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[2011] ZANCHC 3
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Lotz v Knipe and Others (304/2011) [2011] ZANCHC 3 (1 April 2011)
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IN THE HIGH COURT OF SOUTH
AFRICA
NORTHERN CAPE HIGH COURT,
KIMBERLEY
CASE NO: 304/2011
HEARD: 10/03/2011
DELIVERED: 01/04 /2011
In the matter between:
CARROL JESSIE KATHLEEN LOTZ
…..........................................................
APPLICANT
and
ROBERT PETRUS JANSEN KNIPE
….............................................
FIRST
RESPONDENT
JAQUELINE MOIRA DEBORAH VIGNE
…..............................
SECOND
RESPONDENT
ANDRE BAZZET JANSEN KNIPE
….............................................
THIRD
RESPONDENT
JOHN DOUGLAS JANSEN KNIPE
….........................................
FOURTH
RESPONDENT
MOIRA ELIZABETH KNIPE NO
….................................................
FIFTH
RESPONDENT
MOIRA ELIZABETH KNIPE NO
…................................................
SIXTH
RESPONDENT
MOIRA ELIZABETH KNIPE
….................................................
SEVENTH
RESPONDENT
THE MASTER OF THE NORTHERN CAPE
HIGH COURT
….............................................................................
EIGHTH
RESPONDENT
JUDGEMENT
HUGHES-MADONDO AJ
In these motion proceedings the
applicant brought an urgent application for a
mandament van
spolie
and an interim interdict. The matter was initially set
down for 24 February 2011 but was by consent adjourned to enable the
respondents
to file their opposing affidavit by 25 February 2011 and
the applicant her replying affidavit by 02 March 2011. The matter
was
scheduled to be heard on 04 March 2011, however by this date the
respondents had not had sight of the applicant’s heads of
argument, which had been filed with the Registrar on 03March 2011.
The matter was yet again adjourned by consent to 10 March
2011 and
the issue relating to costs was reserved. An opportunity had been
created for both parties to serve and file their heads
of argument.
On 10 March 2011 the application proceeded.
It is necessary to outline the
events that preceded the current application. The applicant and the
first to fourth respondents
are siblings. The seventh respondent is
their mother. Upon the death of their father, the seventh respondent
was appointed the
executrix of the estate. Of the many assets within
the estate were two companies namely, Schaapplaats 978 (Pty) Ltd and
Kameelhoek
(Pty) Ltd. These companies owned two farms, Langberg and
Kameelhoek (“the farms”), respectively. At the time of
his
death, the deceased was the sole director of these companies.
The seventh respondent succeeded him as the sole director of the
two
companies. This did not last long. On 25 August 2010 the seventh
respondent was removed as sole director. The second, third
and
fourth respondents appointed themselves as directors instead. As a
result the seventh respondent instituted proceedings in
this court,
in the matter of Knipe NO and 2 Others v Knipe and 10 Others, case
number 1968/10, against the applicant and her
siblings amongst
others. The parties make references in their pleadings to this
matter being the main application.
The applicant submitted that
during her father’s life time and even after his death she was
the manager of the farms and
had gaming rights on these farms. On
the appointment of the seventh respondent and later the second to
fourth respondents as
the new directors the applicant retained her
position as manager of the farms and her gaming rights on these
farms.
It is common cause that on 09
January 2011, without the knowledge of the applicant, the fourth
respondent changed the locks on
the gates of the farms. It is
further common cause that, during the week of the 14
th
to
18
th
February 2011, the fourth respondent shot and
slaughtered eight fully matured bulls (“livestock”) of
the farms.
On 23 February 2011, in this
court, the applicant instituted proceedings in the matter of Lotz
versus Knipe and 10 Others, case
number 276/11, referred to by the
parties as the related application. Both the main application and
the related application are
pending and are afforded a hearing in
due course.
URGENCY
The applicant argued that the
urgency to institute this application arose when she was advised on
18 February 2011 of the fourth
respondent’s conduct of the
week of the 14
th
to 18
th
February 2011. The
aforesaid conduct together with his conduct of 09 January 2011
necessitated that she institute these proceedings
on an urgent
basis.
On the advice of junior
counsel, that spoliation relief should not be sought simultaneously
with the prohibitory relief on 23
February 2011(related
application), the applicant accordingly dispensed with the relief
sought in these proceedings. The applicant
argued that under no
circumstances did she acquiesce in the respondents conduct of both
09 January 2011 and of the 14
th
to 18
th
February 2011. This is evident from her pursuing the related
application.
The applicant contends that the
fourth respondent is in the process of moving into the guest house
which is used for hunting operations.
Further, that the respondent’s
are unlawfully interfering with the staff that the applicant
utilises in the game hunting
operations.
In summary the case of the
applicant is that the aforesaid conduct of the respondents has
created circumstances upon which the
relief she seeks, may be
granted on an urgent basis. Mr. Halgryn SC, for the applicant, urged
upon this court to consider this
matter as urgent, as ultimately the
applicant required restoration of the
status quo
.
Mr. Loubsher, counsel for the
second, third and fourth respondents, argued that no case had been
made out by the applicant for
the relief sought on an urgent basis.
That she has not shown that any urgency exists for this court to
entertain this application
in the normal cause.. In support of his
argument, he submitted that the applicant brought the related
application on 23 February
2011, in due course, and not on an urgent
basis. In the related application, the relief sought is similar to
that which appears
in this application. Mr. Loubsher also submitted
that the events of the week of the 14
th
to 18
th
February 2011 have no bearing on the spoliation application and
therefore cannot suddenly render urgency.
It is trite that Rule 6 (12)
(b) of the Uniform Rules of Court sets out two requirements, (i) the
circumstances which render a
matter urgent must be set out
explicitly and, (ii) why the applicant could not be afforded a
hearing in due cause. Non –
compliance the aforesaid
requirements will result in the dismissal of an applicant’s
application.
See
Shelton v Commissioner For
The
SARS
2000 (2) SA 106
ECD at 113E- I
.
The circumstances set out in
the applicant’s founding affidavit as regards the conduct of
the fourth respondent of 09 January
2011 and the week of the 14
th
to 18
th
February 2011, in my view, constitutes sufficient
compliance with Rule 6 (12) (b). Further, the relief sought relating
to the
restoration of the status quo, by its very nature, renders
the application urgent. I am therefore satisfied that the
circumstances
that the applicant has set out above are sufficient to
render this application being dealt with on an urgent basis.
SPOLIATION
Mr. Halgryn SC, on behalf of
the applicant, submitted that by virtue of the fact that the
applicant was manager of the farms and
that she owned the gaming
rights on the farms, she had been in their peaceful and undisturbed
possession. The applicant was dispossessed
of the farms when the
fourth respondent acted in the manner that he did on 09 January 2011
and the week of the 14
th
to 18
th
February
2011,coupled with the fact that he was moving into the guest house
which was used for hunting and the fact that the
respondents were
unlawfully interfering with the staff whose service the applicant
utilised for the hunting operation. The aforesaid
conduct of the
respondents necessitated the applicant initiating proceeding for a
spoliation order. He stressed that she had
had factual control over
the farms when she was dispossessed. Further that at this stage the
merits of her possession were of
no consequence.
It emerged from the application
papers that on 22November 2010 the fourth respondent obtained a
family violence interdict against
the applicant. This interdict
prohibited her from “
enter
[ing]
the complainant’s
[fourth respondents]
place of employment at Kameelhoek Farm and
Langberg Farm
[the farms]”.Mr. Halgryn SC argued that this
interdict did not strip the applicant of her position as manager of
the farms
neither did it take away her gaming rights.
Mr. Loubsher, who represents
the second to fourth respondent, submitted that there was no basis
for the spoliation application.
According to him the applicant had
filed the related application a few weeks before launching this
application and in both applications
the relief sought was similar.
He went on to state that the events of the week of the 14
th
February 2011 to 18
th
February 2011 did not have any
bearing on the spoliation, as the alleged spoliation had taken place
on 09 January 2011and that
those events had a bearing on the second
relief (interim interdict) sought by the applicant in her papers.
Counsel contended furthermore
that it could not be said that the applicant was in peaceful and
undisturbed possession of the farms
as at 09 January 2011 as the
fourth respondent had been armed with his interdict, as far back as
22 November 2010. Therefore
the alleged spoliation of 09 January
2011 could not have taken place as the interdict had effectively
removed the farms from
the applicant’s alleged undisturbed
possession, he maintained.
Mr. Loubsher argued that the
changing of locks by the fourth respondent on 09 January 2011 did
not constitute an unlawful act
as there was an interdict prohibiting
the applicant from entering the farms and that the question that he
took the law into his
own hands does not arise. The fourth
respondent was therefore entitled to change the locks. Mr. Loubsher
also submitted that
the applicant was no longer manager of the
farms, that her gaming rights had been revoked and that she does not
own any cattle
or game on the farms. Mr. Halgryn SC countered these
allegations aside stating that these did not amount to valid
defences in
law that could be raise in spoliation proceedings.
An apt passage as regards the
nature of a mandament van spolie was quoted from Wille
Principles
of South African Law
7
th
edition at page 198 in
Willowvale Estates CC and Another v Bryanmore Estates Ltd
1990 (3) SA 954
W at 956 D-I
:
“
Possession
is regarded by the law with such significance that a person who is in
possession of a movable thing is presumed to be
the owner of it. As a
consequence of this importance, the law affords a possessor every
possible protection and assistance; not
only in retaining his
physical control, but also in regaining it when he has been
unlawfully dispossessed. The result is that a
possessor may resist
anyone who attempts to deprive him of possession; he may remain in
undisturbed possession until another person
has legally established a
better title than his to own or possess the property in question; and
if he is despoiled of possession
he may then and there( ie before the
disposition is complete) eject his adversary or he may by summary
legal process, known as
a mandament van spolie, obtain immediate
restitution of possession without regard to his want of title. These
remedies are available
to any possessor, whether civil or natural or
bona or mala fide; to a possessor of moveable or immovable property,
or of an incorporeal
right, such as a right to have a nameplate
affixed to a wall, or a servitudal right even to a possessor of
property which he has
stolen.
If a possessor has been deprived
of possession by violence, fraud, stealth or some other illicit
method, he may obtain from the
court a mandament van spolie, or
spoliation order, commanding the dispossessor to restore the
possession to himself, the applicant.
It is a fundamental principle
that no man is allowed to take the law into his own hands.
Consequently if a person without being authorised by a judicial
decree, dispossesses another person, the court, without inquiring
into the merits of the dispute, will summarily grant an order for
restoration of possession to the applicant, as soon as he has
proved
two facts; namely, that he was in possession, and that he was
despoiled of possession by the respondant
. The policy of law is
neatly summed up in the maxim,
spoliatus ante omnia restituendus
est.”
In the proceedings before me
there exist two instances of dispossession. Firstly, that of 09
January 2011 and secondly that of
the week of the 14
th
February to 18
th
February 2011. When these took place the
fourth respondent was armed with a family violence interdict. Even
so the applicant
was still manager of the farms and had not been
dismissed as such, nor had her gaming rights over the two farms
seize to exist
as a result of this interdict.
The fourth respondent’s
conduct in changing the locks was executed without judicial decree
and therefore I am of the view
that he took the law into his own
hands. The interdict clearly sets out the legal and judicial course
to be taken if the applicant
failed to comply with the interdict,
that is, giving effect to the warrant which had been authorised.
This would have been the
judicial step, which the fourth respondent
ought to have engaged. There was a judicial course available to him
but he opted to
take the law into his own hands.
His further conduct of the week
of the 14
th
to 18
th
February 2011 is also
another instance where he acted without judicial decree. The
slaughtering of the livestock whilst they
were still under the
control of the applicant as manager, and whilst she still had gaming
rights over the farms, was precipitate
of the fourth respondent.
This further constitutes the fourth respondent taking the law into
his own hands. It in fact emerged
in argument that the livestock
does not even belong to the respondents, but rather to the grand
children of the seventh respondent.
I am in agreement with Halgryn
SC that the fourth respondent’s ongoing conduct led to the
applicant launching these spoliation
proceedings and she is entitled
to have restoration of the status quo. The fourth respondent seems
to be a law unto himself.
Though there are aspects relating to the
merits of the applicant’s possession, the applicant as
possessor is protected
against being dispossessed without judicial
intervention.
The farms are immovable property
and as such the applicant could not physically possess them.
See
Meyer v Glendinning
1939 CPD84
;
Nienaber v Stuckey
1946 AD 1049
at 1055 – 6.
However her gaming rights over
these farms as well as her rights as manager retained her possession
over the farms, in spite the
family violence interdict.
I therefore find that the
applicant was entitled to bring these spoliation proceedings to
ensure that the status quo restored.
INTERIM INTERDICT
In the case of
Knox D’Arcy
Ltd v Jamieson
1996 (3) SA 348
(A) at 372E-C,
the
requirements necessary for the granting of an interim interdict were
set out. They are (a) that the right which is the subject
matter of
the main application and which the applicant seeks to protect by
means of interim relief is clear or, if not clear,
is
prima facie
established, though open to some doubt; (b) if such a case is
only prima facia established, there is a well grounded apprehension
of irreparable harm to the applicant if the interim interdict is not
granted and the applicant ultimately succeeds in establishing
his or
her right; (c) there is no other satisfactory remedy ; (d) the
balance of convenience favours the granting of interim
relief.
The parties have demonstrated
that the applicant has a
prima facie
right (gaming right over
the farms); even though such maybe open to some doubt. The applicant
has also demonstrated that, there
is an apprehension of harm. This
is in the form of the conduct of the fourth respondent slaughtering
the livestock and that there
is no other remedy available to protect
her
prima facie
right. Lastly, the balance of convenience in
granting the interim relief favours the applicant as the main and
related application
mentioned above needs to be determined before
the respondents deplete and destroy what is left of the estate.
I therefore conclude that
there exist sufficient facts before me to grant the interim relief
sought by the applicant.
COSTS
The first respondent from the
outset (2 March 2011) agreed to abide the court’s decision as
long as no cost order was sought
against him. The applicant does not
seek any costs against the first respondent. No cost order is sought
against the fifth to
seventh respondents, the applicant’s
mother. The seventh respondent, who represents the fifth to the
seventh respondents,
supports this application.
As regards the second, third
and fourth respondents the applicant submits that the fourth
respondent did not act on a frolic of
his own and his actions were
supported by the second and third respondents. In any event, at no
stage have they distanced themselves
from the actions of the fourth
respondent. The applicant seeks a cost order against the three of
them. I conclude that under
the circumstance a case has been made
out by the applicant in respect of costs against the second, third
and fourth respondents.
ORDER
The order that I make is in
terms of the amended order prayed, as set out below:
Pending the outcome of the
application issued out of this court, (including all appeals), in
the matters of
Lotz v Knipe and 10 Others Case Number 276/11 and
Knipe NO and 2 Others v Knipe and 10 Others Case Number 1968/10
:-
The first to fourth
respondents (the respondents) are ordered to return undisturbed
possession to the applicant of the farms
known as Kameelhoek and
Langberg, registered in terms of names of Schaapplaats 978 (Pty)
Ltd and Kameelhoek (Pty) Ltd including
all movable and immovable
property thereon, situated outside Kimberley (“the farms”)
to the applicant, by close
of business on the date of this order;
alternatively authorising the Deputy Sheriff to remove all the
locks of the gates of
the aforesaid farms and replace them with
locks provided by the applicant;
The respondents are ordered to
return undisturbed possession of all the game and cattle, including
their accrual (“the
stock”) located on the farms, to
the applicant, by close of business on the date of this order;
The respondents are hereby
interdicted from unlawfully interfering with the farming and /or
gaming operations of the applicant
on or at the farms;
The respondents are hereby
interdicted from interfering with the applicant’s employees
and/or the employees of Schaapplaats
(Pty) Ltd or the employees of
Kameelhoek (Pty) Ltd, located at the farms, either personally or
utilising a third party, in any
manner or form, including but not
limited to:-
threatening, or taking steps,
to have them evicted from the farms;
threatening to, or in fact,
terminating their services;
harassing and intimidating
such employees;
controlling, or attempting to,
control the employees in order to act in any unlawful manner.
The respondents are hereby
interdicted from any slaughtering, hunting or removal of stock,
(cattle or game), situated at the farms;
The second, third and fourth
respondents are ordered to pay the costs of this application.
HUGHES-MADONDO
ACTING JUDGE
NORTHERN CAPE DIVISION
osts of such procee
APPEARANCES:
Counsel for the applicant:
Adv.
L.
HALGRYN SC
Attorneys for applicant:
PAGEL
SCHULENBURG INC. c/o FLETCHER’S ATTORNEYS
Counsel for the second, third
and fourth respondents:
Adv.
P. J.
LOUBSHER
Attorney for second, third and
fourth respondents:
BOTHA & DE JAGER INC. c/o ENGELSMAN
MAGABANE INC.