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2014
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[2014] ZAGPPHC 270
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Mdaka and Another v Msongelwa and Others (26148/14) [2014] ZAGPPHC 270 (22 April 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case Number:
26148/14
Date: 22 April 2014
Not Reportable
In the matter
between:
JOHNSON FAMANDA
MDAKA
..............................................................................................
First
Applicant
KEMPTONPARK TAXI
ASSOCIATION CONCERNED
GROUP
.....................................
Second
Applicant
and
ELIJAH
MSONGELWA
.........................................................................................................
First
Respondent
KEMPTONPARK TAXI
ASSOCIATION
.........................................................................
Second
Respondent
STATION COMMISSIONER
SAPS KEMPONPARK
…...................................................
Third
Respondent
GAUTENG TRANSPORT
REGISTRAR
...........................................................................
Fourth
Respondent
MEC PUBLIC TRANSPORT
ROADS AND
WORKS
..........................................................
Fifth
Respondent
JUDGMENT
BAM J
1.
The applicants, on an urgent basis, based on the
"mandament
van spolie",
applied
for an order to be restored occupation of a building named Keta
House. The application is opposed by the first and second
respondents.
2. Prior to 2007 the
second applicant and the second respondent were one taxi association,
known by the name of the second respondent
as cited. The association
occupied a building known as Keta House, 28 Pretoria Road, Kempton
Park. Subsequently, in 2009, according
to the applicants, the
association split in two, the one the second applicant, as cited, and
the other the second respondent, which
remained known by the name of
the original association.
3. It is alleged by
the applicants that the second respondent, in 2009, vacated the said
building and relocated to Standard Bank
Building, West Street,
Kempton Park, whilst the second applicant and its members remained in
occupation of Keta House. The second
applicant's business
administration was allegedly conducted from the said premises.
4.
The founding affidavit of the applicants was deposed to by the first
applicant who alleged that he is the chairman of the second
applicant. It is unfortunate that certain inaccuracies appear in the
founding affidavit. It however seems to be nothing more but
typing
errors. In this regard I refer to paragraphs 5.1, 6.6, 6.7, 6.8 where
the words
"second
respondent"
should
read
"second
applicant".
5. It is alleged by
the applicants that whilst members of the second applicant were in
peaceful occupation of Keta House on 13 March
2014 they were on that
day forcefully chased from the building by the second respondent's
employees who thereafter locked the doors
and chained the security
doors, effectively denying the applicants access to the building.
This is denied by the first and second
respondents.
6. Accordingly, and
not surprisingly, the first and second respondent's version differs
materially from that of the applicants.
According to the respondent's
case the second respondent has at all relevant times been in
possession of Keta House. It was however
conceded that the second
respondent's employees have relocated to another venue, referred to
as Standard Bank Building.
7.
The first and second respondents conceded that the premises was
locked up, and stated the reason for"
closing
"
the said building is
"that
it is now in a dilapidated stage and homeless people were trying to
take over the occupation of the building."
8. The first and
second respondents further averred that it was the duty of the second
respondent to renovate the building and that
the second respondent
has, on numerous occasions, been fined by the Municipality due to the
poor condition the building was in.
9.
In response to the applicant's allegation that the building was
locked without their consent, the first and second respondents
stated
the following: "
The
executive committee of the Second Respondent does not have to obtain
the permission of the First Applicant for it to exercise
its duties
in terms of the Second Respondent's constitution. It is the duty of
Second Respondent to renovate the said building
instead of leaving it
unattended because it was starting to create a health hazard to the
surrounding neighbours."
10. The applicant's
version that the members of the applicant actually occupied Keta
House at the relevant time was elaborated upon
in that it was further
stated by the applicants that they were deprived from getting access
to their safe where the association's
money is kept and that they
were unable to pay the second applicant's 25 employees monthly
salaries. The two applicants further
complained that their seeking
assistance from the police, the third respondent, was of no avail.
11.
The applicants named 5 members of the second respondent who removed
the staff and members of the second applicant from Keta
house. In
regards to the named 5 persons the two respondents replied that they
"are the ones
who are ensuring that the process of renovating the building must
proceed without any hindrance."
This
answer is clearly confirmation of the allegation that the first and
second respondents actually took measures to ensure that
nobody else
should occupy the premises in question.
12.
The first and second respondents are clearly not prepared to
acknowledge the existence of the second applicant. It was
specifically
stated in the answering affidavit that the second
applicant "
does
not exist
"
. This was again emphasized by Mr Mashaba, appearing on behalf of the
first and second respondents, during argument. This
version of the
two respondents creates the impression that it is the said two
respondents' attitude that the applicants do not
have any rights at
all. It seems to be totally unfounded and actually disrespectful of
the applicants. The animosity between the
two taxi associations is
palpable and deadly violence seems to be a real concern.
13. After having
considered all relevant facts and issues, as well as the arguments of
counsel, and I have no hesitation to find
that the applicant's
version is true. The members of the second respondent took the law
into their own hands. The said two respondents'
defence is rejected.
14.
The applicants were in fact spoliated. See
Street
Pole Ads Durban (Pty) Ltd v Etekweni Municipality
[2008]
All SA 182
SCA. The first and second respondents were not entitled to
remove the applicants from the building neither were they entitled to
lock them out without due process of law.
15. The averments
made by the two respondents that Keta House is being renovated and
that it became dangerous to occupy, is a matter
of concern. However,
on the probabilities it appears that Keta House can still be occupied
by the applicants.
16. In my view the
applicants are clearly entitled to the relief sought on an urgent
basis.
17. I therefore make
the following order:
1. The first and
second respondents are ordered to restore the applicants' possession
and occupation of the property known as Keta
House, 28 Pretoria Road,
Kempton Park, not later than 15h00 on 22 April 2014.
2. In the event of
the first and second respondents failing to comply with this order
the local Sheriff is authorized to remove
the chains and locks to the
gates and doors leading to the said property.
3. The first and
second respondents are ordered to pay the applicants' costs, jointly
and severally, the one paying the other to
be absolved, on the
attorney and client scale.
A J BAM
JUDGE OF THE HIGH
COURT
22 APRIL 2014