On the 26th of May 2021, the Willow Arts Collective, residents of the premise on 2 Willow Road Observatory, saw ourselves once again before Magistrate Khan at the Cape Town Magistrate’s Court (case number 8917/19). We have been fighting the City of Cape Town’s attempts to evict us, now seeking an application to strike-out the City’s Housing Report, submitted to the court in reply — an irregular act that unfairly prejudices the residents.
As the elected chairperson of the WAC (the respondents in this case), and making averments of legal nature under the advice of our legal team, I deposed to the Magistrate Court an affidavit on the 6th of May 2021 in support of the striking out application.
In the strikeout affidavit, and with the legal advice and assistance of our dedicated legal representatives, I clarify that:
a) As respondents, we have been deprived of a fair opportunity to address the applicant’s (City of Cape Town) Housing Report as it was submitted incorrectly in reply.
b) This prejudice was due to the City’s failure to submit its Housing Report at the appropriate stage of proceedings – ie in their founding affidavit. It is accepted legal procedure to ensure fairness for both parties that an applicant’s case must be made out entirely in its founding affidavit.
c) This failure means that the City of Cape Town makes an incomplete case for eviction in its founding papers and that the subsequent attempt to remedy this defect in reply stands to be struck out.
In their answering affidavit, the City of Cape Town does not deny its duty to advance a proper case must be discharged in its founding papers. Instead, the City’s papers fixate on issues of prejudice and relevance, trying to distract from their failure to make a proper eviction case. As such the City of Cape Town somehow claims that the Housing Report does not constitute new information. They also deny that the Respondents (the WAC) have suffered prejudice through the report’s inclusion, alleging that the materials are relevant to proceedings and are somehow to our benefit.
They jump through legal hoops to ignore the fundamental legal principle that an applicant’s case must be made out in its founding papers. In other words, it was required to meaningfully engage with residents, conduct a survey of the personal circumstances of residents, and put together a housing report, all for the initial application. As we show in our application to strike out, the City has done none of this. It is noteworthy that the City offers no, or an inadequate explanation as to why the information, in particular, its own housing report was not filed together with its founding papers.
Even worse, the City has still, to this day, refused to meaningfully engage with the Willow Arts Collective — even though this is constitutionally required and even though the magistrate has ordered the City to do so on three separate occasions.
After our court hearing on the strike-out application on the 26th of May 2021, we now await magistrate Khan’s judgment which will be handed down on the 28th of June 2021.
We are hoping for a positive outcome: One that will finally force the City to come to the table and talk to us and the residents of the Observatory. Together, we believe it is possible to achieve a just outcome for all parties. But this won’t happen if the City continues to ignore its constitutional obligation to meaningfully engage with all of us.