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[2015] ZAGPJHC 162
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Baguma v Van Wyk and Another (2015/177767) [2015] ZAGPJHC 162 (31 July 2015)
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REPUBLIC
OF SOUTH AFRICA
HIGH
COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
(1)
REPORTABLE:
YES
(2)
OF
INTEREST TO OTHER JUDGES: YES
………
..
………………………...
DATE
SIGNATURE
CASE
NO 2015/17767
In
the matter between:
BAGUMA,
ENOCH BONJA
APPLICANT
AND
VAN
WYK, DAVID CHARLES
FIRST
RESPONDENT
VAN WYK, YVONNE
SECOND
RESPONDENT
JUDGMENT
Headnote
Application
to put an order into operation pending an application for leave to
appeal and possible appeal – section 18(2)
of
Superior
Courts Act 10 of 2013
Spoliation
order – an appealable order - effect of an appeal to render
order fruitless – save in exceptional cases,
a spoliation order
ought to be put into operation
The
respondent, the owner of a residential property sold it to applicant
on deed of sale – applicant to pay off price over
5 years –
property let to tenants in terms of leases with applicant -
respondent subverted tenants to pay rent to them not
to applicant –
initial order requiring respondent to desist and to require tenants
to pay applicant put into operation
SUTHERLAND
J:
1.
Modiba
AJ, on 22 May 2015, granted an order in which the applicant was
restored to possession of the property at portion 1 of […….],
Jeppestown. The court had held that the applicant had been spoliated
by the respondents. The respondents filed an application for
leave to
appeal against that judgment on 25 May 2015, thereby staying the
order from coming into effect. This application
seeks an order
putting into effect that order notwithstanding a pending application
for leave to appeal or the prospect of an appeal
being prosecuted. As
such the applicant seeks the relief provided for in section 18(2) of
the Superior Courts Act 10 of 2013 (SCact).
2.
The
relevant provisions of Section 18 (1) (2) (3) are:
“
(1)
Subject to subsections (2) and (3), and unless the court under
exceptional circumstances orders otherwise, the operation and
execution of a decision which is the subject of an application for
leave to appeal or of an appeal, is suspended pending the decision
of
the application or appeal.
(2)
Subject to subsection (3), unless the court under exceptional
circumstances orders otherwise, the operation and execution of
a
decision that is an interlocutory order not having the effect of a
final judgment, which is the subject of an application for
leave to
appeal or of an appeal, is not suspended pending the decision of the
application or appeal.
(3)
A court may only order otherwise as contemplated in subsection
(1) or (2), if the party who applied to the court
to order otherwise,
in addition proves on a balance of probabilities that he or she will
suffer irreparable harm if the court does
not so order and that the
other party will not suffer irreparable harm if the court so orders.”
3.
The
order of Modiba AJ states that:
“
(1)
The Applicant’s possession of the property ….is hereby
restored.
(2)
The ….respondents are to instruct all current tenants
occupying the property to make payment of the rentals to the
applicant
in terms of their lease agreements with the applicant and
to this effect to dispatch a letter to each tenant advising that the
applicant has lawful possession of the property and that the
applicant is entitled to enter into lease agreements with the tenants
and the tenants are obliged to pay the applicant.”
4.
To
understand the terms of the order the critical common cause
background facts are recounted:
4.1.
The
property is a residential dwelling in which several rooms are let to
various people.
4.2.
The
respondents sold the property to the applicant on 22 June 2012 in
terms of a deed of sale. The purchase price was payable over
5 years.
Ownership has yet to be transferred.
4.3.
The
applicant took effective occupation from 1 July 2012.
4.4.
The
respondents and the applicant are in dispute about whether one or
other has breached the agreement and whether the respondents
are
entitled to cancel the agreement.
4.5.
On
30 April the respondents’ attorney sent this letter to the
tenants.
“
We
act on behalf of Mr DC and Mrs Y van Wyk.
Please
be advised that the contract between our clients and Mr EB Baguma has
been cancelled. Our clients are the legal registered
owners of the
Property and all rentals are to be paid directly to them or their
appointed agent.
Any
queries relating to the Property are to be addressed to our clients
or their agent. Proof of cancellation of the contract, ownership
papers and electricity accounts may be view by request to Mrs Yvonne
van Wyk or her representative. New lease agreements will be
entered
into between yourself and the legal owners of the property.
Should
you pay any rental over to Mr Baguma, his Attorney or any other
person claiming ownership of this property, it will be considered
as
non-payment of rental and a violation of your tenancy. The
appropriate action will be taken.
Should
you give access to the property to Mr Baguma, his Attorney or
representative, this will be deemed as trespassing and breach
of your
agreement with our clients and your tenancy will be terminated.”
4.6.
Since
then the tenants have acquiesced in the terms demanded by the letter.
5.
The
facts described above are not recounted to address the merits of the
dispute between the parties, but solely to contextualise
the factual
position claimed by the applicant to now exist (See:
Incubeta
Holdings (Pty) Ltd v Ellis
2014 (3) SA 189
(GJ) at [26.]
Furthermore,
In
Incubeta,
it
was held that: “Necessarily….exceptionality must be fact
specific. The circumstances which are or may be ‘exceptional’
must be derived from the actual predicaments in which the litigants
find themselves.”
6.
The
case for relief advanced by the applicant relies on the implications
of being deprived of de facto possession. At the time of
the hearing
the applicant had been deprived of possession for three months. The
date upon which the application for leave to be
heard has yet to be
determined. If an appeal is authorised the deprivation could last for
several months if not longer.
7.
The
applicant deposes to the fact that the property was bought on terms
that oblige him to pay monthly sums in terms of the deed
of sale of
R8000 per month. The property was let by him and the rental income is
R17,000 per month. That income stream supplies
the funds to pay the
sums due to the respondents and the other costs relating to the
property including the municipal levies and
charges, and to meet
other financial needs. The effect of not receiving that income is
that the applicant has inadequate funds
to meet his obligations under
the terms of the deed of sale. Should he default, the respondents
would be entitled, validly, to
cancel the agreement.
8.
What
follows logically from these circumstances is the bizarre result that
the suspension of the order because of the appeal process
puts the
applicant at risk of forfeiting the property regardless of the
outcome of an appeal.
9.
The
respondents dispute that the harm, as alleged, exists. They tender to
put the rental money into their attorney’s trust
account, but
also say that some of it will be used on the property. These
averments are ironic, for in asserting them, the respondents
acknowledge the existence of harm and proffer their goodwill as a
prophylactic.
10.
However
the respondents’ main argument is that there is no risk of the
danger claimed by the applicant because they have already
cancelled
the sale agreement. This contention misses the point entirely;
whether the sale agreement has, indeed, been validly cancelled
or not
is irrelevant to this case. If the respondents can persuade a court
that they have validly cancelled and are entitled to
possession and
in consequence are entitled to an eviction order against the
applicant they can procure de jure and de facto possession
lawfully.
Such grounds as raised by then respondents are no defence to a
spoliation application.
11.
It
was argued that the initial spoliation application was broader than a
pure spoliation and that the applicant sought to invoke
a contractual
right, based on the deed of sale, to claim occupation. This
‘broadening’, it was contended meant that
the applicant’s
claim could be defeated by the respondents demonstrating an
extinction of such contractual right. In support
of this construction
to be placed upon the case, the remarks of Cameron JA in
Street
Pole Ads Durban (Pty) Ltd & Another v Ethekweni
Municipality
[2008] ZAGPHC 33
;
2008 (5) SA 290
(SCA)
at
[14]
–[16] were invoked:
“
[14]
On appeal SPA urged that the High Court should not have engaged with
the municipality's counter-application. SPA had gone to
court solely
to seek spoliatory relief: the orders sought in paras 1.1 and 1.3 of
its notice of motion constituted merely adjunct
relief necessary to
restore SPA's position. It did not go further and seek an order
declaring it had a right of possession. The
references to the main
agreement and the adoption agreement in its prayers merely alluded to
facts from which the relief it claimed
stemmed. It was therefore not
open to the municipality to challenge the adoption agreement in these
proceedings.
[15]
This argument invokes the principle that an offending respondent in a
spoliation application is generally not allowed to contest
the
spoliated applicant's title to the property. That is because good
title is irrelevant: the claim to spoliatory relief arises
solely
from an unprocedural deprivation of possession. There is a
qualification, however, if the applicant goes further and claims
a
substantive right to possession, whether based on title of ownership
or on contract. In that case 'the respondent may answer
such
additional claim of right and may demonstrate, if he can, that
applicant does not have the right to possession which it claims'.
This is because such an applicant 'in effect forces an investigation
of the issues relevant to the further relief he claims. Once
he does
this, the respondent's defence in regard thereto has to be
considered.'
[16]
The qualification applies here. SPA's application sought classically
spoliatory relief in demanding the restoration of the
posters the
municipality had despoiled (para 1.2). But, as Nicholson J pointed
out, its claim went further. It pressed for an interdict,
not
directed only to the despoiled property, but in wide terms embracing
all the 'various street poles in the Ethekwini metropolitan
area'
covered by the disputed agreements. That claim spoiled for a fight
about its title to those poles, and it was this fight
in which the
municipality was entitled to and did engage.”
12.
The
respondents’ contention fails on the facts. A fair reading of
the spoliation application leads to a conclusion that the
applicant
did no more than allude to the contract between himself and the
respondents to describe how he came to be in possession
longa
manu
,
ie, that the possession was ‘juristic’, he having not
been in physical occupation, and why he never surrendered possession.
Such a description does not, by its presence, imply the invoking of a
cause of action based on the contract. Moreover the relief
sought was
purely related to spoliation. The respondents’ answer in the
spoliation application does not invoke this idea,
and significant by
its absence is a counter-claim by the respondents to confirm a
cancellation and seek an eviction. The
probable reason for its
absence is the irrelevance of such a case to resist a spoliation
application. (See
Yeko
v Qana 1973(4) SA 735 at esp 739E-F
)
As is manifest from the passages in
Street
Pole Ads,
the two cases are distinguishable, because, among other aspects, in
Street
Pole Ads
there was an invocation of a right which the applicant had sought to
protect by an interdict and in the present case, spoliation
alone is
invoked as regards his access to the premises and the de fact seizure
of his rental money.
13.
The
remedy of spoliation, the
mandament
van spolie
,
provides for an especially specific and limited relief. Its function
is to address swiftly an unlawful act of dispossession and
as such it
an important instrument to effect the Rule of law. The remedy decides
nothing else but to reverse unlawful dispossession.
The elements are
twofold: possession and wrongful deprivation. Because of its
intrinsic nature it will usually be of use only when
implemented at
once. Continued deprivation of the thing because of a pending appeal
renders the remedy pointless. As long ago as
Pretoria
Racing Club v Van Pietersen
1907 TS 687
at 697,
Smith J recognised the conundrum. It was held:
“
We
were pressed on behalf of the respondent to say that the order was
interloctory, from a consideration of the consequences which
would
follow if an appeal from it was allowed. It was pointed out that if
an appeal from a spoliation order is allowed the result
will be to
keep the matter in suspense so long that the remedy may become
useless. With regard to this argument I would say, in
the first
place, that if the order is in its nature a final order, the Court
would not hold it to be otherwise merely because its
execution might
be stayed, and the remedy granted by it be delayed. In the second
place, the inconveniences spoken of do not seem
to me to arise from
the fact that an appeal from the order is allowed, but from the
staying of execution of the order”
14.
Thus,
a spoliation order is indeed appealable. However, for the reasons
recognised in
Pretoria
Racing Club
,
there are likely to be few practical examples where an application to
implement a spoliation order immediately, in terms of section
18 of
the SCact, would not be well founded. The solution to the legitimate
concern about a useless order is determined by an evaluation
of the
effect
of deprivation not by the
nature
of the relief. A good illustration of circumstances where the effect
of waiting out the appeal process without harm occurred is
Mankowitz
v Loewenthal 1982(3) SA 758 (AD).
In that matter, a spat between former lovers, the valuable paintings
of one party were held to have been spoliated by the other
from the
former’s home where she was resident at the time of the
dispossession. The spoliator appealed, lost again, and was
thereupon
ordered to give up possession. The case turned on the question of
proof of possession.
15.
The
ultimate test that the application must satisfy, as expressed in
Incubeta
at [16] is:
“…
.
First, whether or not 'exceptional circumstances' exist; and Second,
proof on a balance of probabilities
by the applicant of
·
the
presence of irreparable harm to the applicant/victor, who wants to
put into operation and execute the order;
·
and
the absence of irreparable harm to the respondent/loser, who seeks
leave to appeal.”
16.
In
my view the facts described evidence the ‘exceptional
circumstances’ contemplated by section 18(2). Plainly,
the applicant shall suffer irreparable harm if the order is not
implemented, because the loss of income stream from his tenants
will
be lost and in turn his own grip on the right to occupy shall be put
at material risk. Moreover, if the appeal fails,
the prospects
of recovering rental from the notionally defaulting tenants is
practically worthless. The applicant might then sue
the respondents
for interfering in his contractual entitlements but that would mean
further litigation and risk. The prevention
of the harm of being
starved of funds required now cannot suitably be repaired ex post
facto.
17.
By
contrast, the high point of any argument about harm that the
respondents might suffer, is the contention that as owners of the
property they are vulnerable to claims by the municipality for rates
and taxes if the applicant defaults on paying these charges.
In my
view this places the respondents in no different a position than any
landowner who is driven to evict a delinquent lessee
or illegal
squatter. Indeed, that predicament is intrinsic to any seller of
property on a deed of sale. The remedy for the respondents,
if
legitimately aggrieved about such a breach, is obvious: obtain an
order on proper grounds to cancel the agreement and secure
an
eviction order.
18.
The
respondents shall experience no harm at all should the order be
implemented pending an appeal, and should they choose, they
may
without waiting for the appeal process to exhaust itself, pursue any
contractual remedies which they believe they might have,
to wrest
back the property from the applicant.
19.
An
order is made thus:
19.1.
The
order of Modiba AJ of 22 May 2015 shall be implemented pending any
application for leave to appeal or appeal that is prosecuted.
19.2.
The
order shall be satisfied within three days of service of the order.
19.3.
The
applicant is given leave to approach the court on these papers duly
supplemented, on 48 hours’ notice to the respondents
or their
attorney, to obtain further relief if satisfaction of the order has
not occurred.
19.4.
The
respondents shall bear the costs of this application.
__________________________________
ROLAND
SUTHERLAND
Judge
of the High Court,
Gauteng
Local Division, Johannesburg.
Hearing:
29 July 2015
Judgment:
31 July 2015
For
Applicant:
Attorney
R Zimmerman,
of
Rael & Taitz
For
respondents:
Adv
S Bunn,
Instructed
by Nolans Inc