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[2019] ZAECMHC 62
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God Never Fails Revival Church v Mgandela and Another (2188/2019) [2019] ZAECMHC 62 (22 October 2019)
IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION:
MTHATHA
Case
No.: 2188/2019
Date
heard
:
17 October
2019
Date
delivered :
22 October
2019
In
the matter between:
GOD
NEVER FAILS REVIVAL CHURCH
Applicant
and
SIMPHIWE
MGANDELA
First Respondent
RESTORATION
WORSHIP CENTRE
Second Respondent
JUDGMENT
BENEKE,
A.J.:
[1]
The Applicant initially sought relief based
upon two causes of action: (i) the
rei
vindicatio
; and (ii) the
mandament
van spolie
. The Applicant abandoned the
rei vindicatio
.
With the abandonment of the
rei
vindicatio
, the Respondent’s
special plea of non-joinder fell away. This was conceded in argument
by the Respondent’s attorney.
[2]
Accordingly, all that remains for
determination is whether or not the Applicant is entitled to relief
under the
mandament van spolie
.
[3]
In respect of the
mandament
van spolie
, the Respondent raised the
preliminary point that there exists a dispute of fact on the papers.
The Applicant elected not
to refer the matter to oral evidence,
relying, instead, on the facts as set out in the Respondent’s
version. This it
is entitled to do in terms of the decision of
Plascon-Evans Paints Ltd v Van Riebeeck
Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A),
particularly the portion of the judgment at 634E–G.
[4]
The facts underlying this application are
therefore as follows:
a.
The First Respondent joined the Applicant’s
church. He was thereafter tasked with leading the Mount Frere
branch of
the Applicant. During 2012, the Applicant’s
Mount Frere branch worshipped at Jolobe Junior Secondary School.
The Applicant was then advised that the school was no longer
available and other accommodation had to be found.
b.
The Respondent, thereupon, offered the
Applicant land for the Mount Frere branch to use (“the Site”).
In terms
of the agreement between the Applicant and the First
Respondent, the First Respondent would be entitled to take back the
Site in
the future when he decides to commence business.
c.
The Applicant used the Site until 5 May
2019. On that day, the First Respondent informed those present
in the church that
day that he had as of that day established a new
ministry, the Second Respondent, from the Site. Here it must be
pointed
out that the Respondents aver that the First Respondent never
“
required people to leave
”.
The Respondents admit that the First Respondent advised the
Applicant’s congregants that he was, as of then,
running the
Second Respondent from the Site.
d.
Since that declaration, the Second
Respondent, under the guidance and leadership of the First Respondent
solely uses the Site to
the exclusion of the Applicant. This is
confirmed in the letter of the Respondents’ attorneys, dated 5
June 2019, where
it is stated that “
unless
your clients enter the premises to worship under our client’s
ministry, Restoration Worship centre, they will not be
allowed to use
the premises
”.
e.
On 17 May 2019, some twelve days after the
announcement by the First Respondent, the Applicant wrote a letter of
demand to him,
seeking return of the Site. The Respondents’
attorneys replied on 24 May 2019 disputing that the Applicant was
entitled
to the return of the Site or the items situated thereon.
On 3 June 2019 another letter was addressed by the Applicant’s
attorneys to the Respondents’ attorneys. The Respondents’
attorneys replied to that letter on 5 June 2019.
It is clear
from the last letter that all attempts to settle the matter
extracurially had failed.
[5]
The issues to be considered in this matter
are as follows:
a.
Did the Applicant act within a reasonable
time to restore possession?
b.
Was the Applicant in possession?
c.
Was the Applicant wrongfully deprived of
possession and against his wish?
[6]
Did the Applicant act within a reasonable
time to restore possession?
a.
The
court has a discretion to refuse an application where, on account of
the delay in bringing it, no relief of any practical value
can be
granted at the time of the hearing of the application.
[1]
In exercising this discretion, the bar after one year imposed at
common law on the
mandament
consequential upon
complainte
is a guide to modern practice. If an applicant delays for more
than a year before bringing his application for a
mandament
van spolie
,
there will have to be special circumstances present to allow the
applicant to proceed with his application. Conversely,
if an
application for a
mandament
is brought within one year of the spoliation, special circumstances
will have to be present before relief can be refused merely
on the
ground of excessive delay.
[2]
In some cases it may be necessary to determine whether delay was
inordinate so as to constitute acquiescence.
[3]
b.
The delay of the Applicant is clearly less
than a year. The dispossession occurred on 5 May 2019.
The Application was
launched on 25 June 2019. This is within
two months of the dispossession.
c.
The Respondents’ attorney, during
argument, suggested that a reasonable time for the launch of the
Application would have
been three weeks from the date of the
dispossession. There was no reference to any authority for that
proposition.
The attempts at extracurial settlement apparently
failed on receipt of the Respondents’ attorneys’ letter
of 5 June
2019. The Application was launched on 25 June 2019.
This is within the three weeks of the failure of the settlement
attempts. There is no suggestion that the attempts at
extracurial settlement were unreasonable. Accordingly, on the
Respondents’ attorney’s own argument, the delay was not
unreasonable.
d.
I, accordingly, find that the Applicant has
acted within a reasonable time to protect its possession.
[7]
Was the Applicant in possession?
a.
The
possession enjoyed by the party who asks for the spoliation order
must be established.
[4]
In
spoliation proceedings the court is not concerned with the lawfulness
of the applicant’s possession. In other words,
the applicant
must show not that he was entitled to be in possession,
[5]
but
that he was in
de
facto
possession at the time of being despoiled.
[6]
b.
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,
[7]
accompanied by the physical element of
corpus
or
detentio
.
[8]
The physical element ‘implies physical control rather than
physical prehension’.
[9]
It
is, therefore, not necessary that the possession be
continuous.
[10]
It
has often been held that in the case of immovable property the
continuous presence of the applicant or his servants
on the premises
is not required, if the nature of the operations which he conducts on
the premises do not require his continuous
presence.
[11]
c.
The
possession need not have been exclusive possession. A spoliation
claim will lie at the suit of a person who holds jointly with
others.
[12]
If one of
the joint possessors of a thing takes exclusive possession of it
against the other’s will, the latter can
avail himself of the
mandament
van spolie
against the former.
[13]
d.
Among
those who can avail themselves of the remedy are, therefore, not only
true possessors such as a
bona
fide
possessor,
[14]
but also
holders such as a lessee.
[15]
e.
As a
defence, the respondent may plead that the applicant did not possess
the property in dispute at the time of the alleged spoliation.
This entails a denial that the applicant had the necessary physical
control of the property, or that he held the property with
the
intention of securing some benefit to himself.
[16]
f.
The nature of the Applicant’s right
in the Site appears to be the subject of a dispute between the
parties.
i.
The Applicant avers that:
1.
Since 2012, the Applicant was in peaceful
and undisturbed possession of the Site and the movable property
therein, with the Applicant
conducting all of its affairs, and the
Applicant’s congregants worshipping, from the Site [Founding
Affidavit, paras 12 and
18];
2.
Sign boards, paraphernalia and emblems of
the Applicant had been placed on the Site [Founding Affidavit, par
20];
ii.
In answer, the Respondents deny the
Applicant’s peaceful and undisturbed possession and, in support
of the denial, aver:
1.
The First Respondent offered the Site to
the Applicant for worship purposes [Answering Affidavit, par 10];
2.
The use of the Applicant of the Site was in
terms of the verbal agreement between the Applicant and First
Respondent [Answering
Affidavit, paras 18 and 24 read with par 10];
g.
Given the admission that the Applicant was
entitled to use the Site for worship, the remainder of the denial by
the Respondents
is rather bald.
h.
I am of the view that, given the nature of the Applicant and
its business, the continuous presence of the Applicant or its
servants
and congregants on the premises is not required. It is
clear that the holding by the Applicant of the Site was with the
intention
of securing some benefit for itself, accompanied by
physical control of the Site.
i.
I, accordingly, find that the Applicant was
in possession of the Site on 5 May 2019.
[8]
Was the Applicant wrongfully deprived of
possession and against his wish?
a.
The
second requisite for the grant of a spoliation order is proof by the
applicant that he has been deprived of possession.
[17]
Spoliation takes place if the applicant is deprived by the actions of
the respondent of control over the property in question.
[18]
b.
Any
wrongful deprivation suffices.
[19]
Wrongful deprivation in this context means deprivation against the
will of the person and without resort to the legal process.
[20]
c.
As a
defence, the respondent may deny that the act alleged was one of
spoliation, or claim that it was legally justified.
[21]
Thus, the respondent may raise the defence that the applicant
had consented to the removal of the property,
[22]
or
that his actions were lawful by virtue of an order of court,
[23]
or
under a statutory provision.
[24]
d.
A
term in a contract which authorizes a party thereto, in given
circumstances, to take possession, without recourse to the courts,
of
property in the possession of the other party, is void.
[25]
In
Nino
Bonino v De Lange
1906
TS 120
at 123, Innes CJ stated:
“
[T]he Court
cannot recognise such a provision. It is an agreement which purports
to allow one of the two contracting parties to
take the law into his
own hands, to do that which the law says only a court shall do, that
is, to dispossess one person and to
put another person in possession
of the property.
”
e.
There is some dispute about whether or not
some dispossession occurred. It is common cause that on 5 May
2019, the First Respondent
informed those present in the church that
he had as of that day established a new ministry, the Second
Respondent, from the Site.
Despite protestations in the papers
and argument that this did not mean that the Applicant had to leave
the Site, the sole use
of the First Respondent, to the exclusion of
the Applicant, is confirmed in the letter of the Respondents’
attorneys, dated
5 June 2019, where it is stated that “
unless
your clients enter the premises to worship under our client’s
ministry, Restoration Worship centre, they will not be
allowed to use
the premises
”.
f.
I, accordingly, find that the Respondents
have deprived the Applicant of control of the Site.
g.
The Respondents then go on to argue that
the deprivation is lawful, in that it is in terms of the verbal
contract between the First
Respondent and the Applicant.
h.
In their Heads of Argument, and in argument
in court, the Respondents persisted with the allegation that
“…
upon
deciding to commence business the first respondent alerted the
applicant’s congregants to take the site back. In
so
doing and acting in accordance with the agreement, the applicant has
not stated in clear terms as to how such a conduct and
invoking a
term or provision of an agreement could amount to ‘unlawful
deprivation’. The first respondent merely
exercised a
provision available to him in terms of the agreement.
”
i.
As
set out above and in the
Nino
Bonino
decision,
[26]
term
in a contract which authorizes a party thereto, in given
circumstances, to take possession, without recourse to the courts,
of
property in the possession of the other party, is void
.
j.
In argument I asked the attorney for the
Respondents what the usual recourse would be in the event that the
Applicant failed to
vacate the Site upon notice, which notice had
been given in terms of the verbal agreement. He readily
conceded that the appropriate
recourse was to launch an action based
on breach of contract.
k.
Given both the invalidity of any term
allowing the Respondents simply to retake possession of the Site
without recourse to a court,
and the failure to first obtain a court
order evicting the Applicant, the dispossession must be unlawful.
l.
I, accordingly, find that the Applicant was
wrongfully deprived of possession against its wish.
[9]
One last issue raised by the Respondents is
that the Applicant is seeking to enforce specific performance of a
contract. The
Respondents contend that the
mandament
van spolie
does not protect contractual
rights and that it cannot be used to enforce specific performance of
a contract.
a.
The
Respondents are correct when they state that
the
mandament
van spolie
does not protect contractual rights and that it cannot be used to
enforce specific performance of a contract.
[27]
b.
However,
this is not what the Applicant seeks. It seeks restoration of
possession, irrespective of the foundation of that
possession.
This is in line with the function of the
mandament
van spolie
which is, in the first place, a possessory remedy.
[28]
The object of the order is merely to restore the
status
quo ante
the illegal action. It decides no rights of ownership; it secures
only that if such decision be required, it shall be given by
a court
of law, and not affected unlawfully. If, before the spoliation,
either party needed a legal decision to establish his rights,
he
requires it just as much after, as before, the order. He is in no
better, and not worse, position than he was before the
spoliation.
[29]
c.
A
court hearing a spoliation application does not concern itself with
the rights of the parties (whatever they may have been) before
the
spoliation took place; it merely inquires whether or not there has
been a spoliation, and if there has been, it restores the
status
quo ante
.
[30]
In
spoliation proceedings the court will, therefore, neither enter into
the lawfulness of the applicant’s possession,
[31]
nor
into the question of ownership.
[32]
d.
I, therefore, find that the Applicant is
not seeking to enforce specific performance of the verbal contract
between the Applicant
and the First Respondent.
[10]
In light of what I set out above, I find
for the Applicant and the following order shall issue:
1.
The Respondents’ dispossession from
the Applicant of the unsurveyed site situated along the N2 road
between Mount Frere and
Mount Ayliff behind the KwaBhaca Art Centre
in Mount Frere (“the Site”) together with all the
property stored therein,
which spoliation occurred on 5 May 2019, is
declared unlawful;
2.
The Respondents are directed forthwith to
return to the Applicant possession of the Site, together with all the
property stored
therein as at 5 May 2019.
3.
The Respondents shall pay the costs of this
application jointly and severally, the one paying, the other to be
absolved.
________________________________
M
BENEKE
JUDGE
OF THE HIGH COURT (ACTING)
Appearances:
For the Applicant
: Mr AM Bodlani
On
the instructions of
: VV Msindo & Associates
For
the Defendant
: Mr SB Bavu
:
Of SB Bavu Inc. Attorneys
: c/o M. Hlazo
Attorneys
[1]
Barnard
v Carl Greaves Brokers (Pty) Ltd
[2007] ZAWCHC 2
;
2008
(3) SA 663
(C) at 687A.
[2]
Jivan
v National Housing Commission
1977
(3) SA 890
(W) at 893.
[3]
Le
Riche v PSP Properties CC
2005
(3) SA 189
(C) at 198F, 204B–C and 205B.
[4]
Yeko
v Qana
1973
(4) SA 735
(A) at 739.
[5]
Ngewu
v Union Co-operative Bark and Sugar Co Ltd
1982
(4) SA 390
(N) at 394.
[6]
Malan
v Green Valley Farm Portion 7 Holt Hill 434 CC
2007
(5) SA 114
(E) at 124B.
[7]
Yeko
v Qana
1973
(4) SA 735
(A) at 739D–E.
[8]
Reck
v Mills
1990
(1) SA 751
(A) at 759D.
[9]
Mbuku
v Mdinwa
1982
(1) SA 219
(TkS) at 221.
[10]
Bennett
Pringle (Pty) Ltd v Adelaide Municipality
1977
(1) SA 230
(E) at 233.
[11]
See, for example,
Nienaber
v Stuckey
1946
AD 1049.
[12]
Nienaber
v Stuckey
1946
AD 1049
at 1056.
[13]
Du
Randt v Du Randt
1995
(1) SA 401
(O) at 404E–F.
[14]
Setlogelo
v Setlogelo
1914
AD 221
at 225 and 227.
[15]
Nienaber
v Stuckey
1946
AD 1049.
[16]
Yeko v
Qana
1973
(4) SA 735
(A) at 739D–G.
[17]
Moleta
v Fourie
1975
(3) SA 999
(O) at 1001.
[18]
Administrator,
Cape v Ntshwaqela
1990
(1) SA 705
(A) at 719–20.
[19]
Wightman
t/a JW Construction v Headfour (Pty) Ltd
2008
(3) SA 371 (SCA).
[20]
Wightman
t/a JW Construction v Headfour (Pty) Ltd
[2008] ZASCA 6
;
2008
(3) SA 371
(SCA) at 381A–B.
[21]
Oglodzinski
v Oglodzinski
1976
(4) SA 273
(D) at 274H.
[22]
Nongcingane
v Mbini and Garcia
1923 EDL 412.
[23]
Ntai v
Vereeniging Town Council
1953
(4) SA 579
(A) 589H–590A.
[24]
Potgieter
v Du Plessis
1978
(1) SA 751
(NC) at 754H.
[25]
Erasmus
v Dorsyd Farms (Pty) Ltd
1982
(2) SA 107
(T) at 110A–E.
[26]
Nino
Bonino v De Lange
1906
TS 120
at 123.
[27]
FirstRand
Ltd t/a Rand Merchant Bank v Scholtz NO
2008
(2) SA 503
(SCA) at 510A–B.
[28]
Jigger
Properties CC v Maynard NO
2017
(4) SA 569
(KZP) at 574E–H.
[29]
Ngqukumba
v Minister of Safety and Security
2014
(5) SA 112
(CC) at 117D–118B.
[30]
Ngqukumba
v Minister of Safety and Security
2014
(5) SA 112
(CC) at 117D.
[31]
Schubart
Park Residents’ Association v City of Tshwane Metropolitan
Municipality
2013
(1) SA 323
(CC) at 331A.
[32]
Mankowitz
v Loewenthal
1982
(3) SA 758
(A) at 763.