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[2011] ZAGPJHC 80
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Easy Green Advertising (Pty) Ltd t/a Green Advertising v Eagle Canyon Golf Estate and Others (09/19114) [2011] ZAGPJHC 80 (18 March 2011)
NOT
REPORTABLE
SOUTH
GAUTENG HIGH COURT, JOHANNESBURG
CASE
NO: 09/19114
DATE:18/03/2011
In
the matter between:
EASY
GREEN ADVERTISING (PTY) LTD
t/a
GREEN
ADVERTISING
..........................................................................................
Applicant
and
EAGLE
CANYON GOLF
ESTATE
....................................................................
First
Respondent
HOME
OWNERS
ASSOCIATION
...............................................................
Second
Respondent
EAGLE
INTERNATIONAL GOLF MANAGEMENT
(PTY)
LTD
.......................................................................................................
Third
Respondent
JUDGMENT
WEPENER,
J
:
[1]
This is an application in which the applicant seeks to have certain
sign boards restored to its possession or generally referred
to as a
spoliation application.
[2]
The facts in the matter are common cause The applicant entered into
an agreement with the third respondent in terms of which
it was
permitted to erect and maintain advertising signs on the property
over which the first respondent (a Home Owners Association)
had
control The first respondent's rules prohibit the display of any
advertisements on the property. Pursuant to the agreement
the
applicant erected two sign boards on the property and duly placed
advertisements on them. The home owners objected thereto
and removed
the advertisements. This led to the applicant launching a spoliation
application.
[3]
Applicant's case is based on the fact that it a) had the written
agreement which granted it the rights, b) it erected and maintained
the sign boards and c) A derived revenue from the use of the sign
boards from third parties who advertised on the boards.
[4]
The issue to determine is whether the applicant had possession of the
sign boards which possession would entitle it to spoliatory
relief.
[5]
Ms Millard, on behalf of the applicant, argued that the benefit i.e
the advertising revenue earned by the applicant in addition
to the
fact that it installed and maintained the sing board was sufficient
to constitute its de facto possession of the sign boards.
I do not
agree. In Veko v Qana
1973 (4) SA 735
(A) it was held that the very
essence of the remedy against spoliation is that possession enjoyed
by the parties who asks for the
spoliation order must be established.
The possession which must be proved is not possession in the juricial
sense, ft may be enough
if the holding by the appellant was within
the intention of securing some benefit for himself.
[6]
The requirement is dearly possession or holding" as stated in
the Yeko matter The question remains what was the nature
of the
applicant's possession if any. Other than the erecting and
maintaining of the sign boards and earning an income therefrom
there
are no facts to indicate that the applicant indeed had any possession
of the sign boards.
[7]
In the matter of Shoprite Checkers Limited v Pangbourne Properties
Limited 19S4 (1; SA (W) Zutman J as he then was said at p
622 B - C
the mere fact that the applicant might or might not have a right
derived from a contract which it entered into with the
respondent, to
make use of the parking area in question, including the parking bays
to be found in a designated area, did not,
in my view, amount to a
"possession" as envisaged in the authorities, of such
designated area for the purposes of establishing
an entitlement to
tine mandament van spolie"
[8]
In my view, for present purposes it is irrelevant that the
contractual right that the applicant has is with the management
and/or property owning company. Its right remains a contractual right
and through the exercise of such contractual right it required
neither physical nor any incident of such possession. In the matter
of ATM Solutions v Olkru Handelaars cc
2009 (4) SA 337
(SCA) the
facts were as follows Olkru had concluded an agreement with ATM
Solutions in terms of which ATM Solutions was entitled
to and did
install and maintain two ATM machines on the property of Olkru. Olkru
then removed the machines and allowed another
party to install
alternative machines ATM Solutions' spoliation application failed
since then the Supreme Court of Appeal held
that after installation,
ATM Solutions no longer
exercise
possession of the ATM machines and it merely had a contractual right
to enforce specific performance of its agreement with
Olkru which
cannot be enforced under the guise of a spoliation application. At
paragraph 2 of the judgment, Lewis JA held as follows:
''In reaching this
decision the court considered itself bound by recent decisions of
this court in particular Telkom SA Ltd v Xsinet
(Ptd Ltd (Xsinet).
and FirstRand Ltd t/a Rand Merchant Bank v Scholtz NO and Others,
which have held that in order for rights to
qualify for protection
through the grant of a spoliation order, they must be 'gebruiksregte'
(rights to use property) or incidents
of the possession or control of
property The purpose of spoliation orders, it is trite, is to stop
people from taking the law into
their own hands, and to preserve the
peace, rather than to order specific performance of a contract."
At paragraph 7 - 10 it
was held as follows:
"[7]
it was not disputed that the A TM and the floor space where it stood
where at all times in Olkru's possession and control,
that only
Olkru held the keys to the Kwikspar premises, and indeed the keys la
the ATM itself; that Olkru controlled all access
to the ATM: and that
an employee of Olkru stocked the ATM with money, changed the paper
roils for receipts, and effectively operated
the ATM Access by ATM
Solutions to the ATM was controlled by Olkru. The claim lo actual
possession of the ATM thus had to fall.
[8]
However, ATM Solutions assorted in its replying affidavit that it
physically, through the ATM device, occupied an identifiable
portion
of the premises', a proposition that was argued before the High Court
and this court to mean that ATM Solutions had quasi-possession'
which
would justify a spoliation order should it be precluded from
exercising its right.
[9]
The cases where quast-possession has been protected by a spoliation
order have almost invariably dealt with rights to use property
(for
example, servitudes or the purported exercise of servitudes -
'gebruiksregte' or an incident of the possession or control
of the
property. The saw in this regard was recently succinctly stated in
FirstRand Ltd v Scholz where Malan AJA pointed out that
a spoliation
order-
'does
not have a catch-all function to protect the quasi-possessio of ail
kinds of rights irrespective of their nature, in cases
. . where a
purported servitude is concerned the mandament is obviously the
appropriate remedy, but not where contractual rights
are in dispute
or specific performance of contractual obligations is claimed: its
purpose is the protection of quasi possession
of certain fights it
follows that the nature of the professed right, even if it need not
be proved, must be determined or the right
characterized to establish
whether its quasi possession is deserving of protection by the
mandament .'
Mere personal rights,
said Malan AJA. are not protected by the mandament. Thus only rights
to use or occupy property, or incidents
of occupation, will wan-ant a
spoliation order.
[10] Counsel for ATM
Solutions sought to persuade us that this matter is different from
Xsinet and First Rand in both of which the
ongoing performance of a
contract (the fits! for (he supply of telephone connectivity, and She
second for water) was in issue.
ATM Solutions, on the other hand, it
was argued, had had not only a right to maintain their machine in
place, but it had in fact
already been installed and connected, and
then removed. The physical slate of presence and connectivity was
changed through Olkru's
conduct. Ongoing performance was not being
claimed i fast to see the distinction. ATM Solutions sought an order
that its ATM be
reinstalled and reconnected. That seems to me no
different from claiming specific performance of a contract, as was
the case in
Xsinet and First Rand."
The
SCA therefore recognised and reiterated that only instances of actual
physical possession of property and the incidents arising
from such
physical
As
appears from the above judgment incidents of possession are things
that arise from your possession, such as water and electricity
is an
incident of possession of a dwelling. In the Xsinet case referred to
in the above judgment, internet connectivity was not
recognised as an
incident of possession In my view, the right to erect signboards and
advertising rights, is similarly not an incident
of possession.
[9]
In the circumstances the applicant has not shown actual physical
possession exercised at the time when the alleged spoliation
took
place with the result that the application for spoliatory relief must
fail with costs
Judge WL Wepener
Judge of the High Court