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[2012] ZAFSHC 213
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Pienaar v Matjhabeng Plaaslike Munisipaliteit and Another (3883/2012) [2012] ZAFSHC 213 (22 November 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No. : 3883/2012
In the matter between:-
GERHARDUS JOHANNES
PIENAAR
.....................................
Applicant
and
MATJHABENG
PLAASLIKE MUNISIPALITEIT
............
1
st
Respondent
MICHAEL RAMOHODI
..................................................
2
nd
Respondent
_____________________________________________________
HEARD ON:
15 NOVEMBER 2012
_____________________________________________________
JUDGMENT BY:
KRUGER, J
_____________________________________________________
DELIVERED ON:
22 NOVEMBER 2012
_____________________________________________________
[1] This is the extended
return date of a mandament van spolie granted on 17 September 2012.
The applicant contends that he had
free and undisturbed possession of
the farm in question and on 17 September 2012 the respondents
disturbed his possession by spraying
poison on the farm.
[2] In the answering
affidavit the following defences are raised:
(i) Applicant was not in
undisturbed possession;
(ii) The spraying caused
no damage and did not constitute spoliation.
The spraying was done to
prevent unlawful squatting on the farm.
THE FACTS AND
ISSUES
[3]
The facts as stated by respondent, together with the admitted facts
in the applicant’s affidavit (
STELLENBOSCH
FARMERS' WINERY LTD v STELLENVALE WINERY (PTY) LTD
1957 (4) SA 234
(C)
at
235E – G) can be set out as follows:
[4] On
26 August 2009 an agreement of lease of the farm described as
“
Gedeelte
2 van die Restant van die plaas Vlakplaats 125 geleë in die
distrik Welkom groot 191.6886 hektaar”
(hereinafter
described as “the farm”) was entered into between Piet
Bezuidenhout as lessor and Lopin Engineering Services
(Pty) Ltd,
represented by Gerhardus Johannes Pienaar (the applicant), as lessee
for a five year period from 1 September 2009.
[5] On 11 March 2010 an
agreement of lease of the farm was entered into between Piet
Bezuidenhout as lessor and Gerhardus Johannes
Pienaar (the applicant)
for a five year period from 1 March 2009. The two agreements are
identical save for the identity of the
lessee and the commencement
date of five years.
Clause 1 reads as
follows:
“
1.
HUURTERMYN:
Die huurtermyn sal wees vir ‘n
tydperk van 5 (VYF) jaar gereken vanaf 1 MAART 2009.
Die partye kom egter ooreen dat indien
die eiendom binne die huurtermyn van vyf jaar verkoop word, die
huurder die eiendom sal ontruim
en die partye skriftelik die kontrak
sal beëindig VOOR die vyf jaar verstreke is, op die volgende
voorwaardes:
a) Die huurder eers self die gesaaides
van die lande te stroop en te verwyder van die land.
b) Die huurder vergoed sal word vir
die KALK wat ten opsigte van die grond aangekoop, aangewend of
ingewerk is, vir die bepaalde
termyn waarvoor die bemesting steeds
aktief sal wees in die grond. Die partye kom ooreen dat die bepaalde
termyn bepaal sal word
deur die verskaffer van die KALK en dat die
partye daardie verskaffer se skriftelike bevestiging as bindend op
hulself sal aanvaar.”
[6] The farm was
purchased by the first respondent at the beginning of 2012 and was
registered into the name of the first respondent
on 20 July 2012.
[7] On 5 September 2012
the first respondent wrote a letter to the applicant’s
attorneys:
“
RE:
PURCHASE OF PROPERTY BY MATJHABENG MUNICIPALITY: THE REMAINING EXTENT
OF PORTION 2 OF THE FARM VLAAKPLATS 125, WELKOM
The abovementioned matter bears
reference.
Following your correspondence dated
23
rd
August 2012 with regard to the matter above, the
matter herein was brought to my attention and herewith the following:
We confirm that the abovementioned
property was purchased by the Department of Land Reform and Rural
Development for the municipality
and same has since being registered
into municipality’s name;
That certain Mr. Piet Bezuidenhout,
believed to be your client’s landlord, approached the
Department of Land Reform and
Rural Development and made an offer
for Farm Vlaakplats 125 and same was purchased for municipality for
future housing development;
That your client, Mr. Gert Pienaar
had a lease agreement with Mr. Bezuidenhout and not the municipality
that may possibly warrants
payment of compensation.
Your client should have exhausted
necessary legal avenues available against Mr. Piet Bezuidenhout for
compensation of any improvements
made on the property. Unfortunately
the municipality is not in position to compensate your client in any
form as any payment alleged
to be owed for improvements made of the
Farm, should be compensated by Mr. Piet Bezuidenhout.
It is against this background that the
municipality gives your client notice of 7 (seven) days from the date
of receipt hereof to
vacate the Farm, expiry date being 14
th
September 2012 failing which, the municipality shall have no
alternative but to apply to the court for necessary relief for the
eviction as well as the order instructing the sheriff of the court to
remove any implements on the Farm.”
[8] On 14 September 2012
between 08h00 and 11h00 the second respondent under the instructions
of the first respondent sprayed poison.
In the answering affidavits
neither the first or second respondent say what was sprayed. They do
not deny that poison was sprayed.
The first respondent says that the
spray was not on the planted wheat. He also takes trouble to make the
point that there was no
wind during the spraying, thereby indicating
that poison was sprayed. A further indication that poison was
sprayed, is that the
first respondent says the spraying was done “for
reason of cleaning up the not utilised part of the farm as an attempt
of
prevention of unlawful squatters invading onto the farm”. In
the replying affidavit the applicant says that he prepared the
area
on which no wheat is planted at this stage with a ripper with a view
to plant after the first rains. Apart from the intention
of the
applicant to use the land for planting the poison sprayed on the land
by the respondents affected the usefulness of the
land for
agricultural purposes. The question is whether that amounts to
spoliation.
THE APPLICANT’S
POSSESSION
[9] In the answering
affidavit the first respondent takes the point that applicant was not
in possession of the farm and attaches
the agreement of lease dated
26 August 2009 where the tenant was Lopin Engineering Services (Pty)
Ltd, in spite of the fact that
in the founding affidavit the
applicant refers to and relies on the lease agreement of 11 March
2010.
[10]
There is no merit in the allegations that applicant was not in
possession of the farm. First respondent’s letter dated
5
September 2012 quoted above indicates that first respondent knew that
applicant occupied the farm and was in possession thereof.
The
respondents do not dispute that applicant was notified by Mr Madala,
his employee who lives on the farm, of the spraying on
14 September
2012 when the spraying took place. Questions of illegality or
wrongfulness of the applicant’s possession are
irrelevant at
this stage -
YEKO v QANA
1973 (4) SA 735
(A)
at
739D – G;
BON QUELLE (EDMS) BPK v MUNISIPALITEIT
VAN OTAVI
1989 (1) SA 508
(A) at 512A – B;
IVANOV
v NORTH WEST GAMBLING BOARD AND OTHERS
2012 (6) SA 67
(SCA)
par [25].
DID SPOLIATION TAKE
PLACE?
[11]
The next question is whether there was in fact spoliation and not
merely disturbance of possession. The old writers distinguished
between the mandement van spolie (
spoliare
)
which was a remedy aimed at recovery of lost possession and the
remedy for disturbance of possession (
turbare
)
which was a remedy to retain possession. Disturbance of possession is
sufficient for a mandament of “
complainte
”
and “
maintenue
”
,
but not for spoliation – Duard Kleyn, “Die betekenis van
die begrip ‘spolie’” 19
De
Jure
1986 279 - 292 at 283; “Mandament
van Spolie ‘n Interdik?”, A.J. van der Walt,
De
Rebus
(1984) 477 - 479 at 479 par
4.3(e); Van der Merwe,
Sakereg
,
2
nd
Ed,
130;
VAN ROOYEN EN 'N ANDER v BURGER
1960 (4) SA
356
(O) at
363E – F per Grobler J, confirmed
by the Full Court in
BURGER v VAN ROOYEN EN 'N AN
DER
1961 (1) SA 159
(O), where Potgieter J quotes with
approval the dictum of Grobler J in the Court
a
quo
that the mandament van spolie is
generally available where there has been any substantial or serious
infringement of the rights
of the possessor (“enige aansienlike
of ernstige inbreuk op die regte van ‘n besitter”).
(
BURGER
-case
1961 (1) at 160H – 161A).
[12]
In principle the mandament van spolie is available where there has
been a substantial or serious infringement of possession.
This means
actions of the respondent which prevent the possessor from using the
property as he wishes (
KLEYN
,
supra
, at
284 footnote 28).
[13]
The locking of gates has been held to be spoliation -
BUFFELSFONTEIN
GOLD MINING CO LTD EN 'N ANDER v BEKKER EN ANDERE
1961 (3) SA
381
(T).
The cutting off of electricity is
spoliation -
N
AIDOO v
MOODLEY
1982 (4) SA 82
(T). The
erection of a fence cutting off part of applicants’ property is
spoliation -
OLIVIER v BOTHA
1948 (3) SA 664
(C).
A disturbance of possession without
deprivation of the whole of it, is sufficient -
BENNETT
PRINGLE (PTY) LTD v ADELAIDE MUNICIPALITY
1977 (1) SA 230
(ECD) at 233.
CONCLUSIONS
[14] On the admitted
facts the respondents sprayed poison on a portion of the farm in
applicant’s possession. First respondent’s
deponent
states:
“
15.5 I
dispute that any damage or prospective damage was done or caused to
be done to the planted wheat area on the day of the spraying
(
14
September 2012
).”
First respondent here
addresses potential damage to the wheat which is at present growing
on a portion of the farm. The spraying
took place on a piece of land
adjacent to the land where the wheat is growing. Applicant says he
prepared this land with a ripper
which makes deep penetration
possible and after the first rains the applicant intends planting on
that area. In the founding affidavit
applicant says that he has
already prepared the land on which the poison was sprayed for the
planting of mealies and/or sunflower
(founding affidavit paragraph
21). In answer the first respondent states in the answering
affidavit:
“
AD
PARAGRAPH 21 THEREOF:
This is denied.
I deny that Applicant could have or
would have suffered any damages due to the spraying or that the
spraying with the kind of
poison could cause any damage to proposed
corn or sunflower crop.
The soil on the farm is now prepared
after the spraying for any form of mealies and/or sunflower to be
planted.”
In reply the applicant
points out that this is a bold reply, lacking in substance. The
respondents do not state what type of poison
was used, and the
applicant, who is a farmer, says that he knows from experience that
poison which is for instance used for mealies
or sunflower, is
harmful to wheat. Neither the first respondent’s deponent nor
the second respondent professes to have any
knowledge of
insecticides. Nor do they disclose what type of poison was used. The
declared purpose of first respondent was to clear
up the land so that
the land would not appear to be disused and desolated. That means all
growth needed to be killed, also for
the stated purpose of the
residential development which the first respondent plans for the
farm. The denial by the first respondent
“that spraying with
the kind of poison could cause any damage to proposed corn or
sunflower crop” is bald, palpably
implausible and clearly
untenable and can be rejected on the papers (
NATIONAL DIRECTOR
OF PUBLIC PROSECUTIONS v ZUMA
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA) par
[26]).
[15] On the allegations
as stated by the respondents, together with the allegations of the
applicant not meaningfully denied by
respondents, the possession
rights of the applicant have been substantially infringed. The
applicant has been deprived of the right
to use the lands sprayed by
the poison as he wishes. Applicant has been spoliated.
THE CONTEMT
APPLICATION
[16] The applicant under
Case No A3883/2012 seeks an order that the respondents be called upon
to show cause why they should not
be convicted of contempt of court
in that the second respondent on 24 October 2012 after the order of
this court had been granted
on 17 September 2012, ploughed the lands
on the farm. The returns of service show that that notice of motion
was served on the
first and second respondents. Mr. Burger, who
appeared for the first and second respondents in the spoliation
application, said
the respondents had no knowledge of the contempt
application. There appears to be no reason why the rule
nisi
requested in the notice of motion dated 31 October 2012 should not be
granted.
[17]
ORDER
1. The rule
nisi
granted on 17 September 2012 is confirmed (paras 2.1 and 2.2).
2. A rule
nisi
,
returnable on 13 December 2012 is granted calling on the respondents
to show cause why the following order should not be granted:
2.1 That the first and
second respondents are convicted of contempt of court by virtue of
their action on 24 October 2012 in contempt
of this court’s
order of 17 September 2012.
2.2 That the first and
second respondents are sentenced to a fine of R30 000,00 or
imprisonment of 30 (thirty) days or such other
sentence as the court
may deem fit in its discretion.
2.3 That the first and
second respondents, jointly and severally, pay the costs on the scale
of between attorney and own client.
____________
A. KRUGER, J
On
behalf of plaintiff: Adv P J J Zietsman
Instructed
by:
Naudes
BLOEMFONTEIN
On
behalf of respondents: Adv A H Burger SC
Instructed
by:
Moroka
Attorneys BLOEMFONTEIN
/spieterse