Koekemoer and Others v Minister of Defence and Military Veterans and Others (2017/44930) [2018] ZAGPJHC 113 (16 February 2018)

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

Case number: 2017/44930

In the matter between:

WILLEM JOHANNES KOEKEMOER First Applicant

CHRISTOPHER KOITSIOE Second Applicant

JOSEPH KUBEKA Third Applicant

RONALD NKUNA Fourth Applicant

JOSEPH NKUNA Fifth Applicant

HILDA MATLISANE Sixth Applicant

ADRI MAREE Seventh Applicant

THAPELE TSHOTETSI Eighth Applicant

WANDA KOEKEMOER Ninth Applicant

ELLIE MSEBE Tenth Applicant

MARIO MTHWANI Eleventh Applicant

ROBERT DUMANYANE Twelfth Applicant

CHANTEL SMOOG Thirteenth Applicant

REVOLUTION NAWANYA Fourteenth Applicant

WITNESS SIHLANGU

AND

MINISTER OF DEFENCE AND MILITARY VETERANS First Respondent

THE SOUTH AFRICAN NATIONAL DEFENCE FORCE Second Respondent

THE SOUTH AFRICAN ARMY Third Respondent

THE OFFICER COMMANDING ARMY Fourth Respondent

SUPPORT BASE JOHANNESBURG (LENASIA) Fifth Respondent

THE OFFICER COMMANDINGMARIEVALE

ENGENEERING REGIMENT Sixth Respondent

THE OFFICER COMMANDING DUNNOTTAR

MILITARY BASE Seventh Respondent

Summary: Return day, rule nisi interdicting an eviction. Respondents ordered to file their answering affidavit on a specified date. The respondents failing to comply with the court order. The applicant filing an application to compel compliance with production of certain documents by the applicants in terms of rule 35 (12) of the Rules. Rule 35 (12) notice does not suspend the period for the filing of answering affidavit pending the discovery.

JUDGMENT

Molahlehi J

Introduction

[1] On 29 November 2017, Berger AJ issued a rule nisi in the following terms:

"1 A rule nisi is hereby issued calling upon the first to the sixth respondents to show cause why an order in the following terms should not be granted:

1.1. The second, third, fourth, fifth and sixth respondents and their members are interdicted and restrained from unlawfully evicting the applicant or any other resident from their homes in Marievale without an order of court;

1.2. The second, third, fourth, fifth and sixth respondents and their members are interdicted and restrained from unlawfully entering the property or homes occupied by the applicants and all other residents in Marievale and from unlawfully restricting their freedom and movement or preventing them from entering or exiting Marievale.

1.3. The second, third, fourth, fifth and sixth respondents and their members are interdicted and restrained from harassing, intimidating, threatening or intimidating the applicants and all other residents in Marievale.

1.4. The second, third, fourth, fifth and sixth respondents and their members are ordered to immediately restore possession of the property situated at number 9 Tarental Road Marievale, to the eighth applicant.

2. The rule nisi granted in terms of paragraphs 1.1 to 1.4 above shall operate as an interim interdict pending the final outcome of this application;

3. The matter is postponement to the unopposed motion court on 29 January 2018 and the respondents are to deliver the answering affidavit, if any, within 15 days from the date hereof;

4. Costs are reserved.”

[2] Although the rule nisi does not expressly state the return day to be 29 January 2018, it is clear from the order postponing the matter that, that was the date intended for that purpose.

[3] The respondents have on 24 January 2018 launched an application to compel the applicants to produce certain documents they claim are relevant to the formulation of their defence.

The issue

[4] The crisp question in this matter is whether the Rule 35 (12) notice issued by the respondents suspended the fifteen days within which after they were supposed to file their answering affidavit as directed by the court order.

[5] The other issue is whether the applicants have made out a case for the confirmation of the rule nisi, this being the return day.

Background facts.

[6] The issue in dispute in this matter concerns the residential area which was previously a military base known as 1 Construction Regiment Marievale situated on Portion 9 Farm Vlakfontein 281, Registration Division IR, Gauteng Province, and the Remaining Portion of the Farm Draaikraal 166, Registration Division, IR, Gauteng Province and is situated between Springs and Nigel.

[7] The applicants stated in their founding affidavit that they took occupation of the property in 1996 and have resided there since then. The houses in the area were before 1996, occupied by members of the South African Defence Force (SANDF). The applicants and other civilians moved into the area as the members of the SANDF personnel left the area for unknown reasons.

[8] The applicants’ version is that they took occupation of the properties through a lease agreement concluded with the military personnel. At some point, the lease agreements were queried by the military police, but nothing seems to have come out of that.

[9] The regiment based in the area was disbanded in 2004, resulting in a significant reduction of military personnel remaining in the properties.

[10] During 2009 the first respondent issued letters instructing all the civilians to vacate the homes, failing which they would be "removed."

[11] The applicants sought assistance from the Human Rights Commission (the Commission) through Mr Blanche, a member of the Parliament. The Commission addressed the letter dated 20 May 2009 to the Minister of Defence and Military Veterans, Ms Lindiwe Sisulu concerning the complaint of the applicants.

[12] In essence, the letter informed the Minister that the applicants were complaining that they were being evicted by members of the SANDF. It was further recorded in the letter that the applicants did not have alternative accommodation and no alternative accommodation was offered to them.

[13] The Commission further recorded in the letter that in its opinion, if the allegations of the applicants were true, then that amounted to an infringement of the provisions of ss 10 and 26 (3) of the Constitution.

[14] The Ministry of Defence responded to the Commission’s letter and stated the following:

“We have been informed that the Department of Defence (SANDF) has and will not practice any human rights violation.

The Department of Defence (DoD) and the Department of Public Works (DPW) have recognized that not all the military houses in Marievale Military Base (MMB) have been occupied by military personnel and personnel working for the DoD, and that there are no other records of authorizing non-military personnel to occupy vacant houses.

The decision of the DoD to establish 2 Construction Regiment at MMP has necessitated that the military houses once again become available for military personnel and personnel that work at the DoD. The DoD and that DPW have recognized that occupants cannot just be evicted and has therefore established an interdepartmental task team to address the issue of "illegal" occupation of the military houses at MMP.

The objective of the task team is to ensure that these houses once again become available for military use, taking into consideration the constitutional rights of present occupants.”

[15] During December 2015 the first respondent issued notices to the civilians occupying the properties and among other things informed them that:

“Occupants not authorized to stay in this houses are instructed by the Army to leave the premises without further discussions, on or before 5 January 2016.”

[16] The applicants further stated that on 13 November 2017 members of the South African Army including military police went around the area, intimidating, harassing and threatening civilian members and instructing them to vacate their residences. This was repeated by the army between 15 and 27 November 2017. In this particular instance, the individual applicants were approached at their residences and told to leave the premises by a specific date.

[17] The twelfth applicant was, for instance, told that she would be forcefully evicted if she did not leave the property by Friday 17 November 2017. And the thirteenth applicant was forcefully evicted from the property on 27 November 2017.

[18] The applicants’ application remains unopposed the respondent having failed to file their answering affidavit.

[19] The defence of the respondents about the confirmation of the rule nisi is in essence that the application is premature in that they are yet to receive a response to their application in terms of rule 35 (12) and (14) of the Rules. In this respect Counsel for the respondents contended that the issuing of the rule 35 (12) notice had the effect of stating the requirements of filing the answering affidavit. He in this respect and in support of his proposition relied on the cases of Unilever PLC and Another v Polagric (Pty) Ltd.,[1] and Protea Assurance Co Ltd and Another v Waverley Agencies CC and Others,[2] and Machingawuta v Mogale Alloys.[3]

[20] In the Protea matter reliance was placed during the argument on page 249 B-C where Marais J in dealing with the provisions of rule 35 (12) of the Rules said:

“Applicant's desire that second respondent should first have to file his affidavit in response to the allegations made by Roberts as to what second respondent said to him during the telephone conversations which were recorded on the tape before being allowed to listen to the tape is understandable as a forensic strategy, but to gratify it would be to defeat the object of Rule 35(12). That Rule plainly entitles a litigant to see the whole of a document or tape recording and not just the portion of it upon which his adversary in the litigation has chosen to rely. That entitlement, unlike the entitlement to general discovery for which Rule 35(1) provides, does not arise only after the close of pleadings in a trial action, or after both answering and replying affidavits have been filed in motion proceedings: it arises as soon as reference is made in the pleading or affidavit to a document or tape recording. It is inherent in that a litigant cannot ordinarily be told to draft and file his own pleadings or affidavits before he will be given an opportunity to inspect and copy, or transcribe, a document or tape recording referred to in his adversary's pleading or affidavits.”

[21] In the Unilever matter, reference was made to page 336 G where in dealing with the same rule Thring J said:

“It does not necessarily follow that the respondent should know what its defence will be without having to inspect the applicants' documents. The respondent is not required to depose to or deliver its opposing affidavits before it has been afforded an opportunity of inspecting and copying the documents referred to in Rule 35(12) . . . It is clear from these decisions that, otherwise than is the case with discovery under Rule 35(1) and (2) read with Rule 35(13), a defendant or respondent does not have to wait until the pleadings have been closed, or his opposing affidavits have been delivered before exercising his right under Rule 35(12): he may do so at any time before the hearing of the matter. It follows that he may do so before disclosing what his defence is, or even before he knows what his defence, if any, is going to be. He is entitled to have the documents produced “for the specific purpose of considering his position” (Erasmus v Slomowitz (2) (supra at 244); see also Gehle v McLoughlin 1986 (4) SA 543 (W) at 546D - E). I conclude that the applicants' refusal to produce the documents sought cannot be justified on this ground.”

[22] The issue of whether the notice in terms rule 35 (12) of the Rules suspends time for the filing or delivery of the answering affidavit

was dealt with by Gorvern J in Potpale Investment (Pty) Ltd v Mkhize,[4] The question, in that case, was whether the delivery of the Rule 35 notice suspended the five-day period given in Rule 26 notice in which to deliver a plea. In answering the question the court held that:

“[18] The rules in question nowhere say that delivery of a notice in terms of rule 35(12) or (14) suspends the period referred to in rule 26 or any other rule. There are sanctions attaching to non-compliance with some parts of Rule 35. That Rule 35(12), for example, is that the non-compliant party may not use the documents in question. Where documents have been appropriately referred to, in other words where they are an integral part of the case of the party concerned, the likely result of this sanction would be that that party would not be able to prove its case. A further sanction is that a non-compliant party becomes subject to the provisions of Rule 30A. In that way, if a case is made out, production of the documents can be compelled. Rule 26 provides that the period between 16 December and 15 January must not be counted in calculating the time allowed for compliance. There is no reference in that, or any other, rule that delivery of a notice in terms of Rule 35(12) or (14) has any such effect. In the light of the specific mention of the period between 16 December and 15 January, one would expect such a reference if the contention of the defendant is correct.”

[23] In pointing out that Protea Assurance and Unilever did not support the proposition that rule 35 (12) notice suspends time frames either for fling a plea or an answering affidavit, the court held that:

“[14] In Protea Assurance, an interdict had been sought against the respondents. Reference was made in the papers to a tape recording and photographs. The respondent, having delivered a rule 35(12) notice, applied for the production of these documents and also for a stay of the application pending their production and the delivery of further answering affidavits. One of four bases of opposition to the application was the contention of the applicant that the respondent should be made to file an answering affidavit before seeing the documents in question. The court held that ‘ordinarily’ a party should not be required to do so without sight of a document referred to in the opponent’s pleading. It is noteworthy that the application to compel was accompanied by one suspending the time limits. No case was sought to be made out that the delivery of rule 35(12) notice automatically had that effect.

[15] Similarly, in Unilever, the applicant had launched interdict proceedings based on an alleged breach of its trademark by the respondent. The respondent delivered a rule 35(12) notice and, when the documents were not forthcoming, applied to compel their production. The suspension of time limits was not mentioned.”

[24] And more importantly in paragraph [20] of the judgment, the court held that:

“[20] The defendant says that it has a right to the production of the documents and that this would be negated if the time to deliver a plea was not suspended. This is not so. In the first place, neither Protea Assurance nor Unilever held that the entitlement to the documents was absolute and that, by necessary implication, the time to put up a plea or affidavit was suspended until the notice had been complied with. Secondly, the defendant is not without remedy. As was done in Protea Assurance, and as is pertinently provided for in rule 27(1) and (2), the defendant could have applied to extend the time limits within which to deliver the plea and have brought an application to compel. He chose not to do so.”

[25] In Potch Boudienste CC v Firstrand Bank Limited,[5] the court held that:

“12. There is authority for the proposition that the obligation of a party seeking the production of documents under rule 35(12) to deliver its answering affidavit is suspended by a request for and the adjudication of its claim for production of documents. There is a risk that an adroit lawyer, acceding to the instructions of a cynical or desperate litigant to invoke the machinery of rule 35(12) without just cause, can delay the resolution of the true dispute between the parties. The legal profession calls the technique of using procedural and interlocutory mechanisms to delay the resolution of the merits of a dispute, a technique admired or deplored according to the individual lawyer's ethical values, ducking and diving.

13. I simply do not accept that Potch is unable adequately in an answering affidavit to formulate its answers to the Bank's allegations until it gets the documents. Patch has books and records of its own. So the documents which Patch says it wants are not essential for the purpose of "pleading". What I suspect Potch wants to do is identify, before it delivers an answering affidavit, areas in which it thinks the Bank's case might be assailable and then, opportunistically, make those areas the basis for a defence.” (Footnotes omitted).

[26] It is quite clear from the above that rule 35 (12) does not suspend the period for filing an answering affidavit. Put in another way rule 35 (12) notice does not suspend the period within which an answering affidavit is to be filed. The period can be stayed or extended on application and with an order of court.

[27] In the present matter, the respondents seem to have misconceived their case. Their Counsel at the hearing focused on the time frame as provided in the rules which is clearly not the issue in this matter. The issue concerns failure by the respondents to file their answering affidavit within the time prescribed by the court order which was made by the consent of both parties. They failed to comply with the period for the filing of the answering affidavit set out in the court order. They neither applied for the extension of the period nor did they request to have the compliance with the court order stayed pending compliance with their rule 35 (12) notice by the applicants.

[28] In light of the above analysis I find that the respondents have failed to file their answering affidavit within the time prescribed in the court order. Accordingly the matter remained to be determined on the bases that it is unopposed.

[29] Although the order quoted above does not say that 29 January 2018 would be the return day it is quite clear that that was what was envisaged. In fact, the submissions made by the parties were evidently for and against the confirmation of the rule nisi.

[30] This being the return day for the interim order the question that remains to be answered is whether the applicants have satisfied the requisites for a final interdict. The requisites, all of which must be present, are (a) a clear right on the part of the applicant; (b) an injury actually committed or reasonably apprehended; and (c) the absence of any other satisfactory remedy.[6]

[31] The respondents’ argument concerning whether or not the interim order should be confirmed is misconceived. Their Counsel argued that if the interim order were confirmed that would amount to denying the respondents the right of access to court. This suggests that confirming the order would amount to granting ownership or permanent possession of the properties occupied to the applicants.

[32] This is not what the applicants have prayed for in their notice of motion.

[33] The applicants have in their notice of motion simply prayed for an order that requires the respondents to respect the rule of law and not take the law into their own hands. In essence what they are saying is that the respondents should follow due process if they wish to evict them from the properties. This is stated clearly in paragraph 23 of their founding affidavit where they state that:

“23. This application is brought …. against the respondents to prevent the applicants’ imminent and unlawful eviction from their homes. . .”

[34] The case of the applicants is that they occupied the houses they are currently in through the lease agreements with the army personnel. The respondents have not, as the papers stand, disputed the lawfulness of the occupation of the properties by the applicants. Be that as it may, even if that was unlawful, as was suggested by the respondents’ Counsel from the bar and the Rule 35 (12) notice, the undisputed facts indicate that the method used in seeking to evict them out of those houses undermines the legality

principle. Their right not to be unlawfully evicted, if the suggested unlawful occupation is indeed the case, is a rightfully recognised by our law. In this respect s 26 (3) of the Constitution provides:

“(3) No one may be evicted from their home . . . without an order of court made after considering all relevant circumstances. No legislation may permit arbitrary eviction.”

[35] The right not to be unlawfully evicted is procedurally protected by s 4 (1) and (2) of the Prevention of Illegal Eviction from and Unlawful Occupation Land Act, (PIE)[7] which reads as follows:

4. (1) Notwithstanding anything to the contrary contained in any law or the common law, the provisions of this section apply to proceedings by an owner or person in charge of land for the eviction of an unlawful occupier.

(2) At least 14 days before the hearing of the proceedings contemplated in subsection (1), the court must serve written and effective notice of the proceedings on the unlawful occupier and the municipality having jurisdiction.”

[36] The right of the applicants to occupy the houses which they say they rented from the military personnel has been infringed by the harassment and intimidation and threats of eviction, without following due process, by the respondents. There is no evidence that the respondents have obtained a court order to evict the applicants if indeed they are illegal occupiers of the houses in question.

[37] The requirement of absence of any other satisfactory remedy is satisfied by the fact that there is no evidence that the applicants have alternative accommodation neither is there evidence that they have been offered the same by any person.

[38] In my view, considering the above, it cannot be disputed that the applicants have satisfied all the requirements for the granting of a final order.

Order

[39] In the premises the following order is made:

1. The rule nisi is confirmed.

2. The costs of this application are to be paid by the first, second, third, fourth, fifth and sixth respondents, on the party and party scale, jointly and severally the one paying the others to be absolved.

E Molahlehi

Judge of the High Court;

Johannesburg.

Representation:

For the Applicants: Adv. H P Schreiner

Instructed by: Chris Liebenberg Attorneys

For the Respondents: Adv. R Kwinda

Instructed by: The State Attorney

[1] 2001 (2) SA 329 (C) at 336 G.

[2] 1994 (3) SA 247 ( ).

[3] 2012 (4) SA 113 (GSJ).

[4] 2016 SA 96 (KZN).

[5] (23898/15) [2016] ZAGPPHC 335 (25 April 2016).

[6] See Setlogelo v Setlogelo 1914 AD 221.

[7] Act number 19 of 1998.