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[2012] ZAGPPHC 223
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Knox and Another v Second Lifestyle Properties (Pty) Ltd and Another (A28/2011) [2012] ZAGPPHC 223 (11 October 2012)
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT,
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
DATE:11/10/2012
CASE
NO: A28/2011
In
the matter between:
HENDRICK
JOHANNES UYS
KNOX
.......................................................
1ST
APPELLANT
EB
WELDING
CC
........................................................................................
2nd
APPELLANT
and
SECOND
LIFESTYLE
................................................................................
1st
RESPONDENT
PROPERTIES
(PTY) LTD
ROBOW
INVESTMENTS 115 (PTY)
LTD
…............................................
2nd
RESPONDENT
JUDGMENT
MOTHLE
J:
[1]
This is an appeal heard by the Full Court, North Gauteng High Court
Pretoria against the judgment and an order of the Learned
Webster J
dated 6 August 2010, in the North Gauteng High Court, Pretoria ("the
Court a quo"). The Court a quo refused
leave to appeal and the
appellant successfully petitioned the Supreme Court of Appeal for
leave to appeal to the Full Court.
[2]
The first appellant also acting on behalf of the second appellant,
his business Close Corporation, ("the appellants")
jointly
brought a spoliation application (mandament van spolie) wherein they
claimed that the second respondent had spoliated their
use of a
gravel road by closing that road. The road passes through the
property of the second respondent. The appellant alleges
that he and
other people have been using this road for sometime, to gain access
to the main road, R511. The Court a quo dismissed
the application on
the basis, amongst others, that the appellants had alternative routes
which they could use.
[3]
The facts of the matter are briefly that:
3.1
The first appellant acquired the property to the east of the second
respondent's property in 2006. He then erected commercial
buildings
on this property and moved in the premises in December 2008.
3.2
The second respondent's property has been developed into an upmarket
housing estate called "LA Carmargue". The roads
in that
estate are completed and the bulk services installed. There are
however no houses built as yet.
3.3
The property is secured with a high electric fence and access to the
premises is controlled by an access gate, services by security
guards.
3.4
The appellants claims that they are in possession of the road in that
3.4.1
The road runs from R511 in an easterly direction along inter alia the
southern boundary of second respondent's property and
ultimately
connects to Van Der Hoff Road Extension that runs to Pretoria;
3.4.2
The road is being maintained by the Madibeng Local Municipality who
regularly graded and surfaced it with gravel and also
has road signs
and traffic signals. It is the road used for vehicular and pedestrian
traffic by the applicants, their neighbours
and other users as their
only access to the R511.
3.5
The applicants further allege that during or about January 2009, the
second respondent put up a notice that the road passing
through his
property will be closed to road users. On 16 January 2009, the
respondents erected electrified fences on the portions
of the road
where it enters and exit their property. These measures effectively
closed that road.
3.6
The appellants, through their attorney, wrote a letter to the second
respondent dated 22 January 2012, raising their objection
to the
closure of the road and the fact that if it is not opened, an
application for spoliation will be made to the High Court
for
appropriate relief.
3.7
The road was not opened and the appellant lodged a spoliation
application in the North Gauteng High Court, Pretoria.
[4]
The appellants, in support of their spoliation application, alleged
that they have been in peaceful and undisturbed possession
of and
that they used the road. The closure has thus disturbed them in their
peaceful possession.
[5]
The respondents on the other hand, contend that the appellants were
not in physical control of the road and consequently they
could not
be heard to say that they were disturbed in their possession.
[6]
The second respondent further contends that the appellants failed to
object to the notice to close the road and consequently
they
acquiesced to the closure of the road.
[7]
In response, the appellants' contention is that the concept of
possession includes the use of the road and consequently the
closure
of the road by erecting a fence across that road, gives rise to
spoliation.
[8]
The appellants also deny that they acquiesced in the spoliation, that
failure by them to respond directly to the notice of closure
of the
road does not amount to acquiescence. Further, the appellants
contends that after the road was closed, their attorney informed
the
respondents that unless they open the road and make it available for
use, the closure will be accepted as an act of spoliation
and
consequently, they would approach court for appropriate relief.
[9]
Most of these facts are common cause to the parties. The issues that
fall to be decided in this appeal are two fold, namely
whether:
9.1
The appellants have demonstrated that they were in a peaceful and
undisturbed possession of the road, at the time of its closure;
and
9.2
The appellants acquiesced or consented to the closure of the road by
not lodging an objection to the notice to close as posted
by the
second respondent.
[10]
The nature of a mandament van spolie is described in the seminal case
of Nino Bonino v de Lange,
1906 T. S. 120
, where the Learned Innes
CJ. at pi22 stated that: "spoliation is any illicit deprivation
of another of the right of possession
which he has whether in regard
to movable or immovable properly or even in regard to a legal right"
[11]
Thus a possessor who has been despoiled of possession may avail
himself of a speedy remedy to regain possession, by way of
an
application to Court, known as mandament van spolie.
[12]
In support of their contentions, the applicants rely on the matter of
Willowvale Estates CC and Another v Bryanmore Estates
Ltd
1990 (3) SA
954
WLD at 9561, where the applicant (a company) held property
adjacent to respondent's property. Its members, tenants, servants and
invitees used a gravel road across the respondents land to gain
access to its land. The respondent erected and locked the gates
on
this gravel road. The applicant then brought an urgent application
for a mandament van spolie. The court held that the use of
a road or
route was included in the concept of possession and that the locking
of a gate across such road or route may constitute
spoliation. The
Court held further that exclusive possession of a route or road was
not a necessary prerequisite to the right to
claim a spoliation
order.
[13]
In reply Counsel for the respondent referred to the De Beers case. In
2007, The Natal Provincial Division (now KwaZulu-Natal
High Court, in
the matter of De Beer v Zimbali Estate Management Association (Pty)
Ltd
2007 (3) SA 254
(NPD), the Court held that the remedy in
mandament van spolie protects possession, not access. The possession
sought to be protected
has to be exclusive in the sense that it
should not be multiple possession.
[14]
The facts of the De Beers case are briefly that the applicant, who is
an estate agent, had access to respondents upmarket,
gated, and
residential and resort development ("the property"). Access
to this property is restricted and controlled
by the Home Owners
Association. The applicant had being allowed to gain access to the
property through a use of the disk which
enabled entry at the gates.
After
a while, the computer rejected a disk and the applicant could not
gain entry. The applicant then sought a spoliation order,
seeking the
restoration of her access to the property. It is common cause that
the individual owners of the units within the development
as well as
visitors to the estate were all issued with disks which enabled them
access to the property.
[15]
The Court in De Beers referred to the matters of Shoprite Checkers
Ltd v Penbong Properties Ltd
1994 (1) SA 616
(WLD) as well as Zulu v
Minister of Works, KwaZulu, and Others
1992 (1) SA 181
(D & CLD)
and concluded that: "a summary of the above cases would seem to
me to indicate that the mandament van spolie
is there to protect
possession, not access. Such possession must be exclusive in the
sense of being to the exclusion of others.
The possession of keys by
a multiplicity of parties waters down their possession and in the
present case it becomes so dilute that
it ceases to be a sort of
possession that is required to achieve the protection of the
mandament. "
[16]
Counsel for the respondents, with reference to the De Beers' case
raised two issues, namely:
16.1
That the mandament van spolie does not protect access but possession;
16.2
Where possession is exercised by many other people, it becomes
diluted and falls outside the protection of mandament van spolie.
[17]
In my view, the De Beers v Zimbali Estate Management Association case
supra, is distinguishable from the Willowvale Estates
CC and Another
v Bryanmore Estates case supra as well as the case before this court
in one important aspect: the De Beers case
deals with access to
premises while the other cases have to do with the use of a route or
road. The Court in the De Beers case
is correct in holding that
spoliation protects possession of which in my view, the use of a road
is one such possession and not
access.
[18]
However, there appears to be a difference between these decisions in
regard to the question whether possession in this context
cannot be
protected by mandament van spolie when exercised by multiple persons.
On this question the Court in the Willowvale v
Bryanmore Estate case
is supported by the Appellate Division in Nienaber v Stuckey
1946 AD
1049
, where the Appeal Court held that the fact that the applicant
had not proven that he had exclusive possession of the land during
the time he was exercising his rights, did not disentitle him to
relief This case is authority for the principle that a party may
avail itself to spoliation where possession in the form of the use of
a route or road that is also used by other persons, has been
despoiled. See also Van Wyk v Kleynhans
1969 (1) SA 22
(GWPA).
[19]
I am thus respectfully unable to agree with the view expressed in De
Beers case on this aspect and will follow the Nienaber
v Stuckey and
Willowvale Estate v Bryanmore Estate supra, as the correct reflection
of the law on this point. The use of a road
which has been despoiled,
gives rise to protection under the mandament van spolie regardless of
whether the road is subjected to
multiple use by other person other
than the applicant. The appellants in casu were confronted with a
situation where the road they
have been using was closed. They can no
longer use that road. Their peaceful and undisturbed possession of
that road is therefore
despoiled through the closure thereof. In my
view, they are entitled to relief under spoliation.
[20]
One of the findings by the Court a quo in dismissing the application
for spoliation is that the appellants had an alternative
route that
they could have used. Apart from the fact that the appellants in
their affidavits give an explanation as to the inherent
difficulties
in the use of the alternative route, it is my view that this was a
collateral issue which cannot be raised as a defence
against
spoliation. It is trite that in an application for spoliation, the
applicants need to show only two grounds namely:
20.1
That they were in peaceful and undisturbed possession of the thing -
or in this case, the road; and
20.2
That they have been unlawfully deprived of that possession. See in
this regard Yeko v Qana
1973 SA 735A.
[21]
Once an applicant establishes these two grounds, he is entitled to
relief in terms of mandament van spolie. The use of an alternative
route has no relevance to the exercise of peaceful and undisturbed
possession the thing. Further, it is not a defence to the unlawful
deprivation of the thing possessed.
[22]
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 of such possession was lawful. I accordingly respectfully
disagree with the Learned Judge in the Court a quo
that the
application for spoliation should fail on the ground that because
there was or there maybe an alternative route which
the applicant
could have used.
[23]
The second respondent raised a further defence, that the closure of
the road was consented or acquiesced to by the applicant.
The
applicants allege in the founding affidavit that during or about
2008, there was an attempt to close the road which attempt
was
resisted. The respondents are alleged to have proclaimed their right
to close the road by blocking the road at both ends where
it
traverses its property. This they did by digging tranches across the
one end of this road and putting on dirt on the other end.
In
response, the users of the road on their own removed the obstacles
created by the respondent, by filling in the tranches at
the one end
and removing the dirt on the other end. They continued to use the
road in defiance of the closure.
[24]
It its answering affidavit, the respondent confirm the applicant's
allegation, but allege that after the reopening of this
road as a
result of resistance by the road users, a meeting was held in the
presence of the South African Police Services regarding
the road
closure. The second respondent does not give the details of what
transpired in the meeting except to state that at that
stage and
subsequent to the meeting, the road was not closed. Another meeting
was held in November 2008 between the respondent
and the proximate
land owners to whom he had addressed and sent letters. On his
version, the second respondent did not send the
letter to the first
applicant because the first applicant was unknown to it.
[25]
It is clear that there is a history of resistance to the closure of
the road. There is no evidence on the record that at anytime
the
applicants intended to consent or acquiesce in the road closure. On
the contrary, and by the respondents' own version in the
answering
affidavit, there is evidence of every intent to resist the closure by
the neighbours. The applicants were not informed
of the measures
taken by the second respondent in the letters which were sent to the
neighbours.
[26]
Counsel for the respondent did not refer us to any authority in law
which suggest that failure to object to a notice amounts
to
acquiescence and is ipso facto a bar to the exercise of one's right
to seek appropriate relief.
[27]
Considering the evidence on the record, I am of the view that the
Court a quo should have found that the applicants have succeeded
on a
balance of probabilities, to prove their application for spoliation,
and were thus entitled to relief sought in the application
itself.
The application should have succeeded and consequently, the decision
of the Court a quo should be set aside.
[28]
In the premises I would therefore make the following order:
1.
The appeal succeeds.
2.
The decision of the Court a quo dismissing the application for
spoliation is set aside and substituted by the following order:
"The
application is granted in terms of prayers 1 and 2 of the Notice of
Motion."
3.
The respondent is ordered to pay the cost of the appeal.
S.
P. MOTHLE
JUDGE
OF THE HIGH COURT
I
AGREE.
N.
P. MNGQIBISA-THUSI
JUDGE
OF THE HIGH COURT
I
AGREE.
N.
B. TUCHTEN
JUDGE
OF THE HIGH COURT
Heard
on:15 August 2012
For
the Appellant:Adv J. Moller
Instructed
by:Van Zyl Le Roux Inc
1st
Floor, Block 3 Monument Office Park
For
the Respondent: Adv M. Segal
Instructed
by:Moller & Pienaar Inc
Suite
1A, 1st Floor Hatfield Gables North 484 Hilda Street, Hatfield
Date
of Judgment: