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[2016] ZAKZDHC 26
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Taddese and Others v Peer NO and Others (5250/2016) [2016] ZAKZDHC 26 (4 August 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
LOCAL DIVISION, DURBAN
Case
No: 5250/2016
DATE:
4 AUGUST 2016
NOT
REPORTABLE
In
the matter between:
YINEBEB
GEBISA
TADDESE
..........................................................................................
1
st
Applicant
KHANISA
MLENZANA
....................................................................................................
2
nd
Applicant
MAHOMED
BILLY
............................................................................................................
3
rd
Applicant
And
MOOSA
MAHOMED PEER
NO
...................................................................................
1
st
Respondent
SORAYA
PEER
NO
........................................................................................................
2
nd
Respondent
ROQUAYYA
BIBI MAHOMED TIMOL
NO
...............................................................
3
rd
Respondent
JUDGMENT
Gorven
J:
[1]
There are four sets of premises which were
leased by the MMP Trust (the trust) to Mr Taddese, the first
applicant at various times.
The three respondents are the trustees of
the trust. Mr Peer, the first respondent, is the person who took most
of the action of
the trust in this matter. The premises are situated
at 126 and 128 Umgeni Road respectively. The four premises have been
describing
the application papers as follows:
·
The blanket shop at 126 Umgeni Road (the
blanket shop);
·
The back of 126 Umgeni Road (the back of
126);
·
The back of 128 Umgeni Road (the back of
128); and
·
The first floor at 128 Umgeni Road (the
first floor).
Mr
Taddese claims that, on 31 May 2016, he was unlawfully deprived of
possession of the last three of these premises by the trust
(the
disputed premises). The other two applicants make the same claim.
[2]
This application is, accordingly, for
spoliatory relief. The law relating to this kind of relief is clear:
‘
It
is a fundamental principle that no man is allowed to take the law
into his own hands; no one is permitted to dispossess another
forcibly or wrongfully and against his consent of the possession of
property, whether movable or immovable. If he does so, the
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.’
[1]
[3]
The application initially cited only Mr
Peer as trustee. When it was pointed out that he was one of three
trustees, the applicants
launched an application to join the other
two trustees. This was initially opposed but consented to in
argument. Since all trustees
must be sued when relief is sought
against a trust, their joinder was ordered prior to argument on the
substantive point.
[4]
There
are only two requirements for spoliatory relief; that the applicants
were in peaceful and undisturbed possession of the disputed
premises
and that they were deprived of that possession without consent or
recourse to law. The fact that the applicants’
possession is
wrongful or illegal is irrelevant.
[2]
The underlying rationale is that persons should not take the law into
their own hands. If these two requirements are proved, possession
is
restored without any enquiry being made into the legal rights of the
parties to possession.
[5]
What is essentially in dispute in this
matter is whether or not Mr Taddese was in possession of the disputed
premises. The trust
accepts that the disputed premises were leased.
It claims that Mr Taddese failed to adhere to the terms of the
leases. An acknowledgment
of debt was then signed which regulated his
further occupation under the leases. The trust claims that he
breached the terms of
the acknowledgment of debt.
[6]
The trust accepts that it placed a lock on
the gate and prevented Mr Taddese and the other applicants from
accessing the disputed
premises when he attempted to do so. If he was
in possession, it is conceded that this amounts to spoliation. The
second and third
applicants are employed by Mr Taddese. There is a
denial that Mr Taddese had staff on the disputed premises (although
it is admitted
that both the second and third applicants were
employed by him) but it seems that the denial only goes to their
residing on the
premises. In any event, it is clear that the goods of
the third applicant were removed from the disputed premises and
placed outside.
[7]
The version of Mr Taddese as to whether he
was in peaceful and undisturbed possession of the disputed premises
is simple. He says
that he had leased all four premises. He says that
on 24 February 2016 he handed the keys of the blanket shop
to one
Ronnie Naiker (Mr Naiker) and relinquished occupation of the
blanket shop only. He says that he remained in occupation of the
disputed
premises pursuant to the leases.
[8]
His communications around that time have
been seized on by the trust to assert that Mr Taddese relinquished
occupation of the disputed
premises as well as the blanket shop. The
trust leads no evidence on the factual situation. What Mr Peer says
in this regard is
that ‘the key’ was handed to Mr Naiker.
In addition, Mr Taddese left a letter with Mr Naiker confirming that
he was
handing the key to Mr Naiker. Thirdly, that Mr Taddese sent an
SMS to Mr Peer stating that he was leaving the building.
[9]
The
version of the trust is problematic. Mr Taddese asserts, in
paragraphs 10 – 13 of the founding affidavit, that he runs
commercial enterprises from the back of 126 and the back of 128 and
that he sub-lets the first floor to tenants for accommodation.
These
averments are admitted by the trust. In fact, the trust repeats them
in its last answering affidavit. There is no evidence
that Mr Taddese
relinquished possession of these, the disputed, premises. What is
more, the trust asserts that Mr Taddese has,
without its permission,
sub-let the first floor to some 150 people for accommodation and that
those people remain in occupation.
It says that the reason that only
the blanket shop key was handed to Mr Naiker is that ‘the
remaining buildings . . . are
illegally occupied by [Mr Taddese’s]
sub-let tenants; accordingly these keys were never handed over to the
trust.’
The trust also asserts that the reason for this
application is to enable Mr Taddese to continue to collect rentals.
He asserts
that he possesses the portions sub-let for the purpose of
securing a benefit for himself. This is admitted. There is no
evidence
that he has relinquished possession of these premises. This
is sufficient to prove possession for the purpose of spoliatory
relief.
[3]
[10]
In addition, the trust caused its present
attorneys to send two letters in mid-March 2016 to Mr Taddese. That
of 14 March 2016 said:
‘
3.
Our instructions are inter alia to proceed with eviction of your
client from the premises listed as follows:
3.1
126 Warehouse at the back;
3.2
128 1
st
floor;
3.3
128 Warehouse at the back.
4.
Your client has accepted that it is occupying the aforesaid premises
unlawfully and his continual use of the premises . . . for
commercial
use was predicated on payment under the Acknowledgment of Debt being
made . . .
5.
Accordingly your client can voluntarily vacate the premises or an
application will be brought for his eviction.’
When
confronted with this letter, Mr Peer simply says that this shows that
the occupation of the disputed premises by Mr Taddese
is unlawful.
That may be so but the letter is a clear admission that the disputed
premises were occupied by Mr Taddese. In fact,
Mr Peer goes on to say
that ‘eviction proceedings will be directed to the First
Applicant as the tenants occupy through him.’
[11]
All of this, and other evidence which need
not be dealt with, proves on a balance of probabilities that Mr
Taddese and the other
two applicants were in occupation of the
disputed premises on 31 May 2016 when the trust had a lock fitted to
the gate and refused
access to the applicants. It was accepted in
argument that the second and third applicants occupied for the
purpose of conducting
the business of Mr Taddese from the premises.
The applicants are accordingly entitled to have occupation restored
to them before
any enquiry is made into the lawfulness or otherwise
of their occupation.
In
the result, the following order issues:
1
The respondents are directed to forthwith
restore possession of and access to the premises situate at Shop 126
(back) and 128 (back
and first floor) at 126-128 Umgeni Road to the
applicants.
2
In the event of the respondents failing to
comply with paragraph 1 hereof, the Sheriff is authorised to take
such steps as may be
necessary to do so on their behalf.
3
The respondents are directed to pay the
costs of this application.
GORVEN
J
DATE
OF HEARING: 4 August 2016.
DATE
OF JUDGMENT: 4 August 2016.
FOR THE
APPLICANTS: CLL Rodel,
Instructed by MAK
Ameen & Company.
FOR
THE RESPONDENTS: D Ramdhani,
Instructed
by Johnston & Partners.
[1]
Nino
Bonino v De Lange
1906 TS 120
at 122.
[2]
Ivanov
v North West Gambling Board & others
2012
(6) SA 67
(SCA) para 19;
Voet
41.2.16.
[3]
Yeko
v Qana
1973 (4) SA 735
(A) at 739E-H;
Nienaber
v Stuckey
1946
AD 1049
at 1057-8.