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[2014] ZAGPJHC 235
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Midvaal Local Municipality v Meyerton Golf Club (A3038/14) [2014] ZAGPJHC 235 (15 October 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NUMBER: A3038/14
In
the matter between:
MIDVAAL
LOCAL
MUNICIPALITY
.....................................................................................
Appellant
and
THE
MEYERTON GOLF
CLUB
..........................................................................................
Respondent
Coram:
WEPENER J
Heard:
13 OCTOBER 2014
Delivered:
15 OCTOBER 2014
Summary
– Spoliation – rule against self-help – by-laws not
authorising local authority to act without an order
of court.
JUDGMENT
WEPENER
J:
[1]
Spoliatus
ante omnia restituendus est.
[2]
This short and succinct statement of the law has been said
[1]
to mean that:
‘
.
. . before the Court will allow any enquiry into the ultimate rights
of parties the property which is the subject to the act of
spoliation
must be restored, to the person from whom it was taken, irrespective
of the question as to who is in law entitled to
such property’
or
‘
the
despoiled person must be restored to possession before all else’.
[2]
[3]
The appellant, a local authority, is the registered owner of land
which is leased to the respondent and is used as a golf course.
Several advertising signs were displayed on the golf course in
contravention of the appellant’s by-laws. Sections 14(10)
and
55(15) of the Outdoor Advertising By-Law
[3]
provide:
‘
Section
14 General Requirements
(10) If
advertisements, advertising signs and advertising structures are not
removed as contemplated in this policy or not removed
by the expiry
period specified in this policy of if advertisements, advertising
signs and advertising structures constitute in
any respect a
contravention of the provisions of this policy, the Council shall be
entitled, without giving notice to anyone, to
itself remove any
advertisement, advertising sign or advertising structure.
Section 55
Erection, Maintenance and Removal of Advertisements, Advertising
Signs and Advertising Structures
(15) Notwithstanding
the provisions of subsection (2), (4), (5) and (6), if an
advertisement, advertising sign or advertising structure;
(a) in the opinion
of the Council, constitutes a danger to life or property:
(b) in the opinion
of Council, is obscene;
(c) is in
contravention of this policy and is erected on, attached to or
displayed on Council land,
the Council may,
without serving any notice, remove any such advertisement,
advertising sign or advertising structure or cause it
to be removed
at the expense of the person referred to in section 60.’
[4]
The respondent was in breach of the by-laws and the appellant gave
notice to the respondent on 7 May 2013 that it was so in
contravention and ordered the respondent to remove the advertisements
within seven calendar days,
‘
.
. . failing which
further legal action
against you will forthwith be taken. Such legal action may include,
but is not limited to, criminal action as well as an
order
by court
forcing you to remove such
advertisement. . . all costs of the aforesaid
legal
action
, including removal costs, will
be for your account.’ (own emphasis)
[5]
The respondent failed to heed the notice and the appellant caused the
advertising signs to be removed without further notice
to the
respondent and without obtaining an order from court to do so. The
respondent approached the Magistrates’ Court at
Meyerton and
obtained an order to be placed in possession of its advertising signs
as they were prior to their removal. The court
a quo considered that
the appellant failed to apply its own by-law properly, failed to
adhere to the principles contained in PAJA
[4]
,
offended the rights of the respondent enshrined in the Constitution
and spoliated the respondent and ordered the appellant to
restore the
advertising boards in the same position as they were prior to their
removal by the appellant.
[6]
The appellant appeals against that order and, despite the defences
raised in the court a quo, nailed its colours to the mast
of the
by-laws referred to above namely, its legislative right to remove the
signs.
[7]
The nature of a mandament van spolie is such that a possessor, even
if he be a fraud, robber or thief, is entitled to possession
prior to
issues arising from such possession being determined by a court. By
analogy it would also be so in the case of someone
breaking the law,
such as the respondent, who acted in contravention of a by-law, as
the issue of the possessor’s fault is
irrelevant.
[5]
[8]
All persons are required to preserve public order and are prohibited
from taking the law into their own hands and are required
to follow
due process.
[6]
[9]
A spoliation is available against all who resort to self-help
including government entities such as the appellant. The
Constitutional
Court said in
Ngqukumba
[7]
:
‘
This
applies equally whether the despoiler is an individual or a
government entity or functionary. In
Vena
the then Appellate Division, now the Supreme Court of Appeal,
endorsed
Sithole
:
“
The
Court came to the conclusion that the section was not worded so
clearly as to detract from the general principle of law ‘.
. .
that there shall be no spoliation by any person, be it an individual,
or a government department or a municipality or any similar
body. . .
.’
[10]
In the circumstances the respondent, qua possessor, has a
well-recognised and established right to be protected against the
self-help of a spoliator. The appellant’s defence to the relief
granted by the magistrate is based on the wording of the
by-laws
which, it submits, permits self-help. This, the appellant submits to
be the case despite its notice to the respondent indicating
legal
action and a court order should the advertising signs not be removed.
It seems that at the time of the sending of the notice
the
appellant’s officials were well aware of the principles against
self-help and that a court order would be required.
[11]
In order to justify its self-help the appellant relied on
Surtee’s
Silk Store
[8]
where Margo J said that a tenant could lawfully be ejected from
premises due to the provisions of s 18(1) of the
Community
Development Act.
[9]
It provided that:
‘
If
a tenant or other occupier of immovable property belonging to the
board fails-
(a)
. . .
(b)
to vacate such property on or before the date on which he has
lawfully been required by the board to do so,
the Board may, after
having given seven days' notice in the case of any such property
occupied for residential purposes, or thirty
days' notice in the case
of any such property occupied for any other purpose. . . without
having obtained any judgment or
order of Court, by resolution declare
that such property may be entered upon and taken possession of.’
Relying
on the words which authorise an act without a court order, the
learned judge allowed self-help. The case is, however,
distinguishable
from the present matter where no provision for
self-help without a court order is to be found. In addition, the
constitutionality
of such a self-help provision has not been
ventilated before this court.
[12]
The appellant also relied on a passage in
Potgieter
v Du Plessis
[10]
where, by referring to
Sillo
v Naude,
[11]
the court referred to the fact that the conduct in
Sillo
was
lawful in that the respondent was authorised by law to set into
motion the machinery of the pound ordinance and the respondent
did
not take the law into his own hands. The actions of the respondent in
Sillo
are to be distinguished from those of the appellant in this matter.
The appellant did take the law into its own hands, but attempts
to
justify its actions by reference to the provisions of the by-laws.
[13]
It is apparent that the by-laws do not abolish the duty upon the
appellant to obtain a court order should it wish to act pursuant
to
the provisions of the by-laws. In
African
Billboard Advertising (Pty) Ltd v North and South Central Local
Councils, Durban
[12]
,
Levinsohn J said:
‘
The
legal principles applicable to a matter such as the present have been
clearly laid down in a number of decided cases. In
Sithole
v Native Resettlement Board
1959 (4) SA
115
(W) the Court considered a provision of certain expropriation
legislation. The section in question read as follows:
“
Upon
the service of any such notice the ownership in the land described in
the notice shall pass to the board free of all encumbrances
and the
board may, after expiry of a period of not less than 30 days from the
date of such service take possession of and use the
land.”
Williamson
J (as he then was) said at 117A - B:
“
The
argument addressed to me on behalf of the applicant is shortly that
this right of occupation or use, after a period provided
for by s
17(6), is no more than the similar legal right acquired by any such
person as for instance a landlord or any other person
who has
acquired a vested right to possess or repossess certain property;
that right always incorporated a further right, if possession
or
occupation is not given, to enforce his right by legal process. That
right is a corollary to the right of any person in possession
of
property, whether movable or immovable, not to be disturbed in his
possession except by legal process.”
The
learned Judge continued and said (at 117C - G):
“
The
argument shortly for the respondent is that that position, which is
the normal position of persons entitled to possession of
property,
has been disturbed by the provisions of s 17(6). Of course,
Parliament may, if it so deems fit, alter the ordinary principle
of
law that a person entitled to property is not entitled to enter upon
it and take possession himself by force. The right so to
act is one
which obviously must be conferred in clear language; the clear
principle of our law is that, ordinarily speaking, persons
are not
entitled to take the law into their own hands to enforce their
rights. There is a legal process by which the enforcement
of rights
is carried out. Normally speaking, it is carried out as a result of
an order of Court being put into effect through the
proper officers
of the law such as the Sheriff, deputy sheriff, messenger of the
magistrate's Court or his deputies, reinforced
if necessary, by the
aid of the police or some such authority; in most civilised countries
there exists the same principle that
no person enforces his legal
rights himself. For very obvious reasons that is so; if it were not
so, breaches of the peace, for
instance, would be very common. It is
clear, therefore, that if you want to enforce a right you must get
the officers of the law
to assist you in the attainment of your
rights.
The principle
applies equally to the rights of public bodies such as municipalities
or provincial councils or any similar bodies,
and even to State
Departments. Individual members of a State Department normally
cannot, in the interest of their Department, take
the law into their
own hands and enforce State rights without the State having made use
of the assistance of its judicial Department
in order to help it to
acquire possession of property to which the State may be
entitled.”(My emphasis.)
Sithole's
case supra was approved of by the then Appellate
Division in
George Municipality v Vena
and Another
1989 (2) SA 263
(A),
especially at 271 - 2.
We
were also referred to a decision of Blignault J in the Cape of Good
Hope Provincial Division (unreported) delivered on 27 May
1999 where
the learned Judge applied the principles in the
George
Municipality
case supra, and came to
the conclusion that the respondent municipality was not entitled to
remove signs in terms of its bylaws
without first having obtained an
order of Court. Counsel for the applicant in casu relied strongly on
the
Ad Outposts (Pty) Ltd v
Municipality of Cape Town
judgment although conceding that the by-law in that case differed
materially from the present case. However, he argued that in
principle the two cases could not be distinguished.
We
must answer the question posed in this case by applying the canons of
interpretation laid down by the authorities. We must interpret
the
particular legislation in such a way that it interferes as little as
possible with the principle that no person may take the
law into
his/her own hands. I venture to suggest that s 39(2) of the
Constitution of the Republic of South
Africa Act
1996 is also applicable:
“
When
interpreting any legislation, and when developing the common law or
customary law, every court, tribunal or forum must promote
the
spirit, purport or objects of the Bill of Rights.”
The
particular provisions of the Bill of Rights are s 25(1):
“
No
one may be deprived of property except in terms of law, of general
application, and no law may permit arbitrary deprivation of
property.”
Also,
s 34:
“
Everyone
has a right to have any dispute that can be resolved by the
application of law decided in a fair public hearing before
a court or
where appropriate, another independent and impartial tribunal or
forum.”
I
may say in this context that the spirit and objects of the Bill of
Rights promote the rule of law in every area of our daily lives
and
binds everyone including government and local authorities.
The
by-law in question confers a discretion on the city engineer to
direct any person who has erected a sign either in contravention
of
the by-laws or without having received permission to erect such sign
in the first place to remove the sign within 14 days from
the date on
which notice is given. In the event of non-compliance s 7(3) empowers
the city engineer to remove the sign. I am not
persuaded that the
framers of the bylaws intended that this should occur without a Court
order. It was a simple matter to say that
no Court order would be
required. Our Courts have in the past applied rules against self-help
strictly. For example, a lease may
provide that upon cancellation the
landlord is entitled to regain possession of the premises. We know
that this cannot take place
unless the landlord goes to Court and
obtains a Court order. In the case of notarial bonds one finds
provisions which entitle the
creditor to take possession of pledged
movables upon a breach by the debtor. Here again, this cannot occur
without a Court order.
In short the policy of our law has always been
to set its face against any form of self-help. In the instant case
the city engineer
formed a judgment in regard to the legality of the
signs and he himself executed that judgment. Mr Chadwick argues that
the 14-day
period afforded to the offending party to remove the sign
cures the problem. He submits that such a party, if he disputed the
city
engineer's contentions, could move the Court for an appropriate
declaratory order. This 14-day window period, without any objection
from the offending party therefore clears the way for a removal by
the city engineer without an order of Court. I am unable to
approach
the interpretation of the by-law in this way. The 14-day period in
question is not an indication to my mind that the Legislature
authorised removal of the sign in question without a Court order. The
contention of the respondent appears to place the onus on
the
offending party to go to Court and his failure to do so amounts to
some sort of acquiescence to or acceptance of the removal
without an
order of Court. The canons of construction laid down by our
Courts require the statutory provision to stipulate
in clear language
that the dispossession of an individual's property can take place
without an order of Court. The by-law in the
present case does not do
so and I am of the view that the removal in question ought not to
have been done without an order of Court.’
[13]
[14]
The matter before us is on all fours with the
African
Billboard Advertising
matter. The appellant is not exonerated from obtaining a court order:
the by-laws do not absolve the appellant and when interpreting
the
appellant’s rights with due regard to the words of Levinsohn J
in
African
Billboards Advertising,
[14]
the appellant’s purported justification to resort to self-help
must fail. Indeed in
George
Municipality,
[15]
the Supreme Court of Appeal approved a statement by Friedman J, in
the court of first instance, which read as follows:
‘
It
is a fundamental principle of our law that a person may not take the
law into his own hands and a statute should be so interpreted
that it
interferes as little as possible with this principle.’
[15]
In
Minister
of Finance and others v Ramos,
[16]
Cleaver
J said:
‘
In
this connection it should also be borne in mind that where a party
opposing an application for a mandament van spolie relies
upon a
statutory provision in order to support an averment that he was
entitled thereby to deprive the applicant of his possession,
without
recourse to due process of law, and that such deprivation or
possession was therefore lawful, such statutory provision
must be
restrictively interpreted. A person who invokes the protection of
such a statutory provision will need to establish that
he acted
strictly within its terms. (See
Rikhotso
v Northcliff Ceramics (Pty) Ltd and Others
1997
(1) SA 526
(W) at 530F;
George
Municipality v Vena and Another
1989
(2) SA 263
(A) at 271E--F.)’
[16]
Wrongful deprivation in this context means deprivation against the
will of the person and without resort to the legal process.
[17]
‘
A
person cannot under colour of right dispossess another, and that is
what the respondent in this case did; because by so doing
he takes
the law into his own hands, and this is something the Court cannot
and the law will not permit. Nor can a person take
advantage of his
own wrong and act as if he were the judge in his own case.’
[18]
[17]
There is nothing in the by-law which empowers the appellant to avoid
the law against self-help. The reference in the by-law
to a notice is
irrelevant to the question of self-help. The appellant acted
unlawfully by removing the advertisements without having
resorted to
a legal process.
[18]
In
Elastocrete
(Pty) Ltd
[19]
it is stated that wrongfulness in this context means nothing more
than ‘without any special legal right to oust the person
from
possession.’
I
conclude therefore that the court a quo correctly found that the
appellant acted in violation of the respondent’s rights
and
properly ordered that the respondent be restored to possession of the
advertising boards.
[19]
Spoliatus ante omnia restituendus est.
[20]
The appellant prosecuted the appeal late. There is an application for
condonation for its failure to act diligently which application
is
opposed by the respondent. Having come to the conclusion that the
appeal cannot succeed, I need say no more about the application
for
condonation.
[21]
I propose that the appeal be dismissed with costs.
__________
Wepener
J
I
agree and it is so ordered.
___________
Makhanya
J
Counsel
for Appellant: D.L. Williams
(Heads
for Appellant drawn by H P West)
Attorneys
for Appellant: Malherbe Rigg & Ranwell Inc.
Counsel
for Respondent: A. Le Roux Stemmet
Attorneys
for Respondent: Daniel S Goosen Attorneys
[1]
Greyling
v Estate Pretorius
1947 (3) SA 514
(W) at 516-517.
[2]
Ngqukumba
v Minister of Safety and Security and Others
2014 (5) SA 112
(CC) para 10.
[3]
Promulgated
in terms of Extra Ordinary Provincial Gazette 149 on 1 July 2009.
[4]
Promotion
of Administrative Justice Act
3 of 2000
.
[5]
Ngqukumba
footnote 17:
‘
In
Tswelopele Non-Profit Organisation and
Others v City of Tshwane Metropolitan Municipality and Others
2007
(6) SA 511
(SCA) ([2007] ZASCA 70) (
Tswelopele
)
in para 21, the Supreme Court of Appeal said:
“
Under
[the mandament van spolie], anyone illicitly deprived of property is
entitled to be restored to possession before anything
else is
debated or decided (spoliatus ante omnia restituendus est). Even an
unlawful possessor — a fraud, a thief or a
robber — is
entitled to the mandament's protection. The principle is that
illicit deprivation must be remedied before the
Courts will decide
competing claims to the object or property.”
This
court cites
Tswelopele
with approval in
Schubart Park
Residents' Association and Others v City of Tshwane Metropolitan
Municipality and Another
2013 (1) SA
323
(CC)
(2013 (1) BCLR 68
;
[2012] ZACC 26)
in para 23. In
proceedings for a spoliation order one does not have to reach the
question whether the person deprived of possession
is in fact a
fraud, thief or robber, for the simple reason that this is not at
issue. That the person might turn out to be one
is irrelevant.’
[6]
Ngqukumba
para 11.
[7]
Ibid.
[8]
Surtee’s
Silk Store (Pty) Ltd and Others v Community Development Board
and Another
1977 (4) SA 269 (W).
[9]
Act
3 of 1966.
[10]
1978
(1) SA 751
(NC) at 754H.
[11]
1929
AD 21 at 26.
[12]
2004
(3) SA 223
(N) at 226I-229B.
[13]
Also
see Ngqukumba para 11.
[14]
At
228B-D.
[15]
At
271E-F.
[16]
1998
(4) SA 1096
(CC) at 1101G-I.
[17]
Wightman
t/a J W Construction v Headfour (Pty) Ltd
[2008] ZASCA 6
;
2008
(3) SA 371
(SCA) para 27.
[18]
Anderson
v Anderson
1919 EDL 57
at 60.
[19]
Elastocrete
(Pty) Ltd v Dickens
1953 (2) SA 644
(SR) 650.