Shika v Shika (5136/2021) [2021] ZAGPJHC 551 (3 September 2021)

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[2021] ZAGPJHC 551
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Shika v Shika (5136/2021) [2021] ZAGPJHC 551 (3 September 2021)

REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG DIVISION,
JOHANNESBURG
CASE
NUMBER:
5136/2021
DELETE
WHICHEVER IS NOT APPLICABLE
1.
REPORTABLE: NO
2.
OF INTEREST TO OTHER JUDGES: NO
3.
REVISED: NO
In
the matter between:
SHIKA,
LONDIWE (NEE
MKOMONDE)
Applicant
and
SHIKA,
LESIBANA HERBERT
Respondent
JUDGMENT
Delivered:
This judgment was handed down
electronically by circulation to the parties’ legal representatives
by e-mail. The date and time for
hand-down is deemed to be 10h00 on
the 3rd of September 2021.
DIPPENAAR
J
:
[1]
The applicant by way of urgent application sought orders against
her
husband, the respondent, (i) for urgent redress pursuant to an order
granted in the urgent court on 26 July 2021 by Kollapen
J (“the
order”) and (ii) declaring the respondent in contempt of the order
as a result of his failure to grant her unfettered
access to the
matrimonial home and (iii) an order directing the respondent to
restore applicant’s access to certain items and amenities
in the
matrimonial home including electricity, wi-fi and cleaning, cooking
and laundry services provided by the nanny and the removal
of
security cameras, together with ancillary relief. The redress sought
was an order directing the respondent to provide her with
a
replacement vehicle of the same or better standard than the 2018 VW
Polo which he had spoliated.
[2]
It was common cause between the parties that Kollapen J found
that
the respondent had unlawfully spoliated the applicant of the VW polo
motor vehicle which formed part of the accrual assets and
which she
had been using. The vehicle had been sold to a third party and thus
no order was granted for the restoration of possession
of the vehicle
to the applicant. The order provided:
“
1  The
First Respondent is to allow the Applicant unrestricted access to the
matrimonial home situated at 8 Pelican Island, 1587
Dolce Street,
Wilgeheuwel, Roodepoort and to refrain from committing acts of
spoliation, dispossessing or otherwise interfering with
the
Applicant’s access to the matrimonial home.
2 The First
Respondent is interdicted and restrained from alienating,
encumbering, ceding, disposing or selling of any removable,
movable
incorporeal, incorporeal assets in the accrual estate.
3 The First
Respondent is to pay the costs of the application on the scale as
between attorney and client”.
[3]
Divorce proceedings are pending between the parties as well
as
maintenance proceedings launched by the respondent in the Roodepoort
Magistrates court. The parties have separated but both remain
resident in the matrimonial home. It is common cause that their
relationship is acrimonious and has become litigious.
[4]
The respondent opposed the application on numerous grounds,
including
a challenge to urgency and points in limine that the matter was
res
iudicata
and the applicant was attempting to obtain a variation
or reconsideration of the order. The application was also disputed on
the
merits.
[5]
The respondent’s challenge to the urgency of the application
lacks
merit. In my view, the applicant has illustrated a sufficient degree
of urgency to entertain the application on its merits.
The applicant
was not dilatory in launching the application and in my view
sufficiently illustrated that she will not obtain substantial
redress
at a hearing in due course.
[6]
I am further not persuaded that there is merit in the points
in
limine raised by the respondent. I agree with the applicant that the
respondent’s reliance on
res iudicata
or issue estoppel is
misplaced. Suffice it to state that the relevant requisites were not
established. I further agree with the applicant
that the present
application does not seek a variation or reconsideration of the
order.
[7]
I deal
first with the applicant’s claim for a replacement motor vehicle
and ancillary relief. It is trite that an applicant must
make out its
case in its founding papers
[1]
.
[8]
The applicant’s case essentially rested on the contention
that she
is entitled to claim for consequential damages in the form of a
replacement vehicle as a result of the respondent’s unlawful
act of
spoliation. In so doing, the respondent had put her to great
inconvenience as she must make alternative arrangements to get
to
work, which has resulted in her incurring substantial costs which she
cannot continue carrying and that her employment is in jeopardy
as a
result. The respondent’s case on the other hand rested on the
contention that the applicant has not established a clear right
to a
replacement vehicle and thus faltered at the first requirement for
the final mandatory interdictory relief sought.
[9]
It is
apposite to refer to
Rikhotso
v Nothcliff Ceramics (Pty) Ltd
[2]
(“Rikhotso”)
wherein Nugent J held that where a spoliated article cannot be
returned, possession cannot be restored by substitution. It was
further
held that the
mandament
van spolie
is
a remedy for the restoration of possession not for the making of
reparation. It was not been held that no remedy exists, only that
the
mandament
van spolie
is not that remedy.
[10]
The
Supreme Court of Appeal in
Tswelopele
Non-Profit Organisation and Others v City of Tshwane Metropolitan
Municipality and others
[3]
endorsed
Rikhotso
and
further held that the
mandament
van spolie
did not entitle the dispossessed applicants to vindicate their lost
property by its substitution and declined to extend the remedy.
The
Supreme Court of Appeal however fashioned a constitutional remedy in
circumstances where the applicants’ constitutional rights
were
infringed
[4]
. Those
considerations do not arise in the present instance and no case for
such relief has been made out.
[11]
Although
our courts have declined to extend the
mandament
van spolie
to provide for reparations, it has been held that the right to
reparation, where the spoliation has resulted in the loss or
destruction
of property, is intrinsically linked to the underlying
unlawful act of taking the law into one’s own hands without a court
order.
[5]
Our courts have
further recognised that a bona fide possessor who has been unlawfully
dispossessed of an item has a claim for damages
which flow from the
loss of such possession under the
Lex
Acquilia
[6]
even though the nature of the damages may be limited
[7]
.
[12]
It is not however necessary to make any findings on this issue or
embark on an academic
discussion thereof as I agree with the
respondent that the applicant has not made out a proper case for
relief in her founding papers
and trial proceedings would be more
appropriate. It is trite that in motion proceedings, the affidavits
constitute both the pleadings
and the evidence. The applicant’s
founding affidavit does not contain all the necessary averments to
sustain a damages claim. The
stance adopted by the applicant that
pursuant to the spoliation she is entitled as of right to a
substitution vehicle is not supported
by the authorities. It follows
that no relief can be granted to the applicant on this issue now.
[13]
This does not mean that the applicant has no remedy at her disposal
and the applicant
should be granted an opportunity to institute
appropriate proceedings if she wishes to do so. I intend to grant an
appropriate order.
[14]
Turning to the contempt and ancillary relief sought by the applicant,
the respondent
opposed such relief on the basis that the requirements
for contempt had not been met. It was argued that the applicant had
not established
non-compliance with the order or that such
non-compliance was willful and mala fide.
[15]
In support of her case, the applicant complained of certain conduct
on the part of
the respondent which has hampered her unfettered and
unrestricted access to the matrimonial home, which includes
unfettered use and
enjoyment of the amenities provided therein.
[16]
The
requirements for civil contempt are trite.
[8]
The existence of the order and the respondent’s knowledge thereof
were not in dispute between the parties. The respondent however
disputed that he breached the order and argued that the applicant has
not illustrated that he is in willful and mala fide contempt
of the
order. The respondent bears an evidentiary burden to cast reasonable
doubt on whether his non-compliance with the order was
willful and
mala fide.
[17]
It was common cause that the respondent had installed security
cameras in the matrimonial
home. The applicant contended that they
were to monitor and record her, whereas the respondent averred it was
for security purposes
and preserves the value of the accrual. On the
respondent’s version, there is one camera facing the door and the
kitchen window,
which is set to detect motion between 22h00 and
06h00. On the facts, I cannot conclude that the installation of
security cameras
constitutes a breach of the order, nor am I
persuaded to grant an order that the security cameras be removed.
[18]
The respondent did not directly dispute the averment that he has
instructed the nanny
not to cook for the applicant and not to perform
any household chores for her. Such conduct impedes on the applicant’s
use and
enjoyment of the matrimonial home and constitutes a
deprivation. Depriving her of that benefit would constitute a
dispossession as
envisaged by the order. The respondent’s conduct
thus constitutes a breach of the order.
[19]
A dispute exists on whether the respondent has removed the
applicant’s access to
the wi-fi or whether the necessary codes are
available to the applicant. The respondent is obliged to provide
unfettered access to
the wi-fi to the applicant and to provide her
with the necessary passwords and access codes under the order. A
failure to do so would
constitute a breach of the order.
[20]
The applicant complains that she has been deprived of access to
electricity in her
bedroom. It was not disputed that the respondent
has failed to effect repairs to her bedroom plugs which has rendered
her without
electricity. His view that she is to pay the costs of the
electrician is obstructive and unreasonable. A deprivation of
electricity
constitutes a breach of the order.
[21]
The applicant further complained in her founding papers that her
access to and from
the complex was impeded by the respondent removing
her cellphone number from the security access system of the complex.
In his answering
papers the respondent provided proof that the
applicant indeed had access to the complex. In reply, the applicant
averred that access
was only restored after numerous requests. Were
the respondent to interfere with the applicant’s access to the
security access
system, such conduct would constitute a breach of the
order.
[22]
The stance adopted by the respondent is unreasonable and there is
merit in the applicant’s
characterisation thereof as vindictive.
The stance adopted in the correspondence of his legal representatives
disregards the ambit
and tenor of the order and the ambit of the
respondent’s obligations thereunder. Despite being provided with an
opportunity to
rectify his breaches and being forewarned of a
possible contempt application prior to the launching of this
application, the respondent
did not avail himself of the opportunity
provided.
[23]
In my
view the respondent has breached the order in the respects referred
to above. That of itself does not however mean that the
respondent is
in contempt of the order as his conduct must be found to be both
willful and mala fide
[9]
. Even
if his conduct is willful and unreasonable, it cannot be concluded on
the papers that he is mala fide and deliberately disobeyed
the order
with knowledge that he was breaching it.
[24]
For that reason, I am not persuaded to grant an order declaring the
respondent in contempt
of the order. I am however persuaded to grant
the ancillary relief sought by the applicant to prevent any further
and similar breaches
of the order from occurring.
[25]
It would be appropriate to reserve the costs of the application to be
determined in
the proposed proceedings to be instituted by the
applicant.
[26]
I grant the following order:
1.
The
respondent is directed to immediately:
1.1
Restore the applicant with undisturbed and
unfettered access to the matrimonial home situated at
8
Pelican Island, 1587 Dolce Street, Wilgeheuwel, Roodepoort, and to
refrain from committing any acts of spoliation, dispossessing,
or
otherwise interfering, with the applicant’s access to the
matrimonial home and its amenities;
1.2
Restore the applicant’s access to
electricity in all rooms in the matrimonial home;
1.3
Restore and retain the applicant’s access
to the complex entrance of the matrimonial home and the matrimonial
home;
1.4
Restore and retain the applicant’s use of
the wi-fi in the matrimonial home;
1.5
Instruct the nanny to conduct all work for
the applicant in relation to her needs within the matrimonial home,
including cooking,
cleaning and laundry.
1.6
Retain the settings on the security
camera system to monitor movement between 22h00 and 06h00 and not to
record the applicant.
3. In the event that
the respondent breaches the order in 1 above or breaches the order
granted by Kollapen J on 26 July 2021, the
applicant is authorised to
approach the court for relief on the same papers, supplemented as
required, for relief in terms of prayer
5 of the notice of motion
dated 12 August 2021.
4. The applicant is
authorised to launch appropriate proceedings for damages arising from
the respondent’s unlawful spoliation of
the vehicle within 15 days
of date of this order.
5. The costs of this
application are reserved, to be determined in the proceedings
envisaged in 4 above.
6. In the event that
the applicant fails to launch the envisaged proceedings in 4 above,
the application may be enrolled to determine
the issue of costs.
EF
DIPPENAAR
JUDGE
OF THE HIGH COURT
JOHANNESBURG
APPEARANCES
DATE
OF HEARING
:
26 August 2021
DATE
OF JUDGMENT
:
03 September 2021
APPLICANT’S
COUNSEL
: Adv. A. Suldulker
APPLICANT’S
ATTORNEYS
: Fairbridges Wertheim Becker
RESPONDENT’S
COUNSEL
: Mr R. Mokwena
RESPONDENT’S
ATTORNEYS
:
TM Mahapa Inc.
[1]
Hart v Pinetown Drive-In Cinema (Pty) Ltd
1972 (1) SA 464
(D);
Titty’s Bar and Bottle Store (Pty) Ltd v ABC Garage (Pty) Ltd
1974
(4) SA 362
(T)
[2]
1997 (1) SA 526
(W) 532H-535B
[3]
2007 (6) SA 511
(SCA) paras [18]-[19]
[4]
Endorsed by the Constitutional Court in Schubart Park Residents’
Association and Others v Tshwane Metropolitan Municipality and
Another
2013 (1) SA 323
(CC).; Ngomane and Others v City
Johannesburg 2020 (1) SA 52 (SCA)
[5]
;
Centpret
Properties (Pty) Ltd v Gerhardus D Van Loggerenberg & Associates
CC 2016 JDR 0886 (GP) paras 28-29 and the authorities
cited therein
[6]
Matthee v Shcietekat
1959 (1) SA 344
(C) at 348B-D; 348H
[7]
Griesel v Liebenberg [2008] ZAFSH 39
[8]
Fakie
NO v CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA) (“Fakie”);
Pheko & Others v Ekhurhuleni City
2015 (5) SA 600
(CC);
Matjhabeng Municipality v Eskom Holdings Ltd & Others; Mkhonto &
Others v Compensation Solutions (Pty) Ltd
2018 (1) SA 1
(CC) paras
[67] and [85]-[88]
[9]
Fakie, paras [8]-[9]