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[2014] ZAGPJHC 208
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Wheels Auto Services CC T/A S A Converting v SSD T1 Specialized Steel Direct (Pty) Ltd (14/31081) [2014] ZAGPJHC 208 (5 September 2014)
REPUBLIC
OF
SOUTH AFRICA
IN THE
HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 14/31081
DATE:
05 SEPTEMBER 2014
In the
matter between:
WHEELS
AUTO SERVICES CC t/a S A
CONVERTING
..........................................
Applicant
(CK193/0024216/23)
And
SSD
T1 SPECIALIZED STEEL DIRECT (PTY)
LTD
...........................................
Respondent
(Reg No.
2012/046692/07)
SUMMARY
Practice
and procedure – spoliation – urgency thereof –
requirements – right of applicant to access business
premises
of respondent through gates – respondent dispossessing
applicant of such right unlawfully by locking gate –
respondent’s reliance on contractual obligations and rights in
terms of lease agreement irrelevant at this stage –
applicant
succeeding in proving on a balance of probabilities that it was
dispoiled unlawfully.
J
U D G M E N T
MOSHIDI,
J
:
[1]
This is an application brought on urgent basis, in which the
applicant seeks relief in the following terms:
“
2. Directing that the Respondent
immediately restore and return to the Applicant possession of Gate 4
in respect of the premises
known as 41 Apex, Benoni;
3.
Directing
that the Respondent pay the costs of the application on a scale as
between attorney and own client.
”
[2]
The application is opposed strenuously by the respondent who has
filed answering papers.
THE
BACKGROUND FACTS
[3]
The following are either common cause facts or not seriously
disputed: The applicant carries on the business of paper
and
plastic recycling at certain premises situated at 41 Apex Road, Apex,
Benoni. The premises comprise of a warehouse measuring
approximately 1 060,00 square metres in an area on the ground floor,
and the surrounding area as marked, “
Wheels
Auto Services
” on annexure “B”
(plan of the premises), (“
the
leased premises
”). Redefine
Properties was the owner of the leased premises when the lease with
the applicant was entered into with
effect from 1 April 2013.
The respondent, who carries on the business of steel plate cutters
t/a Matsway Steel, at the leased
premises, became the registered
owner, and now the new landlord from March 2014. By this time,
the applicant had been occupying
the leased premises since about 2012
and enjoyed access to the premises through Gates A, 3 and B as
indicated on the sketch-plans.
During July 2013 the applicant
commenced negotiations with the landlord for additional access.
Although it is disputed whether
the applicant enjoyed access through
Gate 4, and in respect of a fence which was already demarcated as a
boundary fence since July
2013, the factual situation is that the
applicant had access and usage of Gate 4 since July 2013. The
applicant says that the respondent,
on 20 August 2014, took the law
into its hands and unlawfully locked Gate 4, thereby depriving
applicant of Gates B and 4.
Whilst Gates A and 3 are operated
manually, Gate 4 is connected to an alarm system and the redirection
of traffic in the leased
property require certain zones of the alarm
system to be permanently disarmed. This affects the security
and prevents the
applicant from enabling the security sensors to the
premises. As a result, the applicant contends that it was
obliged to
shut down the manufacturing side of its premises or
business, and is suffering damages on a daily basis for as long as
the current
situation persists. In the answering papers, the
respondent admits that Gate 4 was locked on Wednesday 20 August
2014.
However, the respondent denies that it spoliated the
applicant by locking this particular gate. The respondent
further avers
that Gate 4 does not form part of the original lease
agreement and by locking Gate 4, the respondent merely enforced the
terms
of the original lease agreement entered into between the
applicant and the previous landlord. The respondent further contends
that
the applicant has been using the other gates, i.e. Gates A and 3
now for a substantial period of time, which gates are still available
to the applicant.
[4]
It appears from the papers, as well as the annexures thereto, that
the usage of Gates B and 4, as well as the fence, has been
a landlord
and tenant feud of tremendous proportions since the respondent later
became the owner of the premises. This is
also borne out by the
exchange of correspondence between the parties. I need not deal
with all the correspondence for present
purposes. However, a few of
the e-mails exchanged require to be mentioned. The applicant
contends that in July 2013 it already
had commenced negotiations for
additional access in terms whereof such access was granted in respect
of Gate 4 and of a boundary
fence which was already demarcated.
In one e-mail addressed by the respondent on 28 August 2013, it was
stated that:
“
I have
just spoken to David in regard to the entrance. He says that it
is okay and that I should give you something in writing.
Therefore, I have attached the addendum again. Could you please
have it signed for me and returned?
”
In a later e-mail of 4 September 2013 addressed by one Mandy Botha
(the property manager), also regarding applicant’s access
to
the premises, it stated:
“
The
addendum has been signed but (there is always a but) they want to add
a clause stating that this arrangement will need to be
agreed to by
the new owner if and when they sell the property, unfortunately they
cannot risk this arrangement preventing a sale.
”
From this, it is reasonable to infer that, pursuant to the
negotiations alluded to by the applicant, there were discussions to
regularise the applicant’s access through Gate 4 by amending
the lease agreement. However, when the respondent became the
new
landlord matters changed. For, on 19 August 2014 an
e-mail from the respondent read:
“
In
reference to your Annexure B to your lease agreement, page 40, please
note: ‘Entry to such area being through Gate
A which is a
common entrance and then through the gate being installed at 3.’
The area being refer to
[
sic
]
is
the demarcated area for use of Wheels Auto. Gate B would not be
your access point anymore. Please use Gate A as per
your lease
agreement and Annexure B.
”
This
was followed by the respondent’s closure of Gate 4 the next
day, and subsequently led to the present proceedings.
[5]
I must add that one of the grounds raised by the respondent in
resisting the instant application is that the application does
not
warrant urgent adjudication. I do not agree with this
contention as discussed later below.
SOME
LEGAL PRINCIPLES
[6]
The right to property is protected by the Constitution
[1]
,
which provides that no one may be deprived of property except in
terms of law of general application, and that no law may permit
arbitrary deprivation of property. In order for the applicant
to succeed in the present application, it must allege and prove
that
it was in peaceful and undisturbed possession of the premises in
question. In
Amler’s
Precedence of Pleadings
[2]
,
the following is stated:
“
Possession
is not possession in the strict juridical sense. It suffices if the
holding was with the intention of securing some benefit
for the
plaintiff. The causa of the plaintiff’s possession is
irrelevant and it is also irrelevant whether the defendant
has a
stronger right or claim to possession. Actual physical
possession, and not the right to possess, is protected.
”
Reference
is then also made to cases such as
Yeko
v Qana
[3]
.
The applicant must also prove an unlawful deprivation of possession
by the respondent.
[7]
In
Jansen
v Madden
[4]
,
the applicant sought an order authorising him to remove a fence
erected by the respondent across a certain road and to replace
a gate
removed from the fence by the respondent. In ultimately
refusing the application, the Court at 84 said:
“
A
person who claims relief against dispossession by spoliation in a
case such as the present will, however, have to prove on a balance
of
probabilities that he was the holder of a servitutal right and it is
not sufficient merely to say that he claims such a right
and that he
was disturbed in the exercise of the right which he claims …
”
Finally,
on the nature and purpose of the spoliation relief, the Court, in
City
of Cape Town v Strümpher
[5]
,
had to consider the question whether the spoliation order was the
appropriate remedy in the circumstances of an appeal before
it.
The Court then proceeded to say that:
“
A
spoliation order is available where a person has been deprived of his
or her possession of movable or immovable property or his
or her
quasi-possession of an incorporeal. A fundamental principle in
issue here is that nobody may take the law into their
own hands.
In order to preserve order and peace in society the court will
summarily grant an order for restoration of the
status quo where such
deprivation has occurred, and it will do so without going into the
merits of the dispute.
”
See
also more recently,
Ngqukumba
v Minister of Safety and Security
[6]
,
and LAWSA First Re-Issue, Vol 27 paras 262-264.
APPLICATION
OF LEGAL PRINCIPLES TO THE FACTS
[8] In applying the principles expoused above to the facts of the
present matter, the following picture emerges: the applicant
undoubtedly had physical possession or possession of access entries
to the premises in order to run its business. This had
been the
situation since about September/November 2012 in spite of the actual
commencement of the lease agreement, i.e. on 1 April
2013. The
applicant had peaceful and undisturbed possession and control in
respect of access to the premises at Gates A,
3 and B. From
July 2013, pursuant to negotiations, the applicant had access to use
Gate 4 and in respect of a fence which
was already demarcated as a
boundary. The respondent admits that it locked Gate 4 as
appears from the photographs of the
sketch-plan of the premises.
[9]
In my view, the above admission by the respondent should put to rest
the respondent’s contentions to the contrary that
there was no
spoliation, and that the applicant merely had
quasi
-possession
and not physical possession. The respondent factually resorted to
self-help and took the law into its hands. This,
the Court
cannot countenanced. It is immaterial whether it was Gate 4
only and/or the others that were locked. There
were clear
attempts to normalise the applicant’s access to the premises by
way of the addendum referred to above. It
is equally irrelevant
that the addendum was not yet signed as contended for by counsel of
the respondent. The question of
contractual rights and
obligations in terms of the lease agreement are not for consideration
at this stage. The applicant,
I find, has succeeded to prove on
a balance of probabilities that it had the right to access through
the gate in question.
URGENCY
[10] The other issue raised by the respondent is that the
application was not urgent at all, and that the respondent was
pressured
into preparing opposing papers in limited time and appear
in court. In my view, the latter contention has no merit at
all.
At the time the matter was heard the Court had three sets
of affidavits, including a replying affidavit. The respondent clearly
misunderstands the functioning of the Urgent Court in this regard. I
am satisfied that the applicant in fact met the requirements
of
Uniform Rules 6(5)(b) and 6(12)(b) as well as the requirements of
service in matters of this nature.
[11]
It is trite that an application for spoliation is not automatically
urgent on itself. Each case must however be considered
on its
own merits. In
Mangala
v Mangala
[7]
,
the Court said:
“
It is
true that a spoliation order is a remedy which in the nature of
things should be a speedy one, but the fact that there has
to be
restitution before all else simply means that, once an applicant has
proved that he was in peaceful possession and his possession
was
disturbed, the respondent must restore that possession before
entering into the merits of the ownership or otherwise of the
subject
matter. It does not follow that, because an application is one for
spoliation order, the matter automatically becomes one
of urgency.
The applicant must either comply with the Rules in the normal way or
make out a case for urgency in accordance
with the provisions of Rule
6(12)(b).
”
In
my view, this is precisely what the applicant in the present matter
has done. If the applicant had elected to serve the
papers on
the respondent through the sheriff, there would have been an obvious
delay. In that event, the applicant would
have faced the
challenge such as that which was raised in
Juta
and Co v Legal and Financial Publishing Co Ltd
[8]
,
where the Court held that the relief sought by the applicant requires
the maximum expedition on the part of an applicant.
In
20
th
Century Fox Film Corporation v Black Films
[9]
,
the Court held that the urgency of commercial interests might justify
the invocation of Uniform Rule of Court 6(12) no less than
any other
interests. In the instant matter, the interests of the
applicant are such interests as it is a running business
which has
been interrupted by the unlawful conduct of the respondent. As argued
by the applicant, and quite correctly so in my
view, the respondent’s
opposition based on the absence of urgency, is an unsubstantiated
denial and red-herring. The
respondent was in fact warned
timeously before the application was launched.
COSTS
[12]
The costs ought to follow the event
[10]
.
There was no compelling argument advanced not to do so. The applicant
has argued for costs on a punitive scale. I do not
agree. This
is an issue of a discretion vested in the Court. In the circumstances
of the matter, costs on the party
and party scale would be just and
equitable.
ORDER
[13]
I make the following order:
1.
The
respondent is ordered to immediately restore and return to the
applicant possession of Gate 4 in respect of the premises situated
at
41 Apex Road, Benoni.
2.
The
applicant is authorised, if it becomes necessary, to enlist the
services of the sheriff of the Court or other law-enforcement
agencies, to give effect to the execution of order 1 (one) above. \
3.
The
respondent shall pay the costs of the application on the party and
party scale.
D
S S MOSHIDI
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
COUNSEL
FOR THE APPLICANT S B FRIEDLAND
INSTRUCTED
BY BEDER-FRIEDLAND INC
COUNSEL
FOR THE RESPONDENT E LE ROUX
INSTRUCTED
BY STEYN, STEYN AND PARTNERS
DATE
OF HEARING 27 AUGUST 2014
DATE
OF JUDGMENT 5 SEPTEMBER 2014
[1]
Sec
25(1) of Constitution
[2]
6ed at
317
[3]
1973
(4) SA 735
(A)
[4]
1968
(1) SA 81
(GW)
[5]
2012
(4) SA 207
(SCA) at para [19]
[6]
2014
(5) SA 112
(CC) at para [12]
[7]
1967(2)
SA 415 (ECD) at 416D-F
[8]
1969
(4) SA 443
(C) at 445E
[9]
1982
(3) SA 582
(W)
[10]
Ngqula
v SAA
2013 (1) SA 155
at 160 para [22]