Summary of Judgment

Introduction

This was an appeal to the High Court (Eastern Cape Local Division, Mthatha) from an order of the magistrates’ court, arising out of an urgent spoliation application (mandament van spolie) and related relief. The appellant sought restoration of possession of her home after she had been evicted at the instance of the respondent.

The parties were Peleka Sityata (appellant) and the Eastern Cape Development Corporation (respondent), the latter being described in the judgment as an organ of state. The dispute concerned the appellant’s occupation of residential premises let by the respondent, and the lawfulness of the respondent’s conduct in procuring her eviction.

The procedural history was material. The respondent had obtained an eviction order on 8 May 2015, but only caused the eviction to be carried out on 19 January 2018. Following the eviction, the appellant launched an urgent spoliation application in the magistrates’ court at Butterworth. That application was dismissed with costs, and the magistrate gave no reasons for the decision. The appellant appealed against that dismissal.

The general subject-matter concerned the interaction between (a) a prior eviction order, (b) subsequent events said to have regularised the appellant’s occupation through a new lease arrangement, (c) the requirements for the mandament van spolie, and (d) the defence of impossibility of restitution where the property has been transferred into the occupation of a third party.

Material Facts

It was common cause that the appellant and the respondent concluded a lease agreement in October 2002. It was also common cause that the respondent instituted proceedings on 11 November 2014 seeking cancellation of that lease and payment of R52 740.02 in arrear rental. Thereafter, the parties agreed on a payment plan in relation to the arrears, the appellant remained in occupation, and the respondent continued to accept rental payments from the appellant. The High Court treated this conduct as indicating that a new lease on the same terms replaced the cancelled lease.

The appellant alleged that she complied with her undertaking to pay the arrears. The respondent disputed full compliance, alleging that the appellant defaulted in October 2017 and remained indebted in a substantial amount. While the respondent disputed full performance, it did not dispute that the appellant had paid a significant portion of the arrears.

A pivotal undisputed fact was the existence and content of a letter from the respondent’s regional manager dated 15 August 2017, addressed to the appellant. The letter informed her that the rental would be increased and that her tenancy would henceforth be on a month-to-month basis, terminable by the respondent on one month’s notice. The court treated the language of this letter as plain and unambiguous.

On 15 November 2017, the appellant was served with an eviction order granted on 8 May 2015, requiring her to vacate within 30 days failing which she would be evicted. The court described this eviction order as arising from a parallel process to the cancellation/arrears proceedings. After service of the order, the appellant went to the respondent’s offices and entered into what she described as a “debit order arrangement” for rental payments. She also paid December 2017 rental in advance because the debit order would only operate from January 2018.

On 19 January 2018, the appellant was informed that the sheriff was removing her goods and evicting her. She consulted the respondent’s attorneys, who advised that they were acting on their client’s instructions. On 22 January 2018, she consulted her own attorneys and brought the spoliation application soon thereafter.

The appellant’s case was that, at least from 15 August 2017, her occupation was governed by a new month-to-month lease at an increased rental (R2 500 per month), and that she had never been given notice terminating that month-to-month arrangement. On this version, she contended that the earlier cancellation and eviction order had been “overtaken by events”.

The respondent denied the appellant’s reliance on the August 2017 letter in general terms, contending that acceptance of rental did not create an implied lease and that the eviction order had merely been held in abeyance pending performance by the appellant. The court found that this denial did not accord with the letter’s unambiguous wording and was therefore not a creditworthy denial of the new lease arrangement.

A further material fact concerned the respondent’s conduct after the eviction. The respondent alleged that, on the day after the appellant’s eviction, it let the premises to a third party, rendering restoration impossible. The respondent attached the third-party lease to its papers. The lease reflected an occupation date of 19 January 2018, a commencement date of 1 February 2018, and an expiry date of 31 January 2019, with provision for renewal. The lease contained provisions governing duration, possible continuation on a month-to-month basis after expiry, termination on notice once on a month-to-month footing, and cancellation on specified grounds (including non-payment and other material breach).

Legal Issues

The central legal questions were, first, whether the appellant had met the requirements for the mandament van spolie, namely whether she was in peaceful and undisturbed possession and whether she was unlawfully dispossessed without her consent. This entailed determining whether, at the time of eviction, her occupation was lawful in light of the August 2017 month-to-month arrangement and the absence of termination notice.

Secondly, the court had to determine whether the respondent could defeat spoliation relief by relying on the defence of impossibility of restitution on the basis that the premises had been leased to and occupied by a third party after the eviction.

Thirdly, the court had to determine the appropriate costs order, given (a) the ultimate failure of the spoliation remedy on the restitution point, and (b) the court’s strong criticism of the respondent’s conduct as an organ of state.

The dispute required the court to decide a combination of law (the elements of spoliation and the scope of impossibility as a defence), application of law to fact (the legal effect of the August 2017 letter and subsequent conduct), and a value-laden discretionary assessment in relation to costs in light of the respondent’s conduct.

Court’s Reasoning

The High Court approached the factual dispute about whether a new lease existed by focusing on the plain wording of the respondent’s letter of 15 August 2017. The court held that the respondent’s answering version, which suggested mere “holdover rental” and denied an implied lease, was inconsistent with the letter’s unambiguous terms. On that basis, the court treated the denial as not creditworthy and accepted that a new month-to-month lease came into being on the stated terms.

From this, the court reasoned that it was not in dispute that the respondent had never given the appellant notice terminating the month-to-month lease. The court therefore concluded that the appellant was not an unlawful occupier at the time she was evicted. In consequence, the appellant could not lawfully be evicted on the footing that she was an unlawful occupier, and the 8 May 2015 eviction order had been overtaken by events and could not be deployed two years later once the appellant’s occupation had been regularised.

Turning to spoliation, the court reiterated that two allegations must be established: (a) possession and (b) unlawful dispossession against consent. On the court’s reasoning, both elements were satisfied. The appellant had been in possession of her home until removed by the sheriff acting on the respondent’s instructions, and the eviction was unlawful because she was not an unlawful occupier and the order relied upon did not relate to her current lawful occupation. The court linked this unlawfulness to the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE), explaining that eviction in terms of PIE depends on unlawful occupation and a relevant order.

The respondent’s defence was that restitution was impossible because it had leased the property to a third party the day after the eviction. The court accepted the general principle that impossibility of restitution can constitute a defence to spoliation where the spoliator cannot restore possession because the property has been lost, destroyed, irreparably damaged, or possession has been transferred to a third party.

The court then analysed the authorities dealing specifically with the third-party situation. It referred to the requirement, drawn from the cited case law, that to rely on impossibility, a spoliator must show that restoration cannot be achieved and that necessary arrangements cannot be made. It also referred to authority indicating that a court may grant spoliation even where the spoliator is no longer in possession, unless it is shown—on the spoliator’s onus—that it will clearly be impossible to comply with a restoration order.

On the facts, the court distinguished this case from those where the spoliator had failed to set out the terms of the third-party arrangement. Here, the respondent attached the third-party lease, and the court considered its provisions. The court concluded that it was not possible for the respondent to restore possession to the appellant because doing so would require the respondent to remove the third party from occupation, yet cancellation of the third-party lease would be unlawful absent the specified grounds contained in the lease (for example, breach). The court accepted that the respondent had acted with “unseemly haste” and may have intended to defeat spoliation, but held that the mandament van spolie could not be “stretched” to overcome the practical and legal impossibility of restitution.

The court expressly acknowledged the disjunction between strict legal outcomes and perceived fairness. By reference to the authority it cited, it observed that the application of law in this instance did not equate to doing justice, but held that the remedy could not be extended beyond its established limits. On that basis, the appeal on the merits of spoliation could not succeed.

On costs, however, the court gave weight to the respondent’s status as an organ of state with constitutional obligations. It criticised the respondent for treating the appellant’s rights with “disdain”, for surreptitiously obtaining an eviction order, holding it over for more than two years after settling the dispute and creating an impression of security of tenure, and then executing it despite the existence of the new lease that rendered the order irrelevant. The respondent’s counsel conceded that the respondent’s conduct was difficult to justify and that the respondent’s silence about the third-party lease until the answering affidavit should have costs implications.

Exercising a costs discretion, the court amended the magistrate’s order to limit the respondent’s entitlement to costs in the court below, awarding the appellant costs up to a specified date, and further ordered that each party bear its own costs of appeal despite the respondent’s substantial success.

Outcome and Relief

The appeal succeeded only to a limited extent on the issue of costs. The dismissal of the spoliation application was effectively upheld because restitution was found to be impossible due to the third-party lease.

The High Court set aside the magistrate’s costs order and replaced it with an order that the application was dismissed with costs, save that the respondent was directed to pay the applicant’s costs up to and including 8 February 2018.

In relation to the appeal, the court ordered that each party pay their own costs of the appeal.

Cases Cited

Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51; 1984 (3) SA 623 (A) at 634I-635C.

National Director of Public Prosecutions v Zuma [2009] ZASCA 1; 2009 (2) SA 277 (SCA) para 26.

Transnet Limited v Tebeka and Others [2012] ZASCA 197 paras 21-23.

Scoop Industries (Pty) Ltd v Langlaagte Estate and GM Company Ltd (In Vol. Liq.) 1948 (1) SA 91 (W) at 98-99.

Yeko v Qana 1973 (4) SA 735 (A) at 739E-F.

Painter v Strauss 1951 (3) SA 307 (O) at 318D.

Malan v Dippenaar 1969 (2) SA 59 (O) at 65G-66A and 66A-C.

In re Dube 1979 (3) SA 820 (N) at 821F-G.

Madibeng Local Municipality v Public Investment Corporation Ltd [2018] ZASCA 93 para 30.

Legislation Cited

Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998.

Constitution of the Republic of South Africa, 1996, section 26(1) and section 26(3).

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that the respondent’s letter of 15 August 2017 created a new month-to-month lease on the terms of the existing lease save for adjusted rental, and that the respondent had not given notice terminating that lease. The appellant was therefore not an unlawful occupier, and the earlier eviction order had been overtaken by events such that reliance on it to evict her was unlawful.

The court further held that the appellant had established the requirements for a mandament van spolie in respect of possession and unlawful dispossession. However, the respondent successfully raised the defence of impossibility of restitution because, following the eviction, the premises were leased to and occupied by a third party under a lease whose cancellation would be unlawful absent specified grounds. In those circumstances, restoration could not be ordered and the spoliation application could not succeed.

Despite dismissing the spoliation relief, the court held that the respondent’s conduct as an organ of state warranted costs consequences, and it amended the costs order in the court below and directed that each party bear its own costs on appeal.

LEGAL PRINCIPLES

The judgment applied the principle that a new lease may arise on the same terms as an earlier lease where the parties’ conduct and communications demonstrate that a fresh agreement governs continued occupation, and that a clear written communication may be decisive in determining whether such a lease exists.

The judgment reaffirmed the requirements for the mandament van spolie, namely that an applicant must prove peaceful and undisturbed possession and unlawful dispossession without consent. The remedy is directed at restoring possession without first determining the merits of underlying rights, but it remains constrained by the practical requirement that restoration must be capable of being effected.

The judgment applied the principle that impossibility of restitution can constitute a defence to spoliation, including where the spoliator has transferred possession to a third party. A restoration order may be made even if the spoliator is no longer in possession, unless the spoliator discharges the onus of showing that compliance would clearly be impossible. Where the third party holds under a lease that cannot lawfully be terminated in the circumstances, restitution may be found to be impossible.

Finally, the judgment applied a costs approach recognising that an organ of state bears constitutional obligations, and that improper conduct in litigation and in the events giving rise to litigation may justify adverse or modified costs consequences, including orders reflecting judicial displeasure even where the organ of state substantially succeeds on the merits.