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[2013] ZAGPPHC 299
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Mtetwa and Another v Sekaledi (66060/11) [2013] ZAGPPHC 299 (17 October 2013)
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IN
THE HIGH COURT OF SOUTH AFRICA (NORTH GAUTENG HIGH COURT, PRETORIA)
CASE
NO. 66060/11
DATE:17/10/2013
In
the matter between:
MTETWA
LEBOHANG WILLIAM FIRST APPLICANT
(----------------
)
MTETWA:
DIEKETSENG MIRRIAM SECOND APPLICANT
(….....)
and
SEKALEDI
TUMO BOURMAN FIRST RESPONDENT
( …..)
DIPALE:
MPHO DOREEN SECOND RESPONDENT
(….. )
JUDGMENT
HASSIM
A AJ
1.
The applicants are the owners of and reside in the property at Stand
11965 Sebokeng Unit 7. The respondents reside at stand 11966
Sebokeng, Unit 7. The essence of the dispute is where the boundary of
the respondents’ property appropriately lies. The respondent
erected a wall that, according to the applicants, encroach on the
applicants’ land. The applicants seek relief restoring
the
encroached-upon land to their possession.
2.
The first applicant claims that he has been residing on his property
since 1969 when he purchased the property. During this time,
he says,
and at least since 1980 when he purchased a motor vehicle, he has
been using the lane between his property and the respondents’
as his own. The first applicant attached an aerial diagram
distinguishing the disputed portion of land as ABCD. In addition the
first applicant installed a driveway gate at the entrance to the
lane. The gate has since been obstructed by the erection by the
respondent of a new boundary wall. A picture of the driveway gate is
attached to the applicant’s affidavit.
3.
The first app claims that he has acquired ownership of this portion
of land (marked ABCD) through prescription because he has
used the
land for more than 30 years. The respondents deny the averments of
the first applicant in relation to the uninterrupted
possession of
the disputed land for 30 years.
4.
The dispute that has arisen with the respondents is due to their
erection of a wall, in about 2011, between the two properties
that
has dispossessed the applicants of the use of the driveway. The
result is that the first applicant is unable to remove his
vehicle
from his property.
5.
Much of the affidavit of the respondents is directed at showing that
the first applicant did not acquire a right of ownership
through
prescription. However, this misses the point of the application. The
application is for a spoliation order restoring the
possession of the
lane to the first applicant. While the first applicant makes
averments as to his ownership, he does not seek
a declaration of
rights in this regard.
6.
In order to succeed the applicant is required to prove, on a balance
of probabilities, that he was in possession and that the
respondents
unlawfully deprived him of possession. The applicant is not required
to prove the lawfulnesss of his possession, but
only the fact of his
possession. [Nienaberv Stuckey
1946 AD 1049
at 1053],
7.
The purpose of the mandament van spolie is to prevent people from
taking the law into their own hands. " A person who asserts
that
or she has a real right to a particular thing which is in another’s
possession should take recourse to a court of law
and not resort to
self-help.” [ See Silberberg, Law of Property, 288].
8.
The written argument for the respondents consists of two paragraphs.
The first is to submit that the local municipality should
have been
joined to the proceedings. The second is a submission challenging the
lawfulness of the possession of the disputed property
by the first
applicant.
9.
Immediately prior to the hearing, counsel for the respondents made
available to the court supplementary heads of argument in
which
counsel submitted that the deprivation of possession was not unlawful
because the respondents acted in terms of the National
Building
Regulations and Building Standards Act 103 of 1977. No specific
provision was identified upon which the respondents relied.
However,
the thrust of the argument is that the respondents obtained
permission from the Emfuleni Local Municipality to effect
improvements to their property and that the boundary of the property
was ascertained by a land surveyor. I will return to this
shortly.
Possession
of land ABCD
10.The
respondents have sought to challenge the lawfulness of the possession
of the disputed portion of land. They deny that the
first applicant
acquired a right of ownership over that land in terms of
section 1
of
the
Prescription Act 68 of 1969
. That need not detain this court.
There may well be a contention between the parties as to the
applicants’ rights but that
is not what is before this court in
this application. It may have to be resolved in future litigation,
not these proceedings. [See
Stocks Housing v Department of Education
and Culture Services
1996 (4) SA 231
(C) at 239 H-J]
11.
It is common cause that the applicants were in possession of ABCD
when the respondents began to move the original wall and replace
it
with a new wall. The element of possession is therefore established.
Unlawful
dispossession
12.With
regard to the requirement of unlawful dispossession, Rose-lnnes J
held the following in Stocks Housing:
“
The
element of the unlawfulness of the dispossession which must be shown
in order to claim a spoliation order relates to the manner
in which
the dispossession took place, not to the alleged title or right of
the spoliator to claim possession. The cardinal enquiry
is whether
the person in possession was deprived thereof without his
acquiescence and consent. Spoliation may take place in numerous
unlawful ways. It may be unlawful because it was by force, or by
threat of force, or by stealth, deceit, or theft, but in all cases
spoliation is unlawful when the dispossession is without the consent
of the person deprived of the possession, since consent to
the giving
up of possession of property, if the consent is genuinely and freely
given, negates the unlawfulness of the dispossession.
The
allegations, therefore that the applicant was in default and in
breach of the building contract, that respondents were entitled
to
cancel the contract and did so, and that respondents were entitled in
terms of the contract to demand that applicant vacate
the site, do
not serve as a defence to the claim for a spoliation order, and do
not justify respondents’ depriving applicant
of possession of
the building site without applicant’s consent and without
proceeding lawfully against applicant for an ejectment
order from the
site and not by resorting to self help to obtain possession of the
site. “
[At
240B-E]
13.lt
was clear to the respondents that the boundary line between their
property and the applicants’ was in dispute. When
the
respondents began to remove the then existing wall between the
properties, the first applicant immediately sought legal assistance.
14.On
10 December 2010, his attorneys wrote to the respondents confirming
that they act on behalf of the first applicant and that
they have
been using the passage between the two properties as a driveway for
the past 30 years. The last paragraph reads”
If you, in any
way, disturb our client from using the channel for his right of way
we will have no other option but to bring a
Supreme Court application
against you to stop you from doing so...”
15.On
15 December 2012, the first respondent replied stating that he had
been granted permission to build a wall by the relevant
authorities.
He also stated: - "With due respect Sir/Madam, I will appreciate
a supreme court application againgt [sic] me:
I am not a land
surveyor, town planner, building control officer....’. Whatever
the first respondent intended by this statement,
it is clear that he
was aware that the first applicant disputed the lawfulness of his
action.
16.On
4 January 2011, a letter of demand was delivered to the first
respondent denying allegations made by him in his letter and
putting
him on terms to refrain from the ‘illegal digging and building’
or else legal proceedings would be instituted
against the first
respondent.
17.There
is no further communication on record. On 17 November 2011, the first
applicant instituted these proceedings.
18.The
submission by respondents’ counsel that the respondents’
conduct falls within the ambit of the National Building
Regulations
and Building
Standards
Act and is therefore lawful cannot succeed. As I stated earlier,
there was no reliance on specific provisions of this
Act. See George
Municipality v Vena and Another
1989 (2) SA 263
(A). But even so, it
would not protect the respondent’s resort to self-help. The
principle against self-help is an incident
of the rule of law, and is
given further effect in section 34 of the Constitution.
14.Section
34 provides:
'Everyone
has a right to have any dispute that can be resolved by the
application of law decided in a fair public hearing before
a court or
where appropriate, another independent and impartial tribunal or
forum.'
15.
In Chief Lesapo V North West Agricultural Bank and Another
[1999] ZACC 16
;
2000 (1)
SA 409
(CC), the Constitutional Court confirmed a high court
judgment, by Mogoeng J (as he then was) in which it was found that a
provision
of the North West Agricultural Bank Act 14 of 1981 that
permitted the bank to execute in settlement of a debt without
recourse
to a court to be in violation of section 34 of the
Constitution. The court held that a hearing before a court serves
several purposes
“including that of institutionalising the
resolution of disputes, and preventing remedies being sought through
self help.
No one is entitled to take the law into her or his own
hands. Self help, in this sense, is inimical to a society in which
the rule
of law prevails, as envisioned by s 1 (c) of our
Constitution” [at para 11].
16.
In African Billboard Advertising (Pty) Ltd v North and South Central
Local Councils, Durban
2004 (3) SA 223
(N), the question was whether
the spoliation in that case had been unlawful since it was sanctioned
by statute. In that case, the
applicant erected advertising sign on
property belonging to Spoornet in contravention of certain by-laws.
It therefore placed the
applicant on terms to remove them. When the
applicant failed to do so, Spoornet engaged the services of a
contractor to remove
them. The applicant then brought a spoliation
application on the basis that Spoornet should have first obtained a
court order.
Spoornet’s position was that a court order was not
required in terms of the by-laws. The full bench held that, in view
of
the rationale of the mandament - ie to prevent people from taking
the law into their own hands- the legislation must be interpreted
in
a manner that interferes as little as possible with this principle,
and with due regard to section 39(2) of the Constitution,
which
obliges a court to have regard to the rights in the bill of rights
when interpreting legislation, [at 228 A-D]
17.
The court found that the removal of the billboards was unlawful and
granted the spoliation order.
18.
Counsel for the respondent referred the court to Impala Water Users
Association v Lourens NO
2008 (2) SA 495
(SCA). However, the
respondents can find no assistance there. The decision of the SCA was
in line with that of the court in the
African Billboards case. In
Impala Waters, the respondent, acting in accordance with the Water
Act of 1998, had suspended water
supply due to the non-payment of
water charges by the users. The dispute regarding the non-payment of
the charges had not been
resolved before the water connection was
suspended. In such situations, where the dispute is not resolved, the
court held that
the dispossession was unlawful. The court reiterated
the principle that legislation should be interpreted so that it
interferes
as little as possible with the principle that no one may
take the law into his own hands. [At 501 E-F]. The spoliation order
was
granted.
19.
Accordingly, I hold that the respondents failed to resolve the
dispute regarding the appropriate determination of the boundary
of
the respondents’ property. Knowing that their right to
ownership of the portion ABCD was disputed, and that legal
proceedings
were in the offing, the respondents continued to act so
as to deprive the applicants of possession of the disputed land. They
took
the law into their own hands, and in so doing unlawfully
deprived the applicants of possession. The applicants are therefore
entitled
to succeed in their application for restoration of
possession.
25.
In addition to the spoliation order, the applicants seek a
declaration of rights regarding a servitude over the respondents
land. This is an issue to be determined in separate proceedings, in
the mix with the rights of the respondent and the question
of
ownership that the applicants have raised.
I
therefore decline to grant paragraph 4 of the relief requested by the
applicants. I also refrain from anticipating non-compliance
with the
order I make here.
26.1
therefore make the following order:
26.1
The applicants’ possession of the area ABCD on Annexure LWM3 is
to be restored;
26.2
The respondents are directed to remove the brick wall erected at
position CD on Annexure LWM3 within 7 days of this order.
26.3
The respondents are to pay the costs of this application.
JUDGE
HASSIMA AJ