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[2010] ZAWCHC 661
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Pavilion Conference Centre (Pty) Ltd v BMW (SA) (Pty) Limited (3719/2010) [2010] ZAWCHC 661 (18 March 2010)
IN THE HIGH COURT OF
SOUTH AFRICA
WESTERN CAPE HIGH
COURT, CAPE TOWN
CASE NO: 3719/2010
DATE: 18 MARCH 2010
In the matter between:
Pavilion Conference Centre (Pty)
Ltd
.....................................................................................
Applicant
And
BMW (SA) (PTY)
LIMITED
................................................................................................
Respondent
JUDGMENT: THURSDAY 18 MARCH 2010
Rilev, AJ:
[1] The applicant applies as a matter
of urgency for the following relief:
"(a) directing respondents to
restore to applicant possession of assets to and use of the premises
at the BMW Pavilion comprising
the theatre (previously used as the I
max Theatre) foyer and entrance staircase thereto, projection room
and storage facility ("the
theatre"), heretofore enjoyed by
applicant, ante omnia."
[2] Applicant conducts business as a
conference centre provider from various premises in the BMW Pavilion
which are leased from
the respondents. It is applicant's case that
there are separate leases covering two separate areas of the BMW
Pavilion namely:
(1) the theatre premises which is let
by the applicant from the respondent in terms of verbal lease
allegedly concluded between
the parties on 5th February 2009, ("the
theatre lease")
(2) Certain office and conference
premises in the BMW Pavilion which are let by respondent to applicant
in terms of a written lease
executed in December 2003. ("The
office lease").
[3] Applicant previously had a written
lease of the premises with respondent but this lease terminated in
2008. The parties have
however been engaged in a dispute about
whether or not applicant had exercised a valid right of renewal of
this lease. Respondent
disputed this.
[4] Respondent then entered into a
lease agreement of the theatre with a third party, Experience Theatre
("ET") ("the
ET lease") which lease commenced on
1 September 2009.
[5] On 17 February 2010, respondent
gave the instructions for the lock on the theatre door to be changed
and thus prevented applicant
from gaining access thereto.
[6] The applicant contended inter alia
in its founding affidavit that:
(a) Respondent's unlawful action in
dispossessing it of possession and access to and use of the theatre
by changing the locks thereto
severely disrupted the hosting by
applicant of an event by Growpoint in aid of Growsmart; a literacy
initiative for disadvantaged and rural
schools;
(b) That applicant was forced to make
emergency arrangements to host the event in the foyer outside the
actual venue which had been
booked and paid for by the client;
(c) That as a result of respondent's
actions applicant has suffered financial loss and harm to its
reputation as a reliable and
professional operation;
(d) Applicant was put to significant
expense in securing the alternative venue and ensuring its
suitability for the function;
(e) Applicant has had consistent and
regular access to and use of the theatre since March 2003 including
the period since the termination
of the lease between respondent and
ET.
(f) Applicant had been using the
theatre for actual conference purposes on average some 60 (sixty)
days per year.
(g) Applicant also accessed the theatre
for the purposes of marketing, cleaning and preparation for
conferences;
(h) Neither respondent, nor any other
party other than applicant has once made actual use of the theatre
since June 2006.
(i) That up until the locks had been
changed applicant continued to possess and exercise rights of access
and use to the premises.
See applicant's founding affidavit
record pages 11-12.
[7] The main basis upon which relief is
sought by the applicant is upon the basis of the mandament van
spolie.
[8] In order to succeed the applicant
must prove that:
(1) Applicant was in possession or
quasi possession;
(2) The respondent illegally deprived
the applicant of such possession or quasi possession.
See in this regard Silverberg and
Schoeman: The Law of Property (4th Edition) Butterworths p. 269
[9] In Shoprite Checkers Ltd v
Panabourne Properties Ltd
1994 (1) SA 616
(W) the court in dealing
with the requirement of what constitutes possession for the purposes
of the mandament van spolie held
at page 619 F to 621 A that:
"It is trite that the purpose of
the mandament van spolie is to protect possession without having
first to embark upon an enquiry,
for example, into the question of
the ownership of the person dispossessed. Possession is an important
juristic fact because it
has legal consequences, one of which is that
the party dispossessed is afforded the remedy of the mandament van
spolie. In addition,
other remedies, such as an interdict or a
possessory
action, also afford protection (see,
for example, Joubert(ed) Law of South Africa vol 27para 54 at 51.2).
As pointed out by Van
Blerk JA in Yeko v Oana
1973 (4) SA 735(A)
at
739D-H, the very essence of the remedy against spoliation is that the
possession enjoyed by the party who asks for the spoliation
order
must be established:
'In order to obtain a spoliation order
the onus is on the applicant to prove the required possession and
that he was unlawfully
deprived of such possession ...All that the
spoliatus has to prove is possession of the kind which warrants the
protection accorded
by the remedy, and that he was unlawfully
ousted.'
AH of this is of course based upon the
fundamental principle that no man is allowed to take the law into his
own hands and no one
is permitted to dispossess another forcibly or
wrongfully and against his consent 'of the possession of property,
whether movable
or immovable' and that if he does so -
'the Court will summarily restore the
status quo ante and will do that as a preliminary to any enquiry or
investigation into the
merits of the dispute' (see, for example, Nino
Bonino v De Lange 1906 TS120 at 122.). In Nienaber v Stuckey
1946 AD
1049
at 1056 it was held that "the possession of incorporeal
rights is protected against spoliation." The mandament van
spolie
is concerned with the protection or restoration of rights at
all. Its aim is to restore the factual possession of what the
spoliatus
has been deprived."
and further it is also apparent from
the various authorities to which I was referred by counsel for the
parties that exclusive possession is
not a requirement of the mandament. Possession is sufficient,
provided that the possessor derives
a benefit from such possession.
Restoration is also granted in terms of the mandament where
possession is incidental to the use
of the property,"
The elements of possession are well
summarised in Law of South Africa (supra para 56 at 53-4) as follows:
56. It is trite law that possession
consists of both an objective and a subjective element namely the
objective of physical element
(corpus, dententio) and the subjective
or mental element (animus).
'Literally, a possessor must control
the article with both the body and the mind. The physical element
consists in the factual control
exercised over the article. The
mental element concerns the state of mind of the possessor. Whereas a
minimum of factual control
is required for all classes of possession,
the content of the state of mind required for possession differs,
according to the functions
served by the possession in the particular
case.'
As further pointed out in para 57 of
Law of South Africa, the objective element of possession consists in
effective -
'Physical control or custody of the
thing in a person's possession. The measure of control required is a
question of degree and
differs according to the circumstances of each
case.'
[10] The main thrust of the
respondent's defence is that applicant was not in possession of the
property or that it had a right
of access thereto. The respondent
emphatically denied that applicant was at any time in possession or
occupation of the theatre
premises. See: page 84 and 103 of the
record.
[11] In my view the essential question
which arises for consideration in this matter is whether upon the
facts and based on the
well known principles set out in the
authorities above, it can be said that the applicant was in
possession (or quasi possession)
of the premises.
[12] Mr. Kantor contended that all that
was required from the applicant was that it should show that it was
in de facto possession.
He argued that applicant did not have to show
that it was entitled to be in possession. Accordingly he argued that
the cause or
lawfulness of the possession is irrelevant.
[13] Mr. Swart for the respondent
contended that applicant's rights to possession arose from the
written lease which terminated
on 28 February 2009. He averred that
there is no allegation in the founding affidavit that the applicant
after the termination
of the lease agreement on 28 February 2009 had
the intention to remain in possession of the theatre premises on a
continuous basis.
In any event, he argued that applicant lacked the
element of factual possession after 28 February 2009.
[14] According to him the applicant's
alleged right to possession is clearly contractual in terms of an
alleged contract which does
not give applicant a right to continuous
possession,
but rather a right to take possession
of the theatre premises on specific dates from 05h00 to approximately
18h00 but only if an
agreement for the use and occupation of the
theatre premises on that day has first been concluded.
[15] In considering the law in relation
to the requirement of possession in this case, I am guided by the
approach of the courts
in the following cases:
Nienaber v Stuckey (supra); Willowvale
Estates CC and Another v Brvanmore Estates Ltd
1990 (3) SA 954
;
Bennet Prinale fPtv) Ltd v Adelaide Municipality 1977 (1) ECD 230.
[16] In Nienaber v Stuckey supra
Greenberg JA held at 1056 that -
"...lean see no reason why relief
should not be available merely because the person who has been
despoiled does not hold exclusive
possession ..."
[17] In Willowvale Estates CC and
Another v Brvanmore Estates Ltd (supra), the court was confronted
with the following facts as
is summarised in the headnote of the
judgment:
''the first applicant, which had owned
land adjacent to the respondent's property since 1981, and whose
members, tenants (the second
applicant), servants and invitees had,
since then, used the gravel road across the respondent's land to gain
access to the applicant's
land, brought an urgent application for a
mandament van spolie because the respondent had erected and locked
gates across the road,
thus barring access to the property. The
respondent admitted having erected and
locked the gates, undertook to leave the gates unlocked only until
the application had been
finalised, and counterclaimed for a
declaration that the applicants had no right of way across its land."
[18] The court held that exclusive
possession of a route or road was not a necessary pre¬requisite
to the right to claim a spoliation
order. The court held further that
according to the authorities the right or title to the use of the
route or road in question
was not relevant.
[19] In Bennet Prinale fPtv) Ltd v
Adelaide Municipality Addleson J held at page 233
"In terms of all the authorities
cited, the "possession "in order to be protected by a
spoliatory remedy, must still
consist of the animus - the "intention
of securing some benefit to" the possessor and of detention
namely the "holding
"itself. From the consideration of the
cases referred to above, it seems to me to be dear that both these
elements, and especially
the detention, will be held to exist despite
the fact that the claimant may not possess the whole property or may
not possess it
continuously. If one has regard to the purpose of this
possessory remedy, namely to prevent persons taking the law into
their own
hands, it is my view that a spoliation order is available
at least to any person who is -
'(a) making physical use of property to
the extent that he derives a benefit from such use;
(b) intends by such use to secure that
benefit to himself; and
(c) is deprived of such use and benefit
by a third person.'
Such a definition may obviously be
incomplete but it seems to me to comprise the essentials
derived from the authorities referred
to, which are necessary to inclusion in this case and which were
relied on by M. Howie, for
the applicant and at p. 236 H.
"Even accepting that the applicant
may have exercised very little physical control of the premises and
was only intermittently
physically on the premises, the fact remains
that such control as existed was handed over to the applicant and
later resumed by
the respondent The applicant was leased the use and
enjoyment of the premises"
and at p. 237B
"It seems to me that the question
of "possession" is one of degree. Where what is encompassed
by possession (in this
case the right to run the abattoir) requires
little in the way of positive physical activity by the possessor, the
person who gave
him such right and who now invades it cannot justify
his conduct on the ground that there was very little positive
physical activity
by the possessor. The enquiry must be whether the
conduct of the possessor - minimal as it might be - shows that he did
exercise
rights or carry out activities consistent with the transfer
to him of control of the premises; and whether he did so with the
intention
of securing some benefit to himself"
[20] Mr. Swart referred me to various
cases in support of his forceful argument that applicant was not in
possession of the premises
when the spoliation occurred.
[21] The first case he referred to, to
illustrate his point was Shoprite Checkers Ltd v Panabourne
Properties Ltd {supra). In this
matter the applicant was a lessor of
a supermarket in a shopping centre owned by the respondent. The lease
agreement also provided
for access to the parking area for clients
and staff of the supermarket. The respondent embarked on building
operations which detrimentally
affect the visibility of the
supermarket and the applicant alleged that the building operations
deprived it of the free and undisturbed
possession of the parking
area. The Court was required to establish whether the applicant was
in fact in peaceful and undisturbed
possession of the parking area as
such, and found that the applicant was not in possession of a
specific part of the parking area
since it was used by many but
controlled by none.
[22] At 622B the Court held that -
"The mere fact that the applicant
might or might not have had a right, derived from a contract which it
entered into with the
respondent, to make use of the parking area in
question, including the parking bays to be found in the designated
area, did not,
in my view amount to a "possession", as
envisaged in the authorities, of such designated area for the
purposes of establishing
an entitlement to the mandament van spolie
...is, in my view, much closer to that which pertained in the Zulu
case supra which
was decided after the Bon Quelle case. In Zulu's
case, Thirion J, after referring, inter alia, to Bon Quelle
distinguished it from
the case before him (at 186F) and pointed out
that the mandament van spolie was not concerned with the protection
or restoration
of rights. Its aim was to restore factual possession
of which the spoliatus had been unlawfully deprived."
[23] And further at page 623D that -
"It seems to me that,
superficially attractive as Mr. KuschkeSC's forceful argument may be
in regard to the question of spoliation,
it amounts to no more than
an attempt by the
applicant, under the guise of an
alleged spoliation, to enforce rights which it claims to have in
terms of its contract with the
applicant in relation to the
designated area. It does not assist to seek to disregard the
contractual position of the parties and
to assume, for the purposes
of the spoliation argument, that the applicant might have no
contractual rights at all to occupy the
designated area, but yet be
entitled to claim the benefits of a spoliation order. This to my mind
serves to confuse the true issue.
The true issue in regard to the
spoliation aspect of the matter is to enquire into the simple factual
question as to whether the
applicant has established, on the basis of
the common cause or undisputed facts, that it was in possession of
the designated area
at the relevant time. In my view the mere right
to use property does not amount to possession of property. On this
basis I repeat
that I am of the view that the applicant has not
established the requisite of possession entitling it to the relief of
the mandament
van spolie."
[24] The second case he referred to in
support of his aforesaid contention is Zulu v Minister of Works
Kwazulu and Others
1992 (1) SA 181
(D) where at 187 E-G the court
held that -
"The mandament van spolie is a
possessory remedy by which a person who has been illicitly deprived
of his possession is restored
to his possession before the merits of
the dispute regarding the lawfulness of his possession are enquired
into. An applicant for
a spoliation order has to prove that he had
possession.
In the present case the applicant asks
for an order ordering the respondent to supply water to him. The
applicant has never had
possession of the water. He cannot therefore
found his claim on loss of physical possession. However it has been
held that also
'the possession
of incorporeal rights is protected
against spoliation'. (Nienaber v Stuckey
1946 AD 1049
at 1056.) In
truth the mandament van spolie is not concerned with the protection
or restoration of rights at all. Its aim is to
restore the factual
possession of which the spoliatus has been unlawfully deprived. The
question of the lawfulness of the spoliatus'possession
is not
enquired into at all."
[25] Mr. Swart specifically referred to
the article by Van der Walt in 1986 TSAR referred to by the court in
Zulu at p. 189 and
the article by Klevri in the 1989 De Jure at p.
162-3.
"...Daar kan glad nie sprake wees
van die toepassiing van die mandament in gevalle waar daar geen
sprake van die beheer oor
'n saak is nie, en as hierdie spesifieke
kwaiifikasie nie altyd uitdruklik vermeid word nie, is dit omdat dit,
in die lig van die
vereistes vir die mandament, vanselfsprekend is.
Ook in gevalle soos die hofsake wat hierbo vermeid is, en in gevalle
soos die
onderhawige saak, moet daar aan die fisiese beheersvereiste
voldoen word voordat die mandament van spolie gebruik kan word. ...
Wanneer ek sonder 'n magtigende serwituut oor my buurman se grond ry,
en hy sluit daarna die hek, kan ek die mandament van spolie
alleen
aanvra op grond van die bewering (wat uiteraard eers bewys moet word)
dat ek daadwerkiike beheer oor daardie pad gehad het
deurdat ek dit
daadwerklik gebruik het. Dit kan egter nie om my aanspraak om die pad
te mag gebruik handei nie, net so min as wat
dit in die Naidoo- of
die Froman-saak om my aanspraak op die lewering van elektrisiteit
(dit wilse my vorderingsreg) kan handei.
Dit kan egter weiom my
aanspraak op daadwerkiike gebruik (en by implikasie beheer) van die
saak (die perseel) gaan..."
[26] The Court at 189G and further
referred with approval to an article by Kleyn in 1989 (1) De Jure, in
which the author stated
that -
"...Uit eersgenoemde beslissing is
dit duideiik dat die biote aanspraak op besit of eiendomsreg nie deur
die mandament beskerm
word nie. Indien 'n verhuurder byvoorbeeid
weier om die huursaak aan die huurder te fewer„ is die
mandament nie die aangewese
remedie om die aanspraak (ius possidendi)
wat die huurder ex contractu op besit verkry, te beskerm nie, maar
eerder die aksie uit
die kontrak."
[27] He then proceeded to place
reliance on the following authorities which he contended was in point
and should persuade me that
based on the principles therein set out
that I should not grant the applicant the relief which it seeks:
ATM Solutions fPtv) Ltd v Qlkru
Handelaars CC and Another
[2007] ZAWCHC 63
;
2008 (2) SA 345
(CPD);
Telkom SA Ltd v Xsinet fPtv) Ltd
2003
(5) SA 309
(SCA) and First Rand Limited t/a Rand Merchant Bank and
Another v Scholtz N.O.
(2007) 1 All SA 436
(SCA).
[28] In the matter of ATM Solutions
fPty) Ltd v Qlkru Handelaars CC and Another {supra) the facts were
that the applicant was in
terms of a written agreement with the first
respondent permitted to install one of its automated teller machines
in the first respondent's
premises "at a mutually agreed
location." The agreement provided that the applicant would use
and occupy such premises
for the sole purposes of placing and
operating the ATM. The first respondent also provided an electricity
supply to the applicant's
ATM machine. On 19 September 2007 the first
respondent, without the consent of the applicant, disconnected the
electricity supply
and removed the applicant's ATM to a storeroom on
the premises, where it was inaccessible to customers. At the same
time an ATM
belonging to the second respondent was installed in the
place and position previously occupied by the applicant's ATM. The
applicant
thereupon applied for a spoliation order directing "the
respondents forthwith to restore the installation of the ATM to the
position and in the manner it formerly occupied on the premises of
the first respondent". The respondents opposed the application
on the basis that the applicant had failed to establish that it had
been in possession.
[29] In Telkom SA Ltd v Xsinet (Ptv)
Ltd {supra) the appellant supplied to the respondent (an internet
service provider) a telephone
system and a bandwidth system in order
for the respondent to conduct its business as an internet service
provider. The appellant
alleged that the respondent was indebted to
it in a sum of money in respect of one of the services provided,
which the respondent
disputed. The appellant thereupon disconnected
the respondent's telephone and bandwidth systems. The respondent
successfully brought
an urgent spoliation application in the
Provincial Division, which decision was overturned on appeal.
[30] In the matter of First Rand
Limited t/a Rand Merchant Bank and Another v Scholtz N.Q. and Others
{supra) the respondents were
members of a water users association
which was responsible for the supply of water to the respondents. In
terms of an agreement
for the conveyance of water to users, the
respondents agreed to pay a fee for the conveyance of water to them
by the second appellant.
The decision to terminate the water supply
was due to the parties' inability to agree on the fee payable. The
respondents had in
a provincial division successfully brought a
spoliation application for the restoration of the water supply, which
decision was
overturned on appeal.
[31] I am satisfied that the cases
referred to by Mr. Swart are distinguishable on the facts from the
present matter.
[32] In my view the principal issue to
decide in this matter is whether the applicant has established, on
the basis of the common
cause or undisputed facts, that it was in
possession of the premises at the time.
[33] Accordingly I find that the cause
or lawfulness of the possession is irrelevant to the enquiry in this
case. I must therefore
caution myself from not being side tracked by
what was described by Mr. Kantor as red herrings raised by the
respondent in an attempt
to evade the real issue.
[34] Accordingly I now turn to deal
with what has been described as de facto indications of applicant's
possession of the premises,
which, so it was argued by Mr. Kantor,
remained unchanged from the outset of the written lease in 2006 until
the date applicant
was locked out of the premises on 17 February
2010.
[35] I agree that the facts referred to
hereinafter (succinctly summarised in applicant's heads) are on the
whole not in dispute
and include the following:
(1) Applicant has been the sole user of
the premises since 2006. The respondent admits that neither the
respondent nor any other
third party has used the premises;
(2) Applicant has accessed the premises
on a regular basis for the purposes of showing the theatre to
prospective clients for repairs
and maintenance and for the
preparation for the holding of conferences;
(3) Applicant has made regular use of
the premises for the holding of conferences;
(4) Applicant has caused scaffolding
and lighting to be erected and installed on the premises;
(5) Applicant has permanently stored
its goods in the projector room of the premises and respondent has
not objected to this.
(6) Applicant supervised the cleaning
staff;
(7) According to the theatre key log
sheet applicant was allowed access to the premises other than on the
occasions when he holds
conferences;
(8) Applicant made use of the theatre
up until the date when respondent changed the locks.
[36] In addition to the facts set out
in paragraph 35 above I find that based on the following facts and
circumstances that the
applicant did possess and or did have control
over the premises at the time that the locks were changed:
(1) That even though respondent entered
into a lease agreement with a third party ET) with effect from 1
September 2009, applicant,
with the full knowledge of respondent, had
a valid sub-lease with ET in respect of the premises;
(2) It is a known fact that ET never
made use of the premises, never occupied it and that its management
was not in South Africa.
(3) Respondent itself did not make use
of the premises;
(4) Notwithstanding the introduction of
the new security system applicant accessed the premises as he pleased
without reference
to ET;
(5) The applicant continued to use the
premises in January 2010 and February 2010 without any permission or
consent from the respondent;
(6) Applicant has never been requested
to remove the scaffolding and lighting erected and installed on the
premise.
(7) Applicant continues to store its
goods in the projector room of the premises.
[37] In the result I find that even if
the respondent were to be in joint possession of the premises with
the applicant, that applicant
on the facts of this matter would still
be entitled to a spoliation order.
See: Nienaber v Stuckey at page 1056.
[38] I agree with the submission of Mr.
Kantor that the nature of applicants operation as the only de facto
user of the premises
and the various indiciae set out above
establishes that the applicant was in factual possession of the
premises.
[39] Accordingly I conclude that the
applicant was in possession of the premises or at the very least
enjoyed quasipossessio thereof.
[40] In my view the applicant has
established on a balance of probabilities that it has been deprived
of possession and is accordingly
entitled to a spoliation order.
[41] The respondent is ordered to
restore the applicant forthwith the possession of, access to and use
of the premises at the BMW
Pavilion, comprising the theatre, foyer
and entrance staircase thereto, projector room and storage facility.
[421 The respondent is to pay the costs
of the application for spoliation.
Riley AJ