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[2016] ZAGPJHC 383
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Tri-Star Construction (Pty) Limited v Mehboob Adam Parrow (Pty) Limited (27918/2016) [2016] ZAGPJHC 383 (19 August 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Case
No: 27918/2016
In
the matter between:
TRI-STAR
CONSTRUCTION (PTY)
LIMITED
Applicant
and
MEHBOOB
ADAM PARROW (PTY)
LIMITED
Respondent
Case
Summary: Spoliation – Mandament van spolie - Builder –
whether in possession or voluntarily abandoned possession
–
whether deprived of possession without acquiescence and consent -
Application for mandament van spolie granted.
JUDGMENT
MEYER,
J
[1]
This is an urgent application in which the applicant, Tri-Star
Construction (Pty) Ltd (Tri-Star), seeks final relief by way
of the
mandament van spolie
against the respondent, Mehboob Adam
Parrow (Pty) Ltd (MAP). The matter is urgent.
[2]
MAP is the owner of an immovable property described as ‘remainder
erf 113, Rosebank, Johannesburg,’ on which a sectional
title
development called ‘The Caversham’ has been constructed
(the property). The development comprises 13 residential
units. MAP is the developer and Tri-Star the builder that has
been a sub-contractor to the main contractor, Vanderbilt Construction
(Pty) Ltd (VC). Tri-Star commenced with the construction of the
development during March 2015 and achieved practical completion
on
Friday, 1 July 2016. It has not been fully paid as a result of
a dispute between MAP and VC. Tri-Star asserts that
it enjoys a
lien over the property. The validity of Tri-Star’s
assertion need not presently be decided.
[3]
Tri-Star avers that it was unlawfully deprived of possession of the
property on Saturday morning, 13 August 2016. MAP,
on the other
hand, avers that Tri-Star relinquished possession of the property on
Friday, 1 July 2016, when practical completion
of the development was
achieved. The principles relating to the
mandament van
spolie
are trite. Tri-Star needs to prove that it was in
peaceful and undisturbed possession (physical possession and the
intention
to possess) of the property on 13 August 2016 when the
alleged spoliation took place and that it was unlawfully ousted from
that
possession. (See
Yeko v Qana
1973 (4) SA 735
(A),
at 739G.)
[4]
In its founding affidavit Tri-Star states that its possession of the
property is clear from the following: it has completed
construction on the property but has not handed over possession of
the property to MAP; its representatives have at all relevant
times been physically present on and in control of the property;
its construction equipment is still on the property;
it
continues to clean the building and perform routine maintenance on
the property; and it is the only entity that has possession
of
all the keys to the building on the property. Tri-Star handed
keys to the two units to the principal agent who signed
an
acknowledgment that ‘[k]eys handed over to the owner to allow
the storage of furniture only’ and a tenant of one
unit who
signed an acknowledgement of Tri-Star’s lien and on the express
understanding that Tri-Star does not relinquish
possession of the
unit.
[5]
In response, MAP states that: ‘[a]s appears from the
emails sent by Tri-Star on 1 July 2016, Tri-Star handed the
site to
MAP at that time’; since 1 July 2016, Tri-Star has only
attended at the property to attend to post-completion
issues;
the only equipment of Tri-Star that is on the property are ‘three
wheel barrows, a pallet jacket and a ladder’;
Tri Star
continues to clean the building and perform maintenance ‘not as
possessor, but in order to discharge its post-practical
completion
obligations in the ordinary course’; ‘Tri-Star
has keys not in order to keep possession of the
property, but because
it installed the locks in the course of construction’ and
that ‘Tri-Star has handed over
keys as and when required, as
appears from its email of 1 July 2016’.
[6]
It is necessary to contextualise Tri-Star’s email of 1 July
2016 on which MAP essentially relies in asserting that Tri-Star
relinquished possession of the property at the time of that email.
In an email dated 13 June 2016, Tri-Star advised MAP in
no uncertain
terms, thus:
‘
Please be very sure that we
will retain possession and exercise our lien if we are not paid by
end of June.’
Tri-Star
was not paid by the end of June.
[7]
In an email dated 30 June 2016 at 3:50 Tri-Star’s Mr N Hagen
advised MAP’s Mr F Moosa:
‘
Tri Star work hours are as
follows,
Monday to Friday 07.00 to 16.00.
Saturday and Sunday site closed.
Please inform Estate Agents and Owners
of work hours and that there will be no access to the complex over
the weekends.’
The
email was forwarded to Ms MR Gibson, who is an attorney and employee
of MAP, and she responded to Tri-Star’s Mr Hagen
as follows on
1 July at 12.48:
‘
There is no basis in law or
otherwise for you to withhold access to the property.’
At
1:41 MAP’s Mr F Moosa also responded as follows:
‘
. . . PGP [Pam Golding
Properties] are having a show day this weekend so it would not be
convenient to have the place locked up!
This certainly detracts
from having all the units sold ASAP which is MAPDEV’s stated
objective! Please reconsider or
make arrangements accordingly.’
At
14.21 Tri-Star’s Mr Hagen responded to MAP’s Ms Gibson,
and Mr Moosa was also copied:
‘
Working hours Monday to Friday
07.00 16.00.
We are not required to work over the
weekend.
Security has not been arranged by the
Developer.
For safety and security the site will
be locked.’
[8]
During that email exchange, also on 1 July, at 12:52, Tri-Star’s
Mr M Williams sent an email to MAP’s Mr Moosa,
which email was
inter alia
also copied to Tri-Star’s Mr Hagen and is the
email on which MAP relies in asserting that Tri-Star relinquished
possession
of the property (the 1 July email). It reads:
‘
We have been issued PC which
means the security and insurance becomes the clients responsibility
now. Please find all relevant
correspondence regarding our
de-establishment as well as quotes forwarded to you and George in
advance.
Please feel free to talk to the
security company direct.
Nick,
Please arrange for the keys for the
show unit to be given to Farhaad [Mr Moosa].’
[9]
The meaning which MAP ascribes to the 1 July email is not supported
by its clear wording or in the context of the email exchange
between
the parties. The 1 July email records that a PC (certificate of
practical completion) has been issued and notes the
consequence of
that as being ‘that the security and insurance becomes (sic)
the client’s responsibility now’.
When this email
is read in context it is plain that neither Tri-Star nor MAP
understood the issuance of the PC as resulting in
Tri-Star losing
possession. Tri-Star asserted its possession and physical
control of the property before and after the 1
July email. The
1 July email does not evince any intention on the part of Tri-Star to
relinquish control or possession of
the property. Tri-Star’s
other emails on 13 June, 30 June and 1 July show that it had no
intention of abandoning possession
on 1 July. It intended to
retain possession until it gets paid.
[10]
On 1 July MAP called on Tri-Star to hand over the keys to all the
units on the property. It refused to do so. It retained
the
keys and merely handed a set of keys to the show unit for purposes of
the show day. Tri-Star had carried the work to
practical
completion by 1 July and at that stage ‘possession of the keys
was equivalent to possession of the building and
a temporary absence
would not be taken as an abandonment.’ (
Per
Heher
JA in
Wightman t/a JW Construction v Headfour (Pty) Ltd and
another
[2008] ZASCA 6
;
2008 (3) SA 371
(SCA), para 26.) Furthermore, as a
matter of admitted fact, post 1 July Tri-Star’s representatives
continued to attend
at the property, it retained a few items of
equipment on the property and it continues to clean the building and
perform maintenance.
On the objective evidence, and
irrespective of the various disputed issues of fact, it is clear that
Tri-Star’s physical
possession of the property was not lost on
1 July 2016 and it intended to retain possession until it gets paid.
[11]
I now turn to the question whether MAP unlawfully spoliated
Tri-Star’s possession on Saturday, 13 August 2013.
It was
held in
Wightman
,
para 27, that-
‘
[v]iolence
or fraud is not an essential element of dispossession provided the
act is against the consent of the person despoiled
and illicitly:
Nino Bonino v De Lange
1906
TS 120
at 122. By ‘illicitly’ I understand ‘in
a manner which the law will not countenance’: cf
R
v M
1949 (4) SA 975
(N) at
977.’
[12]
A particularly apposite case is
Stocks Housing (Cape) (Pty) Ltd v
Chief Executive Director, Department of Education and Culture
Services, and others
1996 (4) SA 231
(C). There the
contractor was given occupation of a building site on which a school
was to be erected. Its employer
terminated the contract.
According to the contractor all its employees were ordered to vacate
the site and that anyone remaining
on site would be arrested, which
the contractor’s employees, sub-contractors and their employees
did. These allegations
were denied. Rose Innes J held
that there had been an illicit dispossession and reasoned as follows
(at 240B-D):
‘
The element of unlawfulness of
the dispossession which must be shown in order to claim a spoliation
order relates to the manner
in which the dispossession took place,
not the alleged title or right of the spoliator to claim possession.
The cardinal
enquiry is whether the person in possession was deprived
thereof without his acquiescence and consent. Spoliation may
take
place in numerous unlawful ways. It may be unlawful
because it was by force, or by threat of force, or by stealth, deceit
or theft, but in all cases spoliation is unlawful when the
dispossession is without the consent of the person deprived of
possession,
since consent to the giving up of possession of property,
if the consent is genuinely and freely given, negates the
unlawfulness
of the dispossession.’
[13]
Tri-Star states that it came to its knowledge during the course of
the week beginning 8 August 2016 that MAP had advised prospective
residents that the keys to each unit had been lost and that they
should employ a locksmith to open the units and change the locks.
Tri-Star, accordingly, employed its own security team at the property
‘to protect its possession given the underhanded tactics
employed by [MAP] to undermine it.’ Tri-Star also changed
any locks that had been tampered with back, it changed the
locks for
the two show units and it locked the building more securely.
Security personnel employed by it have been on the
property since 10
August 2016.
[14]
It is undisputed that on Saturday, 13 August 2016, MAP called the
assistance of the police to the property, informed them that
Tri-Star’s representatives were trespassing on the property and
that Tri-Star’s representative, Mr Hagen, and its security
guard then left the property. The facts surrounding the
involvement of the police are in dispute. MAP alleges that
the
police explained to its representative, Ms Gibson, that they would
not become involved and that the parties must sort out the
matter
between themselves. She infers that Tri-Star’s
representative, Mr Hagen, and its security guard departed
voluntarily. Tri-Star, on the other hand, alleges that the
police insisted that its representatives leave, and they threatened
that its security guard would be arrested if he did not leave.
Mr Hagen was concerned about the safety and well-being of
the
security guard and only asked him to leave out of this concern.
[15]
On Ms Gibson’s version (so she implies), she called the police
to evict Tri-Star’s security guard, they arrived
and refused to
assist, and then Tri-Star’s representative voluntarily departed
and sent the security guard home. This
is unlikely and directly
contrary to the repeated correspondence in which Tri-Star has
asserted its possession in order to maintain
its alleged lien.
But I need not consider whether to reject MAP’s allegations on
this issue as ‘so far-fetched
or clearly untenable that the
court is justified in rejecting them merely on the papers’ (see
Wightman
para 12), because MAP’s account falls short of
showing acquiescence by Tri-Star in abandoning possession. In
order to
establish a voluntary abandonment of possession, MAP needs
to establish that a duly authorised person abandoned possession on
behalf
of Tri-Star (
Stocks
pp 240-241). There is no
allegation on behalf of MAP that anyone on behalf of Tri-Star with
authority to do so agreed to
the handing over of the property.
[16]
The undisputed evidence shows unequivocally that there was never an
intention by Tri-Star to voluntarily surrender possession.
Tri-Star wrote a letter of demand the very next morning, protesting
the spoliation. It then launched this application that
evening. Moreover, prior to the spoliation Tri-Star asserted
that it has a lien over the property and that it intends to
retain
possession of the property until it is paid and it implemented
measures to protect its continued possession.
[17]
Finally, the matter of costs. Tri-Star seeks a punitive costs
order against MAP. In all the circumstances of this
case I am
of the view that a deviation from the ordinary rule that the
successful party is awarded costs as between party and party
is not
warranted.
[18]
In the result the following order is made:
(a) The forms and service
provided for in the rules of this court are dispensed with and this
application is disposed of as one
of urgency in terms of rule
6(12)(a).
(b) The respondent is to
immediately restore possession of the property described as erf 113,
Rosebank, Johannesburg, on which ‘The
Caversham’
development has been constructed, to the applicant.
(c) The respondent is to
pay the costs of this application.
P.A.
MEYER
JUDGE
OF THE HIGH COURT
Date
of hearing: 16 August 2016
Date
of judgment: 19 August 2016
Counsel
for applicant: D Watson
Instructed
by: Webber Wentzel, Sandton, Johannesburg
Counsel
for respondent: C De Villiers-Golding
Instructed
by: Keller Snyman Schelhase, Gardens, Cape Town
C/o
Smit Sewgoolam Inc, Saxonwold, Johannesburg