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[2018] ZAGPJHC 712
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Niehaus v High Meadow Grove Body Corporate (40667/2018) [2018] ZAGPJHC 712; 2020 (5) SA 197 (GJ) (13 November 2018)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
CASE
NO: 40667/2018
In
the matter between
:
Claudia
Niehaus Applicant
and
High
Meadow Grove Body
Corporate Respondent
J U
D G M E N T
Van
der Linde, J
:
[1]
The applicant is the owner of an apartment at number 29 High Meadow
Grove, Estelle Road, Paulshof, Johannesburg. The respondent
is the
body corporate of that property. In terms of the rules of the body
corporate the applicant has to pay levies in respect
of general
expenditure; electricity; CSOS; and sewage. She fell into
arrears with her levies and although for the last twelve
months she
says she has not missed a monthly payment, she has been unable to
settle the arrear amount.
[2]
The body corporate decided to reduce her supply of electricity and it
implemented that decision. As a result of the reduced
electricity supply the applicant, who has two minor children with
her, is unable to use the stove and/or the oven to cook and prepare
food, to boil water, to use the microwave, to use her geyser, to bath
or shower unless she uses cold water, to bath her children,
and her
children are unable to do their homework or study for their upcoming
exams.
[3]
The applicant therefore brought an urgent application, after the
electricity was reduced on the 23
rd
October 2018, by
notice of motion dated the 1
st
November 2018, for an order
directing the respondent to restore the electricity supply to her
property at number 28 High Meadow
Grove. She asks for costs on the
scale as between attorney and client.
[4]
The body corporate resists the application on the basis that first,
it is not urgent and second, no act of spoliation has taken
place.
As to the former, in my view the matter is urgent. The argument in
the latter regard is that the body corporate is
entitled by virtue of
section 10 of the Sectional Titles Schemes Management Act 8 of 2011,
and the rules of the Sectional Titles
Scheme, to reduce the
electricity supply. The respondent points out that in terms of
section 4(h) of the Act it is entitled
to enter into an agreement
with any occupier or owner of a section for the provision of
amenities or services by the body corporate
to such section or to
such owner.
[5] In
terms of
section 38
of the
Sectional Titles Act 94 of 1986
, the
predecessor to the Act, the body corporate duly entered into an
agreement with the local authority for the supply of electricity
and
electrical current to the building concerned. The respondent submits
that it is an on-seller of electrical current to the occupiers
of
units in the Scheme, and such resale is specifically permitted in
terms of the Greater Johannesburg Metropolitan Electricity
Bylaws.
[6]
The respondent submits that it is “
an express, alternatively
tacit, alternatively implied term
” of the agreement
(presumably an agreement between the applicant and the body
corporate) that the applicant pays for the
electrical supply which
has been metered, “…
failing which she is in breach
of the terms of this agreement and in terms of the Rules as referred
to above, and in terms of which
the respondent has reserved to itself
the right to reduce the electrical supply to the applicant’s
section
”.
[7]
The defence therefore is that the body corporate relies on “
an
express, alternatively tacit, alternatively implied term
”.
Before turning to deal with the authorities on this issue, it is
necessary to remark that an affidavit by a deponent who
asserts that
a specific term of an agreement is “
express, alternatively
tacit, alternatively implied
”, helps naught.
The deponent is a witness who is expected to give evidence of the
agreement and its terms; of
course, it is permissible to make legal
submissions and indeed necessary to do so.
[8]
But here the evidence consists only of the legal submission and there
is no evidential material of the term of the agreement
upon which the
body corporate relies, and from which the inferences of either a
tacit or an implied term are drawn. Where that
leaves one is with a
case in which the applicant asserts being a possessor of electricity
supply, and being deprived of that supply.
But at the end of
the day, as appears below, that does not matter to the outcome of
this application.
[9] In
any number of cases it has been held that to deprive a person of
electricity supply, is an example of the deprivation of
quasi-possession, which is remediable by the
mandament van
spolie
. A full bench decision in this Division in
Queensgate Body Corporate v Claesen
(A3076/98)
[1998] ZAGPHC 1
(26 November 1999) is one such case. There Blieden, J with whom
Serobe, AJ agreed, dismissed with costs an appeal from a
Magistrates’
Court which granted a spoliation order against a body corporate.
[10]
There, too, as a result of the owner’s refusal to pay monthly
levies, the body corporate cut off the electricity supply
to her two
units. The body corporate claimed that it was entitled to do
this because of the house rules which were promulgated
in terms of
Act 95 of 1986. The magistrate, relying on
Nino Bonino v De
Lange
1906 TS 120
, upheld the argument of the owner that she was
despoiled of her possession.
[11]
Blieden, J said:
“
The clause giving the appellant the right to cut off
electricity of any unit owner who is in arrears with his or her
levies is clearly
contrary to the common law. It constitutes nothing
but a power to interfere with such person’s right to use the
existing
electricity supply. The instant case is an a fortiori
example of spoliation. Here unlike the Nino Bonino case, no
court
would have had the power to deprive any holder of his or her
electricity supply in the circumstances the appellant has done.
It is a clear act of spoliation and there was no consent valid in law
to such an act. In the circumstances the magistrate
was correct
in making the order which he did.
”
[12]
In
Naidoo v Moodley
,
1982 (4) SA 82
(T), a full court granted
a spoliation order where a lessee had failed to vacate the property
on an agreed date and the lessor
then cut off electricity supply to
the lessee’s apartment. That court held that the use of
electricity was an incident of
occupation and that by cutting off the
electricity, the lessor had substantially interfered with the
lessee’s occupation
and had performed an act of spoliation.
[13]
In
Fisher v Body Corporate Misty Bay (
2012 (4) SA 215
(GNP))
[2011] ZAGPPHC 234, 56 (12 April 2011) Legodi, J directed the body
corporate to restore to Mr Fisher possession of and access
to
premises, on an urgent application based on the
mandament van
spolie
. That case was not concerned with electricity supply
but the body corporate had interfered with Mr Fisher’s access
by disabling his vehicular access disc. The body corporate
argued that in terms of the rules of conduct of the rules of the
body
corporate, the body corporate was entitled to suspend the access
discs of those owners who failed to make payment of their
levies.
[14]
Legodi, J responded to that defence in these terms (at [19]):
“
Even if it was, in my view, the respondent would not have
been entitled to spoliation without due process of the law. In
other
words, it could not have taken the law into its own hands as it
is the case in the present case.
”
[15]
Apart from the
Fisher
-judgment, the two other judgments
referred to above are binding on me and whether I agree with the
conclusion reached, is accordingly
neither here nor there. There is
no doubt an argument along the following lines: spoliation
relief seeks to protect the real
right of possession. It does
not matter whether the possession was obtained through prior private
treaty or some other legal
form such as an inheritance; the possessor
has a real right enforceable against the world at large to protect
his or her possession.
[16]
That real right is enforceable also against the possessor’s
contracting party, such as in a relationship of lessor and
lessee,
with which the possessor stands in a relationship defined by personal
rights and not real rights. The lease agreement
may provide
that the lessor is entitled to refuse access to the property whether
movable or immovable, should the lessee not pay
the monthly rental.
But despite the lessor having that personal right against the lessee,
that right is not enforceable without
access to a court, because
possession is a real right, enforceable against the world at large,
and the
mandament van spolie
protects that real right.
[17]
An extension to this principle became available in cases where the
possessor enjoyed possession not of a movable or immovable,
but of
incorporeal right, such as a personal right to the supply of
electricity, or the possession of electricity supply; and likewise
the possession of water supply. The leading cases that have
permitted that extension are fully explored by my colleague Adams,
J
in
Zungu v Nilgra Flats CC
(2017/44199) [2017] ZAGBJHC 417 (23
November 2017).
[18]
My colleague there held that spoliation relief did not avail an
applicant whose electricity supply was discontinued for failing
to
pay rental due in terms of the lease with the landlord. His
Lordship stressed there that a spoliation order was not available
if
it was being used to enforce a merely personal right, such as a
contractual right. His Lordship held that since the right
of
the tenant to electricity was purely contractual and had not been
subsumed into any statutory or constitutional right enforceable
against the lessor, he had a mere personal right and therefore
spoliation relief was not available to him.
[19]
But there is an exception to the general principle articulated by my
colleague. It applies in the case where the supply of
electricity is
an incident of the possession of immovable property. Then the
discontinuance of electricity is a partial deprivation
of possession
of the immovable property itself.
[20]
Accordingly, where the incorporeal right, such as a right to the
supply of electricity, is – as a matter of fact –
an
incident of the possession of immovable property, then the
mandament
van spolie
will protect interference with such possession, as if
it were (partial) interference with possession of the immovable
property
itself. See
Impala Water Users Association v Lourens NO
and Others,
[2204]
2 All SA 476
(SCA).
[21]
In an unreported judgment of
Haribhai v Bushwillows Body
Corporation
, Case Number 4666/2010, my colleague Nicholls, J was
called upon to reconsider an order granted by Coppin, J in which his
Lordship
had interdicted the body corporate from disconnecting
electricity supply to the occupants. The occupants conceded
that they
had not paid their levies for water and electricity for two
years and that a significant amount was owing.
[22]
Her Ladyship, having reconsidered the matter, dismissed the urgent
application that Coppin, J had granted on 17 November 2010.
She
did it on the basis that in that matter all that the occupants had
been deprived of was electricity supply to non-essential
luxuries.
Her Ladyship argued that that being so, the occupants were not being
spoliated of their basic right to electricity.
[23]
She referred also to the judgment of Malan, AJA in
Firstrand
Limited t/a FNB and Another v Schultz and Others
2008 (2) SA 503
(SCA) in which his Lordship was concerned with the right to water.
In that case his Lordship held that the right to water
was a
contractual right, and it was therefore distinguishable from
statutory water rights and could not be protected by spoliation
relief.
[24] He said (emphasis supplied):
“
[13]
The mandement van spolie does not have a ‘catch-all function’
to protect the quasi possessio of all kinds of rights
irrespective of
their nature.
10
In cases such as where a purported servitude is concerned the
mandement is obviously the appropriate remedy,
11
but not where contractual rights are in dispute
12
or specific performance of contractual obligations is claimed
:
13
its purpose is the protection of quasi possessio of certain rights.
It follows that the nature of the professed right, even if
it need
not be proved, must be determined or the right characterized to
establish whether its quasi possessio is deserving of protection
by
the mandement.
14
Kleyn
15
seeks to limit the rights concerned to ‘gebruiksregte’
such as rights of way, a right of access through a gate or the
right
to affix a name plate to a wall
16
regardless of whether the alleged right is real or personal.
17
That explains why possession of ‘mere’ personal rights
(or their exercise) is not protected by the mandement.
18
The right held in quasi possessio must be a ‘gebruiksreg’
or an incident of the possession or control of the property.”
[25]
In the present matter, the applicant’s possession clearly
included possession of the incorporeal right of use of electricity.
She could not live in that apartment without access to electricity,
given the needs of the two minor children that were her charges.
[26]
It is necessary finally to say something about the argument that not
all of the electricity supply was cut but only a portion
of it.
That argument seems to me to be without merit; in
Burger v Van
Rooyen
1961 (1) SA 159
(O) a full court held that the spoliation
relief avails even where the applicant has not been entirely deprived
of possession of
the whole of his property.
[27]
In these circumstances, the applicant is in my view entitled to the
relief that she seeks, but not to a special costs order.
I therefore
grant an order in terms of prayers 2 and 3 of the notice of motion
dated 1 November 2018, the costs being on the scale
as between party
and party.
WHG van
der Linde
Judge,
High Court
Johannesburg
On behalf of the
applicant: Adv K Mitchell
Instructed by:
Muller Voigt Attorneys
Applicant’s
Attorneys
1
st
Floor, Block 6
Pendoring Office
Park
299 Pendoring Road
Blackheath
Randburg
Tel: 061 520
4335
Ref: A
Venter/LW/AV003223
For the respondent:
Adv M D Saladino
Instructed by: Karen
Bleijs Attorneys
Respondent’s
Attorneys
Cnr Swartkoppies
Road and Overbury Street
Brackenhurst
Alberton
Tel: (011) 867
5306
Date argued: Friday
9 November 2018
Date judgment:
Tuesday 13 November 2018