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[2021] ZAGPPHC 42
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Wilrus Trading CC and Another v Dey Street Properties (Pty) Ltd and Others (1750/2021) [2021] ZAGPPHC 42 (9 February 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHERS
JUDGES: NO
(3)
REVISED
Case number:
1750/2021
In
the matter between:
WILRUS
TRADING CC
First Applicant
SALENTIAS
TRAVEL AND HOSPITALITY CC
Second Applicant
V
DEY
STREET PROPERTIES (PTY)
LTD
First Respondent
NONYA
PROPERTIES
CC
Second Respondent
IDEAL
PRE-PAID (PTY)
LTD
Third Respondent
REASONS
FOR ORDER DATED 21.01.2021
BASSON
J,
PARTIES
[1]
The first applicant conducts its business from a premise situated at
the Shell filling
station, Middel Street Motors, 256 Dey Street,
Nieuw Muckleneuk, Pretoria, Gauteng (“the property”).
The second
applicant occupies shop no. 4 on the property and conducts
a laundromat.
[2]
The first respondent is Dey Street Properties (Pty) Ltd. The
second respondent
is Nonya Properties CC and is the managing agent of
the first respondent in respect of the immoveable property referred
to hereinabove.
The third respondent is Ideal Pre-Paid (Pty) Ltd and
is the pre-paid metering service provider in respect of the business
premises
situated on the property at issue in this application.
NATURE
OF THE APPLICATION
[3]
This is an urgent spoliation application in terms of which the
applicants seek an
order that the first respondent be ordered to
restore the applicants’ peaceful and undisturbed possession of
their respective
business premises.
[4]
More in particular, an order is sought that the first respondent be
ordered to restore
the electricity supply to the abovementioned
premises by instructing the third respondent to cancel and rectify
the negative and
arrear balances loaded on the applicants’
pre-paid electricity meters.
BACKGROUND
FACTS
[5]
Both the applicants have been conducting businesses from the premises
for several
years: The first applicant for a period of some 23
years and the second applicant since 2013.
[6]
The disputes between the first applicant and the first respondent
have a protracted
history. Several court applications and
actions have been instituted since 2016. The most recent litigation
is a pending
application, instituted by the first respondent against
the first applicant in respect of,
inter alia,
alleged arrear
electricity charges which application is opposed.
[7]
The first respondent claims that since the second respondent took
over the management
of the property, the applicants have failed to
pay a single cent towards their electricity consumption. It further
claims that
the first applicant’s consumption amounts to
R204 292.95 and the second applicant’s consumption amounts
to R34 592.01.
[8]
The first respondent claims that the applicants’
failure to pay, is causing it to face financial ruin. The
applicants
claim that these disputes are the subject of pending
litigation between them under case no. 50169/2020 in this Division.
[9]
It is common cause that during the first week of December 2020 a
pre-paid electricity
meter was installed at the first respondent’s
request, on the business premises. The applicants state that
they welcomed
the installation of the pre-paid electricity system due
to the fact that it would limit further disputes between the
applicants
and the first respondent in relation to electricity
charges.
[10]
On 7
th
of December 2020, the first applicant loaded the
first credit tokens on the pre-paid electricity meter. The
pre-paid meter
was credited accordingly and the correct amount of
electricity units (KWA) were received in respect of the credit tokens
loaded.
[11]
On 19 January 2021, the first applicant received a phone call from
the first applicant’s
attorney of record (who is also the
second applicant’s attorney of record), inquiring as to whether
the first applicant’s
pre-paid meter was functioning properly.
The first applicant was informed that the second applicant’s
pre-paid meter
was not credited with electricity units despite the
loading of an amount of R2 000.00 (two thousand rand).
[12]
The first applicant then also attempted to load an amount of
R2 000.00 (two thousand rand)
on its pre-paid electricity
meter. The meter was, however, not credited with any
electricity units. By that time the first
applicant’s available
units were already running low and was nearing depletion.
[13]
It then transpired that on 19 January 2021, the first respondent
instructed the third respondent
to load the arrears (referred to
hereinabove) onto the applicants’ respective meters.
Accordingly, any additional credits
purchased by either of the
applicants would first be allocated to the arrears and once the
arrears had been settled, would be credited
to the applicants’
meter and grant electricity to them. The applicants then
launched this spoliation application.
Letter
confirming the facts
[14]
The first applicant received a letter from the second respondent in
which it was alleged that
the electricity consumption on the first
applicant’s premises, for the period from 26 May 2020 to 1
January 2021, amounted
to R204 292.95 (two hundred and four
thousand two hundred and ninety-two rand and ninety-five cents) which
amount is allegedly
in arrears.
[15]
The letter confirmed that the second respondent, acting on behalf of
the first respondent, instructed
the third respondent to load the
alleged arrears onto the pre-paid electricity meter and that the
first applicant was required
to clear the negative balance in order
to purchase further electricity units.
[16]
I have already referred to the fact that the
applicants dispute the indebtedness regarding to arrear electricity.
The applicants
contend that the merits of the dispute regarding any
alleged arrears are not relevant to this application and should the
first
respondent be of the opinion that any amounts are due and owing
by the first applicant, it should issue summons. The applicants
further contend that the first respondent proceeded in an unlawful
manner by disposing of their peaceful and undisturbed possession
of
their business premises. More specifically, by restricting the
applicants’ access to its electricity supply.
They argue
that this unlawful conduct of the first respondent culminates to an
act of spoliation.
Spoliation
[17]
The general principles regarding what constitutes spoliation are well
known and need not
be restated. However, in dispute in this matter is
whether the applicants have established an entitlement to relief
relying on
the principles of spoliation.
[18]
The respondents claim that
the applicant’s rights to electricity was purely personal in
nature and accordingly spoliation
should be refused. They rely on the
decision in
Eskom
Holdings SOC Limited v Masinda
[1]
where the court considered whether electricity supply in itself was
an incident of possession of the property to which it is delivered
or
a mere personal right. Eskom Holdings SOC Limited (Eskom)
disconnected the supply of electricity to the immovable property
owned by the respondent. It transpired that the respondent’s
property was one of several properties having an illegal connection.
When the respondent’s electricity was cut, she sought an order,
relying on the
mandament
van spolie
, obliging
Eskom to forthwith restore the electricity supply to her home. The
court pointed out that the obvious difficulty standing
in the way of
the relief being granted to the respondent was the fact that the
electricity supply that was sought to be restored
was said to be
unlawful and constituted a danger to the public. The respondent’s
counsel nonetheless argued that, in spoliation
proceedings, the
legality or otherwise of an applicant’s possession is not an
issue to be decided. It was further argued
that the supply had to be
reconnected before any dispute as to its legality could be
determined.
[2]
The court was not persuaded by this submission and pointed out that
Eskom undoubtedly was under a common law duty to take steps
to guard
against its electrical supply constituting a hazard to the public.
This fact, the court pointed out, entitled a court
to decline to
issue a spoliation order as “
directing
it to restore the electricity connections that were removed would
compel it to commit an illegality
”:
[3]
“
[22]
As was pointed out in Zulu, the occupier of
immovable property usually has the benefit of a host of services
rendered at the property.
However the cases that I have dealt with
above graphically illustrate how, in the context of a disconnection
of the supply of such
a service, spoliation should be refused where
the right to receive it is purely personal in nature. The mere
existence of such
a supply is, in itself, insufficient to establish a
right constituting an incident of possession of the property to which
it is
delivered. In order to justify a spoliation order the right
must be of such a nature that it vests in the person in possession of
the property as an incident of their possession. Rights bestowed by
servitude, registration or statute are obvious examples of
this. On
the other hand, rights that flow from a contractual nexus between the
parties are insufficient as they are purely personal
and a spoliation
order, in effect, would amount to an order of specific performance in
proceedings in which a respondent is precluded
from disproving the
merits of the applicant’s claim for possession. Consequently,
insofar as previous cases may be construed
as holding that such a
supply is in itself an incident of the possession of property to
which it is delivered, they must be regarded
as having been wrongly
decided
.”
[19]
Returning to the present
application. The respondents argue (relying on the
Masinda
[4]
judgment) that the applicants’ right to electricity has its
basis in contract and therefore the applicants’ right to
electricity was purely personal.
[20]
Neither of the parties attached the rental agreement between them.
The first respondent
merely argued that the applicants received the
supply of electricity from the first respondent pursuant solely to a
contractual
relationship. Despite the fact that there is no contract
before me (although the existence of a contract was not disputed in
argument),
it can be inferred from what the first respondent states
in its answering affidavit that it (the first respondent) is liable
to
the City of Tshwane for the electricity bill and that, because the
applicants allegedly did not pay, it has a massive impact on
the
first responded. In fact, the first respondent goes as far as to say
the applicants do not pay “purely out of spite”.
[21]
Can it be said that the applicants, who were in lawful possession of
the property, were
entitled to receive electricity. Put differently,
is the supply of electricity in this particular matter an incident of
possession
and so qualifying for such
protection
or is the alleged right to electricity purely
personal in nature
and
therefore not susceptible to spoliatory protection?
[22]
A
case in point is the decision of
Makeshift 1190
(Pty) Ltd v Cilliers
.
[5]
The (full) court in that matter pertinently considered the decision
in
Masinda
and considered how that judgment should be interpreted.
[23]
This judgment is
important in that it confirms the following principles:
(i)
Relying on
Masinda
,
the court confirms that certain rights, although incorporeal, may be
the subject of quasi-possession for purposes of spoliatory
relief.
(ii)
An incorporeal right
(such as an alleged right to electricity) may, depending on the
circumstances, be capable of protection under
the
mandament
van spolie
.
(iii)
The
enquiry should start with an investigation into the precise basis on
which the right to electricity is to be characterised.
The inquiry
therefore is whether an alleged right to electricity is a
“
gebruiksreg
”
(a right of use) or an “
incident
of the possession or control of the property
”
served by the electricity. If it is an incident of the possession,
then the mandament is available to protect the alleged
right.
[6]
(iv)
Where
electricity is interrupted, particular where the supply of
electricity is considered a practical necessity in order for an
occupant to use the property, the occupant will experience a
“
significant
disturbance in his occupation
”.
[7]
However, notwithstanding, the supply of electricity should not
“
without
more
”
be accepted as an incident of possession.
[8]
(v)
Where
electricity has been cut off by a landlord “
with
a view to forcing the claimants to vacate the property
”
the court has held on occasion that “
it
was the claimants' possession of the property, rather than
quasi-possession of the electricity, that was being protected
”.
[9]
The court in
Makeshift
explains:
“
In Naidoo
[10]
the
claimant had previously had a lease of the first floor of a
double-storey residence. There was a dispute as to whether
he was
bound by a purported settlement agreement requiring him to vacate by
a specified date. When he did not vacate, the landlord
cut off the
electricity supply. Eloff J rejected the landlord's argument that the
mandament was precluded because the claimant's
only alleged
entitlement to electricity was contractual. The learned judge
described the claimant's use of electricity as an incident
of his
occupation of the first floor (at 84A – B), and said that the
landlord, by cutting off the electricity, 'substantially
interfered
with [the claimant's] occupation of the premises in question, and so
performed an act of spoliation' (at 84E –
F). Although the
judgment in Naidoo does not expressly record that the
landlord's intention was to force the claimant
out, Leach JA appears
to have inferred such an intention from the circumstances of the
case
.”
A
similar inference, namely that the supply of electricity was cut to
force the applicant (in that matter) to vacate, was drawn
from the
facts in the matter
of
Froman v Herbmore Timber and Hardware (Pty) Ltd
.
[11]
The court in that matter was willing to draw this inference on the
probabilities.
(vi)
It therefore seems,
according to
Makeshift
,
that the alleged right to electricity can fall into one of the
following three categories:
“
[32] The
authorities discussed in Masinda can be divided into three
categories:
(a)
First,
there are cases where the alleged right to a service (typically
water) takes the form of an alleged servitude or alleged
registered
statutory right. ….. These are uncontentious cases of
quasi-possession enjoying protection under the mandament.
(b)
Second,
there are the cases in which the alleged right to electricity or
other service has been held to be 'purely personal in nature'.
These
cases, in which no servitude or similar right was alleged,
include Masinda itself as well as Telkom SA Ltd
v
Xsinet (Pty) Ltd
2003
(5) SA 309 (SCA)
and Zulu
v Minister of Works, KwaZulu-Natal, and Others
1992
(1) SA 181
(D)
.
One may infer, from Leach JA's disapproval of the case, that Eskom
v Nikelo should also be placed into this category.
These cases
do not involve quasi-possession enjoying protection under the
mandament.
(c)
Finally,
there are cases such as Naidoo and Froman, which do
not appear to have been disapproved in Masinda,
where the
alleged right to a supply of electricity was an alleged personal
contractual right but where, nonetheless, the mandament's
protection
was held to be available.
[33] The
potentially difficult question is whether a case should be placed
into category (b) or (c)….
”
(vii)
Cases falling into category (c), are those where the alleged
right to electricity is “
an
adjunct to, or part of, the alleged right to occupy the
property
”.
[12]
Category (c), would typically include those cases where the landlord
has a direct interest in the possession of the property itself.
Where
the landlord cuts the electricity off, it would constitute not only
an interference with the alleged right to receive electricity,
but
would simultaneously interfere with the tenants right to undisturbed
possession of the premises. The alleged right to electricity
therefore forms part of the “
cluster
of alleged rights making up the occupation to which he claims to be
entitled.
”
[13]
(viii)
The court in
Makeshift
points out that in cases
that fall within category (c), the true grievance is therefore not so
much the despoliation of an alleged
right to electricity, but an act
that materially and adversely impacts on the tenant’s
occupation:
“
[34]
In the cases falling into category (c), by contrast, the alleged
right to the service is an adjunct to, or part of, the
alleged right
to occupy the property. The same person (typically a landlord) who
was allegedly obliged to allow the claimant to
be in possession of
the property was the party who was allegedly obliged to supply, or to
allow a supply, of services such as electricity
and water … In
such cases the landlord has a direct interest in the possession of
the property itself. The landlord's act
in cutting off electricity
and water is an act which interferes not only in the claimant's
alleged right to receive those services
but simultaneously interferes
in the claimant's alleged right against the landlord to be in
undisturbed possession of the premises
with the amenities forming
part of the alleged right of occupation. The claimant's alleged right
to receive electricity and water
is part of the cluster of alleged
rights making up the occupation to which he claims to be entitled.
And in such cases it may be
difficult to avoid the conclusion that
the landlord who has intentionally cut off the electricity and water
is trying to eject
the occupant without due legal process. In cases
falling into category (b), by contrast, the supplier does not
and could not
have any such intention.
”
[24]
Returning to the facts of the present
application. The applicant state in their papers that the right to
access to electricity supply
is an incident to the possession of the
property from which they conduct their businesses. Without
electricity, they say, it is
impossible for them to conduct their
businesses. They further tell the court that without electricity
their businesses came to
a complete standstill: The second
applicant’s dry cleaning and laundromat machines and equipment
are dependent on electricity.
The first applicant is a filling
station and without electricity it is not able to operate the fuel
pumps. There is also a convenience
store on the premises which
requires electricity in order for the refrigerators, ovens, cash
registers and computers to function
properly. Without electricity
both businesses will not be able to conduct business and will suffer
irreparable harm. The first
respondent disputes this and claims that
the businesses are operating on generators. The applicants also claim
that the first respondent
will not suffer prejudice because all the
applicants request is that they be credited with electricity units
after payment thereof
and that there can thus be no compounding of
the arrears in the respect of electricity usage.
[25]
I am persuaded that this is a matter where
the interference on the supply of electricity (at the instance of the
first respondent),
constituted material interference of the
possession of the property itself. The applicants conduct businesses
(the one as a Shell
filling station and the other a laundromat). It
is difficult not to come to the conclusion that an interference to
the supply of
electricity materially interferes with their possession
of the property itself.
[26]
The first respondent states in its answering
affidavit that the applicants’ lease agreements have been
cancelled but that
the applicants continue to hold over the property.
This fact coupled with the cut in electricity leads to the
irresistible inference
that the first respondent effectively cut the
electricity (by uploading the arrears on the pre-paid meter) to force
the applicants
to vacate and to avoid having to follow due process to
recover the alleged arrears.
[27]
In respect of costs, costs follow the result.
I am not persuaded that a special costs order is warranted.
[28]
In the event the following order was made:
1. That the first
respondent, with immediate effect, restores the applicants’
access to their electricity supply in respect
of their respective
business premises situated at:
1.1
Shop 4, 256 Dey Street, Nieuw Muckleneuk,
Pretoria, Gauteng;
1.2 Shell filling
station, Middel Street Motors, 256 Dey Street, Nieuw
Muckleneuk, Pretoria, Gauteng;
2. That the first
respondent instructs the third respondent to cancel the negative and
arrear balances loaded on the abovementioned
business premises
pre-paid electricity meters, with immediate effect;
3. That the first
respondent be ordered to pay the costs of this application.
AC BASSON
JUDGE OF THE HIGH
COURT
GAUTENG DIVISION
OF THE HIGH COURT, PRETORIA
Electronically
submitted therefore unsigned
Delivered:
This judgment was prepared and authored by the Judge whose name is
reflected and is handed down electronically
by circulation to the
Parties/their legal representatives by email and by uploading it to
the electronic file of this matter on
CaseLines. The date for
hand-down is deemed to be 9 February 2021.
Case
number
: 1750/2021
Matter
heard on
: 21 January 2021
For
the Applicant
: Adv DR Du Toit
Instructed
by
: Rudman & Associates Inc
For
the Respondent
: Mr Jason Dorning
Instructed
by
: Millers
Attorneys
[1]
(1225/2018)
[2019] ZASCA 98
;
2019 (5) SA 386
(SCA) (18 June 2019).
[2]
Ibid
at para [11].
[3]
Ibid
at para [13].
[4]
Ibid
.
[5]
2020
(5) SA 538 (WCC).
[6]
Ibid
at
para [24].
[7]
Ibid
at
para [25].
[8]
Ibid.
[9]
Ibid
at
para [26] and the authorities referred to there.
[10]
1982
(4) SA 82
(T) at para 27.
[11]
1984
(3) SA 609
(W). Referred to by the court in
Makeshift
supra
at para [28].
[12]
Makeshift
supra
at para [34].
[13]
Ibid
at
para [34].