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2020
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[2020] ZALMPPHC 84
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Masha Makopole Traditional Council and Another v Maritz and Another (3667/2018) [2020] ZALMPPHC 84 (2 September 2020)
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
(1)
REPORTABLE:
NO/
YES
(2)
OF
INTEREST TO OTHER JUDGES: NO/
YES
(3)
REVISED.
CASE
NO: 3667/2018
In
the matter between:
MASHA
MAKOPOLE
FIRST APPLICANT
TRADITIONAL
COUNCIL
KGOSHI
LENGWAI AARON MASHA
SECOND APPLICANT
And
PHILLIP
MARITZ
FIRST RESPONDENT
NULANE
INVESTMENT 106 (PTY) LTD
SECOND RESPONDENT
STRYDKRAAL
FARMING COMMUNITY
THIRD RESPONDENT
ELIAS
MAHLARE MASHA
FOURTH RESPONDENT
JUDGMENT
NAUDE
AJ:
[1]
The Applicants brought a spoliation
application against the First to Fourth Respondents in which the
Applicants applied that the
Respondents vacate, be interdicted and
restrained from interfering with and disturbing the Applicants in its
possession, control
and/or administration of the farms Strydkraal A &
B, including its center pivots, situated under Fetakgomo Greater
Tubatse
Municipality, within Ga-Masha Traditional Authority, Limpopo
Province ("the farms and pivots"). Further that the
Respondent
and anyone acting on his behalf be interdicted, restrained
and prohibited form ploughing and engaging on any agricultural
activities
on the farms and pivots.
[2]
When the application was initially
issued, Phillip Maritz was the only Respondent. The Second to Fourth
Respondents were joined
as parties to this application by an order of
court on 20 November 2018. Subsequent to the joinder of the Second to
Fourth Respondents,
the Applicants filed a supplementary affidavit.
The Applicants allege in their supplementary affidavit that the
Applicants were
at all material times in peaceful and undisturbed
possession and control of the farms and pivots and that the First and
Second
Respondents took occupation of the farms and pivots during or
about 2017. However, from 2014 to 2017 the property was leased to
an
entity called "Vanlyn". The First and Second Respondents
contend that the Second Respondent only took occupation of
the
property during 2017 after a Lease Agreement was entered into with
the Third and Fourth Respondents. The First and Second Respondents
further contend that the First Respondent only signed the Lease
Agreement as director on behalf of the Second Respondent and was
not
personally liable. The Counsel for the Applicant argued that this is
in fact a spoliation application. However, during argument
in court,
the Applicants' Counsel conceded that the Applicants have not been in
possession of the farms and pivots since at least
2014 and if any
spoliation took place, it took place already in 2014 by the Third and
Fourth Respondents. It was further conceded
that the First and Second
Respondents did not spoliate the Applicants and should the First and
Second Respondents not have been
parties to this application. Counsel
for the Applicants in fact stated that the application should have
been withdrawn against
the First Respondent. The Applicants Counsel
submitted that the relief sought is against the Third and Fourth
Respondents.
[3]
The Applicants' cause of action is based
on spoliation that took place during 2017. The ground for the
Applicant's cause of action
is set out in paragraph 12 of the
Applicants' Founding affidavit which states as follows:
"During
October 2017 the members of the community approached the members of
the applicant and informed them that they saw that
the land in
question is occupied by [an] unknown unlawful occupier and that he
has commenced to plough on the land in question.
Upon enquiry as to
who the said unlawful occupier is, the applicant discovered that it
is the respondent."
In
referring to "the respondent" the Applicant referred to the
First Respondent as the application was initially brought
against the
First Respondent only and were the Second, Third and Fourth
Respondents later joined.
[4]
It
is common cause between the parties that ownership is not in dispute,
but actual possession. It was argued that ownership is
not the issue
but the right to deal with the property was the issue. The
Applicants' counsel argued that the Third and Fourth Respondents
deprived the Applicants of possession, but the Second Respondent was
in actual possession of the farms and pivots. The Applicants'
counsel
argued that the Third and Fourth Respondents have grabbed the land
and that the dignity of the traditional council must
be restored. The
Applicants have been in constant conflict with the Third and Fourth
Respondents since 2014. After the land has
been returned to the
Applicants, the Applicants will enter into a new lease agreement with
the First and Second Respondents.
[5]
When it comes to spoliation applications, physical possession, and
not the right to
possession, is protected. The claim to relief under
the mandament arises solely from deprivation of possession otherwise
than through
legal procedure. The Applicant must allege and prove
that the Applicant was in peaceful and undisturbed possession of the
property
or other real right at the time of the dispossession. This,
the Applicant did not do.
[6]
As
stated here above, in order for the Applicants to succeed with an
application for spoliation the applicants must allege and prove
that
he or she was in peaceful and undisturbed possession of the property
or right. In the
LAW OF SOUTH AFRICA
(LAWSA) Vol 27 par 94,
it is stated
that the spoliation order or
mandament
van spolie
is available where:
"(a)
a person has been deprived unlawfully of the whole or part of his or
her possession of movables
or immovable;
(b)
a Joint possessor has been
deprived unlawfully of his or her co possession by his or her partner
taking over exclusive control of
the thing held in joint possession;
(c)
a person has been deprived
unlawfully of his or her quasi possession of
a
servitutal right
(d)
a person has been deprived
unlawfully of his or her quasi possession of other incorporeal
rights.
In case (c) and (d) the courts
have warned that the application of the spoliation principles to
incorporeal rights require closer
investigation and more subtle
treatment and that one must distinguish carefully between rights
incidental to the quasi possession
of the right and
a
mere right to
claim specific performance of a contractual or statutory obligation.
Illicit deprivation of
possession in any of the ways mentioned above is termed spoliation.
"
[7]
Mhlantla
JA in IVANOV v NORTH WEST GAMBLING AND OTHERS 2012 (6) SA 67 (SCA)
held
:
"Spoliation is the
wrongful deprivation of another's right of possession. The aim of
spoliation is to prevent self-help. It
seeks to prevent people from
taking the Jaw into their own hands. An applicant upon proof of two
requirements is entitled to a
mandament van spolie restoring the
status quo ante. The first is proof that the applicant was in
possession of the spoliated thing.
The cause for possession is
irrelevant
-
that is why
a
thief is
protected. The second is the wrongful deprivation of possession.
The
fact that possession is wrongful or illegal is irrelevant, as that
would go to the merits of the dispute.
"
[8]
In
Street
Pole ads Durban (Pty) Ltd and Another v Ethekwini Municipality
[2008] ZAGPHC 33
;
2008
(5) SA 290
(SCA) at para 15
where
Cameron JA
stated:
"That is because good
title is irrelevant: the claim to spoliatory relief arises solely
from an unprocedural deprivation of
possession. There is a
qualification, however, if the applicant goes further and claims a
substantive right to possession, whether
based on title of ownership
or on contract. In that case, 'the respondent may answer such
additional claim of right and may demonstrate,
if he can, that
applicant does not have the right to possession which it claims'.
This is because such an applicant 'in effect
forces an issues
relevant to the further investigation of the relief he claims. Once
he does this, the respondent's defence in
regard thereto has to be
considered."
[9]
The Applicants in this matter did not
allege or prove that he was in peaceful and undisturbed possession of
the property at the
time of dispossession, being October 2017, but
according to the Applicant has not been in possession since 2014 as
was conceded
by the Applicant's counsel during argument in court. The
Applicant's counsel further conceded that it was in fact not the
First
and Second Respondents who dispossessed but the Third and
Fourth Respondents who dispossessed during 2014 already. This
application
was not brought based on the facts of dispossession that
occurred in 2014, but the alleged dispossession in 2017 by the First
and
Second Respondents. There was no case made out of spoliation
against the Third and Fourth Respondents. The relief claimed in the
Notice of Motion in fact has a direct bearing on the rights of the
First and Second Respondents and not the Third and Fourth
Respondents.
[10] A
dispossessed person must act within a reasonable time to have
possession restored, otherwise the
application for a mandament will
be refused.
(Le
Riche v PSP Properties CC (2005]
4 All SA 551
(C),
2005 (3) SA 189
(C)).
This
application was only issued during June 2018, some four years after
the alleged dispossession by the Third and Fourth Respondents
and in
this court's view does not constitute a reasonable time to have
possession restored.
[11]
Having regard to the fact that the
Counsel for the Applicant conceded that this application should not
have been brought against
the First Respondent and that it was in
fact not the First and Second Respondents who dispossessed in 2017,
this court can only
then turn to whether a case has been made out for
the relief claimed against the Third and Fourth Respondents. Having
regard to
what was stated here above, this Court is not satisfied
that a proper case has been made out against the Second and Third
Respondents
either and in the result the application stands to be
dismissed.
[12]
I therefore make the following order:-
1.
The application is dismissed.
2.
The Applicants to pay the costs of the
First to Fourth Respondents, jointly and severally, the one to pay,
the other to be absolved.
M.
NAUDE
ACTING
JUDGE OF
THE
HIGH COURT
APPEARANCES:
HEARD
ON:
2 SEPTEMBER 2020
JUDGMENT
DELIVERED ON: 2 SEPTEMBER 2020
For
the Applicants:
Mr. MH Letsela
Instructed
by:
M Letsela Attorneys
For
the Respondent:
Mr. P De Beer
Instructed
by:
De Beer Attorneys c/o Le Roux Attorneys