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[2021] ZAGPPHC 238
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Salentias Travel and Hospitality CC v Dey Street Properties (Pty) Ltd and Another (14780/ 2021) [2021] ZAGPPHC 238 (19 April 2021)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO
: 14780/ 2021
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES:
NO
REVISED
Date:
19 April
2021
In
the matter between:
SALENTIAS
TRAVEL AND HOSPITALITY
CC
Applicant
and
DEY
STREET PROPERTIES (PTY)
LTD
First Respondent
THE
TSHWANE METROPOLITAN MUNICIPALITY
Second Respondent
JUDGMENT
NYATHI,
AJ:
INTRODUCTION
[1].
The Applicant applies on an urgent basis for a spoliation order as
well as final lnterdictory relief against
the First Respondent. The
Second Respondent, a Municipality is cited only in relation to its
role as the Local Authority and custodian
of building legislation, no
relief is sought from it.
[2].
The construction of a four - story staircase, by the First
Respondent, who is the landlord, right in front of
the Applicant's
business shop-front, gave rise to the Spoliation Application.
[3].
Through
the urgent interdictory relief, the Applicant seeks an order that the
Respondent be interdicted from continuing with
any construction
activities on a property situated at […]Street, […],
Pretoria, Gauteng, in the absence of an approval
obtained from the
municipality in terms of Section 4(1) of the National Building
Regulations and Building Standards Act, 103 of
1977 ("the Act").
BACKGROUND
[4].
The Applicant conducts the business of dry cleaner and laundromat
from the premises situated at […], […]Street, […],
Pretoria, Gauteng ("the premises") and has done so
successfully since 2013.
[5].
The First Respondent has recently acquired the premises as
landlord. The First Respondent commenced with extensive construction
on the property without building plans or the Applicant's permission.
The effect of the construction is that the Applicant is no
longer
able to properly conduct business from its premises due to the
illegal construction activities of the First Respondent.
The
Applicant alleges that access to its shop front has partially been
blocked-out due to the "colossal" staircase being
constructed.
THE
LEGAL POSITION:
Urgency
[6].
Spoliation is inherently urgent. However, the procedure in rule 6
(12) is not there for the taking, it needs
proper substantiation
beforehand. "The importance of these pro visions is that the
procedure set out in Rule 6(12) is not
there for the mere taking".
Notshe AJ said in
East Rock Trading
7
(Pty) Ltd and Another
v Eagle Valley Granite (Pty) Ltd and Others (11/ 33767) [2011]
ZAGPJ
HC 196 (23 September 2011) in paras 6 and 7 as follows:
'The
import thereof is that the procedure set out in rule 6(12) is not
there for taking. An applicant has to set forth explicitly
the
circumstances which he avers render the matter urgent. More
importantly, the Applicant must state the reasons why he claims
that
he cannot be afforded substantial redress at a hearing in due course.
The question of whether a matter is sufficiently urgent
to be
enrolled and heard as an urgent application is underpinned by the
issue of absence of substantial redress in an application
in due
course. The rules allow the court to come to the assistance of a
litigant because if the latter were to wait for the normal
course
laid down by the rules it will not obtain substantial redress. It is
important to note that the rules require absence of
substantial
redress. This is not equivalent to the irreparable harm that is
required before the granting of an interim relief.
It is something
less. He may still obtain redress in an application in due course,
but it may not be substantial. Whether an applicant
will not be able
obtain subs tanti al redress in an application in due course will be
determined by the facts of each case. An
applicant must make out his
case in that regard."'
[1]
The
requirements for a spoliation order:
[7].
The
mandament
van
spolie
or
spoliation
order
is
available
where
a
person has
been deprived unlawfully, entirely or in part of his or her
possession of movable or immovable property
[2]
.
Such
deprivation is termed spoliation.
[8].
The remedy is based on the maxim
"spoliatus
ante omnia restituendus est"
-
the
spoliated
person
must
be
restored
to his or
her
former
position
before all else, i.e.
before
any
question
of
title
can
be
considered.
[3]
In
Andries
van
der
Schyff
v
Webstrade
Inv No 45
2006
(5) SA 327 (W)
[4]
the
respondents sought to argue (to no avail) that the applicants were
'unlawful occupiers' in terms of section 1 of the Prevention
of
Illegal
Eviction
from and
Unlawful Occupation
of Land
Act 19 of
1998.
[9].
Firstly,
the
plaintiff must allege and prove that he or she was in peaceful and
undisturbed
possession
of
the
property.
[5]
The
causa
of
the
plaintiff's
possession
is
irrelevant
,
and
it
is also
irrelevant
whether the
defendant
has
a
stronger
right
or claim to
possession. Actual physical possession, and not the right , to
possession, is protected.
[6]
[10].
Secondly,
the applicant must allege and prove that he was
unlawfully deprived by the defendant of his possession. The
"unlawfulness"
element is satisfied where the dispossession
is without the plaintiff's consent or without due legal process.
THE
FINAL INTERDICTORY RELIEF SOUGHT
[11].
In terms of the Act and more specifically Section 4(1) thereof it
is specifically stated that no person shall without the prior
approval in writing of the Local Authority in quest ion, erect any
building in respect of which plans, and specifications are to
be
drawn and submitted in terms of this Act.
[12].
The Act defines inter alia "building" as:
"Sub
- Article (1) i
iii) (a) any other
structure, whether of a temporary or permanent nature and
irrespective of the materials used in the erection
thereof, erected
or used for in connection with.."
[13].
It can thus not be disputed that the building activities by the
Respondent falls within the ambit of the
definition of building and
as such approved building plans is required as prescribed in Section
4(1) of the Act.
[14].
On being challenged by the applicant in its founding affidavit
the First Respondent fails to provide the Applicant with proof that
it is in fact in compliance with the Act, more specifically that
approved Building plans exists for the construction activities.
[15].
In terms of the Act and more specifically Section 4(1) thereof it
is specifically stated that no person shall without the prior
approval in writing of the Local Authority in question, erect any
building in respect of which plans, and specifications are to
be
drawn and submitted in terms of this Act.
[16].
The First Respondent also does not gainsay the serious
allegations of illegal conduct in the construct ion.
ISSUES TO BE DECIDED
[17].
The
issues to be decided in this matter are:
17.1
whether or not the applicant has made out a case for the matter to be
heard as one of urgency; and if yes,
17.2
whether the requirements for spoliation were proved; and
17.3
whether the requirements of an interdict have been met, on a balance
of probabilities, to be granted the relief sought.
[18].
The applicant states in its affidavit that the construction is a
hindrance to its normal business operations and poses a safety hazard
in that fire escape routes are blocked. Applicant submits that it
will suffer irreparable prejudice should the relief as requested
not
be obtained on an urgent basis. The respondent denies that the matter
is in any way urgent. Respondent's Counsel submitted
that the
respondent is exercising its contractual rights to effect
improvements to its property and that the applicant was
at all
material times aware of this provision in the lease agreement. What
is common cause bet ween both parties is that the building
works have
commenced and are ongoing. Photographs of the works were presented,
and submissions made on their strength during the
hearing.
[19].
The respondent raised as a defence the fact that there was a rental
dispute over
rental payments between the parties and that therefore,
the applicant cannot succeed due to its defective title over the
premises.
[20].
As regards the issue of official approved building plans as an
issue of contention between the parties, it is worth recording that
none were presented. It was not even argued that same existed. The
issue to be decided here is whether the applicant has a clear
right
to the interdictory relief it seeks. If the respondent is acting in
contravention of the Building Standards Act, and in so
doing
prejudices the applicant, then it follows that the applicant has a
right to seek relief based on the same statute.
[21].
Is the harm irreparable ? The answer lies in the fact that the
activity complained of is a structure forming part of a building,
and
obviously permanent if completed.
CONCLUSION
[22].
A perusal of the applicant's founding affidavit reveals a clear
situation of urgency over which the applicant has no control at this
moment. I am satisfied that the applicant has made out a case for the
matter to be dealt with as one of urgency.
[23].
Relief
by way of the
mandament
van spolie
is
rarely initiated by way of action proceedings. This is due to
the
inherent urgency of such matters
[7]
. "In view of
the facts
that the merits of the plaintiff's possession and the defendant's
right to possession are not
justiciable
in
proceedings for
a mandament
van spolie, there are no
defences
available
which do
not amount
to
a denial of
the
plaintiff'
s
allegations"
[8]
.
[24].
The only inference to be drawn from the respondent's failure to
provide the approved building plans is that the respondent is acting
in contravention of Section 4(1)of the Building Standards, which
states that: "No person shall without the prior approval
in
writing of the local authority in question, erect any building in
respect of which plans and specifications are to be drawn
and
submitted in terms of this act." The applicant's application for
interdictory relief should also succeed.
Accordingly, I make the
following order:
1.
That the First Respondent with immediate effect, restores the
Applicant's access to its business
premises situated at […],
[…], […], Pretoria , Gauteng by removing or demolishing
the staircase which has
been erected directly in front of the
entrance to the said business premises.
2.
That the First Respondent is interdicted and restrained from
proceeding with any building work and construction
activities on the
property situated at […], […], Pretoria, Gauteng until
such time as approval is obtained from the
Second Respondent in terms
of Section 4(1) of the National Buildings Regulations and Building
Standard Act, Act 103 of 1977.
3.
That the First Respondent is ordered to pay the Applicant's cost on
an attorney and client scale.
JS
NYATHI
Acting
Judge of the High Court of South Africa
Gauteng
Division, Pretoria
HEARD
ON:
8th March 2021
DATE
OF JUDGMENT:
19
th
April 2021[
FOR
THE APPLICANT:
ADV DR DU TOIT
RUDMAN
& ASSOCIATES ATTORNEYS 211
Lange
Street Nieuw Muckleneuk
INSTRUCTED
BY:
Pretoria e-m ail:
lourens@rudmanlaw.co.za
Tel:
(012) 8811750 REF: ERASMUS/ KS
FOR
THE RESPONDENT:
ADV AW PULLINGER
INSTRUCTED
BY:
MILLERS
ATTORNEYS
28
VICTORIA ROAD
SANDRINGHAM;
JHB
TEL:
082 071 7967
Email:
yair@millersattorneys.co.za
sibusiso@millersattorneys.co.za
C/
O JW WESSELS & PARTNERS
811
FRANCIS BAARD STREET
ARCADIA
TEL: 012 343 1410
email:
legal@
jww.co.za
[1]
Quoted per Wepener J, In re: several matters on the urgent court
roll
2013 (1) SA 549
GSJ
[2]
Wille’s Principles
of South
African Law 9
th
Edition p454.
[3]
Wille p454 referring to Voet 41.2.16, 43.17.7. referred to in
[4]
Per Tshiqi J (as she then was) At 332
[5]
Kgosana v Otto 1991 (2) SA 113 (W)
[6]
Yeko v Qana
1973 ($)
SA 735 (A)
[7]
Reck V. Mills
1990 (1) SA 751
(A)
[8]
LTC Harms – Amler’s precedents of pleadings (5ed);
Willowvale Estates CC v Bryanmore Estates
Ltd
1990
(3) SA 954
(W)