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[2024] ZANCHC 79
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H.J.C v M.C.C (2041/2024) [2024] ZANCHC 79 (30 August 2024)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN THE HIGH COURT OF
SOUTH AFRICA
NORTHERN CAPE
DIVISION, KIMBERLEY
Case No: 2041/2024
Heard on: 23 August
2024
Delivered on: 30
August 2024
Reportable:
YES /
NO
Circulate
to Judges: YES /
NO
Circulate
to Magistrates: YES /
NO
Circulate
to Regional Magistrates: YES /
NO
In
the matter between:
H[...]
J[...]
C[...]
Applicant
and
M[...]
C[...]
C[...]
Respondent
JUDGMENT
CHWARO
AJ
:
Introduction
[1]
On 2 August 2024, the applicant launched this
application and set it down for hearing in the urgent Court on 6
August 2024 where
it served before Tlaletsi JP who postponed the
application to 23 August 2024 to enable the applicant to file her
replying affidavit
and thereafter for the parties to file their
respective heads of argument.
[2]
The applicant seeks an order for the immediate restoration of her
access to an office
through the main gate of the property situated at
6[...] J[...] Avenue, El Toro Park, Kimberley and a costs order
against the respondent.
Background facts
[3]
The applicant and the respondent are married to each other out of
community of property
with the exclusion of accrual. They are the
joint owners of an immovable property situated at 6[...] J[...]
Avenue, El Toro Park,
Kimberley, (“the property”). The
parties are no longer living as husband and wife. The applicant left
the marital home
during June 2020 but returned in August 2021 to
reside in the flat, which has a separate entrance but is adjoined to
the main house
within the property. During 2022, the respondent
instituted divorce proceedings that are still pending.
[4]
The respondent lives in the main house on the property. The parties
use part of the
main house as an office for their insurance brokerage
business. The arrangement, as I understand it, is that the applicant
uses
the front portion of that part of the room in the main house as
her office where she mainly deals with short term insurance clients
whereas the respondent uses the rear portion of the same room,
separated by an inter-leading door, as his office, where he deals
with long term insurance clients.
The dispute
precipitating this application
[5]
The applicant contends that since her return to the matrimonial
property in August
2021 and taking occupation of the flat, she has
had free and unfettered access to her portion of the office situated
in the main
house, through the main gate of the property.
[6]
However, on 15 July 2024, the respondent locked the electrical gate
controller of
the main gate which made it impossible for her to gain
access by opening the said gate either manually or through the use of
a
remote control. Once again, on 23 July 2024, the respondent erected
a fence between the flat and the main house and thus denied
her
access to the main house and her portion of the office.
[7]
The respondent posits that on 15 July 2024 he had to install a new
motor at the main
gate. This new motor was fitted with an anti-theft
bracket. He did not provide the applicant with the remote control to
the new
motor and to that extent, acceded that he denied the
applicant access into the property through the main gate.
[8]
He further concedes that on 23 July 2024, he had a fence erected
between the main
house and the flat. This he did, according to him,
based on an agreement between them to that effect, which agreement
was encapsulated
in the WhatsApp communication exchanged between the
parties on 23 February 2022, some two years prior to the actual
construction
of the fence.
[9]
The respondent asserts that his conduct as aforestated amounted to a
lawful counter-spoliation
since the applicant had previously gained
access to his living space within the main house through the office
and took photographs
of his furniture which she then advertised for
sale through Facebook. The applicant had also replaced a lock on the
door of his
living unit. However, he approached the Magistrates’
Court for the appropriate relief and on 4 July 2024, he was granted
an interim order preventing the applicant’s conduct as
aforesaid.
The issues
[10]
Emanating from the brief outline of the material facts as set out
above, it follows that this
Court is called upon to determine a
preliminary issue relating to urgency and whether the applicant was
spoliated by the conduct
of the respondent on 15 and 23 July 2024
respectively.
Urgency
[11]
The main dispute regarding urgency centres around whether the mere
act of spoliation per se,
entitles a party to approach court on
truncated time periods. Mr Olivier, counsel for the respondent,
vehemently argued that the
applicant ought to have complied with the
trite requirements of urgency as embodied in rule 6(12)(a) and (b) of
the Uniform Rules
of Court over and above the alleged act of
spoliation.
[12]
On the other hand, Mr Coetzee SC, for the applicant, argued that the
applicant did not only allege
spoliation as a ground for urgency
[1]
but further contended that the restoration of access to her office is
an urgent matter as her livelihood depends on her ability
to access
and utilise the office.
[13]
It is correct that the provisions of rule 6(12) requires of an
applicant to assert facts that
render the matter urgent and why it
cannot be done in due course. Though the applicant scantly met the
formal requirements of the
rule, a proper and robust consideration of
the issues raised in the papers requires of this Court to determine
this preliminary
issue by adopting an approach adumbrated in
Sikwe
v SA Mutual Fire and General Insurance Co Ltd
[2]
where
the court dealt with an issue of compliance with the requirements of
rule 6(12) and stated as follows:
“
[
S]pecific
averments of urgency must be made and facts upon which such averments
are based must be set out in the affidavit where
it is not otherwise
apparent that the matter is urgent. It does not follow that an
application is necessarily defective if the
form referred to in the
Rule is not strictly adhered to. In my opinion, it is the substance
of the affidavit, and not its form,
which will weigh with a Court; if
an affidavit sets out facts upon which a Court can decide that an
applicant is entitled to relief
in terms of the sub-rule, the Court
will entertain the application. If the only reasonable inference from
the facts set out in
the affidavit is that the matter is one of
urgency, then an applicant will have complied with the requirements
of the sub-rule,
even though he does not make a specific
averment that it is urgent.”
[14]
I align myself with the above approach and hold that the applicant
cannot be faulted for not
having acted with speed to seek a remedy,
regard being had to the timing between the two incidents of alleged
spoliation and the
eventual hearing of the matter. No party suffered
any actual prejudice to present its case before this Court.
Consequently, it
is my finding that the applicant made out a case for
having approached this Court on an urgent basis.
Was the applicant
spoliated?
[15]
The requirements for a successful
mandament
van spolie
remedy are trite
[3]
. In
Dennegeur
Estate Homeowners Association and Another v Telkom SA SOC Ltd
[4]
the
court described these requirements, pertaining to movable or
immovable property in the following terms:
“
In
the case of movable or immovable property.....the remedy is available
to a person who has been deprived of his or her actual
physical
possession or co-possession of the subject property. In order for
such possession to be established two requirements have
to be met:
'(i) the person needs to be in effective physical control of the
thing; and (ii) needs to have the intention to derive
some benefit
from the possession”.
[16]
It follows that for the applicant to succeed against the respondent,
she must demonstrate that
she was in peaceful and undisturbed
possession of the property and
has been deprived unlawfully of
the whole or part of her possession of the property.
[17]
The facts of this matter reveal that since her return to the
matrimonial property in August 2021,
both the applicant and
respondent enjoyed co-possession and control to access the main
house, where the office space is located,
through the main gate as
well as unfettered access to the main house from the flat without any
physical hindrance.
[18]
All these changed when the respondent, in his own words, decided to
change the motor of the main
gate and failed to provide the applicant
with a remote control to enable her access to the property and by
erecting a fence between
the flat and the main house.
[19]
Though the respondent’s counsel did not pursue the
counter-spoliation argument with much
vigour, it could not be open to
him to successfully rely on counter-spoliation for his conduct as
described above since that would
have amounted to self-help. In any
event, the respondent obtained a remedy, through the granting of an
interim order by the Magistrates
Court on 4 July 2024.
[20]
The fact that the applicant, on her own, decided to exercise her
unfettered access to the property
at intervals does not in itself
amount to lack of or curtailment of access or control as the
respondent sought to suggest. This
argument cannot be sustained and
falls to be rejected outrightly. It cannot be refuted that the
applicant, for whatever period
in the day, utilises her office to
derive a benefit or livelihood in servicing her clients, regardless
of the volume or number
of such clients.
[21]
On the conspectus of all facts that are common cause between the
parties, it is my finding that
by causing the installation of a new
motor to the main gate to the property on 15 July 2024 and failing to
provide a new remote
control to the applicant to enable her continual
access to the said property, the respondent unlawfully deprived the
applicant
of her possession and access to the property which she had
enjoyed without hindrance prior to the said date. The unlawful
deprivation
continued with the erection of the fence between the two
buildings by the respondent some eight days later, on 23 July 2024.
[22]
In conclusion, the applicant has made out a case to be granted
immediate access to her part of
the office situated at the property
through the main gate and from a flat that she occupies without any
hindrance.
Costs
[23]
The applicant emerged successful in seeking restoration of her access
to the property and the
usual order that ought to be granted was to
be that the costs follow the results. The particular circumstances of
this matter render
it necessary for this Court to deviate from the
usual costs order and deprive the applicant of the costs of
appearance on 6 August
2024.
[24]
It was the applicant who determined the date of set down of her
application. The respondent complied
and filed its answering
affidavit as directed. The applicant then sought time to file her
replying affidavit, necessitating the
postponement of the matter at
no fault to the respondent. In my view, the respondent cannot be left
out of pocket at the instance
of the applicant under these
circumstances.
Order
[25]
In the premises, the following order is made:
1.
The respondent is ordered to immediately grant the applicant access
to the office situated in the main house, from the flat occupied by
the applicant and through the main gate of the property situated
at
6[...] J[...] Avenue, El Toro Park, Kimberley.
2.
The applicant is ordered to pay the costs occasioned by the
postponement of the
matter on 6 August 2024 on scale C in terms of
rule 67A of the Uniform Rules of Court.
3.
The respondent is ordered to pay the costs of the application, except
the costs
as referred to in paragraph 2 above, on scale C in terms of
rule 67A of the Uniform Rules of Court.
O.K. CHWARO
ACTING JUDGE
HIGH COURT, NORTHERN
CAPE DIVISION, KIMBERLEY
REPRESENTATION:
For the Applicant:
Adv. WJ Coetzee SC
Instructed by:
Mathewson &
Mathewson Inc., Kimberley
For the Respondent:
Adv. JL Olivier
Instructed
by:
Engelsman Magabane
Inc., Kimberley
[1]
Placing
much reliance on the dictum in Ross v Ross
1994 (1) SA 865
(E) at
872J
[2]
1977
(3) SA 438
(W) at 440H-441A. This approach was approved and applied
in Cekeshe and Others v Premier, Eastern Cape and Others
1998 (4) SA
935
(Tk) at 948A-F
[3]
The
Law of South Africa (LAWSA), First Reissue, Vol 27, Butterworths,
2002, para 264, p179
[4]
2019
(4) SA 451
(SCA) at para 10