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[2023] ZAFSHC 367
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Graceful Blessing (Pty) Ltd v Zander Burger Properties (Pty) Ltd (A32/2023) [2023] ZAFSHC 367; 2024 (2) SA 441 (FB) (27 September 2023)
FLYNOTES:
CONTRACT – Lease –
Commercial
premises
–
Owner
relying on clause providing for ejectment and changing the locks –
Application by tenant for
mandament
van spolie
succeeding
in High Court – Provisions in contracts to regulate
extra-curial process may be justified if
pacta
sunt servanda
counterbalanced
with constitutional principles – Choice of words in this
case not passing bar and providing that owner
may take any action
for ejectment of tenant – Appeal dismissed.
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
no:
A32/2023
Court
a quo Case Number:
2102/2022
In
the matter between:
GRACEFUL
BLESSINGS (PTY) LTD
and
ZANDER
BURGER PROPERTIES (PTY) LTD
Appellant
Respondent
CORAM:
MBHELE, DJP, VAN ZYL, J
et
CRONJÉ, AJ
HEARD
ON:
21 JULY 2023
DELIVERED
ON:
27 SEPTEMBER 2023
JUDGMENT
BY:
P
R CRONJÉ, AJ
INTRODUCTION
[1]
The Appellant (herein referred to as “
Graceful Blessings
”)
is the registered owner of a commercial property in Bloemfontein. The
Respondent (herein referred to as “ZBP”)
leased the
premises in terms of a written lease agreement. On 4 November 2021,
Graceful Blessings cancelled the lease agreement,
which ZBP maintains
was not properly done and on 6 May 2022, Graceful Blessings changed
the locks of the premises. ZBP brought
a spoliation application to
have its possession restored.
[2]
The matter came before Daniso, J on 2 June 2022, and on 25 July 2022,
she found that
Clause 18 of the written lease agreement does not
entitle Graceful Blessings to change the locks without recourse to
law.
The application for a Mandament van Spolie succeeded, with
costs.
[1]
[3]
Dissatisfied with the judgment, Graceful Blessings brought an
application for leave
to appeal against the judgment and on 12
October 2022 Daniso, J dismissed the application with costs.
[2]
Dissatisfied with the dismissal of the application for leave to
appeal, Graceful Blessings obtained leave to appeal from the Supreme
Court of Appeal on 10 February 2023.
[3]
FIRST
GROUND OF APPEAL
4.1
The Court
a quo
should have considered the merits of the
substantive right to possession relied on by ZBP and not only the
question whether ZBP
was factually in possession as would be required
generally in a spoliation application and ought to have made a
finding in respect
thereof;
4.2
ZBP was in breach of the agreement and the Court ought to have found
that the lease agreement
was validly cancelled;
4.3
Clause 17 of the lease agreement did not afford ZBP any right to
remain in occupation;
4.4
No dispute exists between the parties as contemplated in Clause 17 of
the lease agreement;
and
4.5
ZBP failed to discharge the onus of proving a valid substantive right
to remain in occupation
of the leased premises and/or to have its
possession of the leased premises restored.
[4]
SECOND
GROUND OF APPEAL
[5]
The Court failed to apply the test in
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[5]
in relation to whether ZBP had a substantive right to remain in
occupation of the premises.
[6]
THIRD
GROUND OF APPEAL
[6]
The Court
a quo
ought to have found that the parties set out
the result that may follow from a breach of the agreement – the
right to retake
possession of the property and:
6.1
Ought to have found that the parties expressly agreed that Clause 18
of the lease agreement
- the consequences which may flow from breach
of the lease agreement affording Graceful Blessings the right to
obtain repossession
and to take whatever action may be necessary for
immediate ejectment of ZBP;
6.2
Ought to have found that ZBP had contractually agreed to forfeit its
rights in the property
and Graceful Blessings’ conduct
was not unlawful;
6.3
Erred in relying on
La
Familia Street Culture (Pty) Ltd v Amber Brand Investments (Pty)
Ltd
[7]
(“La Familia)
as
support for the proposition that Graceful Blessings’ actions
were unlawful; and
6.4
The
La
Familia
did
not entail a dispute in which the Respondent alleged that the parties
had contractually agreed to forfeit rights to property.
[8]
FOURTH
GROUND OF APPEAL
[7]
The fourth ground of appeal is that the Court
a quo
erred in
finding that Clause 18 of the lease agreement is in conflict with
“
the fundamental principle of the Mandament van spolie
”;
and
7.1
In considering the validity of Clause 18 of the lease agreement, the
Court
a
quo
entered
the arena of conflict between the parties and decided upon issues
which were not in dispute or even raised by either of
the parties in
the Court
a
quo
.
[9]
ISSUES TO BE
DETERMINED
[8]
This matter raises three issues to be determined in order to find
whether this Court
could find that the Court
a quo
was
incorrect. The three issues are:
8.1
Whether ZBP went further than merely stating the requirements for
spoliation – free
and undisturbed possession and unlawful
deprivation. In other words did it rely on a (contractual) right to
occupation. This will
provide an answer to the first and second
grounds of appeal;
8.2
Whether Graceful Blessings, depending on an affirmation of paragraph
4.1
supra
, showed that it was entitled to cancel the
agreement. This will answer the third ground of appeal; and
8.3
Whether Graceful Blessings, having regard to the terms of the lease
agreement, had the right
to change the locks without recourse to the
courts.
ZBP’s FOUNDING
PAPERS
[9]
In its founding affidavit in the application for a spoliation order,
it stated:
“
4.1
This
application concerns spoliation. Which would have the effect of the
Respondent returning the peaceful and undisturbed possession
of the
Applicant
…
[10]
[my
emphasis]
…
4.4
The Applicant is leasing the premises from the Respondent, and have
been so leasing the premises since
27 February 2020.
I
annex hereto a copy of the lease agreement as annexure “ZB1
”.
[my emphasis]
4.5
During or about 4 November 2021, the Respondent
[Appellant]
sought
to cancel the lease agreement – which the Applicant maintains
was not properly done – and the Applicant continues
to pay rent
towards the leasing of the premises.
”
[11]
[10]
It went further to state:
“
6.1
... I however
invite
the respondent
to in its opposing papers and in anticipation of the return date to
show to Court what
justification
there was for the dispossession
.
”
[12]
[my emphasis]
[11]
It is clear from this passage that Graceful Blessings were invited to
deal with the merits of the cancellation
and dispossession of ZBP.
The challenge was accepted by Graceful Blessings, in stating:
“
By
virtue of the fact that the applicant’s application, both in
the evidence proffered by the applicant and the relief sought,
goes
beyond what is permitted under the Mandament van Spolie, it will be
argued that a finding it [sic] to be made by the Court,
in relation
to the applicant’s purported ‘
right’
of occupation
of the leased premises and that the application cannot succeed unless
the applicant establishes in this regard, a clear right which
is
enforceable against the respondent
.
”
[13]
[my emphasis]
[12]
Graceful Blessings appended a number of documents, being letters
which
inter
alia
indicate the basis for the cancellation of the lease agreement. The
highwater mark of ZBP’s defence is to be found in a letter
dated 9 November 2021, stating: “
It
is
our
instructions that
our
client dispute your client’s right to cancel the lease
agreement
.
We confirm that
in
terms of clause 17 of the lease agreement our client is
entitled
to remain in occupation of the premises until the dispute has been
resolved
.”
[14]
[my emphasis] No substance was given to what this dispute is and the
continued reliance on clause 17 brought the application within
a
rights dispute and, no longer merely a possessory dispute. ZBP was
now riding two horses to the stable. The court
a
quo
was alive to this.
[15]
[13]
ZBP belatedly attempted to skirt the invitation to deal with the
“justification for the
dispossession”.
[16]
[14]
In its replying affidavit, ZBP stated that it is immaterial whether
it came into possession by means
of an agreement or otherwise.
[17]
Graceful Blessings took repossession of the property without bringing
an eviction application.
[18]
Without ZBP’s consent or by means of a Court order, it was
dispossessed.
[19]
“
I
submit that this application brought by myself, is not contingent on
whether or not my possession was obtained contractually or
otherwise,
it is simply whether or not the Applicant was in possession at the
time of unlawful dispossession.
”
[20]
[15]
It states that it did not invite Graceful Blessings to deal with the
lawfulness of ZBP’s application
but to show what
justification
there was for the dispossession.
[21]
It further states:
“
I
deny that there is any reason sound in law to consider the merits or
the validity of the underlying causa.
”
[22]
[16]
Graceful Blessings’ argument before the Court
a
quo
was
that the law is clear that spoliation should be refused where the
right to possession is relied upon as contractual rights are
purely
personal in nature.
[23]
[17]
The Court quo was in my view correct in her conclusion.
However, that is not the end of the enquiry
as ZBP also rode the
horse of spoliation, which it never dismounted.
[18]
The second issue is whether Graceful Blessings was entitled, upon
cancellation, to retake possession.
[19]
Graceful Blessings argues that Clause 18 of the lease agreement
provides for the consequences
which may flow from a breach of the
lease agreement. It would
inter alia
acquire the right to
obtain possession and for that purpose take whatever action may be
necessary for immediate ejectment. It argues
that the court
a quo
ought to have found that the parties had contractually agreed to
forfeit the rights and Graceful Blessings’ conduct was not
unlawful.
[20]
In order to answer this, the starting point has to be the relevant
provisions of clause 17 of
the lease agreement:
“
In
the event of the Lessor cancelling this Lease and
in
the event of the Lessee disputing the right to cancel and remain in
occupation of the leased premises the Lessee shall, pending
determination of such dispute either by
negotiation
or litigation
,
continue to pay an amount equivalent to the monthly rental provided
in this Lease
,
… and the Lessor shall be entitled to accept and recover such
payments, and
such
payments and acceptance thereof shall be without prejudice to and
shall not in any way whatsoever affect the Lessor’s
claim of
cancellation then in dispute
.
”
[24]
[my emphasis]
[21]
On 15 October 2021, Graceful Blessings placed ZBP in
mora
for payment of arrears.
[25]
In
a letter by the attorneys of Graceful Blessings, dated 4 November
2021, it is
inter
alia
stated:
“…
our
client shall proceed to take
repossession
of the leased premises … on 9 November 2021.
”
[26]
[my emphasis]
[22]
It is of importance to note that ZBP did not rely in its founding
affidavit on either Clauses 17 or
18 but Graceful Blessings did in
the answering affidavit. The attorneys of ZBP, in its letter dated 9
November 2021, relied on
Clause 17 for its entitlement to remain in
occupation until the dispute is resolved.
[27]
The clause, however, does not afford such right.
[23]
Unless there is a dispute, which off course has to be
bona
fide
,
and which is not evident on its papers, ZBP cannot rely on Clause 17
for any right (in a contractual sense) to remain in occupation.
This
was made clear in a letter from Graceful Blessings’ attorney
dated 1 March 2022.
[28]
[24]
I need not make a definitive decision on the merits of the
cancellation, safe to state that the
papers, as they stand, do give a
prima facie
impression that Graceful Blessings was entitled to
cancel. There is nothing to show what exactly the dispute is. Clause
17 does
not provide for a right to remain in occupation. The answer
to the second issue is interlinked with the third issue.
[25]
The third issue is whether Graceful Blessings, having regard to
clause 18 of the lease agreement,
had the right to change the locks
without recourse to the courts. One has to look at the relevant
provisions of the clause. It
reads:
“
Should
the Lessee fail, neglect or refuse to pay any rent and/or other
monies herein stipulated within SEVEN (7) days of the date
on which
payment is due, or if the Lessee or any sub-tenant of either the
Lessee or the sub-tenant of the Leased Premises, …
fails,
neglects or refuse to comply strictly with or carry out any
term or condition of this lease …
the
Lessor shall have the right to cancel this contract by written notice
sent to the Lessee by the Lessor or his Agent or Attorney in the
manner set forth in clause 14 (hereof)
and
to obtain
repossession
of
the Leased Premises as against the Lessee and any sub-lease and for
that purpose
to
take whatever action may be necessary for the immediate ejectment
of the Lessee … from the Leased Premises
.
”
[29]
[my emphasis]
ARGUMENTS
[26]
Mr R van der Merwe, who appeared for Graceful Blessings, argues that
the Court
a quo
, even though finding that ZBP’s stance
was that it had a substantive right to remain in occupation of the
premises, failed
to consider the merits of the right which Graceful
Blessings relied on. It is the primary point on which the Court
a quo
allegedly erred.
[27]
He argues that Clause 18 expressly states what the consequences of a
breach would be, namely repossession
and for that purpose to take
whatever action is needed. It is on this clause that Graceful
Blessings exercised its rights.
He supports the Court
a
quo
’s
reliance on
Street
Pole Adds Durban (Pty) Ltd and another v Ethekwini Municipality
[30]
(“
Street
Pole Adds”
)
where the Court held that:
“
[11]
A Court must go beyond simply determining whether the elements of
spoliation was satisfied and the exception thereto that this is
qualified in that where the applicant goes further and claims a
substantive right to be in possession that the applicant does not
have such right.
”
[28]
The Court continued:
“
[15]
This argument invokes the principle that an offending respondent in a
spoliation application is generally not allowed
to contest the
spoliated applicant's title to the property.
That
is because good title is irrelevant: the claim to spoliatory relief
arises solely from an
unprocedural
deprivation
of
possession
.
There
is a qualification, however, if the applicant goes further and claims
a substantive right to possession, whether based on
title of
ownership or on contract. In that case:
". . .
the respondent may answer such
additional claim of right and may demonstrate, if he can, that
applicant does not have the right
to possession which it claims
."
This
is because such an applicant:
". . .
in effect forces an investigation of the issues relevant to the
further relief he claims. Once he does this,
the respondent's defence
in regard thereto has to be considered . . ."
[16]
The qualification applies here. SPA's application sought classically
spoliatory relief in demanding the restoration
of the posters the
municipality had despoiled (paragraph 1.2). But, as Nicholson J
pointed out, its claim went further.
It pressed for an
interdict
,
not directed only to the despoiled property, but in wide terms
embracing all the "various street poles in the Ethekwini
metropolitan area" covered by the disputed agreements.
That claim spoiled for a fight about its title to those poles,
and it
was this fight in which the municipality was entitled to and did
engage
.” [my emphasis]
[29]
He argues that the Court
a
quo
erred
in then considering the mandament van spolie without the
qualifications/exception referred to in
Street
Pole Adds
.
The Court
a
quo
ought
to have found that no dispute existed between the parties as
contemplated in Clause 17 of the lease agreement. The Court
erred in finding that ZBP did not discharge the onus of proving a
right to remain in occupation. He refers to
Van
Rooyen v Hillandale Homeowners’ Association
[31]
(“
Van
Rooyen”
)
.
[30]
He uses those principles and draws it through to Clause 18 of the
agreement as justification for dispossessing
ZBP. As this was a
commercial property, the qualification in
Van Rooyen
regarding
illegal clauses in agreements do not find application.
[31]
The Court
a
quo
therefore
erred in applying the provisions of Clause 18 of the lease agreement
as being illegal. As Graceful Blessings did
not rely on Clause
18, the Court could not have raised it
mero
motu
.
[32]
[32]
In respect of the first ground of appeal, Mr Van der Merwe
essentially argues that the Court
a
quo
failed in not dismissing the application after she correctly
considered ZBP’s reliance on substantive rights to
possession.
[33]
My reading of
paragraphs [10] – [12] does not show that the Court
a
quo
granted the application contrary to this position. The Court
a
quo
considered whether parties can contractually agree that Graceful
Blessings could take repossession. She merely continued to have
regard to clause 18.
[33]
He referred to
Afrox
Healthcare Beperk v Strydom
[34]
(Afrox)
for
the proposition that freedom of contract is a constitutional value
and should be enforced judicially. ZBP did not challenge
the validity
and/or enforceability of the agreement in the Court a quo.
[34]
In
Natal
Joint Municipal Pension Fund v Endumeni Municipality (“Endumeni”)
[35]
a warning was sounded that judges must be alert and guard against the
temptation to substitute what they regard as reasonable,
sensible or
businesslike for the words actually used. This means, according to
his argument, that the Court
a
quo
ought to have found that Graceful Blessings was entitled to take
whatever action necessary.
[35]
He argued that the facts in
La Familia
is distinguishable. It
did not involve a dispute similar to the matter before us, and argues
that the parties contractually agreed
to forfeit rights to a
property. The Court considered the validity of Clause 18 and
therefore entered the arena of conflict between
the parties where it
was not in dispute or even raised by any of the parties. As I
already stated, this is incorrect. Graceful
Blessings twice referred
to clause 18.
[36]
He also refers to
Stocks
Housing (Cape) (Pty) Ltd v Chief Executive Director, Department of
Education and Culture Services, and Others
[36]
where
it was held:
“…
The
qualification to the rule that a person who has been despoiled of
possession must be restored to possession before any dispute
as to
who is entitled to possession will be investigated, is that if the
applicant goes further than to claim spoliatory relief,
and claims a
substantive right to possession, whether based upon a vindication or
upon contract, then the respondent may answer
such
additional
claim of right
and may
demonstrate, if he can, that applicant does not have the right to
possession which it claims. The Court will not order
return of
possession of the property in such a case if respondent succeeds in
refuting the applicant's claim of right to possession
.”
[my emphasis]
[37]
He argues that
Van Rooyen
sanctioned the refusal to provide
water and electricity vouchers on the basis of the Rules of the
scheme. The Court in
Van Rooyen
held:
“
[39]
It is trite that parties are free to contract as they please. The law
permits perfect freedom of contract. Parties
are left to make their
own agreements, and whatever the agreements are, the law will enforce
them provided they contain nothing
illegal or immoral or against
public policy. In New Garden Cities Inc Association Not for Gain v
Adhikarie
1998
(3) SA 626
(CPD)
Rose-Innes J stated that a term in a contract of sale which restricts
the use of properties in a township to residential purposes
is in the
interest of all property owners in the township. It ensures that the
residential nature of the area is preserved, without
interference by
industry or businesses.
…
[45]
I am satisfied that the trust’s failure to adhere
to the aesthetical rules triggered the imposition of penalties
which
remained unpaid. The rules and the contract entered into between the
trust and the respondent, are binding on the applicant.
The
respondent was entitled or had the power to refuse to sell applicant
prepaid water and electricity vouchers, or to limit the
number of
units to be sold to applicant.
Respondent’s
conduct was therefore not unlawful as it acted within the rules and
the agreement it entered into with the trust
.
The conduct of the respondent did therefore not amount to spoliation.
[my
emphasis]
[38]
Mr C Hendriks, for ZBP, relies on
Yeko
v Qana
[37]
where the court held that t
he
very essence of the remedy against spoliation is that the possession
enjoyed by the party who asks for the spoliation order must
be
established and that he was unlawfully deprived of such possession
.
[39]
The case is, however, not on all fours with the case before us. The
Court in that matter did not have
to decide whether the Applicant
went further than merely alleging possession and there was no
contract with a clause similar to
clause 18 which, according to
Graceful Blessings, provides for repossession without court
intervention.
[40]
He supports the distinction that the Court
a quo
applied
between the case before us and
Van Rooyen supra
and that no
person may take the law into his own hands.
[41]
His reliance on
Stocks Housing supra
is a two-edged sword. In
the matter before us, ZBP went beyond merely relying on free and
undisturbed possession and unlawful dispossession.
It invited
Graceful Blessings into the arena to prove valid cancellation.
[42]
He argues that
Street Pole Adds
is distinguishable, as ZBP did
not seek relief going wider than the despoiled property. This is
correct and can be distinguished
from cases where interdicts and
declarators were also sought.
[43]
The Court
a quo
correctly applied the test in
Van Rooyen
that the facts in that matter are distinguishable from the facts in
the present matter.
[44]
He argues that the words should be interpreted
contra
proferentum.
[38]
The requirement that the wording must be clear, is borne out by the
fact that by agreement, recourse to the Courts are ousted thereby
placing a limitation.
[39]
THE
LEGAL PRINCIPLES
[45]
It is correct that the freedom of contract is a constitutional value
as set out in
Afrox
Healthcare Beperk v Strydom.
[40]
The decision, however, also refers to
Brisley
v Drotsky
[41]
(“
Bisley
”)
where
the court held: “
[T]he
Constitutional values of dignity and equality and freedom require
that the courts approach their task of striking down contracts
or
declining to enforce them with perceptive restraint ... contractual
autonomy is part of freedom.
Shorn
of its obscene excesses, contractual autonomy also informs the
constitutional value of dignity
.”
[46]
Courts must be alert to and guard against the temptation to
substitute what they regard as reasonable,
sensible or businesslike
for the words actually used. In
Endumeni
, the Court
held:
“
[18]
… In a contractual context it is to make a contract for
the parties other than the one they in fact
made.
The
‘inevitable point of departure is the language of the provision
itself’
,
[42]
read
in context and having regard to the purpose of the provision and the
background to the preparation and production of the document
.
[19]
All this is consistent with the ‘emerging trend in statutory
construction’. It clearly adopts
as the proper approach to the
interpretation of documents the second of the two possible approaches
mentioned by Schreiner JA in
Jaga v Dönges NO and another,
namely that
from the outset one considers the context and the
language together, with neither predominating over the other
.
This is the approach that courts in South Africa should now follow,
without the need to cite authorities from an earlier era that
are not
necessarily consistent and frequently reflect an approach to
interpretation that is no longer appropriate. The path that
Schreiner
JA pointed to is now received wisdom elsewhere. Thus Sir Anthony
Mason CJ said:
‘
Problems
of legal interpretation are not solved satisfactorily by ritual
incantations which emphasise the clarity of meaning which
words have
when viewed in isolation, divorced from their context.
The
modern approach to interpretation insists that context be considered
in the first instance, especially in the case of general
words, and
not merely at some later stage when ambiguity might be thought to
arise
.’
[my
emphasis]
[47]
Applying the above principles, the matter before us is a commercial
contract concluded between commercial
entities in respect of
commercial property. It can be accepted that the purpose of clause 18
was to terminate occupation by taking
repossession. ZBP does not
state that it was strong-armed to sign the agreement and raises none
of the established defenses to
avoid the application of the
provision. That answers the contextual factor to which
Endumeni
supra
refers.
[48]
The next factor is the language and general words used. In
Barkhuizen
v Napier
[43]
the Constitutional Court held:
“
[15]
I do not understand the Supreme Court of Appeal as
suggesting that the principle of contract pacta sunt servanda is
a
sacred cow that should trump all other considerations
.
That it did not, is apparent from the judgment.
The Supreme
Court of Appeal accepted that the constitutional values of equality
and dignity may, however, prove to be decisive when
the issue of the
parties' relative bargaining positions is an issue
. All
law, including the common law of contract, is now subject to
constitutional control.
The validity of all law depends on
their consistency with the provisions of the Constitution and the
values that underlie our Constitution.
The application of the
principle pacta sunt servanda is, therefore, subject to
constitutional control
.”
[49]
Pacta
sunt servanda
is
therefore still alive and well. Its application has to be moderated
by the constitutional values of equality and dignity.
The principle
of equality, in the context of the matter before us, is tested
against s 34 of the Constitution.
[44]
It provides that everyone has the right to have any dispute that can
be resolved by the application of law decided in a fair public
hearing before a court
.
[50]
In
Brisley
the Constitutional Court continued:
“
[30]
In my view the proper approach to the constitutional
challenges to contractual terms is to determine whether the term
challenged is contrary to public policy as evidenced by the
constitutional values, particular, those found in the Bill of Rights.
This approach leaves space for the doctrine of pacta sunt
servanda to operate, but at the same time allows courts to decline to
enforce contractual terms that are in conflict with the
constitutional values even though the parties may have consented to
them
. …
…
[56]
There are two questions to be asked in determining
fairness.
The first is whether the clause itself is unreasonable.
Secondly, if the clause is reasonable, whether it should be enforced
in
the light of the circumstances
which prevented compliance with
the time-limitation clause.
[57]
The first question involves the weighing-up of two
considerations.
On the one hand public policy, as informed by the
Constitution, requires in general that parties should comply with
contractual
obligations that have been freely and voluntarily
undertaken.
This consideration is expressed in the maxim
pacta sunt servanda, which, as the Supreme Court of Appeal has
repeatedly noted, gives
effect to the central constitutional values
of freedom and dignity
.
Self-autonomy, or the ability
to regulate one's own affairs, even to one's own detriment, is the
very essence of freedom and a vital
part of dignity
. The
extent to which the contract was freely and voluntarily concluded is
clearly a vital factor as it will determine the weight
that should be
afforded to the values of freedom and dignity.
The other
consideration is that all persons have a right to seek judicial
redress. These considerations express the constitutional
values that
must now inform all laws, including the common-law principles of
contract
.
[58]
… What this means in practical terms is that once
it is accepted that the clause does not violate public
policy and
non-compliance with it is established, the claimant is required to
show that in the circumstances of the case there
was a good reason
why there was a failure to comply.”
[51]
In
Nino
Bonino v De Lange
[45]
(“Nino”)
the Court, per Smith J held:
“
I
regret that the decision of the court below, which is now appealed
against, cannot be supported. I say I regret it, because it
does not
seem to me, judging from the facts deposed to in the evidence, that
there can be any doubt that there have been grave
breaches of the
conditions of the
lease
,
and that mowing [sic] to the peculiar circumstances of the case and
the respondent being the license-holder of the premises of
which this
building formed a part, he was put in some peril of losing his
license.
But
it seems to me that the law applicable to this case is perfectly
clear. There is no doubt that this is a case of
spoliation
,
and the law will not allow a man to take the law into his own hands
and to take out of the possession of another, who is unwilling
to
yield it up,
property which he
thinks he has a claim to or may have a very good and very just claim
to. His remedy is to enforce, his rights
through the court
.
But
for the presence of clause 18 in the
lease
this
case of course would not be arguable at all. It seems to me that the
clause cannot affect the rights of the parties.
It
is in effect an agreement between the two parties that one of them
shall be, permitted to do an act which the law does not allow
him to
perform. Such an agreement, as was pointed out in the case of Blomson
v Boshoff, is contrary to public policy
and the Court will not
enforce it
. It is true that the
provisions of the
lease
there
were somewhat different to the conditions in this cases but the
practical effect was the same. In that case the
lease
purported
to give the lessor a right to physically eject the lessee from the
premises. In the present case the
lease
only
gives the lessor the right to refuse him access to the premises. It
seems to me that he did refuse him access in the most practical
way;
after lessee had left the billiard room for the night, and the lessor
saw he had left the premises, he barricaded the room,
and when the
lessee came the next morning he found the room barricaded against
him.
Any
state of circumstances more likely to lead to a breach of the peace
than that, I find it difficult to conceive; because if a
man finds
property barricaded against him which he thinks he has the right to
enter he is extremely likely to resort to force to
effect an
entrance.”
[my
emphasis]
[52]
In
First
Rand Ltd. t/a Rand Merchant Bank and Another v Scholtz NO and
Others
[46]
it was held:
“
[13]
…
In
cases such as where a purported servitude is concerned
the mandement is obviously the appropriate remedy, but
not where contractual rights are in dispute or
specific
performance
of contractual obligations is claimed
: …
.”
[my
emphasis]
[53]
In
Telkom
SA Ltd v Xsinet (Pty) Ltd
[47]
it was held:
“
[14]
…
This
is, however, a mere personal right and the order sought is
essentially to compel
specific
performance
of a contractual right in order to resolve a contractual dispute.
This has never been allowed under the mandament van spolie and
there is no authority for such an extension of the remedy
.”
[my
emphasis]
[54]
In
Turner
and another v Ntintelo and another
[48]
it was held:
“
[38]
As discussed above, the mandament remedy is not available for
contractual disputes or
specific
performance
matters. This
remedy is not available where the right to receive is purely personal
in nature. In Eskom Holdings SOC Ltd v Masinda
(supra) para 22.”
DISCUSSION
[55]
ZBP approached the Court a quo on the basis of spoliation. It was the
only remedy it sought. When it
invited a discussion on the merits of
termination, it ran the risk that the substantive right to remain in
occupation will be canvassed.
It had to skirt the invitation in reply
but it was too late. It already opened itself up for possible failure
when it appended
the lease agreement and the letter of termination.
[56]
Van Rooyen
has to be understood in the context of legislation,
the constitution of the entity and the
Manual
for Community Participation
. Although
Van Rooyen
did
not refer to
Barkhuizen,
it does recognise that the law will
enforce rules provided they contain nothing illegal or immoral or
against public policy. I am
willing to accept that there may be
situations where policy considerations would not impede actions that
would ordinarily constitute
spoliation. This would apply when a party
“goes further”.
[57]
The Court
a quo’s
treatment of
Van Rooyen
supra
has also to be understood contextually. Although the principles
applicable to spoliation is trite, each case has to be treated
on its
own facts. I support the reasoning and conclusion in
Van Rooyen
.
[58]
Reliance on
Stocks Housing supra
is a two-edged sword. Where a
party goes beyond merely relying on free and undisturbed possession
and unlawful dispossession it
opens itself up to justify its further
occupation. One has to be careful to apply this indiscriminately. It
has to depend on how
far the party has gone to enforce a right to
occupation. This is what happened in
Street Pole Adds.
ZBP did
not seek relief going wider than restoration.
[59]
Yeko
v Qana
[49]
is not on all fours with the case before us. The Court in that matter
did not have to decide whether the Applicant went further
than merely
alleging possession and there was no contract with a clause similar
to clause 18 which, according to Graceful Blessings,
provides for
repossession without court intervention.
CONCLUSION
[60]
Is there a need that the common law principles applicable to
spoliation applications be developed
to cater for modern developments
in commercial transactions? Section 39(2) of the Constitution
provides that when interpreting
any legislation, and when developing
the common law or customary law, every court, tribunal or forum must
promote the spirit, purport
and objects of the Bill of Rights. This
was not raised before the Court a quo and not argued before us. It
would therefore be improper
to consider it.
[61]
In view of what was stated in
Brisley
there
may not be a necessity for such development. It would in my view be
manifestly unfair if commercial parties/entities enter
into
commercial agreements regarding commercial property, which make
provision for termination of possession through means other
than
court process, especially when it relates to failure to perform in
terms of rent, to compel incursion of additional expenses.
[50]
[62]
There is presently many cases where the Courts have stated that as
long as the principle of
pacta sunt servanda
is
counterbalanced with the constitutional principles of dignity and
equality, the provisions in contracts to regulate extra-curial
process, may be justified.
[63]
In my view this will be determined by the precise words employed in
contracts. Does the choice
of words in the present contract pass the
bar? I am of the view that it does not. It provides that Graceful
Blessings may take
any action for the ejectment of ZBP. In
Letsoalo
and Others v Tepanyekga and Others
[51]
the term ejectment was used in the context of an action or
application for ejectment.
[64]
If clause 18 was formulated differently there may have been a basis
for interference in the Court a
quo’s conclusion. I align
myself with what Smith, J stated in
Nino
,
that he
regrets the outcome because it does not seem to him,
judging from the facts deposed to in the evidence, that there can be
any doubt
that there have been breaches of the conditions of
the
lease.
[65]
I would dismiss the appeal with costs.
ORDER
1.
The appeal is dismissed.
2.
Appellant pays the costs of the appeal.
__________________________
P
R CRONJé, AJ
I
agree:
__________________________
N
M MBHELE, DJP
I
agree:
__________________________
C
VAN ZYL, J
On
behalf of Appellant: Adv R Van
der Merwe
Honey
Attorneys
Bloemfontein
On
behalf of Respondent: Adv C Hendriks
Gous
Vertue and Associates
Bloemfontein
[1]
Record, p. 98, para [16] – [20]
[2]
Record, p. 102, para [3] – [9]
[3]
Record, p. 112
[4]
Record, p. 106, para 1.2 – 1.3.5
[5]
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634 E – 635 C
[6]
Record, p. 107, para 2
[7]
(2019/40696) [2019] ZAGPJHC 520 (2 December 2019)
[8]
Record, p. 107, para 3.1 – 3.5
[9]
Record, p. 108, para 4
[10]
Record, p. 5
[11]
Record, p. 6
[12]
Record, p. 8, para 6.1
[13]
Record, p. 32, para 9.3
[14]
Record, p. 65 - 66
[15]
Record, p. 96, para [10] – [13]. The reference to clause 8 in
paragraph [13] of Daniso J’s judgment is in fact a
reference
to clause 18
[16]
The test in
Plascon-Evans
Paints (TVL) Ltd. v Van Riebeeck Paints (Pty) Ltd.
(53/84) [1984] ZASCA 51; [1984] 2 All SA 366 (A); 1984 (3) SA 623;
1984 (3) SA 620 (21 May 1984) would apply
[17]
Record, p. 83, para 5.4.1
[18]
Record, p. 83, para 5.4.2
[19]
Record, p. 84, para 5.4.4
[20]
Record, p. 85, para 11.1
[21]
Record, p. 88, para 12.3
[22]
Record, p. 88, para 12.4; See also: p. 90, para 16.2
[23]
Record, p. 45, para 47
[24]
Record, p. 19, Clause 17
[25]
Record, p. 51
[26]
Record, p. 59, line 36 - 39
[27]
Record, p. 65
[28]
Record, p. 70
[29]
Record, p. 20, Clause 18
[30]
2008 (5) SA 290 (SCA)
[31]
(1603/2014)
[2014] ZAFSHC 226
(11 December 2014) at para [45]
[32]
This is not correct. It made reference to the clause in two
paragraphs of its answering affidavit. See: Record, p, 38, para
21.3.2 and para 23
[33]
Record, Judgement p. 96, para [10] – [12]
[34]
2002 (6) SA 21
(SCA) at para [22] – [32]
[35]
(920/2010)
[2012] ZASCA 13
;
[2012] 2 All SA 262
(SCA);
2012 (4) SA
593
(SCA) (16 March 2012)
[36]
[1997] JOL 294
(C) at p. 24
[37]
[1973] 4 All SA 512
(A) at 516
[38]
Verba
fortius accipiuntur contra proferentem
(words are interpreted against/to the disadvantage of the party
uttering them). This applies against the drafter of a
document/contract.
See:
Fedgen
Insurance Ltd. v Leyds
(475/93) [1995] ZASCA 20; 1995 (3) SA 33 (AD); [1995] 2 All SA 357
(A) (27 March 1995) para 10
[39]
See:
Hypercheck
(Pty) Ltd v Mutual & Federal Insurance Company Ltd
[2012]
JOL 28277
(GSJ)
“
Thus,
as stated by Smallberger JA in the Fedgen case, at 38 B-E: “Any
provision which purports to place a limitation upon
a clearly
expressed obligation to indemnify must be restrictively
interpreted…”
at p. 9
[40]
2002 (6) SA 21
(SCA) at para [22] – [32]
[41]
(432/2000)
[2002] ZASCA 35
(28 March 2002)
[42]
In
Street
Pole Adds infra
it was held that “
[I]t
is unnecessary (...) to look beyond the plain meaning of the
agreement itself, in its background setting, since it contains
no
ambiguities or uncertainties.”
[43]
[2008]
JOL 19614 (CC)
[44]
108 of 1996
[45]
1906
TS 120
at 124 - 125
[46]
(373/06)
[2006] ZASCA 99
; [2006] SCA 98 (RSA);
2008 (2) SA 503
(SCA)
;
[2007] 1 All SA 436
(SCA) (9 September 2006)
[47]
(92/2002) [2003] ZASCA 35 (31 March 2003)
[48]
[2023] JOL 58279 (WCC)
[49]
[1973] 4 All SA 512
(A) at 516
[50]
Nino
supra
[51]
(19/2018; HCA 14/2019) [2020] ZALMPPHC 74 (28 August 2020) at para
[20] – [21]; See also
Van
Rensburg and Another NNO v Naidoo and Others NNO; Naidoo and Others
NNO v Van Rensburg NO and Others
2011
(4) SA 149
(SCA)
at para 51 - 52;
C
v C and Others
(2013/12732) [2021] ZAGPJHC 432 (17 September 2021);
AJP
Properties CC v Sello
(39302/10) [2017] ZAGPJHC 255; 2018 (1) SA 535 (GJ) (8 September
2017)