Dick v Dick and Others (241/2007) [2008] ZASCA 49 (31 March 2008)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2008
>>
[2008] ZASCA 49
|

|

Dick v Dick and Others (241/2007) [2008] ZASCA 49 (31 March 2008)

THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Not
Reportable
CASE
NO:
241/2007
In
the matter between:
GRAHAM
DICK
....
APPELLANT
versus
ANGELA
CHRISTINE DICK & FIVE OTHERS .... RESPONDENTS
________________________________________________________________________________________________________________________________
CORAM:
MPATI DP, MTHIYANE, VAN HEERDEN, PONNAN JJA and KGOMO AJA
Date of hearing: 06
MARCH 2008
Date of delivery: 31
MARCH 2008
Summary:
Final
interdict – Requirements for – no injury committed or reasonably
apprehended. Dispute of fact not soluble on papers.
Neutral
citation: Graham Dick v Angela Dick (241/2007)
[2008] ZASCA 49
(31
March 2008)
_____________________________________________________________________________________
JUDGMENT
KGOMO AJA
[1] This appeal emanates from the
Johannesburg High Court (Epstein AJ) who denied the appellant a
final interdict. The order
sought was couched in the following terms:
1.1 That the second respondent
(Transman (Pty) Limited) is interdicted and restrained from
interfering with the appellant’s peaceful
and undisturbed
occupation of the properties situated at:
15 Grandhaven, Mount Edgecombe.
Stand 262 Tawny Close, Pecanwood.
6 Peregrine Close, Somerset West.
The remaining relief sought by the
appellant is not before us on appeal and need not detain us. The
present appeal is with the leave
of the court below.
[2] The appellant
(Mr Dick) and the first respondent (Ms Dick) are husband and wife who
are in the process of getting divorced. There
are clear signs of
acrimony in the marriage. They were married by antenuptial contract
in 1974. Over the years they have pooled their
resources and built a
substantial estate which comprises a conglomerate of trading
companies, several fixed properties, and an assortment
of movable
assets.
[3] The interdict concerns three
properties which are dwelling houses but which were essentially used
by Mr and Ms Dick and their
two children as vacation homes and also
infrequently by some senior personnel employed by their company
Transman (Pty) Limited.
3.1 The property situated in Mount
Edgecombe is registered in the name of a company called 15 Grandhaven
(Pty) Ltd (third respondent).
3.2 The dwelling located in Pecanwood
is owned by a company named 262 Tawny Close (Pty) Ltd (fourth
respondent).
3.3 The third property is in Somerset
West, (Erinvale) and is owned by yet another company called 6
Peregrine Close (Pty) Ltd (fifth
respondent).
[4] The group structure of the
companies – the second to sixth respondents – is fairly
convoluted. It suffices for present purposes
to record that the
majority shareholding in each of these corporate entities is held by
Mr and Ms Dick. For present purposes it is
not necessary to examine
their structure in any detail. Suffice it to state that 15 Grandhaven
(Pty) Ltd, 6 Peregrine Close
(Pty) Ltd and 262 Tawny Close are
all subsidiary companies of Clan Property Holdings (Pty) Ltd (sixth
respondent). A confusing trail
of leases and sub-leases has been
concluded between the various corporate entities in respect of the
properties in question. Once
again it is not necessary that they be
detailed.
[5] The application
for an interdict was precipitated by the appellant arriving at the
Mount Edgecombe Property for a vacation on
16 June 2006
only to be met by two security guards who stayed in a
guest suite in a
separate house, detached from the main house, who handed him a letter
from Transman (Pty) Ltd’s lawyers. The letter
authorised the
security guards to look after the property and to ensure that no
furniture or household effects were removed from
the house by the
appellant, pending the outcome of the divorce. It is common cause
that appellant had removed some property from
the house on a previous
occasion, which he claimed he was entitled to do.
[6] The letter further stated that:
6.1 Appellant’s employment with
Transman (Pty) Ltd had been terminated on 27 March 2006;
6.2 Lease agreements were entered into
between Clan Property Holdings and, amongst others, 15 Grandhaven
(Pty) Ltd and 6 Peregrine
Close (Pty) Ltd as owners of the Mount
Edgecombe and Erinvale properties. In addition sub-lease agreements
were concluded between
Clan Property Holdings (Pty) Ltd and Transman
(Pty) Ltd. Consequently that made Transman (Pty) Ltd a tenant of
these holiday homes
and appellant was required to conclude a
sub-lease agreement with Transman (Pty) Ltd in respect of the
Pecanwood property;
6.3 As far as the other two properties
were concerned it was proposed that appellant would have to pay what
was termed a reasonable
tariff in the amount of R2000,00 per night
for his vacations.
6.4 Appellant was requested to give a
firm undertaking that no further articles would be removed from the
properties and that the
guards would be allowed access to the
properties to ensure compliance.
[7] Appellant’s attorneys responded
along these lines:
7.1 The appellant denied that Transman
(Pty) Ltd was a tenant of any of the holiday homes. That an agreement
existed between appellant
and Ms Dick and the companies in question
that the properties were purchased, furnished and equipped, for the
exclusive occupation
by them and their children, that such use would
continue for as long as either of them desired and that the cost of
purchasing and
maintaining the properties and their contents would be
carried by the Transman (Pty) Ltd and Clan Property Holdings group of
companies.
7.2 That the said agreement was
amended in the light of the breakdown of the marriage of the couple
to provide that appellant would
have the exclusive use of the
Pecanwood property and that whichever party desired to use either the
Grandhaven or Peregrine Close
property from time to time would give
the other reasonable notice of his/her intention so to do. That in
return Ms Dick would remain
in occupation of the former matrimonial
home, which is jointly owned by them, pending the outcome of the
divorce proceedings.
7.3 That the rights which Transman
(Pty) Ltd might claim, whether by virtue of any sub-lease or
otherwise would impact adversely on
appellant’s right to use the
properties and their contents and that Transman (Pty) Ltd had in fact
never been given occupation
of the properties.
7.4 That insofar as it was alleged
that any of the properties were used for occupation by clients of
Transman (Pty) Ltd the appellant
denied the allegation. That it had
occurred on occasion that properties were used by an employee of
Transman (Pty) Ltd but this had
happened only in exceptional
circumstances and that had nothing to do with any lease.
[8] To succeed in his quest for a
final interdict, the appellant had to establish:
(a) the existence of a clear right;
(b) that an injury had actually been
committed or was reasonably apprehended; and
(c) the absence of any other
satisfactory remedy.
(See
Setlogelo
v Setlogelo
1914
AD 221
at 227.)
Before us counsel for the respondent
devoted much time in argument endeavouring to persuade us that the
appellant had failed to prove
the existence of a clear right. On the
view that I take of the matter it is not necessary that that issue be
resolved. I shall assume
in the appellant’s favour, without
deciding, that he has satisfied the first requirement. For, it seems
to be that in any event,
it is at the second leg, to which I now
turn, that the appellant fails dismally.
[9] In his founding affidavit the
appellant asserted:
‘
I spent a
week at Mount Edgecombe. For the entire period of time the two
security guards were looming over me watching my every move.
They
advised me that they were obliged to do this as this was their
instructions from the First Respondent.
Since I returned to Johannesburg
from Mount Edgecombe I have been receiving invoices demanding payment
of rental for my use of Mount
Edgecombe, Pecanwood and the Somerset
West properties …
The conduct of the Second
Respondent has interfered with my peaceful and undisturbed possession
of the Mount Edgecombe property.’
[10] That elicited the following
response from the respondent in her answering affidavit:
‘
The applicant
arrived at Mt Edgcombe…on the evening of 15 June 2006…
The next morning at approximately
06h00 Cousins and Patrick Hellicaer (“Hellicaer”) met the
applicant and introduced themselves
to him.
Cousins advised the applicant that
he had been sent to Mt Edgecombe property on behalf of the second
respondent to protect its interests
and to attend to some work on the
property for the second respondent.
Cousins denies that he in any way
prevented the applicant from using the entertainment area. The
entertainment area is in fact situated
on the bottom floor of the
house occupied by Mr and Mrs Yates. Cousins occupied the separate
guest room as has already been dealt
with herein above ...
It is denied that Cousins in any
way denied the applicant access or that he advised the applicant that
he had no authority to enter
the house in which he was staying at 17
Grandhaven. He merely handed him the letter, the contents of which
speak for themselves ...
It is denied that Cousins and
Hellicaer loomed over the applicant. The applicant spent three nights
there, leaving on Sunday 18 June
2006.
Cousins and Hellicaer confirm that
they spent most of their time sitting on the front veranda of Mr and
Mrs Yates’ home.
Such home as indicated above is
approximately half a stand away from the property in which the
applicant was staying.
Furthermore,
there is a gazebo and thick shrubbery separating the two homes. One
can barely see the home the applicant was staying
in from Mr and Mrs
Yates home. Photographs depicting same are annexed …’
.
The respondent
furthermore filed a supporting affidavit by Cousins in which he
confirmed the correctness of the allegations relating
to him.
[11] The appellant replied thus:
‘
The use by
Cousins of the entertainment area and the guest bedroom at the bottom
of the house deprived me of the use thereof.
Cousins and Hellicaer spent time on
the veranda facing the main house. They had an unobstructed view of
the main house. I persist
with my allegations that they loomed over
me.
There is a clear view between the
houses despite the existence of shrubbery. It should also be kept in
mind that there are two veranda’s.’
[12]
When
one compares the allegations levelled by the appellant in his
founding affidavit to those in his replying affidavit, it is plain
that his complaint has been substantially watered down. Moreover, as
the matter had not been referred for the hearing of oral evidence
and
as a stark dispute of fact existed on the papers, the appellant had
to fail (
Plascon
Evans Paints Ltd v Van Riebeeck Paints (Pty)
Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634E-635C).
[13]
It remains to say something about
the two remaining properties. In so far as the Pecanwood Property is
concerned, the appellant has
changed the locks and continues by
agreement with his wife to live there pending the outcome of the
divorce. There is no evidence
to support his claim that there has
been any unlawful interference with his ‘use and enjoyment of the
property’ or there is any
threat of interference. As to the
Erinvale Property, it was conceded before us that there has not been
any interference or for that
matter even any threatened interference
with the Erinvale property. In my view relief in respect of this
property ought not to have
been sought at all, much less initially
persisted with before this court.
[14] In the result the appeal must
fail and the following order is made:
The appeal is dismissed with costs,
including the costs consequent upon the employment of two counsel
where applicable.
________________________
F D KGOMO
ACTING JUDGE OF APPEAL
CONCUR: ) MPATI DP
) MTHIYANE JA
) VAN HEERDEN JA
) PONNAN JA