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2023
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[2023] ZAFSHC 91
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Ferreira Equestrian Centre (Pty) Ltd v Spies and Another (400/2023) [2023] ZAFSHC 91 (24 March 2023)
IN THE HIGH COURT
OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
CASE NO: 400/2023
In the matter between:
FERREIRA EQUESTRIAN
CENTRE (PTY) LTD APPLICANT
and
CHRISTO
SPIES FIRST
RESPONDENT
HARRISMITH POLO
CLUB SECOND
RESPONDENT
JUDGMENT
BY
:
Gusha,
AJ
HEARD
ON
: 2 March 2023
DELIVERED
ON
: This judgment
was delivered electronically by circulation to the parties’
representatives by way of email.
The date and time for delivery is
deemed to be at 14h00 on 24 March 2023.
JUDGMENT
[1]
This is an opposed application wherein the
Applicant seeks an order directing the Respondents to restore its
full access to and
undisturbed possession of the polo fields situated
at the Harrismith Polo Club (the club), by removing a fence erected
thereon
on the 24
th
and 25
th
January 2023. This application was brought within the purview of a
mandament van spolie.
[2]
The Applicant is a duly registered and
incorporated private company conducting business as an equestrian
centre at the club. It
is duly represented herein by Ms Ferreira, its
sole director and shareholder. The 1
st
Respondent is an adult male and a member of the 2
nd
Respondent. The 2
nd
Respondent, the club, is an association with perpetual succession
which can acquire rights apart from its members and conducts
a polo
sports club at the polo fields.
[3]
Pursuant to the aforesaid fence being
erected, the Applicant, on an urgent basis, approached this court on
the 14
th
February 2023. My learned brother Tsangarakis AJ, declared the matter
urgent and granted leave for the joinder of the 2
nd
respondent to the main application. He further granted leave to the
Applicant to amend its notice of motion and founding affidavit
in the
main application by filing its amended notice of motion as well as
its supplementary founding affidavit in the application
for the
joinder of the 2
nd
Respondent. Costs in those proceedings stood over for adjudication in
the main application.
[4]
This matter was eventually postponed to the
opposed motion roll for adjudication and my learned sister Van Rhyn
J, directed that
the parties file heads of arguments, which were duly
filed, and made no order as to costs.
[5]
At the time of hearing this matter the
Applicant conceded that due to the trajectory this matter took prior
to hearing, the urgency
thereof had ceased and consequently moved for
the granting of prayers 2 and 3 as per the amended notion of motion.
[6]
It is not in dispute that the Applicant has
since March 2020 conducted business at the club, at a fee and for its
own benefit. Its
business consists of horse training, schooling,
livery, stabling, as well as “eventing”. It caters to
approximately
43 members and has 34 horses, 19 of which are stabled
at the club’s stables. Its main selling point being that its
members
can ride their horses on the polo fields as evinced by the
photos as depicted on its Facebook page.
[7]
Subsequent to receiving a message from the
1
st
respondent on the 24
th
January 2023, informing the Applicant to refrain from using the polo
fields, the 1
st
Respondent and others under his direction, removed its equipment from
the polo fields and erected a fence. On the 25
th
January 2023 the said fence was fully erected with the result that
Applicant’s access to the polo fields was now truly and
completely curtailed.
[8]
The Respondents do not dispute that the
Applicant had access to and use of the club. What is placed in issue
is which portion of
the club the Applicant was entitled to use, the
FEC arena, the polo fields or both. It is the contention of the
Respondents that
the Applicant only had use of the FEC arena and was
on numerous occasions pertinently informed to desist from using the
said fields.
The Respondents however alluded to knowing that the
Applicant, from time to time made use of the polo fields, but contend
that
this did not establish free and undisturbed possession of the
fields, as it was informed to desist therefrom whenever it and or
its
members, were spotted using the fields. As a result of her failure to
heed the warnings the fence was, at the instance of the
2
nd
Respondent, erected around the polo fields, leaving the Applicant
still with access to the FEC arena.
[9]
Further, that proof that the Applicant did
not have use and control of the polo fields, is to be found in the
Whatsapp messages
exchanged between the parties, as the Applicant, so
it was submitted, therein sought permission from the 1
st
Respondent to use the polo fields. I shall at the opportune time
revert to this aspect.
[10]
The main submissions advanced on behalf of
the applicant is that on the undisputed facts before the court, it is
clear no issue
is taken with spoliation as the Respondents do not
dispute erecting the fence nor that it was erected at the instance
and behest
of the 2
nd
Respondent. For that reason, it was submitted, that I should find
that the 1
st
and 2
nd
Respondents are co-spoliators. It was further submitted that I must
find that the Applicant had free and undisturbed possession
of the
polo fields as it had used said fields daily, freely and in plain
sight since March 2020, as evinced by the presence of
its equipment
on the field as well as the photographs depicting its members and
riders on the polo fields. The Applicant further
averred that in
conducting its business, it had, in addition to the undisputed access
to the FEC arena, free and undisturbed access
to and use of the polo
fields where the majority of its activities were, for approximately 3
years, conducted thereon in plain
sight.
[11]
The Respondents submitted that the
Applicant had access to and use of only the FEC arena and not the
polo fields. It was averred
that the Applicant could not have had
sole use and control of the fields as the Respondents also used the
fields for the past 30
years. The genesis of this averment escapes
me, as I do not understand the Applicant’s case to be that, at
the time of the
alleged spoliation, it had sole and exclusive use of
the fields.
[12]
To fortify its averments, the Respondents
relied on the WhatsApp message exchanges. I am loathe to burden this
judgment any more
than I have, however in the context of this
application and the findings I reach hereunder, I would be remiss if
I do not deal
with a few extracts of their exchanges. On the 7
th
February 2022 Ms Ferreira sent a message to the 1
st
Respondent in the following terms;
“
Christo
skies ek pla jou jou op vakansie, Mag ons op die polo veld ry? Ek
gaan die dresseer baan teen my heining opste vir Vicky
se dogter laat
hy nie op die veld is nie, maar mag ons op m outride op die veld ry?”
[1]
In response the 1
st
respondent wrote;
“
Hi
nee glad nie op die veld nie asb Ek het wel vir V gese sy kan laat
Tyla agter die pale net sy”
“
Die
velde is off limit asb”
[2]
[13]
At this stage of the judgment already it is
prudent to mention that the Applicant disputed that these messages
served as proof that
she did not have access to and use of the polo
fields, contending however that these were sent as a courtesy as the
grass on the
fields was at that stage being cut in preparation for an
upcoming tournament.
[14]
It
was argued that as the Applicant seeks final relief and to the extent
that there is a clear dispute of facts, this court had
to apply the
trite approach employed in the Plascon Evans case
[3]
wherein the court held that:
“…
where
in proceedings on notice of motion disputes of fact have arisen on
the affidavits, a final order, whether it be an interdict
or some
other form of relief, may be granted if those facts averred in the
applicant's affidavits which have been admitted by the
respondent,
together with the facts alleged by the respondent, together with the
facts alleged by the respondent, justify
such an order. The
power of the Court to give such final relief on the papers before it
is, however, not confined to such a situation.
In certain instances
the denial by respondent of a fact alleged by the applicant may not
be such as to raise a real, genuine or
bona
fide
dispute of fact…”
[15]
The Respondent implored this Court to find
that the dispute between the parties regarding the Applicant’s
alleged possession
of the polo fields, is a genuine and
bona
fide
dispute of fact which cannot be
resolved merely on the papers. In that respect they besought this
Court to refer the dispute for
oral evidence. They contend that their
version would be supported and conclusively be established through
oral evidence. The Applicant
in turn implored this court not to refer
this matter for oral evidence as no genuine dispute of fact existed.
I shall at the
opportune time revert to this aspect.
[16]
It was finally further submitted that the
Applicant did not pass muster of the requirements for the
mandament
van spolie,
as it failed to establish
what measure of control it had over the fields and that it was
unlawfully deprived of free access to
and undisturbed possession
thereof. Further that mere access to the fields did not establish
free and undisturbed possession thereof.
If, however the court found
that spoliation occurred, the Respondents urged the court to find
that the 1
st
and 2
nd
Respondents were not co-spoliators as the 1
st
Respondent acted at the instance of the 2
nd
Respondent.
[17]
It is against the aforementioned factual
milieu that I am called upon to decide whether at the time the fence
was so erected the
Applicant had control of and undisturbed
possession of the polo fields.
[18]
As
correctly submitted by the parties, two requirements must be met in
order to obtain the remedy. Firstly the party seeking the
remedy
must, at the time of the dispossession, have been in possession of
the property. The second is that the dispossessor must
have
wrongfully deprived them of possession without their consent. The
mandament
van spolie
is
a possessory remedy which is available to a person whose peaceful
possession of a thing has been disturbed. It lies against the
person
who committed the dispossession. The
mandament
is
not concerned with the underlying rights to claim possession of the
property concerned. It seeks only to restore the
status
quo ante.
It
does so by mandatory order irrespective of the merits of any
underlying dispute regarding the rights of the parties. The essential
rationale for the remedy is that the rule of law does not countenance
resort to self-help
[4]
.
[19]
The
court in
Ngqukumba
v Minister of Safety and Security and Others
[5]
succinctly held that:
The
essence of the mandament van spolie is the restoration before all
else of unlawfully deprived possession to the possessor. It
finds
expression in the maxim spoliatus ante omnia restituendus est (the
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 restraining persons from taking the law into
their own hands and by inducing them to follow due
process.
[20]
The
legal principles in regards of the
mandament
van spolie
are clear and very few defenses thereto can be raised. The
Applicant’s possession must be restored first and foremost (if
it would be legal to do so) and thereafter the dispute as to the
legality of any right relied upon could be considered.
[6]
[21]
At the risk of repetition, it is common
cause between the parties that the Respondents erected a fence which
curtailed the Applicant’s
access to the polo fields. The only
fact in disputed being whether the Applicant had, in the first place,
free and undisturbed
access thereto. From the dates on which the
WhatsApp exchanges occurred between the parties, it can clearly be
gleaned that same
occurred almost a year before this dispute between
them arose. A careful reading of all of the messages attached to the
papers,
reveal that the parties were in constant communication and
being civil with each other, I might add, (at least until the 23
rd
March 2022) as per the attached messages, on diverse days and over
various issues pertaining to the usage of the club.
[22]
Against this backdrop therefore, it is
inexplicable why they would wait almost a whole year before taking
action against the Applicant’s
infringing actions of
continually using the polo fields. Consequently, I can arrive at no
other conclusion than, that at some point,
during their association
with the Applicant, the Respondents had no quibble with the Applicant
using of the polo fields,
until the fence was erected. This
much is evinced by the presence, in plain sight, of the Applicant’s
equipment on the field.
Considering that the parties were no longer
on speaking terms at the time of this dispute (an aspect not disputed
by the Respondents),
I can only surmise that something must have
happened to trigger this change in attitude in the Respondents.
[23]
I
could find no genuine or
bona
fide
dispute on these facts, the Applicant on a careful reading of the
conspectus of the evidence was clearly on a balance of probabilities
using and had access to the polo fields. Not only was it using same
for its benefit as evinced by the attached photographs, the
presence
of its equipment on the field, the following WhatsApp message sent by
the 1
st
Respondent to the Applicant lends credence to this
[7]
;
“
More
Sam
Ons gaan die B veld
ook sny vandag…as daar van jou perde ook daar loop…”
The Respondent’s
contention that the Applicant at no point had access to the fields is
simply untenable and does not justify
a referral for oral evidence. I
am satisfied that the facts averred in the Applicant's affidavits
which have been admitted by the
Respondents, the erection of the
fence, together with the facts alleged by the Respondents (absence of
proof that the Applicant
had exclusive use and control of the
fields), justify the granting of the order as sought by the
Applicant.
[24]
Having
established that the Applicant successfully passed muster of the 1
st
requirement, spoliation, what remains for decision is whether it had
possession of the polo fields. On this score too, I am not
persuaded
by the Respondents’ arguments that in order to succeeded the
Applicant had to show that it had effective control
of the fields and
intended to secure some benefit from it. In spoliation matters what
the court is concerned with is not possession
in the judicial sense
but rather
de
facto
possession. Differently put, the court is not concerned with the
lawfulness, or otherwise, of the possession, only that the Applicant
was in
de
facto
possession
[8]
. The facts of
this case reveal that the Applicant had
de
facto
possession and she ran an equestrian centre for profit at the club
and more specifically on the polo fields. Any other dispute
that the
parties may have with regards to the lawfulness, or not, of the
Applicant’s possession, falls outside the purview
of these
proceedings.
[25]
Having arrived at the aforementioned
conclusion it follows that there could be no other finding other than
that the 2
nd
Respondent is a co-spoliator. It is after all the case for the 1
st
Respondent that he acted at the instance and behest of the 2
nd
Respondent. The 2
nd
Respondent being an entity, was incapable of carrying out the
spoliation itself, hence the instruction to the 1
st
Respondent. The 2
nd
Respondent, though not physically carrying out the spoliation, it
played a pivotal role in the spoliation. Without its instruction
same
would not have been carried out.
ORDER
[26]
Resultantly, I make the following order:
1.
The 1
st
and or the 2
nd
Respondents are ordered to restore forthwith to the Applicant full
access to and undisturbed possession of the polo fields, Harrismith
by removing the fence that was erected on the 24 and 25 January 2023.
2.
The Respondents are ordered to pay
the costs of this application, on a party and party scale, jointly
and severally, the one paying,
the other to be absolved.
Gusha,
AJ
On
behalf of the applicant Adv.
J Els
Instructed
by: EG
Cooper Majiedt Inc
BLOEMFONTEIN
On
behalf of the respondent: Adv.
CD Pienaar
Instructed
by: Lovius
Block
BLOEMFONTEIN
[1]
Annexure “CS6”, page 85
[2]
Annexure “CS6”, page 86
[3]
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at
634; National Director of
Public
Prosecutions
v Zuma (573/08)
[2009]
ZASCA 1
(12 Jan 2009) at par [26]
[4]
Monteiro
and Another v Diedricks
(Case
no 1199/19)
[2021] ZASCA 015
(2 March 2021) at par 14
[5]
2014
(5) SA 112
(CC) par 10
[6]
Harrismith
Intabazwe Tsiame Residents Association (Pty) Ltd and Others v
Maluti-A-Phofung Local Municipality and Another (567/2022)
[2022]
ZAFSHC 151
(14 June 2022)
[7]
WhatsApp
message sent on 7
th
February 2022, Annexure “CS6”, page 82
[8]
God
Never Fails Revival Church v Mgandela 2019 JDR 2063 (ECM)