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2024
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[2024] ZALMPPHC 50
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Babinakgomo Society Academy (BBKS Academy) v Shai (6476/2020) [2024] ZALMPPHC 50 (22 May 2024)
REPUBLIC
OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
CASE NO. 6476/2020
REPORTABLE: YES/NO
OF INTEREST TO OTHER
JUDGES: YES/NO
REVISED
DATE: 22 May 2024
In the matter between:
BABINAKGOMO
SOCIETY
ACADEMY
APPLICANT
(BBKS ACADEMY)
and
NAMISHI PHILLEMON
SHAI
RESPONDENT
JUDGMENT
Heard on 12 February
2024.
Delivery: This judgment
was handed down electronically by circulation to the parties' legal
representatives via email and release
to SAFLII. The date and time of
hand down is deemed to be the 22 May 2024 at 11:00
SEMENYA
DJP.
[1]
The applicant is the owner of BBKS, a private
school situated at Ga Phala village. The applicant launched this
application
in which it seeks relief in the
form
of the restoration of the land which it has been allegedly
dispossessed
by the respondent.
[2]
The applicant avers that sometime in 2015,
it bought pieces [pockets] of vacant land from
Tholongwe Mokwena and various other people with the intention
of building
a private
school
on it. It
erected
a barbed
wire fence
around
that
land
in
order
to
secure
it.
It
proceeded
to
build
a
primary
school on the eastern part of the land which was running as at the
date of the application. The plan was to build the high
school on the
western part of the property in the future.
[3]
The applicant
avers that
on the 16 of February
2016
the respondent and a certain unknown person arrived at the school and
began to cut off the fence on the western part of the
land with a
plier. They used the van they were travelling in to pull open the
fence from one corner to the other. The
applicant
annexed the photos of
the respondent and
the other person in the process of removing the fence the replying
affidavit. After removing
the
fence,
the
respondent
proceeded
to
erect
his
own
fence and steel bars in front of the school gate,
thereby blocking access to the school premises from the western side.
[4]
The applicant proceeded to the reported a criminal
case at Mecklenburg police in July 2020. However, the police refused
to open
a case against the respondent. The applicant regards the
conduct of the respondent as constituting an unlawful and forceful
dispossession
of the property, which conduct made it difficult for
the applicant to proceed with the building of the high school on the
western
side of the school premises as requested by the Limpopo
Department of Education.
[5]
It
is
common
cause
that
there
is
a
pending
case
in
Tubatse
magistrate court under case No.1055/2015, which the applicant has
launched against the respondent. The issue in that case
is the
ownership of the same property which is the subject matter of this
application. Both parties in this matter claim to be
the owners of
the property concerned.
[6]
The
respondent
is
opposing
the application
and
has, in doing
so, raised points
in
limine
and a defence on the merits of
the application.
In the first point
in
limine,
the respondent contends that
the applicant has acquiesced by launching this application 3 years
and 10 months after the alleged
dispossession had occurred. The
respondent contends that in our law a
possessor
who alleges that he has been unlawfully disposed of his property is
required to approach the court within a reasonable
time which has
been determined to be within a period of a year. The respondent
contends that a period of 3 years and 10 months
is unreasonable. The
respondent contends that the applicant has failed to prove the
existence of special circumstances that justify
the granting of the
order sought.
[7]
The second point
in
limine
raised by the respondent is that
of
/is pendens.
The
respondent contends that the pending case in the
Tubatse
magistrate court is based on same cause of action, same set of facts
and is launched against the same respondent. According
to the
respondent the relief sought in that matter is that of prohibiting
the respondent from interfering with the applicant's
peaceful and
unrestricted occupation of the property. It further seeks an order
which authorises it to remove any barbed wire,
poles, fencing or any
other obstruction placed by the respondent at the property. The
respondent contends
that
the
splitting
of
the
claims,
namely,
the
spoliation application and the ownership claim
goes against the once and for all rule. The respondent contends that
these proceeding
should be stayed pending finalisation of the Tubatse
Magistrate court matter.
[8]
The third point
in
limine
is that there is a taxed bill of
costs and a writ of execution which were issued out of this court
against the applicant in case
No. HCA 34/2017 in the amount of R111
785.65. The respondent avers that the applicant is either refusing or
neglecting to pay the
taxed costs and contends that it is not in the
interests of justice for the applicant to proceed with this
litigation against him
while payment of costs is still pending.
[9]
On the merits, the respondent disputes the
applicant's claim to ownership of the western part of the property.
He contends that the property is tribal land which
cannot be owned by an
individual. He
further contends that the applicant failed to
prove the existence of a resolution from relevant traditional
leader/s confirming
the sale of land to it. In addition,
the
respondent
alleges that he has inherited
the western part of the property from his father and has been in
possession thereof since 2012. According
to the respondent, it is the
applicant, who, acting through
its
directors
of
agents,
has
disposed
him
of
the
property
by
setting alight the wood fence that his father had erected around it.
He states that he had to replace it with a wire fence.
[10] The respondent
further avers that in the case before the magistrate, the applicant
testified that he did not personally see
the respondent when he
removed the fence and that he heard about it from someone who is
afraid to testify in court. He states that
he could not have damaged
the fence on the 16 February 2016 as he was at work at Springs on
that date. He denies that the applicant
was ever in peaceful and
undisturbed possession of the land.
[11]
In
Bisschoff
and
Others
v
Welbeplan
Boerdery
(Pty)
Ltd
[1]
the
court said the following:
[5]
"
... The
requirements
for
the
mandament
van
spolie
are
trite:
(a) peaceful and
undisturbed possession of a thing; and (b) unlawful deprivation of
such possession.ml The
mandament van spolie
is rooted in the
rule of law and its main purpose is to preserve public order by
preventing persons from taking the law into their
own hands".
(footnotes omitted).
[12]
The respondent's version which is proffered in
defence to the merits of the case is that he inherited
the
property
the said land in 2012
from
his father who was using it to cultivate crops. His father had
erected a fence around it with logs and branches of trees as
it is
normally done in villages. He avers that in 2014, the applicant
demanded the western part of the property saying it bought
it from
certain people. His explanation with regard to how he came to own the
property was ignored by the applicant. He too went
to the police to
report the incident but, like the applicant,
was
not given
the help that he required.
He went back to the field
and
erected
a
wire
fence
and
steel
posts
to protect
his
crops. He denies
that his conduct is an act of self-help.
[13]
The
respondent
argues
that
the
applicant
has
acquiesced
by
instituting
these
proceedings
in
2020 when
according
to its version
it
was dispossessed in 2015. In
Jivan
v National Housing Commission
[2]
the
court said the following:
" If an applicant
delayed for more than a year before bringing his application for a
mandament of spolie, there would have
to be special considerations
present to allow such applicant to proceed with his application, and
conversely, if an application
was brought within the period of one
year after interruption of the possession, special circumstances
would have to be present
before relief could be refused... "
In
Central
Authority for the Republic of South Africa v L F
[3]
at
(12] the court said the
following:
[12]
Acquiescence is a concept well-known in our law.
A
person is said to acquiesce in something if such person by
unequivocal conduct, knowing of his or her rights, inconsistently
acts with the intention to the contrary and shows that he acquiesced
to a set of facts. If such a person has clearly and unconditionally
acquiesced in, and abided by, a situation, he or she cannot
thereafter challenge it. See
Gentiruco
AG v Firestone SA (Pty) Limited
[4]
where
Trollip J said:
'The
right of an unsuccessful litigant to appeal against an adverse
judgment or order is said to be pre-empted if he, by unequivocal
conduct inconsistent with the intention to appeal, shows that he
acquiesces in the judgment or order'.
In
Standard
Bank v Estate Van Rhyn
[5]
,
Innes
CJ said:
"'If a man has
clearly and unconditionally acquiesced in and decided to abide by the
judgment it cannot thereafter challenge
it."'
What
is required is conduct leading to a conclusion of an intention not to
assail a factual position. The onus of proof rests on
the person
alleging acquiescence.
[6]
The
high watermark of the appellant's case is what the second respondent
said in a crude manner that she can keep the children.
This utterance
during a matrimonial dispute is not open for an argument that the
second respondent, with full knowledge of his
rights, decided to
abandon the children.
(footnotes
excluded)
[14] It cannot be said in
this case that the applicant has acquiesced. It took steps to protect
its rights by, firstly, reporting
the matter to the police and
secondly, by launching the application in the magistrate court. The
applicant simply weighed its options
and decided launch an
application based on
rei vindicatio
as its cause of action
instead of relying on a quick remedy of
mandament van spolie.
[15] I agree with counsel
for the respondent that the applicant is the author of its own
misfortune. The delay for a period 3 years
10 months is extreme and
unreasonable. Furthermore, the applicant failed to prove any special
circumstances that would persuade
this court into restoring its
alleged possession of the property. In the absence of those special
circumstance that justifies the
delay in launching this application,
the respondent's point
in limine
of lapse of time should
succeed.
[16]
On the issue of
lis
pendens,
the
following was said in
Association
of Mineworkers and Construction Union and Others v Ngululu Bulk
Cariers (Pty) Limited (In Liquidation) and Others
[7]
"The purpose of lis
pendens is to prevent duplication of legal proceedings. As its
requirement illustrate, once a claim is
pending in a court, a
litigant is not allowed to initiate the same claim in different
proceedings. For a lis pendens defence to
succeed, the defendant must
show that there is a pending litigation between the same parties,
based on the same cause of action
and in respect of the same subject
matter. This is a defence recognised by our courts for over a
century."
[17]
The applicant instituted
rei
vindicatio
proceedings against the
respondent over the same property in the Tubatse magistrate court.
Those proceedings are still pending.
The respondent contends that the
two applications
are aimed at preventing
the respondent from interfering with the applicant's possession of
the property.
In
the
circumstances,
the respondent's
point
in limine
of
/is pendens
should
succeed.
[18]
The
allegations made by the respondent that the applicant was previously
ordered to pay the respondent's costs in case number HCA
34/2017,
which costs remain
unpaid
is not disputed.
That
such conduct is frowned by our courts appears clearly in
Western
Assurance Co v Caldwell's Trustees
[8]
where
the following was stated:
"The court's
inherent right to prevent vexatious litigation is the principle which
underlies the interference of the courts
with lawsuits where the
costs of previous proceedings remain unpaid. In the same matter
Solomon JA (as he then was) expressed the
opinion that orders staying
proceedings are based upon the inherent jurisdiction on the court to
prevent an abuse of its process,
although very few decisions are
expressly put on this ground."
The
same
view
was
expressed
as
follows
in
Beinash
and Another
v
Ernest & Young and Others
[9]
where
the following was said:
"[17] The right of
access to courts protected under section 34 is of cardinal importance
for the adjudication of justiciable
disputes. When regard is had to
the nature of the right in terms of section 36(1)(a), there can
surely be no dispute that the right
of access to court is by nature a
right that requires active protection. However, a restriction of
access in the case of a vexatious
litigant is in fact indispensable
to protect and secure the right of access for those with meritorious
disputes. Indeed, as the
respondents argued, the court is under a
constitutional duty
1
to protect
bona fide
litigants,
the processes of the courts and the administration of justice against
vexatious proceedings. Section 165(3) of the Constitution
requires
that "[n]o person or organ of state may interfere with the
functioning of the courts." The vexatious litigant
is one who
manipulates the functioning of the courts so as to achieve a purpose
other than that for which the courts are designed.
This limitation
serves an important purpose relevant to section 36(1)(b). It would
surely be difficult to anticipate the litigious
strategies upon which
a determined and inventive litigator might embark. Thus there is a
requirement for special authorisation
for any proposed litigation."
[19]
The
respondent
contends
that
the
proceedings
in this
application should be stayed until the applicants
pays the outstanding costs. Although I
agree
that the applicant
is a vexatious
litigant, I am of the view that such an order
would not be necessary. The applicant's claim ought to fail on the
point
in limine
of
lapse of time, which in my view is dispositive of the issues between
the parties in this matter.
[20]
The
defences
raised
by
the
respondent
on
the
merits
of
the
application will best be determined in the case launched in
the magistrate's court
in
that
they have to do with the issue of
ownership. It is not necessary for this court to decide on them.
[21]
On the issue of costs, I find no reason to deviate
from the well established
principle
that
costs
should
follow
the
winner.
The
applicant should pay the respondent's costs.
[22]
In the result I make the following order: The
application is dismissed with costs
M
V SEMNYA
DEPUTY JUDGE PRESIDENT
LIMPOPO DIVISION,
POLOKWANE
.
APPEARANCES:
For the applicant:
Adv MP Chidi
Instructed
by:
Botha
Massyn
& Thobejane
Incorporated
Attorneys c/o Phokoane
Phasha Attorneys
For the Respondent: Adv
Thobejane
Instructed by:
Mammule Chidi Incorporate c/o Du Toit Swanepoel
Steyn & Spruit
Attorneys
[1]
2021
(5) SA 54 (SCA)
[2]
1977
(3) SA 890 (W)
[3]
South
Gauteng Appeal case No. A5055/2026
[4]
1972(1)
SA 589 (A).
[5]
1925
AD 246
at p 274.
[6]
See
Dabner v SAR&H
1920 AD 583
at 594.
[7]
[202]
10 BLLR 1001 (LAC)
[8]
1981
AD 262
[9]
1999
[20 SA 116
(CC)