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[2022] ZAECQBHC 47
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Mfuniselwa v Mfuniselwa and Others (2818/2022) [2022] ZAECQBHC 47 (13 December 2022)
SAFLII
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Certain
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Policy
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, GQEBERHA
CASE NO.: 2818/2022
In
the matter between:
MONALISA PUMLA PORTIA
MFUNISELWA
APPLICANT
(in
her capacity as executrix of Estate No.: 4[…])
and
AVIWE
ARTHUR MFUNISELWA
FIRST RESPONDENT
BANDILE
AUBREY MFUNISELWA
SECOND RESPONDENT
PAMELA
BABALWA MFUNISELWA
THIRD RESPONDENT
THE
MASTER OF THE HIGH COURT, GQEBERHA
FOURTH RESPONDENT
JUDGMENT
CHITHI
AJ
Introduction
[1] On
29 September 2022, the applicant brought an urgent application for
mandament van spolie
in which she sought an order
inter
alia
in the following terms:
1. Dispensing
with the forms and service provided for in the Uniform Rules of Court
and condoning non-compliance with the Uniform Rules of Court relating
to service and time-periods in terms of Uniform Rules 6 (12);
2. That
the first and second respondents be and are hereby directed to
forthwith
make over and restore the applicants peaceful and
undisturbed full possession, occupation, use and control of property
described
as ERF 9[...] A[...] P[...], situated at 6[...] J[...]
Crescent, A[...] P[...], Gqeberha, held by Deed of Transfer T9[...]
CTN
(hereinafter referred to as “the property”);
3. In
the event of the first and second respondents failing to act as
directed in
paragraph two (2) above, the Sheriff of this Honourable
Court be and is hereby directed and authorised to enlist the services
of
the South African Police to give effect to the order contained in
paragraph two (2)
supra
by removing the first and second
respondent from the property and handing the keys to the applicant;
4. That
the first and second respondents be and are hereby interdicted and
restrained from
unlawfully interfering with the Applicant’s
possession, occupation use and control of the Property; and
5. That
the first and second respondents, or any of the other respondents who
oppose this
application, are ordered to pay the costs on the attorney
and client scale.
[2] The
application was enrolled for hearing on 11 October 2022 and on that
day Rusi J issued
the following directives:
1. The
first to third respondents shall file their answering affidavits, if
any, by no
later than 26 October 2022.
2. The
applicant shall file its replying affidavit, if any, by no later than
31 October
2022.
3. The
applicant shall file its heads of argument, if any, by no later than
4 November
2022.
4. The
first to third respondents shall file their heads of argument, if
any, by no later
than 12h00 on 11 November 2022.
5. The
matter shall be heard, on the opposed motion court roll on 17
November 2022.
[3] The
Master of the High Court, the fourth respondent did not deliver any
notice
to oppose in this case and therefore did not participate in
the proceedings. For the purposes of this judgment, I will
therefore
refer to the first to the third respondent when I refer to
the collectively as the respondents.
[4] The
respondents did not strictly comply with the directives of this court
in
that the respondents delivered their answering affidavit on 27
October 2022 instead of delivering it on 26 October 2022 and
delivered
their heads of arguments on 14 November 2022 instead of
delivering them on 11 November 2022. At the commencement of the
hearing
on 17 November 2022 it was argued on behalf of the applicant
that the respondents’ conduct openly defied the directives of
the court with the result that this conduct impacted on the
management of the court file. I however condoned the
respondents’
non-compliance with the directives as it did
substantially prejudice the applicant and proceeded to hear the
matter on its merits.
[5] The
respondents are resisting the application
inter alia
on the
following grounds:
5.1 The
application is not urgent.
5.2
The applicant does not have
locus standi
to institute the
application in her official capacity as an executrix of the estate of
the late Thamsanqa Mfuniselwa when the relief
sought is premised
solely on the applicant’s personal rights.
5.3
The
mandament
van spolie
is not available to the applicant as the first and second respondent
have established that the property in question is their residence
and
home which they are occupying as such. In the circumstances the
provisions of Prevention of Illegal Eviction from and
Unlawful
Occupation of Land Act
[1]
(‘PIE’) apply and therefore the respondents cannot be
evicted therefrom without compliance with the provisions of PIE.
5.4 The
applicant has failed to prove that at the time of the alleged
spoliation she was
in possession of the property.
Issues
[6]
The court was called upon to determine the following issues:
6.1 whether
the application was urgent.
6.2 whether
the applicant had the necessary
locus standi
to institute the
application.
6.3 whether
the provisions of PIE were applicable to the case; and
6.4 whether
the applicant was disposed of the property.
Common
cause facts
[7] The
following are common cause facts between the applicant and the
respondents:
7.1 The
applicant is the surviving spouse of the late Thamsanqa Mfuniselwa to
whom she was married
in community of property.
7.2 The
first to the third respondents are the children of the late Mr.
Mfuniselwa and the stepchildren
of the applicant.
7.3
The property is registered in the name of the late Mr. Mfuniselwa and
his late wife, Nomsomi
Grace Mfuniselwa to whom he was married in
community of property.
7.4
Nomsomi Grace Mfuniselwa passed away on 12 September 2014.
7.5
The late Mr. Mfuniselwa and the applicant were married to each other
during January 2015.
7.6
The late Mr. Mfuniselwa passed away on 15 September 2021.
7.7 The
applicant was appointed as an executor of the estate of her late
husband in terms of
the letters of executorship dated 19 January 2022
which were issued to her by the fourth respondent.
7.8 The
respondents did not have possession of the property during the period
between 01 January
and 20 July 2022.
7.9 The
third respondent is a resident at 1[...] R[...] Street, Perridgevale,
Gqeberha.
7.10 The
second respondent is employed as a supervisor with a company known as
Ewemzansi and frequently
works out of town for extended periods of
time.
7.11 On
21 July 2022 the applicant in the company of a locksmith from Joe
Davis locksmiths, Neliswa
Festile and Sive Wopa went to the property
removed the lock on the main gate, removed and replaced the security
lock on the front
door, and the first respondent disabled the alarm
system.
[8]
The
issues between the applicant and the respondents are largely common
cause. The only issue which is not common cause between
the parties
being whether the respondents have always resided on the property in
question since 2005. Generally, in motion
proceedings in which
final relief is sought, factual disputes are resolved on the papers
by way of an acceptance of those facts
as averred by an applicant
that are either common cause or are not disputed as well as those
facts as averred by the respondent
that are in dispute.
[2]
This general rule is subject to the exceptions as adumbrated in
National
Director of Public Prosecutions v Zuma
,
[3]
by Harms DP (as he then was) that:
‘
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.’
[9] That
is the approach which I adopted in determining the issues which arise
in this case.
Before dealing with each party’s
contentions, it is necessary that I should first deal with the issue
of urgency and the
applicant’s
locus standi
which have
been put in issue by the respondent.
Urgency
[10]
A
mandament
van spolie
is designed as a ‘speed remedy’ which provides summary
relief.
[4]
The fact that
mandament
van spolie
is a remedy which in the nature of things should be a speedy one does
not imply that the matter automatically becomes one of urgency.
[5]
It is trite that an applicant claiming relief under a
mandament
van spolie
is expected to act expeditiously. The general rule is that the
possessor who alleges that he has or she has been despoiled
should
act within a reasonable time. What constitutes a reasonable
time naturally will differ depending on the facts of each
case.
[11] In
their answering affidavit the respondents deny that this case is
urgent and urge this
court to dismiss this application with costs.
They contend that there was a lengthy delay in the institution of
this application
which cannot be justified by the applicant’s
feigned concern for the best interests of the estate as she rejected
numerous
attempts to resolve the matter in a non-litigious manner.
The respondents did not persist with this denial in their heads of
argument
and during the hearing of the matter. It must
therefore follow that by doing so they acquiesced that the case was
urgent.
In any event even if the respondents did not acquiesce
that the matter is urgent, I am nevertheless satisfied that this
matter
is urgent for the reasons which follow.
[12] It
is common cause that the first respondent took occupation of the
property when he entered
the premises after enlisting the services of
a locksmith by removing the lock to the main gate to the property,
removing and replacing
the security lock on the front door and
disabling the alarm system on 21 July 2022. On 29 September
2022, the applicant instituted
this application. Before instituting
this application, the applicant contends that she made multiple
verbal demands to the first
respondent to vacate the property and
such verbal demands did not yield any positive results. The first
respondent denies this
contention. I find the respondents’
denial not only highly improbable but also untenable that the
applicant would not
demand the restoration of the property especially
when by the respondents’ own admission, the applicant prevented
them from
accessing the property when she changed the locks to the
property when the first respondent visited his girlfriend in Mthatha
between
01 and 02 January 2022 and since then until 21 July 2022 they
did not have access to it. The respondents’ denial is
further untenable because by the respondents’ own admission
when the applicant visited the property on 24 August 2022, the
second
respondent provided her with the key to the security gate at the
front door of the property. This action could not
possibly have
been triggered by the benevolence of the respondents but by the
demands of the applicant.
[13]
It
is trite that where an applicant first seeks compliance from the
respondent before lodging an application it cannot be said that
the
applicant has been dilatory in bringing the application or that the
urgency thereof was self-created.
[6]
This is the course action which the applicant first engaged which
unfortunately yielded no fruits. On the facts of
this case a
delay of approximately two months can hardly ever be regarded a
lengthy delay. I am therefore satisfied that
this case is
urgent and had to be adjudicated on that basis.
Applicant’s
locus standi
[14] The
respondents argued that the applicant does not have to
locus
standi
to institute application and that the application was
therefore fatally defective. Mr Moorhouse however did not refer to
any authority
for this proposition.
[15]
In
Mars
Incorporated v Candy World (Pty) Ltd
[7]
it was
held that the general rule is for the party instituting the
proceedings to allege and prove that he or she has
locus
standi
.
The onus of establishing
locus
standi
therefore
rests upon the applicant. It must appear
ex
facie
the particulars of claim (founding affidavit) that the parties
thereof have the necessary
locus
standi in iudicio
.
[8]
A person intending to institute or defend legal proceedings must have
a direct and substantial interest in the right which is the
subject
of the litigation.
[9]
Locus
standi
concerns the ‘sufficiency’ and directness of the
litigant’s interest in proceedings which warrant his or her
title to prosecute to the claim asserted.
[10]
[16]
The
only proper person to litigate on behalf of a deceased estate in the
vindication of its assets is the executor even to the exclusion
of
beneficiaries to the estate.
[11]
This is so because the estate is not a legal
persona
,
only the executor can sue and be sued on its behalf.
[12]
In the circumstances I find that the applicant has the necessary
locus
standi
to
bring this application in either capacity.
[17]
Moreover,
the respondents have openly registered their objections to any
possible sale of the property.
[13]
The respondents’ actions in taking occupation of the property
are clearly calculated to hinder the applicant’s
ability to
liquidate the deceased’s estate in particular to sell the
property if the respondents were unable to buy the applicant
out.
The respondents’ actions are detrimental to the estate and by
all accounts would have been enough and in fact
were enough to
trigger an action on the part of the executor. This on its own
would have clothed the applicant with the necessary
locus standi to
institute the application in her representative capacity as an
executor of the estate.
Factual
background
Applicant’s
case
[18] Before
the circumstances which have triggered the institution of this
application the applicant
lived at 6[...] J[...] Crescent, A[...]
P[...], Gqeberha. The applicant used to live in this property
with her late husband
Thamsanqa Mfuniselwa before he passed away on
15 September 2021. The applicant was appointed as an executor
to the estate
of her late husband in terms of the letters of
executorship which were issued to her by the Master of the High
Court, Gqeberha
the fourth respondent in these proceedings.
[19] According
to the applicant she has been living in the property with her late
husband at
least since 2020 and the respondent had lived on their own
at their own places elsewhere than in the house. The first
respondent
lived at N[...], M[...], Gqeberha and she attaches a
photograph marked “F” depicting such house. The
third respondent
resides at 1[...] R[...] Street, Perridgevale,
Gqeberha. During January 2022, pursuant to the death of her
husband the applicant
was issued with letters of executorship to the
estate of her late husband.
[20] On
22 February 2022, her agent in the administration of the estate Ms
Tasneem Fredricks
of Fredricks Incorporated received a letter from
the respondents’ attorneys, Nash Vandayar attorneys dated 18
February 2022,
annexure “H” to the founding affidavit in
which the following was stated:
20.1 ‘We
refer to the above matter and confirm that we are acting on behalf of
the
Mfuniselwa Family of Port Elizabeth.
20.2 We
confirm that they are beneficiaries of the Late Thamisanqa Mfuniselwa
who died
on the 15
th
September 2021.
20.3 According
to the Letters of Executorship issued by the Master of the High Court
under
Estate Number 452/2022, Monalisa Pumla Portia Mfuniselwa was
appointed as an Executor of the above Estate.
20.4 We
confirm that we are led to believe that you have been appointed to
assist in the
above Estate.
20.5 Our
clients Aviwe Mfuniselwa, Bandile Mfuniselwa, Pamela Mfuniselwa and
Portia Mfuniselwa
are extremely concerned because they are unable to
make contact with Monalisa Mfuniselwa. They have tried to communicate
with her
telephonically and also at the premises situated at 6[...]
J[...] Crescent, A[...] P[...], Port Elizabeth, however were unable
to get hold of her.
20.6 Our
clients urgently request a meeting regarding issues around the Estate
including:
20.6.1 Certain of the
family members namely Bandile, Pamela and Aviwe wish to return to the
premises of their Late father.
20.6.2 Various other
issues regarding aspects of the assets of the Estate.
20.6.3 Our clients
believe that they have a right, as beneficiaries, to be kept informed
as to the
progress of the Estate as
well as live in the premises of their Late father.
20.6.4 We look forward to
your urgent advices herein.’
[21] The
applicant replied to the letter through her agent by way of an email
dated 23 February
2022 in which she stated the following:
21.1 ‘Blessings
is dealing with the file and is on study leave so I am stepping in.
We
did not report the estate so our only dealings were with the
Executor whom we report to regularly. We were advised there are other
heirs and we have requested the next of kin affidavit.
21.2 Since
you are representing them, please would you advise if we can send
updates to you directly.
Our client is not available to consult
but she has sent us a video footage via whatsapp last night which
shows she was attacked
by some of the heirs a week or so ago, we are
unsure of the exact date we are happy to share same with you.
21.3 Under
the circumstances, we are not going to meet in person but please send
all their queries
to us and we will attend to answer everything on
behalf of the Executor. Needless to say, sharing the house is not
going to work
since the attack is a clear indication that they are
unable to live together. The Executor is going make a case to
the Master
to have the house sold and the proceeds split.
21.4 All
of the accounting and vouchers will be sent to the Master and we are
happy to share with you
as well.
21.5 Information
like copies of their identity documents and banking account details
is kindly requested
in the meantime.
21.6 We
are more than happy to share information at this stage we have only
advertised for debtors
and creditors.
21.7 We
will send a copy of the draft L&D once advert has expired and
sent to you as well.’
[22] On
28 February 2022 the respondents’ attorneys replied to the
applicant’s email
by way of an email in which the following was
stated:
22.1 I refer
to the contents of your email, which are duly noted.
22.2 My
clients are 4 children of the deceased.
22.3 My
instructions are that issues around the Administration of this Estate
by your client are the
cause of concern to my client.
22.4 Further
my clients have been attempted to contact your client regarding their
concerns however
your client has avoided such contact. I have been
made aware that there was an issue between one of our clients and
your client
which got a bit heated, however, I do not have
instructions that this relates to the remaining siblings. The issues
requiring clarification
are the following:
22.4.1
Your client recently sold the property belonging to the estate, to
her brother.
22.4.2 Certain
monies were removed from the deceased’s banking account after
he passed away, by your client. My
clients have proof of the
transactions.
22.4.3 Certain
household items belonging to the estate were removed recently from
the house namely the tv and a fridge.
22.5 Further,
at least 2 of the siblings want to reside in the property. I am
not certain if
your client is residing in the property but if that is
the case our clients are willing to ‘house rules’ in
order to
prevent any bad behaviour between the parties if necessary.
Our clients do all that is reasonable possible to maintain a cordial
relationship with your client.
22.6 I
appreciate the relationship between our clients is not presently the
best but based on the above
I still suggest that a round table or
meeting between the parties will help clear the air and resolve some
if not all the issues
mentioned above.
22.7 Failing
the above I anticipate my clients may proceed with litigation which I
have advised should
be a last resort.
22.8 I
am not in a position to take proper instructions on your clients
request that the information
be forwarded to ourselves in order that
our clients may be updated as to the progress of the matter in light
of the present state
of mind between the parties.
22.9 If
these issues can’t be resolved,
the parties can then
proceed with whatever they deem necessary to accomplish their
intentions
.
22.10 I look
forward to hearing from you.’
[23] On
16 May 2022 the respondents’ attorneys addressed another letter
to the applicant’s
agent in which they stated the following:
23.1 We
refer to the above matter and our previous correspondence of 8 March
2022.
23.2 As
per your previous communications the parties agreed to meet with only
the logistical issues
to be finalised.
23.3 Our
clients have at all times wanted
access
to their father’s
house and three of the beneficiaries desperately seek the premises
for accommodation purposes.
23.4 We
urgently request that a meeting be held to discuss the above either
virtually or face to face.
23.5 Our
clients wish to enter the premises on Monday, 23 May 2022 at 9 am.
23.6 We
request that you inform your client to make the necessary
arrangements so that our clients
have reasonable access to the
premises. Alternatively, your clients hand our clients the keys
and details of the alarm system.
23.7 It
has further come to our clients’ attention that your client has
vacated the premises
and has relocated to Queenstown.
23.8 If
this is correct, then clearly there will be no interaction between
our respective clients.
23.9 We
look forward to hearing from you regarding the above and further your
proposed dates and times
for a meeting.
23.10 Our
clients have indicated that they are frustrated by the lack of
progress in this matter and the fact that they
have not been allowed
to enter the relevant premises of their late father. They have
indicated their intention to approach
the High Court for relief
should this matter not be dealt with reasonable urgency.
23.11 We await
your instructions.
[24]
On
20 May 2022, the applicant’s agent wrote a letter in reply to
the respondents’ letter of 16 May 2022 in which the
following
is stated:
24.1
‘
We
confirm that we act on behalf of Mrs Monalisa Pumla Portia
Mfuniselwa
, the Executrix in Estate Late T
Mfuniselwa (4[…]) herein.
24.2
We
refer to your letter dated 16 May 2022.
24.3
We
confirm that we have conveyed the contents of the aforesaid letter to
our client.
24.4
In
response, our client has requested that we convey to yourselves that
our client is in full occupation of the marital home which
remains
her primary residence.
24.5
She
has neither “vacated” the premises nor “relocated”
to Queenstown as per paragraph 7 of your letter.
24.6
It
will be known to yourselves that the parties in this matter are
subject to an acrimonious relationship due, in part, to your
clients’
criminal conduct – as things stand, there is a protection order
against one of your clients issued after she
assaulted our client.
24.7
We
are instructed to advise that access to the premises will not be
granted. The parties cannot live nor share the premises as this
will
be untenable.
24.8
Your
clients always had their various places of primary residence
elsewhere before and after the deceased’s death. While
our client denies your clients’ averment that they “desperately
seek the premises for accommodation purposes,”
our clients
submit that such desperation is self-created.
24.9
We
hold instructions to oppose any approach to the High Court relating
to your clients’ request and to seek a punitive cost
order
against your clients in this regard.
24.10
Given
the above, we are of the view that any meeting as proposed will not
yield any fruitful results.
24.11
Our
recommendation is that the Estate proceeds to finalisation and your
clients acquire our clients’ majority share, alternatively
the
property is sold, and proceeds distributed in terms of the L&D
account.’
[25]
According
to the applicant on or about the 20 July 2022 the first respondent
broke and entered into the property by disabling the
alarm system of
the property and breaking the door. It is now common cause that
the first respondent gained entry on the
property on 21 July 2022 and
not on 20 July 2022. The first respondent in the company of
Neliswa Festile, Sive Wopa
and a locksmith
from Joe Davis locksmith attended to the property and removed the
lock which was installed at the main gate to the
property, removed
and replaced the security lock on the front door and disabled the
alarm system. It is the first respondent’s
actions which
have triggered this application. According to the applicant she made
multiple verbal demands to the first and second
respondents to vacate
the property which verbal demands did not yield any positive results
and instead elicited intransigence from
the first and second
respondents.
Respondents’
case
[26]
The
house which is the subject matter of these proceedings is registered
in the name of the applicant’s late husband and is
late wife,
Nomsomi Grace Mfuniselwa. The late Nomsomi Grace Mfuniselwa who
was married to the late Thamsanqa Mfuniselwa in
community of
property. The late Nomsomi Grace Mfuniselwa reportedly passed away on
12 September 2014 and the property was later
transferred to the sole
ownership of the late Thamsanqa Mfuniselwa.
[27]
The
first respondent denies that his residential address is Siyaphambili,
N[...], M[...] Gqeberha. He denies that he resides in
the house which
is depicted in annexure “F” to the founding affidavit.
He asserts that since 2005 and at all
material times thereto he
resided at the property. The first respondent goes as far as to
say that they as the first to the
third respondents and the applicant
have all lived together on the property for many years before the
present dispute. The
first respondent admits that the third
respondent’s residence is at 1[...] R[...]Street,
Perridgevale,
Gqeberha
. However, he blames the fact that the
third respondent no longer resides on the property on the applicant.
He asserts that this
situation was occasioned by the applicant’s
actions in unlawfully preventing the third respondent from taking up
residence
on the property. The first respondent states that the
second respondent works as a supervisor for a company known as
Ewemzansi. T
he first respondent
contends that the second respondent’s work commitments as a
supervisor for
Ewemzansi
dictate that he
would frequently work out of town and would therefore be often absent
from the property for elongated periods of
time. However, his
residence has remained on the property where his belongings are
always kept. When the second respondent
returned home when he
was off duty, he sleeps in one of the three (3) flats which were
built by the late Mr
Mfuniselwa
in 2015
while able to use the main house unhindered with his belongings
stored in his bedroom in the main house. When it comes to
him, the
first respondent asserts that he utilised as his bedroom one of the
three (3) flats which were built by is late father
while he continued
to utilise the main house namely the kitchen, the bathroom, the
living room and his bedroom in the main house
where his belongings
are kept. The third respondent was forced to vacate the property by
the police after she had a physical altercation
with the applicant on
25 September 2021, and the applicant has a protection order against
her.
[28]
The
first respondent asserted that in early January 2022 he planned for
his girlfriend Nandi Ndleleni who resides in Mthatha to
visit him on
the property for a short time. However, after the applicant
refused to allow him to be visited by his girlfriend
in order to
avoid any tiff with the applicant, he chose to change the plan and
travel to Mthatha on or about 01 or 02 January 2022
to spend time
with his girlfriend. At that time the second respondent was away for
work purposes. The first respondent asserts
that when he
returned to the property after a week, he could not gain access as
the set of keys he used to access the property
were not effective as
the applicant had changed the locks to the property. When he
contacted the applicant, he could not
be able to get through.
Consequently, he went to live with the third respondent. Equally,
when the second respondent returned
during January 2022, he could not
be able to access the property due to the changed locks. As a result
of being locked out of the
property they sought legal assistance from
their attorneys of record. The relevant correspondence which was
exchanged between the
respondents’ attorneys and the
applicant’s agent is as foreshadowed above. In addition,
they also wished to obtain
advice regarding their rights as
beneficiaries in the intestate estate of their father.
[29]
During
July 2022, the first respondent asserts that he was contacted by
Nawahl May a neighbour who resides at 6[...] J[...]Crescent,
A[...]
P[...], who informed him that the applicant had left the property
vacant for a period of approximately five (5) months.
Ms May
observed,
inter
alia
, that
the grass had grown long and had not been cut, the outside cameras
were not turned on, the house lights were never on, the
windows and
curtains had not been opened for a protracted time. The first
respondent asserts that these allegations were confirmed
by Themba
Wopa, his father’s cousin. After he received this report,
he sought advice from Aloga Park Police Station
and the local
Community Police Forum to whom he explained the state of affairs.
The advice he obtained was that he was being
unlawfully deprived of
access to his residence and could remove the lock to the main gate to
get access to the property. Acting
on this advice on 21 July 2022, in
company of
Neliswa Festile, Sive Wopa and a locksmith from Joe
Davis Locksmiths he attended to the property. He removed the
new lock
the main gate, removed and replaced the lock to the security
gate and he disarmed the alarm system. The first respondent
asserts that he was forced into taking this action as he was
concerned that the applicant had left the property abandoned.
The first respondent denies that the applicant made any attempts to
resolve the issue without resorting to litigation. He
asserts
that it was only on three occasions when he had interactions with the
applicant. The first occasion was on 22 August
2022 when she
arrived on the property with an ADT employee on which occasion, she
called the police in order to eject him out of
the premises.
However, after he explained the facts surrounding how he came to
occupy the property the police declined to
make any intervention as
they considered the issue as being purely a civil matter.
[30]
The
second time she met the applicant was on 28 August 2022 at about
21:50 when she found the applicant on the property in company
of four
men one of whom was the applicant’s brother Andile Joka.
When he got on the property a locksmith was attempting
to unlock the
security gate on the main door to the property and the padlock which
was used to lock the main gate had been destroyed.
Upon enquiring
from the applicant as to what was happening the applicant asserted
that she was moving back to the property.
The four men then
offloaded several items from the truck which included a bed, a
refrigerator, microwave, personal computer, printer,
washing machine
and bags which they left in the lounge and dining room and thereafter
left the property.
[31]
On
the next day 29 August 2022, the applicant again came to the property
and they opened the main gate for her. She deposited
four bags
in the lounge of the property. The respondents provided her
with the key to the security gate at the front door
of the property.
She already had the key of the front door and the remote control to
the motorised gate at the boundary of
the property. They
informed her that they do not have a spare key for the padlock to the
main gate as it was a second-hand
lock which was provided after she
caused the previous lock to be broken. The applicant undertook to
replace the said lock and she
thereafter left the premises.
Approximately on 03 September 2022 the applicant sent three men to
the property with her keys.
They gained access to the property
and moved her belongings which were previously deposited in the
lounge and the dining room to
the main bedroom and they did not
interfere with them until they left the property. The
respondents assert that the applicant
has been provided with the
means by which she can access the property and she can return to the
property at any stage that she
chooses but has elected not to do so
of her own accord.
Has the applicant
abandoned the property
[32]
In
Papas
NO v Motsere Trading CC & Others
[14]
the South Gauteng High Court had the following to say on the occasion
it considered whether an immovable property had been abandoned:
‘
An
abandonment of property by the owner thereof, with the intention to
relinquish ownership, results in the loss of ownership by
derelicto
.
The abended property becomes
res
nullius
and is open to acquisition by another. (See:
Reck
v Mills en ‘n Ander
1990(1) SA
751(A) 757C - D;
Wille’s
Principles of South African Law
9
th
Ed 490/1;
CG van der Merwe Sakereg 2
nd
ed 337). For abandonment there must be an intention by the
owner to abandon the property (See:
Meintjes
NO v Koetsee & Others
2010(5) SA
186 (SCA) [16]). Whether a clear intention of abandonment
exists is a question of fact to be proved in each case
(cf
Salvage
Association of London v SA Savage Syndicate
1906 SC 169
at 17;
Goldstein & Co
(Pty) Ltd v Gerber
1979 (4) SA 930
(A)
at 936/7).’
[33]
For
a defence of abandonment to succeed the owner of the property must
have exhibited an intention to abandon the property.
The
respondents’ defence of abandonment is unsustainable because at
no stage did the applicant exhibit any intention to abandon
the
property. This defence by the respondents is clearly contrived
if regard is had to annexure “L” to the applicant’s
founding affidavit where the applicant unequivocally states that she
is in full occupation of the marital home which remains her
primary
residence. She has neither “vacated” the premises nor
“relocated” to Queenstown as alleged by the
respondents.
This defence must fail for a further reason and that reason is that
when the first respondent took occupation
of the property on 21 July
2022, the property was locked and he had to enlist the services of a
locksmith to remove the lock to
the main gate to the property, remove
and replace the security lock on the front door and disabled the
alarm system. In any
event
possession
of the keys is equivalent to possession of the building and a
temporary absence would not be taken as abandonment.
[15]
The
mere fact that the grass might not have been cut and the lights not
lit and the curtains not opened and closed can never sustain
a
defence of abandonment and the result this defence must fail.
A
mandament van
spolie
[34]
In
order to succeed, an applicant for a
mandament
van spolie
is
required to establish two requirements namely that he or she was in
possession of the property concerned and that he or she was
unlawfully deprived of that possession without his or her consent and
against his or her will.
[16]
Was the applicant in
possession of the property
[35]
I
have already rejected the respondents’ defence of abandonment
as unsustainable. It is undisputed that between 01 January
and
20 July 2022 the applicant was in peaceful and undisturbed possession
of the property. She had full control of the property,
and this
necessitated the respondents through their attorneys of record to
make a specific request for access and to return to
the property.
[36]
It
is not in dispute that on 21 July 2022 the first respondent in
company of
Neliswa Festile, Sive Wopa and a locksmith from Joe
Davis Locksmiths. They attended to the property and unlawfully
entered
the property by removing a lock from the main gate, removing,
and replacing the security lock from the front door with the first
respondent disarming the alarm system. In the circumstances, I
find that the applicant has been despoiled of her possession
of the
property.
[37]
The
essence of the
mandament
van spolie
is
the restoration before all else of unlawfully deprived possessions to
the possessed. It finds expression in the
spoliatus
ante omnia restituendus est
(a despoiled person must be restored to possession before all else).
The spoliation order is meant to prevent the taking
of possession
otherwise than in accordance with the law. Its underlying
philosophy is that no one should resort to self-help
to obtain or
regain possession. The main purpose of the
mandament
van spolie
is to preserve public order by retaining persons from taking the law
into their own hands and by inducing them to follow due process.
[17]
[38]
Mr
Moorhouse the respondents’ counsel relying on the case of
Malan
& Another v Green Valley Farm Portion 7 Holt Hill 434 &
Another
[18]
argued that the applicant was being unnecessarily difficult and
unreasonable in that she was given the spare keys to the property.
I disagree with that argument. The applicant has been
dispossessed of the property and once that has been proved it is not
up to the respondents to decide in which way must the possession of
the property be restored.
Is PIE applicable to
the case
[39]
This
question can be answered if one has reference to the case of
Afzal
v Kalim
[19]
where Plasket J (as he then was) when confronted with a similar
question stated as follows:
‘
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
s26(3) of the Constitution 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 eviction.”
PIE’s
preamble after first making reference to the property right in s25(1)
of the Constitution, then also makes reference
to s26(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.’
[40]
The
question of whether the property is the respondents’ home can
be answered if one has regard to the letters which were
exchanged
between 18 January and 20 May 2022 between the applicant’s
agent and the respondents’ attorneys. From
these letters
it is clear that at least between the period January and 20 July 2022
the respondents did not use this property as
their home. If one
has regard to the second last sentence of annexure “J” to
the founding affidavit in which
the respondents state unequivocally
that “
if these issues cannot be
resolved, the parties can then proceed with whatever they deem
necessary to accomplish their intentions
.
The occupation of this property was therefore premeditated and
clearly calculated to hinder the applicant in being able
to
administer the estate as the respondents were openly opposed to the
property being sold if they were unable to buy the applicant
out.
Had the respondents been locked out of the property, there would have
been no reason why in their correspondence which
was directed to the
applicant’s agent, this issue was never raised. Moreover,
there would have been no need for the
first respondent to seek the
advice of the police and the community policing forum and ignore the
correct advice from his attorneys
that they would approach a court of
law and seek an appropriate relief. Furthermore, the first
respondent clearly avoided
disassociating himself with the house
which is depicted in annexure “F” and which has been
attributed to him as his
home. While the second respondent is
said to be working out of town it has not been indicated where
exactly does he reside
when he was out of town. This
respondents’ contentions are therefore not only a smokescreen,
they are also far-fetched
and were clearly designed as a stratagem to
create disputes of fact when there are none in this case.
[41]
In
my view in bringing this application as she did, the applicant was
not acting contrary to the injunction adumbrated by Selikowitz
J in
City
of Cape Town v Rudolf & Others
[20]
that
mandament
van spolie
should
not be used to circumvent the protection given to occupiers of homes
by PIE as this case does not fall in such a category
of cases.
In the circumstances, I find that PIE does not apply to this case
because the property in respect of which the
applicant seeks the
restoration of her possession from the respondents is not their home
as the correspondence which was exchanged
between the respondents’
attorneys and applicant’s agents amply demonstrates.
[42]
In
conclusion, I am also satisfied that the applicant has discharged the
onus of showing on the papers that the respondents wrongfully
deprived her of her possession of ERF 9[...] A[...] P[...], Gqeberha,
held by Deed of Transfer T9[…] CTN against her consent.
Costs
[43]
The
general rule regarding costs is that the costs follow the event
.
I do not see any reason why I should depart from that rule.
Both counsel urged me to award costs on a punitive scale
in this
case. Mr Jongwana the applicant’s counsel urged me to award
costs against the respondents on a punitive scale as
between attorney
and client if the applicant was successful. While Mr Moorhouse
urged me to award costs on a punitive scale
as between attorney and
client on a
de bonis propriis
basis against the applicant if
the respondents were successful. This is not an appropriate
case in which to award costs on
a punitive scale. I will
therefore award costs on a party and party scale.
[44]
In
the result, I make the following order:
1. The
first and second respondents be and are hereby directed to forthwith
make
over and restore the applicant’s peaceful and undisturbed
full possession, occupation, use and control of the property
described
as ERF 9[...] A[...] P[...], Gqeberha, held by Deed of
Transfer T[…]CTN (hereinafter referred to as “the
property’);
2. In
the event of the first and second respondents failing to act as
directed in
paragraph two (2) above, the Sheriff of this Honourable
Court and if needs be, duly assisted by the members of the South
African
Police Service, be and is hereby directed and authorised to
give effect to the order contained in paragraph two above by removing
the first and second respondents from the property and handing the
keys to the applicant;
3. The
first and second respondents be and are hereby interdicted and
restrained
from unlawfully interfering with the applicant’s
possession, occupation, use and control of the property; and
4. The
first, second and third respondents are ordered to pay the costs this
application
jointly and severally one paying the other to be absolved
on a party and party scale.
M.M.
CHITHI
ACTING
JUDGE OF THE HIGH COURT
APPEARANCES
Counsel
for the applicant : N T Jongwana
Instructed
by :Joubert
Galpin & Searle
173
Cape Road
Mill
Park
Gqeberha
Tel:
041 396 9227
Email:
andam@jgs.co.za
Ref:
MFU8/0001/Anda
Counsel
for first to third respondent : A C Moorhouse
Instructed
by
:Nash Vandayar and Associates
165
Cape Road
Mill
Park
Gqeberha
Tel:
041 487 0730
Email:
reception@nashvandayar.co.za
Ref:
NV/Is/MF22
Heard
on
:17 November 2022
Delivered
:13 December 2022
[1]
Prevention of Illegal Eviction from and Unlawful Occupation of Land
Act 19 of 1998.
[2]
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634E - I.
[3]
National
Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA) para 26;
Plascon-Evans
(note 2) at 634I-635D.
[4]
Blendrite
(Pty) Ltd v Moonisami
2021 (5) SA 61
(SCA) para [6
];
Mangala v Mangala
1967 (2) SA 415
(E) at 463D - F.
[5]
Silberberg
& Schoeman’s, The Law of Property 4
th
Ed p271.
[6]
Nelson
Mandela Metropolitan Municipality & Others v Greyvenouw CC &
Others
2004 (2) SA 81
(SE) at 94 C-D;
Transnet
Ltd v Rubenstein
2005 (3) All SA 425
(SCA) at 434 - 435;
Lau
v Real Time Investments
165 CC (50134/2009) [2019] ZAGPPHC 313 (23 July 2019).
[7]
[1990] ZASCA 149
;
1991 (1) SA 567
(AD) at 575H - I.
[8]
Kommissaries
Van Binnelandse Inkomste
v Van
de Heever
1990 (3) SA 1051
(SCA) para [10].
[9]
Jacobs
& Another v Waks & Others
1992(1) SA 521 (A) at 534 A-E.
[10]
Sandton
Civic Precinct (Pty) Ltd v City of Johannesburg & Another
[2008] ZASCA 104
;
2009 (1) SA 317
(SCA).
[11]
Jele
NO v Ngcango & Another
1951
(2) SA 151 (T).
[12]
Jacobus
v Brumann NO
2009
(5) SA 432
(SCA) at 437G - H.;
Gross
& Others v Pentz 1
996
(4) SA 617
(SCA) at 70H - 71A
[13]
Index
2: (Pleadings Cont.): page 97 paragraph 80; page 115 paragraph 209
[14]
[2014]
ZAGPJHC 144 (6 June 2014) at para 4 and the authorities cited
therein.
[15]
Wightman
t/a JW Construction v Headfour (Pty) Ltd & Another
[2008] ZASCA 6
;
2008
(3) SA 371
(SCA) para [26].
[16]
Yeko
v Qana
1973(4)
SA 735 (A) at 739 E - F;
Nino
Bonino v De Lange
1906 TS 120
at 122.
[17]
Ngqukumba
v Minister of Safety and Security & Others
2014
(5) SA 112
(CC) para [10];
George
Municipality v Vena & Another
1998
(2) SA 263
(A) at 271H - 272B.
[18]
[2007]
JOL 19243 (C).
[19]
2013
(6) SA 176
(ECP) para 24.
[20]
City
of Cape Town v Rudolf & Others
2004
(5) SA 39
(C).