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[2019] ZAGPPHC 313
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Lau v Real Tine Investments 165 CC (50134/2019) [2019] ZAGPPHC 313 (23 July 2019)
IN THE HIGH COURT OF SOUTH
AFRICA
(GAUTENG DIVISION, PRETORIA)
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED
Case No. 50134/2019
23/7/2019
In the matter between:
YUEN
FAN
LAU
APPLICANT
And
REAL
TIME INVESTMENTS 165
CC
RESPONDENT
JUDGMENT
MILLAR,
AJ
1.
It
is common cause that the applicant is a commercial tenant of shop
premises situated in a building owned by the respondent. There
is a
written lease. The applicant leased the premises to operate an
internet cafe. On 3 June 2019, the electricity supply to the
premises
was disconnected by the respondent as a result of a dispute regarding
the manner in which the respondent was billing the
applicant for
this. The applicant attended the premises that day and realizing that
without electricity she would be unable to
open for trade with the
public locked the premises and left.
2.
Sometime
thereafter the respondent, without any court order authorizing it to
do so, changed the locks to the premises and in so
doing deprived the
applicant of access to and possession of the premises. The applicant
discovered this on 20 June 2019. Following
this discovery attempts
were made to regain access and possession and to resolve a dispute
between the parties relating to the
applicant's electricity account,
without resorting to court action. In consequence of these failed
attempts, the applicant has
now brought an application by way of
urgency for a
mandament van spolie.
3.
The
relief sought by the applicant is in the main aimed at the
restoration of access and possession. The applicant also seeks an
order, in the alternative, that the electricity supply also be
restored.
4.
The
respondent did not file any affidavit in the matter and elected
instead, to give notice of its intention to raise various point
of
law.
[1]
The respondent's challenge to the application was firstly technical,
in respect of urgency and non-compliance with the practice
directives
of this court and secondly on the basis that the applicant had failed
to make out a case for the relief sought.
5.
In
order to establish the right to claim a mandament van spolie, the
applicant needs to demonstrate that firstly she was in peaceful
and
undisturbed possession and secondly that she was unlawfully deprived
of that possession.
[2]
6.
It
was held in
Stocks Housing (Cape)
(Pty) Ltd v Executive Director, Department of Education and Culture
Services, and Others
[3]
that:
"The element
of
unlawfulness of
the dispossession which has to be shown in order to claim
a
spoliation order
relates to the manner in which the dispossession took place, not to
the alleged title or right of the spoliator
to claim possession. The
cardinal enquiry is whether the person in possession was deprived
thereof without his acquiescence and
consent. Spoliation may take
place in numerous unlawful
ways.
It may be
unlawful because it was by force, or by threat of force, or by
stealth, deceit or theft, but in all cases spoliation is
unlawful
when the dispossession was without consent of the person deprived of
possession, since consent to the giving up of possession
of property,
if the consent is genuinely and freely given, negates the
unlawfulness of the dispossession.
"
7.
It
is not disputed that the applicant was in possession of the premises
or that she was dispossessed by the respondent. It is furthermore
not
in issue that the applicant did not consent to being dispossessed or
that the respondent did not obtain a court order authorizing
the
dispossession.
8.
The
respondent argued that the order sought by the applicant was not one
for the granting of a mandament van spolie but rather for
the
enforcement of her rights in terms of the lease agreement. This
argument is misplaced. The applicant was in possession of the
premises at the time that the respondent dispossessed her and so the
order sought is for the restoration of possession, not for
the
enforcement of any of the rights which she has or may have in terms
of the lease.
[4]
9.
In
Naidoo v Moodley
[5]
a full court of this division held that: "
the
use
of
electricity
was an incident of occupation which the respondent had'
and
"by
cutting off the electricity appellant had substantially interfered
with the respondent's occupation and had performed an
act of
spoliation."
10.
The
respondent in the present matter thus
committed two separate acts of spoliation - the first when it
disconnected the electricity supply and the second when it changed
the locks to the premises. The first act of spoliation had the effect
of denying the applicant the use of the premises - a limitation
of
her rights as a possessor, but it was the second act which
dispossessed her entirely.
11.
The
respondent argued that the application was not urgent given the
passage of one and a half months from when the electricity supply
was
disconnected at the beginning of June until the application papers
were issued on 15 July 2019. This overlooks the fact that
the
applicant only became aware of the dispossession
in
toto
on 20 June 2019 and thereafter
attempted to resolve the matter without resort to court. I am
satisfied that the matter is urgent.
12.
The
respondent argued that given the amounts involved, the applicant
should in any event not have brought this application in this
court
but should have brought it in the Magistrates Court. The decision to
bring proceedings in a particular court is one which
is made by the
litigant having regard to all the circumstances of the matter. Each
case is determined on its own facts.
13.
The
respondent was given an opportunity to resolve the matter and
declined to do so. This court has inherent jurisdiction to deal
with
matters such as the present one, subject of course to costs which is
a discretionary matter. I find that the applicant was
entitled to
bring this application in this court and that she is entitled to an
order for costs. I am not satisfied that a punitive
order for costs
should be granted.
14.
Having
considered the matter in totality I am satisfied that the applicant
is entitled to the order sought and is furthermore entitled
to her
costs.
15.
In
the circumstances I make the following order:
15.1
The
applicant's possession of the Internet Cafe at the Constantia Park
Ridge Shopping Centre located at 546 Douglas Scholtz Street;
Constantia Park is to be restored.
15.2
The
respondent and/or its directors or employees are ordered to forthwith
remove all chains or locks preventing access to the Internet
Cafe by
the applicant.
15.3
The
respondent is ordered to immediately restore the electricity supply
to the Internet Cafe.
15.4
The
respondent is ordered to pay the costs of this application.
A
MILLAR
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
HEARD ON:
23 JULY 2019
JUDGMENT
DELIVERED ON:
23 JULY 2019
COUNSEL
FOR THE APPLICANT:
ADV. H WORTHINGTON
INSTRUCTED
BY:
COETZEE ATIORNEYS
REFERENCE:
MR B CILLIERS
COUNSEL
FOR THE RESPONDENT:
ADV. J LE ROUX
INSTRUCTED
BY:
JACQUES CLASSEN ATIORNEYS
REFERENCE:
MRJ CLASSEN
[1]
In terms of Rule 6(5)(d)(iii) of the Uniform Rules of Court
[2]
Yekiso v Qana
1973 (4) SA 735
(A) and Knox v Second Lifestyle
Properties (Ply) LTD [2012] ZAGPPHC 2232 (11 October 2012)
[3]
1996
(4) SA
231
(C) at 240B-D
[4]
Kotze v Pretorius
1971 (4) SA 231
(NC)
[5]
1982 (4) SA 82
(T) at 83A, see also Froman v Herbmore Timber and
Hardware (Pty) Ltd
1984 (3) SA 609
(W)