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[2017] ZAGPPHC 910
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Viera v Steenkamp and Another (22732/17) [2017] ZAGPPHC 910 (31 March 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case
Number: 22732/17
31/3/2017
In
the matter between:
JOA
DA SILVA
VIERA APPLICANT
and
STEPHANUS
JAN GABRIEL STEENKAMP 1st
RESPONDENT
CITY
OF
TSHWANEMUNICIPALITY 2nd
RESPONDENT
Coram:
HUGHES J
JUDGMENT
HUGHES
J
[1]
I encountered this application in the urgent court on 30 March
2017.
[2]
The
applicant seeks the following relief:
Ordering
the first respondent to cancel the request made to the second
respondent for special disconnection of the electricity at
the
applicant's workplace and to 'reinstate the arrangements between the
first respondent and the applicant with immediate effect';
Compelling
the second respondent to switch on the electricity at the applicant's
workplace with immediate effect alternatively the
second respondent
is to switch on the electricity and the first respondent is to
refrain from interfering with the applicants duties
as per the
Management Agreement entered into between the first respondent and
the applicant.
[3]
In the applicant's particulars of claim, the applicant asserts
that he has the
locus standi
by virtue of the special power of
attorney assign to him. The applicant contend that the matter is
urgent as there are seventeen
business which lease premises in the
building of the first respondent. This is the building for which the
first respondent sought
a special disconnection of the electricity.
Amongst these business is a grocery store, restaurant and a
fishmonger.
[4]
The applicant submits that he is the manager of the building
duly employed by the first respondent from 19 October 2016 in terms
of a management agreement duly concluded by the applicant and the
first respondent. In addition to the management agreement the
first
respondent signed a special power of attorney conferring the power of
agent upon the applicant and for applicant to act in
first
respondent's stead.
[5]
In the particulars of claim the applicant sets out that the first
respondent had advised him that he wished to terminate the
management
agreement of the applicant. He further sets out that he sought a
protection order from the magistrate's court as he
was being harassed
and threatened by the first respondent. He states in the papers that
he assisted in reducing the arrear electricity
bill of the first
respondent with the second respondent in respect of this specific
property that he managed. He documents that
he was advised that the
first respondent sought special disconnection of the electricity of
the building in question. On making
enquiries with the second
respondent he was advised that the reconnection of the electricity
could only come about by a court order.
Of important is the fact that
the applicant states as follow:
"5.
14
I submit that I do not have any other avenue save for this
Application and that failure to grant me [my] orders
as
prayed in my Notice
of Motion appended hereto will make me suffer irreparable harm,
as
I will not get my
payment; and my tenants will also lose their perishable goods, income
and
some
will have to close
down their businesses with the attendant job loses..."
The
applicant concludes by stating that the first respondent would not be
prejudiced and was doing what he was doing out of spite
as the
applicant had obtained the order from the magistrates court.
[6]
From the bar the applicant counsel argued that this was a
spoliation and the applicant was being despoiled of the property that
was in his possession unlawfully by the first respondent. Counsel for
the applicant further argued that the claim for spoliation
could be
gleaned from the founding affidavit together with the annexures
thereto.
[7]
Counsel for the first respondent argued, that counsel for the
applicant was, for the first time, advancing the mandament dispute
from the bar. The latter argument was not on the paper before court.
The case that the first respondent was called to answer, and
did so,
was that which was on the papers filed.
[8]
In
Tswelopele
Non-Profit Organisation v City of Tshwane Metropolitan Municipality
2007
SCA 70 (RSA), Cameron JA, as he then was, stated the following
at para [21]:
"It is true that the
mandament offered the occupiers an alluring template for the relief
they crave. The remedy originated
in the canon law. and found its way
thence into Roman Dutch law and modern South African law. Under it,
anyone illicitly deprived
of property is entitled to be restored to
possession before anything else is debated or decided
(spoliatus
ante omnia restituendus
est). Even an unlawful possessor - a
fraud, a thief or a robber - is entitled to the mandament's
protection. The principle is that
illicit deprivation must be
remedied before the courts will decide competing claims to the object
or property." [Without footnotes]
[9]
In
FirstRand Ltd tla Rand and Merchant Bank and Another
v
Scholtz NO and Others 2008(2) SA 503
SCA, Malan AJA, as he
then was, at 510B-D stated that:
''The mandament van
spolie does not have a 'catch-all function' to protect the
quasi-possessio
of all kinds of rights irrespective of their
nature. In cases such as where a purported servitude is concerned the
mandament is
obviously the appropriate remedy, but not where
contractual rights are in dispute or specific performance of
contractual obligations
is claimed: 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 characterised
to establish whether
its
quasi-possessio
is deserving of protection
bv the mandement
Kleyn 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 nameplate to a wall regardless of
whether the alleged right is real or personal. That explains why
possession of mere'
personal rights (or their exercise) is not
protected by the mandament. The right held in
quasi-possessio
must be a 'gebruiksreg' or an incident of the possession or
control of the property··.
[My
underlined]
[10]
As stated above it is essential for the court to examine the nature
of the right professed and thus the nature of the right
must be
clearly set out for determination and right must be characterised, in
order to determine if it is protected from the mandament.
In casu
it is not evident from the papers that the applicants claim is in
respect of a mandament. Nowhere in the papers does the applicant
set
out what the right is that he seeks to protect, this only emerges
from his argument from the bar.
[11]
I am mindful of the fact that this is the urgent court and the first
respondent answers the case as presented on the papers
by the
applicant. It is trite that a party must set out with particularity
the case its opponent has to answer. In this instance
this was not
done and, it is not correct as contended to by the applicant that one
can glean this from the papers, the case must
be set with
particularity in the papers. See
Trope v SA Reserve Bank and Two
Other Cases
1992 (3) SA 208
(T) at 210G-211A.
[12]
In the circumstances the applicant on the papers before me has not
made out a case for a mandament. That being the case, what
case is
then made out from the papers? The simple answer is nought, in my
view, from the papers before me it is not clear on what
basis the
applicant seeks the relief that he does.
[13]
Consequently the following order is made:
[a] The application is
dismissed with costs.
___________________
W.
Hughes
Judge
of the High Court Gauteng, Pretoria