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[2014] ZAGPJHC 271
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Outdoor Network Limited and Another v Passenger Rail Agency of South Africa and Others (2013/26064) [2014] ZAGPJHC 271 (30 May 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 2013/26064
DATE:
30 MAY 2014
In the matter
between
OUTDOOR NETWORK
LIMITED
...................................................
1
st
APPLICANT
AUTUMN STORM
INVESTMENTS
362 (PTY)
LIMITED
........................................................................
2
ND
APPLICANT
And
THE PASSENGER RAIL
AGENCY
OF SOUTH
AFRICA
...................................................................
1
ST
RESPONDENT
INTERSITE ASSET
INVESTMENT (PTY) LTD
..........................
2
ND
RESPONDENT
JUDGMENT
BORUCHOWITZ, J
:
[1] This case highlights the fundamental differences between the
mandament van spolie
, the possessory remedy available for the
restoration of lost possession, and an interdict to restrain a
threatened spoliation.
[2] The applicants conduct the business of leasing and selling
outdoor advertising. They own and maintain advertising
structures
which include large billboards that are visible over great
distances in the outdoors. The structures are situated on
approximately
126 sites of land in Gauteng, KwaZulu-Natal and the
Western Cape, which the applicants have leased from the first
respondent (PRASA).
Many of the sites have been leased for in
excess of ten years, some as a result of direct leases with PRASA and
others by way of
cessions from other entities.
[3] In February 2011, PRASA awarded a tender to an entity called
“Umjanji Media Consortium” entitling it to conduct
advertising operations on its land. The lawfulness of the
tender process is the subject-matter of review proceedings that
are
pending before this Court.
[4]
Following the award of the tender, PRASA purported to terminate the
applicants’ leases. In November 2011, the first
applicant
received a letter from the second respondent (Intersite),
representing PRASA, wherein the latter purported to cancel
the master
lease agreement entered into between the parties in about 2004.
It was also demanded that the advertising structures
be removed and
the sites handed over within forty-five days; Intersite
threatened that if the demand was not complied with,
it would attend
to the removal of the structures. An offer was made to purchase
the structures, presumably for use by the
consortium or a
subcontractor.
[5] From February 2012 to August 2012 there was a further exchange of
correspondence in which PRASA continued to assert the validity
of its
termination of the master lease and the leases flowing therefrom.
[6] A further demand was made by PRASA’s attorneys on or about
28 June 2013 in which the applicants were again said to be
in
unlawful occupation of the sites and given notice of cancellation of
all rights of occupation. In terms of this demand
the
applicants were required to give vacant possession of the sites to
PRASA on or about 31 July 2013, failing which they would
be deemed to
have abandoned the sites and PRASA would remove the property
belonging to the applicant.
[7] On 12 July 2013, applicants’ attorney addressed a letter to
PRASA’s attorney in which they asserted that the applicants
had
been in peaceful and undisturbed possession of the sites for many
years and that PRASA’s intention to remove their advertising
structures would constitute an unlawful spoliation. A written
undertaking was sought that PRASA would not proceed with the
threatened conduct or interfere with the applicants’
possession. On 16 July 2013, PRASA’s attorneys indicated
that PRASA maintained the stance that applicants’ possession
was unlawful and that it was not prepared to give the undertaking
sought. This precipitated the launch of the present
application.
[8] The relief sought in the present
proceedings is a final interdict to restrain the respondents from
unlawfully evicting them from occupation or possession of any of the
sites, and from unlawfully removing or causing to be removed
any of
the advertising structures maintained, operated or used by the
applicants at the sites.
[9] The applicants’ case is a simple
one. They allege that they are in peaceful and undisturbed
possession of the sites. Their possession of the sites is said
to arise from the fact that they have been afforded access
rights
thereto and have displayed and maintained the advertising
structures.
[10] They further allege that if the threatened acts of
spoliation are implemented this would cause them irreparable
loss in
that once evicted from occupation of the sites and their structures
removed, new structures and new operators will be in
place. It
is contended that if a spoliation order were to be obtained at a
later stage, the applicants would suffer a loss
of revenue and
goodwill in relation to advertisers contracted to the applicants, the
applicants’ property would probably
be damaged or destroyed.
To wait until the acts of spoliation take place, would be impractical
as this could result in a
multiplicity of actions involving the
joinder of many parties. Accordingly, the applicants state that
their only effective
remedy is to obtain an interdict.
[11] The respondents deny that the applicants are in
lawful occupation of the sites, and that they physically possess
the
sites and the structures. They contend that the structures were
erected pursuant to agreements of lease which have been
lawfully
terminated or have lapsed by the effluxion of time. They
emphasize that the applicants do not need to be and have
never been
in physical possession of either the respondents’ land, the
billboard structures or the advertisements.
In terms of the
lease agreements access to the sites was strictly regulated as
special permission was required to access PRASA’s
property in
terms of the Railway Safety Act, 16 of 2002. What the leases
afforded the applicants were contractually defined
access rights and
nothing else; their business was to sell advertising space and
the applicants utilised their contractual
rights to achieve their
purpose without being in physical possession. Accordingly, the
respondents state that the structures
have at all times remained in
the possession and under the control of PRASA, and that, at best, the
applicants are the owners of
the structures and their only claim is
to have ownership thereof restored to them.
[12]
The remedy to prevent a threatened spoliation is a prohibitory
interdict. Where, as in the present case,
a final interdict is
sought, the applicants are required to satisfy the requirements for
the obtaining of an interdict. In
Setlogelo
v Setlogelo
[1]
the court confirmed the three requirements laid down by Van der
Linden for the obtaining of a final interdict,
[2]
namely the establishment of a clear right, injury actually committed
or reasonably apprehended and the absence of similar protection
by
any other ordinary remedy.
[13]
The dispute between the parties centres around the question
whether the applicants have established possession or what
is termed
quasi possession,
[3]
of the sites and the advertising structures,
[4]
and whether such possession is sufficient to establish the clear
right required in order to obtain final interdictory relief.
[14] The applicants argue that proof of factual
possession, as required by the
mandament van spolie
, is
sufficient to prove a clear right for the purposes of obtaining a
final interdict. The contrary argument advanced by
the
respondents is that proof of the applicants’ factual possession
is not in itself sufficient to establish the requisite
clear right
and that what is required in order to obtain a final interdict is
proof of a legal right to possession (
ius possidendi
) flowing
from either a real right such as ownership or a personal right
arising from contract.
[15]
The applicants, relying on the case of
Aussenkehr
Farms (Pty) Ltd v Walvis Bay Municipality,
[5]
submitted that proof of a legal right to possession was not necessary
in order to satisfy the clear right requirement.
[16] What occurred in
Aussenkehr
was the
following. The applicants, without the apparent approval of an
official of the respondent municipality, erected a
tent on an open
site. When the municipality threatened to remove the tent the
applicant sought a final interdict to restrain
it from evicting it,
from demolishing the tent and from interfering in any way with the
applicant’s trading activities.
The question for decision
was whether a clear right had been established. The Court (per
Horn AJ, as he then was), relying
on a dictum of Innes JA
in
Setlogelo
(at 227), held that it was unnecessary for the
applicant to prove a right to possession (
ius possidendi
) and
that proof of
de facto
possession was sufficient to establish
a clear right. The fact that the applicant could prove that it
had a right not to
be unlawfully deprived of its
de facto
possession of the site without an order of court or other lawful
authority was, in the opinion of Horn AJ, sufficient proof
of a
clear right on its part.
[17]
In
Aussenkehr
the Court referred, with approval, to a discussion of
Setlogelo
in Silberberg & Schoeman’s “
The
Law of Property
” (3 ed) at
146, where the following was stated in footnote 75:
“
Insofar
as an application may be made for an interdict to prohibit an
unlawful interference or threatened interference with possession,
it
would appear from the decision of Innes JA in
Setlogelo
v Setlogelo
1914 AD 221
at 227 that the requirement of a ‘clear right’
is complied with upon proof of the legal fact ‘possession’:
‘
Now
the right of the applicant is perfectly clear. He is a
possessor; he is in actual occupation of the land and holds
it
for himself. And he is entitled to be protected against any
person who against his will forcibly ousts him from such possession.’
It
would therefore seem as if it is unnecessary for a possessor to prove
any
ius
possidendi
.
See also
Sonnekus
Sakereg (Vonnisbundel)
at 50-1.
Contra
,
however, Kleyn,
Die
Mandament van Spolie in die Suid-Afrikaansereg
at 327-9; Van der Merwe,
Sakereg
at 149.
”
[18]
Setlogelo
is not authority for the proposition that
factual possession, howsoever obtained, is sufficient to establish
the requisite clear
right. In
Setlogelo
, the clear right
was held to have been established because on the undisputed facts the
applicant was a
bona fide
occupier and possessor of the land.
This is borne out in the following passage from the judgment of
Lord De Villiers CJ
(at 225):
“
I
am opinion that upon the uncontradicted facts before the Court the
petitioner has a clear right to an interdict. He does
not by
his petition claim that he is the registered owner or lessee of the
land, but he states that he is in
bona
fide
occupation
and possession of the land. As such occupier he is entitled to
retain undisturbed occupation until ousted by someone
who can
establish a better title than his to own or occupy the land.
This is an elementary principle of law which Mr Botha,
on behalf
of the respondents, has not attempted to deny but he has contended
that there is no proof of such irreparable injury
as would justify
the granting of an interdict.
Prima
facie
,
the disturbance of a man’s
bona
fide
possession is such an injury to him as to justify the granting of an
interdict. If such a disturbance takes place in circumstances
which show that the trespasser honestly believes that he has a better
right to possession than the occupier, or at all events,
has an equal
right, the Court will be justified in withholding the interdict until
the relative rights of the parties have been
decided by action.
But where, as in the present case, the fact of the disturbance of a
bona
fide
possession is not denied, and no single fact is adduced to show that
the trespasser had or honestly believed that he had, an equal
right
as, or a better right than, the occupier, the disturbance should be
treated as an act of spoliation, and the party should
be replaced in
the position in which they were before the act was committed.
The interdict ought, in my opinion, to have
been granted in order to
place the parties in that position …
”
[19] It is evident from the above-quoted extract that the
result in
Setlogelo
may well have been different if it were
shown that the applicant was a
mala fide
occupier or that the
respondents had a superior right to occupation than the applicant.
[20]
Both
Setlogelo
and
Aussenkehr
have been trenchantly criticised by academic writers.
[6]
The views expressed by these writers can be summarised as follows.
[21] There are fundamental differences between the
mandament van spolie
, which is aimed at the recovery of lost
possession, and a final interdict to prohibit a threatened spoliation
or dispossession.
[22] The
mandament van spolie
is founded on the
principle that no one is allowed to take the law into his own hands
by dispossessing another forcibly or wrongfully.
In
Nino
Bonino v De Lange
1906 TS 120
the principle was formulated as
follows:
“
It
is a fundamental principle that no man is allowed to take the law
into his own hands; no one is permitted to dispossess
another
forcibly or wrongfully and against his consent of the possession of
property, whether movable or immovable. If he
does so the Court
will summarily restore the
status
quo ante
and
will do that as a preliminary to any inquiry or investigation into
the merits of the dispute.
”
[23]
Where the
mandament
van spolie
is relied on, the possession which must be proved is not possession
in the juridical sense; it is enough if the holding by
the
applicant is with the intention of securing some benefit for
himself.
[7]
The lawfulness or injustice of the possession is irrelevant.
Thus, even a thief or robber is entitled to avail himself
of the
mandament
.
[8]
Also, a lessee who is deprived of the use and enjoyment of premises
is entitled to invoke the
mandament
to have the use and enjoyment restored to him even though he is not a
possessor in the juristic sense.
[9]
[24] If mere factual possession, irrespective of how it
was obtained, was sufficient to establish a clear right, even
a thief
or
mala fide
possessor would be entitled to obtain a final
interdict. There can be no justification for the protection by
means of an
interdict of illicitly or illegally obtained possession.
[25]
The
mandament
van spolie
cannot
be invoked to prohibit a threatened spoliation; it is only
available to a
de
facto
possessor who has been despoiled. Possessory remedies to
prevent a threatened spoliation were available in Roman law, namely
the
mandament
van complainte
and
mandament
van maintenue
,
but these were not imported into South African law.
[10]
[26]
The
mandament
van spolie
is a robust remedy which generally operates on an interim or
temporary basis pending the final determination of the parties’
respective legal rights. In contradistinction, a final
interdict is granted in order to secure a permanent cessation of an
unlawful course of conduct or state of affairs.
[11]
It stands to reason, therefore, that the applicant for a final
interdict must establish that it is the holder of a right
which is
recognised as a matter of substantive law.
[27]
The clear right required to be shown in interdict proceedings has
been variously described. Van der Linden
refers to it as “
een
liquide recht
”
(“
Judicieele
Pracktijck
”
2.19.1). Modern authorities refer to it as a definite right,
that is a right clearly established.
[12]
[28]
Whether a right is established is a matter of substantive law.
The word “clear” relates to the
degree of proof required
to establish the right.
[13]
Should the alleged right be unfounded or doubtful, a final interdict
will generally not be granted. This consideration
does not
apply to the
mandament
van spolie
because the legal right of the applicant to possession is irrelevant.
[29] The Court has a discretion to withhold the grant of
an interdict, but in the case of the
mandament van spolie
this
consideration is irrelevant.
[30]
In my view,
Aussenkehr
was wrongly decided. I agree with the criticism levelled by
both Kleyn
[14]
and Van der Walt.
[15]
It was wrongly held in
Aussenkehr
that the right which an applicant had to establish in order to obtain
an interdict probably spoliation was “
the
right not to be unlawfully deprived of possession”
.
Kleyn points out that –
“…
the
right not to be unlawfully deprived of possession is not a ‘right’
in the sense of the word. As indicated
above (par 1) it is
a legal principle on which the mandament is based, a principle that
is applied once the applicant for
a mandament has proved that he was
in possession and was spoliated by the respondent. It is
therefore not a right in the
sense of, for example, a subjective
right which is required to satisfy the clear right requisite.
”
[31]
The applicants have wrongly conflated the requirements of the
mandament van spolie
with that of a final interdict. An applicant for a final
interdict to restrain a threatened spoliation must establish not
only
a right not to be unlawfully deprived of possession, but also a legal
right to possession (a
ius possidendi
).
[32]
As set out above, the applicants’ alleged right to occupy the
sites upon which the advertising structures are erected
is said to
arise from a number of direct leases with PRASA and other leases
acquired by the applicants by way of cession, but PRASA
contends that
these leases have been lawfully cancelled or have lapsed by the
effluxion of time.
[33]
The applicants concede that they have made no attempt to establish a
legal right to possession (
ius
possidendi
. In their replying
affidavit they candidly admit that the application is premised merely
upon a threat to their alleged factual
occupation of the sites and
possession of the structures. In paragraph 10 the following is
stated:
“
10.
I accept as correct that I have not attempted to prove the existence
or terms of the contracts nor did I intend to attempt to
persuade
this Honourable Court to find that the applicants’ version of
the invalidity of the purported cancellation is the
correct version.
I have given my evidence for the purpose of demonstrating the threat
to the applicants’ continued
occupation of their sites and
possession of their structures.
”
[34]
For these reasons I find that the applicants have not established the
requisite clear right which would entitle them to a final
interdict.
This conclusion renders it unnecessary to decide whether the
applicants are in occupation of the sites and in
possession of the
advertising structures.
[35]
There is yet a further reason why I cannot accede to the
application. On a proper analysis of the papers it is evident
that the real dispute between the parties is contractual in nature.
Effectively, the order sought is to compel specific performance
of
the applicants’ disputed contractual right to occupy the sites
and the structures. The applicants seek under the
guise of an
alleged spoliation to enforce rights which they claim to have in
terms of the disputed leases. The
mandament
van spolie
is not the appropriate remedy where contractual rights are in
dispute.
[16]
[36]
Accordingly, the application cannot succeed.
[37] The following order is granted:
The application is dismissed with costs.
BORUCHOWITZ J
JUDGE OF THE HIGH COURT
DATE
OF HEARING : 21 OCTOBER 2013
DATE
OF JUDGMENT : 30 MAY 2014
ON
BEHALF OF ADVOCATE J PETER SC
APPLICANTS
: with ADVOCATE S TAGER
INSTRUCTED BY : FLUXMANS INCORPORATED
Applicants’ Attorneys
Ref: J Shafir/bd/08/120766
ON
BEHALF OF
RESPONDENTS
: ADVOCATE PJ VENTER SC
INSTRUCTED
BY : MARAJ ATTORNEYS
Ref:
Jan / MAR17/0007
[1]
Setlogelo
v Setlogelo
1914 AD 221
at 227.
[2]
Van
der Linden’s “
Judiceele
Practijck
” 2.19.1.
[3]
As
to the concept of quasi possession, see
Bon
Quelle (Edms) Beperk v Munisipaliteit van Otavi
1989 (1) SA 508
at 514H-J;
Zulu
v Minister of Works, KwaZulu & Others
1992 (1) SA 81
(DC&LD) at 187H-188D.
[4]
During
argument, the applicants referred to a number of conflicting
judgments relating to the possession of advertising structures
in
the context of spoliation proceedings, viz:
African
Billboard Advertising (Pty) Limited v North & South Central
Local Councils, Durban
2004 (3) SA 223
(N);
Easy
Green Advertising (Pty) Limited v Eagle Canyon Golf Estate & 2
Ors
(Gauteng
High Court Case No 2009/19114 - Unreported);
Khulu
Media Gateway (Pty) Ltd v Bryanston Parallel Medium School & Ano
(Gauteng
High Court Case No 2012/03136 – Unreported) and
Prime
Media & Others v Passenger Rail Agency
(Gauteng
High Court Case No 2012/6168 – Unreported).
[5]
Aussenkehr
Farms (Pty) Ltd v Walvis Bay Municipality
1996
(1) SA 180
(C)
.
[6]
D Kleyn,
“
Mandament
van Spolie a
nd
The
Interdict: The confusion continues
”
1996
De
Jure
162; “
Mandament
van Spolie ‘n interdik?”
AJ Van der Walt,
De
Rebus
,
October 1984 at 477; JC Sonnekus, “
Sakereg
Vonnisbundel
”
(2 ed) at 166; Silberberg & Schoeman’s “
The
Law of Property
”
(5 ed) Footnote 235 at 309; Van der Merwe, “
Sakereg
”
(2 ed) at 149 Note 439).
[7]
An
applicant relying on the
mandament
van spolie
need merely prove factual possession. See
Yeko
v Qana
1973 (4) SA 735
(A) at 739E-G and
Ness
& Another v Greef
1985 (4) SA 641
(C) at 647D-G.
[8]
Yeko
v Qana
supra
at 739G.
[9]
Bennet
Pringle (Pty) Ltd v Adelaide Municipality
1977
(1) SA 230
(E) at 232H).
[10]
Price,
“
The
Possessory Remedies in Roman-Dutch Law
”
Chapter VI pp 46-54; Kleyn,
supra
at 168; Silberberg & Schoeman
supra
at 287.
[11]
Jones
& Buckle, “
The
Civil Practice of the Magistrates’ Courts in South Africa
(10 ed) Vol 1 p 172.
[12]
Nathan,
“
The
Law and Practice Relating to Interdicts Including Mandamus and
Spoliation Orders
”
(1931) 11;
Erasmus
v Afrikander Proprietary Mines Limited
1976
(1) SA (W) 950
at 956 and cases there cited.
[13]
CB Prest,
“
Interlocutory
Interdicts
”
p 47 and
Welkom
Bottling Co (Pty) Limited v Belfast Mineral Waters (OFS) (Pty)
Limited
1967
(3) SA 45
(O) at 56.
[14]
Kleyn
supra
at
165-167.
[15]
Van
der Walt
supra
at 477.
[16]
Compare:
Shoprite
Checkers Limited v Pangbourne Properties Limited
1994
(1) SA 616
(W) at 623D-G;
TelkomSA
v Xsinet (Pty) Ltd
2003
(5) SA 309
(SCA);
First
Rand Limited t/a Rand Merchant Bank v Scholtz NO
2008 (2) SA 503
(SCA) para [13], and
ATM
Solutions (Pty) Ltd v Olkru HandelaarsCC & Another
2009 (4) SA 337
(SCA) paras 9 and 14).