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[2008] ZASCA 6
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Wightman t/a J W Construction v Headfour (Pty) Ltd and Another (66/2007) [2008] ZASCA 6; [2008] 2 All SA 512 (SCA); 2008 (3) SA 371 (SCA) (10 March 2008)
THE SUPREME COURT OF APPEAL OF SOUTH
AFRICA
REPORTABLE
Case no: 66/2007
In
the matter between
JOHN CECIL WIGHTMAN
trading as J W
CONSTRUCTION ... APPELLANT
and
HEADFOUR
(PTY) LTD ... FIRST RESPONDENT
ARCHAR
HEAD ... SECOND RESPONDENT
Coram:
MPATI DP, CAMERON, HEHER, PONNAN JJA and MHLANTLA
AJA
Heard:
27
FEBRUARY 2008
Delivered: 10 MARCH
2008
Summary: Practice –
application – dispute of fact – real, genuine or
bona
fide
– what constitutes.
Possession –
spoliation – builder making duplicate keys available to owner
for limited purpose – whether possession
ipso facto
lost
– owner using keys to place other contractors in occupation –
possession taken against consent of builder and illicitly.
Neutral
citation: This judgment may be referred to as Wightman v Headfour
(Pty) Ltd (66/2007)
[2008] ZASCA 6
(10 March 2008)
____________________________________________________________
JUDGMENT
_________________________________________________________________
HEHER JA
HEHER
JA:
[1] The
appellant is a building contractor. In March 2004 he entered into an
agreement with the first respondent to carry out construction
work on
an erf in Hout Bay owned by the first respondent. At all material
times then and thereafter the company was represented
by its sole
director and shareholder, Mr Archar Head, the second respondent.
[2] During
July 2004, before completion of the contract, the parties fell out
over payment or defective workmanship, depending on
which one you
believe. On or shortly before 12 July the respondent took possession
of the property and put in other contractors
to complete the work.
[3] The
appellant consulted an attorney who wrote two letters to the
respondents’ attorney on 13 July. In the first, payment
of
outstanding payments was claimed and the second relied on an
agreement allegedly concluded between the attorneys to the effect
that the appellant possessed and would retain a lien over the
property notwithstanding his agreement to the continuation of the
work by the contractors whom the second respondent had employed.
[4] Early
in August the first respondent issued summons against the appellant.
It claimed payment of R463 669,00 as the alleged
cost of remedying
his defective performance and some R220 000 as special damages for
loss of rental income, occupational rental
and moving and storage
costs.
[5] The
appellant thereafter became aware that the second respondent and his
family had taken occupation of the completed works.
He regarded that
as a breach of the agreement which acknowledged his lien and as a
spoliation. On 17 August 2004 he launched an
application in the Cape
High Court seeking an order for restitution
ante
omnia
and
ejectment of the respondents and their invitees, together with a
temporary interdict to prevent the respondents from reoccupying
the
premises pending final determination of a counterclaim to be
instituted against the first respondent and costs on the attorney
and
client scale. The appellant alleged that the first respondent still
owed him over R350 000,00 for work done under the contract.
[6] I
have not attempted to do more than provide a terse summary of the
case. The facts are fully set out in the judgments in the
court
a
quo
which is reported at
2007 (2) SA 128
(C).
[7] The
application was heard by Waglay J. He dismissed it with costs in
March 2005, but granted leave to appeal to the Full Bench.
In
September 2006 Thring J (Blignault J concurring) dismissed the appeal
with costs. Bozalek J dissented. He would have granted
the relief
claimed save for the interdict against occupation of the premises.
The present appeal is with the special leave of this
Court.
[8] Although
the appellant, in his founding affidavit, relied on the occupation by
the second respondent and his family in August
as the act of
spoliation, it is apparent that he did so because of a fundamental
misconception induced by the legal advice that
he received. This was
to the effect that he continued to retain possession in August by
reason of the agreement reached between
the attorneys on 13 July. In
fact it is clear, as the respondents emphasised in their answering
affidavit, that the appellant had
lost possession by 12 July and
never thereafter regained it. The founding affidavit contained
averments covering all material events
from 3 July onward. The
respondents did not seek to avoid meeting them because of alleged
irrelevance or immateriality. Despite
counsel’s submissions to
the contrary, the appellant’s misdirection should not be
allowed to deflect us from the real
issue in dispute: Did the
respondents unlawfully despoil the appellant?
[9] Much
of the argument was directed to the meaning of the agreement reached
between the attorneys on 13 July. In the view I take
of the matter it
is unnecessary to decide whether they agreed that the appellant
possessed an enforcible lien (as appellant’s
counsel submitted)
or merely that if the appellant possessed a lien at all he would not
be deemed to have waived it by agreeing
to allow the contractors to
proceed (as was contended on behalf of the respondents). There is no
dispute that the appellant had
lost (whether by voluntary abandonment
or spoliation) physical control over the property before that
agreement was concluded. No
agreement between the attorneys could of
itself revest such control. At best for the appellant it purported to
confirm a state
of possession which did not exist. The lien referred
to in their correspondence also no longer existed and could not exist
absent
possession. Nor was the effect of the agreement, even on the
appellant’s interpretation, such as to restore possession to
him. If therefore the appeal were to turn on this aspect of the case
it would go the way of the respondents.
[10] That
does not conclude the matter. The events which preceded the agreement
between the attorneys require careful consideration.
If the proven
facts establish that the appellant was unlawfully despoiled of his
possession before that agreement was reached,
then their consensus,
on whatever basis, could only have deprived the appellant of a remedy
if its effect was to restore possession
(which it did not) or because
the appellant thereby waived or abandoned his rights to be restored
to possession. It is not helpful
to describe the agreement as a
‘substitute’ for whatever rights had accrued to the
parties before its conclusion (as
the respondents’ counsel
did). Apart from the fact that it is very doubtful that such was the
attorneys’ intention,
unless the legal effect was that of a
waiver or abandonment there was no negation of these rights. But the
respondents did not
rely on a waiver nor do the undisputed facts
support such a case. In fact, the appellant has at all material times
believed, and,
apparently, been advised, that their agreement
entitled him to contend for and rely upon uninterrupted physical
possession of the
premises. In his eyes, accordingly, he intended to
give up no rights whatsoever.
[11] The
first task is accordingly to identify the facts of the alleged
spoliation on the basis of which the legal disputes are
to be
decided. If one is to take the respondents’ answering affidavit
at face value, the truth about the preceding events
lies concealed
behind insoluble disputes. On that basis the appellant’s
application was bound to fail. Bozalek J thought
that the court was
justified in subjecting the apparent disputes to closer scrutiny.
When he did so he concluded that many of the
disputes were not real,
genuine or
bona
fide
.
For the reasons which follow I respectfully agree with the learned
judge.
[12] Recognising
that the truth almost always lies beyond mere linguistic
determination the courts have said that an applicant who
seeks final
relief on motion must in the event of conflict, accept the version
set up by his opponent unless the latter’s
allegations are, in
the opinion of the court, not such as to raise a real, genuine or
bona
fide
dispute
of fact or are so far-fetched or clearly untenable that the court is
justified in rejecting them merely on the papers:
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634E-635C. See also the analysis by Davis J in
Ripoll-Dausa
v Middleton NO
[2005] ZAWCHC 6
;
2005
(3) SA 141
(C) at 151A-153C with which I respectfully agree. (I do
not overlook that a reference to evidence in circumstances discussed
in
the authorities may be appropriate.)
[13] A
real, genuine and
bona
fide
dispute of fact can exist only where the court is satisfied that the
party who purports to raise the dispute has in his affidavit
seriously and unambiguously addressed the fact said to be disputed.
There will of course be instances where a bare denial meets
the
requirement because there is no other way open to the disputing party
and nothing more can therefore be expected of him. But
even that may
not be sufficient if the fact averred lies purely within the
knowledge of the averring party and no basis is laid
for disputing
the veracity or accuracy of the averment. When the facts averred are
such that the disputing party must necessarily
possess knowledge of
them and be able to provide an answer (or countervailing evidence) if
they be not true or accurate but, instead
of doing so, rests his case
on a bare or ambiguous denial the court will generally have
difficulty in finding that the test is
satisfied. I say ‘generally’
because factual averments seldom stand apart from a broader matrix of
circumstances all
of which needs to be borne in mind when arriving at
a decision. A litigant may not necessarily recognise or understand
the nuances
of a bare or general denial as against a real attempt to
grapple with all relevant factual allegations made by the other
party.
But when he signs the answering affidavit, he commits himself
to its contents, inadequate as they may be, and will only in
exceptional
circumstances be permitted to disavow them. There is thus
a serious duty imposed upon a legal adviser who settles an answering
affidavit to ascertain and engage with facts which his client
disputes and to reflect such disputes fully and accurately in the
answering affidavit. If that does not happen it should come as no
surprise that the court takes a robust view of the matter.
[14] In
paragraph 12 of his founding affidavit the applicant deposed as
follows:
’
12.1 Throughout
the currency of the agreement First Respondent made irregular
payments to myself, thereby repeatedly breaching the
terms of the
agreement relating to payment. Matters came to a head on Wednesday 7
July 2004, during a telephone conversation with
Second Respondent
(representing First Respondent) in which I confronted him about the
erratic payments. Second Respondent repudiated
the agreement by
stating that no further payments would be made to myself.
12.2 On
Friday 9 July 2004 I had another telephone conversation with Second
Respondent (representing First Respondent), in which
we agreed that I
would continue with my work at the premises with effect from Monday
12 July 2004. When I arrived at the security
gate of the complex
where the premises are located at 7:25 on 12 July 2004, I was refused
entry by the security guard, apparently
on the orders of Second
Respondent. I phoned Second Respondent, who requested a meeting at my
house in Bergvliet at 9:00 on the
same day. When Second Respondent
failed to keep the appointment, I phoned him again and he refused to
discuss the matter with me,
stating that he was going to see his
attorney. I thereupon contacted my attorney, Mr Fotis Kyriacos of F
Kyriacos & Company
in Kenilworth, for advice.’
[15] The
second respondent dealt with these allegations as follows:
‘
9.1 As
is apparent from the particulars of claim, in consequence of
Applicant’s breaches of the agreement, on or about 3 July
2004,
I on behalf of First Respondent and as I was entitled to do, I duly
cancelled the agreement,
alternatively
on 3 July 2004 Applicant unlawfully repudiated his obligations to
First Respondent arising from the agreement by refusing to complete
same and abandoning the project site. Insofar as was necessary, I
accepted on behalf of First Respondent Applicant’s repudiation
as aforesaid and duly cancelled the agreement in consequence whereof
First Respondent was obliged to employ alternative contractors
to
remedy Applicant’s defective performance and to complete the
project in consequence whereof Applicant is indebted to First
Respondent in the capital sum of
R682
276.21
.
9.2 Save
for the aforegoing, this paragraph is denied..
[16] The
comparison between the two approaches is striking. Whereas the
appellant sets out chapter and verse the second respondent
deals in
generalisations. Each material averment should have been met and
answered appropriately not enveloped in a fog which hides
or distorts
the reality. Importantly, in so far as the second respondent claims
that the appellant abandoned the project site,
there is an ambiguity
as to whether this occurred on 3 July or subsequently. In paragraph
14.2 of the answering affidavit the second
respondent deposed ‘that
applicant voluntarily gave up his lien over the property on or about
12 July 2004’. In paragraph
15.1.1 he said ‘As a matter
of fact Applicant has not been in possession of the premises since 12
July 2004’. The particulars
of the alleged cancellation are
unjustifiably scanty, a matter of greater concern when one refers to
a letter written by his attorney,
Mr Hunter, on 13 July in which
Hunter states that, in accordance with his instructions, ‘the
said contract between our clients
herewith being formally cancelled’.
The attorney does not refer to any earlier cancellation ‘informal’
or otherwise.
[17] In
paragraph 28 of the founding affidavit the appellant laid the basis
of his alleged possession of the premises. He deposed:
’
28. I have
been in undisturbed possession of the premises since I started my
work in terms of the agreement on 3 March 2004. I state
this for the
following reasons:
28.1 Both dwellings
on the premises were unoccupied, and in fact uninhabitable, when I
started my work and remained so until occupation
was taken by Second
Respondent and other persons during the long weekend of 6 to 9 August
2004;
28.2 I am in
possession of a full set of keys to the dwellings on the premises,
which keys I received on 3 March 2004 and used in
the course of my
work on the premises in order to lock the dwellings after a day’s
work and to unlock it at the beginning
of the next;
28.3 Although I
delivered duplicates of some of the keys to Second Respondent on 9
July 2004, I retained the main set of keys in
my possession and
refused to hand it to First or Second Respondent at all times when
requested to do so;
28.4 The
duplicates were delivered purely to allow Second Respondent to
inspect the premises, as was confirmed by Mr Kyriacos in
his letters
dated 13 July 2004 and 6 August 2004(Annexures “JCW6” and
“JCW11” respectively). At no time
did I intend to give up
my possession of the premises when I did so and in fact, I would most
certainly not have handed over the
duplicates if I had any suspicion
that it would be used to gain entry to the premises for its
occupation;
28.5 When
I left the premises after I stopped work on 7 July 2004 following the
repudiation of the agreement, I posted a guard onsite
with
instructions not only to protect the site, but also to prevent any
occupation of the premises and to notify me immediately
in the event
of any attempt being made to gain such occupation. I removed the
guard on 9 July 2004, the same day that I
agreed
with Second Respondent that I would resume work on 12 July 2004;
28.6 On
12 July 2004, after my last conversation with Second Respondent, I
attended at the premises in order to affix notices on
the dwelling
confirming the existence of my builder’s lien and my intention
to exercise it. I attach hereto a copy of the
notices that I intended
to affix as Annexure
“JCW15”
,
as well as a copy of a letter by Mr Kyriacos that I used to gain
entry to the premises, as Annexure
“JCW16”
.
When I arrived at the premises, Second Respondent was there and a
verbal confrontation between us ensued. I was prevented from
affixing
the notices as I intended and after discussions between our
respective attorneys, it was agreed (as is evident from Mr
Kyriacos’
letter dated 13 July 2004 – Annexure
“JCW6”
)
that the notices would not be affixed and that my omission to do so
would not constitute a waiver of my right to exercise my builder’s
lien. Had I suspected that First Respondent did not intend to honour
the agreement, I would have insisted that the notices were
affixed
and remained in place;
28.7 I
kept my building tools on the premises at all relevant times until I
collected it on 13 July 2004, after the agreement relating
to the
building lien was reached between Mr Hunter and Mr Kyriacos.
28.8 Although
I allowed certain subcontractors access to the premises in order to
allow them to finish their work, I never intended
to give up my
control over, and resultant possession of, the premises. It is so
that I was not physically present at all times
after the agreement
was reached with Mr Hunter on 12 July 2004, but apart from the fact
that such continuous physical presence
was impractical, I had reason
to believe that the agreement would sufficiently protect my rights in
terms of my lien and that my
intention to retain possession of the
premises was sufficiently manifested to Respondents (and any third
parties) by my retention
of the main set of keys to the dwellings and
the terms of the agreement itself. I reiterate that I would have
done everything
necessary to retain my possession (including
prevention of access to the premises by subcontractors and changing
the locks to the
dwellings) if I had the slightest suspicion that
Respondents intended disregarding the terms of the agreement.’
In
paragraph 29 the appellant turned from allegations of fact to brief
submissions based on the preceding paragraph.
[18] The
second respondent addressed paragraphs 28 and 29 in paragraph 15 of
the answering affidavit. He was long in submission
but exceedingly
short on fact:
‘
15.1
Ad
paragraphs 28 and 29 thereof:
15.1 It
is apparent from these paragraphs that:
15.1.1 As a matter
of fact Applicant has not been in possession of the premises since 12
July 2004. From 12 July 2004 my family
and I are in physical control
of the premises and certain other building contractors have had
access to the premises.
15.1.2 Since 12 July
2004 Applicant, on his own version, has not been in possession of the
premises.
15.1.3 Both
Applicant and his legal representatives are under an incorrect and
legally flawed impression with regard to Applicant’s
alleged
lien which, as I have been advised and verily believe, does not
constitute a builder’s lien in the terms alleged
by Applicant
or at all.
15.2 Save
for the aforegoing, the further allegations contained in these
paragraphs are denied.’
[19] The
second respondent’s general denial leaves important matters
unanswered. The failure to deal issuably with the factual
averments
is unjustifiable on any rational basis. The condition of the
dwellings, the appellant’s means of access and exercising
control over the works are all matters which would either have been
discussed between the parties or become apparent to the second
respondent during the execution of the contract. His bare denial of
these aspects is seriously unconvincing. As to the allegations
in
paragraphs 28.3 and 28.4 of the founding affidavit, there is no
dispute that the respondents did gain access to the premises
on 12
July (if not during the weekend immediately preceding that day). The
second respondent, within whose knowledge the truth
lies, fails to
explain how and in what circumstances that took place if not by means
of duplicate keys provided by the appellant
for the limited purpose
of inspecting the premises. Reference to the correspondence between
the attorneys further emphasises the
wholly unsatisfactory nature of
the denial of the allegations. On 13 July Kyriacos wrote to Hunter
recording inter alia that the
appellant had called at the property on
the previous day for the purpose of affixing notices to the dwelling
stating that he intended
exercising his builder’s lien and
found the premises occupied by other contractors. Kyriacos informed
Hunter that the appellant
had ‘given certain of the keys to the
dwelling to [the second respondent] for inspection purposes only’.
When Hunter
replied on 16 July, although he made it clear that he did
so on the instructions of his client, he did not place any of the
factual
allegations in dispute. When Kyriacos referred again to the
handing over of the keys in a letter of 6 August, Hunter replied, in
a letter dated 16 August:
‘
The
fact that your client handed over various keys and allowed certain
subcontractors to continue working, is unfortunately of your
client’s
own doing and must be interpreted appropriately, should this be
necessary, in the appropriate forum and at the appropriate
time.’
From
the totality of the reaction from the respondent’s side to the
matter of the keys, the inescapable inference is that
the ‘dispute’
inherent in the general denial was without substance.
[20] As
to the allegations in paragraphs 28.5 and 28.6 of the founding
affidavit, the respondents set up no factual basis for denying
that
the appellant posted a guard on the premises from 7 to 9 July (for
example, that the second respondent had gone to the premises
and
found no such person), nor is there any reason offered for placing in
issue the appellant’s statement that he attended
at the
premises on 12 July with the intention of putting up notices –
something not denied in the correspondence –
and was prevented
from doing so: that was after all why he consulted his attorney. The
general denial also ostensibly negates those
averments in paragraph
28.6 relating to the agreement between the attorneys. But that is a
matter amply borne out by the correspondence
which it is
inconceivable that the second respondent genuinely intended to place
in dispute.
[21] As
to the averment in paragraph 28.7 relating to the building tools the
second respondent’s general denial is unsubstantiated
by any
fact which suggests a genuine basis for the denial.
[22] It
seems clear that the respondents adopted or were advised to adopt an
attitude to paragraphs 15 and 28 of the founding affidavit
(which is
manifest throughout their answering affidavit) of placing an obstacle
in the path of the appellant at every step of the
way irrespective of
whether there were valid reasons for doing so. Whatever the tactical
value of that approach, the effect was
to water the force of the
general denial down to a state of insipidity into which reality, bona
fides and the genuineness of the
denial all disappear. In the
circumstances there is no good reason to regard as untrue the
appellant’s averment that upon
his arrival at the premises on
the morning of 12 July he was refused entry by the security guard,
apparently on the orders of the
second respondent.
[23] The
conclusion is thus that the court
a
quo
should
have approached the application upon the foundation that the
respondents had failed to raise real, genuine and bona fide
disputes
of fact in relation to the events from 3 to 12 July and that the case
had to be decided upon the assumption that the appellant’s
account of these events was substantially true and correct.
[24] In
order to succeed in the application the appellant had to establish
that he was in peaceful and undisturbed possession of
the property
and that he was unlawfully deprived of that possession.
[25] To
summarise, the evidence which is either undisputed or not the subject
of a real, genuine or bona fide challenge is the following:
1. The
appellant held the original set of keys to the premises until at
least 13 July.
2. He
kept his tools of trade on the premises until that date.
3. He
placed a guard on the premises to prevent entry by other persons from
7 to 9 July.
4. The
appellant and the second respondent reached an understanding on 9
July which satisfied the appellant he would continue in
possession of
the premises with the agreement of the second respondent.
5. The
appellant handed a duplicate set of keys to the second respondent to
enable him to inspect the premises.
6. He
removed the guard on the strength of his consensus with the second
respondent.
7. On
his arrival on Monday 12 July he found contractors working on the
premises who had not been granted access by him.
8. He
was refused access to the complex in which the premises is situated
by a security guard who apparently acted on the instructions
of the
second respondent.
[26] The
law relating to the rights of a builder who has not completed a
building which he is employed to erect is stated in
Scholtz
v Faifer
1910
TPD 243
at 247-8. The appellant had carried the work so far by 9 July
that possession of the keys was equivalent to possession of the
building
and a temporary absence would not be taken as abandonment.
[27] Counsel
for the respondents contended that the appellant lost possession of
the premises
ipso
facto
by
delivery of the duplicate keys to the second respondent on 9 July. I
disagree. The fundamentals of spoliation are well-established.
Violence or fraud is not an essential element of dispossession
provided the act is done against the consent of the person despoiled
and illicitly:
Nino
Bonino v De Lange
1906
TS 120
at 122. By ‘illicitly’ I understand ‘in a
manner which the law will not countenance’: cf
R
v M
1949
(4) 975 (N) at 977. For this reason the mere fact of making duplicate
keys available to another (who happens to be the owner
of the
premises) does not always equate to the giving up of physical
possession. Both the giving and receiving must be considered
in
context to answer the question. To the extent that Gardiner JP may
have found otherwise in
Shaw
v Hendry
1927
CPD 358
at 359 I think he was wrong.
[28]
The
appellant retained the main set and delivered the duplicates for a
limited purpose which was not broad enough to justify the
second
respondent in taking a more extensive physical control nor did it
warrant a belief on his part that the appellant intended
to abandon
any of the control which he had hitherto exercised exclusively. The
appellant only delivered the duplicates because
he had come to an
accord with the second respondent. The second appellant ostensibly
received them on the same basis.
[29] Physical
possession of the premises was only lost when the second respondent
used the duplicate set to obtain entry and, in
doing so, manifested a
state of mind to possess the premises in despite of the terms of the
understanding. That probably did not
occur until the morning of 12
July when the second respondent gave access to his own contractors
and caused entry to be refused
to the appellant. There is no doubt
that his true intention was deceitfully withheld from the appellant
(whether at the initial
receipt of the keys or later) in order to
gain control of the premises and that he took occupation without the
appellant’s
knowledge. This conduct was not such as the law
will countenance.
[30] In
these circumstances the spoliation was complete when the appellant
arrived at the premises on 12 July. That he was refused
entry merely
confirmed the accomplished fact. Since, as I earlier pointed out,
possession was never thereafter restored to him,
but, on the
contrary, the respondents merely strengthened their unlawfully
obtained grip on the property by the occupation taken
by the second
respondent’s family, it becomes clear, in my view, that the
appellant should have succeeded in his application
for a spoliation
order at first instance. Counsel on appeal did not seek to persuade
us that the interdict relief was wrongly refused
and nothing more
need be said in that regard.
[31] The
appellant’s object, in bringing the application, was to
re-establish the builder’s lien which his possession
of the
premises secured to him before the spoliation. As the holder of a
lien the appellant’s right of possession is not
absolute; the
owner can recover possession by putting up satisfactory security.
See, for example,
Avfin
Industrial Finance (Pty) Ltd v Interjet Maintenance (Pty) Ltd
1997 (1) SA 807
(T) at 814D-J. But, by the time this judgment is
delivered, the second respondent and his family will, one assumes,
have enjoyed
occupation for more than three and a half years. Rather
than expose them to the unnecessary disruption of an eviction, the
second
respondent should be offered the opportunity to provide such
security before the eviction order takes effect.
[32] In
the result:
1. The
appeal is upheld.
2. The
order made by the court
a
quo
is
set aside and replaced by an order in the following terms:
‘1. The
appeal is upheld with costs.
2. The order of the court
a
quo
is
set aside and replaced by an order in the following terms:
“
2.1 Failing
provision of security to the satisfaction of the appellant or, in the
event of dispute, the Registrar of the Cape High
Court for the amount
of the applicant’s counterclaim in case no 6365/2004 (CPD)
within one week of the making of this order,
the respondents are
forthwith ordered to restore possession of the buildings on Erf 8871,
Hout Bay situate at 20 Eagle Avenue,
Kenrock Estate, Valley Road,
Hout Bay, Western Cape (“the premises”) to the applicant.
2.2 The
Sheriff or his deputy is authorised and directed to eject the second
respondent and any person occupying the premises through
him from the
premises, in the event of possession not being so restored.
2.3 The
respondents are ordered to pay the costs of the application jointly
and severally the one paying the other to be absolved.”
’
3. The
respondents are ordered to pay the costs of the appeal jointly and
severally, the one paying the other to be absolved.
__________________
J A HEHER
JUDGE OF APPEAL
MPATI
DP )Concur
CAMERON
JA )
PONNAN
JA )
MHLANTLA
AJA )