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[2010] ZAGPPHC 137
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Mhlongo and Another v Monsieur and Another (52197/10) [2010] ZAGPPHC 137 (4 October 2010)
NOT
REPORTABLE
I
N
THE NORTH GAUTENG HIGH COURT,
PRETORIA
REPUBLIC OF SOUTH AFRICA
CASE
NO:52197/10
DATE:
04/10/10
In
the matter between:
LUNGA
SIZA
MHLONGO
...........................................................................
First
Applicant
LINDA
MSIPA
...............................................................................................
Second
Applicant
and
STENGIE
MONSIEUR
.................................................................................
First
Respondent
BIRDSEYE
LUXURY LODGE
CC
............................................................
Second
Respondent
JUDGMENT
TUCHTEN
J
:
1.
The applicants applied urgently for a spoliation order in relation to
the premises called BirdsEye Luxury Lodge, an accommodation
establishment at 79 Allan Road Glen Austin, Midrand. They contend
that they were unlawfully deprived of their possession of the
premises by the first respondent acting either personally or as the
agent of the second respondent.
2
.
The
matter came before me in the urgent court on 23 September 2010. I
could not decide the matter on the papers and directed that
evidence
be heard. The evidence was taken on 24 and 29 September 2010. After
argument I granted an order as follows:
1
.
The
respondents are directed immediately to restore to the applicants
possession of both the entire premises called BirdsEye Luxury
Lodge,
79 Allan Road Glen Austin, Midrand ("the premises) and the
business of an accommodation establishment conducted on
the premises
("the business");
2
.
The
respondents are directed immediately to restore to the applicants a
set of keys to the premises and the business in all respects
identical to the set of keys appropriated by the first respondent on
1 September 2010;
3
.
Subject
to 4 below, the first respondent shall be entitled to exercise
possession of the premises and the business jointly with
the
applicants;
4
.
The
applicants may on reasonable notice to the respondents approach the
court on the same papers, supplemented as they be advised,
to vary
the order in 3 above.
5
.
The
respondents must pay the costs of this application, jointly and
severally.
3
.
When
I
gave
the order, I said that I would deliver written reasons on 4 October
2010. My reasons follow. The applicants, Anthony Nkata,
the first
respondent, Chiza Banda and Mrs Lerato Rosinski gave evidence before
me. There was no discovery prior to the evidence
and many of the
documents handed in took the other side by surprise. The case stood
down from time to time to enable counsel to
take instructions. On one
issue, to which I shall return, the respondents did not have enough
time to prepare their case. On other
issues, documents probably exist
but due to the urgency were not produced without any fault on either
side. I took all this into
account in my evaluation of the evidence.
4.
The first respondent is the widow of the owner of the premises and
one of his intestate heirs. The deceased, in his lifetime
the owner
of an ammunition business and a police reservist, was murdered in
2009. In November 2009, the executor gave the first
respondent
limited powers to deal with the premises pending the winding up of
the deceased estate. She prepared a draft lease of
the premises under
which a lessee would acquire the right to operate the accommodation
business on the premises for a year at a
rental of R26 500 payable in
advance. The executor would not approve a lease for so long a period
but authorised the first respondent
to lease the premises out on this
basis from month to month. It was not suggested that the applicants
were aware of the restrictions
on the authority of the first
respondent so to deal with the premises.
5
.
The
applicants were introduced to the first respondent and in about April
2010 came onto the premises and were participants with
the first
respondent in the administration of the business. The applicants put
a substantial sum of money into the business by
way of the purchase
of appurtenances and refurbishment. The terms on which the applicants
would came onto the premises and into
the business were not settled
at the outset and a prolonged period of negotiation ensued.
6
.
In
early June 2010, the parties agreed to operate the business as a
partnership for the duration of the World Cup, ie from 11 June
to 11
July 2010. The applicants produced a written partnership agreement
but the first respondent says her signature on the partnership
agreement was forged. The first respondent says that the only basis
on which the applicants came onto the premises was under the
partnership arrangement, which she says was verbal. The applicants on
the other hand say that the partnership was to operate for
the period
of the World Cup only and that before and after the World Cup the
applicants would be the first respondent's tenants
with the right to
operate the business without reference to the first respondent except
that during the initial stages of their
tenancy, the first respondent
would act as a consultant, giving them advice and guidance because
they were new to this kind of
business.
7
.
The
applicants say that on about 14 August 2010 the first respondent
finally signed the lease drafted by her but as an interim measure
pending the drafting of a comprehensive final lease. The first
respondent says that here again the signature on this interim lease,
which is not dated, is a forgery. The first respondent agrees with
the applicants that there were negotiations toward the conclusion
of
a formal lease but, as I have said, denies that there was any
relationship of landlady and tenants created pending the conclusion
of these negotiations.
8
.
The
question whether the first respondent signed the partnership
agreement or the interim lease cannot be decided in these
proceedings,
or at least at this stage, because the first respondent
has not had a fair opportunity to have the handwriting on the
documents
analysed. Although
I
have
reached firm, albeit in this sense provisional, conclusions on the
credibility of the parties, I cannot in these circumstances
find at
this stage that the allegations of forgery have or have not been
established. I therefore decided this application on the
basis that
the applicants are presently entitled to no more than an order
restoring them to the premises as the partners in the
business.
9
.
Although
the first respondent placed in issue the allegation by the applicants
that they were in quiet and undisturbed possession
of the premises,
what she really means is that the applicants were not in possession
to her exclusion. It is on that basis that
I decided the case. By the
end of the case it was not disputed that the applicants were, before
their exclusion from the premises,
occupying as their personal
quarters two rooms on the upper storey of the house on the premises
1
and
that they had unrestricted access to the whole of the premises for
the purpose of administering the business.
10
.
During
August 2010 the relationship between the applicants and the first
respondent deteriorated drastically. After writing at least
one
courteous email to the respondent recording that the relationship
between them was one of landlady and tenants, the applicants
consulted their attorney. He wrote the first respondent a letter
dated 24 August 2010, attaching a copy of the interim lease and
recording the applicants' contention that they held the premises
under this lease.
They
had a four year old child and a young lady in matric living with them
on the premises.
11
.
The
reaction of the first respondent to the applicants' lawyer's letter
was to lay, during August 2010, a charge of forgery against
the
applicants with the Midrand police, claiming that her signature on
the interim lease had been forged. But it has not been established
that there was any reply to the applicants' lawyer's letter of 24
August 2010 or that the first respondent ever confronted the
applicants with this extremely serious allegation. The conclusion is
irresistible that at least from the time she received the
lawyer's
letter of 24 August 2010, the first respondent wanted the applicants
to leave the premises and worked toward making it
difficult for the
applicants to remain on the premises.
12
.
There
is a disturbing thread that runs through the evidence: that the first
respondent has some special influence with the SA Police
at Midrand,
possibly arising from the connections established by her late
husband. I have the uneasy feeling that the first respondent
is able
to use certain members of the police in Midrand to do her bidding.
Indeed, it was not disputed that when the second applicant
arrived,
as requested, in the company of police officers to remove certain of
her goods from the premises, the first respondent
refused her access
until "her" (ie the first respondent's) police arrived.
13
.
Round
about the same time that the forgery charge was laid, the supplies of
electricity and water to the premises were interrupted.
On 26 August
2010, the applicants hired a generator to supply them with
electricity at the premises for which they paid from their
own funds
the sum of R4 000. On 31 August 2010, the applicants obtained an ex
parte
order
against the first respondent in the Randburg magistrate's court under
case no. 23237/10 for the immediate restoration of water
and
electricity.
14
.
On
the same day, 31 August 2010, the applicants moved out of the
premises temporarily because of the lack of water. The second
applicant wrote a courteous but firm email setting out the facts in
this regard and pointing out that the applicants remained the
first
respondent's tenants.
15
.
The
first respondent denies that the water was cut off with malicious
intent. She says that the water was cut off because there
were
pressure problems and the plumbers needed to cut the water off for a
short period while they dealt with the problem. However,
the evidence
of Anthony Nkata is that the first respondent brought in men who cut
off the supply of water.
16
.
On
1 September 2010, matters came to a head. The first applicant went to
the premises in order, he says, to pick up the computer
which was
being used in the administration of the business and take it to a
friend where, making use of the friend's electricity
supply, he could
work on the administration of the business. The applicants and the
first respondent agree that there was a desktop
computer belonging to
the first respondent on the premises which had been used in the
administration of the business, that during
the World Cup period this
computer had crashed and could no longer be used and that the
applicants then made available to the business
a desktop computer
bought by the second applicant from her employer on 14 April 2010. On
1 September 2010 the second applicant's
computer was being used in
the administration of the business.
17
.
The
applicants say that when the first respondent's computer crashed, it
was removed from the office and placed in the storeroom.
The first
respondent says that her, crashed, computer remained in the office.
18
.
The
first applicant says that after finishing his work he drove back to
the premises with the computer in his car to return it to
its place
in the office in the premises. When he arrived, he said, he found the
police there. They said they were there to investigate
a case of
housebreaking. The first applicant says he took the police through
the premises to show that nothing untoward had happened
but the
police said that they had to await the arrival of the first
respondent, who was the complainant. The police did not confront
the
first applicant with any charges until the first respondent arrived.
19
.
The
first respondent had been shopping at a local shopping centre with
Mrs Rosinski, her friend and occasional chef at the premises.
She did
not tell Mrs Rosinski about the alleged forgery or that the police
had been summoned to the premises. If Mrs Rosinski's
recollection is
accurate, it would appear that the first respondent was not even
aware that the police were at the premises because
she took no steps
to cut her shopping trip short and hasten back to the premises.
20
.
There
is a contradiction in the evidence in this regard: the first
respondent says that she summoned the police because she had
received
a report from Chiza Banda, the gardener, guard and gatekeeper at the
premises that the first respondent had stolen the
first respondent's
computer and a microwave oven.
2
21
.
Banda,
on the other hand, says that it was he who summoned the police. He
said that he had been "forced" to load the computer
and
microwave oven into the first applicant's car. He was quite unable to
explain how he had been so forced.
22
.
The
first respondent eventually arrived at the premises and accused the
first applicant of stealing her computer. The first applicant
was
arrested. He said that the police would not listen to his version,
saying that they were there for the first respondent and
that the
first applicant should tell the magistrate his story in due course.
The first applicant and taken to the Midrand police
station where he
signed an official SAPS disposal authorisation authorising the police
to hand the computer back to the first respondent.
The first
applicant says that he thought the document was required to enable
the first respondent to take the computer back to
the premises rather
than leave it at the police station but the document authorises the
police in its terms to restore possession
of the computer to the
first respondent.
23
.
The
police did a particularly shoddy job of investigating the first
respondent's charge. They did not identify the computer on the
disposal receipt by reference to its make or serial numbers and every
indication is that they were not interested in the first
applicant's
version. It ought not to be necessary to state the obvious: that it
is the duty of the police to investigate a charge
that has been laid,
not to act as advocate or enforcer for the complainant.
24
.
This
is highly relevant because the first respondent's charge is that the
first applicant stole her crashed computer while the first
applicant
says that the computer which he took - and returned - was that
belonging to the second applicant. Had the computer seized
by the
police been identified as it should have been, this issue would never
have arisen. Banda and Mrs Rosinski were adamant that
the computer
taken by the first applicant belonged to the first respondent but
they were equally adamant that the "stolen"
computer was
functional at the time the first applicant took it away and that
after it was returned, it continued to be used in
the administration
of the business. Mrs Rosinski confirmed that there was only one
desktop computer in the office at any given
time.
25
.
I
formed clear impressions of the various witnesses who testified
before me. I found the applicants both to be cultured, intelligent,
honest witnesses but that they lacked the quality of being
commercially "streetwise". They naively parted with large
sums of money before the precise nature of their relationship with
the first respondent had been fully documented and without any
adequate security for their investment. But they documented their
dealings with the first respondent in lucid emails written by
the
second applicant and used the machinery of the law to enforce what
they regarded as their rights, rather than the enforcement
machinery
available on the streets.
26
.
I
was similarly impressed by the evidence of Anthony Nkata. I found him
to be honest and straightforward in his account of the arrival
of
men, in a vehicle which he says looked like those used by the water
authorities, who in the company of the first respondent
turned off
the supply of water to the premises and then left.
27
.
I
was most unimpressed by the first respondent as a witness. She
appeared to me to be an imperious, wilful, even arrogant person
who
reacts in an aggressive but underhand manner when she does not get
her own way. I believe that she is quite prepared to concoct
evidence. I give two examples of this:
28
.
First
example
:
It emerged during the evidence in chief of the first respondent that
it is her case that the applicants
voluntarily
gave
up
possession of the premises and business after an altercation between
the first respondent and the second applicant on the day
that guests
belonging to an organisation called SASCO arrived to stay, The date
of the arrival of the SASCO guests was established
as being probably
22 August 2010. The first respondent says that during the altercation
the second applicant gave her 24 hours
notice of the termination of
their relationship and, by implication, her intention to vacate the
premises. She says that the first
applicant subsequently associated
himself with this 24 hours notice.
29
.
But
this crucial element of the first respondent's case, ie the 24 hours
notice, was never alleged in her answering affidavit. Nor
was it put
to either of the applicants. Her explanation for this was that she
told it to her former attorney but he left it out
of her affidavit.
I
reject
this explanation as untruthful and absurd. It of course does not
explain why the 24 hours notice version was not put to the
applicants
in cross-examination.
30
.
Moreover,
the probabilities are overwhelmingly against the first respondent's
24 hours notice version. The applicants had invested
a substantial
sum of money in the business and had, at the very latest by 22 August
2010, no where else to live. Their actions
display a determination to
hold onto their possession of the premises and the business. The
emails admittedly addressed to the
first respondent showed a
determination on the part of the applicants to stay on the premises
and continue to run the business.
There is no indication at all that
the first respondent ever asserted her 24 hour notice version in
correspondence even though
she says she discussed the lawyer's letter
of 24 August 2010 with her lawyer and could have sent emails to the
second applicant
setting this out.
3
Finally, in this regard, there is no suggestion that the applicants
took any steps in the period between 22 August and 1 September
2010
to implement their alleged decision to vacate or that the first
respondent ever raised with them the question of their vacating
or
ever demanded that the applicants vacate as the first respondent
claims they had said they would.
31
.
I
accordingly find that the 24 hours notice version of the first
respondent was a concoction, ie a deliberate lie designed to mislead
the court.
32
.
Second
example
:
The first respondent made considerable play in evidence in chief of
the fact that the interim lease did not reflect her identity
number.
She said that she would not have signed such a lease unless it
reflected her identity number. On questioning by the court,
she was
adamant that neither of the respondents knew her identity number,
unless they got it from the Department of Home Affairs,
something
which may safely be ruled out.
33
.
But
when it emerged that the partnership agreement, which the first
respondent says also contains her forged signature, did reflect
her
identity number, the first respondent came up with the version in the
witness box that she recalled a specific incident when
the second
applicant became aware of the first respondent's identity number. She
had, the first respondent said, simply forgotten
this incident. I
reject this evidence, similarly, as a concoction, ie a deliberate lie
designed to mislead the court.
34
.
The
witnesses Banda and Rosinski were called in the main to corroborate
the first respondent's version in regard to the alleged
theft of the
computer. 1 find on a balance of probabilities that they were
schooled, rather ineptly, in what they were to say in
this regard and
that each of them conspired with the first respondent to give false
evidence in an attempt to persuade the court
that the first applicant
was a thief. But the allegations of theft against the first applicant
are literally incredible. I say
so for the following reasons:
34.1
It
is established beyond doubt that the computer which the first
applicant took away from - and returned to - the premises was a
functional
desktop
computer. The only other desktop computer on the premises was that
belonging, on the evidence, to the first respondent.
But the computer
belonging to the first respondent had crashed: it was not functional.
That was why the second applicant's computer
was used in the
business. This conclusion in my judgment destroys the theft
allegation in regard to the computer.
34.2
Furthermore,
the probabilities are overwhelmingly against the proposition that the
first applicant would wantto misappropriate the
first respondent's
computer. A crashed desktop computer is of little or no value. And if
the first applicant
did
want
to steal it, he would hardly have drawn attention to himself by
getting Banda to load it into the first applicant's car. Nor
would he
have brought it back to the premises.
34.3
The
allegation of theft, as formulated by Banda, was that the first
applicant had stolen both the computer (from the office) and
the
microwave oven (from the kitchen). Both these items, so says Banda,
were loaded by Banda under compulsion on the part of the
first
applicant. But the alleged theft of the microwave oven was never
asserted in the first respondent's answering affidavit or
put to the
applicants in cross-examination. The explanation of the first
respondent for the failure to mention the microwave oven
was that she
had forgotten about the theft of the microwave oven until she came to
give evidence. I reject this explanation as
a concoction.
35
.
I
accordingly conclude that the theft charges in relation to the
computer and the microwave oven are a fabrication and part of a
process designed by the first respondent to force the applicants from
the premises. I find that the interruption of the electricity
and
water supplies were, on the probabilities, designed by the first
respondent to achieve the same end. I find significant in
this regard
the fact that the first respondent did not ever tell the applicants
that the interruption of the water supply was merely
for a short
period to enable her plumbers to improve the water pressure.
36
.
At
the time the police were on the premises on 1 September 2010, the
first respondent came into possession of the keys which had
been
provided to the applicants for the purpose of gaining access to the
premises and administering the business, The applicants
and the first
respondent were in agreement that the bunch of keys provided to the
applicant enabled them to gain access to every
room on the premises.
The first applicant says that the keys were taken from him by the
police, who then handed them to the first
respondent. The first
respondent says that the first applicant voluntarily handed the keys
to her in a manner consistent with the
declared intention of the
applicants
on 22 August 2010 to abandon the business and the premises. Mrs
Rosinski says that the first applicant was in possession
only of two
keys and a gate remote control, which, says Mrs Rosinski, the first
applicant threw to or at the second respondent,
one at a time, while
at the same time saying to the first respondent that it had been
unnecessary for the first respondent to go
to these lengths because
the applicants had already told the first respondent they were
leaving. There is thus a sharp contradiction
between the evidence in
this regard of the first respondent herself and her witness, Mrs
Rosinski.
37
.
I
do not believe the respondents' versions in relation to how the first
respondent came into possession of the keys for the same
reasons that
I rejected the 24 hours notice version. It is further highly
improbable that the second applicant would have expressed
or
demonstrated any intention of giving up possession, especially in the
light of the email of the previous day in which the second
applicant
had asserted the applicants' intention of enforcing the terms of the
interim lease. I accordingly accept the first applicant's
version of
how the first respondent came into possession of the applicants'
keys.
38
.
It
follows from what I have said that I reject as false the evidence
that the applicants voluntarily gave up possession of the premises
and the business. They were literally locked out of the premises by
the first respondent. Indeed, the first respondent testified
that she
refused to allow the applicants to return to the premises because she
did not trust them. It follows from what I have
said that while
I
find
that the first respondent did indeed lock the applicants out of the
premises and accordingly the business, I reject as false
her
explanation for why she did so.
Spoliation
is the illicit deprivation, by whatever means, of the possession of a
thing enjoyed by a person. I find that the first
respondent did
indeed deprive the applicants, illicitly, of their possession of the
premises and the business and of the keys which
the applicants
together had possessed before the spoliation and which enabled the
applicants to gain access to all parts of the
premises. I granted a
spoliation order for this reason. However, It would be unfair to the
respondents to determine whether the
applicants are entitled to
occupy as lessees, ie to the exclusion of the first respondent,
before the first respondent has been
given a fair opportunity to
obtain expert evidence on this issue. The order therefore puts the
applicants back into the premises
and the business as partners rather
than as lessees. It appears from the first respondent's testimony
before me that the State
may be in the process of obtaining such
evidence for the purpose of the prosecution of the fraud and theft
charges laid by the
second respondent. But the first respondent is
not entitled to rely on the State to make her case for her. In my
view she must
take steps herself to obtain the necessary evidence and
she must do so promptly. On the other hand, it would not be fair to
the
applicants to close the door on their efforts to prove that they
are entitled to occupy as lessees. That is why I granted paragraph
4
of the order. Costs ought to follow the result of this case. Both
respondents opposed the application. That is why I granted
paragraph
5 of the order.
NB
Tuchten
Judge
of the High Court
4
October 2010
For
the applicant:
Attorney
A Christophorou
Instructed
by Biccari Boll Mariano Inc. Pretoria
Ref:
M Cohen/Ijn/RM3153
For
the respondent: Adv M. A Khunou
Instructed
by Ndumiso Voyi Inc. Midrand
Ref:
NP Voyi/MON9043
1
They
had a four year old child and a young lady in matric living with
them on the premises.
2
The
alleged theft of the microwave oven was never put to the applicants
or alleged in the first respondent's answering affidavit.
The first
respondent said, when she mentioned the microwave oven in evidence,
that she had previously forgotten that it had been
stolen.
3
The
allegation of forgery was made
to
the applicants
for
the first time in the answering affidavit. There is no suggestion
that the first applicant was accused of forgery on
1
September
2010.