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[2006] ZAWCHC 78
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Wightman t/a JW Construction v Headfour (Pty) Ltd and Another (A28/2006) [2006] ZAWCHC 78; 2007 (2) SA 128 (C) (7 September 2006)
REPORTABLE
THE REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH
AFRICA
(CAPE OF GOOD HOPE
PROVINCIAL DIVISION)
CASE NO: A28/2006
In
the matter between:
JOHN
CECIL WIGHTMAN
Appellant
trading
as JW CONSTRUCTION
and
HEADFOUR
(PTY) LTD
First
Respondent
ARCHER
COLLIER HEAD
Second
Respondent
MINORITY JUDGMENT : 07
SEPTEMBER 2006
BOZALEK,
J
:
[1] I have had the benefit of reading
the judgment prepared by my colleague Thring J and am largely in
agreement with his formulation
of the issues and his comprehensive
and closely reasoned analysis of the legal principles applicable.
[2] I find myself, however, in
respectful disagreement with him on how those principles should be
applied to the facts of this matter
and, as a result, with the
conclusion reached by him with regard to this appeal.
[3] I accept, as a starting point,
that the appellant ultimately lost his
detentio
of the building site and therewith, his possession thereof. The key
issue is whether, examining the circumstances in which he lost
possession critically and holistically, this was as a result of
“undue means” on the part of the respondents. As Thring
J’s judgment makes it clear, in such circumstances, a former
lien-holder is entitled to apply for a summary order of restitution
of possession by way of a
mandament
of spolie
– just as
the appellant sought to do herein.
[4] Thring J finds that the appellant
voluntarily parted with possession of the premises. He finds further,
that the appellant can
rely neither on the agreement he allegedly
reached with the second respondent on 9 July 2004, because of a
dispute of facts on
this issue, nor on the agreement allegedly
reached between them on 12 July 2004. In this latter instance, Thring
J reasons, there
is insufficient factual material to find that, as at
12 July 2004, the second respondent harboured an intention to breach
the agreement.
[5] In order to gain a proper
perspective of the various factual disputes it is firstly necessary
to consider, from both sides,
the history of the building operation
carried out by the appellant and the events of the last few weeks
thereof.
[6] For five months between early
March to at least early July 2004, the appellant was employed in
reconstructing and/or renovating
a partially built main dwelling and
cottage on the premises. Presumably because of the extent of the
building operations, during
this period and, in fact, until early
August 2004, neither second respondent nor any member of his family
occupied the dwellings
or part thereof.
[7] According to the appellant
problems in the relationship arose on 7 July 2004 when he confronted
second respondent concerning
the latter’s alleged erratic
payments and monies owing to the appellant for work done. Second
respondent’s case was,
however, that the problems arose on 3
July 2004 when the appellant repudiated the agreement and abandoned
the building site, alternatively,
when second respondent cancelled
the agreement. No detail as to the circumstances of the alleged
repudiation, cancellation or abandonment
is ever given by second
respondent and nor does contemporaneous correspondence confirm this
version of events.
[8] The appellant avers that, after
stopping work on 7 July 2004, he posted a guard to protect his
possession of the premises and,
further, that he only withdrew the
guard on 9 July when he reached an agreement with the second
respondent to resume work on 12
July. These allegations are simply
denied by the second respondent who states, in this context, that as
a result of the appellant’s
abandonment on 3 July he was forced
to employ alternative contractors. New contractors were in fact on
the site as early as 12
July 2004. The appellant goes on to say that
on 9 July he furnished a duplicate set of keys to the second
respondent purely for
the purposes of inspection.
[9] The appellant deals with these
events in a lengthy three page paragraph (paragraph 28) under the
heading “
Possession of
the premises
”. The
paragraph contains much other information confirmatory, or at least
suggestive, of the appellant’s undisturbed
possession of the
premises until 12 July. Bearing in mind that the second respondent
avers that the contract and building operations
came to an end on 3
July 2004 it is instructive to consider his response to appellant’s
account of what seems, on the face
of it, to be a logical sequence of
events between 7 and 12 July.
[10] The response is contained in
paragraph 15 of the second respondent’s opposing affidavit in
which second respondent avers
that he and his family have been “
in
physical control
” of
the premises since 12 July 2004 and that “
certain
other building contractors
”
have had access thereto. There then follows a terse denial of the
detailed factual account given by the appellant of his
control and
possession of the premises until 12 July 2004.
[11] The second respondent thus fails
to deal, in any detail, with the appellant’s version relating
to his working on the
premises up to and including 7 July. This
includes the appellant’s posting of a guard between 7 and 9
July, handing over
duplicate keys to the second respondent on the
latter date for inspection purposes, the alleged telephone
conversation and agreement
of 9 July between the appellant and the
second, the entire events of 12 July when a further confrontation
took place on which led
to the second agreement, the appellant
keeping his tools on the premises till 13 July and his continuing
retention of a full set
of keys to the dwellings. The second
respondent also fails to deal with the appellant’s statement
that he never intended
to give up control over and possession of the
premises.
[12] The second respondent’s
failure to take meaningful issue with these important aspects of the
appellant’s case amounts,
in my view, to a bare denial thereof
in circumstances where one could reasonably expect the second
respondent to respond in some
degree of detail and certainly to go
beyond a mere denial. This is, furthermore, not the only example of
the respondents’
dealing perfunctorily with allegations by the
appellant which call for a fuller response. The appellant gives some
detail of his
dealings with the second respondent on 9 and 12 July.
In response the second respondent merely denies them.
[13] This seems to me to be, par
excellence, a situation in which a robust approach to the alleged
disputes of fact must be adopted.
See in this regard
Room
Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd
1949 (3) SA 1155
(T) at 1163 and
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634 E – 635 C.
[14] The skimpiness of the second
respondent’s treatment of the appellant’s allegations
leads me to conclude that no
genuine dispute of fact exists which
precludes the appellant from relying on the alleged agreement of 9
July. This conclusion is
strengthened, furthermore, by the
probabilities. If appellant abandoned the site on 3 July why would he
post a special guard between
7 and 9 July and, having done so to
protect his possession of the premises, then withdraw him on the
latter date unless he had
not received an assurance that the business
relationship had been restored in the manner he alleges? Certainly,
the second respondent
suggests no other explanation. Why too would
the appellant furnish the second respondent with a duplicate set of
keys on 9 July
or leave his tools on the premises until 13 July? All
things considered, I am satisfied that on the papers the appellant is
entitled
to rely on the agreement of 9 July in the determination of
whether he voluntarily gave up the premises on 12 July.
[15] The second finding where I must
respectfully differ from Thring J is whether the appellant can rely
on the agreement of 12
July 2005 in asserting his claim to a lien. In
this regard Thring J finds, firstly, that it is not necessary to
determine the dispute
between the parties on their respective
interpretations of the agreement and that the appellant’s view
thereof may be accepted
for the purposes of this case. He goes on to
hold, however, that the agreement does not assist the appellant in
establishing that
he was deprived of his possession by the second
respondent through “undue means”. His reasons for so
holding are, firstly,
the insufficiency of factual material to
support the appellant’s argument that second respondent was
intent upon hoodwinking
him. Secondly, Thring J expresses the view
that the crucial date for determining the second respondent’s
state of mind i.e.
as to whether he in fact sought to deceive the
appellant, was 12 July. In this regard he reasons further that,
whilst a case may
be made for a breach of the agreement when second
respondent moved back into the dwelling in August, there is no
evidence that
the second respondent harboured an intention to deceive
when he entered into the agreement on 12 July.
[16] I must respectfully disagree with
this approach which tends, in my view, to treat the critical events
over the relevant period
as disparate and unconnected. Nor can I see
why, if a party engineers the removal of a builder from premises over
which he has
a lien on the strength of an undertaking to recognise
such lien and then some time later decides to renege on such
agreement, the
dislocation in time between these two events renders
the party in breach immune to a spoliation application or restoration
of the
lien. In my view the crucial time is when the offending
party’s breach or
mala
fide
action is made
manifest to the lien holder. Adopting the approach which I favour
allows, in my view, a more realistic appraisal
of the parties’
actions and a more equitable treatment of their legal consequences.
It does, however, also make it necessary
to determine the dispute as
to the meaning of the agreement incorporated in the letter from the
appellant’s attorney to respondent’s
attorney which is
set out on pages 5 and 6 of Thring J’s judgment. Although not
perhaps a model of clarity, the core of the
agreement was clearly
that the respondents would recognise any lien which the appellant had
in return for the appellant not continuing
to assert his physical
control over the premises by either affixing notices to the windows
or by contesting the presence of other
contractors on site.
[17] The respondent’s attorney
did not take issue with the terms of the agreement upon receipt of
the relevant letter, merely
recording in response thereto that the
contents thereof had been “noted”. Nor did he take issue
with its terms when
it was again raised in a letter dated 10 August
written by appellant’s attorney immediately after respondent’s
occupation
of the premises. Instead, tellingly, the respondents’
attorney, after stating that spoliation proceedings would be opposed,
stated as follows:
“
You will no doubt appreciate
that the fact of giving up physical possession despite a reservation
of rights may well create fatal
difficulties for your client in
seeking to give effect to a builder’s lien.
”
This statement, if it does not amount
to an admission that the appellant gave up physical possession on 12
July on the terms and
in the circumstances described by the
appellant’s attorney in the correspondence, comes perilously
close thereto.
[18] It was only in the respondents’
opposing affidavit that second respondent’s attorney took issue
with the terms
of the agreement. He offers the following explanation
of what was agreed:
“
The agreement to which
Kyriacos refers … must be seen in the context in terms of
which it was made and in particular, it
was conveyed to Kyriacos at
that time, that the reservation of rights made by him for and on
behalf of the Applicant, in relation
to the lien, was that any
alleged lien could only be subject to the Applicant having a valid
claim in respect of the alleged monies
owing by the First Respondent
.
3.3.3
I made it clear to Kyriacos
that the First Respondent would not use the fact that Applicant’s
alleged lien over the premises
had been lost, as a basis for failing
to pay the Applicant for any of the building works performed by him,
provided that Applicant’s
entitlement to payment for the said
works in question, was properly proved.
”
[19] Stripped of surplusage, the
assertion seems to be that, on behalf of the respondents, their legal
representative agreed only
not to withhold payment of any monies
proved by the appellant to be owing to him by respondents on the
ground that the appellant
no longer had a lien. Such a “concession”
is of course, meaningless because, irrespective of the existence a
lien,
the respondents would always be liable to the appellant for
what ever claims he could prove against them.
[20] To give any credence to this
version of the agreement requires one to accept, firstly, that the
respondents’ attorney
gave a meaningless undertaking to the
appellant’s attorney in return for a very real benefit, namely,
the appellant there
and then withdrawing from the premises and
allowing the respondents’ new contractors to occupy them
undisturbed. Furthermore,
it envisages the appellant’s attorney
accepting this empty undertaking on his client’s behalf and on
the strength thereof
advising him to withdraw from, and desist from
asserting his physical control over, the premises.
[21] In my view, on a robust approach,
the improbability of this version of the agreement, coupled with it
being raised at so late
a stage in the proceedings, must lead to its
rejection and can not be seen as raising a genuine dispute of fact.
The appellant’s
claim for relief must then be determined on an
acceptance of his account of the agreements of 9 and 12 July 2005.
[22] There can be no doubt that, at
least until the removal of the guard, the appellant exercised full
physical control over the
premises and could thus assert a builders
lien thereover. He withdrew the guard on 9 July, a Friday, after
reaching agreement with
second respondent that he would resume
building work on the premises on Monday, 12 July. Up to this time the
appellant had been
in sole occupation and control of the site.
Certainly the second respondent does not claim to have set foot on
the premises between
3 and 12 July 2004.
[23] Clearly then, as at the Friday,
and before removing the guard and parting with a set of keys, the
appellant’s control
over the premises was absolute. In my view
these two factors alone i.e. his parting with a set of the keys and
removing the guard,
unaccompanied by any change of intention on the
part of the appellant, were insufficient to deprive him of control of
the premises
by Monday, 12 July.
[24] According to LAWSA, Second
Edition, Volume 2, Part 1, para 487 and Volume 15, First reissue,
para 52, it appears settled law
that a temporary absence, such as
occurs at the end of a working day or over a weekend, does not
interrupt a builders lien where
the builder or contractor remains
engaged in the work and continues to assert his occupation of the
site. The case of
Scholtz v
Faifer
1910 TPD is cited as
authority in this regard.
[25] This leaves only the appellant
parting with a set of keys to the owner as a factor in determining
whether by 12 July he had
lost control and possession of the
dwelling. I find myself in respectful disagreement with Thring J’s
conclusion, based on
the authority of
Shaw
v Hendry
1927 CPD 357
and
Liquidators of Royal Hotel
Co v Rutherford
(1906) 16
CTR 179, that in consequence of the appellant’s voluntary
parting with a set of keys, he lost his
detentio
over the premises and with it his possession thereof. In the first
place, the case of
Ploughall
(Edms) Bpk v Rae
1971 (1)
887 (T) offers some authority for the proposition that the mere fact
that the owner of a premises has used a duplicate
set of keys to take
occupation of premises does not in itself mean that the lien holder
has lost possession of such premises.
[26] Secondly, the facts in the
present matter do not lend themselves to a ready comparison with
either of the two above-mentioned
cases relied upon by Thring J. It
must be accepted that the appellant initially handed over a set of
keys to second respondent
for a limited purpose, namely inspection,
and not to allow other contractors onto the site. Their entry onto
the site was effected
on 12 July without the appellant’s prior
knowledge and in breach of the agreement of 9 July between the
appellant and second
respondent. Absent the further agreement reached
on 12 July, it is most likely that the appellant would have continued
to assert
his
detentio
over the premises, as he in fact sought to do that morning
inter
alia
by affixing notices to
the windows. It will be recalled furthermore that the terms of the
agreement of 12 July deal specifically
with the presence of other
contractors on site stipulating that their presence would not
derogate from the appellant’s rights.
[27] In my view where keys to premises
are surrendered for a certain purpose but are then used by the
receiver for another purpose
this must obviously be a material factor
in determining whether
detentio
has been voluntarily lost over such premises.
[28] Thring J does emphasize that his
conclusion that appellant lost possession of the premises is based
not simply on his surrender
of a set of keys to second respondent,
but upon the limited basis that after doing so for inspection
purposes, he permitted them
to be used to allow other contractors
onto the premises.
[29] In my respectful view however,
this factor can not be held against the appellant. In the first place
on the facts I have found
these contractors were engaged by the
second respondent in breach of the agreement of 9 July and without
the appellant’s
prior knowledge. Secondly, the appellant did
not acquiesce in their presence but continued to assert his control
over the premises
leading to the confrontation with second respondent
over the notices. He only accepted their presence when he received
second respondent’s
undertaking that his would not constitute a
waiver of his lien. In my view the respondents’ failure to
honour the agreement
rendered the stratagem by which the appellant
was prevailed upon to give up his possession of and control over the
premises, “undue
means”, irrespective of whether this was
the respondents’ intention as at 12 July or not.
[30] In any event there are, in my
view, sufficient grounds to find that by at least 12 July, the second
respondent had conceived
his plan to effect the appellants withdrawal
from the premises by whatever means. By that day the second
respondent had already
secured the presence of other contractors on
site. In the absence of any explanation from the second respondent it
is most unlikely
that he arranged and procured alternative
contractors in a period of three days including the weekend. On the
probabilities it
follows then that even as late as 9 July the second
respondent deliberately misled the appellant into believing that he
could resume
work on 12 July. The second respondent’s breach of
the agreement of 9 July followed by that of 12 July, strongly
suggests
that his over-riding priority was to rid himself of the
appellant’s presence from his premises.
[31] In any event, whether second
respondent had already formulated his intention on 12 July to deceive
the appellant or whether
this crystallized sometime later before his
occupation of the premises in early August is, to my mind, immaterial
in the circumstances
of this matter. Even if one assumes in favour of
second respondent that as at 12 July he intended to honour the
agreement reached
that day, and only later decided to deny and
dishonour the agreement, I see no reason why this factor sanitizes
his conduct or
removes it from the broadly defined category of “undue
means”; its effect upon the lien holder was exactly the same
save that it was delayed. What is important is when the second
respondent first manifested to the appellant his true intentions
and
whether appellant thereupon acted promptly in asserting his rights.
[32] It must be accepted, as was
stated by Quenet J in
Assurity
(Pvt.) Ltd v Truck Sales (Pvt.) Ltd
1960 (2) SA 686
(SR) at 689H – 690A, that “
where
fraud, force or undue means are employed the lien holder’s loss
of possession will not prevent him from suing for
restitutio
in integrum
, and
that is so because although the detention has been lost the right of
retention was not voluntarily surrendered
”
.
[33] The appellant in this matter was
at all times astute to protect his rights and never resorted to self
help. When he first became
aware of the invasion of his rights he
turned to court with a spoliation application. Nothing more, could,
in my view be reasonably
expected of him.
[34] I conclude then that the
appellant did not give up possession of the premises voluntarily,
instead he was deprived thereof
by “undue means” on the
part of the respondents. It follows that second respondent’s
occupation of the premises
in August 2004 amounted, in the
circumstances, to a spoliation.
[35] For these reasons I would uphold
the appeal with costs and set aside the order of the court
a
quo
. In its place I would
substitute the following:
“
A final order is granted in
terms of prayers 2.1, 2.2 and 2.4 of the Notice of Motion.
”
_________________
LJ BOZALEK, J