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[2024] ZAECQBHC 54
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Balhabou and Others v Blamey and Others (Reasons) (2954/2024) [2024] ZAECQBHC 54 (12 September 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
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IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, GQEBERHA
NOT
REPORTABLE
Case
No: 2954/2024
In
the matter between:
ISLAAM
ALLY SALEH BALHABOU
FIRST
APPLICANT
HAMIS
JOSEPH KAYAMBA
SECOND
APPLICANT
PAUL
SEPHRINE FERNANDES
THIRD
APPLICANT
and
WARWICK
MARSHALL BLAMEY
FIRST
RESPONDENT
SATRACTRACKING
(PTY) LTD
SECOND
RESPONDENT
UNLAWFUL
OCCUPIERS OF THE
PROPERTYSITUATED
AT 2[…] S[…]
STREET,
SUMMERSTRAND, GHEBERHA
THIRD
AND FURTHER
RESPONDENTS
REASONS
MULLINS
AJ:
INTRODUCTION
[1]
This spoilation application was brought on an urgent basis and was
heard by me virtually
on 7 August 2024. At the conclusion of
the argument, I made the following Order:
‘
1.
The application is dismissed with costs, such costs to be paid by the
First Applicant
on scale B.
2.
If either party requires reasons for the Order they are to request
same from
the Registrar of this court in writing within 10 days
hereof.’
[2]
The Applicants have requested reasons, which reasons follow.
BACKGROUND
[3]
Alleging that they had been unlawfully deprived of their peaceful and
undisturbed possession of an immovable property, 2[…] S[…]
Street, Summerstrand, Gqeberha (the “Property”)
the
Applicants launched this application on an urgent basis praying for
the following relief (excluding prayer 1, which deals with
urgency):
‘
2.1.
That the third respondents vacate the property situated at 2[…]
S[…] Street, Gqeberha
forthwith;
2.2.
That in the event of the third respondents failing to comply with the
Order in 2.1 above, the
Sheriff be authorised and directed to take
all such steps as are required in order to remove the third
respondents from the said
property and that the Sheriff be authorised
and directed to enlist the services of the South African Police
Services in order to
enable him to do so, if so required.
3.
That the respondents be ordered to return forthwith to the
applicant
[1]
full and
undisturbed possession of the property situated at 2[…] S[…]
Street, Summerstrand, Gqeberha.
4.
That the respondents are herewith interdicted from spoliating or
removing any
of the applicants’ possessions situated at 2[…]
S[…] Street, Summerstrand, Gqeberha.
5.
That the first and third respondents be ordered to pay the costs of
this application
on an attorney and client scale jointly and
severally, the one paying, the other to be absolved, including the
cost of counsel
on scale C, as provided for in Rule 69 (7).’
[4]
Based on the certificate of urgency the duty judge issued the
following
directions in accordance with rule 12(a)(i) of the Eastern
Cape Joint Rules of Practice:
1.
The application is set down for hearing at 14h15 on 7 August 2024.
2.
The application is to be served and filed on 5 August 2024.
3.
Any notice of opposition to be filed by 12h00 on 6 August 2024.
4.
Answering affidavits to be filed by 09h00 on 7 August 2024.
5.
Replying affidavits and heads of argument to be filed by 14h00 on 7
August 2024.
[5]
The matter was opposed by the Respondents and by the time it was due
to
be heard all the necessary affidavits had been filed as had heads
of argument, and the matter was ripe for hearing.
[6]
It is evident from the papers that this application is directly
related
to a much wider on-going commercial dispute between the First
Applicant and others, on the one hand, and the First Respondent and
others, on the other hand.
THE
APPLICANTS’ CASE
[7]
The First Applicant states:
(a)
He was previously the registered owner of the Property. He is
in
the oil business and he required letters of credit to provide
security for a large petroleum transaction he was involved in.
Pursuant
thereto, in return for the First Respondent providing
him with the necessary letters of credit he transferred ownership of
the
Property to the Second Respondent;
(b)
Despite the agreement the First Respondent failed to provide the
letters
of credit, nor had he received payment for the Property. In
the circumstances he intends to seek re-transfer of the Property
into
his name, which is to be dealt with along with “
numerous
other disputes”
in the Johannesburg High Court;
(c)
Although the Property had been transferred into the name of the
Second
Respondent, the First Applicant states that he remained in
possession and occupation thereof. He explained the situation as
follows.
He has two residential homes, the Property in question
and another one in Bedfordview, Johannesburg (the “Bedfordview
Property”).
Because he has business interests in both
centres he and his family divide their time between the two
properties;
(d)
As for the Second and Third Applicants, they live on the Property,
the Second Applicant
being described as the “
resident chef”
and the Third Applicant merely as a “
resident”,
both of whom have been in occupation since 2018.
[8]
The First Applicant was not present when the alleged spoilation
occurred,
which is described by the Second and Third Applicants in
their confirmatory affidavits (in identical terms). According
to
them:
(a)
On 31 July 2024 the First Respondent arrived at the Property with
four
men, who forcibly gained entry thereto by cutting the locks and
chains. The First Respondent advised them that he was taking control
of the Property;
(b)
The Third Applicant contacted the police who, on arrival, instead of
coming
to their assistance, assisted the First Respondent in taking
control of the Property;
(c)
New locks and chains were placed on the three gates to the Property.
The
First Respondent gave one of the men who had accompanied him the
keys to the Property and then he (the First Respondent) left, leaving
two individuals behind;
(d)
The Second and Third Applicants were “
permitted”
to stay the night, but because they feared for their safety they left
the next morning, leaving their clothes and belongings behind.
[9]
As a result of these developments the First Applicant contacted his
attorney
who in correspondence with the Respondents’ attorney
tried to arrange for the return of the
status quo,
to no
avail. In the result this application was launched based on the
mandement van spolie.
[10]
The First Applicant states that he and the Second and Third
Applicants have been unlawfully
spoliated of their peaceful and
undisturbed possession of and use of their residence and movable
assets.
[11]
As for urgency the First Applicant states that Applicants were being
severely prejudice,
in that:
(a)
He and the Second and Third Applicants had been forced to take up
alternative
accommodation at considerable expense;
(b)
Their clothing and personal possessions were still at the Property,
as
were those of his wife and children, which personal possessions
“
might well”
be disposed of or damaged;
(c)
There could be no prejudice to the Respondents if the matter was
heard
as one of urgency.
[12]
It is relevant that
although it is the registered owner of the Property, the First
Applicant states that the Second Respondent is
cited as an interested
party only and no relief is sought against it, save in the event of
it opposing the application.
[2]
[13]
In conclusion it was submitted that as a mark of disapproval the
First and Third Respondents
should be ordered to pay the costs of the
application on the scale as between attorney and client and counsel’s
fees on scale
C.
THE
FIRST RESPONDENT’S CASE
[14]
The First Respondent states:
(a)
He is a businessman and that via another entity (which is not before
the
court in this application) he is the owner of the Bedfordview
Property, and via the Second Respondent he is the “
owner
”
of the Property in question;
(b)
Both properties are currently the subject of litigation in the
Johannesburg
High Court, which issues are accordingly
lis pendens
this application;
(c)
In addition to
lis pendens
the Respondents took a number of
points
in limine
, namely:
(i)
The eviction of the Third Respondents (the Unlawful Occupiers),
who
had taken up occupation at the behest of the First Respondent, was
not competent as the provisions of the PIE Act had to be
followed;
(ii)
The matter was not urgent;
(iii)
The First Applicant had no
locus standi
as he did not reside
on the Property;
(iv)
There are disputes of fact on the affidavits, which disputes the
First Applicant was aware
of, which cannot be resolved on the papers.
(d)
With regard to the merits it is the First Applicant’s case that
the Property was in need of maintenance and that this was why he and
the Third Respondents had gone to the Property that day;
(e)
He denied that the locks and chains had been cut and that there was
anyone
else (the Third Respondents) residing on the Property.
This is confirmed by confirmatory affidavits by two individuals who
state that they are employed by another entity which has been
contracted by the “
Respondents
” to attend to
maintenance work at the Property. They deny that they reside
there, nor that they spoliated the Applicants,
nor that they removed
their property.
THE
PIE ACT
[15]
The PIE Act point has no
merit. While the notice of motion may not be a model of clarity, the
intention is clear: to immediately
restore possession of the
Property to the persons who have been unlawfully dispossessed
thereof. If an occupier/possessor of immovable
property had to resort
to the PIE Act on every occasion he/she is unlawfully dispossessed of
his/her property it would completely
negate the purpose of the
spoliation remedy, which is designed as a remedy, usually on an
urgent basis, where a respondent
has resorted to self-help and all
that is being sought is a return of the
status
quo
.
[3]
Having said that, there may well be circumstances where the PIE
Act would be the more appropriate remedy, but this is not
such a
case.
LOCUS
STANDI IN IUDICIO
[16]
The
locus standi
argument is equally without merit. The First
Respondent’s case in this regard is that the First Applicant
does not reside
on the Property. Actual physical presence is not a
requirement. The test is whether the First Applicant was in
possession of the
Property at the time, not whether he was actually
physically in occupation. I am satisfied that on the evidence
he was in
possession, not only in the legal sense, but through the
Second and Third Applicants who, it is not in dispute, were living on
the property at the time.
[17]
That the First Applicant was in possession of the Property is
evidenced by the fact that
on a prior occasion the First Respondent’s
attorney had delivered notices in accordance with the PIE Act calling
upon him
to vacate the property.
LIS
ALIBI PENDENS
[18]
I turn out to the issue of
lis alibi pendens.
The First
Respondent states that:
(a)
On 14 June 2024 the First Applicant “
and others”
launched an urgent application in the Johannesburg High Court in the
case number 2024 – 066094 citing the First Respondent
and
others (the “first application”). The relief sought in
the first application deals in the wider dispute I alluded
to above.
Of relevance to this matter, albeit indirectly, is a prayer for the
re-transfer of the Property into the First
Applicant’s name.
In any event, the first application was struck of the role,
apparently due to lack of urgency;
(b)
Then, during the last week of July 2024 the First Applicant launched
another
urgent application in the Johannesburg High Court, this time
citing only the First Respondent, to be heard on 6 August 2024 (the
“second application”). Although the second application
also deals with the Bedfordview Property, and another property
hitherto not referred to, the relief sought in respect of the
Property in question is relevant. It reads:
‘
2.
That the respondent be ordered to return to the applicant full and
undisturbed possession
of the property situated at […] G[…]
Street
[4]
Summerstrand, Cqeberha
(sic) Eastern Cape Province, alternatively 2[…] S[…]
Street, Summerstrand Cqeberha, (sic)
Easter (sic) Cape and that the
sheriff be ordered to do anything necessary to ensure that the
property is returned to the applicant
and/or his family members;
…
4.
That the respondent is hereby interdicted from spoliating or using
any such third
party to spoliate or remove any of the applicant’s
possessions situated in any of the properties situated at …
[…]
G[…] Street, Summerstrand, Cqeberha (sic) Eastern
Cape Province, pending finalisation of the pending application in
this
court under case number 2024/066094.’
(c)
Thereafter, on 1 August 2024, a “fresh” notice of motion
was
issued in the same terms, apparently because the First
Applicant’s attorney had “
problems”
enrolling the second application. Significantly, the second
application was still pending when this matter was argued, the 27
August 2024 having been allocated for the hearing thereof;
(d)
In opposition to the plea of
lis pendens
it is the First
Applicant’s case that when the present application was launched
in this court no case number had been allocated
to the second
application. Therefore, it was argued, there was no case
pending
in the Johannesburg High Court;
(e)
The Respondents dispute this and point out that the application had
been
issued and an answering affidavit filed. The allocation of a
case number was merely an administrative formality, and a case number
was in fact duly allocated, albeit after this application was
launched. The case number is 2024-089220 and it was allocated on
8
August 2024 and, as already alluded to, it was set down for hearing
on 27 August 2024.
[19]
The requirement for
lis pendens
are trite. There must be
pending litigation between the same parties based on the same cause
of action.
[20]
It is so that the second application cites only the First Applicant
and the First Respondent
as parties thereto, whereas the present
matter cites multiple parties on both sides, and includes other
relief. However, insofar
as the First Respondent in this matter is
concerned the relief sought against him is exactly the same as that
sought in the second
application, albeit worded somewhat differently.
[21]
It is also so that even where a court finds that the matter is
lis
pendens
before another court it retains the discretion to
entertain the later proceedings. See
Geldenhuys v Kotze
1964
(2) SA 167
(O). In my view this is not a case for the exercise
of that discretion. It will result (or will have resulted) in
the
piecemeal adjudication of a much wider dispute, which dispute was
already before the Johannesburg High Court when the present
proceedings
were instituted. It could also result in conflicting
decisions with regard to the fate of the Property. In the
circumstances, insofar
as the First Applicant is concerned, I am of
the view that the plea of
lis pendens
was well taken.
[22]
Even if I am wrong in this regard, there are two further aspects to
consider, namely, urgency,
and disputes of fact.
URGENCY
[23]
As a general rule a
mandement van spolie
is treated as
inherently urgent, but this is not automatically the case. See
Magala
v Magala
1967 (2) SA 415
(E).
[24]
Insofar as the First Applicant is concerned, it can never be argued
that the matter was
urgent. In his founding affidavit he states
that up until 31 July 2024 he resided at the Property. This is denied
by the
First Respondent, who alleges that he resides at the
Bedfordview Property. In reply the First Applicant makes the
following
equivocal allegation:
‘
43.
Save to admit that I am resident in both the Bedfordview property and
the Gqeberha property on
different times of the year, the remainder
of these paragraphs are denied.
44.
I did state in an affidavit
[5]
that I resided 4[…] B[…] Road, Bedfordview. That is
correct. I resided there as well as at the property, as stated
in my
founding affidavit.’
[25]
That the First Applicant was clearly not in residence on 31 July 2024
is evidenced by the
fact that he had to rely on the Second and Third
Applicants’ account for what had allegedly occurred. In the
circumstances
it can never be argued that the First Applicant had
been deprived of a roof over his head and that he urgently required
that it
be restored. See
Magala
.
[26]
On this basis alone the application insofar as the First Applicant is
concerned stands
to be dismissed.
[27]
That leaves the Second and Third Applicants. Their situation is
clearly distinguishable
in that they were physically in occupation of
the Property. I have already dealt with their version of what
transpired.
[28]
The First Respondent takes issue with their version. He alleges that.
(a)
A business had been employed by him to attend to maintenance of the
Property,
as it is in a bad state of repair;
(b)
That maintenance work was planned is confirmed in a letter to the
First
Applicant, dated 2 July 2024. This letter does not require the
Property to be vacated;
(c)
Two individuals (the Third Respondents) are not staying on the
Property,
which they confirm in their confirmatory affidavits.
They have merely been assigned by their employer to do maintenance
work;
(d)
Neither the locks nor chains were cut, nor did anyone force their way
onto the Property.
[29]
It is also relevant that on their own version the Second and Third
Applicants remained
on the property on the night of 31 July 2024,
although to be fair the First Applicant does allege that they were
“
permitted”
to do so due to the lateness of the
hour.
[30]
It is also relevant that the Second and Third Applicants say they
vacated the Property
on the following morning because they feared for
their safety. This raises two issues:
(a)
Firstly, they were not forcibly evicted, but left out of choice,
albeit
because they claim to fear for their safety;
(b)
Secondly, they do not say why they feared for their safety, which is
a
bald allegation. This aspect is so fundamental to the matter that
one would have expected details of the nature of the threats to
their
safety.
[31]
Finally, the First Respondent does not say that the Second and Third
Respondents may not
return to the Property.
[32]
In addition, and it is also relevant to urgency as far as they are
concerned, the Second
and Third Applicants do not say that they have
nowhere else to stay. In the circumstances, not only is the
spoliation of the Second
and Third Applicants in doubt, it was
certainly not urgent as far as they were concerned.
DISPUTES
OF FACT
[33]
There are numerous disputes of fact on the papers, many of which have
been already been
dealt with above. These disputes have to be decided
in the Respondents’ favour, unless it is clear that the
Respondents’
version can safely be rejected. Thus, the First
Applicant’s allegation that he and his family were forcibly
evicted is clearly
false; that the Second and Third Respondents were
forcibly evicted is also not true. They chose to leave of their own
accord, albeit
based on an alleged fear for their safety; it is also
denied that the locks and chains were changed; it is denied that
anyone else
has moved on to the Property. Whatever the truth thereof
may be these disputes cannot be resolved on the papers before me.
[34]
I am alive to the fact that this application is but one aspect of a
much wider dispute
involving the First Applicant and the First
Respondent, and others. That, in my view, requires that I adopt an
even more caution
when considering the allegations and
counter-allegations.
[35]
It is of further relevance that the First Applicant makes conflicting
allegations in the
second application. For example:
(a)
He describes himself as a … “major male businessman
currently
resident at 4[…] B[…] Road,
Bedfordview, Johannesburg”; (my underlining).
(b)
The purpose of the second application is described as follows:
‘
5.
This application is being brought to restore the undisturbed use and
enjoyment of the
property situated at […] G[…] Road /
2[…] S[…]d Street, Summerstrand, Cqeberha, Eastern Cape
Province,
by
myself and my family
,
and to interdict the respondent from further spoliating the property
situated at 4[…] B[…] Road, Bedfordview, Johannesburg
from myself or any of my family members.
6.
The respondent has attempted on 23 July 2024 to forcefully spoliate
me
and my family members resident there
, from the property
situated at 4[…] B[…] Road, Bedfordview, Johannesburg.
It was prevented with the assistance
of the SAPS.
7.
On 31 July 2024, the respondent has now succeeded in spoliating the
property
situated at […] G[…] Street / 2[…] S[…]
Street, Summerstrand, Cqeberha, Eastern Cape Province, from
me
and
my family
.
8.
All of my and my family’s possessions are still currently in
both the properties.
Some family members live in the one
property and others in the other
.’ (Underlining
provided)
The allegation that some
of the First Applicant’s family members were resident on the
Property is simply not true. Only
the Second and Third
Applicants were.
(c)
The result of the alleged spoliation is described thus:
‘
41.
My
family members were left destitute and stranded in Cqeberha, as they
were simply by force thrown out of the house. The
respondent
refused to let them back in to collect a jacket or warm blankets for
the winter evening in Port Elizabeth
.’
(Underlining provided)
Again, simply not true.
[36]
The impression one is left to is that the First Applicant is prepared
to go to any lengths
to achieve his ends and in the process plays
fast and loose with the truth.
CONCLUSION
[37]
In the circumstances, after hearing argument, I was not satisfied
that a case had been
made out for the relief claimed and handed down
the order as set out at the commencement of these reasons.
N
J MULLINS
ACTING
JUDGE OF THE HIGH COURT
Appearances:
For
Applicants:
Adv L
A Schubart SC
Faizel
Kara Attorneys
c/o
Goldberg & De Villiers Inc
GQEBERHA
For
1
st
& 2
nd
Respondents:
Adv F
J Labuschagne
Kern
Armstrong & Associates
c/o
Pagdens Attorneys
GQEBERHA
Date
Heard:
7
August 2024
Reasons
made available:
12
September 2024
[1]
I
assume the reference to “applicant” should have been in
the plural.
[2]
The
notice of intention to oppose is filed on behalf of the First and
Second Respondents, the Third and Further Respondents not
entering
the foray (save to file confirmatory affidavits).
[3]
See the very helpful summary in
Erasmus:
Superior Court Practice;
Vol
2; D7 – 1 to D7 – 20
[4]
The Property is situated on a corner and it is also referred to as
being situated on a street of that name.
[5]
In the second application.