Gemeenskapsontwikkelingsraad v Williams and Others (1)

• Jurisdiction: South Africa
• Judge: King AJ
• Judgment Date: 07 February 1977
• Citation: 1977 (2) SA 692 (W)
• Court: Witwatersrand Local Division

King, A.J.:

On Friday afternoon, 4 February 1977, after E argument commencing on the afternoon of 2 February 1977, I dismissed an application by the respondent to strike out paras. 5 to 15 of the applicant's founding affidavit. I reserved the question of costs. The following are the reasons for that order.

It is necessary to briefly set out the factual background. The F applicant approached this Court without notice for an urgent order ejecting 243 respondents from the houses and plots referred to in the applicant's founding affidavit. This Court on 20 October 1976 granted a rule calling on the respondents to show cause why such an ejectment order should not be confirmed G on short notice. Thereafter the rule was extended to afford the respondents an opportunity to file affidavits. The matter then came before this Court on 25 November 1976 and the applicant requested that the matter be promoted on the roll during the first week of term this year. As against respondents Nos. 140 and 142 the rule was confirmed and as against respondents Nos. 7, 16, 78, 118, 141, 143, 173, 174, 230 and 237 the rule was discharged with costs. In the founding H affidavit the deponent, Blaauw, described himself as the assistant regional representative of the applicant. He also sets out his authority to act on behalf of the applicant. In para. 4 of the founding affidavit he says that he has personal knowledge of facts or such facts appear from official documents from the Department of Community Development which are under his control and to which he has access. In para. 5 the applicant sets out the names of all the respondents and against each name the number of the house alleged

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to be occupied by each respondent. The detail in regard to the respondents is said to have been obtained by a number of officials in the employ of the Department of Community Development under the control of one Willem Johannes van Wyk, A an official of that Department, as a result of conducting a survey at the plots. Van Wyk, in an affidavit, corroborates this averment.

In para. 6 Blaauw says that the applicant is the registered owner of the plots on which the houses are situated which at present are occupied by the respondents. The houses form part B of a housing project which is being established in collaboration with the National Housing Commission for the Coloured community of Johannesburg. Eldorado Park Extension No. 3 is said to be a proclaimed Coloured area.

In para. 7, 8, 9 and 10 the applicant sets out that the houses are earmarked for occupation by Coloureds from certain economic groups. It is alleged that there is a great need for such C housing. Certain of the houses are already let and certain are sold. Certain are still incomplete. Those persons who have hired houses have already paid rental in advance.

In paras. 11 and 12 of the founding affidavit it is stated that during the week of 2 October 1976 it rained heavily. This resulted in certain slum houses in Kliptown, a Coloured D township, being damaged. The applicant then alleges that on Sunday, 3 October 1976, the people who had been living in these slum houses and who were now virtually homeless unlawfully and without the applicant's consent moved into the said new houses.

In paras. 13 and 14, the attempts by Blaauw and officials of the applicant to get the occupiers to leave, but without success, are set out.

E In para. 15 the applicant alleges that the matter is one of urgency. The applicant relies on the fact that the houses are needed for occupation by those persons who have contracted to occupy them. The contractors cannot finish the uncompleted houses. The occupiers are making use of utilities such as water and electricity at the expense of the applicant. For health reasons the applicant is reluctant to cause the supply of water F and electricity to be terminated. The applicant also has fears of additional costs for future building projects because contractors would regard this kind of occupation as a risk factor. The applicant is losing rent which cannot be recovered from the respondents. The applicant, the contractor and the police have already spent time and money trying to G cope with the situation.

In general, the answer of the remaining respondents is that it is not clear what information in these paragraphs is within the personal knowledge of Blaauw and what is gleaned from documents. It is therefore contended that the founding affidavit is based on hearsay evidence.

H At the hearing application was made to strike out paras. 5 to 15 and the answering affidavit is said to be filed subject to the application to strike out. The respondents in their affidavits admit their identity and claim that they are entitled to be in possession. Some of the respondents contend that a certain Mrs. Van Wyk permitted them to take possession. These respondents aver that she was authorised to act on behalf of the applicant and say that she had in the past allocated houses owned or controlled by the applicant. Some of the respondents say that persons not known to them but authorised to act on behalf of the applicant gave them possession of

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the houses which they presently occupy. In its replying affidavit the applicant generally denies that the respondents are entitled to occupy the houses. The applicant says that Mrs. Van Wyk was never authorised to act on its behalf and Mrs. Van Wyk filed an affidavit in which she corroborates this. The A applicant says that, if the persons to whom the respondents refer are identified, the applicant would then be able to deal with these allegations.

In regard to the averment of ownership, the respondents say that they have no knowledge and put the applicant to the proof thereof. The applicant in reply says that the title deeds in B terms of which the land concerned was registered in the name of the applicant have always been available and can be produced to the Court at the hearing.

The papers in this application number some 2 567 pages. Approximately 1000 pages need not be studied by the Court in detail because they merely relate to the service of the rule on the 243 respondents. This was common cause between counsel. The C founding affidavit is dated 20 October 1976. The notice to strike out is dated 23 November 1976. The notice to strike out reads as follows:

"Please take notice that at the hearing of this application, application will be made:

1.

To strike out the allegations set out in paras. 5 - D 15 inclusive of the founding affidavit of J. G. Blaauw and para. 4 of the affidavit of W. J. van Wyk on the grounds that these allegations constitute hearsay evidence, alternatively impermissible hearsay evidence and/or argumentative and/or irrelevant matter.

2.

To strike out the answering affidavit (no doubt what was meant was the replying affidavit) of the E application on the grounds that:

I.

If the objectionable portions referred to in para. 1 above are struck out, the applicant has failed to establish a cause of action or any basis for relief against any of the respondents.

II.

In the absence of such cause of action or basis for such relief in the founding affidavit, the applicant was not entitled in F its answering affidavits to attempt to establish such a cause of action or basis for relief for the first time."

Mr. Mahomed, for the respondents, said he would only move to have struck out the averments that the respondents' possession is unlawful and without the consent of the applicant, the G respondents are in physical possession of the houses and the applicant is the owner of the plots. It need only be said that the application to strike out the whole of paras. 5 to 15 was doomed to failure. Leaving aside the three matters specifically relied on by Mr. Mahomed, the averments contained in these paragraphs as outlined above could not have emanated from documents under the control of the deponent or at the very H least were prima facie within his knowledge.

In regard to the first matter, namely the alleged unlawful possession, the answer to the application to strike this out lies in the fact that to aver that the occupation is unlawful is a conclusion of law. In regard to the lack of permission the assistant regional representative of the applicant, viz. Blaauw, must be in a position to say whether permission was or was not granted. It would surely not be necessary in the complex, modern life

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that we live in to call every member of the applicant to say that no one member granted permission. But, in any event, unlawful possession or lack of permission are not necessary averments in the applicant's case. Vide, Graham v Ridley, 1931 A T.P.D. 476, and Chetty v Naidoo, 1974 (3) SA 13 (AD) at pp. 20 - 21. For these reasons I concluded that this complaint was without substance.

In so far as the second complaint is concerned, namely the question of possession by the respondents, can it ever be contended that, once an inadmissible averment in the founding B affidavit is admitted in the answer by a...