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[2021] ZAGPJHC 105
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Humair and Another v National Commissioner of the South African Police Service and Others (5747/2021) [2021] ZAGPJHC 105 (27 July 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO
:
5747/2021
DATE
:
27
th
JULY 2021
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
HUMAIR
,
RAHEEL
Frist Applicant
KHAN
,
NABEEL
Frist Applicant
And
THE
NATIONAL COMMISSIOER OF
THE
SOUTH AFRICAN POILCE SERVICES
First Respondent
COLONEL
DLOMO (BOOYSENS POLICE STATION)
Second Respondent
EVE
,
ALAN HILTON
Third Respondent
Coram:
Adams J
Heard
:
20 July 2021 – The
‘virtual hearing’ of the
application was conducted as a videoconference on the
Microsoft
Teams
digital platform.
Delivered:
27 July 2021 – This judgment was
handed down electronically by circulation to the parties'
representatives by email, by being
uploaded to the
CaseLines
system of the GLD and by release to SAFLII. The date and time for
hand-down is deemed to be 14:30 on 27 July 2020.
Summary:
Opposed application –
mandament van spolie
–
section 31 of the Magistrates Court Act –
Automatic Rent Interdict
not a justification for self-help – Automatic Rent Interdict
only attaches property on the leased premises – does not
entitle lessor to unlawfully evict lessee – application for
reinstatement granted.
ORDER
(1)
The first and second applicants’ application against the third
respondent
succeeds.
(2)
Possession and occupation of the business premises situate at 116 –
5
th
Street, Booysens Reserve, Johannesburg (‘the
premises’) shall be restored to the first and second applicants
immediately
by the third respondent.
(3)
In the event of the third respondent failing to comply with the order
in paragraph (2) above within five days from date of this order, the
Sheriff of the High Court is hereby directed and authorised
to
restore to the first and second applicants’ possession and
occupation of the premises and to reinstate the applicants
in terms
of this order.
(4)
Each party shall bear his own costs of this opposed application.
JUDGMENT
Adams J:
[1].
This is an opposed application by the
first and second applicants for an order reinstating their occupation
and possession of business
premises situate in Booysens Reserve,
Johannesburg. The applicants occupied the premises, from which they
conducted a recycling
plant, where machinery and equipment were
housed by them and used in their recycling business. That was until
26 December 2020,
when the applicants were locked out of the business
premises by the third respondent, who was acting personally and on
behalf of
his company, which owns the property on which the factory
is situated.
[2].
The applicants occupied the premises
pursuant to and in terms of a business lease agreement. They were in
breach of the lease agreement,
whereafter they were sued by the third
respondent, and that action was compromised and a settlement reached
between the parties.
In terms of the settlement agreement, the
applicants were to continue occupying the premises, subject to them
paying rental of
R80 000 per month, which they seemingly did not
pay timeously or at all. This is probably why the third respondent
wants them
out of the premises and which is the real reason why the
applicants were locked out of their factory during 2020.
[3].
It is common cause between the parties
that the third respondent did not have a court order authorising the
eviction of the applicants
from the premises, which is what the
lock-out during December 2020 in effect amounted to. Of that there
can be little doubt. The
third respondent’s explanation for
locking out the applicants from the premises is to the effect that
the movable property
on the premises, being the applicants’
machinery and equipment, was attached by the Sheriff of the
Magistrates Court pursuant
to and in terms of an
Automatic
Rent Interdict
summons issued under
case number 1116/2019. The summons was initially served and the
attachment made during May 2019 and again during
November 2020. On
the 26
th
of December 2020, so the third respondent alleges, it came to his
attention that the applicants, in contravention of the judicial
attachment of the movable property, were planning on removing the
machinery and the equipment from the factory. In order to prevent
the
aforegoing unlawful conduct on the part of the applicants, so the
third respondent avers, he himself opted to act unlawfully
by locking
out the applicants from their factory – this is the very
definition of spoliation.
[4].
The very crisp question to be decided in
this application is whether the third respondent was justified in his
spoliation of the
applicants in relation to their occupation of the
business premises.
[5].
It
may be apposite at this juncture to say something about the general
principles applicable to the legal remedy of
mandament
van spolie
,
which has been part of our law for generations. Its scope and
application has been aptly summarised in the old Transvaal Full
Bench
decision of
Nino
Bonino v De Lange
[1]
.
Innes CJ had this to say:
‘
It
is a fundamental principle that no man is allowed to take the law
into his own hands. No one is permitted to dispossess another
forcibly or wrongfully and against his consent of the possession of
property whether movable or immovable. If he does so the court
will
summarily restore the
status quo ante
and will do that as a
preliminary to any enquiry or investigation into the merits of the
dispute. It is not necessary to refer
to any authority upon a
principle so clear’
[6].
It is trite that if one takes the law
into your own hands by dispossessing another, the
status
quo ante
will be restored summarily
and you will be ordered to restore possession to the previous
possessor.
Mandament van Spolie
is not an order for Specific Performance – the one is a summary
remedy based on free and undisturbed possession of a ‘thing’
and the other is a remedy based in contract.
[7].
So, as I indicated earlier, the question
is whether the third respondent spoliated the applicants. Or was the
third respondent justified
in ‘taking the law into his own
hands’ by locking the applicants out of their factory without a
court order?
[8].
Section 31 of the Magistrates Court Act, Act 32 of 1944 provides as
follows:
-
’
31
Automatic rent interdict
(1)
When a summons is issued in which is
claimed the rent of any premises, the plaintiff may include in such
summons a notice prohibiting
any person from removing any of the
furniture or other effects thereon which are subject to the
plaintiff's hypothec for rent until
an order relative thereto has
been made by the court.
(2)
The messenger shall, if required by the
plaintiff and at such plaintiff's expense, make an inventory of such
furniture or effects.
(3)
Such notice shall operate to interdict
any person having knowledge thereof from removing any such furniture
or effects.
(4)
Any person affected by such notice may
apply to the court to have the same set aside.’
[9].
A lessor has under the common law a
tacit hypothec over the
invecta et
illata
on the leased premises for
the rent due to him by the lessee. The hypothec is complete without
judicial attachment, but operates
only as long as the goods remain on
the premises. The hypothec is lost as soon as the goods are removed.
The lessor is however
not entitled forcibly to prevent the lessee
from removing the goods from the leased premises. Therefore, the
machinery provided
by law for the purpose of preventing removal of
the goods is an attachment. And that is the total effect of an
automatic rent interdict
– it does not entitle the lessor to
self-help. Section 31 most certainly did not convert the third
respondent’s unlawful
spoliation of the applicants into lawful
conduct.
[10].
In any event, it is the case of the
applicants that the action under which the Automatic Rent Interdict
summons was issued, that
being under case number 1116/2019, was
compromised and settled during May 2019. No provision was made in the
settlement agreement
for a retention of the attachment made of the
property in terms of the automatic rent interdict. The attachment of
the property
therefore appears to have been invalid.
[11].
The simple fact of the matter is that
the applicants were in free and undisturbed possession of the
business premises until 26 December
2020. On that day the third
respondent and his company dispossessed the applicants by locking
them out of the premises and by denying
them access thereto. This the
third respondent and his company did without a court order. The
aforegoing entitles the applicants
to a
mandament
van spolie
.
[12].
The third respondent has also raised a
number of legal points in his opposition to the applicants’
application. Most notable
of these points
in
limine
is the third respondent’s
defence based on
lis alibi pendens
.
Generally, this special defence requires that there be pending
litigation in two competent forums between the same parties,
over the
same subject matter or cause of action and for the same relief. It
may very well be that the requirements for
lis
pendens
are met
in
casu
. The applicants have instituted
applications similar to this application in this court and in the
Magistrates Court.
[13].
However,
a court retains an overriding discretion not to uphold the plea
because of the specific circumstances of a case. I am of
the view
that, in the circumstances of this case, I should exercise my
discretion in favour of the applicants. The pending applications
in
this Court were brought by the applicants on an urgent basis and they
have been unsuccessful mainly because of a lack of urgency.
That is
not the case with the matter before me, which is simply an opposed
application, in which the applicants appear in person.
The
applicants are accordingly lay pleaders and I am enjoined to construe
their papers and the manner in which they conduct
the litigation
generously and in the light most favourable to them. In that regard,
see:
Xinwa
v Volkswagen of South Africa (Pty) Ltd
[2003]
[2]
.;
[14].
The applicants have however placed facts
before me, which indicate that the third respondent has acted
unlawfully by evicting them
without a court order. Such conduct
cannot and should not be countenanced as it would undermine the rule
of law, which is already
under threat. This point
in
limine
therefore stands to be
dismissed.
[15].
As for the rest of the legal points,
which are for the most part of an overly technical nature, and do not
detract from the common
cause fact that the third respondent has
acted unlawfully, there are no merit in any of the points. They
similarly stand to be
rejected.
[16].
As for the second and the third
respondents, they played no part in this opposed application and have
indicated that they will abide
the decision of this court. They were
cited by the applicants because, so the applicants contend, they
assisted the third respondent
in having the applicants evicted from
the premises. I do not intend granting any orders against these
respondents as they were
acting on instructions of the third
respondent.
[17].
Accordingly, the applicants’
application against the third respondent should succeed and the
applicants’ occupation
of the premises should be restored.
Costs
[18].
The general rule in matters of costs is that the successful party
should be given his costs,
and this rule should not be departed from
except where there are good grounds for doing so.
[19].
In this matter, the applicants would therefore have been entitled in
the normal course of event
to an award for costs in their favour.
However, the applicants are not legally represented in these
proceedings and therefore are
not entitled to recover any legal fees
other than actual expenses and expenditures incurred in the
litigation.
[20].
I am of the view that no order as to cost shall be fair, reasonable
and just to all concerned.
Therefore, in the exercise of my
discretion I intend granting no order as to costs.
Order
[21].
Accordingly, I make the following order: -
(1)
The first and second applicants’ application against the third
respondent
succeeds.
(2)
Possession and occupation of the business premises situate at 116 –
5
th
Street, Booysens Reserve, Johannesburg (‘the
premises’) shall be restored to the first and second applicants
immediately
by the third respondent.
(3)
In the event of the third respondent failing to comply with the order
in paragraph (2) above within five days from date of this order, the
Sheriff of the High Court is hereby directed and authorised
to
restore to the first and second applicants’ possession and
occupation of the premises and to reinstate the applicants
in terms
of this order.
(4)
Each party shall bear his own costs of this opposed application.
L R ADAMS
Judge of the High
Court
Gauteng
Local Division, Johannesburg
HEARD
ON:
20th July 2021 – in a ‘virtual hearing’
during
a videoconference on the Microsoft
Teams
digital platform
JUDGMENT
DATE:
27th July 2021 – judgment handed down
electronically
FOR
THE FIRST AND SECOND
APPLICANTS:
In Person
INSTRUCTED
BY:
In Person
FOR
THE FIRST AND SECOND
RESPONDENTS:
No appearance
INSTRUCTED
BY:
No appearance
FOR
THE THIRD RESPONDENT:
Adv C Armstrong
INSTRUCTED
BY:
J B Attorneys
[1]
Nino
Bonino v De Lange
,
1906 TS;
[2]
Xinwa
v Volkswagen of South Africa (Pty) Ltd
[2003] ZACC 7
;
2003 (4) SA 390
(CC), para 13;