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[2014] ZAGPPHC 478
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Lobelo and Another v Kukama and Another (71429/2013) [2014] ZAGPPHC 478 (21 May 2014)
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Certain
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE NO:
71429/2013
DATE: 21 MAY 2014
NOT REPORTABLE
NOT OF INTEREST
TO OTHER JUDGES
In the matter
between:
LOBELO,
KAGISO
LAMBERT
...............................................................................................
First
Applicant
DEPHUKA
CONSULTING (PTY)
LTD
..............................................................................
Second
Applicant
and
KUKAMA,
AOBAKWE REGINALD
KOKETSO
..............................................................
First
Respondent
PEOLWANE
PROPERTIES (PTY)
LTD
.........................................................................
Second
Respondent
JUDGMENT
THOBANE, AJ
[1] The applicants
have launched these proceedings seeking an order directing the first
and the second respondent to:
1.1. Immediately
restore to the applicants possession of the following property;
portion 103 (a portion of Portion 4) of the farm
D[....] 3[...],
1.2. Pay the costs
of the application jointly and severally.
[2] The respondents
on their part opposed the application and on the same papers launched
a conditional counter application. Such
application was conditional
on the Court finding that the first and the second applicants were
spoliated. The order sought in that
event was the following:
2.1. Evicting the
first and the second applicants from the premises,
2.2. Interdicting
the second applicant from carrying on any business on the premises,
2.3. Interdicting
the first and the second applicant from accessing the premises
without the written authority of the first respondent,
2.4. Directing the
first and the second applicant to pay the costs of the application on
a scale as between attorney and own client.
[3] Initially this
application was brought before the urgent Court. The application was
on the 3rd December 2013 struck off the
roll for want of urgency,
with costs.
[4] The following
facts are common cause:
4.1. Prior November
2012, the first applicant had access to the premises,
4.2. The second
respondent is the registered title holder of the premises,
4.3. On the 12th
April 2012 the first applicant was declared a delinquent director in
terms of section 162 of the Companies Act,
Act 71 of 2008,
4.4. Prior to the
order of delinquency, the first respondent as well as the first
applicant were business partners and had joint
control over the
second respondent as well as various other entities through which
they owned immovable assets.
[5] The crisp issues
for determination are:
5.1. Whether the
applicants were in peaceful and undisturbed possession of the
property known as portion 3 (a portion of portion
4) of the farm
D[...] 3[...];
5.2. Whether the
respondents deprived the applicants of the possession forcibly or
wrongfully against their will.
5.3. Whether in the
event of a finding that the applicants were spoliated, a case has
been made out for an order:
5.3.1. Evicting the
first and the second applicant from the premises,
5.3.2. Interdicting
the second applicant from carrying on any business on the premises,
5.3.3. Interdicting
both applicants from accessing the premises without the written
authority of the first respondent,
5.3.4. Directing the
first and the second applicants to pay the costs of the second
respondent on a scale as between attorney and
own client.
[6] According to the
applicants:
6.1. An agreement
was entered into on the 28th November 2012 in terms of which the
first applicant was to take free transfer of
the property of which he
alleges he has been spoliated,
6.2. On an
undisclosed date, he gave consent to the second applicant to occupy
the premises and to conduct business thereon. This,
he alleges, was
with the full knowledge of the respondents,
6.3. On the 3rd of
October 2013 he was served by the sheriff with a letter ejecting him
from the premises. The letter called on
him to vacate the premises by
the close of business on the 7th October 2013 and also directed him
to return the keys in his possession,
6.4. On the 20th
November 2013 he was telephoned by one of the employees of the second
applicant and was informed that armed guards
were placed at the
entrance of the premises, whereupon he telephoned the police and
spoke to a police officer, whose name he could
not recall who
confirmed to him, upon being asked, that there was an eviction order.
I pause to indicate that although there is
nothing evidencing the
telephone discussion from the police or the second respondent's
employee, nothing turns on it in view of
the admission by the first
respondent that indeed such security detail was procured.
6.5. On the
instruction of the first and/or the second respondent, the locks to
the premises were changed and that this rendered
the remote controls
inoperative.
6.6. He visited the
police station and spoke to an officer in charge, who informed him
that the first respondent had informed him
that an eviction order had
been obtained. The details of this senior police officer are not
known. The first applicant informed
the officer that he was not aware
of the existence of that court order,
6.7. What followed
thereafter was an exchange of telephone calls and letters between the
legal representatives.
[7] The case for the
applicants is that the letter referred to in 6.3 above that was
served by the sheriff, coupled with the conduct
of placing armed
guards at the entrance to the premises, plus the changing of locks as
well as the exchange of letters between
the legal representatives,
amount to spoliation.
[8] The respondents
contend as follows:
8.1. The application
by the applicants is vexatious and was launched by the first
applicant to get even with the first respondent,
8.2. On the 12th
April 2012 an order of delinquency was granted against the first
applicant by Tshabalala, J, in the South Gauteng
High Court. That
although the first applicant challenged such declaration in the
various courts, he did not succeed and he remains
liable for cost
orders granted against him in those matters,
8.3. That the
truthfulness and the correctness of the information contained in the
first applicant's affidavit is placed in dispute.
That the accuracy
of certain annexures thereto is equally placed in dispute,
8.4. That between
the 28th November 2013 and the date of the application, the first
applicant did not reside at the business premises,
8.5. That at all
times the second respondent had possession of the premises.
That prior the
delinquency application both the first applicant and the first
respondent had control over the second respondent,
8.6. That a meeting
was held on the 22nd November 2012 to discuss settlement terms. The
terms of such settlement were captured in
a letter dated the 23rd
November 2012. The first applicant however failed to sign such an
agreement.
8.7. That the first
applicant by virtue of the order of delinquency, had no power to
dispose of assets and/or enter into agreements
concerning the second
respondent, alternatively, that he could not enter into any agreement
even if he were a director, without
the consent of his co-director,
the first respondent,
8.8. That the first
applicant has failed to disclose the details of the "lease
agreement" between him and the second applicant,
8.9. That the
existence of a brick manufacturing company on the premises is
disputed, however if it did exist, it was conducting
an illegal
operation in violation of municipal by-laws,
8.10.That the keys
that the first applicant possessed, he possessed in his
capacity as a
director and ought to have been returned to the second respondent
after the delinquency order,
8.11.That the gates
to the premisses were broken and that upon their repair, new remote
controls were issued. However, no locks
were changed,
8.12.That two
employees of the second applicant confirm the presence of security
detail on the premises but deny that they have
been prevented from
accessing the premises or that the locks were changed.
[9] The respondents
further contend with regard to the conditional counter application
that;
9.1. The second
respondent is the owner of the property,
9.2. Neither the
first nor the second applicant has a lawful right or entitlement to
possession of the premises and that any business
being conducted
thereon is unlawful,
9.3. The consent
given by the first applicant to the second applicant to rent the
premises is null and void,
9.4. The occupation
of the premises by the first and the second applicants is prejudicial
to the respondents particularly with regard
to insurance of the
property.
[10] The applicant
replied to the respondents' papers effectively restating their case.
PEACEFUL AND UNDISTURBED POSSESSION
[11] The first
applicant contends that he was in peaceful and undisturbed possession
and that while he enjoyed such possession,
he gave consent to the
second applicant to use the property or a portion thereof.
[12] The respondents
deny the possession and submit that the first applicant was not
entitled or authorized to deal with the assets
of the second
respondent, be it as an individual, as alleged by him, or as director
as he had been declared a delinquent director
as at the time of the
giving of such consent.
[13] To determine
whether the first applicant did in fact possess the premises, I have
looked at the following:
13.1.
The fact that the parties are in agreement that prior November 2012,
the first applicant had
access
(my
emphasis), to the premises. None of the parties deal in some detail
with the nature and extent of such access (see page 8 paragraph
42
and page 55 paragraph 52). One must therefore accept thatsince we are
dealing with immovable property, we are dealing with entering
and
exiting of the premises . On the version of the first respondent, the
applicant did have access to the premises.
13.2. Nowhere in the
papers is it contended that November 2012 impacted on the access
referred to above. That the right of such
access ceased on that day.
The closest indicator one can get to, is to be found in page 55
paragraph 53, where the first respondent
states that:
"At
the time of institution of this application, LOBELO neither resided
nor carried on business from the premises. Indeed between
28th
November 2012 to date he never resided or carried on business from
the premises
".
13.3.
The legal representative submitted on behalf of the respondents
during argument that the significance of November 2012 is
that it is
the day of the granting of the order of delinquency. His view was
that the right of the first applicant to access, and
therefore
possess the premises, ceased on that day and that possession beyond
that day was unlawful. It is trite that the court
does not, in these
proceedings, concern itself with the lawfulness of the applicant's
possession nor even with the question of
ownership. What the
respondents legal representative is asking me to do, is to consider
that the possession of the premises by
the first applicant ceased on
the day on which the first applicant was declared a delinquent
director. That any possession beyond
that date was unlawful. In the
Ivanov v North West
Gambling Board 2012 (6) 67 (SCA),
the
matter of
Schoeman
v Chairperson of the North West Gambling Board
[2005] ZANWHC 81
,
came
into play. In that matter the applicant possessed gambling machines
albeit unlawfully and without a license, in clear contravention
of
the National Gambling Act, which prohibited such possession. Although
the court was of the view that lawful possession was a
factor to be
considered, the full bench disagreed. In dismissing such an approach,
Mhlantla JA,
stated
the following:
"In
my view the submission on behaif of the respondents is devoid of
merit. The historic 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."
13.4. He further
went on to say:
In
Kelly v Wright, Kelly v Kok
1948 (3) SA 522
(A) at
528 -530
the lessor had
leased to two joint lessees a flat without first obtaining the
consent of the controller of manpower as required
by War Measure 74
of 1945. Rent was paid monthly. Wright had been given notice to
vacate the flat forthwith whilst Kok was given
some six weeks notice.
The lessor applied in the magistrate’s court for the ejectment
of the lessees. The application was
dismissed on the basis that
insufficient notice of ejectment was given.
The
effect of the court’s decision was that the lessees who had
committed an offence remained in possession. The lessor appealed
against that decision and submitted that he would be committing an
offence if the court allowed the lessees to remain in occupation.
In
this regard, he found support in the decision of
Gopai
v Cohen
1946 TPD 283.
In
that matter
Neser J (Maritz and De Villiers JJ
concurring
) said at
288:
I am of the
opinion, moreover, that there is a further ground for granting an
order of ejectment. Every day appellant resides on
or occupies the
property she is committing a criminal act and if respondent permits
appellant to remain on the property she commits
a criminal act. It
may well be that respondent cannot be held to be permitting the
appellant to occupy the property if the Court
rules that she is not
entitled to an order of ejectment against the appellant, but if the
Court does so rule the Court is in effect
permitting appellant to
remain on the property and by so doing to continue committing
criminal acts. It would clearly be against
public policy to
countenance a breach of the law which is declared by statute to
constitute criminal conduct. ’
Tindall
ACJ
held that the
approach of the court was in conflict with the decision in
Jajbhay
v Cassim
1939 AD 537
and
overruled it. He went on to say at
529:
‘
I
am unable to accept as correct the alternative ground given in
Gopal
v Cohen,
for
ejecting the lessee in that case. It does not seem to me that by
refusing the decree of ejectment the Court would be permitting
or
countenancing the commission of an offence by the lessee or would be
acting against the requirements of public policy. In my
opinion the
requirements of public policy in a case like
Gopal
v Cohen
would
be satisfied by enforcing the criminal law
'
Turning
to the case before him
,
Tindall ACJ
said
at
530:
"The
refusal to eject the lessees can hardly prejudice the lessor in
respect of prosecution; she apparently was liable to prosecution
in
any event and if she should be prosecuted it is not likely, even if
she be legally liable to further prosecution, that she would
thereafter be prosecuted a second time, seeing that she has taken
legal steps to attempt to eject the lessees
.
As for the lessees
they also apparently are liable to prosecution. Assuming against them
that as long as they remain in occupation
they will be liable to
punishment as for a continuous offence, it cannot rightly be said
that the Court, by refusing to eject them,
will be permitting or
countenancing the commission of an offence by them. It does not seem
to me that considerations of public
policy demand intervention by a
civil court; such considerations will be satisfied by proceedings in
a criminal court."
13.5.
The access or the right of access was exercised by the first
applicant
inter
alia
by
way of the keys or remote controls that he possessed. There is
therefore no doubt that the first applicant possessed the premises,
in view of the submissions advanced, dealing with the declaration of
delinquency and the unlawful possession, from the point of
view of
the legal representative of the first and second respondents.
13.6. The critical
question therefore is whether access, such the one admitted by the
first respondent and enjoyed by the first
applicant, amounts to
possession. Put differently, whether on the facts of this case, the
applicants exercised control, and therefore
possession over the
immovable property.
13.7. Mr Silver
conceded in argument, that the second applicant both accessed and
possessed the premises. In so far as the second
applicant is
concerned, there is no doubt that the first leg of the requirement,
i.e. peaceful and undisturbed possession has been
established.
[14]
The last comments to be considered on this aspect are those of
Van
Blerk JA
in
Yeko v Qana
outlining
the requisites for the remedy he stated:
"The
very essence of the remedy against spoliation is that the possession
enjoyed by the party who asks for the spoliation
order must be
established. As has so often been said by our Courts the possession
which must be proved is not possession in the
juridical sense; it may
be enough if the holding by the applicant
was
with the intention
of securing some benefit for himself. In order to obtain a spoliation
order the onus is on the applicant to prove
the required possession
,
and that he was
unlawfully deprived of such possession. As the appellant admits that
he locked the building it was only the possession
that respondent was
required to establish... For, as Voet, 41.2.16, says, the injustice
of the possession of the person despoiled
is irrelevant as he is
entitled to a spoliation order even if he is a thief or a robber. The
fundamental principle of the remedy
is that no one is allowed to take
the law into his own hands. All that the spoliatus has to prove, is
possession of a kind which
warrants the protection accorded by the
remedy, and that he was unlawfully ousted
."
[15] Considering the
facts of this case and in light of case law quoted above, I am
satisfied that the first applicant was indeed
in peaceful and
undisturbed possession of the premises. That, coupled with the
concession of possession made by the legal representative
of the
respondents with specific reference to the possession enjoyed by the
second applicant, means that the requirement of peaceful
and
undisturbed possession of both applicants has been established.
DEPRIVATION OF
POSSESSION
[16] The next and
last issue to consider is whether the applicants were unlawfully
deprived of such possession. It was argued on
behalf of the
applicants by Ms Vermaak-Hay, that the following are acts evidencing
spoliation:
16.1. the exchange
of letters,
16.2. the placement
of guards on the premises,
16.3. the changing
of locks of the premises.
[17]
In their application the applicants give some background of what they
believe to be spoliation. It began with service of a
letter on the
3rd October 2013. The letter titled "Letter of Ejectment",
stated
inter alia,
"Peolwane therefore gives you notice of ejectment from the
premises and we kindly request that the premises be
vacated by not
later than close of business, 07 October 2013, if it is still being
occupied by yourself (or your staff)".
It
went on to say, "
kindly
have the keys returned to security at the offices of Peolwane
Properties (PTY) Ltd situate at Holding 30, Zinnia Road
,
Glenferness,
Midrand, 1685
"
The first applicant ignored this letter. The letter, according to the
applicants' legal representative, was followed by the
placement of
guards at the premises, with the assistance of the SAPS. The first
applicant, endeavored to confirm the existence
of an order of
eviction by going to the police station. He knew that there was no
order of eviction and couldn't be provided any
by the police. The
locks at the premises were on the instruction of the respondents,
changed, so he submitted, and this rendered
the remote controls
inoperative. In between all this there were telephone calls and
letters being exchanged between the parties
through their legal
representatives.
[18] I can not agree
with the submission that the exchange of letters, amount to
spoliation. Especially in light of the fact that
the first applicant,
(page 11, paragraph 5.2), indicates that he simply ignored the
initial letter purporting to "eject"
him from the premises.
The letter was served on him by the sheriff on the 3rd October 2013.
On the first applicants version this
letter can be excluded as having
"spoliated" him. On his own version, nothing happened
between the date of receipt of
such a letter and the 20th November
2013, when guards were posted at the entrance of the premises.
[19] The first
applicant knew that only a court order could have evicted him from
the premises. He also knew that there existed
no such order, and he
told the police that much.
[20] The respondents
agree that there was placement of security guard on the entrance of
the premises. This means that the placement
of guards is common
cause. What is in dispute however is the reason for such placement.
The applicants believe that they were placed
there for deprivation of
possession of the premises. On the other hand the respondents submit
that the assets of the company were
under threat and as a result it
became necessary to procure services of security guards. Nowhere on
the application is there proof
that the applicants were deprived
possession by the security guards.
[21]
The changing of the locks was vehemently disputed by the respondent.
The applicants submitted that employees of the second
respondent
were, through the changing of locks, effectively evicted from the
premises. Two employees of the second applicant, deposed
affidavits
where they disputed this. They indicated that they had access to the
premises and also access to their tools and stock.
Their affidavits
coupled with the concession by the first applicant, that the
employees,
"....are
afforded the right to access their houses”,
(pg
186 para 26.5), is a clear indication that there was no deprivation
of possession.
[22]
An applicant in order to succeed, must prove facts necessary to
justify a final order. It is not sufficient to merely make
out a
prima facie
case.
Further, the applicant must satisfy the court on the admitted or
undisputed facts that the property allegedly spoliated was
in his
possession and that the property was taken from him forcibly or
wrongfully.
YEKO V
QANA1973 (3) SA 735 (A).
[23] On the admitted
or undisputed facts, I can not find that the applicants were
spoliated.
[24] The
counter-application is conditional on the finding that the applicants
were spoliated. While I have found that the applicants
were in
peaceful and undisturbed possession, I have found that the applicants
were not spoliated. The counter-application therefore
does not come
into play.
COSTS
[26] I am of the
view that costs must follow the results.
[27] In the premises
I make the following order:
1. The application
is dismissed,
2. The applicants to
pay the costs jointly and severally.
S.A. THOBANE, AJ