Not In Our Neighbourhood (Part II)

Not in Our Neighbourhood (Part I)

The so-called court order that was used to evict the helpless families at Nomzamo on a cold rainy winter day was so flawed that we have to ask how a High Court judge could be so easily manipulated, and why such an individual should deserve the title “honourable” or continue being on the Bench…

There have been a bundle of comments on the legality of the contentious court order and how it was enforced.  Some commentators offered opinions without even having seen the order.  uSpiked did better - we managed to trace the pleas and all the accompanying papers that were used to motivate the order. [These additional records had mysteriously disappeared from the official court file.]

We have further consulted several legal advisers, from those specialising in property law and human rights law to experts in constitutional law. They have all questioned the integrity of the judge who granted the order in the form in which it was drafted by the attorneys instructed by SANRAL’s Western Cape Regional Manager, Jacobus Cornelius van der Watt, on behalf of the roads agency.

Attorney F. Bester of Chennells Albertyn has to bear some responsibility at this point. When approaching the High Court in January, she must have known that her instructions originated from a SANRAL manager with no authorization to retain her law firm. Van der Watt, employed as an engineer by SANRAL, wasn’t duly authorised to depose of the affidavit; SANRAL has in-house legal counsel who should have handled all matters of a legal nature.

An institution as large as SANRAL must have a very strict guidelines about who may represent it in certain proceedings. But even if Van der Watt was dully authorized to represent the corporation in the legal proceedings, it was expected that proof of any such authorization to be annexed to his affidavit.

Attorney Bester must also have known that her client’s main intention was to secure an eviction order “through the back door”. She is also likely to have known that the accompanying documents presented to her by Van der Watt were from private entities with no locus standi on the said piece of land:  these entities being the City’s Anti-Land Invasion Unit, the 11 private citizens, and a private company whose contract with SANRAL should also now be questioned.

The so-called order that was granted ex parte was an interim one and to get the order made final, the cited respondents (the persons intending to occupy the piece of land) had to be given an opportunity to be heard. With full knowledge that the targeted families were too poor to engage attorneys of their own, Bester’s interim order threw in a threat guaranteed to terrify anybody who was struggling every day just to survive.

This threat was inserted in the fourth paragraph of the attorney’s notice: “Ordering any Respondent who opposes this application to pay the costs jointly and severally, the one paying the other to be absolved.” Of course the shack-dwellers knew the land wasn’t theirs, but all they needed was a place they could temporarily call home while they waited for housing provided by the State. Would they have risked putting their heads on the block, only to be slapped with huge bills that would take their entire lifetimes and those of their descendants to pay off? This possibility alone could have been enough of a deterrent.

But that’s the least of the underhand ploys we can apportion to this particular attorney. In the Notice of Motion, she writes as follows: “The South African National Roads Agency Limited versus The Persons Intending to Occupy Erf  32524 Nomzamo Strand.” This should have immediately empowered the so-called judge to flush the application down the High Court’s toilets.

One cannot seek an interdict (injunction) against unknown or unidentified individuals. As an attorney and officer of the courts, Attorney Bester should have been aware of the various case laws that have found such an application to be legally flawed. One example was the 2004 High Court Case No. 395/2004 where the City of Cape Town had attempted to obtain a similar interdict against would-be occupiers of a property.

In that case, Judge Budlender recorded: “The only aspect before me is the application against the twentieth respondent.

“The twentieth respondent is a group of unidentified people. The applicant does not know and cannot say who they are or where they are.”

The learned judge then reflected on the 1991 ruling by Judge Conradie in the matter between Kayamandi Town Committee vs Mkhwaso and others (the “others” having been some unnamed 150 persons): “Conradie J (as he then was) held that one of the essential tests for determining whether a particular act is to be classed as a judicial act is whether there is a lis inter partes (at 634 B). He said that ‘a failure to identify defendants or respondents would seem to be destructive of the notion that a Court’s order operates only inter partes … An order against respondents not identified by name (or perhaps by individualized description) in the process commencing action or (in very urgent cases, brought orally) on the record would have the generalized effect typical of legislation. It would be a decree and not a Court order at all.”

Judge Budlender further mentioned a 2002 case where two High Court judges, Ngwenya and Hlophe, had upheld Judge Conradie’s ruling. In that case, Illegal Occupiers of Various Erven in Philippi vs Monwood Investment Trust Company (Pty) Ltd.), Judge Ngwenya wrote: “The parties in legal proceedings must be clearly identified.”

So, why would a judge fail to be conversant with judgments delivered in the division where he or she sits?

The right to housing is enshrined in the Constitution. The shacks the “affected persons” lived in may not have been exactly what was envisaged by the writers of this supreme law, but they were the only homes these people had, and as such deserved protection. This provision was well stated by Prof. Van der Watt in the Constitutional Property Law page 426:

“…in line with section 26(3), the order can only be granted if eviction is justifiable in view of all the circumstances. Secondly, consideration of the order in view of the circumstances amounts to a balancing exercise…Thirdly, this balancing exercise takes place against the background of the history of eviction in the 31 apartheid era and its lasting and enduring effects on the distribution of land and access to housing today.”

This still isn’t all that was wrong with the application. Whereas the relief sought from the court appeared to be an interdict, slotted in to the third paragraph of the Notice of Motion and the draft order, the attorney was seeking an eviction order at the same time.

In normal legal work, if one were in contravention of a court order, Contempt of Court proceeding would be instituted.  Cape Town-based attorney, Sameer Vasta, pointed out to us: “Imagine how chaotic society would be if, let’s say for argument’s sake, an interim interdict were granted against uSpiked to pull down a particular story from its platform, and in the same order, it stated that the Sheriff could enlist help to pull the story forcefully from your platform. What would stop the Sheriff from hiring people to break some few bones of your staff members to enforce the order?”

Another contravention that the judge in the Nomzamo case should have immediately identified was the dispensation of certain sections of the High Court rules, mainly those dealing with the manner in which notices are served, without a formal application. Section 4(1)(a) of the high court rules clearly sets out how notices are to be served. […the applicant’s Notice of Motion and Founding Affidavits, being the documents initiating the application process, must be served on the Defendant via the Sheriff]. First and foremost, there is no provision in this Section that endorses any forms of service by reading aloud.

In this case, the application already states that the other parties are “unknown persons” - those intending to occupy the piece of land in question. So to whom would the order be served, as described in paragraph 6.1, “…by reading aloud the contents of this order by the loudhailer in Xhosa, Afrikaans, and English at the property”? Would this have been an admission that the Sheriff of the Court knew from where “these would-be occupiers” were coming or where they were stationed waiting to take occupation? Does this not indicate that the so-called “unknown persons” were already settled on the property? And if the applicant already knew who and where they were, why wasn’t that information included in the Notice of Motion?

It’s been claimed in some quarters that the order would have applied to anybody who was to settle at the property after the date of issue. That is not correct; the attorney is responsible for this further anomaly in her Notice of Motion. While the second paragraph of the draft order appears to give an immediate effective date, the third paragraph reverts to the relevant High Court rules and duly and correctly implies that the order would only be effective upon having been served:

3.1  Removing any person found to be in breach of this order subsequent to service as recorded in paragraph 6 below

3.2  Demolish any structure unlawfully erected on the property subsequent to the service of this order.

Sheriff Deon Burger served the interim order on February 3, 2014. His Return of Service states: “On this 03 day of February 2014 at 09:26 I served the order in this matter…” Hence it should have affected only those who might have intended to occupy the property after that date - but even that is only if the legalities of the mode of service were acceptable. Also, he served the order, which should have exempted those structures already erected within the property, at 09:26 am on a weekday - when the inhabitants were most likely to be out at work.

And for this complicated task which involved screaming over the loudhailer at ”unknown persons”, most of whom weren’t even there at the time, Sheriff Burger submitted a bill of R60,303.38, an amount paid to him by SANRAL and, indirectly, by our taxes.

Furthermore, if the eviction and demolition in June were based on the interim court order, then the Sheriff, the private security company, and the police officers who were involved were in contravention of the same order they claimed to be enforcing. Paragraph 3.3 had ordered them “to remove any possessions found at or near such structures including any building materials, which possessions and/or building materials shall be kept in safe custody by the Applicant until released to the lawful owner thereof, and to take all reasonable steps necessary to give effect to this order.”

For those of us who visited the scene, it was impossible to see any indication of compliance with this part of the order: possessions and building materials were thrown all over the place, mixed-up and scattered. Several days after the eviction, the materials were still lying around where they’d been left.

We can further confirm that at the time the families were being evicted, the order was yet to be made final. Our search of the Western Cape High Court records showed that since being granted in January 2014 the interim order has been extended four times; first to February 24, then March 17, then May 12 and ultimately to June 23, all by mutual agreement.

With the next return date still set for June 23, why wasn’t the Sheriff in communication with the attorneys to obtain clarity on the status of the interim order? Who exactly ordered the move to the site on that fateful morning? It was surely not the attorneys.

Equally concerning is the appointment of Xulu Attorneys Inc. to represent the “unknown” would-be occupiers (or invaders, as the City’s Anti-Land Invasion Unit would prefer to call them). Our team has talked to many victims, some now living at a community hall, and they have no clue as to who that attorney is. When we contacted the office to enquire who the firm’s clients were, the person we spoke to invoked attorney-client privileges and refused to give us an answer. We hope the commission set up by the Minister for Human Settlement shall be able to extract more information from all concerned.

These flaws, as well as others that have been pointed out by other legal experts in different forums, made the interim order technically and legally defective. Should the State – and the taxpayers – have to pay for this mess, which has been created by self-serving private individuals?

“Justice will not be served until those who are unaffected are as outraged as those who are.” Benjamin Franklin

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