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[2017] ZAKZPHC 9
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Jigger Properties CC v Maynard NO and Others (AR395/2015; AR396/2015) [2017] ZAKZPHC 9; 2017 (4) SA 569 (KZP) (13 March 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
REPORTABLE
CASE
NO: AR395/2015
CASE
NO: AR396/2015
In
the matter between:
JIGGER PROPERTIES
CC APPELLANT
and
SCOTT RICHARD
MAYNARD N.O. 1
ST
RESPONDENT
RICHARD ALISTAIR
MAYNARD N.O. 2
ND
RESPONDENT
PAMELA JOAN
MAYNARD N.O. 3
RD
RESPONDENT
ADD RESINS &
CHEMICAL (PTY) LTD 4
TH
RESPONDENT
Coram
: Jappie JP, Van Zÿl J et SeegobinJ
Heard
: 06 February 2017
Delivered
: 13 March 2017
ORDER
On
appeal from the KwaZulu-Natal Division of the High Court, Durban
(Norman AJ, sitting as a court of first instance):
(a)
The
appeal is upheld and the orders of the court
a
quo
are set aside and replaced with the following:
(b)
(i)
the application under case number 5209/2013 is dismissed with costs
and the rule
nisi
granted on 16 May 2013 is discharged;
(ii)
the appellant’s application and the respondents’
counter-application under 8638/2013 is dismissed with each party
to
pay its own costs.
(c)
The first to fourth respondents are ordered, jointly and severally,
to pay the appellant’s costs of appeal.
JUDGMENT
SEEGOBIN J
(Jappie JP et Van Zyl J concurring):
INTRODUCTION
[1]
This is an appeal against the judgment and orders of the
KwaZulu-Natal High Court, Durban, (Norman AJ), with its leave,
granting
a
mandament van spolie
in favour of the respondents
under case number 5209/2013 and dismissing the appellant’s
application for certain declaratory
relief under case number
8635/2013. The effect of the spoliation order is that the
appellant, Jigger Properties CC, was required
to restore access and
allow the fourth respondent’s suppliers access to certain
underground storage tanks situated in an
exclusive use area referred
to as ‘Y8’ which was allocated to unit 16 in Pineside
Park, a sectional scheme, situated
at 6 Shepstone Road, New Germany
(‘the premises’), which unit is owned by the appellant.
The declaratory relief
sought by the appellant in its application was
to the effect that no servitude or right of access to the exclusive
use area (Y8)
exists in favour of the respondents. The
appellant also sought an order prohibiting the respondents from
exercising any access
to Y8 (the exclusive use area) without its
permission. To this application the respondents filed a
counter-application in
which they sought a declarator to the effect
that they have rights of access to the exclusive use area by virtue
of an unregistered
servitude.
[2] At the appeal
hearing on 6 February 2017, the appellant was represented by Mr
Camp
and the respondent by Mr
Shepstone
. We are indebted to
both counsel for their heads of argument and helpful submissions.
RELEVANT
BACKGROUND AND COMMON CAUSE FACTS
[3]
The first, second and third respondents are the trustees for the time
being of the Mycrochem Family Trust (the Trust).
The Trust owns
units 14, 15 and 23 in the sectional scheme referred to above.
On 5 June 2001 the developers of the sectional
scheme granted
permission to the Trust to install underground tanks in the exclusive
area allocated to unit 16. These tanks
are used for the purpose
of storing solvents for the business of the Trust. The Trust
has access to the exclusive use area
in order to service and maintain
the tanks.
[4]
On 12 July 2001 the Body Corporate of the property noted the approval
of the installation of the tanks subject to the condition
that the
tanks were to be removed and the property reinstated in the event of
a sale occurring. On 31 August 2003 the Department
of
Agriculture and Environmental Affairs for KwaZulu-Natal authorized
the installation of the tanks. On 28 June 2004 the
purchaser of
unit 16 viz. Marbla CC confirmed an agreement with the Trust in terms
of which ‘minimum’ access was granted
to the Trust for
‘occasional’ maintenance of the tanks. For this
permission the Trust paid a once-off consideration
of R10 000,00
to Marbla CC.
[5]
During 2010, the fourth respondent, ADD Resin (Pty) Ltd concluded a
lease agreement with the Trust in respect of units 14, 15
and 20 and
took over the business of the Trust. The fourth respondent
stores the solvents it purchases in the underground
tanks in Y8 in
terms of its lease agreement with the Trust. These solvents are
then drawn off through pipes from the tanks
to units 14 and 15 for
repacking. The fourth respondent by virtue of its lease with
the Trust continues to use the tanks
for the purpose of storing
liquid solvents.
[6]
During September 2010, Marbla CC sold unit 16 to the appellant. In
terms of the sale agreement the appellant acknowledged “the
agreement between the seller and Mycrochem CC which owns sections in
the development in terms of which Mycrochem CC is entitled
to access
Yard Y8 for the purpose of servicing underground tanks”.
[7]
By 2012 the appellant’s stance changed. In an email dated
8 February 2012 from a member of the appellant to the
Trust it was
suggested that the Trust and/or the fourth respondent should pay the
appellant “a market related rent for the
use of and access to
the tanks of the exclusive area” and that the sum of R3 000,00
per month was considered to be reasonable.
Thereafter various
correspondence passed between the attorneys representing the Trust
and the appellant. For purposes of
this appeal I set out
hereunder only those pieces of correspondence which have some bearing
on the issues that require determination:
7.1 The letter
from the appellant’s attorney to the respondents’
attorney on 23 April 2013 was to the following effect:
“
Your
e-mail of 19 December 2012 refers. Unless your client agrees to
pay for the privilege of access to the tanks over our
client’s
exclusive use area and unless suitable arrangements are made to pay
for all repairs caused by your client in so
accessing the tanks, we
are instructed that our client will deny your client access to the
tanks. We look forward to hearing
from you by the month end and
failing which our clients rights to deny your clients access as
aforesaid with effect from 6 May
2013 are expressly reserved.
We
have also suggested to our client that this issue should be placed on
the agenda for discussion at the next Body Corporate AGM.”
7.2 On 26 April
2013 the respondents’ attorney responded as follows:
“
Your
letter of 25 April 2013 refers.
I
have been instructed by my clients that unless your client withdraws
his threat as set out in your letter, that they will approach
the
High Court for the necessary relief.
At this point, I
draw to your attention to your letter of
3
September 2010 to me and my response.
Your
client was at all times aware of the agreement entered into between
Marbla CC and Mycrochem.
”
7.3 Not having had
a reply to his letter of 26 April 2013, the respondents’
attorney wrote a further letter dated 30 April
2013 to the
appellant’s attorney as follows:
“
My
letter of the 26
th
April 2013 refers.
Unless
your client confirms by no later than noon on Thursday 2
nd
May 2013 that it will not interfere with my clients right to access
the tanks on the property, my client will approach the High
Court for
the appropriate relief.
”
7.4
On 7 May 2013 the appellant’s attorney replied as follows:
“
I refer to our recent
telephone conversation. My understanding is that your client’s
access is not capable of being
registered as a servitude over my
client’s exclusive use area. Refer to Section 27(6) of
the Section Title’s
Act and RCR44/2003.
”
[8]
Following upon the above correspondence the respondents brought an
urgent application under case number 5209/2013 for spoliatory
relief. At the initial hearing on 16 May 2013 the respondents
were granted interim relief, by consent, in terms of paragraph
1 and
2 of their Notice of Motion. This was followed by an
application by the appellant and a counter-application by the
respondents under case number 8638/2013. In the latter
application the parties respectively sought declaratory orders aimed
at resolving the issue of the Trust’s alleged servitude or
other right of access to the exclusive use area constituting Y8.
[9] While the
court
a quo
granted the respondents a spoliation order under
case number 5209/2013, it did not adjudicate upon the declaratory
orders sought
by the parties under case number 8638/2013. That
application was simply dismissed with costs.
ISSUES
ON APPEAL
[10]
The main issue in this appeal is whether the respondents’
access to the exclusive use area, Y8, amounted to a
quasi-possessio
which was deserving of protection by means of a
mandament van
spolie
.
[11] An ancillary
issue that arises is whether a threat of spoliation amounts to an act
of spoliation entitling a party to relief
by way of a
mandament
van spolie.
THE
LAW
[12]
A key characteristic of a
mandament van spolie
is that it is a
possessory remedy (
remedium possessoruim
). The essential
characteristic of a possessory remedy is that the legal process
whereby the possession of a party is protected
(
iudicium
possessorium
), is kept strictly separate from the process whereby
a party’s right to ownership or other right to the property in
dispute,
is determined (
iudicum petitoruim
). The object
of the order sought by way of a
mandament van spolie
is:
“
merely
to restore the
status
quo ante
the illegal action. It decides no rights of ownership; it
secures only that if such decision is required, it shall be given
by
a court of law, and not affected by violence. 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, a position than he
was before the
spoliation. There is consequently nothing inherent in a
mandament
van spolie
which demands that it should be conditional as being granted
pendent
lite
.
”
[1]
[13]
The reason behind the practice of granting spoliation orders is that
no man is allowed to take the law into his own hands and
to
dispossess another illicitly of possession of property. If he
does so, a court will summarily restore the
status
quo ante
,
and will do that as a preliminary to any inquiry or investigation
into the merits of the dispute. The rule is
spoliatus
ante omnia restituendus est
.
[2]
[14]
An essential requirement that must be satisfied for spoliatory relief
is that there must have been a spoliation. Put
differently,
there must have been a ‘wrongful deprivation of another’s
right of possession’.
[3]
[15]
In
De
Beer v Zimbali Estate Management Association (Pty) Ltd and
another
,
[4]
the court stated that the requirements for obtaining a
mandament
van spolie
were met when (a) a person has been deprived unlawfully of the whole
or part of his possession of movables or immovables; and also
(b) a
person has been deprived unlawfully of his
quasi-possessio
of a movable or immovable incorporeal.
[16]
In
Firstrand
Ltd t/a Rand Merchant Bank v Scholtz NO,
[5]
the legal principles that apply where
quasi-possession
is protected by a spoliation order were re-affirmed by Malan AJA as
follows:
“
The
mandement van spolie is a remedy to restore to another
ante
omnia
property dispossessed 'forcibly or wrongfully and against his
consent'. It protects the possession of movable and immovable
property
as well as some forms of incorporeal property. The mandement
van spolie is available for the restoration of
quasi-possessio
of certain rights and in such legal proceedings it is not necessary
to prove the existence of the professed right: this is so because
the
purpose of the proceedings is the restoration of the status quo
ante
and not the determination of the existence of the right. The
quasi-possessio
consists in the actual exercise of an alleged right or as formulated
in
Zulu
v Minister of Works, Kwazulu,
and
Others
in
'die daadwerklike uitoefening van handelinge wat in die uitoefening
van sodanige reg uitgeoefen mag word'.
”
[footnotes
omitted]
[17]
In paragraph 13 of the judgment Malan AJA points out 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 mandement
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 by 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 mandement.
The right held
in
quasi-possessio
must be a 'gebruiksreg' or an incident of the possession or control
of the property.
”
[18]
It is now well-established that mere personal rights are not
protected by the
mandament
and that only rights to use or occupy property or incidents of
occupation will warrant protection by a spoliation order.
[6]
RESPONDENTS’
CASE
[19]
Counsel for the respondent, Mr
Shepstone
,
with reference to the decision in
Bon
Quelle (Edms) Bpk v Munisipaliteit Van Otavi,
[7]
contended that the respondents’ rights of access to the
underground tanks amounted to a
quasi-possessio
in the form of a right of servitude which was demonstrated by the
actual use of that servitude. It was argued that the
appellant’s
threat to deny the respondents access to the tanks
amounted to a dispossession of that right and for which the
mandament
van spolie
was the appropriate relief. For the reasons that follow, I find
no merit in this argument.
FINDINGS
[20]
On the facts of this matter, it is clear that the Trust’s
rights of access to the underground tanks arose initially from
a
prior agreement which the Trust had with the developers of the
sectional scheme
firstly
for the installation of such tanks in the exclusive use area
allocated to unit 16, and
secondly
for the Trust to access this area in order to service and maintain
the tanks. When Marbla CC purchased unit 16 in 2004, it
acknowledged the agreement with the Trust which allowed the Trust
‘minimum’ access for ‘occasional’ maintenance
of the tanks. The fourth respondent’s rights of access to
the tanks are governed by a lease agreement which it holds
with the
Trust. When Marbla CC sold unit 16 to the appellant in 2010 the
appellant in turn acknowledged the agreement between
Marbla CC and
the Trust which allowed the Trust access to the exclusive use area
“for the purpose of servicing underground
tanks”.
[8]
[21]
On these facts it is clear that the respondent’s right to
access the tanks flows from a contractual arrangement which
the
parties had with each other over the years. This was the right
which the Trust and the fourth respondent were exercising
and which
the appellant threatened to stop. On the strength of the
authorities referred to above, the respondents’
claim in the
court
a quo
amounted to nothing more than a claim for specific
performance of their contractual rights. This, according to the
authorities,
is not permissible by way of a
mandament van spolie
.
In my view, all that the Trust and the fourth respondent enjoyed was
a right of access – they neither occupied the
premises nor did
they exercise any physical control over it. The respondents
access to the premises was for a specific purpose,
namely to service
and maintain their tanks from time to time. None of this could
be achieved without the co-operation of
the appellant which owns unit
16 and the exclusive area attached to it.
[22]
As pointed out in the
ATM Solutions
matter,
supra
,
“
[t]he
cases where quasi-possession has been protected by a spoliation order
have almost invariably dealt with rights to use property
(for
example, servitudes or the purported exercise of servitudes –
‘gebruiksregte’) or an incident of the possession
or
control of the property
”
.
In
the present matter a claim to a servitudinal right would only apply
in a sectional scheme such as this, in terms of either the
rules
[9]
or their registration in the Deeds Office.
[10]
None of these considerations apply herein for the simple reason that
no such rights of access to the tanks on the common
property under Y8
were conferred upon any of the respondents in terms of the rules and
neither were such rights registered in the
Deeds Office. It
seems that at some point the Trust did take steps to register a right
of access to the tanks in the Deeds
Office but failed to complete the
process, to its peril. The absence of a clearly recognized and
registered servitudinal
right in favour of the Trust, fortifies the
view that its claim to a right of access flowed from an agreement
that was concluded
between the Trust and Marbla CC. At no stage
did Marbla CC grant nor was it ever requested to grant a servitude in
favour
of the Trust over Y8.
[11]
[23]
I accordingly conclude that the respondents were not entitled to the
relief they sought in the court
a
quo
– their right of access to Y8 was for a limited purpose and
occurred as a consequence of their prior agreement with Marbla
CC –
it was not an incident of actual possession and occupation.
[12]
[24]
As for the ancillary issue as to whether a threat of spoliation
amounts to an act of spoliation entitling a party to relief
by way of
a
mandament
van spolie
,
I make the following points. There are fundamental differences
between the
mandament
van spolie
which is aimed at the recovery of lost possession, and a final
interdict to prohibit a threatened spoliation or dispossession.
In the unreported judgment of Boruchowitz J (30 May 2014) in
Outdoor
Network Limited v Passenger Rail Agency of South Africa
[13]
it was pointed out that the
mandament
van spolie
cannot be invoked to prohibit a threatened spoliation – it is
only available to a
de
facto
possessor who has been despoiled. While possessory remedies to
prevent a threatened spoliation were available in Roman Law,
namely
the
mandament
van complainte
and
mandament
van
maintenue
,
these were not imported into South African law.
[25]
In light of the above, I consider that even if the respondents
reasonably and
bona fide
believed that their right of access
to Y8 stemmed from a servitude or the purported exercise of a
servitude (‘gebruiksregte’)
or was an incident of
possession or control of the premises, none of this justified the
granting of a
mandament van spolie
on a mere threat of
termination of that right. In my view, without an actual and
wrongful deprivation of their purported
right of possession did not
justify the kind of relief they sought from the outset. It
follows that a mere threat of dispossession
can find no ground for
relief through a
mandament van spolie.
APPELLANT’S
APPLICATION AND RESPONDENTS’ COUNTER-APPLICATION
[26]
As I pointed out at the commencement of this judgment, the
appellant’s application for declaratory relief was simply
dismissed by the court
a quo
. The nature of the
declaratory relief was to the effect that no servitude or other right
of access existed in favour of the
respondents in respect of the
exclusive use area (Y8) attached to unit 16. The additional
relief was for an order prohibiting
the respondents from exercising
any access to Y8 without the permission of the appellant. In a
counter-application filed
by the respondents, they in turn sought a
declaratory order to the effect that they have rights of access to Y8
in terms of an
unregistered servitude.
[27]
On the papers as they stand there are real and material disputes
between the parties regarding the nature of the right in respect
of
which declaratory relief is sought. Neither party addressed the
issue fully either in heads of argument or in oral submissions
before
us. Nor was the issue properly raised by the appellant in its
notice and grounds of appeal.
[14]
The granting of declaratory relief by a court is a discretionary
matter the exercise of which requires a careful consideration
of all
relevant information which must be placed before it. In the
present matter I am not satisfied that the evidence goes
far enough
to make a determinative finding on the issues raised more so because
of the material disputes raised. In these
circumstances I would
be reluctant to grant any declaratory relief under case number
8638/2013 and would simply dismiss that application
as well as the
respondents’ counter-application with each party to carry its
own costs.
ORDER
[28]
In the result the order I make is the following:
(a)
The
appeal is upheld and the orders of the court
a
quo
are set aside and replaced with the following:
(b)
(i)
the application under case number 5209/2013 is dismissed with costs
and the rule
nisi
granted on 16 May 2013 is discharged;
(ii)
the appellant’s application and the respondents’
counter-application under 8638/2013 is dismissed with each party
to
pay its own costs.
(c)
The first to fourth respondents are ordered, jointly and severally,
to pay the appellant’s costs of appeal.
_________________
_________________
JAPPIE JP
I
agree
_________________
Van Zÿl J
Date of
Hearing
: 06 February 2017
Date of
Judgment
:
13 March 2017
Counsel for
Appellant
:
A Camp
Instructed
by
: Colyn Townsend
c/o
Dawsons Incorporated
Counsel for
Respondents :
SM Shepstone
Instructed
by
: Thornhill & Company
c/o Jon White
Attorneys
[1]
Man
v Marie
1932
CPD 352
at 356. See also Erasmus, Superior Court Practice,
Service EG-1 and the authorities collected in footnote 4.
[2]
Voet
41 1 16, 43 17 7. See also
Nino
Bonino v De Lange
1906 TS 120
at 122 which was approved in
Bon
Quelle (Edms) Bpk v Munisipaliteit van Otavi
1989
(1) SA 508
(A) 514 J-516E. Also Erasmus, supra, service E 9-1
and the authorities in footnote 5.
[3]
Le
Riche v PSP Properties CC & others
2005
(3) SA 189
(C) para 8.
Shelving
Man (Pty) Ltd v Dawood & others
[2015]
3 All SA 243
(KZD) paras 4 and 5;
Ivanov
v North West Gambling Board
2012
(6) SA 67
(SCA) para 19 and
Malan
& another v Green Valley Farm Portion 7 Holt Hill
434
CC & others
2007 (5) SA 114
(E) para 35.
[4]
2007
(3) SA 254
(N) at 258B-C.
[5]
2008
(2) SA 503
(SCA) para 12.
[6]
ATM
Solutions (Pty) Ltd v Olkvu Handelaars CC
2009
(4) SA 337
SCA. See also
Microsure
v Net 1 Applied Technologies SA
2010 (2) SA 59
(N); and
Telkom
SA Ltd v Xsinet (Pty) Ltd
2003 (5) SA 309 (SCA).
[7]
1989
(1) SA 508
(A) at 514 D-I.
[8]
This
contractual arrangement is expressly provided for in paragraph 6.6
of the Agreement of Purchase and Sale of unit 16 from
Marbla CC to
the appellant; Record, page 57.
[9]
Section
27
of the
Sectional Titles Act, 95 of 1986
.
[10]
Sectional
29 of the
Sectional Titles Act, 95 of 1986
.
[11]
Vol.
1, pages 148-149, para 20.1; Vol
2. Page 53
, para 19.
[12]
See
in this regard
First
Rand
,
and
Wille's
Principles of South African Law
9ed (2007) (general editor Francois du Bois) where CG van der Merwe
and Anne Pope state: “Protection for non-servitutal
rights
appears to be confined to those rights that flow from or are
incidental to possession of corporeal property . . . . Where
the
non-servitutal right of use is separate from applicant's possession
of corporeal property it is almost inevitably a contractual
right
which is not protected by the
mandament
van spolie
.”
[13]
2014
JDR 2283 (GJ) para 25.
[14]
In
the appellant’s notice of appeal at page 193 of the record,
Vol. 2 (AR396/15), the issue is raised rather obliquely in
para (i).