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[2011] ZAGPJHC 37
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Builder's Depot CC v Damian (2011 (4) SA 486 (GSJ)) [2011] ZAGPJHC 37; A3008/11 (13 May 2011)
SOUTH GAUTENG HIGH COURT, JOHANNESBURG
CASE NO: A3008/11
REPORTABLE
DATE:13/05/2011
In the matter between:
BUILDER’S DEPOT CC
and
DAMIAN, TESTA
JUDGMENT
VAN EEDEN AJ
:
1.
On 6 December 2010 the Additional Regional
Magistrate of Germiston, Mr Achenbach, dismissed the appellant’s
application that
the respondent be directed to restore its possession
of certain immovable property. The appellant claimed to have
been in
possession of such property situate at 653 Monkey Thorn
Close, Blackrock Street, Thorn Valley Estate, Greenstone Hill
Extension
11. The appellant alleged that it had performed
building works for the then owner of the property, one Yan Bin Wu
(
“
Wu”
),
who failed to effect payment to it. It accordingly took
possession of the property and exercised a builder’s lien
in
respect thereof. Its possession of the property was exercised
through locks to which its sole member, Mr Harry Papas,
had the
keys.
In due course the appellant instituted action against Wu and obtained
judgment against him. A warrant of execution was issued
on 22
January 2010 in terms whereof the appellant instructed the Sheriff of
Kempton Park South to sell the property in execution.
The
Sheriff attached the property during February 2010. The
property was, however, also bonded in favour of ABSA Bank Limited.
Unbeknown to the appellant, the bank also obtained judgment against
Wu and a second warrant of execution was issued at its instance.
The property was again attached at the instance of the bank during
August 2010, and the bank instructed the same Sheriff to sell
the
property on its behalf.
Execution at the instance of the appellant
progressed slowly, and on 7 October 2010 the appellant’s
attorney wrote to the
Sheriff requesting it to proceed with the sale
in execution. Seemingly in response to this letter, the Sheriff
issued a notice
to the effect that the appellant’s matter
“
will
participate in the sale in execution which will be held on 28 October
2010 at 11:00 under Case No 13044/10 by attorneys Smit
Sewgoolam
Inc”
. The case number referred
to is the matter where the bank obtained judgment against Wu.
The appellant denied that its
attorney received this notice from the
Sheriff. It seems clear, however, that the Sheriff’s
intention was to sell the
property pursuant to the attachment made in
the bank’s matter, but on behalf of and for the benefit of both
creditors.
On 28 October 2010 the Sheriff sold the property in execution to the
respondent. On the same day the appellant gained knowledge
of
the sale. Its attorney immediately addressed a letter to the
Sheriff advising that the appellant was in possession of
the property
and that it intended to retain such possession until such time as the
full amount of its judgment debt had been paid.
When Mr Papas
thereafter visited the property, he found that the locks giving
access to the house had been changed. The appellant
consequently claimed that it’s peaceful and undisturbed
possession of the property was lost, and that it was entitled to
a
spoliation order against the respondent.
Clause 9 of the conditions of the sale in execution stipulated as
follows:
“
9. The property may
be taken possession of immediately after payment of the initial
deposit, and shall after payment
be at risk and profit of the
purchaser.”
2.
The respondent stated that the Sheriff
advised him that possession of the property could be taken
immediately after he had made
the necessary payments by changing the
locks. Upon making the payments he arranged for a locksmith to
meet him at the property
where the locks were changed, all still on
28 October 2010. All parties accept that from that moment the
respondent was in
possession of the property.
Mr De Oliveira on behalf of the appellant
submitted that the respondent, and not the Sheriff, was the
spoliator. The evidence, however,
reveals that the appellant
contended that the
“
Sheriff
misrepresented to the respondent the true state of affairs in the
publication of the terms of the sale of the property to
the
respondent”
(Record page 103) and
“
the
Sheriff misrepresented the true status pertaining to the property to
the respondent”
(Record page 106).
Furthermore the appellant denied
“
that
the Sheriff has the legal capacity to grant the purchaser vacant
possession of the property”
(e.g.
Record page 102, 106 and 109). When the respondent took possession,
there was, other than for the need to change the locks,
no evidence
that anybody else was in possession of the property.
Specifically, the appellant did not erect any signs to advertise
his
possession, and he also did not employ a guard to protect his
possession. There was no reason for the respondent to think
that he was doing anything unlawful or against the will of the
appellant when he changed the locks, and the appellant did not allege
that the respondent was aware of its possession of the property.
The respondent’s intention was to obtain possession
of the
property pursuant to the purchase of the property and payment of the
fees in terms of the conditions of sale. It seems
clear that in
the court
a quo
the
appellant accepted that the respondent’s possession was
obtained
bona fide
and
that it derived from the Sheriff’s actions following the sale
in execution.
3.
In the founding affidavit it was not
alleged that the Sheriff acted
mala
fide
in any manner. In the
replying affidavit (Record page 106 para 23), however, it was alleged
that prior to the spoliation the
Sheriff was informed that the
appellant had retained possession of the property and that any
interference would be resisted.
The appellant’s original
contention that the spoliation only occurred on 3 November 2010
(page 8 para 14.4) is incorrect,
since in the replying affidavit the
appellant admitted the respondent’s evidence that he had taken
possession of the property
on 28 October 2010. In fact, prior
to the appellant’s attorney’s letter there is nothing to
indicate that the
Sheriff should have been aware that the appellant
had possession of the property and that it had obtained the judgment
whilst exercising
a builder’s lien. It is not even clear
if and when the Sheriff received the letter of 28 October 2010. The
suggestion
in the replying affidavit that the Sheriff was
mala
fide
appears to be an afterthought based
on the letter written by the appellant’s attorney to the
Sheriff on 28 October 2010.
4.
On behalf of the respondent Mr Sadler
submitted that the appellant had voluntarily surrendered its
possession when the Sheriff attached
the property pursuant to the
writ of execution. The submission was based on the Sheriff’s
notice of attachment at the instance
of the appellant, which
inter
alia
notified Wu, as defendant,
“
that
I hereby attach and take into possession”
the
property in issue. Reliance was also placed on
Orbit
Motors (Pty) Ltd v Reeds (Cape) Ltd
1975
(2) SA 333
(C)
this submission.
In this matter it was held that the holder of a lien over a motor
vehicle had lost possession thereof, even
though it had physically
retained same, when the Messenger of the Court attached same at its
own instance. These days movables
are attached by the Sheriff
by taking same into his custody in terms of Uniform Rule 45(3),
unless the execution creditor directs
otherwise. In
Barclays
Western Bank Bpk v Upington Paneelkloppers (Edms) Bpk en Andere
1986 (2) SA 409
(NC)
,
which in turn purported to follow
Orbit
Motors
,
the
motor vehicle was also physically removed from the possession of the
lien holder, and it seems to me that that is the real reason
why he
lost his rights of retention. Today possession by the Sheriff is not
a requirement for the attachment of movables, and whether
the Sheriff
could ever come into possession without
detentio
,
as was seemingly held in
Orbit
Motors
, seems doubtful to me.
5.
The sale of immovable property in execution
is dealt with by Uniform Rule 46, and the attachment thereof by
subrules (2) and (3),
which read as follows:
“
(2) An attachment shall be made
by any sheriff of the district in which the property is situate or by
any sheriff of the
district in which the office of the registrar of
deeds or other officer charged with the registration of such property
is situate,
upon a writ corresponding substantially with Form 20 of
the First Schedule.
(3)(a)
The mode of attachment of immovable property shall be by notice in
writing by the sheriff served upon the owner thereof, and upon the
registrar of deeds or other officer charged with the registration
of
such immovable property, and if the property is in the occupation of
some person other than the owner, also upon such occupier.”
6.
It is not a requirement that the Sheriff
must take immovable property into his possession. The property
is attached by notice
as is prescribed, and such mode of attachment
does not dispossess the possessor. It follows that I
respectfully agree with
Hofmeyr J’s findings in
De
Jager v Harris, NO and the Master
1957
(1) SA 171
(SWA)
, where a similar
decision was reached.
Sedibe and
Another v United Building Society and Another
1993
(3) SA 671
(T)
provides a clear example
that the Sheriff is not always in possession of what he sells in
execution: the sale in execution was set
aside when the Sheriff could
not give the purchaser
vacuo possessio
,
as he was obliged to do in terms of the conditions of sale. It
also illustrates the importance of
detentio
as
an element of possession, a consideration that was seemingly lost
sight of in
Orbit Motors
.
It is not contended that the sale on 28 October
2010 was invalid in any manner, and the conditions of sale bind the
Sheriff and
the respondent. In terms of the quoted Clause 9 the
Sheriff was required to give possession of the property to the
respondent.
I consequently find that the appellant lost its
possession on 28 October 2010 by virtue of the Sheriff’s
actions in selling
the property in execution, accepting payment from
the respondent and by authorising the latter to take possession by
changing the
locks. I also conclude that the Sheriff was
bona
fide
when he gave possession of the property
to the respondent. He was not taking the law into his own
hands. He was acting
on instructions of the bank to sell the
property in execution, and knowing of the appellant’s claim,
had the intention that
the appellant would also benefit by the sale.
When the Sheriff gave possession to the respondent, the latter was
bona fide
.
Thus possession of the property passed into the hands of a
bona
fide
possessor.
If am wrong that the Sheriff was
bona
fide
in dispossessing the appellant,
the question would arise whether a spoliation order could be granted
against him. In
Chitiz v Loudon &
Another
1946 WLD 375
Roper
J dealt with the situation in which the owner of a house, through his
agent, incorrectly concluded that the tenant had vacated
the property
let to him, whereas the tenant had temporarily left the house for the
purpose of having it fumigated and with intention
of returning.
The owner gained possession of the property and, in terms of the
operative law, informed the Controller of
Manpower that the premises
were unoccupied. Thereupon the Controller on 30 April 1946
issued to one Prinsloo a certificate
authorising the owner to let to
Prinsloo the premises in question. The premises were let to
Prinsloo on 1 May 1946 and he
was put in occupation on the same day.
On 3 May the respondent received the original tenant’s cheque
for the May rent and
the misunderstanding was discovered.
Respondent took the attitude that they had reported in good faith and
that the house
was standing empty and that they could not eject the
new tenant, i.e. Prinsloo. The original tenant refused to
accept this
position and sought to regain possession by means of an
application for a spoliation order. Roper J followed the
judgment
of Bristowe J in
Burnham
v Neumeyer
1917 TPD 630
,
which had also been followed in
Louw
v Hermann
1922 CPD 252
.
These cases provide some authority for the proposition that a
spoliation order cannot be made where possession has passed
to a
bona
fide
third party. Roper J
accordingly dismissed the application for a mandament van spolie.
Chitiz
was
followed by FS Steyn J in
Jivan v
National Housing Commission
1977
(3) SA 890
(WLD) 895G-896A
, where
he declined to follow the following passage in
Malan
v Dippenaar
1969 (2) SA 59
(O)
G:
“
Uit
hoofde van bogemelde passasies wil dit voorkom of dit miskien gesê
kan word dat die mandament van spolie soos ontwikkel
en opgeneem in
ons gemenereg so uitgebrei het dat dit selfs beskikbaar geword het
teen ‘n persoon wat besit bona fide van
‘n spoliator
bekom het.
(Vgl. Ntai and Others v.
Vereeniging Town Council and Others,
1953 (4) S.A. 579
(A.A.)
”
.
I respectfully agree with FS Steyn J that the
reference to
Ntai’s
is without obvious reference. The learned
judge declined to follow
Malan’s
case
in these terms:
“
I associate myself with the positive
attitude taken by Roper, J., and prefer this view to that of De
Villiers, J., in Malan v. Dippenaar
quoted above. Without
exhaustive reference to the old authorities who are divided and who
have no direct relevance to the
point in question, I am persuaded to
support the view put forward by Bristowe J., and Roper, J., because
it has been the operative
law of the Transvaal for sixty years and
because it fits in with the overriding principle and purpose of the
mandament van spolie:
that wrongful dispossession by a person
taking the law into his own hands can promptly be cured by an order
against the spoliator
to restore the goods in dispute to the peaceful
possessor. A spoliation order against a party other than the
spoliator is
logically beyond the scope of the purpose of the
mandament to prevent persons from taking the law into their own
hands. Where
possession has passed to a new possessor who
became such in good faith, the status quo ante cannot be restored by
remedial action
against the disturber of the status quo.
Unfortunately for the original possessor, the dispute has at that
stage moved from
the realm of possessory remedies to that of a
vindicatory action. Delay on the part of the original possessor
in recovering
his possession, especially after he is aware of the
advent of a new possessor in good faith, would, in my view, further
exclude
the right to such a spoliation order.”
7.
In
Bank
van die Oranje-Vrystaat v Rossouw
1984
(2) SA 644
(C) 648H-649B
the Cape
Full Bench followed both the
Burnham
and
Jivan
cases.
No reference was made to the
Malan
judgment.
In
Harris v Unihold (Pty) Ltd &
Others
1981 (3) SA 144
(W)
148
Coetzee J (later Coetzee JP)
followed
Jivan
.
In
Raik v Raik
1993 (2) SA 617
(W) 623 E-H
,
after quoting the above
dictum
from
Malan’s
case,
Coetzee J stated as follows:
“
This
is contrary to Jivan’s case. I do not consider that
Jivan’s case is clearly wrong, and I am bound by Jivan’s
case.”
8.
The
Burnham
, as developed by the line of cases commencing
with
Chitiz
,
has regulated the legal position in this jurisdiction for almost 100
years. I see no reason for thinking that they do not correctly
set
out the law, and I think they should be followed. I accordingly
conclude that a spoliation order cannot be granted against
a
spoliator who has parted with possession to a
bona
fide
.
Can the appellant then seek the return of the
property from the
bona fide
third
party as it tries to do? I think not. The respondent is
clearly entitled to possession. He did not take
the law into
his own hands. He did not dispossess the appellant wrongfully
or against his consent. In short, he performed
no act of
spoliation.
(Compare the definition of
spoliation approved in
Nino Bonino v
de Lange
1906 T.S. 120).
If
his
bona fide
cannot
be disturbed via the spoliator, I cannot see how it can avail the
appellant to go directly against the
bona
fide
third party. I agree with the
view in
Harris
supra
148 D
Jivan’s
is authority that in a spoliation matter the
person who had come into possession of the property claimed by the
applicant is entitled
to hold it against the applicant if indeed he
is an innocent third party.
Unfortunately the appellant has misconstrued its remedy, for the
dispute has moved from the realm of the possessory remedies.
In
the premises I see no reason to disturb the order of the learned
Magistrate. I would consequently propose the following
order:
The appeal is dismissed with costs.
H VAN EEDEN
ACTING JUDGE OF THE HIGH COURT
C NICHOLLS
JUDGE OF THE HIGH COURT
I AGREE
IT IS SO ORDERED
Counsel for appellant
Mr M de Oliveira
Instructed by:
John Walker Attorney
Counsel for Respondent:
Mr C B Sadler
Instructed by:
Kokinis Inc
Date of hearing: 21 April 2011
Date of judgment: 13 May 2011