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2024
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[2024] ZAECMHC 24
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Mntonga v Mamdulay and Another (1022/2024) [2024] ZAECMHC 24 (26 March 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN CAPE DIVISION,
MTHATHA
Case no: 1022/2024
In the matter between:
NALEDI
MNTONGA
Applicant
and
SILMA HAMDULAY obo
EXECUTOR OF THE
DECEASED
ESTATE OF SICELO VICTOR MNTONGA
First Respondent
PENROSE RESTAURANTS
(PTY) LTD
(Registration No.
2022/759561/07)
Second Respondent
REASONS FOR JUDGMENT
Zilwa AJ
[1]
This
matter came before me as an urgent application in which the Applicant
sought the following orders:
1.1
That
the Respondents be and are hereby ordered to restore possession of
premises known as Wimpy and Debonairs Pizza situated at
BT Ngebs and
Circus Triangle Malls in Mthatha forthwith.
1.2
That
the Respondents and any person acting at the instance of the
Respondents are interdicted from entering and/or causing anyone
to
enter premises referred to in 16.2 pending finalisation of the
application in Makhanda High Court under case number 430/ 2024.
1.3
That
the Applicant is authorized to take control of Wimpy and Debonairs
Pizza premises situated at BT Ngebs and Circus Triangle
Malls
forthwith with assistance of Sheriff of the High Court and/or police
officers if Respondent is refusing to comply with this
court order.
1.4
That
the Sheriff and/or police are authorized to do all that is necessary
to enforce this court order, and to ensure that possession
of the
premises referred to in 16.2 is restored to Applicant.
1.5
Applicant
to serve papers in terms of rule 4 of the uniform Rule 4 as well as
by e-mail provided in the certificate of urgency by
13H00 on Friday,
01
st
day of March 2024.
1.6
The
Respondents file their opposing papers, if any, on or before 16H00 on
Friday, 01
st
day of March 2024.
1.7
That
the Applicant files her replying affidavit, if any, on or before
09H00 on Saturday, the 02
nd
day of March 2024.
1.8
That
that Respondents be and are hereby ordered to pay the costs of this
application, on an attorney and client scale.
[2]
Sequel
to the granting of the order, the Respondents delivered an
application for leave to appeal on 6 March 2024 and in the same
notice, request for reasons for the order was also incorporated.
[3]
From
the reading of the papers it appears that on 5 March 2024 an
application for interdict was brought against the Applicant and
other
Respondents before the Makhanda High Court. The Applicant was cited
as the First Respondent in that application whereas the
Respondents
were the Applicants. The Makhanda application was still pending when
this application served before me.
[4]
I
may mention at this stage that there are two confirmatory affidavits
that the Respondents rely on, namely, the one deposed to
by Mr
Williams and the other one by Mr Tarr. The one deposed to by Mr
Williams records that it is confirming the contents of the
replying
affidavit deposed to by Mr Pumelele Balfour. Unfortunately, I did not
have before me any replying affidavit deposed to
by this deponent. On
the other hand, the one allegedly deposed to by Mr Tarr was not
before me at the time of hearing of this application.
During the
hearing I sought to establish from both the Registrar and the
Applicant’s legal representatives whether they were
in
possession of this affidavit and their response was in the negative.
In a nutshell the matter was argued to finality without
the affidavit
by Mr Tarr.
[5]
This
being an application for spoliation, it is trite that it is in its
very nature urgent. In any event I am also satisfied that
the
Applicant’s listed grounds of urgency sufficiently render the
matter urgent.
[6]
The
Supreme Court of Appeal held in
Ivanov
v North West Gambling Board
[1]
that an Applicant is entitled to a
mandament
van spolie
restoring
the
status
quo
upon proof that he was in peaceful and undisturbed possession of the
spoliated thing and that he was wrongfully deprived of
possession.
[7]
Spoliation
is correctly described as a wrongful deprivation of another person's
right. In spoliation applications the lawfulness
of the possession of
the Applicant for the spoliation order is irrelevant. Therefore,
spoliation remedy protects peaceful and undisturbed
possession
against unlawful actions.
[8]
In
Ngqukumba
v Minister of Safety and Security
[2]
,
the Constitutional Court held as follows:
"Self-help is so
repugnant to our constitutional values that where it has been
resorted to in despoiling someone, it must be
purged before any
inquiry into the lawfulness of the possession of the person
despoiled."
Common cause facts
[9]
The
following facts are common cause:
9.1 The
Applicant is one of the parties in the pending application before the
Makhanda High Court where the
Respondents are seeking to interdict
her from trading and conducting business at the premises in question.
9.2 On
21 February 2024 the Applicant was given the keys to the premises and
at the same time received and
signed for the notices to vacate the
premises in question.
9.3 The
Applicant, together with so called ‘other unlawful occupants’,
left the stock, which
included perishables at the premises in
question.
[10]
In
opposition of the reliefs sought, the Respondents have challenged the
Applicant’s
locus standi
to
bring this application. The Applicant, so the argument goes, is not
in possession of the premises in question on the basis that
she has
abandoned the premises. They further argue that the correct person to
bring the application should have been an entity
called Rhweba
Phumalanga Trading (Pty) Ltd (‘
Rhweba’)
.
Paragraph 10 of the answering affidavit referred me to paragraphs 82,
84 and 87 of the affidavit deposed to by one Naledi but
such
affidavit has not been placed before me and does not form part of the
indexed bundle serving before me.
[11]
In an
old case of
Scholtz
v Faifer
[3]
,
Innes CJ had the following to say:
"
Here the
possession which must be proved is not possession in the ordinary
sense of the term – that is, possession by a man
who holds pro
domino, and to assert his rights as owner.
It is enough if
the holding is with the intention of securing some benefit for
himself as against the owner
" (underlined for
emphasis)
[12]
I
am satisfied that the Applicant, in being an employee of Rhweba and
also performing work with the intention of securing some benefit
for
herself, she has a legal standing to bring this application. By being
involved in a day to day running of the business, she
has accrued
some rights that are protected in law. The conduct of the Respondents
appears to me to be a set up stratagem seeking
to prevent the
Applicant from entering the premises and participating in the company
business as before. It was therefore incumbent
of her to approach
court for the necessary relief to prevent her further access to the
premises and participation in the business.
[13]
It
does not make sense to me as to how the Respondents, in their own
version, contend that the Applicant lacks the necessary
locus
standi
on the basis that she is not in
possession but on the same breath cite her as one of the Respondents
in the Makhanda application
who is being interdicted from trading and
conducting business at the premises in question. This is the same
person, as per the
Respondents’ version, who was given keys to
the premises and signed notices to vacate. There is further no
distinction drawn,
insofar as the Applicant and other co-Respondents
is concerned, regarding the leaving of stock and perishables at the
premises
in question. For this reason alone, it is reasonable to
conclude that the Applicant has been recognized by the Respondents
themselves
to be in possession of the premises.
[14]
It
is my view that this ground of opposition cannot be sustained, and I
accordingly find that the Applicant had the necessary legal
standing
to bring this application.
[15]
Another
issue that the Respondents raised is that the action of locking of
the premises was not performed by them but by one Mr
Tarr. I have
already indicated that I was not placed in possession of his
confirmatory affidavit at the time of argument and even
as at the
date of these reasons, no such affidavit has been placed before me.
The allegations made by the Respondents therefore
remain
unsubstantiated hearsay which no reliance can be placed.
[16]
Accepting
for a moment that there was such affidavit, the next question that
one would need to answer is why did the Respondents
have to oppose
this application if no order was sought against them, save for the
order of costs. It could have been better if
Mr Tarr had brought an
application to intervene for purposes of placing on record that he is
the one who performed the action of
locking the premises. Absent such
version I was unable to find in favour of the Respondents.
Circus Triangle
business outlets
[17]
The
Respondents contended that these premises did not have any locks
changed but the electricity was switched off. They further
made
reference to the events of 1 February 2024 as narrated in the
Makhanda proceedings but, as I have already indicated, no
affidavit(s)
serving before Makhanda High Court have been placed
before me notwithstanding the fact that the Respondents have
contended that
that application is inextricably linked to this matter
and that it should be read together with their affidavit. It was made
clear
during argument that the papers that were before court were not
as bulky as the Respondents made them to be so as to incorporate
the
Makhanda High Court proceedings. That notwithstanding no action was
taken by them to ensure that all the necessary papers and
annexures
were placed in the court file.
[18]
In
any event the act of switching off electricity from the shops is
another form of spoliation and the Applicant was entitled to
the
relief he sought for a
status quo ante
.
The Respondents have not contended that they were not the ones
responsible for this disconnection. Nothing has been said about
that.
Non-joinder of
Resilient (Pty) Limited, Mthatha Malls (Pty) Limited and Rhweba
Phumalanga (Pty) Limited
[19]
A
point
in limine
was raised on the basis that the
above entities had not been cited, even though they have a direct and
substantial interest
in the outcome of this application. This was
said to be a material non-joinder.
[20]
The
question as to whether all necessary parties had been joined does not
depend upon the nature of the subject matter of the suit,
but upon
the manner in which, and the extent to which, the court's order may
affect the interests of third parties.
[4]
The test is whether or not a party has a "
direct
and substantial interest
"
in the subject matter of the action, that is, a legal interest in the
subject matter of the litigation which may be affected
prejudicially
by the judgment of the court.
[5]
The mere fact that a party may have an interest in the outcome of the
litigation does not warrant a non-joinder plea.
[6]
The
rule is that any person is a necessary party and should be joined if
such person has a direct and substantial interest
in any order the
court might make, or if such an order cannot be sustained or carried
into effect without prejudicing that party.
[7]
[21]
The
present application concerned restoration of the Applicant's
possession of the premises and prevention of further efforts by
the
cited Respondents and anyone acting at their instance to interfere
with the Applicant's occupation of the premises in question.
[22]
Accordingly,
the above narrated disposition of the law suggests that the
point
in
limine
based on the alleged material non-joinder of the
listed entities falls to be dismissed.
Conclusion
[23]
Resultantly,
I was satisfied that the Applicant has made out a proper case for the
reliefs sought and therefore I stand by the order
I granted in terms
of the notice of motion.
H ZILWA
ACTING JUDGE OF THE
HIGH COURT
Date of
hearing
: 02 March 2024
Date of reasons of
judgment : 26
March 2024
Appearances:
For Applicant:
Mr W. Quluba
Instructed by:
W. Quluba Inc., 28
Sprigg Street, Mthatha
For Respondents:
Mr Kroon
Instructed by:
Van Wyk Matabane Inc.,
Edenburg, Sandton c/o JA Le Roux Attorneys, 56 Leeds Road,
Mthatha
[1]
2012
(6) SA 67
(SCA) at para 21
[2]
2014
(5) SA 112 (CC)
[3]
1910
TPD 243
at 246.
[4]
Transvaal
Agricultural Union v Minister of Agriculture and Land Affairs
2005
(4) SA 212
(SCA) at 226F–227F;
Sikutshwa
v MEC for Social Development, Eastern Cape
2009
(3) SA 47
(TkHC) at 56I–57A.
[5]
Henri
Viljoen (Pty) Ltd v Awerbuch Bros
1953
(2) SA 151
(O) at 168–70.
[6]
Judicial
Service Commission v Cape Bar Council
2013
(1) SA 170
(SCA) at 176I–177A;
Lawrence
v Magistrates Commission
2020
(2) SA 526
(FB) at para 27
[7]
One
South Africa Movement v President of the RSA
2020
(5) SA 576
(GP) at para 22.