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[2009] ZAGPPHC 103
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Amarylis Investments (Pty) Ltd v Gauteng Province Driving School Association and Another (41787/09) [2009] ZAGPPHC 103 (2 September 2009)
NORTH GAUTENG HIGH COURT, PRETORIA
DATE: 02 September 2009
CASE NO:41787/09
In the matter between:
AMARYLIS INVESTMENTS (PTY) LTD
………………………………….
APPLICANT
AND
GAUTENG PROVINCE DRIVING SCHOOL ASSOCIATION
……………..
FIRST
RESPONDENT
CITY OF JOHANNESBURG METROPOLITAN MUNICIPALITY
………................
SECOND RESPODENT
JUDGMENT
PHATUDI J
[1] The applicant instituted this urgent application for
spoliation seeking relief, among others,
"That [the] applicant's possession of the parking area on Erven
847, 849 and 851 Ferndale, Randburg be resorted immediately
upon
service of this order on the First Respondent."
[2] The First Respondent disputes the Applicant's allegation of
spoliation and allege "contra spolie". It is evident
from
the papers filed that the Second Respondent, City of Johannesburg
Metropolitan Municipality, being the owner of the property,
approved,
at the instance of the Applicant on the 12 September 2007 as per
Government Gazette No 253, the usage of the parking
area as defined
thereat for the benefit of the applicant.
[3] The approval is known as Amendment Scheme 04-7857 which provided
parking,
"For the exciting building, comprising 10301 m2 of floor area a
total of 460 parking spaces have been provided, of which 100
parking
bays have been provided on site and 360 parking bays have been
provided on adjoining Erven to the North and North west
of the site
in terms of the erstwhile Randburg Town Council Master Plan for the
Central Area of Randburg and the pedestrians areas
note shall be
taken of Amendment Scheme 1187, Annexure 31187, in respect of Erven
846,847.848.849, 1/850, 851 and 853 Ferndale
where provision is made
for 540 free parking spaces..." (my underline.)
[4] The Applicant, as alleged, has been in possession of the said
allocated parking. It is further alleged that the bus transit
had
used portion of the parking area, as their on and off loading zone
for its passengers.
[5] A Palisade fence was then erected, apparently by the Second
Respondent, around the Erven 849, 851 and portion of 847 as clearly
marked on annexure NL3 attached to the Applicant's founding
Affidavit. Annexure NL3 is further amplified and supported by the map
attached to the First Respondent's answering affidavit, (page 72 of
the paginated papers.)
[6] On the 23 April 2009, the Applicant cleaned the area as marked on
annexure NL3 and has since caused the gate to be chained
and locked.
[7] On the 23 May 2009, the First Respondent cut the lock together
with the chain that was used by the Applicant to lock the premises.
The cut lock and chain were subsequent thereto given to Applicant's
employee, one S Tshuma. The applicant engaged the First and
Second
Respondent. The umpteenth correspondence between the parties did not
bear any fruit.
[8] In rebuttal, the First Respondent submitted that they have
concluded a lease agreement with the Second Respondent on the 28
May
2009. A copy of the lease agreement is attached to the answering
affidavit marked "GM3".
[9] The preamble of the agreement state:
"And whereas the COJ has consented to grant the use of Portion 1
of Erf 847 Ferndale(the Property) to the user, which will
use the
property for a temporary period of 6 months commencing on 1 May 2009
and terminating on 31 October 2009 for a training
ground for learner
drivers..." AND WHEREAS the user has accepted the use of Portion
of Erf 847 Ferndale as shown on the locality
map attached hereto as
Annexure A."
[10] In considering the evidence tendered and the submissions made by
both counsel for the Applicant and First Respondent, it is
clear that
the Applicant is duly authorised since 2007 to utilize the parking
areas marked NL3 and amplified by Annexure A of First
Respondent's
answering affidavit.
[11] I am of the view that the Applicant has been in possession of
the Parking area since 12 September 2007. The parking area is
a
public area entitling any member of the community to use freely.
[12] The Applicant has been in possession with the duties on its
shoulder to, among others, keep the area clean and user friendly.
I
accept that the Applicant has been in an undistributed possession for
a period since 12 September 2007.
[13] Counsel for the First Respondent conceded that the First
Respondent did cut the lock and chain without the court order. He
further conceded that the First Respondent knew that the said lock
and chain belonged to the Applicant.
[14] It is noted that the lease agreement was concluded after the
cutting of the Applicant's lock and chain. I infer that the
lease
agreement between the First and second Respondent was concluded to
quote the bitter pill of spoliation with a little sugar.
The
retrospective effect of the lease agreement is the sugar I am
referring to.
[15] I, as result, find that the First Respondent spoliated the
Applicant by cutting the lock and chain the Applicant used to
safeguard property it possessed undisturbed against vandalism.
[16] I thus make the following order:
[16.1]The Applicant's possession of the parking area on Erven 849,
851 and portion of 847 Ferndale, Randburg be restored immediately.
[16.2]The First Respondent is ordered to remove all chains and locks
on gates leading to the parking area on Erven 849, 851 Ferndale,
Randburg.
[16.3]The First Respondent is ordered to pay the Applicant's costs on
party and party scale.
AML PHATUDI
JUDGE OF THE NORTH GAUTENG HIGH COURT
Heard on: 25 August 2009
For the Appellant: Adv VAN RENSBURG
Instructed by: Messrs TIM DU TOIT & KIE
For the Respondent: Adv G SHAKOANE
Instructed by: Messrs DOLF MOSOMA ATTORNEYS
Date of Judgment: 02 September 2009