centre acts on behalf of that committee and on behalf of virtually all the identifiable squatters, and I am pleased C that it does so for it means that a large number of people who obviously have neither the financial resources nor the necessary skills to do so have had their case properly and competently presented.

It is quite clear on the papers that the squatters are in unlawful occupation of applicants' land and that they make no claim that as of D right they are entitled to be where they are. There were, however, a number of legal points taken on their behalf and it is necessary to consider them. In the first place, Mr Knight made the point that an applicant who applies ex parte, as was the case here, is under a duty to observe the utmost good faith and to disclose all facts which might have influenced the decision of the Court whether to make an order or not. If E he does not do so the Court has the power to set aside the order with costs on the ground of non-disclosure.

It was submitted that in the present case the applicants had failed to disclose that on 17 August 1990 they had applied for the rezoning of erf 652 to enable a housing development to take place. The inevitable delays F associated with such a process robbed the matter of the urgency associated with the contemplated sale referred to in the founding affidavit of Mr Beyers, so it was urged.

Consequently this fact should have been disclosed and the failure to do so, so it was submitted, should result in the setting aside of the order. It is argued that the proposed sale must have been dependent on G the successful rezoning and that there could thus not have been real urgency as far as the sale itself was concerned. It is true that the applicants alleged that a sale was in the process of negotiation. However, no special urgency is claimed in regard to that matter. All that is said is that no final sale will be concluded until the squatters H are evicted. It seems to me that the fact of the rezoning...