Growthpoint ordered to pay costs of interdict saga as judge rules in Cape Town protesters' favour

2019-06-28 14:54
Activists from Reclaim the City and Unite Behind celebrate outside the Western Cape High Court after a ruling in their favour against property developer Growthpoint Properties. (Jan Gerber/News24)

Activists from Reclaim the City and Unite Behind celebrate outside the Western Cape High Court after a ruling in their favour against property developer Growthpoint Properties. (Jan Gerber/News24)

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"Amandla! Awethu!" activists of Reclaim the City exclaimed when Western Cape High Court Judge Judith Cloete ruled that an interdict, prohibiting them from protesting at a property owned by Growthpoint Properties, should not be granted.

Last December, a group of around 30 protesters from Reclaim the City, Unite Behind and the Social Justice Coalition occupied a parking lot at the bottom of Loop Street in Cape Town.

The land is owned by Growthpoint Properties, which it obtained from the City of Cape Town in 2016, at what Reclaim the City claims was a "discount".

On the same day, after an urgent application from Growthpoint Properties, Western Cape High Court Judge Kate Savage granted an interim interdict against the protesters.

The application was granted ex parte – meaning not all the parties to the matter were heard. In this case, it was only Growthpoint that was heard, because it was the applicant. The interdict had been extended on several occasions.

The applicant's advocate, Sean Rosenberg, SC, had previously asked Cloete to confirm the earlier interdict.

'Real purpose of protest'

But advocate Ria Matsala, who represented Reclaim the City and Unite Behind, argued that this should not be done.

Rosenberg argued that "the occupiers were on site to occupy" for an undetermined time and that their motivations were immaterial. He said it was private property.

Matsala argued that the applicants – in their initial application – failed to state all the material facts before the court and breached the good faith required by an applicant in an ex parte matter.

Delivering her judgment on Friday, Cloete agreed with Matsala.

Cloete found that Growthpoint's regional asset manager for the Western Cape, Tim Irvine, did not disclose all the relevant facts to the court in his founding affidavit.

"What cannot be disputed is that the real purpose of the protest must have been known to Irvine," Cloete said.

In his affidavit, Irvine said the protesters were unknown to him. But, pictures shown in court showed the protesters holding banners with Reclaim the City's logo.

'Did not pose a real threat'

Furthermore, an attorney acting on behalf of the protesters, Jonty Clogger, made contact with Growthpoint's attorney and asked to take instruction from the protesters on the site. This was not reflected in the founding affidavit.

The previous peaceful protests Reclaim the City held in connection with Growthpoint were also not mentioned in the affidavit.

Cloete said that Savage was misled and that she agreed the original application "breached the duty of utmost good faith" that an ex parte application requires.

She said there was clearly no "dire urgency".

"The protest did not pose a real threat to the applicant's property rights," Cloete said.

"The applicant omitted to place all the relevant facts before Savage, J. And these facts are material," Cloete said.

She also pointed out that the respondents – Reclaim the City and Unite Behind – undertook that they would not return to the property.

She discharged the interdict and ordered that Growthpoint pay the costs of the litigation.

Read more on:    reclaim the city  |  growthpoint properties  |  cape town  |  courts  |  housing  |  protests

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