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[2012] ZAFSHC 220
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van Zyl v de Bryun and Others (3811/2012) [2012] ZAFSHC 220 (23 November 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No. : 3811/2012
In the matter between:-
MARTHINUS JACOBUS
VAN ZYL
..........................................
Applicant
and
JOHANNES STEPHANUS
DE BRUYN
..........................
1
st
Respondent
MARIA CORNELIA DE
BRUYN
....................................
2
nd
Respondent
DIHLABENG LOCAL
MUNICIPALITY
...........................
3
rd
Respondent
_____________________________________________________
HEARD
ON:
13 SEPTEMBER 2012
_____________________________________________________
JUDGMENT
BY:
RAMPAI, J
_____________________________________________________
DELIVERED
ON:
23 NOVEMBER 2012
_____________________________________________________
[1] These were motion
proceedings. The matter came to court by way of an urgent application
(rule 6(12)) on 13 September 2012. The
primary relief sought by the
applicant against the third respondent was an order whereby the third
respondent was compelled to
immediately restore his free and
undisturbed electrical power supply to certain premises. The
subsidiary relief sought was an order
whereby the first and the
second respondent were directed to pay the costs of the application.
[2] The application was
opposed by the respondent couple. The third respondent, Dihlabeng
Local Municipality, decided to abide.
In view of this, the word
“respondents” wherever it appears later in this judgment
must be narrowly understood to be
reference to the first and the
second respondents collectively unless the context indicates
otherwise.
[3] Certain facts were
common cause. The respondents once carried on ice business on a
property situated at 1 Young Street, Eureka,
Bethlehem in the Free
State Province. The business enterprise was known as Bahama Ice.
[4] The applicant
purchased Bahama Ice from the respondent couple on 13 November 2011.
The sale agreement was reduced to writing.
At the same time the
applicant and the respondents also entered into a lease agreement in
addition to the sale agreement. The applicant
leased the property
commonly known as 1 Young Street, Eureka, Bethlehem, the same
property on which the ice business enterprise
was conducted from the
respondents for a period of nine years and eleven months. The lease
period began on 13 November 2011 and
it was envisaged that it would
endure until 12 November 2021.
[5] There was a house on
the leased property. Prior to the signing of the lease agreement, the
respondent couple occupied the house
in question. After the signing
of the lease agreement the couple vacated the house and moved to
Bloemfontein. The house, unlike
the cottage or flat, did not form
part of the leased premises. Like the respondents the applicant did
not reside at Bethlehem but
at Winburg at the time these proceedings
were initiated.
[6] The third respondent
supplied the property as a whole with constant electrical power. From
the street the third respondent directly
provided the main house on
the property with electrical power supply. Somewhere in the main
house there was an electrical distribution
box mounted on the wall.
The box had the main switch. Among others, the electrical
distribution box had a component called a trip
switch. There was also
a prepaid electrical power meter in the main house. The electricity
consumed in the house was purchased
from the third respondent by way
of prepaid coupons. The flat on the property was indirectly provided
with electrical power supply
via the main house. The indirect
electrical power supply was done by means of connective electrical
wiring.
[7] In the flat there was
a separate prepaid meter installed. Therefore the electricity
utilised in connection with the ice processing
operations in the flat
also had to be separately purchased in advance. There was a separate
electricity distribution box in the
flat. Among its constituent
electrical components, was a component termed earth leak. The flat,
like the main house, used a prepaid
coupon system.
[8] Notwithstanding the
two separate meters used in order to separately measure the quantity
of electrical power consumed in the
house and in the flat, there was
but one electrical power line through which electrical power was
supplied by the third respondent
to the house as well as the flat.
[9] The applicant lived
at Winburg. He was a business man over there. The manager of his ice
business enterprise at Bethlehem was
a certain Mr H.J Roets (annexure
“b”). His private electrician over there was a certain Mr
S.P Burger (annexure “a”).
The attorney for the applicant
was Mr J Kruger of Breytenbach Mavuso Inc (annexure “c”).
[10] The respondents
lived in Bloemfontein. Subsequent to their move from Bethlehem they
decided to sell the property, in other
words the main house together
with the flat. They appointed as their estate agent a certain Mr J.C
Erasmus of Realnet, an estate
agency at Bethlehem and instructed him
to put the property on the market (
vide
par 33 founding
affidavit read together with par 24 answering affidavit). The
attorney for the respondent was Mr J.A Botha of Human
Le Roux &
Meyerowitz (annexure “js3”). The purchaser of the
property is a certain Ms Potgieter.
[11] The official of the
third respondent whose duty it was to receive complaints from the
public concerning the supply of electricity
was a certain Mr Samuel
Masoeu (
vide
par 3 annexure “c”). The municipal
manager of the third respondent was a certain Mr T Tsoaeli (annexure
“d”).
A certain gentleman referred to merely as Kenneth,
was seemingly an electrician in the employ of the third respondent
(par 4 annexure
“js2”).
[12] The aforegoing
historical background to the dispute broadly encapsulates the common
cause in the matter. There were several
disputed factual allegations.
I do not intend reciting or summing them up here. I shall examine a
few of them during the course
of the analysis stage. I shall confine
myself to those disputed factual allegations that appeared to me to
be relevant to the issues.
[13] The crucial issue in
the matter was whether there was constant supply of electrical power
to the leased premises as on 31 August
2012 for constant use by the
applicant. The events of that particular day precipitated the current
stand-off. The cause of action
arose from those events.
[14] On behalf of the
applicant Mr Zietsman argued that the applicant was in a free and
undisturbed actual possession of the leased
property and that the
respondents wrongfully and unlawfully deprived him of such lawful and
beneficial possession by cutting off
the constant supply of
electrical power to the leased property. Counsel submitted,
therefore, that the issue had to be affirmatively
determined in
favour of the applicant.
[15] On behalf of the
respondent Mr Groenwald argued that the applicant was an architect of
his own misfortune. The essence of counsel’s
submission was
that the applicant’s private electrician illegally interfered
with the electrical wiring on the leased property.
The main defensive
argument was, therefore, that the applicant himself was to blame for
his electrical predicament. Here disturbance
was denied.
[16] The respondents also
put up an alternative defence. Their contention was that the
applicant illegally tampered with the electrical
installations. The
interference, so went the argument, created an imminent danger. To
prevent such a dangerous situation, the immediate
disconnection of
the constant electrical power supply to the leased property became
necessary. Here there was a plea of confession
and avoidance.
Accordingly counsel submitted that the respondents did not wrongfully
and unlawfully deprived the applicant of his
free and undisturbed
possession of the leased premises on 31 August 2012 as contended.
[17] A
brief exposition of the applicable principles of law seemed useful.
At the heart of the matter was the legal
maxim
“spoliatus ante omnia restituendus est
”
.
Through this restorative remedy of possession a victim of an act of
illegal dispossession can claim to be restored, first and
foremost,
in his position as it were before dispossession. The remedy entitles
the dispossessed to demand restoration of possession
from the
spoliator before the substantive merits of his possession can be
considered. The spoliation remedy, legally termed “mandament
van spolie” is only available in cases of actual disturbance of
possession but not threatened or contemplated disturbance
of
possession –
NINO BONINO v DE
LANGE
1906 TS 120.
[18]
The word “spoliation” was defined as any illicit
deprivation of another of the right of possession which he has,
whether in regard to movable or immovable property or even in regard
to a legal right. This definition, adopted from Leyser’s
Meditationes, was approved,
inter alia
,
in
SILLO v NAUDE
1929
AD 21
and
VAN ECK, NO, AND VAN RENSBURG, NO, v ETNA
STORES
1947 (2) SA 984
(AD) at 1000 per Davis AJA.
[19] In
NTSHWAQELA
AND OTHERS v CHAIRMAN, WESTE
RN CAPE
REGIONAL SERVICES COUNCIL, AND OTHERS
1988
(3) SA 218
(C) at 221J – 222A the court said the following
about the efficacy of the spoliation remedy:
“
The
essence of the remedy is speedy restoration of the
status
quo
.
Only thereafter does one go into the parties’ rival claims.”
Howie J, as he then was.
[20]
In
BON QUELLE (EDMS) BPK v MUNISIPALITEIT VAN
OTAVI
1989 (1) SA 508
(AD) at 513A – B the court per
Hefer JA held that:
“
Die
mandament van spolie is 'n besitsremedie waarvan die beperkte en
uitsluitlike funksie is om die herstel van die
status
quo ante
te
bewerkstellig (
Oglodzinski
v Oglodzinski
1976
(4) SA 273
(D)
op
274F - G) en daarom kom dit nie daarop aan dat die spoliator 'n
sterker aanspraak op besit as die gespolieerde mag hê nie
of
dat laasgenoemde inderdaad geen reg op besit het nie. Die
beginsel is eenvoudig:
spoliatus
ante omnia restituendus est
ongeag
die partye se daadwerklike regte op besit.
Van
Wyk v Kleynhans
1969
(1) SA 221
(GW)
op
224A;
Burger
v Van Rooyen en 'n Ander
1961
(1) SA 159 (O)
op
161D - H.”
[21] This makes it clear
that the possession remedy is not about the comparative strength of
the spoliator’s claim, but rather
the factual possession of the
thing by the despoiled before the dispossession. It is not about the
lawfulness of the spoliator’s
possession or the unlawfulness of
the despoiled’s possession. It is all about the preservation of
the status quo which prevailed
before the spoliator’s act of
dispossession. It is about preserving social orderliness and societal
peace.
[22] The following
passage needs to be considered:
“
The main
purpose of the mandament is to preserve public order by restraining
persons from taking the law into their own hands and
by inducing them
to submit the matter to the jurisdiction of the courts. Peace in a
community could not be maintained if every
person who asserted that
he had a claim to a particular thing were entitled to resort to
self-help to gain possession of a thing.”
LAWSA
, Vol 27, p
182, par 265 and the authorities cited at footnote 3.
[23]
In
NAIDOO v MOO
DLEY
1982 (4) SA 82
(T) the respondent was the
appellant’s tenant. The parties signed a deed of settlement
whereby the lease agreement was mutually
terminated and a specific
date agreed upon on which the respondent was obliged to vacate the
electrified leased property. The expiry
of the deadline
notwithstanding, the respondent stayed put. Extremely irritated, the
appellant summarily cut off the supply of
electricity to the then
illegally occupied premises.
[24] Undeterred by the
belligerent landlord’s drastic action by way of self-help, the
respondent rushed to court and successfully
invoked the protective
remedy of possession -
spoliatus ante omnia restituendus est
.
On appeal, the full bench held that the use of electricity was an
incident of occupation which the respondent had of the leased
first
floor of the appellant’s building:
“
On
this view of the matter, appellant, by cutting off the electricity,
substantially interfered with respondent's occupation of
the premises
in question, and so performed an act of spoliation. In my judgment
the order appealed against was correctly granted.
The appeal is
dismissed with costs
.”
NAIDOO
,
supra
, at 84E per Eloff J.
[25] Section 9 of the
Electricity Supply By-law - Free State Province, which was published
under the Municipal Systems Act 32 of
2000 - empowers a local
government, in other words, a municipality such as the third
respondent, to disconnect electricity if the
consumer uses
electricity in an unsafe manner or if the consumer improperly
interferes with the efficient supply of electricity.
The
disconnection powers of the municipality are subject to certain
conditions. I shall revert to them later.
[26] To obtain a
spoliation order two essentials have to be averred in the founding
affidavit and established in court. The first
requisite is that the
applicant had to aver and prove that he was in the
de facto
possession at the time of the alleged dispossession. The second
requisite which the applicant had to aver and prove was that the
respondents wrongfully deprived him of such free and undisturbed
possession. Erasmus:
Superior Court Practice
, E9–p6 to
p10A.
[27] I now proceed to
examine the facts. The applicant and the respondents concluded two
separate legal transactions on 13 November
2011. The one transaction
concerned the sale by the respondents and the purchase by the
applicant of an ice producing and distribution
venture called Bahama
Ice. The actual operations of the ice enterprise were, after the
sale, still to be conducted from the applicant’s
property. The
property was situated at 1 Young Street, Eureka, Bethlehem.
[28] The other
transaction concerned the hiring by the applicant and the letting by
the respondents of the same property. The lease
agreement entitled
the applicant to occupy and use the flat on the leased premises, in
other words, the same 1 Young Street, Eureka,
Bethlehem for the
purpose of carrying on the business as an icemaker for a period of
almost one decade. The effective date of the
lease agreement was 13
November 2011. The terminal date of the lease agreement as agreed
upon was 12 October 2021. I hasten to
point out that the main house
was exempted from the terms and conditions of the lease agreement.
Put differently, the applicant
was not, by virtue of the lease
agreement, entitled to use the main house on the leased premises for
any purpose whatsoever.
[29] The leased premises
were electrified. The applicant’s refrigerators, ice machines,
ice equipment and related ice tools
of trade in general utilised in
the ice processing operations entirely depended on electricity. The
applicant commented as follows
about the importance of the amenity:
“
Dit verdien
geen betoog dat elektrisiteitstoevoer tot ‘n ysbesigheid van
kardinale belang is. Inteendeel, sonder elektrisiteit
kan ‘n
ysbesigheid nie funksioneer nie omdat al die ysmaak masjiene en die
vrieskaste met elektrisiteit werk.”
[30] The respondents did
not deny the aforegoing averment. It must, therefore, be accepted as
an undisputed fact that the applicant’s
ice venture greatly
depended on the constant supply of electricity to the leased premises
and that the respondents were well aware
of the commercial importance
of the amenity (electricity) to the applicant. The tacitly
affirmative stance of the respondents was
perfectly understandable
bearing in mind that they previously carried on the same type of
business. They were icemakers before
they trekked from Bethlehem
after the sale transaction.
[31] It was the
applicant’s case that he was the
de
facto
possessor of the electrified premises
which he had leased from the respondents and that he was still in the
effective and actual
control thereof on Friday, 31 August 2012 on
which day he was denied the full benefits of his occupation. Let me
first deal with
the first requisite – actual possession.
[32] The respondents did
not seriously deny the applicant’s averment that he was in
actual possession of the property on Friday,
31 August 2012. On 4
September 2012 their attorney, Mr Botha, replied to the letter from
the applicant’s attorney, Mr Kruger.
He wrote:
“
Ons erken
ontvangs van u brief van 3 September wat vandag onder skrywer se
aandag gekom het. Ons het instruksies om soos volg daarop
te
antwoord:
Behalwe om –
1. te erken dat u kliënt ‘n
‘
ys vervaardigings- en verspreidingsbesigheid
’
onwettig
vanaf ons kliënt se perseel
wat nie vir
besigheid gesoneer is nie, bedryf;
2. u aandag daarop te vestig dat die
eertydse huurkontrak tussen die partye op 23 Julie 2012 gekanselleer
is en dat
u kliënt versuim om die perseel te ontruim
;”
[33] The stance of the
respondents was clearly spelled out in that particular letter. The
respondents reasoned that because the
lease agreement was cancelled
on 13 July 2012, as they alleged, the applicant was an illegal
occupier of their unleased property.
In a way they suggested that the
applicant neglected to vacate their property even though he no longer
had any occupational rights
to remain on the property let alone any
contractual rights to use the property for commercial purposes. Their
property had not,
as a matter of fact, been rezoned for such
commercial use. Therefore, so they said, the manufacturing on and
distribution of ice
from the property were outright illegal
activities.
[34]
The aforesaid argument was not a sound proposition of law. It was not
about the substantive demerits of the applicant’s
possession
vis-a-vis
the substantive
merits of the respondents’ possession, but rather about the
preservation of the status quo –
vide
NTSHWAQELA
,
supra
and
BON QUELLE
,
supra
.
[35]
What really emerged from the letter (annexure “f”) was an
admission that the applicant was a
de
facto
possessor of the property owned
by the respondents, but actually occupied by the applicant. The one
admission was that the applicant
refused to vacate the property; the
second admission was that the applicant continued to trade on the
property, even though he
did this very much against the decision of
the respondents whereby they unilaterally cancelled the lease
agreement. Certainly the
respondents were the
de
iure
owners of the property in
question. However, the law has engineered the remedy of
spoliatus
ante omnia restituendus est
in order to
protect actual possessors and not actual owners –
vide
NINO BONINO
,
supra
.
[36]
In the circumstances and on the strength of these undisputed facts, I
would, therefore, find that the applicant has established
the first
requisite for the grant of a spoliation order –
viz
that he was in actual possession of the property
which was, in the ordinary course of events, constantly supplied with
electrical
power by the third respondent through the respondent
couple.
“
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.”
Vide
Erasmus:
supra
at E9– p6.
On the respondents’
own papers, the possession enjoyed by the applicant has been
established. The first requisite has been
proven.
[37] In the second place
the applicant averred that the respondents wrongfully deprived him of
his free and undisturbed possession
of the property (6 founding
affidavit). The dispossession of an actual possessor by any illicit
means boils down to a civil wrong
termed spoliation.
“
...
spoliation is any illicit deprivation of another of the right of
possession.”
Innes
CJ in
NINO BONINO
,
supra
.
[38] The respondents
denied the alleged illicit dispossession.
“
Die Eerste
en Tweede Verweerder Respondente ontken die beweerde onregmatige
besitsontneming van die elektrisiteitstoevoer tot die
perseel vanwaar
Applikant besigheid doen, soos meer volledig hierin later uiteengesit
sal word.”
Mr J.S de Bruin par 7
answering affidavit. See p 45 of rec.
[39] At par 30 of the
founding affidavit the applicant asserted that he had free and
undisturbed possession of the electricity supply
to the leased
premises. However he complained that he was deprived of such free and
undisturbed possession on account of certain
actions, which he
attributed to the respondents.
“
Ek doen met
respek aan die hand dat ek vrye en ongestoorde besit van die
kragtoevoer tot die huurperseel gehad het en dat ek van
sodanige
ongestoorde besit ontneem is weens die Eerste en Tweede Respondent se
optrede.”
[40] At par 23 of the
answering affidavit the first respondent strongly refuted any
improper conduct attributed to him or the second
respondent. He
answered the allegation of wrongful dispossession as follows:
“
AD
PARAGRAAF 30
Die inhoud van hierdie paragraaf word
ten sterkste ontken. Ek submitteer eerbiediglik dat:
a) die Applikant, alternatiewelik
Roets van die Applikant, alternatiewelik Burger ‘n opdrag van
voorgenoemde, ‘n onwettige
elektriese koppeling aan die
verdeelbord van die woonstel gemaak het en daarmee gepeuter het;
b) as gevolg van ‘n inspeksie
deur Erasmus en drie beamptes van die Derde Respondent op 31 Augustus
2012, daar inderdaad bevind
is dat met voormelde verdeelbord en
elektriese bedrading gepeuter en onwettige installasies aangebring
is;
c) as gevolg van die wesenlike en
onmiddellik dreigende moontlikheid en gevaar dat die eiendom van
Eerste Respondent aan brandgevaar
blootgestel is en persone se lewens
daardeur geraak word, het ek besluit om die Derde verweerder ter
versoek om nie die kragtoevoer
na die woning en woonstel te hervat
nie;
d) dit statutêr van die
eienaar/huurder en verbruiker van elektrisiteit verwag word om
onwettige koppelings aan die elektrisiteitsverskaffer
(Derde
Respondent) te rapporteer. Voordat sodanige onwettige koppelings en
peutering herstel word ooreenkomstig statutêre
vereistes, nog
ek, nog Tweede of Derde Respondent, onder enige regsplig is om die
elektrisiteitstoevoer na die perseel van die
Applikant te herstel.
Regsargument sal in hierdie verband aan hierdie Agbare Hof voorgehou
word;
e) die Applikant, handelende soos
hierbo gesubmiteer, die outeur van sy eie probleme is en alleen
aandadig is.”
[41] As regards
allegation 23(a)
supra
the
applicant’s reply was negative (par 20 replying affidavit) see
p 77. The applicant denied the allegation that he or his
manager, Mr
Roets, or his private electrician, Mr Burger, had tampered with the
electrical distribution box in the flat by means
of illegal
electrical connections.
[42] The respondents’
allegation was informed by the report they received from their estate
agent, Mr Erasmus. In his confirmatory
affidavit (3 annexure “js2”)
Mr Erasmus stated:
“
Ek verklaar
verder dat ek om 07:00 op 31 Augustus 2012 deur die bure van die
Eerste respondent gebel is. Ek is meegedeel dat ‘
iets
nie reg is nie aangesien die garagedeur die heelnag oopstaan
’.
Ek het my die perseel gehaas en om die woonhuis en woonstel geloop en
die garagedeur oop gevind. Ek het ook deur die venster
van die
woonstel gekyk en opgemerk dat die rooi liggie van die betaalmeter
nie flikker nie. Ek het ook gesien dat die drade van
die verdeelbord
uitsteek en lyk of dit gelas is. Ek het ‘n foto daarvan geneem
soos per
Aanhangsel
‘X’
hiertoe, welke ook by die Opponerende Verklaring van die Eerste
Respondent aangeheg is.”
He stated that he made
the observation early in the morning at or about 07h00 on Friday, 31
August 2012.
[43] About that apparent
interference with the electrical installation as depicted in the
photo (annexure “x”) Mr Burger
had stated in his
confirmatory affidavit (annexure “a”) firstly, that on
Thursday, 30 August 2012, he went to 1 Young
Street, Eureka,
Bethlehem at the request of the applicant to inspect the electrical
failure of the power supply (par 3 annexure
“a”) and
secondly, that he found that the earth leak on the electrical
distribution box in the flat needed to be replaced
(4 annexure “a”).
Seemingly the earth leak was worn out or irreparably defective. He
then removed the earth leak from
the distribution box.
[44] The wiring in the
distribution box had clearly been interfered with as the photo shows.
However I am not persuaded that what
the private electrician did
amounted to an improper manner of interfering with an electrical
installation as envisaged in section
9. The gentleman was an
experienced electrician whose experience extended well over a period
of thirty years.
[45] There was no
substance in the allegation made by the respondents.
[46] As regards
allegation 23(b) I shall comment later.
[47] As regards
allegation 23(c) the respondents suggested that on account of
imminent danger, to their property and to human life,
created by the
applicant’s illegal electrical connections, they requested the
third respondent to disconnect the electricity.
It has to be
remembered that the next morning on Friday, 31 August 2012, the day
after the applicant’s electrician had removed
the earth leak,
the respondents estate agent went to the property.
[48] On his arrival there
he discovered that the electrical distribution box was open and that
the wiring had been disconnected.
Without much ado, he then and there
concluded that there had been some illegal interference with the
electrical installation in
the flat used by the applicant and that
such disconnections had caused the first power failure on Monday, 27
August 2008 and the
second power failure on Thursday, 30 August 2008.
He then took a photo (annexure “c”). All this was done
before the
applicant’s private electrician had returned to
install the new earth leak in the place of the old one which he had
removed
the previous day.
[49] Mr Erasmus did not
contact Mr Roets, who managed the ice making business enterprise to
ascertain why there was apparent interference
with the electrical
installation,
viz
the distribution box in the flat. If only he
had done so, he would probably have gathered that there were no
irresponsible, unsafe
and illegal connection at all, but rather work
still in progress. The work was done and completed three hours after
the photograph
(annexure “x”) was taken. The work was
performed by a qualified, experienced and independent electrician, Mr
Burger.
He replaced the defective earth leak which was clearly
implicated in the electrical power failure. Every power failure
triggered
the automatic operation of the trip switch to prevent
danger or harm.
[50] I got the impression
that he was not really interested in knowing the truth. He was just
too happy to find something the respondents
could use against the
applicant. He had vested interest in the matter. He had sold the
house on behalf of the respondents. Like
the respondents, he also
wanted to see the applicant vacating the property to make way for Ms
Potgieter, his client. His financial
interest in the matter badly
influenced his actions.
[51] The respondents’
attorney arrived on the scene as did the employees of the third
respondent. One of them was apparently
an electrician. The attorney
arrived on the scene at or about 10h00 on Friday, 31 August.
“
Ek verklaar
verder dat ek op versoek van die Eerste Respondent ongeveer 10vm die
oggend van 31 Augustus 2012 ‘n besoek by
die huurperseel ter
sprake afgelê het. By my aankoms het ek gevind dat twee persone
van die Dihlabeng
Munisipaliteit
besig was om die kragtoevoer na die huis en woonstel af te sny
.”
[52] The quotation was
significant for three reasons. Firstly, it corroborated the version
of the applicant that there was electrical
power supply to the main
house. Secondly, it corroborated the applicant’s version that
besides the earth leak of the distribution
box in the flat, the rest
of the electrical components in the single power line were all in the
state of repair. Thirdly, it indicated
Mr Erasmus was untruthful when
he stated that the employees of the third respondent disconnected
electricity late in the afternoon
after 15:00.
[53] The first passage
that needs to be considered is the following:
“
Dihlabeng
Local Municipality received a request from the owner of Young Street
no 1, Eureka, Bethlehem to switch off the electricity
until further notice due to the fact that the electricity box was
allegedly tampered with and was unsafe.”
Wrote the municipal
manager (
vide
annexure
“d”).
[54] The second passage
that needs to be considered is the following:
“
Erasmus het
my onmiddellik telefonies gekontak en onderneem om met die Derde
Respondent te reël dat hulle die onwettige koppelings
kom
ondersoek. Erasmus het saam met drie werknemers van die
Munisipaliteit na die perseel gegaan waarna die beamptes van die
Derde
Respondent saam met Erasmus die onwettige koppelings deur die
venster waargeneem en te vestig het.
Die
kragtoevoer is toe summier deur die Munisipaliteit afgesit.
”
Said
Mr J.S de Bruyn, the first respondent (
vide
par 18.2 answering affidavit p 49 of
the record.
“
24.2 Vir
redes soos reeds hierbo genoem,
word
dit nie in geskil geplaas dat ek inderdaad die Derde Respondent
versoek het om die kragtoevoer af te sny nie
.
Ek voer eerbiediglik aan dat daar geen voldoende regsgronde bestaan
waarom hierdie Agbare Hof die nienakoming van die reëls
moet
kondoneer nie, onder andere op grond van die volgende:
a)
Die Applikant die outeur van sy
eie probleem was en steeds is;
”
Said Mr J.S de Bruyn, the
first respondent (
vide
par 24.2 answering affidavit p 53 of
the record.
[55] The third passage
that needs to be considered is the following:
“
3. u aandag
daarop te vestig dat die kragtoevoer-probleem wat u kliënt
ervaar het,
deur
die industriële aard en oormatige kragverbruik van sy toerusting
veroorsaak is
;
4. u aandag daarop te vestig
dat u
kliënt, alternatiewelik werksmense, onwettig op 30 Augustus met
die elektriese drade van die verdeelbord gepeuter het
(soos
duidelik blyk uit die aangehegte foto en wat ook deur amptenare van
die Munisipaliteit besigtig en bevestig is);
5.
te erken dat ons kliënt
onmiddellik na die peutering, versoek het dat die kragtoevoer na sy
huis vir veiligheidsredes afgesny
word
en omdat die peutering
en/of beweerde herstel nie aan die veiligheidsvoorwaardes voldoen
nie.”
Said
Mr J.A Botha, the attorney for the respondents (
vide
paras 3 – 5 annexure “f”).
[56] The aforegoing
passages reveal the prominent role played by the first respondent in
the disconnection of electricity by the
third respondent.
[57] As regards
allegation 23(d) I am not persuaded by Mr Groenewald’s
contention that the third respondent cut off the electricity
supply
in terms of section 9. It is so that the consumer is expected to
report illegal electrical connections to the third respondent.
However, the third respondent is a local government. It is not
expected to simply accept the owner’s complaint as true and
correct. Section 9 required the third respondent to investigate the
complaint by the respondents against the applicant’s
in order
to determine its veracity.
[58] The third respondent
was also obliged to notify the alleged delinquent consumer of its
belief that he had improperly interfered
with the electrical
installation and to warn him of its intention to disconnect the
supply of electricity to the property concerned.
Therefore, the
disconnection of electricity by a municipality was subject to certain
conditions. There has to be an independent
municipal investigation.
There has to be a reasonable belief that an improper interference
with electrical installation has been
done. There has to be a
reasonable notice to the delinquent consumer to remedy the situation
unless the requisite can be lawfully
dispensed with. These are
statutory conditions which obviously precede the exercise of the
right to disconnect electricity. None
of the precedent conditions was
met.
[59] On the strength of
the aforegoing extracts I have come to the conclusion that the third
respondent disconnected the constant
supply of electrical power to
the property on the mere instructions of the first respondent as the
owner. I am persuaded that such
conduct on the third respondent was
not in keeping with the provisions of section 9. Therefore, the
contention that the third respondent
was bound by legal prescripts to
disconnect the supply of electricity to the property could not be
sustained.
[60] Still on Friday, 31
August 2012, at or about 10h00 the applicant’s private
electrician had already returned to the property
where he replaced
the old earth leak with the new one. In that way the power line
between the main house and the flat was repaired.
Notwithstanding the
repairs effected by the applicant’s private electrician, the
third respondent declined to reconnect the
supply of electricity to
the property.
[61] At paragraph 23(c)
answering affidavit the first respondent had this to say about the
third respondent’s refusal to reconnect
electricity:
“
... het ek
besluit om die Derde Verweerder te versoek om nie die kragtoevoer na
die woning en woonstel te hervat nie;”
[62] At paragraph 23(d)
answering affidavit the first respondent went further to say:
“
V
oordat
sodanige onwettige koppelings en peutering herstel word ooreenkomstig
statutêre vereistes, nog ek, nog Tweede of Derde
Respondent,
onder enige regsplig is om die elektrisiteitstoevoer na die perseel
van die Applikant te herstel. .....”
[63] At paragraph 23(e)
the first respondent concluded as follows:
“
die
Applikant, handelende soos hierbo gesubmiteer, die outeur van sy eie
probleme is en alleen aandadig is.”
[64] At paragraph 5
annexure “f” the respondents’ attorney confirmed
that his client, in other words, the first
respondent not only
requested the third respondent to cut off the electricity to the
property, but also not to restore the supply
of electricity to the
property on account of certain unspecified safety grounds. The
attorney further denied that the respondents
had thereby committed an
act of spoliation against the applicant and averred that the
applicant was an architect of his own misfortune.
[65] The attorney was
clearly appointed before 31 August 2008, the date on which the supply
of electricity to the property was connected.
In fact, he was on the
scene at the time the employees of the third respondent disconnected
the electricity. It is significant
to note that the respondents
themselves were not on the scene at the time the electricity was
disconnected. However, their attorney
was. Because they were not on
the scene they would not have known that the applicant’s
private electrician had not done proper
repair works or that the
quality of the work he had performed, did not comply with the safety
conditions. It has to be readily
appreciated that there was no
confirmatory affidavit, by an electrician of any sort, filed in
support of these allegations made
by the respondents. It follows
therefore that the allegation by the respondents about the alleged
poor workmanship attributed to
the applicant’s private
electrician, had absolutely no substance.
[66] This disposes of the
question of disconnection. I now turn to the next question of
reconnection. It is, therefore, probable
that the respondents
requested the third respondent not to reconnect the electricity on
the advice their attorney. He was, after
all, on the scene but they
were not.
[67] At paragraph 7
annexure “a” Mr S.P Burger, the applicant’s private
electrician said the following about the
respondents’ attorney:
“
Ek bevestig
voorts dat nadat ek die aardlek vervang het, het
Mnr
Braam Botha
opdrag gegee aan
Dihlabeng
Munisipaliteit
se personeel dat hulle onder geen omstandighede die krag weer mag
aanskakel voordat hulle nie toestemming van hom of die eienaar
ontvang het nie.”
[68] His averment was
corroborated by Mr H.J Roets, the applicant’s manager.
“
Ek bevestig
dat nadat hy die aardlek vervang het, en die kragtoevoer herstel was,
het
Mnr
Braam Botha
opdrag gegee aan
Dihlabeng
Munisipaliteit
se personeel dat hulle onder geen omstandighede die krag weer mag
aanskakel voordat hulle nie toestemming van hom of die eienaar
ontvang het nie.”
[69] The applicant’s
attorney stated that on 7 September 2012 he contacted Mr Samuel
Masoeu seemingly a senior official in
the electricity department of
the third respondent and requested that electricity be reconnected.
The response of Mr Masoeu was
that it could not be done unless the
owner of the property made such a request (
vide
par 3 and 4
annexure “c” p 29 of the record.
[70] In a letter
addressed to the applicant’s attorneys on 7 September 2012, the
municipal manager of the third respondent
wrote:
“
Dihlabeng
Local Municipality received a request from the owner of Young Street
no 1, Eureka, Bethlehem to switch off the electricity
until further
notice due to the fact that the electricity box was allegedly
tampered with and was unsafe.
I confirm that
it is a general
policy at Dihlabeng that our personnel may only take instructions
from the owner in matters concerning electricity
because at the
end of the day they are responsible for the payment of the account.
It is thus with great regret that
we wish to inform you that we cannot restore the power to the said
premises up until such time
as we have received instructions from the
owner or his/her representative.
We do not want to get involved in
any dispute between the Landowner and his tenant.
We will, however, abide by any court
order granted in favour of any of the parties.”
[71] The letter is more
important for what it does not say than what it says. Nowhere in the
letter does the senior official say
electricity cannot be reconnected
on account of any risk or harm or danger posed by the poor,
incompetent, hazardous or reckless
manner in which the applicant’s
private electrician had replaced the earth leak electrical component
of the electrical distribution
box in the flat. There was virtually
no complaint about any of the aspects on which the respondents
heavily relied in this matter.
It was clear and obvious, therefore,
that the third respondent did not rely on any statutory prohibition,
but its own general policy
for its refusal to reconnect electricity.
[72] This letter strongly
militates against the contention of the respondents to the effect
that the applicant himself, as a consumer,
was at liberty to approach
the third respondent with the request to reconnect the electricity
seeing that the supply of electricity
was factually cut off by the
third respondent and not the first or second respondent. The letter
made it clear that, as a matter
of general policy, the third
respondent would not have entertained a request by anyone, other than
the property owner, as to whether
to reconnect the electricity or
not. Moreover the letter further showed that the disconnection had
nothing to do with any danger
whatsoever posed by the alleged illegal
connections. Certainly, Kenneth would have advised the municipal
manager of any danger
posed by the alleged illegal connections and
threatening danger. Apparently, he did not. At paragraph 18.2(b) of
the answering
affidavit the first respondent said the following about
the reconnection of electricity:
“
(b) Daar
geen regsplig op enige van die respondente rus om toestemming te gee
of verplig te word om die kragtoevoer te herstel nie,
welke die
aansoek in sy geheel, insluitend die beweerde dringendheid, geheel en
al oorbodig maak.”
[73] This is sharply in
contrast with the general policy of the third respondent. According
to that policy the first respondent,
as the owner, is obliged to
authorise the third respondent to reconnect the electricity. This
makes perfect sense because the third
respondent, in the first place,
disconnected the electricity on the instructions of the first
respondent, as the owner of the property.
[74] Notwithstanding
repeated requests by the applicant and his attorney, the respondents
would not authorise the third respondent
to reconnect the electricity
to his property occupied by the applicant. However, the respondents
refused. It was that the refusal
that precipitated these urgent
proceedings. There had to be reconnection of the electrical power
supply within a reasonable time
after the electrical fault had been
rectified. The respondents frustrated the applicant to have the
electricity reconnected without
undue delay.
[75] I now wish to revert
to allegation 23(c). The first respondent submitted that:
“
c) as gevolg
van die wesenlike en onmiddellike dreigende moontlikheid en gevaar
dat die eiendom van Eerste respondent aan brandgevaar
blootgestel is
en persone se lewens daardeur geraak word, het ek besluit om die
Derde Verweerder te versoek om nie die kragtoevoer
na die woning en
woonstel te hervat nie;”
[76] This paragraph must
be read together with par 4 of the confirmatory affidavit by Mr
Erasmus (annexure “js2”). He
stated:
“
Aangesien ek
die hele oggend in Harrismith werksaam was, kon ek eers teen ongeveer
15:00 op 31 Augustus 2012 by die Dihlabeng Munisipaliteit
uitkom om
die probleem aan Samuel Maseue gerapporteer. Hy het vir sekere
Kenneth en twee ander persone aangesê om saam met
my na die
woonstel te gaan. Hulle het die onwettige koppeling en peutering aan
die elektriese drade gesien en op sterkte daarvan,
die kragtoevoer
onmiddellik afgesny.”
[77] The respondents
clearly heavily relied on the version of Mr Erasmus, the estate
agent. According to him the electricity was
cut off after 15h00 on
Friday, 31 August 2012 by the employees of the third respondent. This
particular allegation was at odds
with the entire body of undisputed
facts. The applicant averred that the electricity was cut off at or
about 10h00 on 31 August
2012. His manager said the same. His private
electrician said the same. The respondents’ own attorney said
the same. The
only person who sang a different tune, was the estate
agent, Mr Erasmus. I say no more about his veracity.
[78] In the light of all
this I have come to the conclusion that the applicant has established
the second requisite for the grant
of a spoliation order. Although
the electricity was cut off by the third respondent and although the
third respondent refused to
reconnect the required electricity, there
is overwhelming material proof that the first respondent was
instrumental to the spoliation
committed by the third respondent
against the applicant. It is clear that but for the lamentable
instructions given by the first
respondent to the third respondent,
the constant supply of electricity to the property occupied by the
applicant would not have
been disconnected.
[79] By indirectly
cutting off electricity, through the third respondent as an
intermediary who was a mere instrument in their hands,
the
respondents themselves committed the civil wrong. They and not the
municipality, substantially interfered with the applicant’s
occupation of the premises –
NAIDOO
,
supra
. They enormously
disturbed his free and peaceful - actual possession. They materially
diminished the enjoyment he derived from
the electrified premises he
occupied. By so doing, they committed an act of spoliation.
Accordingly I find that the applicant was
indeed despoiled and that
the respondents were behind his spoliation. I am thus inclined to
grant the remedial relief sought.
[80] The applicant has
been successful. There was a clear ulterior motive in the way the
respondents conducted themselves in this
matter. In the first place
they leased the property to the applicant for a period almost a
decade. Subsequent to that lease agreement
the first and the second
respondent went ahead and sold the same property to a third party, Ms
Potgieter. In the second place it
will be recalled that the applicant
the ice making enterprise from the very same respondents, who were
conducting the same business
on the same premises. Now they are
complaining that the applicant is conducting an illegal business on
their property on the grounds
that it had not been rezoned for
business purposes. This accusation by the respondents has all the
classic hallmarks of a litigant
who was
in
pari delicto
. I say no more about it.
[81] The aforesaid two
scenarios indicate, in my view, that the spoliation was calculated to
force the applicant off the property.
It would seem that Ms Potgieter
was unaware that the property she purchased was subject to a very
burdensome lease contract of
almost ten long years.
[82] Upon my perusal of
the papers to figure out exactly what was going on here, I got the
feeling, and it was a very strong feeling,
that the respondents, on
purpose it would seem, withheld from Ms Potgieter vital information
relating to the lease agreement in
terms of which the applicant was
entitled to occupy the property she bought. The courts frown upon
such scrupulous conduct. In
this instance, I am satisfied that it is
fair and equitable that the respondents be visited with a punitive
order of costs.
[83] These then are the
reasons for the order I made
ex temporae
on 16 September 2012.
I now close the chapter.
[84] Accordingly I make
the following order:
84.1. Kondonasie verleen
word vir nie-nakoming van die Hofreëls met betrekking tot vorms
en betekening en dat hierdie aansoek
aangehoor word as ‘n
dringende aansoek.
84.2. Die derde
respondent onmiddellik die vrye en ongestoorde kragtoevoer tot die
perseel bekend as
Youngstraat 1, Eureka, Bethlehem
sal
herstel.
84.3. Die eerste en
tweede respondent die koste van hierdie aansoek sal betaal op die
skaal soos tussen prokureur en kliënt.
______________
M.H. RAMPAI, J
On
behalf of applicant: Adv PJ J Zietsman
Instructed
by:
Honey
Attorneys
BLOEMFONTEIN
Breytenbach
Mavuso Inc
BETHLEHEM
On
behalf of respondents: Adv W Groenewald
Instructed
by:
Lovius
Block
BLOEMFONTEIN
Human
Le Roux Meyerowitz
BETHLEHEM
/spieterse