About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Port Elizabeth
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Port Elizabeth
>>
2019
>>
[2019] ZAECPEHC 35
|
|
BVDM Trading 4 CC v Kings Terrace Body Corporate (561/2019) [2019] ZAECPEHC 35 (30 May 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, PORT ELIZABETH
Case
No.: 561/2019
In
the matter between:
BVDM
TRADING 4
CC Applicant
and
KINGS
TERRACE BODY
CORPORATE Respondent
JUDGMENT
NQUMSE
AJ
Introduction
[1]
On 12 March 2019 the applicant launched an urgent application for an
interdict
and certain other relief. On the date, the matter
appeared before Rugunanan AJ and it was postponed to 19 March 2019
with
the following order:
1.1 “.
. .
1.2 The
applicant is hereby given leave to amend its Notice of Motion.
1.3 The
amended Notice of Motion shall be electronically served on the
respondent’s attorneys.
1.4 The
respondent is given leave to supplement its opposing papers, such
papers to be delivered on the applicant’s
attorneys by not
later than 12h00 noon on 15 March 2019.
1.5 The
applicant shall, if necessary, supplement its papers and file same by
12h00 on Monday 18 March 2019.
1.6 The
applicant shall ensure that the court file is indexed, and paginated
by close of business on Monday 18 March
2019.
1.7 That the
costs are reserved.”
[2]
The amended Notice of Motion sought for an order with variations from
the original one in the following terms:
2.1
“Ordering that the non-compliance with the Rules of this
Honourable Court in respect of
forms, time periods and service is
condoned and that leave be granted to the applicant to move this
application forthwith as a
matter of urgency.
2.2
That the respondent forthwith restores the applicant’s access
to, possession of, use
of and/or control over the internet network,
related equipment and related structures, which had been utilised by
the applicant
at Kings Terrace, Port Elizabeth immediately prior
to 1 March 2019, pending the final outcome of the dispute referred to
the
Community Schemes Ombud;
2.3
That the respondent is restrained from interfering with and/or
causing any interference
with the applicant’s access to,
possession of, use of and/or control over the network, related
equipment and related structures
pending the final outcome of the
dispute referred to the Community Schemes Ombud;
2.4
That the respondent pays the costs of this application;
2.5
Granting the applicant such further and/or alternative relief as this
Honourable Court
may deem meet.”
The
facts
[3]
The following facts are either common cause or not seriously
disputed.
3.1
During or about 2005, the applicant received consent from the
trustees of the respondent to install
a transmitter on the roof of a
structure in Kings Terrace. The applicant was also permitted to
supply free internet service
to residents of King Terrace.
3.2
As a result of the consent he received, the applicant offered to
supply the Kings Terrace
management office with free internet
service, which offer was accepted.
3.3 During
2014 the respondent elected to install a new [Closed-circuit
television] (CCTV) equipment which
ran on the applicant’s
network which was already installed in the property. The same
arrangement obtained when the
respondent upgraded its CCTV system
with the installation of additional cameras and switches that ran on
the applicant’s
existing network. The applicant took
advantage of the newly acquired equipment and utilised it with the
knowledge of the
respondent for its site benefit. The applicant
makes no qualms with the switches and admits that they are the
property of
the respondent. The applicant further contends that
should the respondent claim them back, it will not be a hassle to
remove
them and re-install the old switches that were utilised by the
applicant before the installation of the CCTV switches.
3.4
Notwithstanding the claim by applicant that he purchased the network
cabling equipment on
which he ran the internet service, no proof of
payment of such network cabling and/or related equipment was
furnished as proof
of this claim. As a result, the respondent
places reliance on annexure “DM8” in the schedule
reflecting the respondent’s
electronic security expenses for
the period 1 May 2015 to 17 July 2017 which reflects a sum
of R292 582, 48 as a
proof that he is the lawful owner of the
entire equipment which is claimed by the applicant.
3.5
During 2018 the respondent’s trustees terminated their
relationship with the applicant
and no longer wished to utilise the
applicant’s services. As a result, on 28 June 2018
the applicant was requested
by the respondent to handover the tag
system in respect of the access control. This demand was made
through correspondence
annexed to the respondent’s papers as
annexure “DM10”. This was followed by a resolution
reflected in annexure
“DM11” of the respondent’s
papers wherein the respondent took a decision to outsource the
surveillance system
and concomitantly take legal steps against the
applicant.
3.6 On
8 February 2019 the respondent’s attorney’s delivered
correspondence annexed to the founding
papers as ‘FA1’ to
applicant’s erstwhile attorneys, terminating the applicant’s
access to the respondent’s
Body Corporate infrastructure.
In reaction to ‘FA1’, on 19 February 2019, the
applicant’s attorneys addressed
a letter annexed as ‘FA2’
to respondent’s attorneys in which they advised that they
contemplate bringing an urgent
interdict against the respondent if he
does not desist from its threat to disconnect the applicant’s
network.
3.7 On
13 February 2019 the respondent, advised the residents of Kings
Terrace through a newsletter annexed
to the founding papers as
annexure ‘FA3’ that the applicant was providing its
services unlawfully through the use of
the respondent’s
infrastructure, and that the Virtucomp is a new service provider that
will be providing the internet services
at the termination of
applicant’s services on 1 March 2019.
3.8 On 27 February
2019 the applicant referred the dispute to the Community Scheme
Ombud who is yet to make a decision
on the dispute. In the
meantime, on 1 March 2019 the respondents disconnected the
applicant’s internet service to the
applicant’s clients
who are residents of Kings Terrace.
[4]
Applicant further contends that the action of the respondent to
terminate
his supply of internet services to his clients who reside
at Kings Terrace and to deny him access to the network cables and
equipment
which he is owner thereof is unlawful. He further
submits that out of the 21 clients to which he supplies internet
services
he derives a full monthly income of R12 000, 00.
As a result of the disconnection of internet services his clients
immediately
lodged a complaint with the applicant demanding instant
and consistent internet access. As each day passes so the
applicant
says, brings about a risk in the applicant losing its
clientele to a competitor. This is made worse by the
introduction of
Virtucomp who is a competitor in their industry.
Applicant avers that a restoration of the connection pending the
outcome
of the Ombud will bear no prejudice to the respondent.
[5]
The respondent contends that the application should not have been
brought
as an urgent application, this is more so since the applicant
has shown on his own version that he has an alternative remedy for
damages. He avers that the applicant was given notice on 8
February 2019 that his access to the respondent’s
Body Corporate infrastructure
will be terminated with
effect from 1 March 2019 and that between 8 February and 1 March
2019 his access will be supervised.
He further avers that no
explanation was given for the delay in launching the application
given the intervening period between
8 February and 1 March 2019.
[6]
The respondent stated that during the intervening period his
attorneys
communicated with the applicant’s attorneys regarding
login passwords to enable Virtucomp to take over the respondent’s
security and control of the network. When this demand was
resisted by the applicant, the respondent threatened to terminate
the
access of the applicant prematurely and shut him out if he refused
with the password. This prompted the applicant’s
attorneys to write communication as reflected in annexure “DM
1” in the papers in which they exhorted the respondent
to allow
the
status quo
obtaining in the intervening period of 8
February to 1 March 2019 to remain. On 18 February 2019
the applicant ultimately
furnished Virtucomp with the necessary
passwords.
[7]
As a demonstration of the withdrawal of the consent of the use of the
Body Corporate infrastructure by the applicant, the respondent
refers to an email dated 4 February 2019 annexed to
the
papers as “DM4” in which the following was reflected:
“
Dear Dave
According
to the respondent the above correspondence demonstrates the real
reason for their decisions to terminate applicant’s
access to
the respondent’s electronic equipment and network system.
Respondent further submits that annexures DM5 and
DM6 which are
annexed on the papers as proof that the cameras and switches are the
property of respondent”.
[8]
In another example which confirms that the applicant was fully aware
of
the termination of the consent is reflected in the letter annexed
as “DM 7” in which the applicant requested a further
month to make alternative arrangements to service his clients.
The respondent submits that given the process and communication
between them that has been ongoing for months, the launch of this
application on an urgent basis was an abuse of the court process.
[9]
The
respondent further contends that the averment of applicant that he
has 21 clients from which he derives R12 000.00 monthly,
he has
quantified his damages and therefore has an alternative remedy for a
claim for damages. The respondent further stated
that the
applicant has no contractual right to continue to utilise the
respondent’s property for its own benefit and rely
on the
complaint which is referred to the Ombud, whereas its right to
utilise such property was from the onset dependent on the
consent of
the respondent. The respondent further contends that the Ombud
is not in terms of
section 39
of the
Community Schemes Ombud Service
Act
[1
]
competent to
adjudicate the dispute that has been referred to it by the
applicant. In essence the Ombud has no authority
to grant an
Order requiring the respondent to provide proof of installation, as
well as ownership and payment of his equipment.
[10]
In reply the applicant contended that the reason the application was
launched after 1 March
2019 is because the applicant had earlier
warned the respondent to desist from its threats. The
disconnection of his equipment
only happened on 1 March 2019.
Consequently, there has been no delay in launching the application.
He further
stated that he released the passwords in order to minimise
conflict, subject to an agreement that Virtucomp and/or the
respondent
will not interfere with the applicant’s supply of
services to its clients. He also contends that the letter
annexed
as “DM1” from his attorneys to the respondent
should not be construed as an agreement that the network connection
could
be disconnected on 1 March 2019, but was a request that no
unlawful actions be taken prior to that date. The applicant
further
stated that the respondent has no lawful entitlement to
prevent the applicant from accessing its equipment, to disconnect the
applicant’s
network and to prevent the applicant from accessing
its network and the rendering of services to its clients. In
the alternative,
the applicant contends that if the respondent is
correct that it could revoke the consent it contends to have granted
the applicant,
the manner in which such consent was revoked and the
inadequacy of the notice renders the revocation of the consent
unlawful.
Applicant further states that the arrangement for the
respondent to run its security system on the applicant’s
network was
just a favour free from any contractual obligation.
If the respondent no longer wishes to take advantage thereof, the
applicant
is amenable to the removal of respondent’s security
system from its network system.
[11]
Since the security system of the respondent is operated under its own
access codes, such
codes can be changed in order for applicant not to
have access thereto and that can be done without the need to hijack
the entire
network system of the applicant. As an interim
measure the applicant has already given full control of the security
system
over to Virtucomp.
[12]
The applicant further denies that the claim for damages will be a
reasonable, satisfactory,
and an alternative remedy; since the loss
of its clients would result in an irreparable harm to its business.
Applicant denies
that it has compromised the respondent’s
security system, instead he reiterates its position regarding
ownership of the network
and the equipment thereon which has always
been under the control of the applicant.
[13]
Sequel to the amended Notice of Motion the applicant sought to base
its application on
spoliation. The respondent reacted with a
supplementary answering affidavit and stated that the respondent has
been in possession
of the common property through which the bulk and
electronic equipment were provided. He denies that the
applicant had an
undisturbed possession of the equipment and the
network as claimed. He contends that such rights were in terms
of the contract
between them. The applicant had given up his
possession before launching this application. He further
reiterated his
averments in the opposing affidavit that it is denied
that the applicant paid for the network or is owner thereof.
Instead
the respondent contends that it has spent more than R81 892,
55 and R101 657, 22 for the period 1 May 2015 to July 2017.
The respondent further states that the applicant was running a
business from the respondent’s property, acting as an Internet
Service Provider and funding security service not only to the
residents of the respondent, but as a host of neighbouring
properties.
The applicant was also transmitting bandwidth by
way of an antenna from the roof of respondent’s property.
According
to the respondent there is no doubt that the applicant
utilised the equipment for its own benefit to the exclusion of the
respondent.
He further avers that the applicant can also not
proffer an explanation for some of the missing assets that the
respondent
had paid for.
[14]
The respondent further stated that in terms of the agreement they had
concluded, the applicant
would install the network at the
respondent’s cost and in return, the applicant was to manage
the security of the respondent
and provide free internet to the
respondent’s management office. Respondent further
contends that due to numerous problems
experienced with the
applicant, the Trustees of the respondent decided unanimously on 24
May 2018 to outsource the CCTV surveillance,
networking and internet
requirements to Virtucomp. A copy of the resolution was annexed
to the supplementary opposing affidavit
as “DM 14”.
Thereafter Virtucomp was contracted with effect from October 2018 to
take over the entire security
of the respondent which included all of
the cameras which are connected via the network together with the
tagging system for the
gates.
[15]
On 18 October 2018 the applicant handed over to Virtucomp all the
login details, passwords
and the intellectual property to the
network. This enabled Virtucomp to change all the login
details, passwords which excluded
the applicant from accessing the
network and the security system. According to the respondent
this was effectively a consensual
termination of the contractual
agreement between the applicant and the respondent. Owing to an
undertaking by the respondent
to preserve the
status
quo
until 1 March 2019, the 21 clients of the applicant were permitted to
continue utilising the respondent’s network for their
internet
services.
[16]
After the applicant handed over possession of the network and its
control to Virtucomp,
the respondent changed all the locks to the
meter rooms and the applicant was prohibited from entering the meter
rooms, unless
with prior notice given to the respondent and with
supervision by the respondent’s property manager. The
respondent
contends that the applicant was never in undisturbed
possession of the network, alternatively whatever control he
exercised over
the network was consequent to a contractual
arrangement which ended when the applicant handed over voluntarily
the control and
possession of the login details and password.
[17]
In the replying affidavit to the supplementary answering affidavit,
the applicant denied
giving up possession and ownership of the
equipment voluntary prior to instituting these proceedings. He
reiterated that
the reason he handed over the login and password
details was to minimise conflict between the parties and was not
surrendering
full control of the network to the respondent. He
however, concedes that his access to the equipment was restricted,
although
he still retained access to the internet network.
[18]
Counsel for the applicant submitted in its heads of argument as well
as before me that,
by virtue of the fact that the relief sought is
that of
mandemant van spolie
it is urgent in nature and
requires urgent determination. He further argued that the
applicant will not obtain substantial
redress if the matter is not
heard on an urgent basis. This is more so that the applicant
stands to lose its entire client
base if the matter were to be heard
in the ordinary course. In this regard so the argument went,
the applicant is not required
to show irreparable harm.
[19]
Counsel for the respondent pointed out that initially the relief
sought was an interim
interdict wherefore papers were prepared by
both parties on that basis. However as a result of the amended
Notice of Motion
the relief sought changed to a
mandament van
spolie
which by its nature is a final relief
albeit
the
framing of the relief sought is still in the form of an interim
interdict, pending the outcome of a dispute which has been
referred
to the Community Scheme Ombud.
Nature
of the application
[20]
As correctly pointed out by counsel for the respondent and not
seriously contested by the
applicant, the application as I see it is
a hybrid that straddles between an interim interdict and a remedy
under the
mandament van spolie.
In one hand the
applicant seeks an order pending the final outcome of the Ombud and
on the other hand a final redress under
mandament van spolie.
In light of the amended Notice of Motion, I shall proceed and
determine the issue as though the intended relief sought is that of
the
mandament van spolie.
In light of that
determination, I tend to agree with the contention that
mandament
van spolie
is urgent in nature where a party has shown that the
matter is urgent and could not be afforded substantial redress at a
hearing
in due course. Owing to the reaction of the applicant’s
clients upon being disconnected from the network service of
the
applicant, this rendered the matter urgent and therefore I do not
find that the applicant abused the court’s process
when it
brought the matter on a matter of urgency.
Issues
to be determined
[21]
The issues to be determined in this matter as I understand
them are the following:
(i)
Whether the applicant was in possession of the network and
the
equipment that was connected to the premises of the respondent.
(ii)
Whether the applicant was dispossessed unlawfully of his network as
well
as the accompanying equipment for such a service.
(iii)
Whether the respondent has succeeded in the available defences under
the remedy
of the
mandament van spolie
.
The
law
[22]
The essence of the
mandament
van spolie
is the restoration before all else of unlawfully deprived possession
of the possessor. It finds expression in the maxim
spoliatus
ante omnia restituendus est
(the despoiled person must be restored to possession before all
else)
[2]
. In order to
obtain a spoliation order the
onus
is on the applicant to prove the required possession, and that he was
unlawfully deprived of such possession
[3]
.
In
Nino
Bonino
the general principle of the
mandament
van spolie
was stated by Innes CJ as follows:
“
It is a
fundamental principle that no man is allowed to take the law into his
own hands; no one is permitted to dispossess another
forcibly or
wrongfully and against his consent of the possession of property,
whether movable or immovable. If he does so,
the Court will
summarily restore the
status
quo ante,
and will do that as a preliminary to any inquiry or investigation
into the merits of the dispute”.
[4]
[23]
The
onus
the applicant faces is whether he has
established possession and control over the property in question
viz,
possession of, use of and control over the network and related
equipment. The applicant’s contention is ostensibly
that
he has been denied access to its network and prevented from rendering
internet services to its clients.
[24]
The established facts point to an incontrovertible fact that
applicant gained access to the premises of respondent through
a
consensual agreement. It should therefore follow that at all
material times the applicant was using the network facility
that was
hosted on the premises of respondent subject to the existence of the
consent or permission granted to the applicant by
the respondent.
Consequently, the ability to operate the network by the applicant was
dependent on the existence of that
consent.
[25]
There is no suggestion or evidence to the effect that the
arrangement for access that was granted to applicant was perpetual.
Instead the respondent alleges that the agreement was subject to
termination on notice by either party. There are also no
specific terms of time frames for a notice of termination or the
procedure to be followed whenever there may be a request of an
extension of the agreement as well as how a requesting party should
go about making such a request for extension.
[26]
According to the evidence it is apparent that the agreement
was not a perpetual one. This therefore allowed either
of the
parties to terminate the agreement as per the wishes of that party.
The applicant denies that the parties agreed to
a termination as
alleged by the respondent, as a result denies that the termination
was lawful. However, what the applicant
failed to allege and
prove is the existence of a framework or procedure that the parties
had agreed on, that shows how and when
they can terminate their
relationship. Neither did the applicant point the Court to any
timeframes that ought to have been
adhered to by the respondent when
he contemplated to terminate their agreement. In the absence of
the framework that regulates
these aspects I refer to, I am unable to
criticize the manner in which the consent was terminated.
However, the matter does
not end there.
[27]
I shall now deal with the aspect of possession. As is
required under
mandament
van spolie,
an applicant who wants relief under this remedy must have been in
possession of the item he has been dispossessed of
[5]
.
The question that begs an answer in this matter is whether at the
time the respondent denied the applicant access to its
control rooms
and effectively preventing the applicant to its network and equipment
constituted spoliation. I am of the view
that at the time the
access was denied, whether the agreement was in existence or not the
applicant was in possession and in control
of its network and related
equipment that was on the premises of the respondent. As stated
earlier, in order for the applicant
to succeed he needs to prove that
he was in possession of the thing spoiled
[6]
.
[28]
The applicant has indeniably installed a transmitter on the
roof of a structure in King Terrace with the necessary
cabling
and equipment in order to run its network. He has over time
maintained and upgraded its network in order to service
its clients.
From this service, the respondent has also benefited freely. It
is patently clear therefore that at all
material times of the 14
years’ period the applicant was allowed to run its network, he
was in possession and in control
of its network and related
equipment.
[29]
It is trite that a court hearing a spoliation application doe s not
concern itself with the rights of the parties before
the spoliation
took place, it merely enquires whether or not there has been a
spoliation, and if there has been, it restores the
status
quo
ante
[7]
.
[30]
Once the applicant has discharged the
onus
resting upon him and no recognised defence has been raised with
success, the Court has no discretion to refuse the grant of a
spoliation order on the grounds of considerations relating to the
merits of the dispute between the parties.
[8]
[31]
The defence raised by the respondent is ostensibly that the
consent for the applicant to run its network was terminated
consensually. Further, the respondent contest the ownership of
the equipment on which the applicant was running its network
services. In addition the respondent argued that the failure of
the applicant to join Virtucomp who presently controls the
network
has compromised and watered down the possession the applicant is
claiming.
[32]
The allegation that the termination was consensual is not
supported by the evidence. It is clear that the
applicant had
at no stage surrendered its possession of its network and equipment
to render internet services to its clients.
The claim that
termination was consensual lacks merit and has to be rejected.
The claim that the equipment is owned by the
respondent is irrelevant
for the relief under
mandament van spolie
.
[33]
I find what was said in
Bon
Quelle
[9]
very instructive where the court said that the
mandament
van spolie
is a possessory remedy, the limited and exclusive function of which
is to restore the
status
quo
ante
and it therefore matters not that the spoliation might have a
stronger claim to possession than the person spoliator or that the
latter has indeed no right to possession. The principle is
simple, possession must first be restored to the person spoliated
irrespective of the parties’ actual rights to possession.
[10]
In amplification of the principle in
Bon
Quelle
the Supreme Court of Appeal said the question of illegality or
wrongfulness of the spoliator’s possession are irrelevant.
[34]
In my view the applicant has discharged the
onus
on it to meet the requirements of a remedy under
mandament van
spolie
. I find therefore that the applicant was in
possession of the network and the related equipment to render
internet services,
that he was deprived of its possession unlawfully
and I am satisfied that the applicant’s possession must first
be restored
before the merits of the competing claims is considered.
[35]
In the result the following order will issue:
1. The
respondent is hereby directed to restore the applicant’s access
to, possession of, use of and/or
control over the internet network,
related equipment and related structures, which had been utilised by
the applicant at Kings
Terrace, Port Elizabeth immediately prior
to 1 March 2019.
2. The
respondent is hereby directed to pay the costs of this application.
________________
V.
NQUMSE
ACTING
JUDGE OF THE HIGH COURT
Appearances:
For
the Applicant: Mr.
A C Moorhouse
Instructed
by
Van Wuk & Associates
137
Water Road, section B, Warmer
PORT ELIZABETH.
For
the Respondent: Mr.
G Friedman
Instructed
by
Friedman Scheckter
75
Second Avenue
PORT
ELIZABETH.
Date
heard:
19
March 2019
Judgment
delivered: 30
May 2019.
[1]
Section 39 of the Community Schemes Ombud Service Act 9 of 2011
provides for 7 different types of prayers for relief.
[2]
Ngqukumba
v Minister of Safety and Security
and
Others
[2014]
ZACC 14
;
2014 (7) BCLR 788
(CC);
2014 (5) SA 112
(CC);
2014 (2) SACR
325
(CC) at para 10.
[3]
Yeko v
Qana
1973 (4) SA 735
(AD) at 739 E.
[4]
Nino
Bonino v De Lange
1906 TS 120
at 122 (
Nino
Bonino
).
[5]
Bon
Quelle (Edms) Bpk v Munisipaliteit van Otavi
[1988]
ZASCA 123
;
1989 (1) SA 508
(A);
[1989] 1 All SA 416
(A) (
Bon
Quelle
).
[6]
Pieter
v Muller
1973 (4) SA 126
-127 E;
Malan
and Another v Green Valley Farm Portion 7 Holt Hill 434 CC and
Others
2007 (5) SA 114
(ECD) (
Malan
).
[7]
Malan
above n 6 at 123 E.
[8]
Id at 123 I-J to 124 A.
[9]
Above n 5 at 521 A-B.
[10]
Ivanov
v North West Gambling Board and Others
[2012] ZASCA 92
;
2012 (6) SA 67
(SCA);
2012 (2) SACR 408
(SCA);
[2012] 4 All SA 1
(SCA) at para 24.