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[2022] ZAECMKHC 72
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W.F.S v S.S.S (Born J) and Another (3370/2022) [2022] ZAECMKHC 72 (11 October 2022)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE DIVISION
– MAKHANDA)
CASE NO.: 3370/2022
Matter heard on: 30
September2022
Judgement delivered
on: 11 October 2022
REPORTABLE: NO
OF INTEREST TO OTHER
JUDGES: NO
REVISED.
In the matter between: -
W[....] F[....]
S[....]1
Applicant
and
S[....]2 S[....]3
S[....]1 (Born
J[....])
1
st
Respondent
THE SOUTH AFRICAN
POLICE SERVICES
2
nd
Respondent
JUDGMENT
SMITH
J:
[1]
The applicant brought urgent proceedings for an order allowing him
access to the parties’
former matrimonial home for six hours
each on 1 and 2 October 2022, to remove his personal effects and
belongings. Although not
conceding that the matter was urgent, the
respondent’s counsel did not pursue the points regarding
urgency raised in the
answering affidavit and instead urged me to
decide the matter on the merits.
[2]
The parties are in the process of divorcing, and the applicant has
left the matrimonial
home some seven months ago. He has since been
barred from entering the property in terms of an interdict issued
under the
Domestic Violence Act, 116 of 1998
.
[3]
The application is based on the following factual matrix. The
applicant would be moving
into a new rental property from 1 October
2022. He asserts that it is thus imperative that he must be in a
position to furnish
his new property with his personal effects so
that he can make a new life for himself ‘in the manner and
style’ that
he has become used to throughout his married life.
Amongst the specialized items the applicant wishes to remove are: a
drone collection,
specialized tools, camera equipment, an Apple
Computer and speakers and cables. He claims that it is imperative
that he disconnects
and pack these items himself since they are
fragile and sensitive.
[4]
He also wants to fetch his surf-skis, kayaks, an inflatable boat, and
electric motor
and a barge, the latter being stored at a neighbour’s
home. In addition, he wants the opportunity to choose one of the
television
sets for his own use.
[5]
The parties have, since 1 September 2022, entered into extensive
communication regarding
the timing and manner of the applicant’s
proposed visit to the matrimonial property to collect his personal
items. On that
day the applicant’s attorneys addressed a letter
to the respondent’s, attorneys, Gray Burmeister Inc, requesting
that
he be allowed access to the former matrimonial home in order to
uplift his personal effects and belongings, inclusive of tools and
equipment. He requested access to the property for the weekend of the
24
th
and 25
th
of September 2022. Gray
Burmeister Inc. responded as follows:
‘
Our
client shall ensure that your client’s personal belongings are
packed, boxed and ready for collection on Saturday, 24
September 2022
at 11h00. All the items will be available for collection at the gate
and your client is required to arrange third
parties to collect
items. Your client may be in attendance outside the property but may
not enter upon the property’.
[6]
The applicant’s attorneys responded to that letter on 6
September 2022, stating
that he objected to the respondent packing
any of his personal belongings since they are fragile and ‘the
handling thereof’
is particularly within his knowledge. He also
stated that he would have a member of the South African Police
Services (the SAPS)
present to accompany him when he enters the
property. Gray Burmeister Inc. responded on that same day, stating
that the applicant
was welcome to have members of the SAPS present to
collect his belongings from the garage. The respondent would welcome
such an
arrangement since there can then be no dispute as to the
condition of his goods. They stated, furthermore, that the respondent
was perfectly capable of carefully gathering the goods and placing
them in the garage and that she was unwilling to grant him access
to
the property in the manner he demanded.
[7]
The applicant’s attorneys responded to that letter on 13
September 2022, confirming
that he would have a member of the SAPS
present and that the respondent was ‘not to have any hand in
the movement, distribution,
packing’, of these items as he
would do so himself and that those items should not be placed in the
garage. He also provided
a list of items he intended to collect.
[8]
Gray Burmeister Inc. responded to that letter on 15 September 2022,
stating that the
process of packing the applicant’s belongings
had almost been completed. It would thus be impractical for him to
attend at
the property to collect them in the manner he suggested.
They also provided a list of the items that would be placed in the
garage.
[9]
The applicant’s attorneys replied to that letter on 21
September 2022, recording
his disagreement with the proposed course
of action and stating that he required unlimited access to the former
matrimonial home.
If an undertaking was not provided as demanded, he
would seek urgent relief in the High Court without any further notice
to the
respondent, as well as a punitive costs order.
[10]
In their reply to that letter on 21 September 2022, Gray Burmeister
Inc. stated that the respondent
had already packed all the
applicant’s personal belongings and that they would be in the
garage, available for collection.
They also stated that ‘should
your client however insist on walking through the former matrimonial
home to ensure he has
collected all of his personal items, he is most
welcome to do so, provided he is accompanied by uniformed member of
the South African
police services.’
[11]
The applicant’s attorneys replied that ‘he did not agree
to his goods being packed’
and that he ‘will certainly
need time to walk through the home in order to collect those items.
He will not be accompanied
by a member of the SAPS in that he is not
an imposter or a criminal. This is his home where he lived for 17
years.’ He also
required her to vacate the property for six
hours each on 24 and 25 September 2022.
[12]
Mr.
Cole
SC, who appeared for the respondent, submitted that
the respondent has misconstrued the applicant’s position since
she appears
to be of the belief that the applicant is intent on
removing a number of items that he knows she will be disputing. He
submitted
that this is clearly not the case since the applicant has
also applied for an order allowing a police officer to be present to
oversee the execution of the order.
[13]
He submitted that she also speculates that the application is
motivated by his intention to invade
her privacy and to provide him
with access to her private documents. There is also no basis for such
speculation, or so he argued.
[14]
Mr
Cole
submitted, furthermore, that the applicant has
established that the items he seeks to collect are essential to his
spiritual well-being.
He has no idea which items the respondent has
unilaterally selected on his behalf. The applicant wishes to collect
and pack his
own personal items. It is essential and reasonable that
he disconnects and deal with the electronic equipment himself as it
is
sensitive and specialized. And he has made out a case for such an
order, or so the argument went.
[15]
Mr.
de la Harpe
SC, who appeared for the respondent, correctly
submitted that I must accept that all the items identified by the
applicant had
already been packed by the respondent and placed in the
garage. In this respect the horse has already bolted, so to speak,
and
it is a development that cannot be undone. Unless of course the
applicant suggests that the respondent should unpack all of those
items to allow him to go to the matrimonial property for the purposes
of reassembling and checking them.
[16]
Essentially then, the applicant is seeking an order allowing him to
access the former matrimonial
property in order to choose certain
unidentified items which he wants to select for his own use. There
is, however, no reason why
he needs to have access to the property in
order to do so. The respondent has been fair and accommodating, and
has consistently
been willing for him to collect his items, albeit
not on his own terms. One can, however, understand why she is
concerned about
having the applicant walking through the matrimonial
home and choosing items which he would want to remove for his own
use. While
he initially agreed to be accompanied by a member of the
SAPS, in the last letter to the respondent’s attorneys, it was
emphatically
stated that he will not be accompanied by a member of
the SAPS. He insisted that he required six hour’s free access
to the
property on both Saturday and the Sunday, 24 and 25 September
2022. And while in his notice of motion the applicant seeks an order
allowing the SAPS to assist with the execution of the order to
provide ‘free and uninhibited access’ to the property,
if
he had agreed to the respondent’s reasonable demand that he
should be accompanied by a police officer, this application
may well
not have been necessary.
[17]
Mr
de la Harpe
has correctly argued that while the applicant
has a right to his property, he does not have the right to enter into
the matrimonial
home to identify property in order to determine
whether they are his. He has accordingly not been able to establish a
clear right,
because all the items which he had identified and
demanded, had been packed up, safely stored, and is available for
collection
by him.
[18]
He submitted, furthermore, that the applicant has also not been able
to establish that there
has been any interference or injury,
prejudice or damage to his rights. On the respondent’s version
- which must be accepted
in terms of the principle enunciated in
Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty)
[1984] ZASCA 51
;
1984 (3)
SA 623(A)
at 634 - the respondent has packed, bubble wrapped and
boxed up all his belongings. They are safely stored in the garage
waiting
for him to collect them. His concern about the manner in
which his sensitive electronic equipment might have been damaged if
they
were not unplugged and assembled in a particular manner, has
thus been overtaken by events. This application was therefore
unnecessary
and the application falls to be dismissed with costs on
the attorney and client scale.
[19]
The applicant also has an alternative remedy in that after he had
collected his items, and should
there be any damaged or missing
items, he can bring an application in the ordinary course premised on
the
rei vindicatio
or claim damages.
[20]
While I agree with Mr
de la Harpe’s
submission that the
applicant has failed to establish all the requisites for final
interdictory relief, I do not belief that there
are any grounds for
the award of costs on a punitive scale.
[21]
In the result the following order issues:
The application is
dismissed with costs.
JE
SMITH
JUDGE
OF THE HIGH COURT
Appearances:
Counsel
for the Applicant
:
Adv.Cole S.C.
:
Whitesides
53 African Street
MAKHANDA
Attorney
for the Respondents
: Adv. De
La Harpe
S.C.
:
Neville Borman & Botha
22 Hill Street
MAKHANDA