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[2015] ZAKZDHC 50
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Shelving Man (Pty) Ltd v Dawood and Others (3309/2015) [2015] ZAKZDHC 50 (22 June 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL LOCAL
DIVISION, DURBAN
CASE NO.: 3309/2015
DATE: 22 JUNE 2015
In the matter between:
SHELVING MAN (PTY)
LTD
.................................................................................................
Applicant
And
SAYED
DAWOOD
........................................................................................................
First
Respondent
IMRAAN
ADAM
......................................................................................................
Second
Respondent
AYUB
VALLY
..............................................................................................................
Third
Respondent
JUDGMENT
Heard: 17th June 2015
Delivered: 22nd June 2015
JEFFREY AJ:
[1] This is an application for leave to
appeal brought by the first respondent against my judgment delivered
on 20th May 2015 granting
spoliatory relief to the applicant. The
applicant has also instituted an application in terms of
s 18
of the
Superior Courts Act, No. 10 of 2013
, for leave to execute on the
order granted by me in the event of the first respondent being
granted leave to appeal.
[2] For the purposes of this judgment,
the parties will be continue to be referred to the applicant and the
first respondent respectively.
[3] After the application for leave to
appeal was argued, by consent I adjourned the
s 18
application sine
die, reserved the question of costs for later decision and made a
direction regarding the delivery of further
affidavits.
[4] Turning to the application for
leave to appeal,
s 17
of the
Superior Courts Act, No. 10 of 2013
provides that:
“(1) Leave to appeal may only be
given where the judge or judges concerned are of the opinion that-
(a) (i) the appeal would have a
reasonable prospect of success; or
(ii) there is some other compelling
reason why the appeal should be heard, including conflicting
judgments on the matter under consideration;
(b) the decision sought on appeal does
not fall within the ambit of
section 16
(2) (a); and
(c) where the decision sought to be
appealed does not dispose of all the issues in the case, the appeal
would lead to a just and
prompt resolution of the real issues between
the parties.leave to appeal may only be given where the judge
concerned is of the
opinion that an appeal would have a reasonable
prospect of success or that there is some other compelling reason why
the appeal
should be heard.”
[5] The provisions of
s 17(1)(b)
are
not applicable. The decision sought on appeal does not fall within
the ambit of
s 16
(2) (a). This sub-section provides for the case
where the issues are of such a nature that the decision sought on
appeal will
have no practical effect or result. Nor are the
provisions of
s 17(1)(c)
applicable in casu because the the decision
sought to be appealed is final and does dispose of all the issues in
this matter.
[6] The first respondent has raised two
grounds of appeal. Mr Moosa who together with Mr Edy appeared for
the first respondent
informed me that the first respondent would not
persist with the second ground of appeal relating to costs.
[7] Thus, the first respondent’s
sole ground of appeal concerns the narrow issue of whether - despite
the applicant’s
withdrawal at the outset of the hearing before
me on 20th April 2015 of the interdictory relief that it had claimed
- because more
than merely spoliatory relief had been initially
claimed by the applicant meant that the first respondent was entitled
to contest
the merits of the applicant’s possession of the
premises concerned. In other words, Mr Moosa’s argument was
that when
the first respondent claimed the initial interdictory
relief this gave rise to the qualification to the general rule of the
mandament
van spolie that the restoration of unlawfully dispossessed
property will be awarded ante omnia before any consideration of the
merits. This qualification is that if an applicant goes further than
only claiming spoliatory relief, he in effect forces an investigation
of the issues relevant to the further relief he claims.
[8] The issue that was argued and which
arose for decision before me was whether or not the applicant’s
withdrawal of the
interdictory relief, before the argument commenced
and this interdictory relief was not persisted with by the applicant,
meant
that the matter fell squarely within the parameters of the
mandament van spolie and that the aforementioned qualification did
not
apply.
[9] I held in para [10] of my judgment
that the qualification did not apply in these circumstances of
withdrawal and non-persistence
since the issue concerning the
interdictory relief was not before the Court and, therefore, the
merits of whether or not the applicant’s
possession was
wrongful was irrelevant. This finding was based on a passage from
Minister of Agriculture & Agricultural Development
v Segopolo
1992 (3) SA 967
(T) 971E-G where Goldstein J said 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 (my
emphasis), 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.”
[10] Mr Moosa argued that there was a
reasonable prospect on appeal that another Court may find that the
Goldstein J was wrong in
saying that by merely asking for more than
spoliatory relief does not disqualify an applicant from invoking the
mandament van spolie
“… since our law contains no such
formalism.” He submitted that our law does indeed contain
‘such formalism’
because, so his argument continued, once
more than spoliatory relief was claimed, a substantive right accrued
to the first respondent
that entitled him to contest the merits of
the applicant’s possession despite the withdrawal of this
additional relief.
Mr Moosa was unable to refer me to any authority
in support of this proposition. But he did make the following
submissions.
[11] First, Mr Moosa submitted that
Goldstein J’s statement was merely the learned judge’s
opinion of what the full
Court meant in Zinman v Miller
1956 (3) SA 8
(T) 12B when Rumpff J (as he then was) referring to Bester v
Grundlling
1917 TPD 492
, said:
“The moment an applicant asks for
the return of an article or its value he no longer claims a mandament
van spolie but is
relying on a vindicatory action.”
Mr Moosa further submitted that
Goldstein J’s statement conflicted with what Rumpff J said. I
do not think that there is
a reasonable prospect that another Court
on appeal would agree with these submissions. Literally, this
statement means that once
extra relief to spoliatory relief is
claimed, the relief is not characterized as spoliatory relief. That,
with respect, is correct.
But further than that, what Rumpff J said
cannot mean that the spoliatus is forever precluded from invoking the
mandament van
spolie.
[12] Second, in order to fortify his
first submission and to demonstrate by way of analogy that, contrary
to what Goldstein J said,
there is ‘formality’ in our law
that once additional relief to spoliatory relief was claimed by the
applicant, the
first respondent acquired an immutable accrued right
that entitled him to contest the merits of the applicant’s
possession
and this accrued right survived the applicant’s
later withdrawal of the interdictory relief. I was referred in this
regard
by Mr Moosa to the decision of the SCA in Zwelibanzi Utilities
(Pty) Ltd t/a Adams Mission Service Centre v TP Electrical
Contractors
CC (160/10)
[2011] ZASCA 33
(25 March 2011) and in
particular to para [16] where Heher JA said:
“That an amendment operates
retrospectively is a procedural consequence. It does not affect
accrued rights. So, for example,
a right already extinguished by
prescription cannot be revived by subsequent introduction of a claim
by amendment. See Cordier
v Cordier
1984 (4) SA 524C
at 533B-C,
533F-G and Churchill v Standard General Insurance Co Ltd
1977 (1) SA
506(A)
at 516G-517A. Nor can jurisdiction already vested by the
appellant’s failure to object to its absence before litis
contestatio
be rendered non-existent by subsequent amendment, as in
this case. Since the establishing of jurisdiction in this manner
gives
rise to an objective fact without the intervention of the
plaintiff in the action, the latter’s inaction in opposing the
amendment is of no consequence. Absence of jurisdiction on the ground
that the defendant was a peregrinus in the magisterial area
of Durban
was no longer a potential issue in the case once it had been so
established.”
In order to demonstrate that the first
respondent had such an accrued right in spoliation proceedings Mr
Moosa referred me to a
passage in Street Pole Ads Durban (Pty) Ltd v
Ethekwini Municipality
[2008] ZAGPHC 33
;
2008 (5) SA 290
(SCA) 295D-E at para [15]
where Cameron JA, as he then was, quoted a passage in Stocks Housing
(Cape) (Pty) Ltd v Chief Executive
Director, Department of Education
and Culture Services, and Others
1996 (4) SA 231
(C) at 244C-E and
said:
“There is a qualification,
however, if the applicant goes further and claims a substantive right
to possession, whether based
on title of ownership or on contract. In
that case 'the respondent may answer such additional claim of right
and may demonstrate,
if he can, that applicant does not have the
right to possession which it claims'.”
(My emphasis)
In other words, Mr Moosa’s
submission was that the words “the respondent may answer such
additional claim of right …”
mean that the respondent
has an accrued right to answer the applicant’s additional
claim. I do not agree. This submission
is based on a clear
misreading of the passage. In my view there no reasonable prospect
that another Court on appeal would find
otherwise. The words ‘of
right’ do not refer any accrued right of the respondent to
answer the applicant’s additional
claim. These words refer to
the applicant’s claim to ‘a substantive right to
possession’ or the applicant’s
‘additional claim of
right’. This is plain if the passage is read in context and
from what Innes J said in Stocks
Housing at 244C-E from which the
passage quoted by Cameron JA was taken:
“The qualification to the rule
that a person who has been despoiled of possession must be restored
to possession before any
dispute as to who is entitled to possession
will be investigated is that, if the applicant goes further than to
claim spoliatory
relief, and claims a substantive right to
possession, whether based upon a vindication or upon contract, then
the respondent may
answer such additional claim of right and may
demonstrate, if he can, that applicant does not have the right to
possession which
it claims. The Court will not order return of
possession of the property in such a case if respondent succeeds in
refuting the
applicant's claim of right to possession.”
(The underlined portion was quoted in
the passage supra in Street Pole Ads Durban)
[13] For the above reasons I am of the
opinion that the proposed appeal has no reasonable prospect of
success. I also am of the
opinion that there is no ‘other
compelling reason why the appeal should be heard, including
conflicting judgments on the
matter under consideration’: see
s
17(1)(a)(ii)
of the
Superior Courts Act, No. 10 of 2013
.
[14] Even if I am wrong, there is an
additional question of law that was neither argued before me nor does
it appear among the reasons
for my judgment. It concerns the nature
and ambit of interdictory relief initially claimed by the applicant
and whether this relief
gave rise to the qualification
aforementioned. This point does, however, emerge from the notice of
motion prior to its amendment
and from affidavits which, of course,
have the function of being both pleadings and evidence. It is that
the interdictory relief
initially claimed by the applicant was merely
directed at restraining the respondents from unlawfully depriving the
applicant of
possession of the premises post the restoration of
possession thereof to the applicant in terms of the spoliation order
sought.
In other words the interdict was, in the particular
circumstances of this case, merely directed at preventing the
spoliation order
being rendered nugatory. In Vena v George
Municipality
1987 (4) SA 29
(C) such an interdict was granted in
addition to spoliatory relief. And on appeal the Appellate Division
- see George Municipality
v Vena
1989 (2) SA 263
(A) 275D - the order
granted also included an interdict in addition to spoliatory relief
in the following terms: 'That respondent
is interdicted and
restrained from further demolishing the said home of first applicant
when restored as aforesaid other than in
consequence of an order of
court.' It seems to me, therefore, that if either or both the
parties decided to adopt this point
on appeal, the appeal would also
not have reasonable prospects of success.
Order
[15] The following order is made:
The application for leave to appeal is
dismissed with costs, 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 O A Moosa SC (with him Mr C B Edy)
First respondent’s attorneys
: Miriam Cassim & Associates
Tel. 031-702 2786
Date of hearing : 17th June 2015
Date of judgment : 22nd June 2015