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[2013] ZAECPEHC 33
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Afzal v Kalim (4165/12) [2013] ZAECPEHC 33; 2013 (6) SA 176 (ECP) (9 July 2013)
9
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE, PORT
ELIZABETH)
Case No. 4165/12
Date Heard: 27/6/13
Date Delivered: 9/7/13
Reportable
In the matter between:
IMRAN AFZAL
.................................................................................................
Applicant
and
MAHNAZ KALIM
..........................................................................................
Respondent
Mandament van
spolie
– dispute of fact – whether the Prevention of
Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998
applies.
JUDGMENT
PLASKET, J:
[1] It is common cause
that the applicant and the respondent, a man and a woman in the
throes of an acrimonious divorce, had not
lived together as husband
and wife for over three years when, on 15 December 2012, the
respondent returned from Cape Town and moved
into the house in Port
Elizabeth where the applicant was living. The applicant brought an
urgent application for a
mandament van spolie
and, on 18 December 2012, Smith J granted an order in
the following terms:
‘
1 That a
rule nisi do hereby issue calling upon the Respondent to show cause
at 09h30 on 29 January 2013 why the following order
should not issue:
1.1 That the Respondent be and is
hereby ordered to immediately vacate the property situated at 60
Westview Drive, Mill Park, Port
Elizabeth;
1.2 The Respondent be and is hereby
prohibited from interfering with the Applicant’s use and
enjoyment of the property in
question;
1.3 That in the event of the
Respondent failing to comply with prayer 1.1 and 1.2 above the
sheriff be and is hereby authorised
to enlist the services of the
South African Police in order to give effect thereto;
That the Respondent pay the costs of
this application.
2 That prayer 1.1, 1.2 and 1.4 above
act as an interim interdict pending the return day.’
The applicant now seeks
the confirmation of the rule nisi.
[2] Two defences have
been raised by the respondent. They are that she was entitled to
return to the house by virtue of an agreement
and that the provisions
of the Prevention of Illegal Eviction from and Unlawful Occupation of
Land Act 19 of 1998 (PIE) apply and,
because PIE was not complied
with by the applicant, his application is fatally defective and must
be dismissed.
[3] In order to determine
the first, factual, issue it is necessary to traverse the allegations
made by the parties in some detail.
I shall commence with those facts
that are either common cause or not disputed by the respondent.
[4] Both the applicant
and the respondent are medical doctors. They married, in accordance
with the laws of Pakistan, in 1993. Three
children were born of the
marriage. For most of 2009, the respondent was absent from the common
home in Port Elizabeth because
she found employment in East London.
On 10 November 2009, the applicant issued summons against the
respondent for divorce. That
action is still pending and is clearly
hard-fought and acrimonious.
[5] On 1 January 2010 the
respondent, who was no longer employed in East London, left Port
Elizabeth and moved to Cape Town. She
took the children with her.
There appears to have been little communication between the parties
since then, and they have been
involved in litigation concerning the
pending divorce and access by the applicant to the children.
[6] Subsequent to the
respondent leaving Port Elizabeth to live in Cape Town, the applicant
divorced her in terms of Islamic law
and re-married in terms of the
laws of Pakistan. I express no view on the effect of the divorce and
re-marriage in South African
law but I shall refer to the woman that
the applicant married after the divorce as his second wife. I do so
simply for the sake
of convenience.
[7] The applicant lived
in the house that is the subject matter of this dispute with his
second wife, a son by her and his mother.
At the time that he deposed
to the founding affidavit his second wife was pregnant and he stated
that the child would be born in
February 2013. I presume that this
has happened and that this child also resides in the house.
[8] On 15 December 2012,
the respondent and the children returned to Port Elizabeth. When the
applicant allowed them entry to the
house, the respondent moved into
the applicant’s bedroom and forced the applicant and his second
wife to vacate it. The applicant
and the respondent are co-owners of
the house. How this asset is to be dealt with appears to be a hotly
disputed issue in their
divorce proceedings. Their co-ownership of
the house is largely irrelevant in these proceedings, which are
concerned with possession,
rather than ownership.
[9] The applicant stated
that he had had little contact with the respondent after she had
moved to Cape Town. He had no idea that
she planned to return to Port
Elizabeth, much less that she intended to move into the house. He,
his second wife and his mother
were shopping on the afternoon of 15
December 2012 when he received a telephone call from the respondent.
She asked him whether
he wished to see the children and when he said
that he did, she informed him that she and the children were waiting
outside the
house. He assumed that the purpose of the visit was for
him to have access to the children and he allowed the respondent in
on
this basis. He states that ‘quite naturally, I expected the
Respondent to leave’.
[10] The respondent, on
the other hand, stated that she had moved to Cape Town in order to
further her medical studies. After completing
her studies she had
returned to the house in Port Elizabeth. She claimed that this had
been agreed between her and the applicant.
The agreement relied upon
is dealt with in the respondent’s answering affidavit in
response to an allegation made by the
applicant in his founding
affidavit to the effect that he had experienced difficulties in
exercising his right of access to the
children after the respondent
had moved to Cape Town, that he had launched an application to remedy
the problem and that he attached
the papers in that matter and
referred to, and incorporated into his founding affidavit, paragraph
6 of his affidavit in that matter.
Paragraph 6 of the access
application sets out the applicant’s averments in respect of
the respondent ‘surreptitiously’
moving to Cape Town with
the children, his attempts to prevent her from removing the children
from Port Elizabeth and the difficulties
he had experienced in
obtaining access to his children brought about, he said, by the
obstructive and uncooperative attitude of
the respondent.
[11] Her answer to all of
this was the following:
‘
The content
hereof is noted and I question the relevance that same has to the
present eviction application which is before the Honourable
Court;
which has arisen at the point in time when the Applicant was aware
that as per the agreement concluded between the Applicant
herein and
myself I would be returning to the matrimonial home together with the
children to restore the status quo which had existed
prior to my
beginning my studies in Cape Town, upon finalisation of my studies.’
[12] It is apparent that
the existence of an agreement is referred to in the vaguest terms.
The respondent does not say when or
where the agreement was entered
into, whether it was oral or written, the circumstances in which it
came about or what its full
and precise terms were. This is of
fundamental importance because the applicant’s cause of action
is that he had been in
peaceful and undisturbed possession of the
house when the respondent gained access to the house and wrongfully
deprived him partially
of his possession.
[13] Generally speaking,
in motion proceedings in which final relief is sought, factual
disputes are resolved on the papers by way
of an acceptance of those
facts put up by an applicant that are either common cause or are not
disputed as well as those facts
put up by the respondent that are in
dispute.
1
I have said that this
rule applies ‘generally speaking’ because there are
exceptions to it. As Harms DP said in
National
Director of Public Prosecutions v Zuma
,
2
the situation may be
different ‘if the respondent’s version consists of bald
or uncreditworthy denials, raises fictitious
disputes of fact, is
palpably implausible, far-fetched or so clearly untenable that the
court is justified in rejecting them merely
on the papers’.
[14] In
Wightman
t/a JW Construction v Headfour (Pty) Ltd & another
3
Heher JA dealt with the
way in which courts should consider the adequacy of a respondent’s
denial in motion proceedings for
purposes of determining whether a
real, genuine or bona fide dispute of fact had been raised. He
stated:
‘
[11] The
first task is accordingly to identify the facts of the alleged
spoliation on the basis of which the legal disputes are
to be
decided. If one is to take the respondents' answering affidavit at
face value, the truth about the preceding events lies
concealed
behind insoluble disputes. On that basis the appellant's application
was bound to fail. Bozalek J thought that the court
was justified in
subjecting the apparent disputes to closer scrutiny. When he did so
he concluded that many of the disputes were
not real, genuine or bona
fide. For the reasons which follow I respectfully agree with the
learned judge.
[12] Recognising that the truth almost
always lies beyond mere linguistic determination the courts have said
that an applicant who
seeks final relief on motion must, in the event
of conflict, accept the version set up by his opponent unless the
latter's allegations
are, in the opinion of the court, not such as to
raise a real, genuine or bona fide dispute of fact or are so
far-fetched or clearly
untenable that the court is justified in
rejecting them merely on the papers . . .
[13] A real, genuine and bona fide
dispute of fact can exist only where the court is satisfied that the
party who purports to raise
the dispute has in his affidavit
seriously and unambiguously addressed the fact said to be disputed.
There will of course be instances
where a bare denial meets the
requirement because there is no other way open to the disputing party
and nothing more can therefore
be expected of him. But even that may
not be sufficient if the fact averred lies purely within the
knowledge of the averring party
and no basis is laid for disputing
the veracity or accuracy of the averment. When the facts averred are
such that the disputing
party must necessarily possess knowledge of
them and be able to provide an answer (or countervailing evidence) if
they be not true
or accurate but, instead of doing so, rests his case
on a bare or ambiguous denial the court will generally have
difficulty in
finding that the test is satisfied. I say “generally”
because factual averments seldom stand apart from a broader matrix
of
circumstances all of which needs to be borne in mind when arriving at
a decision. A litigant may not necessarily recognise or
understand
the nuances of a bare or general denial as against a real attempt to
grapple with all relevant factual allegations made
by the other
party. But when he signs the answering affidavit, he commits himself
to its contents, inadequate as they may be, and
will only in
exceptional circumstances be permitted to disavow them. There is thus
a serious duty imposed upon a legal adviser
who settles an answering
affidavit to ascertain and engage with facts which his client
disputes and to reflect such disputes fully
and accurately in the
answering affidavit. If that does not happen it should come as no
surprise that the court takes a robust
view of the matter.’
[15] In
Naidoo
& another v Sunker & others
4
Heher JA, after referring
to his judgment in
Wightman
,
stated that what he had said in that case about the adequacy of
allegations in answering affidavits for purposes of the
Plascon-Evans
rule
‘applies with equal force to a respondent who endeavours to
raise a special defence’.
[16] In my view, the
raising of the alleged agreement as a defence to the applicant’s
application is so inadequate, because
of the deficiencies that I have
alluded to in paragraph 12 above, that it cannot be said that the
respondent has raised a real,
genuine or bona fide dispute of fact.
[17] If I am wrong in
this respect, I am also of the view that when taken in the context of
the common cause and undisputed facts,
the respondent’s version
that an agreement was reached between her and the applicant that she
could return to the house is
palpably implausible, far-fetched and
untenable: it is belied by the fact that the respondent spent most of
2009 in East London;
that the applicant issued summons for divorce
against her towards the end of 2009; that he brought an urgent
application to try
to prevent her from removing the children from the
jurisdiction of this court and another for access to the children;
that he divorced
the respondent in terms of Islamic law; and that he
has re-married in terms of Islamic law. All of these facts point to
an irretrievable
breakdown in the relationship between the applicant
and the respondent from as early as 2009 that is incompatible with an
agreement
that the respondent could return to the house. The status
quo she refers to was, in fact, a situation in which she and the
applicant
no longer lived together as husband and wife. That being
so, I am able to reject her version on the papers that she and the
applicant
had agreed that she could return to the house. The defence
raised by her therefore fails.
[18] The
mandament
van spolie
protects
possession – it depends not on a right to possess but on the
‘fact of quiet possession’
5
–
and is premised
on the ‘fundamental principle that no man is allowed to take
the law into his own hands’ by dispossessing
another ‘forcibly
or wrongfully and against his consent’ of that person’s
property, whether it be movable or
immovable.
6
[19] In order to succeed,
an applicant for a
mandament
van spolie
is
required to establish two requirements: that he or she was in
possession of the property concerned and that he or she was
unlawfully
– i e without his or her consent and against his or
her will – deprived of that possession.
7
Furthermore, the
mandament
van spolie
is
available even when a person has only been dispossessed of part of
the property he or she possessed.
8
It is also, as a matter
of principle and logic, a remedy that can, in appropriate cases be
granted in favour of one spouse against
another.
9
[20] It is evident from
the applicant’s affidavit that he was in peaceful and
undisturbed possession of the house prior to
15 December 2012. It is
also clear that the respondent gained entry through a stratagem,
refused to leave and in fact took over
the main bedroom, which the
applicant and his second wife were forced to vacate. The applicant
has therefore established the requirements
for a
mandament
van spolie
.
[21] I turn now to the
second issue, namely whether the application is fatally defective
because it has not been brought in compliance
with PIE. Section 4(1)
of PIE provides:
‘
Notwithstanding
anything to the contrary contained in any law or the common law, the
provisions of this section apply to proceedings
by an owner or person
in charge of land for the eviction of an unlawful occupier.’
The remainder of the
section deals with the procedure for eviction applications. It is not
in dispute that this procedure was not
followed in this case.
[22] The word ‘evict’
is defined in s 1 of PIE to mean to ‘deprive a person of
occupation of a building or structure
. . . against his or her will’
and ‘eviction’ has a corresponding meaning. An unlawful
occupier is defined as
‘a person who occupies land without the
express or tacit consent of the owner or person in charge . . .’.
[23] The question as to
whether the
mandament
van spolie
is
available to an applicant when PIE applies was dealt with by
Selikowitz J in
City
of Cape Town v Rudolf & others
.
10
The learned judge, after
an extensive discussion of the purpose and interpretation of PIE
proceeded to say that to ‘permit
an applicant to use the
mandament to evict a person who has established a home on land and
who would otherwise qualify as an “unlawful
occupier”
would, as in the case of the other common-law remedies, overlook the
wording and purpose of PIE and would permit
the statute to be
undermined by a simple device’.
[24] In the passage that
I have cited, Selikowitz J makes it clear that the
mandament
van spolie
cannot
be used to circumvent the protection given to occupiers of homes by
PIE. The reason for this is that PIE has its origin in
s 26(3) of the
Constitution
11
which states:
‘
No one may
be evicted from their home, or have their home demolished, without an
order of court made after considering all relevant
circumstances. No
legislation may permit arbitrary evictions.’
PIE’s preamble
after first making reference to the property right in s 25(1) of the
Constitution, then also makes reference
to s 26(3). It thus applies
only in respect of buildings or structures upon land that are the
homes of unlawful occupiers, and
it does not cover the case of the
eviction of a person from a building or structure on land that is not
his or her home.
12
[25] A home is defined in
the
New
Shorter Oxford English Dictionary
as
the ‘place where one lives permanently, esp as a member of a
family or household; a fixed place of residence’.
13
In
Barnett
& others v Minister of Land Affairs & others
,
14
a case concerning
evictions from unlawfully constructed holiday cottages on the
Transkei Wild Coast, Brand JA stated:
‘
This leads
to the next question: can the cottages on the sites that were put up
by the defendants for holiday purposes be said to
be their homes, in
the context of PIE? I think not. Though the concept “home”
is not easy to define and although I
agree with the defendants'
argument that one can conceivably have more than one home, the term
does, in my view, require an element
of regular occupation coupled
with some degree of permanence. This is in accordance, I think, with
the dictionary meanings of:
“the dwelling in which one
habitually lives; the fixed residence of a family or household; and
the seat of domestic life
and interests” (see eg
The
Oxford English Dictionary
2 ed vol VII). It is also borne out, in my view, by the following
statement in
Beck
v Scholz
[1953] 1 QB 570
(CA) at 575 - 6:
“
The word
‘home’ itself is not easy of exact definition, but the
question posed, and to be answered by ordinary common
sense
standards, is whether the particular premises are in the personal
occupation of the tenant as the tenant's home, or, if the
tenant has
more than one home, as one of his homes. Occupation merely as a
convenience for . . . occasional visits . . . would
not, I think,
according to the common sense of the matter, be occupation as a
‘home’.”’
[26] Can it be said that
the house in issue in this matter was the respondent’s home? In
my view, it cannot be said that it
was. She had spent most of 2009
living in East London and returned to the house sporadically at best.
Fairly soon after the summons
for divorce was issued, she left for
Cape Town where she and her children resided in her own house,
purchased with funds advanced
to her by her family. She appears to
have returned to the Port Elizabeth house on only a few isolated
occasions of short duration.
By the time of her return to Port
Elizabeth, the house there was the family home of the applicant and
his second family.
[27] The respondent’s
connection with the house in Port Elizabeth was tenuous. From the
beginning of 2009, she had not occupied
it regularly and with any
degree of permanence. She cannot be said to have habitually dwelt in
the house for more than three years.
It is not, from her perspective,
her and her family’s fixed residence, much less the seat of her
domestic life. In these
circumstances, the house is not her home,
even if she is a co-owner of it. (That, as the applicant has
correctly stated in his
affidavit, is a separate issue that will be
dealt with in the divorce proceedings.)
[28] I conclude that PIE
does not apply to the circumstances of this case because the house in
respect of which the applicant seeks
the return of his possession
from the respondent is not her home. The applicant is entitled to the
confirmation of the rule nisi.
[29] The matter was
postponed on 25 April 2013 and the costs were reserved. A
postponement was required because the respondent filed
heads of
argument that day. In these circumstances, the respondent ought to
pay the costs of that day.
[30] In the result, the
rule nisi issued on 18 January 2013 is confirmed with costs,
including the costs of 25 April 2013.
_______________________
C Plasket
Judge of the High Court
APPEARANCES
Applicant: Mr N Mullins,
instructed by Cecil Kerbel Attorneys
Respondent: Ms B
Carruthers of Carruthers Attorneys
1
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634E-I.
2
National
Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009
(2) SA 277
(SCA) para 26. See too
Plascon-Evans
(note 1) at 634I-635D.
3
Wightman
t/a JW Construction v Headfour (Pty) Ltd & another
[2008] ZASCA 6
;
2008 (3) SA 371
(SCA) paras 11-13.
4
Naidoo
& another v Sunker & others
(126/11)
[2011] ZASCA 216
(29 November 2011) para 23.
5
Oglodzinski
v Oglodzinski
1976 (4) SA
273
(D) at 275B-C.
6
Nino
Bonino v De Lange
1906 TS
120
at 122.
7
Yako
v Qana
1973 (4) SA 735
(A)
at 739E-F;
Burnham v
Neumeyer
1917 TPD 630
at
633;
Nino Bonino v De Lange
(note 6) at 122.
8
Van
Rooyen & ‘n ander v Burger
1960
(4) SA 356
(O) at 363G-H;
Burger
v Van Rooyen & ‘n ander
1961
(1) SA 159
(O) at 160G-161C;
Bennett
Pringle (Pty) Ltd v Adelaide Municipality
1977
(1) SA 230
(E) at 233 A-B.
9
Oglodzinski
v Oglodzinski
(note 5) at
275A-276B.
10
City
of Cape Town v Rudolf & others
2004
(5) SA 39
(C).
11
Ndlovu
v Ngcobo; Bekker & another v Jika
2003
(1) SA 113
(SCA) para 3;
Cape
Killarney Property Investments (Pty) Ltd v Mahamba & others
2001
(4) SA 1222
(SCA) at 1229E.
12
Ndlovu’s
case (note 11) para 20;
Barnett
& others v Minister of Land Affairs & others
2007
(6) SA 313
(SCA) para 37.
13
See
too the similar dictionary definitions in
City
of Cape Town
(note 10) at
59D-E.
14
Note
12 para 38.