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[2014] ZAGPPHC 442
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Moller v Gasant and Others (35724/13) [2014] ZAGPPHC 442 (30 May 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE NO: 35724/13
HEARD ON 6 March
2014
DATE: 30 MAY 2014
REPORTABLE
In the matter
between
HEINRICH
MOLLER
................................................................................................................
APPLICANT
And
MN
GASANT
.....................................................................................................................
1
st
RESPONDENT
(In his capacity as
Sheriff Pretoria South - East)
BENJAMIN SWANA
ROKGOTHO)
..............................................................................
2
nd
RESPONDENT
(in his capacity as
Deputy Sheriff Pretoria South-East)
THE ILLEGAL
OCCUPANTS OF 2 TIPU
PLACE,
....................................................
3
rd
RESPONDENT
MORELETA PARK,
EXT 52, PRETORIA, GAUTENG
ELIZABETH
LESENTESE
NKWANA
..........................................................................
4
th
RESPONDENT
URSULA NKWANA
…....................................................................................................
5
th
RESPONDENT
JUDGMENT
MALI
AJ:
[1] This is an
application for a final order in respect of spoliation to restore
possession of the Applicant’s goods that
had been illegally
removed from the residence situated at 2 Tipu Place, Moreleta Park,
Extension 52 Pretoria (“the property”)
The interim order
for Mandament van Spolie was granted by this honourable court on 7
June 2013 against the Respondents.
[2] The first and
second Respondent are opposing the application. The third to fifth
Respondents are not opposing the application
as they could not be
found to effect service upon them.
PARTIES
[3] The Applicant is
the registered owner of the property where the Applicant’s
goods have been dispossessed.
[4] The third,
fourth and fifth Respondents were occupants of the property until
they were evicted through the order granted by
this Honourable court
on 3 June 2013.
[4] The third,
fourth and fifth Respondents were occupants of the property until
they were evicted through the order granted by
this Honourable court
on 3 June 2013.
[5] The first and
the second Respondents are sheriff and deputy sheriff of the Pretoria
South East respectively. They were instructed
by the applicant to
attend to the eviction of the third, fourth and fifth respondents.
APPLICANT’S
CASE
[6] On 3 June 2013 a
final eviction order was granted by this honourable Court for the
eviction of third, fourth and fifth respondents.
On 4 June 2013 the
Applicant instructed the first and second Respondents to carry out
the warrant of execution.
[7] On 5 June 2013
whilst the second Respondent was still carrying on with the execution
order, he allowed the third, fourth and
fifth Respondents access to
the property and they removed and/or damaged the following:
7.1. Light fittings
and bulbs;
7.2. Electrical plug
fittings;
7.3. Shower doors by
breaking it out of its brackets and they;
7.4. Ruined and
removed kitchen and other cupboards;
7.5. Sprayed and/ or
cluttered and/or threw kitchen cupboards, tiled floors, the bath,
walls and toilets with wet paint.
[8] On 5 June 2013,
the second Respondent handed the keys to Barend Kruger carried out
and when the Respondents removed and damaged
the applicant’s
aforementioned goods. Kruger observed the second, third, fourth and
fifth Respondents loading the goods on
a truck and left off with the
goods.
[9] The applicant
launched an urgent application for spoliation and the interim order
was granted on 7 June 2013.
[10] The Applicant
submitted that he was in possession of the property when the first
and second Respondent as the duly mandated
and authorised agents of
the applicant exercised physical control and possession of the
property on his behalf. The Applicant’s
possession of the
property was further supported by the presence of Kruger the duly
authorised agent of the Applicant who exercised
physical control and
possession over the property from 4 June to 5 June 2013.
[11] The applicant
stated that he was deprived of the items which are fixtures of the
immovable property by the second, third, fourth
and fifth Respondents
a fact which is confirmed by the second respondent.
RESPONDENTS’
CASE
[12] The second
Respondent in its opposing affidavit averred that the property in
question was bought at an auction held by the
first Respondent
approximately four years ago. The second Respondent successfully bid
on the property at the auction, but caused
the property to be
registered in the name of the Applicant. It four years ago. The
second Respondent successfully bid on the property
at the auction,
but caused the property to be registered in the name of the
Applicant. It seems there is an on-going dispute between
the parties
since then.
[13] The first and
second Respondents stated that the Applicant was not in possession of
the property as the applicant did not exercise
physical control of
the property. The Respondents do not deny that the goods were removed
from the property; however they challenge
the physical control by the
Applicant. They allege that the third, fourth and fifth Respondents
were in physical control of the
property for four years since the
Applicant bought the property.
[14] The first and
second Respondents confirmed that the second, third, fourth and fifth
Respondents removed the aforementioned
property and or goods. They
further stated that the removal of the goods does not amount to
unlawful deprivation of possession
by the Respondents as the
Applicant was not in physical control of the property
THE LAW
[15]
LAW OF SOUTH AFRICA
volume
11 ( First reissue 1998 at paragraph 338) states as follows:
“
Spoliation
is any wrongful deprivation of another’ right of possession,
whether in regard to movable or immovable property
or a legal right,
but it is not available where a party seeks to enforce a contractual
obligation, specifically so since the respondent
would in those
circumstances be precluded from adducing evidence to disprove the
existence of the obligation. An applicant for
a spoliation order is
not required to prove, as part of his cause of action, that the
spoliator had acquired possession. The remedy
is available again
co-spoliators as joint wrong doers, even if they merely fulfilled a
supportive role”.
[16]
In
AMLER’S
PRECEDENTS OF PLEADINGS
(5
th
Edition) by
HARMS
JA
at
page 371 it is stated:
“
Possession
:
The
plaintiff must allege and prove that he was in peaceful and
undisturbed possession of the property. In
KGOSANA
V OTTO
1991 (2) SA 113
(W)
Dispossession
:
The
plaintiff must allege and prove that he was unlawfully deprived by
the defendant of his possession”.
[17]
YEKO V QANA
1973 (4) SA 735
at
739 G stated:
“
The
fundamental principle of the remedy is that no one is allowed to take
the law into his own hand. 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”.
[18]
In
KNOX AND ANOTHER
V SECOND LIFESTYLE PROPERTIES (PTY) LTD AND ANOTHER
(
CA 28/2011) [2012] ZAGPPHC page 223, Mothle J stated:
“
It
seems to me that the remedy provided by spoliation permits very
limited defences. The only possible defences should be In the
form of
a response to the grounds stated above, namely that the applicant was
not in peaceful and undisturbed possession alternatively
that the
deprivation was lawful”
EVALUATION
[19] The Applicant
had clearly shown his intention to be in possession of the property
by obtaining eviction order, by having the
first and second
Respondents with the applicant’ keys at the Applicant’s
premises and furthermore by placing Kruger
in the property. Kruger
was also in possession of the Applicant’s keys. The first and
the second Respondents do not dispute
that they were at the
Applicant’s property at the instance of the Applicant and that
Kruger was physically placed in the
premised by the Applicant and by
so doing the Applicant meets the requirement of actual possession as
opposed to the right to possession.
For the foregoing I am satisfied
that applicant was in peaceful and undisturbed possession of the
property.
[20] It is not in
dispute that the Applicant’s goods were removed by the second
third, fourth and fifth Respondents. I am
satisfied that the
Applicant indeed proved that he was unlawfully dispossessed of its
property by the Respondents.
[21] The first and
the second Respondents allege that the applicant was not in physical
control of the property. The Respondents
submitted that the Applicant
only came in possession of the property once the keys were handed to
him on 5 June 2013. I disagree
with this submission for the reasons
stated above, namely that the second Respondent on the instruction of
the applicant was in
possession of the Applicant’s keys (a
practical way of being in physical control of the property).
[22] On 5 June 2013
the second Respondent later handed the keys to Kruger a
representative of the applicant who was on the premises
at all
material times. Definitely the Applicant’s representatives
including the second respondent were not expected to carry
the house
including the dispossessed contents in their hands to prove any form
of control including physical control.
[23] Furthermore the
law as stated above does not make much of the physical control but is
very emphatic on the two requirements;
namely peaceful and
undisturbed possession and dispossession. Therefore the defence
tendered by the first and second Respondents
falls to be rejected as
not amounting to a valid defence against the Applicant’s
allegations of possession and dispossession.
[24] The Applicant
has met the two requisites to found a claim for an order for
restitution of possession. The Applicant had proved
possession and
unlawful dispossession by the first, second, third, fourth and fifth
Respondents.
[25] In the result,
I make the following order:
1. The Respondents
are ordered to immediately restore possession of the Applicant’s
property to its original location and
position and in particular to
restore possession and fitment of all electrical lights and fittings
, shower and shower doors, stove,
kitchen cupboards as well as any
other fixtures that have been removed from 2 Tipu Place, Moreleta
Park, Extension 52 , Pretoria;
2. The Respondents
are ordered jointly and severally to pay the costs of this
application.
3. This order as
granted herein to be served on the Respondents, or any of the
Respondents that can be found, either by fax, email,
or service by a
representative of the Applicant’s attorneys of record.
NP MALI
ACTING JUDGE OF
THE HIGH COURT
APPEARANCES
FOR THE APPLICANT:
ADV C Zietsman
INSTRUCTED BY :
Jarvis Jacobs Raubenheimer Incorporated
F
:
OR THE
RESPONDENT: ADV R Deminey
INSTRUCTED BY: Fuchs
Roux Incorporated
DATE OF HEARING: 6
March 2014