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[2020] ZAWCHC 41
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Makeshift 1190 (Pty) Ltd v Cilliers (A38/2020) [2020] ZAWCHC 41; [2020] 3 All SA 234 (WCC); 2020 (5) SA 538 (WCC) (25 May 2020)
THE
HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION)
JUDGMENT
Case
No: A38/2020
In
the matter between
MAKESHIFT
1190 (PTY) LTD
APPELLANT
And
COLLEEN
CILLIERS
RESPONDENT
Coram:
Rogers and Cloete JJ
Enrolled
:
8 May 2020
Delivered:
25 May 2020
This
judgment was delivered electronically at about 10:00 on Monday 25 May
2020 by emailing it to the parties’ legal representatives.
The
judgment was released to SAFLII on the same day.
JUDGMENT
Rogers
J (Cloete J concurring)
[1]
At issue in this appeal is whether the court
a quo
, the
Riversdale Magistrate’s Court (‘the RMC’), erred
and acted beyond its powers in making various orders pursuant
to a
spoliation application launched by the present respondent against the
present appellant. Due to the Covid-19 lockdown, the
parties agreed
that we could adjudicate the appeal on the basis of the record and
heads of argument. We reserved the right to call
for oral
submissions, but in the event we have found it unnecessary to do so.
[2]
The appellant’s heads of argument were filed very late. An
explanation was furnished in a substantive application for
condonation. Although aspects of the explanation are open to
criticism, this is not a case in which we would non-suit the
appellant.
The respondent in the appeal was afforded an opportunity
to file supplementary heads. Because we are adjudicating the appeal
without
an oral hearing, the lateness of the appellant’s heads
has not resulted in a day’s wasted costs.
[3]
I should mention that Mr Ferreira, who was briefed to appear for
respondent in the appeal and drafted the supplementary heads,
was not
the author of the main heads filed on the respondent’s behalf.
[4]
The appellant, Makeshift 1190 (Pty) Ltd (‘Makeshift’), is
the owner of a farm in the Riversdale area. The respondent,
Colleen
Cilliers, occupies a building on the farm together with her husband,
Tom, and their children. I shall refer to this building
as ‘the
store’, in keeping with terminology used in the papers. Since
it will be necessary to make reference to other
members of the
Cilliers family, I shall refer to the respondent and her husband by
their first names, meaning no disrespect. Tom
and his family occupy
the store as a home. On Makeshift’s version, Tom and the family
moved into the store in April 2015.
[5]
The shares in Makeshift used to belong to Tom’s father,
Martinus. Until his death in October 2019, Martinus resided in
another dwelling on the farm.
[6]
In December 2014 Martinus sold the Makeshift shares to Tom, but a
dispute about performance of the sale led to Martinus selling
75% of
the shares to Tom’s siblings, Humboldt Cilliers, Rykie Erasmus
and Salome Doman. Precisely what happened to that sale
is unclear,
because in March 2018 Martinus transferred all the shares in
Makeshift to Humboldt and Rykie in equal shares.
[7]
The collapse of the sale of Makeshift to Tom led to, or was perhaps
indicative of, a fractured relationship between him on the
one hand
and his father and siblings on the other. There were various legal
proceedings apart from those at issue in the present
appeal:
(a) In 2016 Tom obtained
from the RMC an interim protection order against Martinus which was
still pending at the time of the alleged
spoliation.
(b) In 2017 Tom launched
an application in this court for specific performance of the sale
agreement. In October 2017 Tom’s
attorneys notified the
attorneys acting for Tom’s father and siblings that Tom would
be withdrawing the application and issuing
summons for the same
relief. (This subsequently happened, and the action is pending.)
(c) Also in 2017,
Makeshift launched an application in this court for Tom’s
eviction. Engers AJ dismissed the application
on the basis that
because of the pending dispute about control of Makeshift, it could
not be concluded that Tom was an unlawful
occupier.
[8]
The store was served by Eskom electricity. The Eskom contract was in
Makeshift’s name but Tom paid the bills, at least
since the
time he began occupying the store. The respondents in the court
a
quo
stated that in July 2016 Martinus installed solar panels on
the roof of his dwelling, which provided sufficient electricity for
his own requirements and those of the farm. On the other hand, there
is evidence from Colleen that she encountered an electrician
on the
farm on 31 October 2017, who said that he was there to convert
Martinus’ electrical supply and that this entailed
a
termination of the Eskom supply. At any rate, it seems that for some
time before December 2017 Martinus had not been dependent
on Eskom
for electricity.
[9]
On 20 or 21 December 2017 the Eskom electricity on the farm was
disconnected. The only part of the farm served by Eskom electricity
at that time was the store and its related facilities. The
electricity was disconnected because Makeshift had cancelled its
contract
with Eskom. As a result of this cancellation, Eskom sealed
the electricity box on the farm.
[10]
On 21 December 2017, at which time Tom was working on a mine in the
Free State, Colleen launched an urgent
ex parte
spoliation
application in the RMC, citing Makeshift and Martinus as respondents.
In her founding affidavit, Colleen said that because
of the
prevalence of farm murders, she was very scared when the external
lights were not on at night. Her husband had recently
slaughtered a
cow and two sheep, which were in the freezer and would go rotten
without electricity.
[11]
On the same day an
ex parte
order was issued calling on the
said respondents to show cause why final orders should not be granted
(a) ordering them to
remove the locks on the electricity box or
to provide Colleen with a key; (b) ordering them to switch on
the supply of electricity
to the store or to authorise Colleen to do
so; (c) ordering them to restore the electricity supply to the
property by not
later than 16:00 on 21 December 2017; (d) prohibiting
them from depriving Colleen of her possession and use of electricity
and water without a court order. The rule nisi was to operate as an
immediate interim order pending the final determination of
the
application.
[12]
The respondents did not comply with the interim order. They opposed
the application. The extended return day was heard in November
2018.
The RMC, having seemingly raised the point
mero motu
, ruled
that the orders sought by Colleen could not be granted without
Eskom’s joinder. Colleen noted an appeal against that
ruling.
In May 2019 this court (per Sievers AJ, Steyn J concurring) dismissed
the appeal on the basis that the RMC’s ruling
was not an
appealable order.
[13]
Colleen caused Eskom to be joined. In October 2019 Martinus died, so
Makeshift became the sole respondent. The case was argued
in November
2019. On 6 December 2019 the RMC granted final orders in terms of the
rule nisi and ordered Makeshift to pay the costs
on the attorney and
client scale.
[14]
No point was taken, on the papers or in argument, that Colleen did
not have standing to apply for spoliatory relief. At the
time she
brought the application she had factual control (
detentio
) of
the store and its appurtenances, and clearly intended to hold it, at
least in part, for her own benefit and that of her
children
(cf
Mbuko v Mdinwa
1982
(1) SA 219
(TkSC) at 222F-H;
Dlamini &
another v Mavi & others
1982 (2) SA
490
(W) and cases there reviewed). It matters not th
at she may
also have been exercising control for Tom’s benefit or that she
and Tom may both have had possession, because the
claimant in
spoliation proceedings need not have exclusive possession (
Nienaber
v Stuckey
1946 AD 1049
at 1056).
[15]
The author of the main heads of argument on Colleen’s behalf
(not Mr Ferreira) raised two matters which it is desirable
to clear
out of the way at the outset.
Extension
of Security of Tenure Act 62 of 1997 (‘ESTA’)
[16]
The first matter is his invocation of s 6(1) of ESTA as a basis
on which Tom and his family were entitled to continue
enjoying access
to Eskom electricity, such supply having been a service agreed upon
as part of their right of occupation.
[17]
This argument must be rejected, because nowhere in her papers did
Colleen allege that she was relying on ESTA, and she did
not allege
the facts necessary to bring herself within the ambit of that
legislation. (This would have included the question whether
Tom and
Colleen’s income exceeded the prescribed amount contemplated in
the definition of ‘occupier’ and whether
their right of
occupation had been lawfully terminated.) A person who asserts a
claim under ESTA is relying on a substantive right
to be in
possession and to enjoy the agreed services. Spoliation proceedings,
by contrast, are not concerned with the question
whether or not the
claimant enjoys the alleged right.
Authority
to represent Makeshift
[18]
The second matter is the submission that as at December 2017 Martinus
was Makeshift’s sole director, and that Humboldt
and Rykie, who
in their opposing affidavits claimed responsibility for the decision
to terminate the Eskom supply, had not been
empowered to do so.
[19]
This is a self-defeating argument. If it were right, it would mean
that the act of spoliation was not the act of Makeshift
but the act
of Humboldt and Rykie, and it would follow that they, rather than the
company, should have been cited as the respondents.
Factually,
however, I do not think that the evidence shows that Humboldt
and Rykie were acting without their father’s
authority. At very
least, his opposition to the application, including a confirmatory
affidavit, demonstrates that he ratified
Humboldt and Rykie’s
actions.
Possession
[20]
I can now deal with the issue that lies at the heart of the appeal.
Makeshift disputes that Colleen had possession of an electricity
supply in the sense required for spoliatory relief. Makeshift places
particular
reliance
on the recent judgment
of the Supreme Court of Appeal in
Eskom Holdings Soc Ltd v Masinda
2019 (5) SA 386
(SCA).
[21]
Masinda
confirms that certain rights, although incorporeal,
may be the subject of quasi-possession for purposes of spoliatory
relief. Although
in spoliation proceedings a court is not concerned
with whether or not the right has been established, the facts must
show that
prior to the alleged spoliation the claimant enjoyed
undisturbed quasi-possession of the alleged right, in the sense of
performing
acts demonstrating the exercise thereof. As Malan AJA said
in para 13 of
First Rand Ltd t/a R Merchant Bank & another v
Scholtz NO & others
[2006] ZASCA 99
;
2008 (2) SA 503
(SCA),
in a passage quoted with approval in para 14 of
Masinda
,
‘
the professed
right, even if it need not be proved, must be determined or the right
characterised to establish whether its
quasi-possessio
is deserving of protection by the mandament’
[22]
Immediately after the above sentence, Malan AJA continued (footnotes
omitted):
‘
Kleyn seeks to
limit the rights concerned to ‘gebruiksregte’ such as
rights of way, a right of access through a gate
or the right to affix
a nameplate to a wall regardless of whether the alleged right is a
real or personal. That explains why possession
of ‘mere’
personal rights (or their exercise) is not protected by
the
mandament. The right held in
quasi-possessio
must be a ‘gebruiksreg’ or
an incident of the pos
session or control of the property.’
[23]
After quoting this passage, Leach JA in
Masinda
said that,
depending on the circumstances, the supply of electricity or water
may be recognised as being an incorporeal right,
the possession of
which is capable of protection under the mandament. From what
the learned judge carries on to say, however,
it is equally clear
that he envisaged that an alleged right to a supply of electricity or
water may be no more than a ‘mere’
personal right, and
this is indeed what he found to be the position in that particular
case.
[24]
The difficult question is to identify the precise basis on which an
alleged right to electricity is to be characterised as
being of one
kind or the other. In general terms, one must, in terms of
First
Rand v Scholtz
and
Masinda
, enquire whether the alleged
right to electricity was a ‘
gebruiksreg
’
(a right of use) or an ‘incident of the possession or control
of the property’ served by the electricity. If
so, the
mandament is available to protect the alleged right.
[25]
In the modern day, a supply of electricity and water to a residential
property is a practical necessity in order for an occupant
to use the
property as a dwelling. When such supply is terminated, the occupant
experiences a significant disturbance in his occupation.
It is
apparent, however, from
Masinda
that this does not suffice to
make the alleged right to electricity and water an ‘incident of
the possession or control of
the property’.
Masinda
dealt
with the supply of electricity to a residential dwelling, but it was
held that the alleged right of supply was not protected
by the
mandament. Leach JA also disapproved cases which treated the ‘mere’
supply of electricity and water, ‘without
more’, as
constituting an incident of possession, citing as one example of such
a case
Eskom v
Nikelo
[2018]
ZAECMHC 48 (see
Masinda
para 16).
[26]
On the other hand, Leach JA referred to
Naidoo v Moodley
1982
(4) SA 82
(T) and
Froman v Herbmore
Timber and Hardware (Pty) Ltd
1984 (3) SA 609
(W) – both
cases where a landlord had severed a tenant’s electricity
supply – without evident disapproval, explaining
them on the
basis that in those cases the electricity seemed to have been cut off
with a view to forcing the claimants to vacate
the property and that
it was the claimants’ possession of the property, rather than
quasi-possession of the electricity,
that was being protected.
[27]
In
Naidoo
the claimant had previously had a lease of the first
floor of a double-story residence. There was a dispute as to whether
he was
bound by a purported settlement agreement requiring him to
vacate by a specified date. When he did not vacate, the landlord cut
off the electricity supply. Eloff J rejected the landlord’s
argument that the mandament was precluded because the claimant’s
only alleged entitlement to electricity was contractual. The learned
judge described the claimant’s use of electricity as
an
incident of his occupation of the first floor (84A-B), and said that
the landlord, by cutting off the electricity, ‘substantially
interfered with [the claimant’s] occupation of the premises of
the premises in question, and so performed an act of spoliation’
(84E-F). Although the judgment in
Naidoo
does not expressly
record that the landlord’s intention was to force the claimant
out, Leach JA appears to have inferred
such an intention from the
circumstances of the case.
[28]
In
Froman
the applicant had purchased a townhouse from the
respondent. The latter purported to cancel the contract, but the
applicant declined
to vacate. The respondent then severed the supply
of electricity and water. O’Donovan J said that on the
probabilities the
respondent’s only purpose in cutting off the
water and electricity was to force the applicant to vacate, adding
(610H-I):
‘
If this is
correct, the action of the respondent amounted to a deprivation of
applicant’s right to obtain water and electricity.
There is no
reason why an incorporeal right of this nature should not form the
subject of spoliation proceedings.’
[29]
After discussing further authorities, including several decisions of
the Supreme Court of Appeal, Leach JA in
Masinda
summed up as
follows (para 22, my underlining):
‘
As was pointed out
in
Zulu
[
Zulu v Minister of Works, KwaZulu, & others
1992 (1) SA 181
(D) at 186E-190G], the occupier of immovable
property usually has the benefit of a host of services rendered at
the property. However
the cases that I have dealt with above
graphically illustrate how, in the context of a disconnection of the
supply of such a service,
spoliation should be refused
where the
right to receive it is purely personal in nature
. The mere
existence of such a supply is, in itself, insufficient to establish a
right constituting an incident of possession of
the property to which
it is delivered. In order to justify a spoliation order the right
must be of such a nature that it vests
in the person in possession of
the property
as an incident of their possession
. Rights
bestowed by servitude, registration or statute are obvious examples
of this. On the other hand, rights that flow from a
contractual nexus
between the parties are insufficient as they are purely personal and
a spoliation order, in effect, would amount
to an order of specific
performance in proceedings in which a respondent is precluded from
disproving the merits of the applicant’s
claim for possession.
Consequently, insofar as previous cases may be construed as
holding that such a supply is in itself an incident of the possession
of property to which it is delivered, they must be regarded as having
been wrongly decided
.
[30]
I do not understand this passage to mean that, in order to enjoy
protection, the alleged right to a supply of electricity must
be an
alleged servitude or a right that has been registered or conferred by
statute. Between such cases, and alleged rights which
are ‘purely
personal in nature’, lie cases in which, despite the personal
contractual nature of the alleged right,
the right is not ‘purely’
personal but ‘an incident of the possession or control of the
property’ served
by the supply of electricity. There seems to
have been approval for the view of the author, Duard Kleyn
(referenced in para 13
of
FirstRand Ltd v Scholtz
), that a
right enjoying protection under the mandament could be real or
personal.
[31]
Furthermore, I do not read Leach JA’s concluding statement to
mean that among the cases wrongly decided were
Naidoo
and
Froman
. I understand the learned judge to have meant that any
reasoning in earlier cases to the effect that the supply of
electricity
to property is, without more, an incident of the
possession of the property, is wrong. I may add that during the 1980s
there was
a lively academic debate, on various aspects of the
mandament, between A J van der Walt, M J de Waal, J C Sonnekus and
Duard Kleyn.
This debate touched on the decisions in
Naidoo
and
Froman
. Although the academics in question had differing views
on the basis and scope of spoliatory relief, none of them disagreed
with
the fact that spoliatory relief was granted in these cases. (See
inter alia
1983 (46)
THRHR
237
(Van der Walt);
1984
(47)
THRHR
115
and 429 (De Waal and Van der Walt
respectively);
1985
TSAR
331
(Sonnekus);
1986
TSAR
223
(Van der Walt); 1989 (52)
THRHR
444 (Van der Walt); 1989
De
Jure
154 (Kleyn).)
[32]
The authorities discussed in
Masinda
can be divided into three
categories:
(a) First, there are
cases where the alleged right to a service (typically water) takes
the form of an alleged servitude or alleged
registered statutory
right. Into this category one can place
Bon Quelle (Edms) Bpk v
Munisipaliteit van
Octavi
1989
(1) SA 508
(A),
Impala Water Users Association v Lourens NO &
others
2008 (2) SA 495
(SCA),
Sebastian & others v
Malelane Irrigation Board
1950 (2) SA 690
(T) and
Painter v
Strauss
1951 (3) SA 307
(O) (as the latter case was explained in
Masinda
para 17). These are uncontentious cases of
quasi-possession enjoying protection under the mandament.
(b) Second, there are the
cases in which the alleged right to electricity or other service has
been held to be ‘purely personal
in nature’. These cases,
in which no servitude or similar right was alleged, include
Masinda
itself as well as
First Rand v Scholtz
,
Telkom SA Ltd v
Xsinet
2003 (5) SA 309
(SCA) and
Zulu v Minister of Works
.
One may infer, from Leach JA’s disapproval of the case, that
Eskom v Nikelo
should also be placed in this category. These
cases do not involve quasi-possession enjoying protection under the
mandament.
(c) Finally, there are
cases such as
Naidoo
and
Froman
, which do not appear to
have been disapproved in
Masinda
, where the alleged right to a
supply of electricity was an alleged personal contractual right but
where, nonetheless, the mandament’s
protection was held to be
available.
[33]
The potentially difficult question is whether a case should be placed
in category (b) or (c). A unifying feature of the cases
falling into
category (b) is that the person alleged to be under an obligation to
supply the service – Eskom, First Rand,
Telkom, the Irrigation
Board – was not the person who had conferred on the claimant
the alleged right to occupy the property
to which the service was
supplied. The supplier of the service had no interest in possession
of the property. In each case, the
only alleged contract which the
supplier had with the occupant was the contract for the supply of the
service.
[34]
In the cases falling into category (c), by contrast, the alleged
right to the service is an adjunct to, or part of, the alleged
right
to occupy the property. The same person (typically a landlord) who
was allegedly obliged to allow the claimant to be in possession
of
the property was the party who was allegedly obliged to supply, or to
allow a supply, of services such as electricity and water.
(Cf
ATM
Solutions (Pty) Ltd v
Olkru Handelaars CC
& another
[2008] ZASCA 153
;
2009 (4) SA 337
(SCA) paras
9-12). In such cases, the landlord has a direct interest in the
possession of the property itself. The landlord’s
act in
cutting off electricity and water is an act which interferes not only
in the claimant’s alleged right to receive those
services but
simultaneously interferes in the claimant’s alleged right
against the landlord to be in undisturbed possession
of the premises
with the amenities forming part of the alleged right of occupation.
The claimant’s alleged right to receive
electricity and water
is part of the cluster of alleged rights making up the occupation to
which he claims to be entitled. And
in such cases it may be difficult
to avoid the conclusion that the landlord who has intentionally cut
off the electricity and water
is trying to eject the occupant without
due legal process. In cases falling in category (b), by contrast, the
supplier does not
and could not have any such intention.
[35]
Although
Masinda
did not in terms highlight this distinction,
in my view it provides a rational basis on which to distinguish
between an alleged
personal right to a supply which is ‘purely’
personal on the one hand and one which is ‘an incident of
possession
of the property’ on the other.
[36]
Leach JA observed in
Masinda
that in
Naidoo
and
Froman
the courts granted relief in order to protect the claimants’
occupation of the premises rather than their quasi-possession
of the
alleged right to electricity
.
Eloff J’s concluding
paragraph in
Naidoo
indeed described the cutting off of the
electricity as an act which substantially interfered with the
claimant’s occupation
of the premises. In
Froman
, by
contrast, O’Donovan J seems to have conceived himself as
protecting the claimant’s quasi-possession of an alleged
incorporeal right to obtain water and electricity.
[37]
It is no doubt so that in cases such as
Naidoo
and
Froman
(my category (c)) the claimant’s true grievance is not a
despoiling of an alleged right to water or electricity viewed in
isolation but the material adverse impact this has on his occupation
of the premises. I respectfully venture to suggest, however,
that
this is equally true of cases which fall into my category (b). When
Eskom cuts off a user’s electricity because of a
contractual
dispute, the user’s ultimate grievance is the adverse impact
this has on his use of the premises served by the
electricity. The
supply of electricity is of no benefit to the user independently of
his occupation of the premises.
[38]
In both cases, therefore, one might say that the act of cutting off
the electricity materially disturbs the claimant in his
possession of
the premises, and that the latter occupation is worthy of protection
under the mandament. In order to discern why
the one case is
actionable under the mandament while the other is not, it is
necessary to identify the distinguishing feature.
As I have said, the
distinguishing feature appears to me to be whether or not the alleged
right to electricity is an incident of,
or an adjunct to, the alleged
right which the claimant has against the spoliator to be in
occupation of the premises. If the alleged
right to electricity is an
incident of the claimant’s occupation of the premises in this
sense, one can then justly conclude
(a) that the alleged right
to electricity is the subject of quasi-possession for purposes of the
mandament; and (b) that
a spoliation of the said
quasi-possession is simultaneously an act of spoliation in relation
to the premises themselves.
[39]
In regard to the second of the conclusions just mentioned, it is
trite that a significant disturbance in possession can be
the subject
of spoliatory relief, even though the claimant has not been wholly
deprived of possession (
Burger v Van Rooyen en ʼn ander
1961
(1) SA 159
(O) at 160G-161C; see also A J van der Walt’s note
on
Naidoo
in
1983 (46)
THRHR
237
and M J de Waal’s
note on the same case in
1984 (47)
THRHR
115).
[40]
It may be said that if, in such cases, there is an act of spoliation
constituting a material interference in the claimant’s
possession of the property itself, it is unnecessary to justify the
granting of relief on the basis of the quasi-possession of
an alleged
right to a supply of electricity. That may be so, but in order to
decide whether the cutting off of electricity is indeed
an act of
spoliation in relation to the property itself, it is necessary to
focus on the nature of the alleged right to the supply
of
electricity, in order to satisfy oneself that the case falls into
category (c) rather than category (b). Furthermore, the fact
that
spoliatory relief can be based on a conventional interference in the
possession of corporeal property does not mean that the
alternative
(or additional) justification, based on quasi-possession of an
alleged right, is unsound. In this regard, Hefer JA
said the
following in
Bon Quelle
(at 516D-E, my underlining):
‘
In
sy
Sakereg Vonnisbundel
(op
54) wys prof Sonnekus daarop dat dit in sommige van die beslissings
onnodig was om die begrip van die besit van ʼn reg te
gebruik.
Dit was gevalle waar die uitoefening van ʼn reg so nou verbonde
was aan die besit van ʼn liggaamlike saak, dat
die verlies
daarvan beskou kan word as inbreuk op die besit van die saak self.
(
Froman v Herbmore Timber and Hardware
(Pty) Ltd (supra)
waar die krag- en
watervoorsiening aan ʼn huis afgesny is, was bv so ʼn geval.
Vgl
Naidoo v Moodley
1982
(4) SA 82
(T) op 84A-B.)
Maar dit is nie
altyd so nie, en die feit dat dit in sommige gevalle moontlik is om ʼn
spoliasiebevel op ʼn ander basis
te verleen, is onvoldoende rede
vir die verwerping van die begrip
.’
[41]
In the above analysis, I have spoken throughout of ‘alleged’
rights. This is because in spoliation proceedings
the claimant does
not need to establish his alleged rights. However, the claimant does
need to establish acts demonstrating the
possession of the corporeal
property or quasi-possession of the alleged right. In my category
(c), the claimant’s occupation
of the premises, and his or her
use of its electrical appurtenances, constitute the possession of the
premises and the quasi-possession
of the alleged right to electricity
as an incident of his or her possession of the premises.
[42]
I must now apply the law, as I conceive it to be, to the facts of
this case. The nature of the alleged right to electricity
exercised
by Tom and his family does not seem to have been clearly articulated
before the alleged spoliation. Colleen did not allege
in her founding
affidavit that her family’s right to electricity was in the
nature of a servitude. Even the basis for her
family’s
occupation of the store is not clearly identified. There is no
allegation that they leased it from Makeshift or
that they paid rent.
[43]
On Colleen’s version, however, her family had permission to
build the store and occupy it. In the absence of further
facts, one
cannot go further than saying that, on her version, they occupied the
store by virtue of a
precarium
, ie that Makeshift gave them a
precarious right to build and occupy the store, terminable on
reasonable notice (
Pezula Private Estate (Pty)
Ltd v Metelerkamp & another
[2013]
ZASCA 188
;
2014 (5) SA 37
(SCA) para 10) and, perhaps, with good
cause (cf
Residents of Joe Slovo
Community, Western Cape v Thubelisha
Homes & others
[2009] ZACC 16
;
2010 (3) SA 454
(CC) para 281).
[44]
Their alleged right to electricity must have been of a similar kind.
In terms of the
precarium
, Makeshift permitted Tom and his
family, as an incident of their occupation of the store, to use the
electricity supplied by Eskom
to Makeshift, on the basis that Tom
would pay the monthly bills.
[45]
This appears to be consistent with what Engers AJ recorded as being
Tom’s case in the eviction proceedings. Tom alleged
in those
proceedings that Martinus had expressly agreed that he could occupy
the store, and it was on that basis that Tom had made
improvements
and paid for utilities, rates and maintenance. Tom also alleged that
the improvements gave rise to a lien. Tom does
not seem to have
relied upon a lease or any real right.
[46]
This conclusion is not, in my view, affected by the unresolved
dispute as to the shareholding in Makeshift. In the eviction
proceedings, that dispute was thought to be relevant because if Tom
were in control of Makeshift (as he claimed to be entitled),
the
company would not be requiring him to vacate the property. After
considering the shareholding dispute, Engers AJ concluded
(a) that he could
not exclude the possibility that Tom might succeed in his application
to compel delivery of the shares to
himself; and
(b) that, for this
reason, Makeshift had failed to show that Tom was an unlawful
occupier.
[47]
I express no opinion on whether Engers AJ was right to find that
conclusion (b) above flowed from conclusion (a). For present
purposes, I need only say that a change in control of Makeshift would
not in itself affect the legal nature of the relationship
between
Makeshift and Tom regarding possession of the store. Tom’s
acquisition of control of Makeshift would simply mean
that,
factually, Makeshift was unlikely to terminate the
precarium
.
[48]
A
precarium
is a contractual relationship. In the present
case, and as with the landlord who has leased premises to a tenant
together with a
supply of electricity and water, the alleged
contractual relationship embraced possession of the store and a right
to Eskom electricity,
provided that Tom and Colleen paid the Eskom
bills. Makeshift was not a person whose sole alleged contractual
relationship with
Tom and Colleen was a supply of Eskom electricity.
The supply of Eskom electricity was an adjunct to, or incident of,
the
precarium
in terms of which Tom’s family occupied
the store.
[49]
This appears to place the case in my category (c) above, ie a case
similar to
Naidoo
and
Froman
. While I consider that
this suffices to cause the alleged right to the Eskom supply to be
more than a ‘mere’ personal
right to a supply of
electricity and to be an incident of the possession of the store,
there is the further feature that –
as in
Naidoo
and
Froman –
the discontinuation of the Eskom supply was an
act intended to force Tom and his family off the farm, ie to disturb
them in their
peaceful possession of the store. I am aware that this
allegation was not explicitly made in the papers, but I think it is
the
only inference to be drawn from the totality of the following
circumstances:
(a) There was a fraught
relationship between Tom on the one hand and his father and siblings
on the other. One of the disputes related
to control of Makeshift.
(b) Makeshift (as a
vehicle for the interests of Martinus and Tom’s siblings)
wanted Tom and his family off the farm.
(c) Makeshift’s
application to have Tom ejected had recently been dismissed with
costs.
(d) Makeshift had for
some time had its own source of solar electricity, whereas Tom was
dependent on Eskom electricity. The electricity
was also crucial to
the supply of water to the store, because water was conveyed by a
pump powered by the Eskom electricity.
(e) Tom had for several
years been paying the full Eskom bills, and at the time the
electricity was disconnected the payments were
up to date.
(f) In their answering
affidavits, Humboldt and Rykie gave conflicting and unsatisfactory
evidence as to why the Eskom electricity
was disconnected. Humboldt
said that this was done because Martinus had acquired solar panels
and no longer needed supply from
Eskom. However, this state of
affairs had prevailed for some time, yet it was only very shortly
before Christmas that the supply
was cut off. Furthermore, the fact
that Martinus no longer needed an electricity supply is neither here
nor there, because he was
not the person paying the bills.
(g) In a supplementary
answering affidavit, Rykie said that she notified Eskom to terminate
the supply to the farm, her reasons
being that Makeshift could no
longer afford to continue with the contract, that she and Humboldt
were concerned about the quantity
of electricity being consumed, that
the supply was expensive, that the farm did not generate enough
income to cover its costs,
and that she and Humboldt could not see
their way clear to paying for the consumption, most of which was
unnecessary. This explanation
is bogus, given the undisputed evidence
that Tom and Colleen had been paying the full amount of the Eskom
bills for several years.
(h) In the circumstances,
the versions of Humboldt and Rykie on this aspect do not raise a
genuine dispute of fact. What they say
is so far-fetched and
untenable that it can be rejected on the papers.
(i) Objectively, the
termination of the Eskom supply did not serve any legitimate interest
of Makeshift. Such an interest may have
been served if there were a
dispute as to whether Makeshift or Tom was liable to settle the
bills, or if Makeshift had a real concern
about liability to Eskom,
but that was not the case.
[50]
I thus consider that, on the facts of the present case, Tom and
Colleen’s alleged right to a supply of Eskom electricity
was an
incident of their possession of the store and was not a ‘mere’
personal right. The alleged right was thus one
enjoying the
protection of the mandament.
Form
of order
[51]
The order requiring Makeshift to restore the supply of Eskom
electricity was, in my view, an order which could properly be
made as
spoliatory relief. To the extent that the order by necessary
implication required Makeshift to re-establish its supply
contract
with Eskom, there is nothing to suggest that Makeshift was unable to
do so. Indeed, it is an open question whether Eskom’s
joinder
was necessary in order for such an order to be made, but since the
point was not argued I express no opinion one way or
the other.
[52]
In spoliation proceedings the claimant is not confined to a simple
restoration of possession. Although he is not entitled to
delivery of
a substituted article where the spoliated article has been destroyed
or lost (see
Tswelopele Non-Profit Organisation & others v
City of Tshwane Metropolitan Municipality & others
2007 (6)
SA 511
(SCA) paras 22-24 and
Ngomane &
others
v Johannesburg (City) & another
2020 (1)
SA 52
(SCA) paras 18-19, disapproving the reasoning in
Fredericks
& another v Stellenbosch Divisional Council
1977 (3) SA 113
(C) at 117D-118A), the spoliator is obliged to restore the despoiled
property
in its former state
, which may require some positive
act on his part (
Masinda
para 10 fn 7, approving
Zinman v
Miller
1956 (3) SA 8
(T)).
[53]
In
Zinman
, where the spoliator had removed the main panel from
the electrical meter chamber in the claimant’s house and cut
the electric
wiring, it was held competent for the court to order not
only that the panel be returned but that it be replaced in the
chamber
and that the wiring be reconnected. In the course of his
judgment, Rumpff J referred to an example given by Van der Linden of
a
spoliator who had removed a fence, an appropriate order being one
which required him to restore the fence to its former condition,
ie
to re-erect it.
[54]
In
Rikhotso v Northcliff Ceramics (Pty) Ltd & others
1997
(1) SA 526
(W), a judgment approved in
Tswelopele supra
paras
23-24, Nugent J (at 533C-D) endorsed
Zinman
, and distinguished
cases where the item possessed has been destroyed from cases where a
spoliator had been ordered to restore a
ceiling, rebuild a fence or
restore a demolished house (533E-F):
‘
In all those cases
the property concerned had not been destroyed. In one way or another
it had been disassembled, and the effect
of the order was to order
the return of the property in its reassembled form.’
See,
also, M J de Waal ‘
Die moontlikheid van
besitsherstel as wesenselement vir die annwending van die mandament
van spolie’ (LLM disseration, University
of Stellenbosch, 1982)
at 41-43, 55-56 and 111-113; Kleyn ‘Plakkery en die mandament
van spolie’
1989
De Jure
154 at 166-167.
[55]
In the present case, an order requiring Makeshift to re-establish the
Eskom electrical supply to the store is an order which
would place
Colleen and her family back in possession of the alleged right of use
of the electricity of which they had quasi-possession
before the act
of spoliation, and back in full possession of the store, including
its electrical supply as an incident thereof.
This Makeshift can do
by simply resuming its contract with Eskom. There is nothing to
suggest that any new electricity box or any
new electrical cabling
needs to be introduced. The infrastructure remains in place; Eskom
has merely sealed the electricity box.
Unlawfulness
of occupation
[56] Makeshift alleged
that Tom and Colleen’s occupation of the store was unlawful in
that the approved building plans had
not permitted the construction
of the store as a residence and that they did not have an occupation
certificate as required by
the s 14 of the National Building
Regulations and Building Standards Act 103 of 1977. Makeshift’s
counsel submitted
that the RMC was not empowered to make an order
which required Makeshift to contract with Eskom for the supply of
electricity to
a structure which Colleen’s family was not
lawfully entitled to occupy.
[57]
This submission is at odds with authority by which we are bound,
namely that in spoliation proceedings the statutory unlawfulness
of a
claimant’s possession or use of property is not a matter on
which the court is called upon or entitled to adjudicate
(
Yeko
v Qana
1973
(4) SA 735
(A) at
739A-H;
Ivanov v North West Gambling Board & others
[2012]
ZASCA 92
;
2012 (6) SA 67
(SCA) paras 18.) I would add that a contract
between Makeshift and Eskom for a supply of electricity to the farm
would not be an
unlawful contract, even though that electricity might
serve the store.
An
order for specific performance?
[58]
Makeshift contends that the RMC was not entitled to make the orders
which it did, because these orders effectively required
Makeshift to
conclude a contract with Eskom, and it is beyond the power of a
magistrate’s court to order specific performance
in the absence
of an alternative claim for damages (s 46(2)(
c
) of the
Magistrates’ Courts Act 32 of 1944
).
[59]
This contention overlooks s 30(1) of the Act, which provides
that, subject to the limits of jurisdiction prescribed by
the Act, a
court may grant ‘
mandamenten
van
spolie
’. It was held by a full court in
Zinman supra
that a spoliation order was not an order for ‘specific
performance’ within the meaning of s 46(1)(
c
). This
reasoning, with which I agree, was approved in
Badenhorst v
Theophanous
1988 (1) SA 793
(C) at 796I-797D, but was not
extended to the case where an interdict is in substance a claim for
specific performance of a negative
contractual obligation
(prohibiting breach of a restraint of trade).
Conclusion
[60]
The notice of appeal does not attack the RMC’s costs order
independently of the outcome on the merits. I would simply
add that
it was reprehensible that Makeshift did not comply with the interim
order. It may be questioned whether the RMC should
have granted an
interim order without any notice whatsoever to Makeshift, but the
latter’s remedy was to have urgently anticipated
the return
day, which it did not do. Court orders must be complied with until
they have been set aside or suspended. Indeed, it
might have been
open to the RMC to refuse to entertain Makeshift’s opposition
in the main case until it had purged its default.
[61]
As to the costs of the appeal, it was submitted in Colleen’s
main heads of argument that Humboldt and Rykie should be
held jointly
and severally liable with Makeshift for such costs, on the basis
inter alia
that if Tom succeeds in his claim to the shares in
the company, it would not be just that his company should be
impoverished by
costs. Whatever the merits of that argument, we
cannot accede to it, because Humboldt and Rykie are not parties to
the proceedings
in their personal capacities.
[62]
A further submission in the main heads was that Makeshift should be
ordered to pay the costs on an attorney and client scale.
I do not
think that there is anything in the conduct of the appeal which
warrants a punitive costs order. For the guidance of the
taxing
master, I record that it was reasonably necessary for Colleen’s
counsel to file supplementary heads of argument, having
regard to the
lateness of Makeshift’s heads of argument.
[63]
I make the following order:
The
appeal is dismissed with costs.
Owen
Rogers
O L
Rogers
Judge
of the High Court
Western
Cape Division
APPEARANCES
For
Appellant
P
Tredoux
Instructed
by
JMB
Gillan
Ground
Floor, Lutomborg Building
Corner
of Keerom and Leeuwen Streets
Cape
Town
For
Respondent
F
Ferreira
Instructed
by
SA
Hofmeyr & Son
6
Robertson Street
Riversdale