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[2021] ZAGPJHC 500
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T and M Canteen CC v Charlotte Maxeke Academic Hospital and Another (41475/2018) [2021] ZAGPJHC 500 (21 September 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
CASE
NO.: 41475/2018
REPORTABLE:
YES/NO
OF
INTEREST TO OTHER JUDGES: YES/NO
REVISED
21
September 2021
In
the matter between:
T
and M CANTEEN CC
Applicant
AND
CHARLOTTE
MAXEKE ACADEMIC HOSPITAL
First Respondent
MAKHOSI
NYEMBE
Second Respondent
This
judgment is delivered electronically by circulation to the parties'
legal representatives by email, and uploaded on caselines
electronic
platform. The date of issue is deemed to be September 2021.
JUDGEMENT
Molahlehi
J
Introduction
[1]
This judgment
provides the reasons for the order made on 14 September 2021, which
reads as follows:
1.
The matter is
treated as one of urgency, and accordingly, the forms and service
provided for in the Rules of the High Court are
dispensed with in
terms of Rule 6 (12) of the Rules.
2.
The first and
second respondents are ordered to restore the applicant's peaceful
and undisturbed possession of the canteen premises
situated at level
5 (Block 2) Charlotte Maxeke Hospital, Jubilee Street, Parktown,
Johannesburg.
3.
The first and
second respondents are to pay the costs of this application on the
attorney and client scale, the one paying the other
to be absolved.
[2]
The order was
consequent the urgent application instituted on behalf of the
applicant, T and M Canteen CC by Mr Tiller, the sole
member of the
applicant. The applicant is a closed corporation registered as such
in terms of the company laws of South Africa
and operating the
business of selling food at the hospital premises and had done that
for many years.
[3]
The second
respondent is Mr Makhosini Nyembe, the director of logistics employed
by the second respondent, Shallotte Maxeke Hospital.
The first
respondent, Shallotte Maxeke Hospital, is a healthcare facility
providing health care services in the Johannesburg area
falling under
the Gauteng provincial government.
[4]
The essence of
the relief sought by the applicant was that the respondents should be
directed to restore its peaceful and undisturbed
possession of the
canteen premises situated at level 5 (Block 2) Charlotte Maxeke
Hospital, Jubilee Street, Parktown, Johannesburg.
[5]
Initially,
this matter served before Vally J as an urgent
ex
parte
application.
The matter was then removed from the roll, and the time frames for
filing the answering and the replying affidavit
were agreed upon.
Thus all the relevant papers relating to the dispute was properly
before the court when the matter was argued.
[6]
The
respondents opposed the application and raised various grounds of
opposition, including two preliminary points relating to lack
of
urgency and non-joinder of the Gauteng Provincial Government.
[7]
It is common
cause that the applicant occupied the canteen premises at the
hospital in terms of a lease agreement concluded with
the Gauteng
Provincial Department of Infrastructure. However, the cause of action
in this matter is not based on the lease agreement,
as will appear
later in this judgment but on spoliation.
[8]
It is common
cause that on 16 April 2021 the hospital experienced a devastating
fire outbreak due to which the hospital had to close
down. Following
the fire outbreak, the applicant was instructed by the department of
fire to vacate the premises. The fire caused
extensive damage and the
collapse of certain parts of the hospital in the northern side, Block
4.
[9]
After some
time, a phased-in-approach to the opening of the hospital was adopted
in consultation with management and clinicians.
The respondents state
in the answering affidavit that Phase 1 of reopening the hospital was
the radiation oncology department building,
followed by blocks 2, 3,
5 and the theatres.
[10]
It seems
common cause that the hospital closed down for about three weeks,
after which the 2
nd
Block of the Hospital was reopened. After, that the hospital allowed
the informal traders to operate from the hospital premises,
selling
food.
[11]
The applicant
complained that he was not offered the opportunity to resume his
business operation after the block in which it operated
in had
reopened. The pharmacy which is opposite the canteen was for instance
reopened and continues to operate. It accordingly
contends that the
respondents unlawfully deny it the right of possession of the
premises where the canteen is located.
[12]
The applicant
set out briefly the background to how it was unlawfully disposed of
using the premises it occupied in conducting its
business in the
founding affidavit as follows. It was denied access to the canteen
one Saturday at the end of April 2021. Mr Tille,
the deponent to the
founding affidavit, says that he was denied access to the canteen
when he wanted to check on the files, fridges
and payments located in
the canteen. The security of the first respondent stopped him from
accessing the premises and told him
to come the following Monday to
meet with the second respondent.
[13]
On arrival on
that Monday, the second respondent told him that he would not be
allowed access into the premises until the premises
were inspected
and approved for access by the engineers.
[14]
On 30 April
2021, the second respondent sent a message to Mr Tille saying that he
should report immediately to the hospital. On
arrival at the
hospital, Mr Tille met with members of the fire department, who
advised him that they had conducted an inspection
and were satisfied
that the premises were compliant with the fire regulations. He then
proceeded to the office of the second respondent,
where he enquired
from the second respondent as to 'what was the next step in the
reopening of the premises.' The second respondent
avoided answering
the question and informed Mr Tille that the hospital needed to take
possession of the storerooms to compensate
for other areas which the
fire had damaged.
[15]
Mr Tille
informed the second respondent that he should be allowed regular
access to the premises in order to check the perishable
food items
and equipment. In response the second respondent advised the
applicant to call him on another occasion to discuss this
further.
[16]
After the
above meeting, the applicant avers that he contacted the second
respondent over his cell phone on numerous occasions to
no avail. In
certain instances, when called by the applicant, the second
respondent would send a message back to the applicant
informing him
that he could not answer his call because he was in a meeting. He
(the second respondent) at no stage called the
applicant back. For
this reason, the applicant concluded that the second respondent was
avoiding him and that he had no intention
of allowing him back onto
the premises.
[17]
In addition to
the above attempts at getting permission to enter the hospital
premises, the applicant also attended at the hospital
and attempted
to enter the premises but was denied entry by the security at the
gate. His perception was that the security acted
on the instructions
of the second respondent because before denying him entry, they would
call someone and only after that would
they tell him that access was
not allowed.
[18]
On 15 July
2021, the applicant, through its attorneys of record, addressed the
letter to the second respondent, which in summary
dealt with the
following issues:
(a)
There has been
a gradual reopening of certain sections of the Hospital since the
fire incident, including Blocks 1, 2, 3 and 5.
(b)
That the
second respondent has denied the applicant access to the area of the
canteen without furnishing any reason.
(c)
That the
canteen was stocked with perishable items worth R300 000.00 in value
and that the applicant has not been permitted access
to remove these
items.
(d)
That the
applicant runs the risk of having to terminate the employment of
twenty-four staff members employed in the canteen due
to being denied
access to the canteen.
(e)
That the
applicant be allowed access to the canteen 'by no later than 16h00 on
Tuesday, 20 July 2021.'
[19]
On 26 July
2021 the applicant's attorneys addressed another letter to the second
respondent following the failure to respond to
the above letter. In
that letter, the applicant emphasised the matter's importance and
required the respondent to give it the urgency
it deserves.
The
reasons for urgency
[20]
The applicant
contends that the matter is urgent for the following reasons:
(a)
It has
perishable food inside the canteen worth R300 000.00 which will
become expired and or perish.
(b)
Suffers
ongoing financial loss.
(c)
Unable to
check whether the fridges and freezers are still working properly.
(d)
Access to the
financial documents related to the business.
(e)
The risk of
having of retrenchment of the employees and their livelihood.
[21]
As stated
earlier in opposing the application, the respondents raised the
following points:
'9.1.
It (the application) is fatally defective. Applicant should not have
brought the application by way of an
ex parte
application
with a
rule nisi
.
9.2.
The application is not urgent.
9.3.
The application does not meet the basic requirements of a
mandament
van spolie
.
9.4.
The Applicant has failed to join a necessary party, being the Gauteng
Provincial Government: Department of Infrastructure Development
and
Property Management, the landlord.
9.5.
The Applicant has sued incorrect parties in that the First Respondent
is not a legal persona and therefore not capable of being
sued and I
am merely an employee, employed as a director of logistics at the
Charlotte Maxeke Hospital . . . I do not own the Hospital.
There is
no basis in law to have cited me.'
[22]
The other
defence raised by the applicant is that the lease agreement between
the applicant and the Provincial department had come
to an end after
it was extended to 31 October 2009 and thus continued on a
month-to-month basis.
Legal
principles
[23]
It
is trite that spoliation is a remedy available to a person who has
been unlawfully deprived of his or her possession of a property.
The
interference with the right can be addressed through
mandament
van spolie
whose
objective is to prevent people from taking the law into their
hands.
[1]
In a case where the
infringement of the possessory right has already happened, the remedy
of
mandement
van spolie
restores
the
status
quo
.
It may serve as a prelude to any inquiry into the merits of
respective parties’ right to the thing in question.'
[2]
Thus in the present matter, whether the lease agreement was valid or
had expired is irrelevant. For the applicant to succeed in
an
application of this nature, he or she has to show that he or she was
in 'peaceful and undisturbed possession' when the interference
with
the possessory right occurred.
[24]
In
Tswelopele Non-Profit Organization and Others v The City of Tshwane
Municipality and Others,
[3]
the
court held:
'Under
it (Spoliation), anyone illicitly deprived of property is entitled to
be restored to possession before anything is debated
or decided
(spoliation
ante Omnia restituendus est)
. Even an
unlawful possessor – a fraud, a thief or a robber – is
entitled to
mandeament's
protection. The principle
is that illicit deprivation must be remedied before the court will
decide competing claims to the object
or property.'
[25]
In
Yeko v Qana,
[4]
the court held
that:
'The
very essence of the remedy against spoliation is that the possession
enjoyed by the party who asks for the spoliation order
must be
established. As has so often been said by our Courts the possession
which must be proved is not possession in the juridical
sense; it may
be enough if the holding by the applicant was with the intention of
securing some benefit for himself.'
[26]
In
Stocks Housing (Cape) (Pty) Ltd v The Chief Executive Director,
Department of Education and Cultural Service,
[5]
the court held that the basic inquiry is whether the person was
deprived of possession without his or her acquiescence and consent.
The court also noted that spoliation might take place in numerous
unlawful ways. In this respect, the court had the following to
say:
'Spoliation
may take place in numerous unlawful ways. It may be unlawful because
it was by force, or by the threat of force, or
by stealth, deceit or
theft. Still, in all cases spoliation is unlawful when the
dispossession is without the consent of the person
deprived of
possession, since consent to the giving up of property, if the
consent is genuinely and freely given, negates the unlawfulness
of
the dispossession.'
[27]
As
indicated earlier, the applicant approached the court on an urgent
basis. The principles governing the approach when dealing
with an
urgent application is well established in our law. It is governed by
rule 6(12) of the Rules of the High Court. The basic
principle
accepted in this regard is that matters involving spoliation are
considered inherently urgent. However, this does not
detract from the
need to satisfy the requirements of urgency. In this respect, the
court in Matsipe v SAI Group (Pty) Ltd,
[6]
held that the fact that the matter involves a spoliation should be
construed together with the other grounds of urgency to determine
whether a matter is urgent.
[28]
It is clear
from the reading of the above order that this court found that this
matter deserved to be treated as one of urgency.
In arriving at this
conclusion, the court took into account the nature of the
application, the facts and the circumstances within
which the
unlawful dispossession of the property occurred.
[29]
The applicant,
in my view, provided, in the first instance, why there was some delay
in instituting the proceedings. The background
facts set out above
indicate that he did not rush to court but sought to resolve the
matter with the first respondent. There seems
to be no doubt that any
delay in granting the relief sought by the applicant would result in
financial loss due to inability to
trade as a result of the unlawful
conduct of the first respondent, including the risk that some stock
in the canteen may perish.
The court also accepted that the applicant
instituted the proceedings at the earliest possible time based on the
facts and the
circumstances of this case.
[30]
The essence of
the defence of the respondents as to why a spoliation order should
not be granted is set out in the answering affidavit
in the following
terms:
‘
Applicant
is not being prevented from being in lawful possession of occupation
of the premises. The premises are simply not safe
for occupation and
the lease agreement between the parties is terminated.’
[31]
The issue of
termination of the lease agreement was dealt with earlier. To
emphasise the validity or otherwise of the lease agreement
is not an
issue that deserves the attention of this court at the level of
considering spoliation.
[32]
The
applicant's cause action is not based on breach or enforcement of the
lease agreement but on restoring its peaceful possession
of the
canteen, which was disturbed by the unlawful conduct of the
respondents.
[33]
The issue of
the premises not being safe for occupation is also unsustainable in
the context of the circumstances of this case.
In this respect, the
respondent's version in the answering affidavit is that it adopted a
phase-in-approach towards the reopening
of the Hospital. The
applicant's version that the respondent has not seriously disputed is
that the canteen's block has reopened.
In this respect, the
respondent does not explain why the canteen cannot open when the
other parts of the block in which it is situated
has reopened.
[34]
In my view, it
is clear from the reading of the papers before this court that the
applicant never abandoned its intention to continue
exercising its
possessory right when it vacated the premises soon after the fire
broke out. It also does not appear to be the understanding
of the
respondents. It is not in dispute that at the time of vacating the
premises due to the fire, the applicant left its stock
in the canteen
and the same remain therein.
[35]
The
defence of non-joinder of the Department of Infrastructure is also
unsustainable. The test to apply in determining non-joinder
is well
established in our law. The issue in this regard is whether the
department has a direct and substantial interest in these
proceedings. See Absa Bank Limited v Naude NO and Others.
[7]
There is no evidence that the department was involved in the
spoliation of the right of the applicant to occupy the premises where
the canteen is situated. The cause of action is not directed at the
department, and the outcome thereof is not likely to have any
impact
on it. The department may well have been interested in the lease
agreement issue, but as already stated, that issue is not
before this
court. In other words, the applicant in this matter is not claiming
the substantive right of occupation of the premises
through the lease
agreement but rather seeks to assert its entitlement to a proper and
lawful procedure before it can be deprived
of its possession.
[8]
[36]
About the
respondents, there is no doubt that they have a direct interest in
the matter. It is common cause that the second respondent
is an
employee of the first respondent and is the person whom the applicant
engaged with regarding his access to the premises following
the
reopening of the block where the canteen is situated. It is not in
dispute that he denied the applicant access to the premises,
and he
has also not contended that he had no authority to do so. In the
answering affidavit, he deals with the situation soon after
the fire
broke out when everybody was expected to vacate the premises for
health and safety reasons. He does not deal with what
happened after
the hospital embarked on the phased-in-reopening of the canteen's
section.
[37]
The
other point raised by the respondent in the heads of argument is that
the applicant is seeking specific performance through
spoliation
proceedings. This argument seems to be based on the issue of the
lease agreement. In support of this argument, the respondents
referred to the case of Eskom v Masinda.
[9]
The issue, in that case, is different to that in the present matter.
In that case, the SCA dealt with the issue of electricity
disconnection, which is categorised as an incorporeal right. Whilst
accepting that electricity supply, as an incorporeal right,
may in
certain circumstances be protected by
mandament
van spolie
it
found on the facts of that case that it could not because in the
circumstances of the case it was not incidental to the
possessory
right.
[10]
Conclusion
[38]
In my view, it
is evidently clear from the conduct of the second respondent,
particularly after the letter of the applicant dated
26 July 2021,
that he had decided not to allow the applicant to continue its use of
the canteen. It is also clear that the issue
of health and safety
that applied due to the fire were no longer applicable at the time
the applicant sought to assert his right
of access to the property.
[39]
The fact that
the applicant vacated the premises due to fire did not deprive the
applicant of its possessory right. The conduct
of the applicant in
vacating the premises due to the fire does not evidence any intention
of abandoning its undisturbed, continuous
and peaceful occupation of
the canteen. It has not been disputed that all its equipment,
including the food it sells are still
in the canteen.
[40]
As concerning
urgency, I am of the view that that is predicated on enforcing the
rule of law and the other interests of the applicant,
including the
commercial interests.
[41]
It was in
light of the above reasons, that the above order was made, in essence
directing the respondents to restore the peaceful
and undisturbed
possession of the premises where the canteen is situated to the
applicant.
E
Molahlehi
Judge
of the High Court,
Gauteng
Local Division,
Johannesburg
Representation:
For
the Applicant: Adv B Bhabha
Instructed
by: SALI Attorneys
For
the Respondent: Adv FJ Nalane
Instructed
by: Mogaswa and Associates Inc. Attorneys
Date
heard: 27 August 2021
Order
made: 14 September 2021
Reasons:
21 September 2021.
[1]
See
Ivanov v North West Gambling and Others 2012(6) SA 67 (SCA).
[2]
Ness
and Another v Greef
1985 (4) SA 641
( ) at 747B-C.
[3]
2007
(6) SA 511
(SCA).
[4]
(1973)
4 ALL SA 512 (A).
[5]
1996
(4) SA231 (C).
[6]
(34618/17)
[2017] ZAGPPHC 319 (2 June 2017).
[7]
2016(6)
SA 540 (SCA).
[8]
See
Street Pole ads Durban (Pty) Ltd and Another v Ethekwini
Municipality 2008 (5) SA 290 (SCA).
[9]
2019
(5) SA 386 (SCA).
[10]
See
also
Telkom
SA Ltd v Xsinet (Pty) Ltd
2003
(5) SA 309
(SCA).