Robert Ross Demolishers (Pty) Ltd v All Persons Listed on RJR1 Portion 20 of Farm 7787 Cape Division and others
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Mantame J |
| Judgment Date | 28 August 2023 |
| Citation | 2023 JDR 3277 (WCC) |
| Hearing Date | 28 August 2023 |
| Docket Number | 16136/2012 |
Mantame J:
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Introduction
This is an application in terms of Rule 28(4) of the Uniform Rules of Court for leave to amend the applicant’s notice of motion in the main application (“eviction application”) by deleting certain paragraphs and substituting them with the paragraphs in the notice in terms of Rule 28 of the Uniform Rules of Court. The eighth respondent opposed this application for amendment on the basis that the applicant cannot be allowed by this Court to introduce a number of claims and prayers against it by means of a declaratory in relation to events which occurred more than a decade ago, i.e. 2012. Amongst other objections, it was said such claims have prescribed. Further respondents did not oppose this application.
Brief History
On 20 August 2012, the applicant launched an application for eviction of the first respondents who invaded its property, known as Portion 20 of Farm 7787, Phillipi Cape Division (“the property). The City of Cape Town (“the City”) was cited as the second respondent in the normal course. At that stage, there were two (2) respondents in the main application.
After the first respondents opposed the main application, this Court handed down an order on 26 November 2012 in the eviction application and a similar application, brought by Lyton Props Twelve CC (“Lyton Props”) in which the applicant was the third respondent, the City was the fourth respondent, and Ross and Sons (Pty) Ltd t/a Ross Demolishers was the second respondent. The order directed the City and the applicants
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(in both applications) to file reports under oath by 25 January 2013, dealing with (a) how they have “meaningfully and reasonably” engaged on whether it was possible for the City to (i) lease the properties pending the provision of alternative accommodation to occupiers, and if not, why not; and / or (ii) purchase either or both of the properties, and if not, why not; and / or (iii) take the steps set out in Section 2.7 of Vol. 4, part 2 of the National Housing Code, 2009 to identify and acquire land for the relocation of the persons making up the first respondents, and if not, why not; and / or (iv) take steps to expropriate either or both of the properties, and if not, why not.
The City delivered its compliance affidavit by 25 January 2013, and the applicant filed its compliance affidavit on 1 February 2013. In its affidavit, the applicant stated that it had two (2) suggestions which it wished the parties to explore, i.e. (a) the purchase of the land by the second respondent; or (b) the lease [of] the land from the applicant by the City.
As contemplated by the court order of 26 November 2012, the applicant filed an affidavit in response to the City’s compliance affidavit in April 2013 and the first respondents likewise. The City delivered its response to these affidavits at the end of April 2013.
On 3 June 2013, this Court handed down an order in both cases in which it joined certain national and provincial Ministers, i.e. the national Minister of Human Settlements; the national Minister of Public Works, the national Minister of Rural Development and Land Reform; the Western Cape Provincial Minister for Human Settlements; and the Western Cape Provincial Minister of Public Works “for purposes of providing the reports
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referred to in paragraphs 3 and 4 [of the order] and providing the Court with any information it may require to make a just and equitable order.” The Court order went further to state that, on receipt of the reports, it “shall issue such further directions as it considers appropriate” and that any party may re-enrol the matter for a further hearing on reasonable notice.
During the course of 2013, the national and provincial Ministers that were joined in the proceedings provided their affidavits and reports in the eviction application. Further affidavits and notices were exchanged between the applicant, the City and the Western Cape Minister for Human Settlements (sixth or seventh respondent) in the last quarter of 2013 and the first quarter of 2014.
Pursuant to the Court order of 25 October 2013 which confirmed the joinder of the third to the seventh respondent in the eviction application, both applications were set down to be heard on 12 May 2014. However, the Provincial Government of the Western Cape in mid-April 2014 brought a postponement application to enable a survey to be conducted of every household on the two (2) properties within four (4) months. The two (2) applications were postponed on 12 May 2014 to allow the surveys to be conducted. A subsequent Court order was issued on 6 October 2014 which amended the earlier Court order directing that the surveys be completed by 14 November 2014.
Between November 2014 and February 2022, when the applicant launched an application to join the Minister of Police as the eighth respondent and the Government of the Republic of South Africa as the ninth respondent, there appears to be no activity in the eviction application. It laid dormant for over seven (7) years.
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The applicant stated that when a group of persons began to invade the property, attempts were made by the applicant to safeguard the property by deploying guards. The security guards sought assistance from the police and they were informed by the police that as the occupation of the land related to a conduct taking place on private land, the police were unable to assist. By the time the eviction application was instituted, there were approximately two hundred (200) informal structures on the property, with approximately ten (10) new structures being erected every day. The property became wholly occupied and the persons on the property are in their thousands.
According to the applicant, as the litigation progressed it became apparent that a successful eviction of the occupiers from the property was an objective impossibility due to the cost of carrying out such an eviction. The prospect of successfully keeping the occupiers off the property in the event they were evicted, and the lack of alternative accommodation for such a large group of persons militated against them being successfully removed. The applicant therefore stated that it elected to join parties without objection, i.e. the third to ninth respondents. The eighth respondent denied this assertion and stated that it was not correct that the joinder of the eighth and ninth respondents was attributable to developments in the progression of the litigation. When the eighth and ninth respondents were joined in February 2022, the litigation had stalled since the second half of 2014. Also, it was incorrect that they were joined without objection, in the Court order of March 2012 paragraph 3 specifically stated that:
‘It is recorded that the eighth respondent’s non-opposition to its joinder in the main application is in no way an admission of the merits or otherwise of any claim which the applicant intends to seek to advance against the eighth respondent in the main
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application and is with reservation of the eighth respondent’s rights to object to the proposed amendment of the applicant’s notice of motion upon consideration of the papers in the main application, should it be considered appropriate to do so.”
It was pointed out by the eighth respondent that when the main application was brought and prior to February 2022, at no stage did the applicant indicate that any relief would be sought against the eighth respondent on account of alleged acts and / or omissions of the South African Police Services (“SAPS”), or that the Minister of Police would be joined as a party to the proceedings.
It was said that only recently the applicant has since sought to amend its claim to reflect primarily a declarator that various of the respondents had failed to protect the constitutional proprietary rights of the applicant, and a consequent relief that the City be ordered to purchase the property, with the purchase price to be paid by the third and / or fourth and / or sixth and / or seventh and / or eighth and / or ninth respondents. The purchase price to be paid as if the land was vacant, and alternatively, that the second, third, fifth, sixth, seventh, eighth and ninth respondents pay constitutional damages pursuant to the breach of the applicant’s proprietary rights.
Application for Leave to Amend
The applicant filed a substantial application for leave to amend its notice of motion dated 20 August 2012 by the deletion of paragraphs 1 – 13 inclusive of sub-paragraphs, and by the substitution with the following:
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Declaring that the second, eighth and ninth respondents, in failing to take steps to protect the property of the applicant known as Portion 20 of Farm 7787 Cape Division, Province of the Western Cape (“the property”) violated the constitutional rights of the applicant to such property.
Declaring that the second, third, fifth, sixth and ninth respondents in failing to have mechanisms in place to relocate the first respondents from the property, violated the constitutional rights of the applicant to such property.
Ordering and directing the second respondent, or such other respondent as the court may deem appropriate, to take all steps and sign all documents necessary to effect the purchase [of] the property from the applicant for a price to be determined as set out hereunder (“the purchase price”).
Ordering the third and / or fifth and/or sixth and / or seventh and/or eighth and / or ninth respondents [to] pay the purchase price for the property, to give effect to the purchase as set out in paragraph 3 above, insofar as same may not fall within the budgetary constraints of the...
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