Interdict Against Ricky Govender

For background click here to see the Motala Heights Digital Archive. And click here to download all of the documents relating to this case as word attachments.

The (all pro bono) work in this case was by Arti Sing (attorney) and Juliett Nicholson (advocate) with lots of support and rushing around from S’bu Zikode and others in Motala.

IN THE HIGH COURT OF SOUTH AFRICA
DURBAN COAST AND LOCAL DIVISION

Case Number:

In the matter between:

J G PILLAY First Applicant

G PILLAY Second Applicant

M GOVENDER Third Applicant

and

R GOVENDER Respondent

______________________________________________________________________
NOTICE OF MOTION

______________________________________________________________________

TAKE NOTICE THAT the abovenamed applicants will make application to the above Honourable Court as a matter of urgency on 28 SEPTEMBER 2007 at or so soon thereafter as Counsel may be heard for an Order in the following terms:

1. That a rule nisi do issue calling upon the respondent to show cause, if any, on the day 2007 at 09h30 am or soon thereafter as the matter may be heard why the following order should not be granted:

1. that the respondent is interdicted and restrained, either personally or through an agent or employee, from evicting the applicants from their homes situated at Lot 19, Motala Heights, Pinetown, Durban in KwaZulu-Natal, in the absence of an Order of Eviction from the above Honourable Court;

2. that the respondent is interdicted and restrained, either personally or through an agent or employee, from bulldozing, breaking down, destroying or demolishing the applicants’ homes situated at Lot 19, Motala Heights, Pinetown, Durban in KwaZulu-Natal;

3. that the respondent is interdicted and restrained from assaulting, harassing, threatening or abusing, physically or verbally any of the applicants;

4. that the first respondent is directed to pay the costs of this application.

2. That pending the final determination of the relief in paragraph 1, that paragraphs 1(a); (b) & (c) operate as an interim order.

3. Further and/or alternative relief.

TAKE NOTICE FURTHER THAT the affidavits of JAMES BALLRAN PILLAY, GONUMN PILLAY and MALLIE GOVENDER annexed hereto, will be used in support hereof.

KINDLY PLACE THE MATTER ON THE ROLL FOR HEARING ACCORDINGLY.

DATED at on this day of SEPTEMBER 2007.

________________________

Applicant’s Attorney

A SING & ASSOCIATES

Applicants’ Attorneys

Suite 2009

20th Floor

Maritime House

Cnr Salmon Grove & Victoria Embankment

DURBAN

TO: THE REGISTRAR OF THE HIGH COURT

Masonic Grove

DURBAN

AND TO: R GOVENDER

Respondent

Lot 24 Raju Place

Motala Heights

Pinetown

DURBAN

***********************************************************

IN THE HIGH COURT OF SOUTH AFRICA
DURBAN COAST AND LOCAL DIVISION

Case Number:

In the matter between:

J G PILLAY First Applicant

G PILLAY Second Applicant

M GOVENDER Third Applicant

and

R GOVENDER Respondent

______________________________________________________________________
FOUNDING AFFIDAVIT

______________________________________________________________________

I, the undersigned,

JAMES BALLARAN PILLAY

do hereby make oath and say that:

1.

I am the first applicant in this application. I am married to the second applicant herein. I refer the above Honourable Court to the confirmatory affidavit filed evenly herewith on her behalf.

2.

The facts deposed to herein are within my own personal knowledge and belief, save where the context indicates otherwise and are true and correct. Matters of law referred to herein are set out on the legal advice given to the first respondent by it legal advisors.

3.

This is an application brought on an urgent basis to interdict the respondent from evicting the second applicant, third applicant and I from our homes situated at Lot No. 19 in Motala Heights, Pinetown, KwaZulu-Natal.

4.

I am an adult male. I am presently unemployed and I reside together with the second applicant in a wood and iron house on Lot 19, Motala Heights.

5.

The second applicant is my wife, GONUMN PILLAY an adult female. She is also presently unemployed and resides with me in our house on Lot 19, Motala Heights.

6.

The third applicant is MALLIE GOVENDER an adult female who is also presently unemployed and who lives in another house situated on Lot 19, Motala Heights.

7.

The respondent is the RICKY GOVENDER, an adult male businessman who resides at Lot 24, Raju Place, Motala Heights and who owns Lot No. 19, the property on which all of the applicants presently reside.

8.

This application is brought urgently, as the respondent has threatened to bulldoze our houses if we fail to vacate them before the end of the month. I pray that, given these circumstances, that the above Honourable Court dispense with the usual time periods set forth in the Uniform Rules of Court.

9.

All three of the applicants presently live in two wood and iron houses on Lot 19, Motala Heights. The second applicant and I built our house 25 years ago and have been living in it ever since. The third applicant has been living in Motala Heights for 32 years and built her house on Lot 19, 16 years ago. She has also been living there ever since.

10.

Both of our houses are three bedroom houses and are situated on either side of a driveway which leads to the adjacent roadside.

11.

Both the third applicant and the second applicant and I live on the property by virtue of agreements of lease. Our agreements were originally concluded with the former land owner, Mr Naidoo. I annex hereto marked “A” a copy of the written memorandum of agreement concluded between Naidoo and myself and my brother.

12.

Since moving on to the property we have all paid rental to the land owner. Originally we paid rent to Mr Naidoo, but in 2002, we were informed by a messenger from the respondent that he had purchased the land and rental should thereafter be paid to the respondent.

13.

Since 2002, the third applicant and I have paid our rental, which is presently R150,00 per month directly to the respondent at his house which is situated across the road from Lot 19.

14.

The respondent lives and works in Motala Heights. As stated above, his house is just across the road from our houses. His warehouse is also situated there. I understand that he operates and glass and aluminium business and also runs a clothing business.

15.

On 16 August 2005, the respondent informed us that he wanted us to vacate our houses. He sent me a letter on a copy of which is annexed hereto marked “B”.

16.

As the second applicant and I had nowhere to move to, we remained in our house and continued to pay rental. The respondent continued to accept payment of our rental.

17.

In April 2007, the respondent again threatened me and told me that I was to leave the property.

18.

On 30 July 2007, the respondent asked me to meet with him at 4pm on that afternoon at his warehouse office. I attended that meeting when he asked me how the progress was coming with moving out of the property. I informed him that the second applicant and I could not move out of the house as we had nowhere else to go, and we had an agreement to lease the property from him. I had paid rental to the respondent every month and he had accepted it.

19.

More recently, on Sunday, the 23rd of September, the respondent sent one of his employees to my house to ask me to meet with him at the gates of his property across the road. I followed him to the respondent as requested.

20.

On this occasion, the respondent greeted me and again asked he about progress on vacating my house. I told him that could not vacate as I had nowhere else to live. He insisted that I move out as he intended to construct factories on the property. I reiterated that I simply could not move. At that point the respondent called his brothers who came out of the house and started harassing me and physically pushing me. They said that I had better leave by the end of September 2007, or else they would throw everything out and bulldoze your house.

21.

I am afraid that the respondent will be true to his word and will literally throw everything out of our house and bulldoze our property. On a previous occasion, on 5 August 2007, he brought his bulldozers onto our property and bulldozed down the banana trees which grow alongside the third applicant’s house.

22.

We had no idea that he intended to bulldoze, but on returning from church on that Sunday, found him on our property with the bulldozer. In the course of taking down the trees, the respondent burst the third applicant’s water pipe and damaged her soak pit. On this occasion, the respondent also physically assaulted me and one of our residents, Shamita Naidoo.

23.

The respondent owns two bulldozers and I have no doubt that he will not hesitate to put them to use if the other applicants and I remain on the property.

24.

The respondent has scant regard for the law and recently the media covered the events at Motala Heights. I annex hereto the recent article by Niren Tolsi which appeared in the Mail and Guardian on 21 September 2007, marked “D” which sets out some of the history of harassment by the respondent.

25.

The respondent often dumps waste from his warehouse onto our property and refuses to allow anyone in our community to remove it. Most people who live in Motala Heights are terrified of the respondent because of his violent behaviour and of this threats to evict them from their houses.

26.

After the respondent threatened and assaulted us, Shamita Naidoo attempted to lay a criminal charge of assault against him at the Pinetown Police Station. The police were extremely unco-operative and refused to give her a case number. When she returned one hour later, as they had asked her to do, she was informed that the Investigating Office refused to open a docket in the matter as he did not think there was sufficient evidence for charges to be laid.

27.

As far as I know the respondent is very close to the SAPS and the Sheriff of Pinetown. I am not surprised that they refuse to co-operate with us or to help us in enforcing our rights against the respondent. In these circumstances, we have no alternative but to approach this Court for the relief set forth herein.

28.

The second applicant and I are terrified that he will follow through with his word and literally bulldoze our house in the next few days if we refuse to leave voluntarily. If he does so we will lose all our possessions and be rendered homeless. The second applicant and I are both 59 years old and we live in our house with our youngest child.

29.

Moreover, I am advised that by virtue of the provisions of the Prevention of Illegal Evictions and Unlawful Occupation of Land Act No. 19 of 1998, any attempt to evict any unlawful occupant from a property must be brought in terms of that Act.

30.

The procedures set forth in the PIE Act protect individuals such as the second applicant and myself from being evicted from our property without an application being brought before the above Honourable Court and without notice to the eThekwini Municipality.

#

As far as I am aware no such application has been instituted by the respondent. I am advised that had such an application been initiated, the second applicant and I would have been served with a copy of the application papers. That has not happened.

32.

In the absence of an application for eviction being granted by the above Honourable Court, the respondent has no right to seek to evict us from his property. In these circumstances, we have a clear right to the relief sought herein.

33.

It is clear from what has been stated above, that in the absence of an interdict the respondent will bulldoze our property and cause the second applicant and I irreparable harm.

34.

The second and third applicants and I have no alternative remedy but to approach the above Honourable Court for the relief sought herein.

35.

In the circumstances, we pray for an order in terms of the Notice of Motion to which this affidavit is annexed.

________________________

DEPONENT

I certify that the deponent has acknowledged that she knows and understands the contents of this affidavit duly signed and sworn to before me
at on this day of 2007, the regulations contained in Government Gazette No. R1258 dated 21 July 1972, as amended, having been complied with.

______________________________

COMMISSIONER OF OATHS

Full name:

Address:

Designation:

Area: