CC CASE NO: 50/12 SCA CASE NO: 440/2011 LCC CASE NO: LCC145/2010
In the matter between :
MICHAEL HATTINGH First Applicant
EDWINA JUNITA HATTINGH Second Applicant
PIETER HATTINGH Third Applicant
and
LAURENCE EDWARD JUTA Respondent
REPLYING AFFIDAVIT IN RULE 31 APPLICATION
I, the undersigned,
MARION HATTINGH state as follows under oath:
1 I deposed to the founding affidavit in the application for leave to appeal in terms of rule 19 and for leave to lead further evidence in terms of rule 31 of the rules of this court.
2 I have personal knowledge of the facts in this affidavit, unless I state or imply otherwise, and they are true and correct.
3 I recognise that the applicants have no right of reply in terms of rule 19. They
do, however, have the right to reply in their concurrent application for leave to lead certain statistical evidence in terms of rule 31.
4 Accordingly, I confine this replying affidavit to those aspects of the respondent’s answering affidavit which pertain to the leading of fresh evidence on appeal.
Ad paragraph 3
5 I note that the respondent on his own version goes beyond the record on appeal in his answering affidavit and accordingly leads fresh evidence on appeal. The applicant does so without bringing any application to lead fresh evidence. I deny that he is entitled to do so. Nor can the respondent justify this with reference to the applicants’ application to lead fresh evidence because the applicants’ application has been brought properly in terms of rule 31 of the rules of this court and is confined to statistical evidence.
6 The applicants object to the admission of all the evidence in the respondent’s answering affidavit which is not referenced to the record.
7 The applicants assert that the matter should be decided on the basis of-
7.1 the evidence referenced to the record; and
7.2 insofar as the versions of the applicants and the respondent conflict, on the applicants’ version (the respondent also having brought no application to have the matter referred to oral evidence when it was
originally heard);1 and
7.3 the statistical evidence presented by the applicants in terms of rule 31.
8 Having regard to the fact that the applicants’ right of reply is confined to the rule 31 application, I confine my comments in this affidavit to paragraph 47 of the respondent’s answering affidavit which deals with the grounds of the respondent’s opposition to the applicants’ application in terms of rule 31.
Ad paragraph 47.1
9 The respondent challenges the probative value of the statistical evidence which the applicants seek leave to admit in terms of rule 31. In response, it is submitted that the probative value of the evidence is compelling inter alia, in that:
9.1 it shows that multi-generational families residing in a single household are an extremely common phenomenon in South Africa, and are accordingly embraced within the concept of the right to family life in the culture of the average South African family, regardless of whether or not that family comes from a particular racial grouping;
9.2 if regard is to be had to racial communities and their associative practices, as the judgment of the Supreme Court of Appeal would (with respect, wrongly) have us do, it shows that multi-generational families living in the same household are a particularly strong associative practice
1 Plascon-Evans Paints Ltd v Van Reebeck Paints Ltd 1984 (3) SA 623 (A) at 634G – 635D. the decision is followed by this court. See for example President of the Republic of South Africa &
Others v M&G Media Ltd 2012 (2) SA 50 (CC) at para 34.
of the coloured community of which the applicants form part. This is apparent from –
9.2.1 the affidavit of Dr Budlender which shows that the incidence of multi-generational families in the coloured community lies at 39%, whereas the national average amongst all race groups is 35%; and
9.2.2 the affidavit of Professor Amoateng insofar as his chapter on the post-apartheid family on which his affidavit is based includes inter alia, the following -
“The extended family system is identified with Africans and coloured people”,2
and
“the relative absence of the conjugal unit, the presence of children of all ages, siblings, other relatives, and the dependence of the elderly African, Asian and coloured households demonstrates these groups’
cultural preference for multi-generational living.”3 (emphasis added)
10 Accordingly, it is submitted that the probative value of the statistical evidence is compelling.
Ad paragraph 47.2
11 In this paragraph, the respondent sets up as the basis for the applicants’ rule 31 application that “they did not bother to present the evidence which they now seek to present as they were apparently of the view that the magistrates would
2 P56 of the Chapter, lines 4 – 5.
3 P56 of the Chapter, lines 11-14.
simply support the defence that they thereafter raised, namely the right to family life”.
12 This is manifestly not the basis upon which the applicants seek the admission of the statistical evidence in terms of rule 31. Accordingly, the respondent’s contentions in this paragraph represent no response to the applicants’ case in this regard.
Ad paragraph 47.2.1
13 Again, this paragraph purports to respond to a case which the applicants never put up. It takes the matter no further. I stand by what I said in the founding affidavit.
Ad paragraph 47.2.2
14 By way of brief explanation, I point out to this court that all of the affidavits and related documentation pertaining to the application to join the national Minister of Land Affairs, the national Minister of Housing and the Stellenbosch Municipality as third parties (“the third party proceedings”) was omitted from the appeal record as a result of an agreement reached between then-counsel for the applicants, Mr T Möller and counsel for the respondent, Mr Wilken, (on the suggestion of the latter) that same should be omitted from the record because it was not germane to the narrow point regarding section 6(2)(d) of ESTA which formed the subject matter of the appeals to the Land Claims Court and the Supreme Court of Appeal. In the third party proceedings, the applicants sought declaratory relief against the third parties in relation to the duties of the national,
provincial and local spheres of government in relation to the right to housing in terms of section 26 of the Constitution. The magistrate ordered that the third parties be joined, but it was not necessary for the magistrate’s court to decide the declaratory relief sought against the third parties because the application for eviction was refused.
15 The third party proceedings had nothing to do with the issue that is before this court, namely the content of the right to family life in section 6(2)(d) of the Extension of Security of Tenure Act No. 62 of 1997 (“ESTA”). I accordingly deny that it presented an opportunity for the applicants to put up the statistical evidence.
16 The affidavits filed in the third party proceedings pertained to the duties of the national, provincial and local spheres of government in relation to the right to housing in terms of section 26 of the Constitution. The only evidentiary aspect which arose in the third party proceedings which is similar to the evidentiary issues in these proceedings, is the statistics concerning the housing shortage in Stellenbosch. In that regard, the affidavits filed by the third parties confirmed the severe housing shortage. There was accordingly no reason for the applicants to put up evidence to gainsay it as it supported the applicants’ case.
The issue regarding extended families and multi-generational families did not arise in any way in the third party proceedings.
17 In passing, I point out that although the third parties did not participate in the appeals, the situation remains that the three third parties were joined in the proceedings by order of the Stellenbosch Magistrates Court and remain so.
That order has never been overturned. Accordingly, in the event of this court deciding the application or the appeal in favour of the respondent and upholding the applicants’ eviction, it will remain necessary to remit the matter to the Magistrates’ Court for determination of the relief sought as against the third parties in the third party proceedings. The third parties did not participate in the appeals because the narrow point on appeal did not affect them.
Ad paragraph 47.2.3
18 I deny that it was open to the applicants to present evidence at the hearing before the Land Claims Court. The hearing before the Land Claims Court was an appeal based on the record before the Magistrates Court. There is no equivalent to rule 31 of the rules of this court in the rules of the Land Claims Court.
19 Moreover, as pointed out in my founding affidavit, the Land Claims Court had consistently accepted that adult children or grandchildren were entitled to live with their parents in terms of section 6(2)(d) of ESTA without any need to prove that this was based on a cultural or racial associative practice.
Ad paragraph 47.2.4
20 Again the respondent disingenuously and deliberately misreads the applicants’
founding affidavit. The applicants do not allege “that the Supreme Court of Appeal does not have the power to hear further evidence save with consent”. I refer in this regard to paragraph 50.2 of my founding affidavit. As is pointed out there, the applicants took the view that the statistical evidence was not
admissible in terms of section 22(a) of the Supreme Court Act No. 59 of 1959 and because the SCA does not have a rule equivalent to rule 31 of the rules of this Court, the evidence could only be admitted with the consent of the respondent.
Ad paragraph 47.2.5
21 The respondent’s reliance on Rail Commuters Action Group v Transnet Ltd t/a Metro Rail4 is misplaced. In that case the Constitutional Court held that the evidence concerned was not admissible under rule 31.5 The extracts from the judgment relied on by the respondent pertained to the attempt by the applicant in that matter in the alternative to admit the evidence under section 22 of the Supreme Court Act.6
22 The applicants in this matter place no reliance on section 22 of the Supreme Court Act and accept that if the evidence is not admissible in terms of rule 31 (which is denied) then it is not admissible at all.
Ad paragraph 47.2.6 and 47.2.7
23 I deny that the respondent lacks the resources to put up evidence to counter the allegations of Dr Budlender and Professor Amoateng.
24 The respondent chose to launch legal proceedings and he cannot at this point rely on a lack of resources to defeat an application which the applicants are
4 2005 (2) SA 359 (CC) at paras 41 and 43.
5 See para 38.
6 See para 39.
entitled to bring.
25 In any event, to the best of my knowledge the respondent is a businessman of substantial means.
Ad paragraph 47.2.8
26 I deny this paragraph.
Ad paragraph 47.2.9
27 I deny that the evidence pertaining to the housing shortage is irrelevant to the matter.
28 I note the admission that the consequence of the eviction will be homelessness for the applicants.
29 In the circumstances, the applicants persist in the application in terms of rule 31.
MARION HATTINGH
I hereby certify that the deponent knows and understands the contents of this affidavit and that it is to the best of her knowledge both true and correct. This affidavit was signed and sworn to before me at STELLENBOSCH on this the ____day of ______________ 2012, and that the Regulations contained in Government Notice R.1258 of 21 July 1972, as amended, have been complied with.
_____________________________
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