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THE REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case Number: 2024-137618
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
______________________
DATE
______________________
SIGNATURE
In the matter between:
MAVAMBO COACHES (PTY) LTD Applicant
and
ZACAMATE (PTY) LIMITED First Respondent
SWEET DEAL (PTY) LIMITED Second Respondent
RICHARD BRIAN COUGHLAN Third Respondent
MARK MCNAMARA SMITH Fourth Respondent
2
Delivered: This judgment was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation to the parties' legal
representatives by email and by uploading it to the electronic file of this matter on
CaseLines. The date and time for hand- down is deemed to be 10:00 on 19
December 2024.
JUDGEMENT
PG LOUW, AJ
Introduction
[1] This is an urgent application premised on the mandament van spolie.
[2] The applicant claims that on 22 November 2024, the third and fourth
respondents jumped over the fence of the premises , situated at 1[…] V[…] Road,
C[…] D[…], Johannesburg (the premises), and co-ordinated the unlawful deprivation
of the applicant’s possession on behalf of the respondents. The applicant’s director
(Mr Sibanda) alleges that the applicant was in peaceful and undisturbed possession
of the premises at the time.
[3] The fourth respondent (Mr Smith) deposed to the answering affidavit in his
capacity as managing director of the first and second respondents, and in his
personal capacity as the fourth respondent. The third respondent (Mr Coughlan) is a
representative of the owner of the premises, Million Up Investments 86 (Pty) Ltd
(Million Up). Mr Coughlan deposed to a confirmatory affidavit in support of the
answering affidavit.
[4] At the outset of the hearing the applicant moved for an amendment in respect
of the citation of the first respondent. The intended amendment was not opposed.
3
The first respondent underwent a name change and its citation was amended to AAA
Borehole Services (Pty) Ltd.
[5] It was also indicated at the outset of the hearing that the second respondent
was in the process of withdrawing its opposition to the application and that the
respondents were not persisting with their dispute in respect of the authority of the
applicant’s attorneys in terms of rule 7(1).
[6] Depending on the circumstances of the matter and provided that the applicant
does not unnecessarily drag its feet, an application of this nature is normally (but not
necessarily always) urgent. The respondents did not challenge the urgency of the
matter and although the applicant only raised the alleged spoliation through a letter
of its attorney four days after the alleged spoliation, on 26 November 2024, the
matter was heard on an urgent basis on 4 December 2024.
[7] It is not sufficient for an applicant in a spoliation application to make out
merely a prima facie case. The applicant must “prove the facts necessary to justify a
final order – that is , that the things alleged to have been spoliated were in his
possession, and that they were removed from his possession forcibly or wrongfully
or against his consent”.
1
[8] Van Loggerenberg,
2 sets out the position as follows:
“When the proceedings are on affidavit (as they generally will be in the H igh
Court), the applicant must satisfy the court on the admitted or undisputed
facts, by the same balance of probabilities required in every civil suit, of the
facts necessary for his success in the application. The onus of proving the two
requisites for the order is thus on the applicant (or plaintiff). If he fails to
discharge it, the parties will be left to their remedy by way of action and a
fortiori where the evidence supports the respondent.”
1 See Van Loggerenberg in Erasmus: Superior Court Practice, Volume 2 at D7 -14 and the
authorities cited in note 121.
2 Id at D7-14 and the authorities cited in note 127.
4
[9] According to Mr Smith, none of the respondents are in possession or
occupation of the pr emises. According to Mr Smith , Million Up is in possession and
occupation of the pr emises and has placed security guards on the premises to
secure the remaining assets to protect them from ongoing vandalisation and theft. Mr
Smith states that he, as the representative of the first respondent (the valid
leaseholder in respect of the premises), together with the fourth respondent, in his
capacity as a representative of Million Up (the owner of the premises ) [I accept that
the reference to the “fourth” respondent should be the “third” respondent], attended
at the premises on 22 November 2024 to inspect the pr emises. They found the
premises in a state of dereliction and abandonment. The main gate appeared to be
broken. It required several people to open it. The only persons on the premises were
four Zimbabwe nationals – apparently employees of a company called “ Pioneer
Coaches” and a fifth man from Lesotho. These persons informed Mr Smith and Mr
Coughlan that they were sleeping in the busses because they had nowhere else to
go. According to Mr Smith, the five “illegal occupants” left the premises of their own
accord whilst a sixth individual jumped over the wall and ran away on his and Mr
Coughlan’s arrival.
[10] Further observations of Mr Smith and confirmed by Mr Coughlan include inter
alia:
[10.1] The water and electricity to the premises had been terminated.
[10.2] Many busses, buss trailers and trucks in various stages of disrepair
were found on the premises.
[10.3] The vehicles and buildings have been effectively abandoned and
are being stripped by criminals or are deteriorating from standing
out in the open. These observations were corroborated by
photographs taken by Mr Smith.
[10.4] The premises has no signage beyond the address which is painted
on the wall and predates the applicant’s occupation thereof.
[10.5] A large number of vehicles on the premises did not belong to the
applicant and were under attachment of Million Up.
5
[11] According to Mr Sibanda, he was personally present when the respondents
deprived the applicant of possession. He states that the applicant’s business has
come to a standstill and that the applicant is unable to perform its legal obligations to
its customers who have already purchased transport tickets to travel with the
applicant. The applicant is also unable to sell any further tickets because it would be
unable to perform its legal obligations to those customers. In addition, Mr Sibanda
states that the applicant uses the premises as a safe halfway rest stop for its drivers.
[12] According to Mr Smith, on 22 November 2024, after Million Up had taken
possession and occupation of the premises, Mr Sibanda drove his vehicle towards
the entrance of the premises and forced himself onto the premises. Mr Sibanda then
alleged that he was the owner of the premises , parked his vehicle inside the
premises and refused to leave. According to Mr Smith, Mr Sibanda slept in his
vehicle for the entire night of 22 November 2024 but left the premises on 23
November 2024 and abandoned his vehicle by leaving it at the premises. Mr
Sibanda alleges (in reply) that Mr Smith chased him away from the premises and
that he abandoned his vehicle “out of fear”.
[13] The applicant relies on Million Up Investments 86 (Pty) Ltd v Mavambo
Coaches (Pty) Ltd and Another .
3 Million Up lodged an urgent application against the
applicant during September 2024 seeking an order that the applicant be ordered not
to prevent Million Up’s duly authorised employees and the new tenant, being the first
respondent herein, from entering and occupying the remaining portion of the
premises, and further that the applicant restores possession and occupation of a
portion of the premises to Million Up. In the judgment of Strydom J it is stated that
the applicant “has been in possession of the premises or a portion thereof since
2017”, and the applicant never vacated the premises although further leases were
entered into in circumstances where the applicant was, according to Million Up, in
unlawful occupation of a portion of the premises . This led to a summons being
issued against the applicant wherein Million Up sought the ejectment of the applicant
from the premises. That litigation has not yet been finalised, but Million Up brought
an application on an extremely urgent basis for similar relief on the basis that it had
3 (2024/107226) [2024] ZAGPJHC 1053 (16 October 2024).
6
entered into a lease agreement with a tenant who wants to occupy a portion of the
premises. The matter was struck off the roll for lack of urgency.
[14] Mr Marx, who appeared on behalf of the applicant, submitted that the pending
litigation, the September 2024 application and a recent change in the name of the
first respondent, together with the events on 22 November 2024, are indicative of a
serious misuse of the justice system.
[15] As tempting as the adoption of this contention may be, Mr Smith states that he
is informed by Mr Coughlan, who was the deponent to the founding affidavit in the
urgent application before Strydom J, that Million Up “believed that the applicant was
in occupation of the premises when the application was launched. It was only
afterwards on inspecting the property, as I set out above, that it was discovered that
the property and its contents had been abandoned by the applicant” . This version
does not stand to be rejected as being far-fetched or clearly untenable.
4 In my view,
this allegation is corroborated by the evidence put up by the respondent s in the
answering affidavit.
[16] Mr Sibanda, in the replying affidavit, a gain states that he was personally
present on 22 November 2024 “to witness the respondents’ unlawful deprivation of
the applicant’s possession” . He relies on a screenshot of a WhatsApp conversation
between himself and a driver, Mr Gurumombe, wherein Mr Gurumombe apparently
informed Mr Sibanda of Mr Smith and Mr Coughlan’s attendance at the premises. No
confirmatory affidavit by Mr Gurumombe is before the court.
[17] In addition, Mr Sibanda, in reply, relies on “updated photographs” taken by
him on 22 November 2024 depicting the busses, trucks and the electricity
connections. He confirms that there is solar power to the property. These
photographs, in contradistinction to the photographs relied upon by the respondents,
depict, on the face of it , mobile and operating trucks and busses. On the face of it,
the premises where these photographs were taken appears to differ from the
premises where the respondents’ photographs were taken. I make no finding in this
4 South African Veterinary Council v Szymanski 2003 (4) SA 42 (SCA) at para 24.
7
regard. However, the question does beckon why this evidence, particularly the
(uncorroborated) evidence pertaining to the WhatsApp conversation was not put up
in the founding affidavit. Mr Sibanda refers to a photograph he took of himself and Mr
Smith and Mr Coughlan (FA9), however this photograph does not form part of the
papers before the court.
[18] From a conspectus of all the evidence placed before the court, I am of the
view that the applicant has not discharged the onus of showing that it was in
possession when it was allegedly spoliated.
[19] Even if this finding is wrong, there is another reason why the application ought
to fail: Million Up is in possession and occupation of the premises , but is not a party
to this application. The first respondent is not in occupation of the premises. The
second respondent is not in occupation of the premises. Mr Smith and Mr Coughlan,
in their personal capacities, are not in possession of the premises . The respondents’
version in this regard has not been rebutted. There is accordingly force in the
submissions of Mr Heher, who appeared on behalf of the first, third and fourth
respondents, that this is not a case where the alleged spoliator has parted with the
possession of the premises to a third party, and that, factually, none of the
respondents are in possession of the property. By implication, none of the
respondents are in a position to restore possession of the premises to the applicant,
even if the applicant had been spoliated. In my view, an order directing any of the
respondents to restore possession to the applicant cannot be enforced and is
therefore not competent.
[20] Insofar as the issue of costs is concerned, I am of the view that the general
rule that costs should follow the event should not be departed from.
[21] In the circumstances, I make the following order:
1. The application is dismissed.
2. The applicant is ordered to pay the first, third and fourth respondents’
party and party costs, including cost of counsel of Scale C.
8
PG LOUW
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, JOHANNESBURG
Appearances
Counsel for applicant: Adv P Marx
Instructed by: Schickerling Incorporated
Counsel for first, third and fourth respondents: Adv J M Heher
Instructed by: Khupane Attorneys
Date of hearing: 4 December 2024
Date of judgment: 19 December 2024