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[2016] ZAGPPHC 1150
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Brown and Others v Morkel and Others (80731/16) [2016] ZAGPPHC 1150 (28 October 2016)
SAFLII
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Certain
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
28/10/2016
CASE
NO.: 80731/16
REVISED
In
the matter between:
CHRISTINE
BROWN
First
Applicant
ADRIEN
MORNAY BROWN
Second
Applicant
JOHAN
ABRAHAM FREDERIK BOOYSEN Third
Applicant
And
JOHANN
MORKEL
First
Respondent
MARICHELLE
MORKEL
Second
Respondent
ESKOM
HOLDINGS SOC LIMITED (REG NO.: 2002/015527/30) Third
Respondent
CITY
OF TSHWANE MUNICIPALITY METROPOLITAN Fourth
Respondent
JUDGMENT
VAN
DER WESTHUIZEN, A J
1.
This application comes before me by way of urgency and relates to
interrupted supply of electricity to the main house on the
premises
of the first and second applicants, situated at [...] P. Road,
Kameelfontein, Derdepoort Park, Pretoria and an order is
sought that
the uninterrupted supply of electricity be restored forthwith. .
2.
The first and second applicants are the occupiers of the main house
situated on the aforementioned property. The third applicant
is the
present registered owner of the said property.
3.
The first and second respondents occupy another building or buildings
on the property from which they conduct a creche. The first
and
second respondents have purchased the property, but have not taken
transfer thereof. They oppose this application.
4.
The third respondent is Eskom Holdings SOC Limited, the supplier of
electricity to the aforementioned property.
5.
The fourth respondent is City of Tshwane Metropolitan Municipality.
6.
Third and fourth respondents are merely cited in so far as they may
have an interest in these proceedings and no relief is sought
against
them. They have not opposed this application.
7.
The applicants rely on the
mandament van spolie
for the
granting of the relief sought.
8.
The requirements
[1]
for a
successful reliance upon the
mandament
van spolie
are:
(a) That the applicant is
in possession of the property; and
(b) That the respondent
deprived the applicant of the possession forcibly or wrongfully
against his consent.
9.
It is common cause that the first and second applicants are in
occupation of the main house on the aforementioned property and
as an
incidence of that occupation enjoyed uninterrupted supply of
electricity to the said house.
10.
It is further common cause that the first and second respondents have
caused the uninterrupted supply of electricity to the
main house to
be cut. In this regard the first and second respondents admit that
the interruption of the electricity supply to
the main house was due
to an intentional and deliberate decision and act to cause the
uninterrupted supply of electricity to be
cut (links to be pulled) by
the third respondent.
11.
It is further common cause that the first and second applicants have
not consented to the interruption of the supply of electricity
to the
main house.
12.
It follows that the first and second applicants have proven the
requirements of
mandamant
van spolie
.
[2]
13.
The defences raised by the first and second respondents are curious.
14.
In the first instance the first and second respondents attack the
urgency of the matter. It is trite that a
mandamant
van spolie
is
by its very nature urgent
[3]
.
15.
Secondly, a point
in limine
is taken, that of misjoinder. The
first and second respondents allege that the third applicant joins in
the proceedings in respect
of issues that are not relevant to the
present application and are to be dealt with in another forum in due
course. No relief is
sought in that regard in this application. It
is, however, common cause that the third applicant is presently the
registered owner
of the said property.
16.
The third and foremost defence that ls raised relates to alleged lack
of cause of action. In this regard the first and second
respondents
allege that the first and second applicants are mistaken when they
suggest that they are entitled to the relief sought.
This contention
is premised presumably on the allegation that the first and second
applicants are perpetually in debt in respect
of the costs of
electricity consumed by them.
17.
It ls trite that there are limited defences that a respondent can
raise in spoliation proceedings and are:
(a) Denial of the facts
alleged for
spoliatus ante omnia restituendus est
, i.e. that
the applicant did not possess the property in dispute at the time of
the alleged spoliation, or that it was legally
Justified;
(b) Restoration is
impossible; or
(c) Counter-spoliation.
18.
The first and second respondents seek to justify their termination of
the uninterrupted electricity supply to the main house
on the
premises that the first and second applicants are "in perpetual
debt".
19.
In my view, there is no merit in that contention. There is no legal
justification that the first and second respondents have
the right to
terminate the uninterrupted supply to the main house due to
"perpetual debt" on the part of the first and
second
applicants.
20.
Further in this regard, the first and second respondents seek to rely
on an alleged agreement between the parties, first and
second
applicants and first and second respondents, relating to the supply
of electricity to the main house. In so far as that
alleged agreement
is concerned, it contains provisions for the non-payment or
non-timeous payment of the first and second applicants'
share of the
electricity consumption. It provides for penalties to be levied.
Furthermore, that agreement does not contain any
provision that the
agreement may be terminated due to any breach. In any event, the
first and second respondents are not the supplier
of electricity to
the property.
21.
The first and second respondents have failed to prove a defence
justifiable of their admitted spoliation.
22.
It follows that the application must succeed.
I
grant the following order:
(a)The first and second
respondents are ordered to take all steps necessary to restore
uninterrupted supply of electricity to the
main house of the premises
occupied by the first and second applicants, situated at [...] P.
Road, Kameelfontein, Derdepoort Park,
Pretoria;
(b)The first and second
respondents are to pay the costs of the application, jointly and
severally, the one to pay the other to
be absolved.
CJ
VAN DER WESTHUIZEN
ACTING
JUDGE OF THE HIGH COURT
On
behalf of Applicant: JD
La Grange
Instructed
by: Vermaak
Beeslaar Attorneys
On
behalf of Respondent: TP
Krüger SC
Instructed
by: Rothmann
Phahlamohlaha Inc
[1]
Yeko v
Qana
1973(4)
SA 735 (A) at 735G-H.
[2]
Shoprite
Checkers Ltd v Pangboume Properties Ltd
1994(1)
SA 616 (WLD) at 620
[3]
Le
Riche v PSP Properties CC et al
2005(3)
SA 189 (C)