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[2009] ZAGPPHC 252
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Ioannis Spyridis t/a Twinz Burger & Ribs v Sasol Pension Fund (28494/09) [2009] ZAGPPHC 252 (29 May 2009)
IN THE HIGH COURT OF SOUTH AFRICA
NORTH
GAUTENG HIGH COURT, PRETORIA
CASE
NUMBER: 28494/09
DATE:
Friday, 29 May 2009
IOANNIS
SPYRIDIS T/A TWINZ BURGER &
RIBS
..................................................
APPLICANT
v
SASOL
PENSION
FUND
....................................................................................
RESPONDENT
JUDGMENT
SAPIRE,
AJ
The
respondent is the owner of a shopping mall, called the Kolonnade
Retail Park. The applicant was at one time a tenant of one
of the
shops in the centre. He was unable however, to make his business pay,
he fell in arrears with his rent and he was eventually
evicted in
terms of a order of court and a judgment for the outstanding rental
was made against him. The respondent was evicted
from the premises
and an attachment was made of the movable property therein. An
agreement was reached between the parties in terms
of which the
applicant agreed to pay R50 000.00 on account of the judgment debt in
return for which the respondent agreed to release
the goods under
attachment. The agreement further provided that the applicant will
have access to the premises, where the goods
were, in order to remove
them. This right terminated on the 12th of August 2008. Subsequent
thereto the applicant, on a number
of occasions visited the premises,
on each occasion with the knowledge and consent of the respondent or
its representatives and
removed a portion of the goods under
attachment. By the 12th of August 2008 there were still goods
belonging to the applicant on
the premises. Subsequent to that date
the respondent was allowed to remove goods from the premises but on
the 9th of May 2009 the
respondent refused the applicant access to
remove the remainder of the goods and in effect refused to release
the goods until the
balance of the writ was paid. The balance of the
writ is in the vicinity of R17 400.00.
The
applicant claims that the action of barring him from the premises
amounts to a spoliation and has come as a matter of urgency
to be
given access to the goods and to be allowed to remove them.
I
was informed that the writ has been re-issued and that an attachment
of the goods, still on the premises, has been made. The applicant
has
saught to amend its claim by adding one for the setting aside of this
attachment. This is irregular as the attachment had not
taken place
at the time the application was initiated and the merits of the
dispute raised by the applicant, arising from the ownership
of the
goods attached may not be dealt with in this application.
The
court is concerned only with the application for what has been said
is a spoliation order. The applicant would have to overcome
a number
of difficulties before such an order, as is saught by him, could be
granted. Firstly I cannot see that any urgency attaches
to the matter
for whatsoever. The goods have been on the respondent’s
premises for a long time and the applicant’s
right of access,
if any, terminated by agreement on the 12th of August 2008. Any
urgency which there may be is self created by
the applicant who has
had ample opportunity to remove all his goods.
The
second difficulty that he faces is that he has not been unlawfully
deprived of possession. The mere denial of access to the
premises is
not in itself a spoliation and authority for this is to be found in
DE BEER VS ZIMBALI ESTATE MANAGEMENT ASSOCIATION
(PTY) LTD
2007 (3)
SA 254
and TELKOM SA LTD VS XSINET
2003 (3) SA 309
, (SCA).
The
applicant’s claim to the goods, still on the premises, cannot
be enforced by a possessory remedy such as the mandament
van spolie.
The application is therefore misconceived and must fail. In regard to
costs I will make no order, relating to the wasted
costs incurred
last week, when the matter had to be postponed, because the
respondent’ affidavits were not filed timously.
The
order made by this court is that the application is dismissed with
costs.
SAPIRE,
ACTING
JUDGE OF THE HIGH COURT