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[2021] ZAGPPHC 31
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Phillips and Others v Gunn (A62/2020) [2021] ZAGPPHC 31 (18 January 2021)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
HIGH
COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
(1)
REPORTABLE: NO.
(2) OF
INTEREST TO OTHER JUDGES: NO.
(3)
REVISED.
DATE:
18 JANUARY 2021
CASE
NO: A62/2020
In
the matter between:
BRETT
PHILLIPS
First
Appellant
TRACEY
IRENE
PHILLIPS
Second
Appellant
KYLE
BRENDAN
PHILLIPS
Third
Appellant
and
DR
STEVEN WILLIAM GUNN
Respondent
J
U D G M E N T
This
matter has been heard in terms of the Directives of the Judge
President of this Division dated
25
March 2020, 24 April 2020 and 11 May
2020.
The judgment and order are accordingly published and distributed
electronically.
DAVIS, J
[1]
Introduction
1.1
This
is an appeal against an order by the magistrate in the Magistrates
Court for the District of Tshwane Central held at Pretoria
2 December
2019 whereby a spoliation order was granted against the appellants.
1.2
The
matter in the court a quo took the form of an opposed motion. The
relief claimed by the respondent, namely the immediate restoration
of
peaceful and undisturbed possession and access to a certain
residential property, patient files and “all rights as
previously
enjoyed”, had to be determined by way of resolution
of factual disputes in accordance with the principles applicable to
motion
proceedings. See:
Stellenbosch
Farmers Winery Ltd v Stelling Vale Winery (Pty) Ltd
1957 (4) SA 234
(C) at 23 5-2G and
Plascon
Evans v Fund Remake Paints
[2]
Salient facts and the
evaluation of the evidence by the magistrate
2.1
After
having considered the affidavits filed of record, the court a quo
found the following to be common cause
-
that
the property in question, being [….], Pretoria, consists of a
medical clinic as well as a residential portion, occupied
by both the
appellants and the respondent.
-
the
respondent was at all relevant times an employee of the clinic and
the “responsible doctor”.
-
for
purposes of discharging his obligations, the respondent had access to
the clinic, an office, patient files and the medicine
cabinet.
2.2
Despite
the above, there appeared to be a dispute regarding the extent of the
respondent’s possession and his subsequent disposition
of
either the whole or parts of the property. The learned
magistrate summed up the description of the property as follows:
“
the
respondents [the current appellants] seek to paint a picture that the
property consists of three autonomous structures namely,
the clinic,
the applicant’s [the current respondent] property and the first
respondents [appellants] property. But what emerges
from the
photographs annexed by the respective parties to the affidavits…
is an image of one big structure whose rooms adjoin
one another from
the clinic to the residential living areas… . The subdivision
of the property into clinic, applicant’s
residential portion
and respondent’s residential portion was rather hypothetical
and based on the understanding between the
parties as opposed to
being practical. At paragraph 8.1 of the founding affidavit the
applicant [respondent] further alleges that
the respondents
[appellants] have blocked the entrance and doors to the clinic,
house, gym and toolshed. It is further stated that
the respondents
[appellants] locked the steel gates with a chain and used a large
piece of wood and fridge to board up access to
the kitchen and
pantry. In response thereto the respondents [appellants] have not
dealt with the allegations in paragraph 8.1 except
to simply deny.
However, what the respondents [appellants] do not deny is the fact
that they have cordoned off certain areas leading
to the exclusive
use areas of the respondents [appellants] as a security measure
against threats made by the applicant [respondent]”
.
2.3
It
appeared from the papers that the relationship between the parties
had soured to such an extent that the appellants obtained
a
protection order against the respondent. In the affidavit
deposed to in support of the protection order, the appellants
alleged
that the respondent has verbally threatened them as follows:
1)
to kill both of us 2) to cause harm to our families3) has put in
place a directive to take us out”.
I
interpose to point out that the respondent has explained the threats
in his founding affidavit already as a response to protect
his own,
family and has apologised for having uttered it. In furnishing
detail for the request for the protection order the
appellants
alleged that they have been business partners together with a Mrs
Patricia Rosema of the respondent. They further confirm
that the
appellants and the respondent and his family share a house adjacent
to the clinic premises. In addition to the alleged
threats, the
appellants complained that since their fall-out, the respondent has
been unreliable as a business partner has absented
himself from the
clinic, has been making business decisions without the other
partner’s knowledge or approval and has taken
medication and
supplements from the business for himself and his family.
2.4
The
disputes regarding the acrimony between the parties have escalated
and remain on unresolved on the papers. So for example has
the
respondent accused the appellant of being a cannabis dealer and
illegally purporting to practice as a medical doctor. The remainder
of the allegations contained in support of the application for a
protection order exceed the ambit thereof and refer to aspects
more
at home in the termination of a business relationship such as the
returning of laptops, computer equipment and the like. It
also
included the complaint that the respondent and his family treated the
residential portion of the property as their own, coming
and going as
they like and using the common areas including the kitchen and the
fridges as if their own.
2.5
Having
regard to the above, the learned magistrate answered the question
whether the respondent had enjoyed unrestricted movement
and access
to certain areas within the property prior to the cordoning off in
the affirmative. On our reading of the papers and
appellants’
own version, as being part of their complaint referred to above, this
finding appears to be correct.
2.6
On
the issue of dispossession, there is no dispute that certain aspects
or areas have been cordoned off. The learned magistrate
magistrate
found as follows “
what
must be appreciated is the fact that the applicant’s
[respondents] access and movement within the property is limited
as a
result of the cordoning off. Although cordoning of certain areas
leading to the respondents’ [appellants’] exclusive
use
areas it not operate to deprive the applicant [respondent] of the
whole of the property, the very act of cordoning off in my
view is
tantamount to partial deprivation of possession and use of certain
areas have the property”.
In
our view, this finding also appears to be correct.
[3]
The law regarding
spoliation
3.1
It
has been held that: “
a
court hearing a spoliation application does not concern itself with
the rights of the parties (whatever they might have been)
before the
spoliation took place; it merely enquires whether or not there has
been a spoliation and if there has been, it restores
the status a
quo. See
Lottering
v Palm
2008 (2) SA 553
(D) at 555H.
3.2
A
court will therefore neither concern itself with lawfulness of the
applicant’s possession nor the ownership of the thing.
See
Mankowitz
v Loewenthal
1982 (3) SA 758
(A) at 763A. It is sufficient for the applicant
to establish that he was
de
facto
in possession at the time of being despoiled. See
Malan
v Green Valley Farm Portion 7 Holt Hill 434 CC
2007 (5) SA 114
(E) at paras 22 – 26.
3.3
Once
possession has been established, what the applicant for a spoliation
order furhter needs to establish, is that he has been
deprived of
such possession, forcibly or wrongfully without his consent. See:
Yeko
v Qana
1973 (4) SA 735
(A) at 739. The dispossession need not extend to the
whole property previously possessed, it is sufficient if the
applicant is
deprived partially. See
Du
Randt v Du Randt
1995
(1) SA 401
(O) at 406 B-D.
[4]
Evaluation
It is clear that the respondent had been in peaceful and
undisturbed possession of all those parts of the clinic to which he
needed
access to perform his duties. He and his family were
also in peaceful and undisturbed possession of the residential part
of the property, in similar fashion as the appellants. The
appellants have, in fact, conceded in their answering affidavit
that
the respondent was the co-owner of the property. It is also
beyond dispute that the appellants have locked access to
certain
areas and boarded or condoned off certain other areas not previously
condoned off, thereby, at least partially, dispossessing
the
respondent. We find that the elements of spoliation have
correctly been found by the magistrate to have been established
at
the time he made his order. Accordingly, the appeal must fail.
[5]
Having regard to the pre-existing relationship
between the parties and their co-ownership, we expressed concern at
the hearing of
the appeal regarding the continued and future
co-existence of the parties. We repeat that concern, but that
aspect falls
outside this appeal. It is, however, an aspect
which may benefit from mediation if the parties cannot otherwise
resolve it.
[6]
Having reached the above conclusions, we however,
find no cogent reason why costs should not follow the event.
[7]
Order:
The
appeal is dismissed with costs.
N
DAVIS
Judge
of the High Court
Gauteng
Division, Pretoria
I
agree
S.
N. I MOKOSE
Judge
of the High Court
Gauteng
Division, Pretoria
Date of
Hearing: 10 September 2020
Judgment
delivered: 18 January 2021
APPEARANCES:
For
the Appellants:
Adv. W.S Jungbluth
Attorney
for Appellants:
Dawie De Beer Attorney, Pretoria
For the Respondent:
Adv. H. C van Zyl
Attorney
for Respondent: Lily
Rautenbach Attorney, Pretoria