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[2016] ZAFSHC 5
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Tyjaderlin Properties CC v Malan and Another (1487/2015) [2016] ZAFSHC 5 (22 January 2016)
IN THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION: BLOEMFONTEIN
Case
No.: 1487/2015
In
the matter between:-
TYJADERLIN
PROPERTIES CC
Applicant
and
STEPHANUS
PHILIPPUS MALAN
First Respondent
RUS
‘N BIETJIE RESORT (PTY) LTD
Second Respondent
CORAM:
DAFFUE,
J
JUDGMENT BY:
DAFFUE,
J
HEARD ON:
12
NOVEMBER 2015
DELIVERED ON:
22
JANUARY 2016
I
INTRODUCTION
[1]
This is the extended return date of a rule
nisi
issued
ex parte
and on an urgent basis by Kruger J on 2 April 2015. A dispute
pertaining to the right of access to the Vaal Dam has to be
adjudicated.
II
THE PARTIES
[2]
Tyjaderlin Propertgies CC is the applicant in these proceedings, a
close corporation and owner of two properties, to wit erven
259 and
262 Deneysville (also known as 15 and 17 Waterkant Street
respectively). Applicant is represented by Cornelius and
Partners, Heilbron while the Bloemfontein correspondents are Matsepes
Inc. Adv M C Louw acted throughout on behalf of the
applicant.
[3] First respondent is Stephanus Philippus Malan, a
businessman residing at 20 Waterkant Street, Deneysville. He is
a director
of Rus ‘n Bietjie Resort (Pty) Ltd, the second
respondent. Neuhoff Attorneys of Bloemfontein represent both
respondents
and Adv C Snyman argued the matter on behalf of the
respondents before me.
III
THE RELIEF
CLAIMED
[4]
Applicants seek confirmation of a rule
nisi
issued on 2 April 2015 which reads as follows:
“
1.
Non-compliance with the forms, processes and service provided for by
the Uniform Rules of Court is condoned
and dispensed of.
2. A rule
nisi
is hereby issued
and First and Second Respondents are called upon to appear before the
above court on 7 May 2015 at 9H30 to show
cause, if any, why the
following orders should not be made:
2.1 First and Second Respondents are ordered to
immediately restore Applicant’s undisturbed access to the
Vaal
Dam through a motor gate situated on the border of Erf 1871,
Deneysville, at the area thereof commonly known as “Pierlaan”,
where there is a servitude of right of way registered under Notarial
Deed of Servitude no. 309s/62 and also depicted in annexures
“F9”
and “F10” to the founding affidavit;
2.2 First and Second Respondents are ordered
immediately to open the motor gate depicted in annexure ”F9”
to the founding affidavit and to refrain in any way whatsoever from
restricting Applicant’s access to the right of way described
in
prayer 2.1 above;
2.3 First and Second Respondents shall jointly and
severally pay the costs of this application;
3. The relief contained in prayers 2.1
and 2.2 shall operate as an interim interdict with immediate
effect,
pending the finalization of this application.
4.
The Sheriff is authorised to serve a faxed copy of this order on the
Respondents.”
IV
APPLICATION
PAPERS TO BE CONSIDERED
[5]
According to the index presented to me the application papers
consisted of 303 pages. Whoever prepared the index and
paginated the papers deemed it fit, incorrectly so, to file the heads
of argument as part of the paginated papers. Also, applications
for postponement and condonation for the late filing of the replying
affidavit were placed before me as well notwithstanding the
fact that
these applications have been considered by Mocumie J who dismissed
the condonation application. Consequently the
only evidential
material to be considered is to be found in the founding and
answering affidavits which consist of just over a
100 pages.
V
THE FACTUAL
MATRIX
[6]
As mentioned, applicant is the owner of two immovable properties, to
wit erf 259 and erf 261 Deneysville (also known as 15 and
17
Waterkant Street respectively) which properties were registered in
its name on 31 March 2014.
[7]
First respondent, herein later referred to as Malan, is the
registered owner of 20 Waterkant Street, Deneysville. He is
also a director of Rus ‘n Bietjie Resort (Pty) Ltd, a company
that conducts a resort and caravan park on the property known
as a
portion of erf 1871, Deneysville (also referred to as “Pierlaan”).
This property is presently owned by Willow
Properties (Pty) Ltd which
entity is not a party to these proceedings. Although Malan
purchased the property, he was not
yet the registered owner thereof
when the dispute arose.
[8]
Applicant’s properties are separated from the Vaal Dam by erf
1871 Deneysville and in particular the portion thereof known
as
Pierlaan.
[9]
In order to obtain an order
ex
parte,
applicant
inter alia
relied on the version of one Mrs Lisa Kruijer, the previous owner of
the properties now owned by applicant, and also alleged that
it and
its members and the general public were entitled to access insofar as
a servitude of right of way in terms of Notarial Deed
of Servitude no
309s/62 had been registered over erf 1871, Deneysville as the
servient property through a motor gate to the Vaal
Dam.
Applicant emphasised that it relied on the mandament van spolie in
order for its undisturbed access to the Vaal Dam
through the motor
gate situated on the border of erf 1871, Deneysville to be restored,
and therefore the reliance on a right of
way is unfortunate.
Furthermore, applicant relied on the fact that its deponent as well
as its three other members had access
over erf 1871 along the alleged
servitude of right of way which access was undisturbed until 20
February 2015 when Malan locked
the motor gate and parked an
excavator (back actor) in front thereof.
[10]
In acting as he did, as alleged, Malan prevented applicant, its
deponent and other members to have access to a slipway on the
Vaal
Dam through the aforesaid motor gate for purposes of launching boats
as they have done or a regular basis.
[11]
The motor gate with the excavator parked in front of it and the Vaal
Dam in the background are clearly depicted on annexure
“F9”
to the founding affidavit.
[12]
Prior to the launching of the urgent
ex
parte
application
applicant tried to resolve the dispute by entering into e-mail
correspondence with Malan. These e-mails are attached
to the
founding affidavit. The first e-mail is dated 3 March 2015.
In his email of 7 March 2015 Malan made it clear
in response to an
e-mail of applicant’s attorneys that the particular portion of
Pierlaan belonged to him, that he bought
the property known as erf
1871, Deneysville from Willow Properties (Pty) Ltd although it was
still not registered in his name and
that he had never given any
consent to applicant or any other company to have access to his
property. Furthermore, applicant
and any of its representatives
did not have access to the relevant property and trespassing charges
would be laid against them
if found on the property. In an
e-mail of 9 March 2015 Malan stated that applicant’s deponent
and his family had access
to his property by means of a season ticket
for which they paid which was not renewed, but that no access was
ever given to applicant.
Again Malan refers to applicant, being
a close corporation.
VI
NO SERVITUTE
OF RIGHT OF WAY
[13]
Applicant’s version that a servitude of right of way had been
registered over erf 1871, Deneysville in favour of the
general public
is false. Notarial Deed of Servitude no 309s/62 is quite
clearly a servitude of water storage as testified
to by Malan in the
answering affidavit as is evident from the relevant document attached
as annexure “PM1”.
[14]
It is respondents’ case that applicant willingly misled the
court in order to obtain the interim relief and that applicant
brought the application with full knowledge of the contents of
Notarial Deed of Servitude no 309s/62 which is not a servitude of
a
right of way, but a servitude of water storage. Therefore the
rule
nisi
should
be discharged, the application dismissed and a punitive costs order
on the basis as between attorney and client be granted.
VII
MANDAMENT VAN
SPOLIE
[15]
There is no doubt that applicant, its deponent and its attorney
presented incorrect facts to the court. However applicant
in
essence relied upon the mandament van spolie in so far as it alleged
that it (referring to its deponent and its other members),
and before
them the previous owner and his wife, had undisturbed access to the
Vaal Dam through the motor gate situated on the
border of erf 1871,
Deneysville. Reliance on a servitude of right of way was
totally unnecessary if applicant was in a position
to make out a
proper case to meet the requirements of the mandament van spolie.
[16]
In order to succeed
with the mandament van spolie an applicant must allege and prove the
following two requirements:
16.1 that he was in peaceful and undistubed
possession of the object;
16.2 that he was deprived of possession
unlawfully.
See:
Yeko v Qana
1973 (4) SA 735
(AD) at 739 E and C G van der Merwe,
Sakereg
,
2nd ed, p 129 and further.
[17]
The Constitutional Court summarised the applicable principles
pertaining to the mandament van spolie in a recent judgment,
to wit
Ngqukumba v
Minister of Safety and Security
2014 (5) SA 112
(CC), and I quote paras [10] - [13]:
“
[10]
The essence of the mandament van spolie is the restoration before all
else of unlawfully deprived possession to the possessor.
It finds
expression in the maxim spoliatus ante omnia restituendus est (the
despoiled person must be restored to possession before
all else). The
spoliation order is meant to prevent the taking of possession
otherwise than in accordance with the law. Its underlying
philosophy
is that no one should resort to self-help to obtain or regain
possession. The main purpose of the mandament van spolie
is to
preserve public order by restraining persons from taking the law into
their own hands and by inducing them to follow due
process.
[11]
........
[12]
A spoliation order is available even against government entities for
the simple reason that unfortunately excesses by those
entities do
occur. Those excesses, like acts of self-help by individuals, may
lead to breaches of the peace: that is what the spoliation
order,
which is deeply rooted in the rule of law, seeks to avert. The likely
consequences aside, the rule of law must be vindicated.
The
spoliation order serves exactly that purpose.
[13] It matters not that a government entity may be purporting to act
under colour of a law, statutory or otherwise. The real issue
is
whether it is properly acting within the law. After all, the
principle of legality requires of state organs always to act in
terms
of the law. ..... All that the despoiled person need prove is
that—
(a) she was in possession of the object; and
(b)
she was deprived of possession unlawfully.”
[18]
The right to the use of a road or access path qualifies for purposes
of possession. See:
Nienaber
v Stuckey
1946
AD 1049
at 1056. Exclusive possession is not a requirement and
it is not necessary that the road or path is used daily. See
also:
Willowvale
Estates CC and Another v Bryanmore Estates Ltd
1990 (3) SA 954
(W) at 956H and further.
[19]
The legal principles are clear. Very few defences can be
raised. The pupose is clear:
Spoliatus
ante omnia restituendus est
,
i.e.
applicant’s possession must be restored first and foremost and
thereafter the dispute as to the legality of any right
relied upon
could be considered. Refer again to
Willowvale
loc cit
where
the court dismissed a counter application.
[20]
In so far as applicant mentioned the servitude of right of way, but
it clearly relied on the mandament van spolie, the matter
should be
dealt with as in
Gowrie
Mews Investments CC v Calicom Trading 54 (Pty) Ltd and Others
2013 (1) SA 239
(KZD) and
Nienaber
v Stuckey
loc
cit.
[21]
In
Fischer and
Another v Ramahlele and Others
2014 (4) SA 614
(SCA) the court found at 624I that in order to
succeed with the mandament van spolie, the applicant must prove that
his possession
was stable and of sufficient duration.
[22]
The issue to be considered is whether applicant has made out a proper
case in order to succeed with the mandament van spolie.
I have
already shown that applicant incorrectly relied on a servitude of
right of way. However, it needs to be established
whether,
notwithstanding such wrong allegation, a case has been made out for
the rule
nisi
to be confirmed.
VIII
CONSIDERATION
OF FACTUAL DISPUTES
[23]
A court should adjudicate factual disputes in application
procedure having regard to the well-known
Plascon-Evans
Paints
dicta
recently approved and considered in more depth in
Wightman
t/a JW Construction v
Headfour
(Pty) Ltd and Another
[2008] ZASCA 6
;
2008 (3) SA 371
(SCA). I quote from paras [12] and [13]:
“
[12]
Recognising that the truth almost always lies beyond mere linguistic
determination the courts have said that an applicant who
seeks final
relief on motion, must in the event of conflict, accept the version
set up by his opponent unless the latter’s
allegations are, in
the opinion of the court, not such as to raise a real, genuine or
bona fide dispute of fact or are so far-fetched
or clearly untenable
that the court is justified in rejecting them merely on the papers:
Plascon-Evans Paints Ltd v Van Riebeeck
Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA
623
(A) at 634E-635C. See also the analysis by Davis J in
Ripoll-Dausa v Middleton NO
[2005] ZAWCHC 6
;
2005 (3) SA 141
(C) at 151A-153C
with which I respectfully agree. (I do not overlook that a reference
to evidence in circumstances discussed in
the authorities may be
appropriate.)
[13]
A real, genuine and bona fide dispute of fact can exist only where
the court is satisfied that the party who purports to raise
the
dispute has in his affidavit seriously and unambiguously addressed
the fact said to be disputed. There will of course be instances
where
a bare denial meets the requirement because there is no other way
open to the disputing party and nothing more can therefore
be
expected of him. But even that may not be sufficient if the fact
averred lies purely within the knowledge of the averring party
and no
basis is laid for disputing the veracity or accuracy of the averment.
When the facts averred are such that the disputing
party must
necessarily possess knowledge of them and be able to provide an
answer (or countervailing evidence) if they be not true
or accurate
but, instead of doing so, rests his case on a bare or ambiguous
denial the court will generally have difficulty in
finding that the
test is satisfied. I say ‘generally’ because factual
averments seldom stand apart from a broader matrix
of circumstances
all of which needs to be borne in mind when arriving at a decision. A
litigant may not necessarily recognise or
understand the nuances of a
bare or general denial as against a real attempt to grapple with all
relevant factual allegations made
by the other party. But when he
signs the answering affidavit, he commits himself to its contents,
inadequate as they may be, and
will only in exceptional circumstances
be permitted to disavow them. There is thus a serious duty imposed
upon a legal adviser
who settles an answering affidavit to ascertain
and engage with facts which his client disputes and to reflect such
disputes fully
and accurately in the answering affidavit. If that
does not happen it should come as no surprise that the court takes a
robust
view of the matter.”
IX
EVALUATION OF
THE EVIDENCE AND APPLICABLE LEGAL PRINCIPLES
[24]
I shall now proceed with an evaluation of the evidence in the light
of the authorities and the submissions of counsel.
[25]
It is stated in paragraph 11 of the founding affidavit on behalf of
applicant that it as owner of the aforesaid properties,
and its
members, to wit the following Fletchers, Derick George, Jasen, Linda
Louise and Tyronne, have continually, regularly, openly
and without
resistance or protest exercised access to a slipway on the Vaal Dam
through a motor gate situated on the boundary of
erf 1871,
Deneysville, in particular the portion known as Pierlaan. Malan
made a serious concession in paragraph 9.2 of the
answering affidavit
when he stated the following in response to applicant’s
deponent and other members’ access to the
Vaal Dam through the
particular motor gate:
“
9.2
I do however confirm that although the applicant and the members of
applicant had access as alleged to the Vaal
Dam, such access does not
grant a right of way and does not grant any rights in favour of the
applicant to gain access to a slipway
on the Vaal Dam through the
motor gate as alleged.”
This
concession should really be the end of the matter especially as far
as proof of the first requirement of the mandament van
spolie is
concerned, but I shall deal with other aspects as well.
[26]
It is applicant’s case that Malan locked the motor gate and
parked an excavator (back actor) in front of the gate to
deny access
to the Vaal Dam to applicant, its deponent and other members.
This occurred on 20 February 2015. Applicant
clearly regarded
this as spoliation. Malan admitted that the excavator was
parked as indicated by applicant, but denied the
remainder of the
contents of paragraph 20 of the founding affidavit. In
paragraph 21 applicant’s deponent stated that
he had enquired
from Malan why he did that whereupon Malan replied that he caused the
motor gate to be locked and the excavator
to be placed in front of it
so as to deny applicant and its members access. In his
answering affidavit Malan merely denied
the contents of this
paragraph. This is not only a bare denial, but also false.
[27]
Applicant refers to an e-mail from Linda Fletcher’s email
address dated 3 March 2015 wherein she requested Malan to reconsider
the dispute and mentioned the following:
“
In
regards to our access to the water directly in front of our stand
259, Deneysville, denied by you; …”
Malan
responded on 4 March 2015 as follows:
“
Good
day Linda,
I am sorry, but access through the public parking in front of your
house to our property is denied, as it compromises our security,
and
you let anybody to our property without asking permission. I
shall grant you access only through our resort’s front
gate and
only on our standard conditions, payments and rules.”
Malan’s
version in this regard is that applicant wished to gain access over
his property to which it has no right. Applicant’s
version that Malan’s response constituted an unequivocal
admission that he had spoliated applicant and its
members/beneficiaries
is met by a mere denial. The Vaal Dam is
clearly visible on the relevant photographs, but notwithstanding
this, Malan’s
version is that there is no access to the Vaal
Dam via the access route alleged by applicant. In paragraph
28.2 of his answering
affidavit Malan stated the following:
“
The
fact that the applicant had access to the Vaal Dam over a portion of
land referred to as “public park”, is no clear
right to
such access. Such right to access does not exist and there is
also no right to obtain access as requested by the
Applicant.”
[28]
Me Lisa Kruijer, the previous owner of the properties which now
belong to applicant, confirmed under oath that she had access
via the
motor gate and along the aforesaid pathway to the slipway on the Vaal
Dam for approximately ten years which access she
exercised and
enjoyed openly, regularly and without protest and objection.
Malan responded as follows in paragraph 16 of
the answering affidavit
to this version:
“
The
contents hereof are noted but it clearly once again does not grant
any right in favour of the beneficiary properties or any
person.”
He
mentioned in paragraph 8.2.1 of the answering affidavit that Mrs Lisa
Kruijer and her late husband had access from their properties
“
because of a temporary
arrangement between her late husband and I, and then only via a small
gate
.” This is in
direct conflict with Kruijer’s version and Malan failed to
indicate where the so-called small gate
was located.
[29]
Malan’s version that he did not lock the gate or caused it to
be locked is far-fetched and untenable. His denial
must be seen
in light of his very next averment in paragraph 29.2 of the answering
affidavit to the effect that when the interim
order was obtained he
opened the entrance. Whether or not it was locked, access
through the gate was denied bearing in mind
the parked excavator.
There is no reason not to accept applicant’s version that the
gate was in fact locked although
this is immaterial to the outcome of
the application.
[30]
Malan referred in paragraph 8.2.4 totally out of context to a new
motor gate in the fence of erf 1884 apparently erected by
applicant
and which it intended to use. This is irrelevant to the present
dispute. As mentioned, Malan made several
concessions in
support of applicant’s case, but many times he made bare
denials. Where there are factual disputes,
save for the
existence of the servitude, I am satisfied that Malan’s version
should not be accepted. He did not play
open cards and his
version should be rejected as improbable to the extent that it is
untenable and/or false. I therefore
accept applicant’s
version as supported by Mrs Kruijer. I am satisfied that
application has made out a proper case
for the relief claimed and
that the rule
nisi
should be confirmed, save for the costs issue which shall be dealt
with in the next paragraph.
X
EX PARTE
APPLICATIONS
[31]
Applicant made it clear in paragraph 19 of the founding affidavit
that it did not seek any determination by the court pertaining
to the
ownership of the various properties or the rights of the respective
parties to the properties, specifically referring to
the servitude of
right of way, but that it merely wanted to obtain relief in terms of
the mandament van spolie. However,
fact of the matter is that
applicant made a serious misstatement and in so doing did not comply
with the obligation of observing
utmost good faith expected when
orders are sought
ex
parte
. I
cannot find that it was done with a fraudulent motive or
mala
fide,
but a
culpable remissness is apparent. See
Schlessinger
v Schlessinger
1979 (4) SA 342
(W) at 348I – 349B and
National
Director of Public Prosecutions v Basson
2002 (1) SA 419
(SCA) at para [21]. The reliance on a servitude
of right of way that, unknown to the presiding judge did not exist,
might
have persuaded him to grant urgent relief
ex
parte
in
circumstances where he might have insisted on service of the
application papers if he was aware of the true facts.
[32]
In certain circumstances a court may even discharge a rule
nisi
obtained
ex parte
based on the failure by the applicant to withhold or suppress
material facts or making material misstatements.
In
casu
I am satisfied
that this is not such a case although I am of the view that applicant
should be penalised to show my displeasure
for making false
allegations by not allowing it its full costs.
[33]
Bearing in mind all the circumstances and the warnings sounded too
often to litigants who wish to burden the court rolls with
urgent
applications without obtaining true facts and/or correct information
beforehand, I am of the view that applicant should
only be entitled
to 50% of its party and party costs and that is the order I intend to
make.
XI
ORDER
[34]
Therefore I make the following order:
The
rule
nisi
of 2 April 2015 is confirmed on the basis that respondents are
ordered to pay 50% only of applicant’s party and party costs
of
the application, jointly and severally, the one to pay the other to
be absolved.
_______________
J.
P. DAFFUE, J
On behalf of the applicant:
Adv. M.C. Louw
Instructed by:
Matsepes Inc.
BLOEMFONTEIN
On behalf of the respondent:
Adv. C. Snyman
Instructed by:
Neuhoff Attorneys
BLOEMFONTEIN
/EB