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2016
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[2016] ZAFSHC 123
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Matomela v Maine and Others (1703/2016) [2016] ZAFSHC 123 (8 August 2016)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No: 1703/2016
In
the application between:
ERIC NKOSIVUMILE
MATOMELA
and
POBELA BENJAMIN
MAINE
REVEREND MOLETE
THE PRESBYTERIAN
CHURCH OF AFRICA
Applicant
1st
Respondent
2nd Respondent
3rd Respondent
JUDGMENT
BY:
C REINDERS, J
HEARD
ON:
28 JULY 2016
DELIVERED
ON:
8 AUGUST 2016
[1]
The Applicant in its Notice of Motion moves for an order that he be
placed in possession of site 175 B Harankope, Phuthabitjaba.
[2]
In his Founding Affidavit he avers that he had been conducting
services and serving the congregation at the said premises. On
the
19th of March 2016 the First and Second Respondents proceeded and
broke the locks to the fence as well as the church situated
on the
property in order to hold an installation meeting. Thereafter the
Respondents refused to grant him entry to the premises
and proceeded
to replace locks on the premises of which he has no keys.
[3]
The Respondents in their Opposing Affidavit deny that the Applicant
had possession of the property. They aver that the Applicant
had
access to the church building in order to fulfill his duties as the
installed and ordained minister of the circuit. Due
to his
suspension he was not entitled to access and was not required to
fulfil his duties as such. In amplification it is stated
that the
Applicant previously occupied the manse on the property but vacated
same some six years ago when he moved to his own residence
in
Harrismith whilst still having access to the church building in his
capacity as installed and ordained minister for purposes
of
fulfilling his duties.
[4]
Respondents deny having broken the fence and/or locks and state that
pursuant to a court order dated 3 March 2016 obtained by
Third
Respondent against the Applicant the police, having been shown the
order, cut the locks which were fixed to the gates by
the applicant
(the said order being annexed as “Annexure A” to the
application).
[5]
It is disputed by Respondents that the Applicant was in peaceful
possession of the property and reiterated that at best he had
no
further right of access and therefore is not entitled to keys of the
premises.
[6]
In reply it is conceded that Applicant lives in his own property in
Harrismith. He states that the manse serves a dual purpose
of an
office as well as overnight accommodation from time to time. It is
conceded that “the police” did indeed cut
and broke the
locks to the fence of the property. Applicant repeats that it is his
right and obligation to serve the congregation.
[7]
Spoliation is relief granted normally by way of motion proceedings to
prevent self-help. It is expected of an applicant to allege
and proof
peaceful and undisturbed possession as well as unlawful deprivation
of possession.
See:
Le Riche v PSP Property CC
2005 (3) SA 189
(CPD)
It
would suffice to proof possession if the holding was with the
intention of securing some benefit for the applicant. It is actual
physical possession that is protected and not the right to
possession.
See:
Yeko v Qana
1973(4)
SA 735 (A)
Dispossession
will be unlawful if it is without the plaintiff’s consent or
without due legal process.
See:
George Municipality v Vena
1982 (2) SA 263
(A)
[8]
Adv. Hefer appearing on behalf of the applicant argued that although
the Applicant is suspended, he on the probabilities was
the only one
who could exercise control over the property and that this was
illustrated by him securing locks to the property,
and that I should
conclude therefrom that the Applicant was in possession of the
property. His view is that it is nor here nor
there whether the
police removed the locks in lieu of the court order. It is the
actions of the Respondents after the initiation
proceedings which
constituted the spoliation and which entitles the Applicants to the
relief sought.
[9]
Mr Van Aswegen disagrees. He argues that the sole source of the
applicant’s right to use and enjoyment of the property
was a
master-servant relationship and that the control of the property was
entirely in the discretion of Third Respondent’s
Deacons Court.
Therefore the applicant was not in possession of the property as the
property was under the direct control of the
Deacon’s Court.
Applicant subject to their permission had only a right of access. In
support hereof I was referred to
Mpunga v Malaba
1959
(1) SA 853
(W) which bears a striking resemblance to that facts
before me as it also concerned a reverend claiming that he had
been
spoliated as key-holder to the church. Steyn AJ found that a
person who holds rights that derive from authority given to him by
the master is not entitled to bring proceedings for a spoliation
order.
[10]
In
Dlamini and Another v Mavi and Others
1982 (2) SA
490
(W) the secretary and treasurer of a trade union was evicted and
it was held that their right of occupation was merely as servants
of
the union. Kruger AJ dismissed an application for restoration of
possession
ante omnia
. Mr Van Aswegen submitted that on a
conspectus of the allegations by the Applicant, the Applicant equates
access with possession,
whilst the mandament protects possession and
not access.
[10]
I have my serious reservations whether the Applicant on his own
version proofs possession in the sense that he was holding
with the
intention of securing some benefit for himself. It does not avail him
to aver that as minister for the particular congregation
it is his
right and obligation to serve the congregation. That to my mind is
not securing some benefit for himself. It rather strengthens
the
Respondents’ version that Third Respondent possesses the
property and by virtue of the master-servant relationship Applicant
merrily had access thereto.
[11]
I was referred to a judgment of Nicholson J and align myself with his
conclusion that the mandament is there to protect possession
and not
access.
See:
De Beer v Zimbali Estate Management Association (Pty) Ltd
2007 (3) SA 254
NPD at 264 par [54]
[12]
The common cause facts are that the South African Police Services in
lieu of the court order removed the locks to the gates
and granted,
amongst others, the Respondents access to the premises. It therefore
cannot be said that the Respondents dispossessed
the Applicant. It is
the Police Service who did so. Mr Hefer ostensibly alive hereto,
submitted that the actions of the Respondents
after the installation
proceedings, constituted the spoliation. I am not so sure whether
this is so. What the Applicant has to
proof is that the Respondents
ended his rightful possession by way of self-help and not the police.
Staying in possession after
the police had rightfully removed the
locks, would not amount to spoliation. I mention this in passing by
and do not make a final
decision hereon for the reasons stated above
and because I concluded that Applicant was in any event not in
possession of property.
[14]
Mr Van Aswegen pressed hard upon me grant a punitive cost order. I am
not prepared to do so.
[15]
Accordingly I make the following order:
The
application is dismissed with costs.
________________
C.
REINDERS, J
On
behalf of applicant: Adv.
J.J.F. Hefer
Instructed
by:
McIntyre Van der Post
BLOEMFONTEIN
On
behalf of respondents: Adv. W.A. van Aswegen
Instructed
by:
Peyper
Attorneys
BLOEMFONTEIN