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[2008] ZAWCHC 183
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Spinks v Botha and Others (16669/2007) [2008] ZAWCHC 183 (24 April 2008)
JUDGMENT
IN THE HIGH COURT OF SOUTH AFRICA
(CAPE OF
GOOD HOPE PROVINCIAL DIVISION)
CASE NO: 16669/2007
DATE: 24
April 2008
In the matter between:
YVONNE DOROTHY SPINKS Applicant
And
ELMARIE SUSAN BOTHA First Respondent
ALBE VAN DER WESTHUIZEN Second Respondent
ESSENCE BY ELMARIE CC Third Respondent
JUDGMENT
LOUW. J
:
[1] This is the extended return day of the rule
nisi,
operating as a temporary interdict issued by
Goodman, AJ
on 4
December 2007. The final interdictory relief sought is for an order:
"1. Ejecting the respondents from the premises of the applicant's business at
Vanilla Body & Beauty Therapy, Unit 3, Gerfa Centre,
6
th
Avenue,
Melkbosstrand, Cape Town.
2. Interdicting and restraining the respondents and any of their employees or
agents from harassing, threatening and intimidating
the applicant or any of the
employees of the business Vanilla Body & Beauty Therapy.
3. Granting such further and alternative relief.
4. Directing the first and second respondents, jointly and severally, to pay the
costs of the application".
[2] Pending the return day, the respondents were interdicted and
restrained from entering the premises aforesaid and were ordered
to do
whatsoever is necessary to allow the applicant to enter and remain at the
premises. The Sheriff was authorised to assist the
applicant in entering and
remaining at the premises should such assistance be necessary or requested.
[3] The respondents and any of their employees or agents were
further interdicted and restrained from harassing, threatening and intimidating
the applicant and any of the employees of the business Vanilla Body & Beauty
Therapy.
[4] The applicant is Yvonne Dorothy Spinks who describes herself
as an adult female business person who resides at Melkbosstrand and
who conducts
a beauty therapy business under the name Vanilla Body & Beauty Therapy. The
first respondent is Elmarie Susan Botha
who resides as No. 4, 20
th
Avenue Melkbosstrand, Cape Town. The second respondent is Albe van der
Westhuizen, an adult male who likewise resides at No. 4, 20
th
Avenue
Melkbosstrand, Cape Town, and who is the first respondent's boyfriend. The third
respondent is a close corporation Essence
by Elmarie CC.
[5] The applicant and the first respondent were the members of
the third respondent with each holding 50% of the members' interest.
The
applicant and the first respondent, through the third respondent, carried on the
business of beauticians under the name and style
Le Salon from 14 August 2007,
at Unit 3 Gerfa Centre, 6
th
Avenue, Melkbosstrand (to which place I
shall refer as "the premises")
[6] The Le Salon business employed three employees; the first
respondent, Ms Lahetsa Beukes and Ms Nadine Kraus. The applicant provided
the
capital to set up the business as investor and concluded a written lease with
the owner of the premises in her own name on 31
July 2007, which lease is, in
terms of the written contract, to endure for a period of two years, from 1
August 2007 to 31 July 2009
with an option to renew. The third respondent close
corporation was registered on 28 August 2007 to serve as a vehicle through which
the applicant and first respondent would conduct the aforesaid business.
[7] It is common cause that the applicant and the first
respondent soon fell out and that by October 2007 it was clear that their
business relationship would have to be terminated. On 31 October 2007, the first
respondent phoned the applicant. The contents of
this conversation is in
dispute, but as a result the first respondent did not attend at the premises
from 1 to 13 November 2007.
By a letter dated 8 November 2007 written by her
attorney, the first respondent took up the position that the applicant
interfered
with the running of the business and in terms of the letter "the
applicant is required to refrain from entering the premises to avoid
a
restraining order".
[8] The applicant's attorney replied on 12 November that the
applicant was entitled to partake in the management of the business
and, in
addition, stated that the third respondent (the close corporation) would be
liquidated if the applicant's investment
of R80 000 in the business was not
repaid by the third respondent.
[9] On 13 November 2007, the first respondent returned to the
premises for the first time since 31 October 2007. It is common cause
that a
"discussion" arose in regard to certain payments the first respondent alleged
were due to her as commission on the sale of
certain products. The exact content
of this exchange between the applicant and the first respondent is in
dispute.
[10] The applicant considered this encounter with the first
respondent to be the "final straw" and as a result, through her attorney,
the
applicant as tenant of the premises, gave written notice on 13 November 2007 to
the first and third respondents to vacate the
premises. In the notice to the
third respondent, the applicant took up the attitude that the lease for the
premises was between her
and the owner of the property and that as the only
legal tenant of the premises, the applicant gave the close corporation notice
to
immediately vacate the premises with effect from close of business on 13
November 2007. It is further stated in the notice that
the close corporation
would be free to conduct its business from whatever other premises it deems fit
to do. Notice is further given
that no items may be removed from the premises as
the applicant claimed that the ownership thereof vested in her.
[11] In the notice on the same day to the first respondent, the applicant
attached a copy of a letter to the corporation and informed
the first respondent
that in terms of the aforesaid letter, the close corporation is required to
vacate the premises. The letter
then proceeds as follows: "As a member of the
corporation you are hereby formally given notice to refrain from entering the
premises
with effect from close of business on 13 November 2007. Kindly note
that no items may be removed from the premises as ownership of
ah equipment,
fittings and furnishings vest in our client. Any attempt by yourself to
interfere with our client or her rights as
a tenant shall result in immediate
legal action against you".
[12] The applicant, after giving the aforesaid notices and still
on 13 November 2007, changed the locks to the premises. She also
commenced to
conduct a new business at the premises under the name and style of Vanilla Body
Beauty Therapy. The erstwhile employees
of Le Salon, Ms Beukes and Ms Kraus,
fell in to work for this new business.
[13] The first respondent's position is set out in the papers in
this application. It is that the applicant "unilaterally elected
to dissolve"
the business conducted through the close corporation. In a letter by her
attorney dated 14 November 2007, the stance
is adopted that the business
relationship has broken down and that it must be terminated. The first
respondent further complained
about "the unlawful" changing of the locks to the
premises and tendered to continue working in the business. On the same day, 14
November 2007, the applicant's attorneys wrote making it clear that should the
first respondent attempt to return to the premises,
the applicant would apply
for relief to this court.
[14] It is therefore clear that from 13 November 2007, the
applicant's intention was to take exclusive possession of the premises
and to
conduct her own business there, to the exclusion of the first respondent. The
first respondent was aware of this intention
by the latest on 14 November
2007.
[15] This was the position until the morning of 19 November 2007
when the first respondent returned to the premises. The first respondent,
with
the help of the second respondent, forcibly took possession of the keys to the
premises from Ms Beukes who was in the process
of unlocking the front doors of
the premises. In the process Ms Beukes suffered a physical injury and left the
premises. The first
and second respondent thereupon took possession of the
premises and later that morning barred the other employee, Ms Kraus, from
working at the premises. The first respondent's contention in these papers are
that she on 19 November 2007 gained "lawful access"
to the premises.
[16] Pursuant to these events, the applicant immediately
launched the present application, which is a spoliation application, on the
same
day, 19 November 2007, alleging that she had been unlawfully deprived of her
possession of the premises. On 4 December 2007,
the order to which i referred to
earlier, was granted by this Court. On 20 March 2008, in a separate application,
the third respondent
was finally wound up by order of this Court.
[17] In argument, Mr
Fisher
on behalf of the first and
second respondents, opposed the final relief on three bases:
The applicant has not shown that she was in peaceful and undisturbed possession
of the premises on 19 November 2007.
The first respondent's conduct on 19 November 2007 constituted the regaining of
possession by way of lawful counter-spoliation. This
is an alternative argument
to the first point.
In regard to the interdict restraining the first and second respondents from
harassing
r
threatening and intimidating the applicant or the
employees of the applicant's business, Mr
Fisher
contended, the applicant
has not made out a case on the
facts.
[18] In regard to the first point raised by the respondents, the
legal position is set out as follows in a Full Bench judgment of
this Court in
Ness & Another v Greeff
1985(4) SA 641 (C) at 647D-G:
"According to the authorities, the applicant for a spoliation order must first
of all establish that he was in peaceful and undisturbed
possession of the thing
in question at the time he was deprived of possession. By the words "peaceful
and undisturbed" it is probably
meant sufficient, stable or durable possession
for the law to take cognisance of it. (See Professor A J van der Walt's article
1983
under
2 SALJ 172
at 177) Two elements are essential for the possession
which is protected against spoliation, namely
detentio
(the physical
holding of and control over the thing) and
animus
(the intention of
securing some benefit for oneself). It is not essential for either of these
elements for the possession to be of
the whole thing or exclusive or continuous
or personal. (See
Bennett & Pringle (Ptv) Ltd v Adelaide Municipality
1977(1) SA 230 (E) at 233G-H). The justice or injustice of the claimant's
possession is irrelevant. The appellant need not prove his
right to possession,
he need merely prove factual possession. Thus
Van Bierk, JA
says in
Yeko's
case,
supra,
at 739F-G that whether occupation was acquired
secretly or even fraudulently is not the enquiry and he refers to Voet 21.2.16
which
is to the effect that the injustice of the possession of the person
de-spoiled is irrelevant as he is entitled to a spoliation order
even if he is a
thief or a robber.
[19] In my view, it is clear that the applicant was in peaceful
and undisturbed possession from 13 to 19 November 2007. The applicant
was the
lessee of the premises and she was throughout in factual control thereof. She
had, to the knowledge of the first respondent,
changed the locks on 13 November
2007 and the keys to the premises were under her control, through her employee,
Beukes, at the time
Beukes was dispossessed of the keys. The applicant held the
premises with the intention of gaining an advantage and benefit for herself.
She
carried on a new business from the premises and it was made clear in the letter
of her attorney on 14 November 2007 that if the
first respondent should attempt
to enter the premises, an application would be made for an order to bar her from
entering.
[20] As indicated in the
Ness
judgment to which I
referred earlier, the lawfulness or justice or otherwise of the applicant's
possession is not a relevant issue
at this stage. The merits of any dispute in
regard to who is entitled to be in possession cannot, and does not, constitute a
defence
to a spoliation application .
[21] The second point raised by
Mr. Fisher
was that the
respondents' conduct amounted to counter-spoliation.
This issue is fully dealt with by Van der Merwe:LAWSA (1
st
reissue)
Vol. 27 pages 199-201. Counter-spoliation is, so it appears, based on the fact
that a possessor may resist illegal attempts
to deprive him or her of
possession. In the result, a person acting as a counter-spoliator who is
deprived or threatened with deprivation
of possession, may exercise self-help in
order to regain possession if this is done immediately or, as it is stated in
the authorities,
Instanter.
This is the requirement, it must be done
immediately.
[22] Van der Merwe points out that recovery is considered to be
instanter
or immediate:
"...if it is stiEl part of the
res gestae
of the act of spoliation,
namely a mere continuation of the existing breach of the peace.
If the victim of the first spoliation fails to act
instanter
and takes
the law into his own hands to regain possession after the original act of
spoliation has been completed, his conduct is
considered to be a new breach of
the peace or a separate act of spoliation entitling the first spoliator to a
spoliation order against
him.
Counter-spoliation is thus a
plea admitting the spoliation but alleging that the act was mereEy to counter
the applicant's prior
wrongful spoliation". Later on, the author remarks with
reference to the decision of
Mans v Loxton Municipality
1984(1) SA 966
(C) as follows;
"This case shows that the
instanter
requirement could be perceived from
two inter-related angles, namely whether the counter-spoliator has acted
immediately and consistently
to regain his possession and whether the spoliator
has become ensconced in his possession".
[23] The author then refers to and discusses a number of
decisions in which the requirement of
instanter
was considered and
applied. In the case of
De Beer v Firs Investment ltd
1980(3) SA 1087
(W)
p
the applicant had taken possession of shop premises against the
will of the owner of the premises and had installed three extra locks
on the
door. A few hours later, after the applicant had left, the maintenance engineer
of the owner replaced the locks. On the basis
of these facts,
Coetzee, J
held that since no appreciable time had elapsed between the first spoliation by
the applicant and the act of recovery by the owner
and since the applicant for
spoliation had never been firmly ensconced in his possession, the owner's act of
changing the locks was
part of the
res gestae
of the original act of
spoliation.
[24]
Coetzee
, J held that to insist that immediately
after the applicant had installed his own locks, the transaction was complete
and that the
action of the owner/respondent to regain control of its property
was a fresh spoliation, woutd be an unrealistic evaluation of the
situation. In
the Court's view, this smacked of an overly detached armchair view, as the
occurrence could not be too closely equated
to a brawl where a quick exchange of
blows is of the essence.
[25] Mr
Fisher
relied heavily on the judgment in
Ness
v Greeff
to which I have referred earlier. In that case the Court found on
the facts, that the recovery of possession by the owner after a
lapse of nearly
11 days did not amount to a new breach of the peace but was a justifiable act of
counter-spoliation.
[26] It is clear that each case must be determined on its own
facts to decide whether or not the conduct of the respondent was a lawful
counter-spoliation. In my view
f
whatever the factual position may
have been in the case of
Ness
, it is clear on the facts of this case,
that the conduct of the first and second respondents did not amount to a lawful
counter-spoliation.
The applicant's position, after five days of being in
possession, conducting a business and holding the keys to the premises had,
in
my view, become stabilized. The applicant had in my view, become ensconced in
her possession of the property. The conduct of the
respondents cannot in my
view, be described as a mere continuation of an existing act of spoliation by
the applicant.
[27] Having delayed for a number of days the recovery of
possession by the respondent was not
instanter.
It constituted, in my
view, a new breach of the peace. The first respondent should, if she wanted to
be reinstated in possession of
the premises, have applied to Court for
appropriate relief and not have resorted to self-help.
[28] Turning to the relief sought to interdict the harassment
and other conduct against the applicant and her employees, Mr
Fisher
submitted that the applicant has not made out a case for a final restraining
interdict in this regard. In particular, he emphasised
that since the applicant
was seeking final relief, the approach set out in the
Flascon-Evans
case
should be applied to the disputes of fact which he says have arisen in this
regard.
[29] The question to be asked is whether the applicant has
established that the facts, objectively viewed, show that there is a real
apprehension that the first and second respondents will resort to such conduct
in future. The facts are mostly common cause. The
only real dispute is the
amount of force used by the second respondent on 19 November 2007. The injuries
Beukes suffered, in my view,
show that the first and second respondent's version
cannot be correct and that the dispute raised in this regard is not a genuine
dispute. The respondents' version of the events is in my view, not tenable.
Having regard by the respondents
1
to all the facts in the application
for a restraint, I conclude that on balance the applicant has made out a case
for the restraint.
[30] Mr
Spamer
. on behalf of the applicant, asked for a
punitive costs order on the basis that the respondents' conduct has resulted in
unnecessary
trouble and expense which the applicant ought not to bear. In my
view, a punitive costs order is not called for. One should guard
against
censuring a party with such an order when, with the benefit of hindsight,
the course taken by the respondents
turned out to be a lost cause. In my
view, a costs order on the ordinary basis should be made.
[31] ! therefore make the following order:
The rule
nisi
issued on
4
December 2007 is made final.
1. The respondents are ejected from the premises of the applicant's business
at Vanilla Body & Beauty Therapy, Unit 3, Gerfa Centre,
6
th
Avenue Melkbosstrand, Cape Town.
2. The respondents are interdicted and
restrained, together with any of their employees or agents, from harassing,
threatening and
intimidating the applicant, or any of the employees of the
business Vanilla Body & Beauty Therapy.
3. The first and second respondents are ordered, jointly and severally, to
pay the costs of this application.
LOUW. J