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[2016] ZAGPPHC 630
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NAD Property Income Fund (Pty) Ltd v Insight Outdoor Advertising (Pty) Ltd and Others (7544/2016) [2016] ZAGPPHC 630 (26 February 2016)
IN THE
NORTH GAUTENG HIGH COURT, PRETORIA
[REPUBLIC
OF SOUTH AFRICA]
CASE
NUMBER: 7544/16
DATE:
26/2/2016
(1)REPORTABLE:
YES
(2) OF
INTEREST TO OTHER JUDGES: YES
In
the matter between:
NAD
PROPERTY INCOME FUND (PTY)
LTD APPLICANT
And
INSIGHT
OUTDOOR ADVERTISING (PTY) LTD 1ST
RESPONDENT
SOUTH
AFRICAN NATIONAL ROAD AGENCY 2ND
RESPONDENT
THE
CITY OF TSHWANE METROPPOLITAN 3RD
RESPONDENT
MUNICIPALITY
ROELAND
STREET INVESTMENT (PTY) LTD 4TH
RESPONDENT
JUDGMENT
MAVUNDLA,
J.
[1]
The applicant approached this Court by way of urgency seeking a
spoliation order against the first respondent to restore the
large
advertising billboard which the first respondent allegedly unlawfully
removed from the applicant's property without the consent
of the
applicant and without a Court order.
[2]
Generally speaking, spoliation applications are by nature urgent. I
bear in mind that the Court must in urgent applications
first decide
whether the application is urgent or not. Should the court find that
the matter is not urgent, it must strike it off
the urgent roll. This
course will result in the matter being unnecessarily protracted as it
will once more re-emerge in the opposed
roll and burden this busy
Court with a meritless issue that could have been disposed of by this
Court. In my view, the essence
in this matter is one of commercial
urgency. I shall without deciding urgency, assume that the matter is
urgent, and proceed to
dismiss the application for the reasons set
out herein below.
[3]
In the matter of
Le
Riche v PSP Properties CC and Others
[1]
Yekiso J held as follows:
"Requisite
for the
mandament
van spolie
[8]
The law relating to the requisites for the granting of a spoliation
order is well settled. This consists of any wrongful deprivation
of
another’s right of possession, whether in regard to movable or
immovable property or legal right. Its underlying philosophy
is that
no one should resort to self-help in order to obtain or regain
possession. For the remedy to be available one should be
deprived of
one's possession, forcibly, wrongfully and against one's consent...
It
is an extraordinary, robust and speedy remedy. It follows, therefore,
from the principle stated in this paragraph that for the
applicant to
obtain the relief sought, he or she has to allege and prove (i)
peaceful and undisturbed possession and (ii) unlawful
deprivation of
such possession." It is not for the determination of the actual
right of the dispossessed;
vide
also
Firstrand
Ltd t/a Rand Merchant Bank v Scholtz N0.
[2]
[4]
It is trite that an applicant who seeks a spoliation order must make
out not only a
prima
facie
case
but must satisfy the Court on the admitted or undisputed facts, by
the same balance of probabilities as is required in every
civil suit,
of the facts necessary for his success in the application that he was
in undisturbed possession of the item he has
been despoiled of;
vide
Nienaber v Stuckey.
[3]
[5]
The facts of this matter which are not in dispute can be summed up as
follows:
5.1
The applicant on the 1 March 2006 concluded an agreement with a
company called Harlequin Duck Properties 9S (Pty) Ltd (hereinafter
referred to as Harlequin) for the right to install a billboard on the
Remainder of Portion 55 of the farm Doornkloof 391JR.
5.2
The terms of the agreement were,
inter alia,
that the first
respondent will, after it obtained the approval of the 3
rd
respondent, install a billboard on the property and sell the
advertising space on the billboard to prospective advertisers. As
compensation the first respondent would pay Harlequin 25% of the
income received from the advertisers.
5.3
The third respondent was granted approval on the 6 May 2006, and the
billboard, which is the subject matter
in casu,
was installed
on Portion 55 of the Farm Doornkloof 391JR.
5.4
At the time Harlequin developed a storage facility on the property
and fenced it off from the rest of the property. The billboard
was
erected just outside of the fence and it over hanged the fenced off
portion. The first respondent continued to pay rental to
Harlequin.
5.5
The first respondent per agreement with Harlequin erected other two
billboards on Portion 55 of the Farm Doornkloof 391JR.
5.6
Harlequin subdivided Portion 55 of the Doornkloof 391JR to Farm 7S9
of the Farm Doornkloof 391 JR ("Portion 759 ("Portion
759")
and the remainder of 55 of the Farm Doornkloof 391JR ("the
Remainder").
5.7
Harlequin sold Portion 759 to the applicant in 2008.
5.8
As the result of the subdivision, the billboard in question
effectively fell in the Remainder of Portion 759.
5.9
The first respondent removed the billboard which fell in the
Remainder of Portion 759 without the consent of the applicant and
installed it in the Remainder of Portion 55.
[6]
The issue to be decided
in casu,
is whether, the applicant was
in possession or control of the billboard in question, and if so
whether the removal by the first
respondent was a spoliation.
[7]
It needs mentioning that in the matter of
Wightman
t/a Jw Construction v Headfour (Pty) Ltd and Another
[4]
the
Supreme Court of Appeal held that:
"[12]
Recognising that the truth almost lies beyond mere linguistic
determination the court 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- 63SC. See also the analyses by Davis
J
Ripoll-Dausa v Middleton NO and Others
[2005] ZAWCHC 6
;
2005 (3) SA 141
(C)
at 151A-153C...)"
[8]
It is instructive to note that the first respondent and Harlequin
concluded a lease agreement
[5]
in respect of the portion on which the billboard was erected. The
terms of the lease agreement, were
inter
alia,
that
the billboard, referred to in the agreement as Image Sign shall
remain the sole and absolute property of the tenant
[6]
(first respondent). The first respondent was accorded the right to
remove the billboard. The first respondent further had exclusive
right to utilise the billboard for advertising.
[9]
The question whether the applicant had possession over the billboard
needs to be answered in the negative. The first respondent
had the
right to erect the billboard on and access the particular piece of
land, post advertisements, without having to seek any
permission from
the previous owner, and later the applicant. What is of importance is
not the physical presence of the billboard
but the right to access
and use it.
[7]
This right to use
the billboard vested not with the applicant but the first respondent.
The presence of the billboard on the applicant's
property is
therefore a consequence of the contract between the original owner
Harlequin and the first respondent. In terms of
the lease agreement
between the first respondent and the original owner, subsequently
taken over by the applicant through the purchase
of the relevant
piece of land, the first respondent can remove the billboard and need
no permission from the applicant. I find
therefore that the applicant
had no
detentio
over
the bill board and consequently he cannot resort to spoliation.
[10]
In my view, it is not necessary to traverse the rest of the
submission made on behalf of the applicant, besides same have in
no
way moved me from the conclusion reached herein above.
[11]
It is trite that costs follow the event. Both parties engaged the
services of two counsel. This demonstrates the importance
of the
matter to both parties. The matter raised a fine point in law and
certainly warranted the services of two counsel.
[12]
In the result the application is dismissed with costs inclusive the
costs of employing two counsel.
_____________
N.M.
MAVUNDLA
JUDGE
OF THE HIGH COURT
HEARD
ON THE:
17 FEBRUARY 2016
DATE
OF JUDGMENT:
26 FEBRUARY 2016
APPICANT'S
ADV:
L.B. VAN WYK SC with ADV D. VAN DEN BOGERT
INSTRUCTED
BY
DJV INCORPORATED ATTORNEYS
1
ST
RESPONDENT'S ADV:
M.C. ERASMUS S.C with ADV W KROG
INSTRUCTED
BY
BOSHOFF INC
[1]
2005 (3) SA 189
(CPD) at 193.
[2]
2008 SA 503
(SCA) at 509 at F-G.
[3]
1946 AD 1049
at 1053-4.
[4]
[2008] ZASCA 6
;
2008 (3) SA 371(SCA)
at 375 E-F
[5]
Vide annexure A at paginated page 77.
[6]
Clause 14.1 of the lease agreement.
[7]
Vide
ATM Solutions (Pty) ltd v OLKRU Handelaars CC
2009
(4) SA 337(SCA)
at 3390-F.