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[2015] ZAKZDHC 42
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Shelving Man (Pty) Ltd v Dawood and Others (3309/2015) [2015] ZAKZDHC 42; [2015] 3 All SA 243 (KZD) (20 May 2015)

IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL LOCAL
DIVISION, DURBAN
CASE NO.: 3309/2015
DATE: 20 MAY 2015
Reportable
In the matter between:
SHELVING MAN (PTY)
LTD
.................................................................................................
Applicant
And
SAYED
DAWOOD
........................................................................................................
First
Respondent
IMRAAN
ADAM
......................................................................................................
Second
Respondent
AYUB
VALLY
..............................................................................................................
Third
Respondent
JUDGMENT
Heard: 20rd April 2015
Delivered: 20th May 2015
JEFFREY AJ:
[1] This is a spoliation application.
The applicant approached this court claiming restoration of
possession of its business premises
which it alleged had been
despoiled by the respondents.
[2] In addition, the applicant also
claimed interdictory relief when the application was first instituted
against all the respondents
and others acting through them from
unlawfully depriving it of possession of its business premises.
[3] When this matter came before me Mr
Potgieter, who appeared with Mr Naidoo for the applicant, applied to
amend the initial relief
claimed. Mr Gajoo, who appeared with Mr
Edy, for the first respondent did not object to this amendment being
granted. In terms
of this amendment the applicant: (a) abandoned the
interdictory relief that was initially sought by it; and (b) confined
the amended
relief for a spoliation order to the first respondent
only.
[4] The essential characteristic of the
remedy of spoliation - the mandament van spolie - is, of course, that
it is a possessory
remedy. It is only the possession of a party that
is protected. The underlying rationale of the remedy is that no
person is allowed
to take the law into his or her own hands and to
unlawfully dispossess another of possession of property. If this
occurs, the
court will summarily restore the status quo ante without
enquiring into or investigating the merits of the dispute to
determine
a party's right to ownership or other right to the property
in dispute. It was said in Tswelopele Non-Profit Organisation and
Others v City of Tshwane Metropolitan Municipality and Others
2007
(6) SA 511
(SCA):
“Under it, anyone illicitly
deprived of property is entitled to be restored to possession before
anything else is debated
or decided (spoliatus ante omnia
restituendus est). Even an unlawful possessor — a fraud, a
thief or a robber — is
entitled to the mandament’s
protection. The principle is that illicit deprivation must be
remedied before the courts will
decide competing claims to the object
or property.”
[5] The requirements for the mandament
van spolie were restated in Ivanov v North West Gambling Board and
Others
2012 (6) SA 67
(SCA) 67B-D at para [19] as follows:
“The historical background and
the general principles underlying the mandament van spolie are well
established. Spoliation
is the wrongful deprivation of another's
right of possession. The aim of spoliation is to prevent self-help.
It seeks to prevent
people from taking the law into their own hands.
An applicant upon proof of two requirements is entitled to a
mandament van spolie
restoring the status quo ante. The first is
proof that the applicant was in possession of the spoliated thing.
The cause for possession
is irrelevant — that is why possession
by a thief is protected. The second is the wrongful deprivation of
possession. The
fact that possession is wrongful or illegal is
irrelevant, as that would go to the merits of the dispute.”
[6] But there is a qualification to the
general rule regarding spoliation. That is, if an applicant goes
further than claiming spoliatory
relief – and claims a
substantive right to possession of the spoliated thing as well - he
in effect forces an investigation
of the issues relevant to the
further relief that he claims: see Minister of Agriculture &
Agricultural Development v Segopolo
1992 (3) SA 967
(T) 971B; Street
Pole Ads Durban (Pty) Ltd v Ethekwini Municipality
[2008] ZAGPHC 33
;
2008 (5) SA 290
(SCA) 295C-E at para [15] and Ivanov supra 78C-E at para [25].
[7] Mr Gagoo submitted that this
qualification was applicable in this matter because the applicant had
gone further than merely
claiming spoliatory relief on two grounds.
First, so Mr Gagoo argued, in the amended order prayed, the use of
the word “its”
in the phrase: “… restore
possession to the applicant its business and its business premises …”
(my emphasis),
meant that the applicant conveyed that it had a
substantive right to the business and the business premises. This,
so his argument
continued, introduced a dispute about the applicant’s
title to the business and the business premises and, therefore, took

the determination of this application beyond the confines of a
mandament van spolie. Second, Mr Gagoo argued, an enquiry into
the
merits of the dispute to determine the parties right to ownership or
other right to the property in dispute was permissible
because the
applicant had initially claimed interdictory relief and the mere fact
that this was later abandoned, was irrelevant.
The die was cast - to
echo the idiom used by Mr Gagoo - at the outset when this application
was instituted and, thus, a consideration
of the merits was
permissible despite the later abandonment of the interdictory relief.
[8] There is no merit in these
propositions.
[9] First, the use of the possessive
pronoun “its” in the amended order prayed does not mean
that the applicant is claiming
a substantive right to possession to
the business and to the business premises. Indeed, the meaning Mr
Gajoo sought to ascribe
to this word does not appear from the context
in which it was used, its apparent purpose or the factual background
of the applicant’s
case gleaned from a holistic reading of the
applicant’s allegations in the papers before me. The
construction sought to
be placed on the word ‘its’ by Mr
Gagoo is linguistically and contextually untenable.
[10] Mr Gagoo’s second submission
that the applicant’s abandonment of the extra interlocutory
relief was irrelevant
and an enquiry into the merits was still
permissible, also cannot be sustained. This submission is based on a
misunderstanding
of the underlying rationale underlying the
qualification to the general rule; namely, if an applicant goes
further than only to
claim spoliatory relief, he in effect forces an
investigation of the issues relevant to the further relief he claims.
That principle
is well-established. But that does not mean that if
the further relief claimed is abandoned by the applicant before the
application
is heard by the court, then the parties’
substantive rights to possession of the thing concerned must be
considered by the
court. It may be otherwise if an applicant
persists with the further relief claimed before the court. Goldstein
J explained in
Minister of Agriculture & Agricultural Development
v Segopolo
1992 (3) SA 967
(T) 971E-G that merely by asking for more
than spoliatory relief does not disqualify an applicant from invoking
the mandament van
spolie “… since our law contains no
such formalism … (but) if an applicant asks for the extra
relief and persists
in it at court, the court has perforce to
adjudicate upon the extra relief and the respondent's allegations in
regard thereto,
and the result of this may indicate that the
applicant has no right to the thing of which he was despoiled, which
in turn will
deprive the applicant of his entitlement to the
restoration of the status quo ante.” (My emphasis). With
respect, this passage
is correct in principle. Where the extra
relief is not persisted with at court by the applicant, as in casu,
the issue concerning
such relief is not before the court. The
merits, therefore, of whether or not the applicant’s possession
was wrongful is
irrelevant.
[11] The issues thus limited, the
applicant would be entitled to a mandament van spolie restoring the
status quo ante upon proof
of two requirements – first, that
the applicant was in possession of the business and the business
premises. Second, that
the applicant was wrongfully deprived of its
possession.
[12] It is common cause that since 2014
the applicant has conducted a shelving business from the premises.
It is also common cause
that on 23 March 2015 the applicant was in
possession of the business and the business premises. The first
requirement, therefore,
has been met. This was properly conceded by
Mr Gagoo.
[13] There is a dispute of fact as to
precisely what occurred on 23 March 2015 and whether or not the
applicant was wrongfully deprived
of its possession on that day.
[14] The applicant’s version is
that is that six adult males who were unknown to its director, Mr
Ashraf Yusuf Omar, arrived
together with the third respondent at the
applicant’s business premises. They confronted him in the
administrative section
and took him into the private office of his
co-director, Mr Mohamed Farouk Adam. They closed the door and
questioned him in an
aggressive tone about rental payable in respect
of the business premises, the vehicles used by the applicant to
conduct its business
and other matters regarding money they alleged
belonged to the late Mr Abdul Kader Adam. Their conduct and
demeanour terrified
him and he was afraid that harm would come to him
if he failed to co-operate with them. They aggressively told him to
answer their
questions and alleged that the business belonged to the
late Mr Adam and waived certain documents at him. The third
respondent
used his cell phone to telephone the second respondent who
then came into the office. The second respondent questioned Mr Omar

about money that belonged to his late brother and which he alleged Mr
Omar had knowledge of this. The second and third respondent
and the
group that accompanied them decided that Mr Omar should hand over the
applicant’s business to them. Mr Omar did
not want to comply
but because he was alone and afraid he said he consented to do so.
The first respondent then arrived. Mr Omar
says that it was clear to
him that the first, second and third respondents were acting together
and had carefully planned and orchestrated
the dispossession of
applicant’s business with the assistance of the six men. Mr
Omar says that he had no alternative but
to hand over the keys to the
applicant’s business to the three respondents. He also signed
a document under duress and out
of fear, as he put it, stating that
the first respondent had received the keys to the applicant’s
business and a cell phone
and recording that this was done on behalf
of the landlord who was the mother of the beneficiaries and children
of the late Mr
A K Adam. It is common cause that the first
respondent is married to the widow of the late Mr A K Adam.
[15] The first respondent’s
version is that the applicant was not wrongfully deprived of its
possession because this was done
with Mr Omar’s consent -
voluntarily and without demur by him – when he was handed the
keys and cell phone by Mr Omar
as well as when Mr Omar placed his
signature to the document. If this is so, then the second
requirement entitling the applicant
to a mandament van spolie
restoring the status quo ante would not be established and the
application would have to fail.
[16] There is a dispute of fact on the
papers with regard to whether or not the deprivation of the
applicant’s possession
was wrongful.
[17] It is trite that where there is a
genuine dispute of fact in a claim for final relief – and a
spoliation application
is one where the relief is final in nature -
the respondent’s version must be accepted. But, it is equally
trite that there
is an exception to this general rule. And this is
that a dispute will not be real, genuine or bona fide if the
respondent’s
version is so far-fetched or so untenable that the
court is justified in rejecting it on the papers. A real, genuine
and bona
fide dispute of fact can exist only where a 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: see Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty)
Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) 634E-635C read with Wrightman t/a JW
Construction v Headfour (Pty) Ltd & Another
[2008] ZASCA 6
;
2008 (3) SA 371
(SCA)
375D-G at paras [12] and [13]. As Cameron JA (as he then was)
pointed out in Fakie NO v CCII Systems (Pty) Ltd v
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA) 324F-348C at paras [55]-[56], it is in the interests of justice
that unvirtuous respondents should not be permitted to shelter
behind
patently implausible versions on affidavit or bald denials. Cameron
JA added, in para [56], that the practice in this regard
has become
more robust but he cautioned that “… the limits remain,
and however robust a court may inclined to be,
the respondent’s
version can be rejected in motion proceedings only if it is
‘fictitious’ or so-far fetched and
clearly untenable that
it can confidently be said, on the papers alone, that it is
demonstrably and clearly unworthy of credence.”
The correct
approach is not to evaluate the competing versions of either side
since the issue here is not which version is the
more probable but
whether or not the first respondent’s version is so far-fetched
and improbable that it can be safely rejected
on the papers: see
National Scrap Metal v Murray & Roberts
2012 (5) SA 300
(SCA)
paras 21-22 and cf PMG Motors Kyalami (Pty) Ltd and Another v
FirstRand Bank Ltd, Wesbank Division
2015 (2) SA 634
(SCA) 644E-H at
para [23] fn 22.
[18] I am not persuaded that the first
respondent has seriously and unambiguously addressed the disputed
wrongfulness of the applicant’s
dispossession in the answering
affidavit. It is common cause that the applicant was in possession
of the business and the business
premises at the time. It is also
undisputed that Mr Omar was approached by the second and third
respondents accompanied by six
men. It is also undisputed that the
first respondent, who coincidently was working nearby, was called on
his cell phone by one
of these men and he then joined the group. The
first respondent’s own version is that the keys to the business
and the cell
phone were handed over to him and that a document was
signed by Mr Omar recording that this was done on behalf of the
landlord
who was the mother of the beneficiaries and children of the
late Mr A K Adam. It emerges clearly from the first respondent’s

affidavit that there is a family dispute about who is entitled to the
applicant’s business and the business premises. Indeed,
he
goes so far as to suggest that the court will be approached to
resolve this dispute, if need be. That is, of course, what ought
to
have been done. The first respondent and his companions acted
wrongfully by resorting to self-help by arriving en masse at
the
applicant’s premises and demanding that Mr Omar hand over the
business and the premises. A group of men intent on extracting
the
business and its premises from the applicant is obviously nothing
short of intimidatory conduct that was designed to instil
fear in Mr
Omar and induce him to sign the document against his will. There is
no explanation by the first respondent as to why
it was necessary for
a gang of six men to accompany the first, second and third
respondents to the premises. In the absence of
an explanation, the
only inference that can be drawn is that this was to harass and
intimidate Mr Omar and cower him into submitting
to the handing over
the applicant’s business and premises to the first respondent.
It is immaterial whether or not the first
respondent was acting on
behalf of the widow of the late Mr A K Adam or not. Self-help is not
countenanced by the law and, indeed,
the remedy of the mandament van
spolie is there, as Thirion J succinctly said in Zulu v Minister of
Works, KwaZulu, and Others
1992 (1) SA 181
(D) 187G-H “…
to restore the factual possession of which the spoliatus has been
unlawfully deprived.” There
can be no doubt on a conspectus of
the first respondent’s allegations and the circumstances in
which the dispossession took
place as outlined above, that the first
respondent’s version that Mr Omar consented to the applicant’s
business and
its premises being handed over is so far-fetched and
clearly untenable that I am confidently able to reject it on the
papers as
completely lacking credence.
[19] I accordingly find that the
applicant was wrongfully deprived of possession of its business and
its business premises by the
first respondent.
[20] That being so the applicant has
satisfied the requirements for the grant of a spoliation order. I
accordingly grant an order
that:
1. The first respondent and/or all
other persons acting through or for the first respondent as agents,
employees and/or servants
of the first respondent be and are hereby
directed to forthwith restore possession to the applicant its
business and its business
premises described as Shelving Man (Pty)
Ltd situated at 505/507 Umgeni Road, Durban, KwaZulu-Natal.
2. In the event of the first respondent
failing alternatively refusing to comply with Order 1 supra, the
Sheriff of this court be
and is hereby authorized to give immediate
effect to Order 1 supra.
3. The Sheriff of this court be and is
hereby directed to utilize the services of the South African Police
Service and a locksmith
insofar as may be necessary to give effect to
Order 1 supra.
4. The first respondent is directed to
pay the costs of this application, such costs to include the costs of
two counsel.
JEFFREY AJ
Appearances:
Applicant’s counsel : Mr A E
Potgieter SC (with him Mr D D Naidoo)
Applicant’s attorneys : Sabeer
Joosab Attorneys
Ref. Mr Joosab/2S214
Tel. 031-207 8337
E-mail shabeer@lantic.net
First respondent’s counsel :
Mr V Gagoo SC (with him Mr C B Edy)
First respondent’s attorneys
: Miriam Cassim & Associates
Tel. 031-702 2786
Date of hearing : 20 April 2015
Date of judgment : 20 May 2015