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[2020] ZAECPEHC 3
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Moosa v Ramsugit and Others (76/2020) [2020] ZAECPEHC 3 (30 January 2020)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH)
Case
No: 76/2020
Date
heard: 24 January 2020
Date
delivered: 30 January 2020
REPORTABLE
In
the matter between:
MOGAMAT
RIFAAD
MOOSA Applicant
And
HIMAT
RAMSUGIT
First
Respondent
CLAUDETTE
DOROTHY LOUISA
VAN
DER MESCHT N.O
Second
Respondent
WANDA
ALFONSO N.O
Third Respondent
JUDGMENT
Goosen
J:
[1]
The applicant conducts a carwash business from a property it has
leased from the first
respondent. The carwash business is operated
from this property at 98 Govan Mbeki Avenue. According to the
applicant the first
respondent is also the owner of the adjacent
property, 96 Govan Mbeki Avenue from which is operated a used car
dealership by another
party who is also a tenant of the first
respondent. The second and third respondents are the trustees of the
De Franca Property
Trust, the erstwhile owners of the properties
sold.
[2]
It is common cause that until 16 January 2020 the applicant enjoyed
the use and occupation
of a portion of a large metal container which
was situate on 96 Govan Mbeki Avenue adjacent to the boundary between
that erf and
98 Govan Mbeki. The applicant used the container to
store certain equipment used by him in the conduct of his business.
[3]
The applicant states that he entered into a sale and lease agreement
with the Franca
Property Trust in terms of which he purchased the
carwash business from the Trust and entered into a lease agreement in
respect
of 98 Govan Mbeki Avenue from whence the business is
conducted. According to the applicant his use and enjoyment of the
container
on 96 Govan Mbeki Avenue is in terms of his lease
agreement. The applicant states that the first respondent is the new
owner of
the immovable properties that comprise 96 and 98 Govan Mbeki
Avenue. This is denied by the first respondent who states that the
property is owned by Astana Properties CC of which he is the managing
member. The first respondent further denies that the applicant’s
use of the container forms part of the subject of a lease agreement.
It was no more than an informal arrangement not contingent
upon the
lease agreement. It is common cause that there is presently a dispute
regarding the lease which is the subject of litigation
between the
applicant and the Trust.
[4]
On 6 January a group of workmen arrived on 96 Govan Mbeki Avenue to
commence removal
of the container in order to undertake renovations
to the property. The circumstances giving rise hereto are matters in
dispute.
The first respondent states that notice was given of the
termination of the use arrangement. The applicant denies this. On
that
occasion the applicant (in the presence of Mr Killik, his
attorney’s agent) advised the workmen that they were not
permitted
access to that portion of the property on which the
container was situated. On 16 January 2020 the workmen were again on
site.
They removed those items from the container belonging to the
applicant and placed them on his business premises. Both applicant
and Killik were present.
[5]
The workmen proceeded to dismantle the container which appears to
have been fixed
to the ground in some manner by cutting it into
pieces. The pieces were then loaded onto a vehicle and removed from
the site, apparently
to be sold as scrap metal.
[6]
The events of 16 January 2020 sparked an exchange of correspondence
between applicant’s
attorney and the attorney for the first
respondent. The applicant’s attorney adopted the view that
possession of the container
ought to be restored. The first
respondent’s attorney, in an effort to avoid litigation,
tendered possession of a store container
on the applicant’s
premises. This was rejected. On 23 January the applicant commenced
the present application in which he
seeks restoration of possession
of the container pursuant to the
mandament van spolie
.
[7]
The application is opposed on several grounds. In the first instance
the first respondent
contends that the possessory relief sought is
not competent in the light of the fact that the subject property has
been destroyed.
Secondly, it is contended that the applicant has
failed to join the party who took the action complained of, namely
Astana Properties
and has failed to join the party in lawful
possession of 96 Govan Mbeki Avenue including that portion on which
the container was
situated. Thirdly, it is submitted that the
applicant has, in the circumstances of the matter, failed to make out
any case for
urgency.
[8]
In answer to the first ground of opposition applicant’s counsel
took the stance
that either the common law ought to be developed
alternatively that the court ought to fashion appropriate
constitutional relief
to meet the exigency arising from the
destruction of the property. In respect of the non-joinder it was
submitted that the first
respondent is in effect the controlling mind
of Astana Properties and the person who caused the spoliation.
[9]
The
mandament van spolie
is a common law remedy available to
the possessor of property, whether movable or immovable, who has been
deprived of such possession
by the conduct of another. There are two
requirements, namely that the applicant for the relief was in
possession of the property,
and that the respondent wrongfully
deprived him/her of possession without his/her consent.
[10]
In
Van
Rhyn and Others NNO v Fleurbaix Farm Pty Ltd
[1]
it was held that:
“
It is a robust
remedy directed at restoring the status quo ante, irrespective of the
merits of any underlying dispute concerning
entitlement to possession
of the object or right in issue.”
[11]
The doctrinal basis of the remedy and its limitations was considered
in
Rikhotso
v Northcliff Ceramics (Pty) Ltd and Others
[2]
.
Nugent J (as he then was) held as follows
[3]
:
“
The remedy
afforded by the mandament van spolie, expressed in the
maxim
spoliatus ante omnia restituendus est
, is generally granted where
one party to a dispute concerning possession of property seizes the
property pursuant to what he believes
to be his own entitlement
thereto. In such cases a Court will summarily order return of the
property irrespective of either party's
entitlement to possession,
and will not entertain argument relating to their respect rights
until this has been done. The principle
underlying the remedy is that
the entitlement to possession must be resolved by the Courts, and not
by a resort to self-help.
By
its nature then a spoliation order will usually operate as no more
than a preliminary order for restoration of the status quo
until the
entitlement to possession of the property is determined. The
assumption underlying the order is that the property exists
and may
be awarded in due course to the party who establishes an entitlement
thereto.
Viewed
from that perspective, the remedy is inappropriate if the property
has been destroyed. There is nothing upon which the order
can
operate, and no possessory entitlement left to be adjudicated upon.
It is because it is a possessory remedy that most
of the modern
writers hold the view that a spoliation order may not be
granted if the property has been destroyed (see Van
der Merwe Sakereg
2nd ed at 119 and 212, 140-3; Silberberg and Schoeman's The Law of
Property (edited by Klein and Borraine) 3rd
ed at 139 and 141;
Delport and Olivier Sakereg Vonnisbundel at 83; Kleyn 'Die Mandement
van Spolie as Besitsremedie' 1986
De Jure 1; Sonnekus
1978 TSAR
168
; De Waal 1984 THRHR 115).”
[12]
The learned judge went on to state
[4]
:
“
In my view, the
weight of authority supports the proposition that a spoliation order
cannot be granted if the property in issue
has ceased to exist. It is
a remedy for the restoration of possession, not for the making of
reparation.”
[13]
Since the mandament is a possessory remedy, where possession of the
property cannot be given,
either because it has been destroyed or
alienated or passed into the possession of a third party the remedy
cannot be granted.
The question as to impossibility of restoration of
possession is a factual inquiry
[5]
.
[14]
The question that arises is whether the common law remedy either has
been or ought to be developed
in the light of the Constitutional Bill
of Rights to extend its ambit.
[15]
In
Tswelopele
Non-Profit Organisation and Others v City of Tswane Metropolitan
Municipality and Others
[6]
this question was pertinently addressed. In that matter a large
number of people had been forcibly removed from land occupied by
them
and their shelters destroyed and removed in the process. The High
Court had refused an order restoring possession. On appeal
the
Supreme Court of Appeal granted relief in terms of s 38 of the
Constitution.
[16]
Cameron JA found that the doctrinal basis of the mandament and the
nature of that remedy as set
out in
Rikhotso
was correct
[7]
. The Supreme
Court of Appeal further held that it would be superfluous to graft
onto the mandament a remedy countenanced by s 38
[8]
.
The court accordingly expressly did not develop the common law to
extend the ambit of the mandament. Instead the court addressed
the
constitutional dimension which arose in that matter by fashioning an
appropriate remedy in terms of s 38 of the Constitution
[9]
.
[17]
This approach was approved by the Constitutional Court in
Schubart
Park Residents’ Association v City of Tswane Metropolitan
Municipality
[10]
.
The court found that the possessory focus of the mandament is
to be retained. It was, in that matter, called upon to deal
(as was
the court in
Tswelopele
)
with an infringement of,
inter
alia
,
the rights to housing set out in s 26 of the Constitution.
Accordingly, appropriate relief to vindicate and protect that right
was granted. The court did not, either expressly or by necessary
implication develop the common law relating to the availability
of
the mandament in circumstances where the property dispossessed has
been destroyed.
[18]
Mr Dyke SC, who appeared for the applicant, fairly conceded during
argument that he could not,
in light of the authorities advocate for
a development of the common law ambit of the remedy of mandament van
spolie. Instead he
relied upon the adjunct remedy provided for in s
38 of the Constitution.
[19]
The applicant in its founding papers seeks occupation/possession of
that piece of immovable property
on which the portion of the
container it used was located. It also seeks restoration of
possession of a container. It is common
cause that the container has
been destroyed. The portion of the immovable property forms part of
the adjacent property, 96 Govan
Mbeki Avenue which is in the
possession of a third party. It is accordingly the case that physical
possession of the immovable
property and/or the container is
factually impossible. If an order restoring that which was lost by
way of dispossession were to
be fashioned it would necessarily
involve the restoration of the use of some structure for storage upon
the applicant’s premises.
This is a wholly different
arrangement to that to which the applicant was entitled by way of his
now deprived possession of the
container. Such relief would in my
view extend beyond the reach of relief countenanced by the mandament.
It would have the effect
of providing adjunct constitutional relief
in circumstances where no constitutionally protected rights are
engaged other than those
regulated by the ordinary mandament van
spolie remedy.
[20]
This present application is distinguishable upon the facts from both
the
Tswelopele
and
Schubart
Park
matters. It should be emphasized that orders by way of reconstituted
possession or restoration are not granted by mandament. In
each
instance where a restoration order has been made it has been made
pursuant to s 38 of the Constitution and in circumstances
where the
right to housing or shelter and dignity has been infringed
[11]
.
[21]
It was argued that the unlawful dispossession negates the rule of
law; that the consequential
effect of the dispossession is an affront
to the applicant’s dignity; and a violation of his right to
pursue the profession
of his choice. Accordingly for these reasons a
constitutional dimension arises and this court is enjoined to grant
appropriate
relief to vindicate the constitution.
[22]
There is no doubt that an unlawful dispossession violates the rule of
law. That is so in every
instance in which the requisites for
mandament
van spolie
are established. Indeed it is to protect the rule of law that the
remedy is provided so that the underlying dispute as to rights
may be
determined in accordance with law in due course. But that in itself
is not sufficient for the granting of relief outside
of the ambit of
the possessory remedy. Nor is the contended for breach of the right
to dignity or the right to pursue a profession
(assuming for the
moment that the mere assertion is sufficient). As noted in
Schubart
Park
[12]
:
“
. . . an order
made in relation to factual possession in spoliation proceedings does
not in itself directly determine constitutional
rights . . .”
[23]
Where an appropriate Constitutional remedy is fashioned the approach
will be guided by what was
said of such remedy in
Hoffmann
v South African Airways
[13]
:
“
The determination
of appropriate relief, therefore, calls for the balancing of the
various interests that might be affected by the
remedy. The balancing
process must at least be guided by the objective, first, to address
the wrong occasioned by the infringement
of the constitutional right;
second, to deter future violations; third, to make an order that can
be complied with; and fourth,
of fairness to all those who might be
affected by the relief. Invariably, the nature of the right infringed
and the nature of the
infringement will provide guidance as to the
appropriate relief in the particular case. Therefore, in determining
appropriate relief,
'we must carefully analyse the nature of [the]
constitutional infringement, and strike effectively at its source'.”
[24]
In this instance an order for restoration of possession of the now
destroyed property at some
other location would serve to address no
other mischief or constitutional infringement than the unlawful
dispossession. The granting
of such remedy under the guise of s 38
would in effect graft onto the mandament a constitutionally extended
remedy which our courts
have felt constrained not to allow.
[25]
The Supreme Court of Appeal elected not to develop the common law
remedy of
mandament
van spolie
to cater for reparation in circumstances where the property has been
destroyed or restoration of possession thereof is otherwise
not
possible. It elected, instead, in the context of the constitutional
rights enshrined in s 26 which were engaged, to provide
constitutionally mandated relief in terms of s 38. That the
formulation of appropriate relief was required in the context
of that
case (
Tswelopele
)
and in the later case (
Schubart
Park
)
arose in consequence of the particular circumstances. In both cases
the unlawful dispossession and destruction of the property
had
rendered people homeless, and the dispossession itself has been
carried out in violation of several protected rights
[14]
.
There was accordingly an interplay between the deprivation of
possession and its remedy on the one hand and the consequential
infringement of rights on the other. As Froneman J noted in
Schubart
Park
[15]
:
“
The applicants
sought an order in the high court for restoration on the ground that
they were despoiled of possession of their homes.
This immediately
added the dimension of s 26(3) of the Constitution to what
would otherwise have been a normal spoliation
application. It is the
interplay between the ordinary requirements of spoliation and the
demands of s 26(3) of the Constitution
that is at issue here.”
[26]
The learned judge went on to address this interplay as follows
[16]
:
“
[29] I agree that
it is conducive to clarity to retain the “possessory focus”
of the remedy of spoliation and keep it
distinct from constitutional
relief under section 38 of the Constitution. This is because
the order made in relation to factual
possession in spoliation
proceedings does not in itself directly determine constitutional
rights, but merely sets the scene for
a possible return to the status
quo, in order for the subsequent determination of constitutional
rights in relation to the property.
[30] The
implication of this is that spoliation proceedings, whether they
result in restoration or not, should not serve as
the judicial
foundation for permanent dispossession – that is, eviction
– in terms of section 26(3) of the Constitution.
Neither
the dismissal order of 22 September 2011 nor the later tender
implementation order could serve as justification for the
eviction of
the applicants from their homes for the purposes of section 26(3) of
the Constitution. But could the dismissal
order, and the later
tender implementation order, legitimately count as “appropriate
relief” under section 38 of the
Constitution?
[27]
In the present matter such considerations do not arise. Whilst the
act of dispossession is in
itself an act contrary to the rule of law,
neither restoration nor its refusal would constitute a consequential
determination of
constitutionally protected rights.
[28]
In my view the applicant has not made out a case for such relief in
the circumstances of this
case. It follows therefore that the
application cannot, on this basis, be granted.
[29]
As indicated at the outset the first respondent also relied upon the
applicant’s failure
to join the owner of the property, at whose
instance the first respondent acted, and the occupant of the adjacent
property. These
challenges on the basis of joinder are not without
merit. I have, however, determined the matter upon a more fundamental
basis
of principle. It is therefore unnecessary to consider this
aspect.
[30]
The same is true of the challenge to the urgency with which the
application was brought. This
challenge, which was premised upon the
applicant’s failure to set out any grounds for urgency in his
founding affidavit is
also not without merit. It is, in the view I
take of the matter, however, not necessary to consider this aspect.
[31]
There is no reason why the costs should not follow the result. It was
submitted that given the
fact that the relief sought was not
competent from the outset I should mulct the applicant in a punitive
cost order. In my view,
that would not be an appropriate order. It
should be borne in mind that the first respondent acted outside the
law in depriving
the applicant of the possession he enjoyed. The fact
that the applicant’s remedy does not lie in restoration of
possession
does not mean that the first respondent’s conduct is
sanctioned in any manner. The ordinary costs order is sufficient.
[32]
I make the following order:
The application is
dismissed with costs.
________________________
G.
G. GOOSEN
JUDGE
OF THE HIGH COURT
Appearances:
Obo
the Applicant: Adv
B.C Dyke SC
Instructed
by
Leon
Keyter Attorneys
27
Uitenhage Road, Sydenham, Port Elizabeth
Obo
the Respondent: Mr
G. Friedman
Friedman Scheckter
75 Second Venue,
Newton Park, Port Elizabeth
Tel: (041) 395
8412
[1]
2013 (5) SA 54 (WCC)
[2]
1997 (1) SA 526 (W)
[3]
At 532G-533B
[4]
At 535B
[5]
Administrator, Cape And Another v Ntshwagela and Others
1990 (1) SA
705
(A) 720G-H
[6]
2007 (6) SA 511 (SCA)
[7]
At par [24]
[8]
At par [27]
[9]
At par [26]-[28]
[10]
2013 (1) SA 323
(CC) at
[11]
Tswelopele (
supra
);
Schubart Park (
supra
).
See also Ntantana and Others v Mhlontlo Local Municipality and
Another (CA 51/2015) [2016] ZAECHMC 10 (15 April 2016)
[12]
At par [29]
[13]
2001 (1) SA 1
(CC) at par 45
(2001 (11) BCLR 1211
; (2000) ILJ 2357;
[2000] 12 BCLR 1365)
[14]
See Tswelopele (supra) at par 15 where Cameron JA records the
following: “That the wanton destruction of the occupiers’
dwellings violated the Constitution was not disputed. What must be
owned is how far-reaching and damaging the breach was. The
governmental agencies violated not merely the fundamental warrant
against unauthorised eviction, but (given the implicit menace
with
which the eviction was carried out) the occupiers’ right to
personal security and their right to privacy. It infringed
not only
the occupiers’ property rights in their materials and
belongings, but trampled on their feelings and affronted
their
social standing. For to be hounded unheralded from the privacy and
shelter of one’s home, even in the most reduced
circumstances,
is a painful and humiliating indignity.”
[15]
At par [22]
[16]
At para [29]-[30]