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[2014] ZAWCHC 168
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Smuts v Benson; InRe: Smuts v Benson and Others (A356/2014 , 10989/2014) [2014] ZAWCHC 168 (12 November 2014)
THE
HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
In
the matter between
Appeal
Case No: A356/2014
DATE:
12 NOVEMBER 2014
BOUDEWYN
HOMBURG DE VRIES SMUTS
...............................
APPELLANT
And
MATHYS
JOHANNES
BENSON
.................................................
RESPONDENT
And
In
the matter between
Case
10989/2014
BOUDEWYN
HOMBURG DE VRIES SMUTS
..............................
APPLICANT
And
MATHYS
JOHANNES BENSON
....................................
FIRST
RESPONDENT
MARTHINUS
JOACHIM VERMEULEN
..................
SECOND
RESPONDENT
THE
SHERIFF ON THE MAGISTRATE’S COURT,
RIVERSDALE
.............................................................
THIRD
RESPONDENT
Coram
:
BAARTMAN & ROGERS JJ
Heard:
7 NOVEMBER 2014
Delivered:
12 NOVEMBER 2014
JUDGMENT
Rogers
J:
[1]
There are two cases
before us. The first case is an appeal against a spoliation order
granted by the Riversdale Magistrate’s
Court, to which is
related an application by the appellant for condonation for
non-compliance of certain of the rules governing
the appeal. The
second case is an application to suspend the execution of a writ in
respect of the costs awarded in favour of the
successful party in
the Riversdale Magistrate’s Court.
[2]
I shall refer to the
appellant and respondent in the appeal as Smuts and Benson. They are
also the applicant and first respondent
in the suspension
application. The second and third respondents in the suspension
application are Benson’s attorney (‘Vermeulen’)
and
the Sheriff of the Riversdale Magistrate’s Court. Vermeulen was
joined because Smuts sought costs
de
bonis propriis
against
him, with an alternative for Benson to pay the costs on an attorney
and client scale. The Sheriff has played no part in
the proceedings.
[3]
Benson, who is a
farmer, launched the spoliation application in the court
a
quo
on 7 April 2014
as a matter of urgency following the alleged removal by Smuts of a
fence which disturbed Benson in his use of the
farm Kloofnek.
Answering and replying papers were filed. On 15 April 2014 the
magistrate granted the application with costs, ordering
Smuts to
restore the removed fence.
[4]
On 17 April 2014 Smuts
delivered a notice of appeal. He did not simultaneously lodge the
security contemplated by rule 51(4) of
the Magistrates’ Court
Rules (‘MCR’). Benson, through his attorneys, MJ
Vermeulen Inc (‘MJV’),
adopted the stance that, because
of the failure to file security within the 20 days for the noting of
an appeal allowed by rule
51(3) of the MCR, the noting of the
appeal was ineffective and did not suspend the operation of the
spoliation order. Smuts’
attorneys, Hugo & Bruwer
Prokureurs (‘HBP’), disagreed. Smuts furnished the
required security on 27 May 2014 but
MJV contended that by then the
appeal had lapsed (the 20 days having expired, by my reckoning, on 20
May 2014).
[5]
On 3 June 2014 MJV
wrote to HBP requiring that Smuts pay the taxed costs of the
spoliation application within one week failing which
a writ of
execution would be served. Smuts did not pay the costs. On 17 June
2014 the Sheriff served a writ to attach Smuts’
goods in
satisfaction of Benson’s taxed costs amounting to R7 053.
[6]
On 24 June 2014 Smuts
launched an urgent application in this court to suspend execution of
the writ pending the determination of
the appeal. As already
mentioned, he sought costs personally against Vermeulen,
alternatively on the attorney and client scale
against Benson. On 1
July 2014 an order was made by agreement in terms whereof the
suspension application was postponed to 11 September
2014 for hearing
on the semi-urgent roll together with a timetable for the filing of
papers. A rule
nisi
was issued calling
on Benson and Vermeulen to show cause why the writ should not be
suspended pending the outcome of the appeal
and why the requested
costs order should not be made. In regard to the writ, the rule was
to operate as an interim interdict.
[7]
The parties filed
answering and replying affidavits in the suspension application. The
parties thereafter anticipated the scheduled
hearing on 11 September
2014 and obtained an order by agreement that the suspension
application be further postponed for hearing
together with the appeal
on 7 November 2014.
[8]
In the meanwhile, and
on 7 August 2014, Smuts applied for an appeal date in terms of rule
50(4)(a) of the Uniform Rules of Court
(‘URC’). Rule
50(4)(c) provides that an application for an appeal date is the act
by which an appeal is deemed to have
been duly prosecuted. Smuts’
application for an appeal date was late. The 40 days stipulated in
rule 50(4)(a) – counted
from the date of the defective noting
of the appeal, 17 April 2014 – expired on 20 June 2014. In
terms of rule 50(1) of the
URC an appeal lapses if not prosecuted
within 60 days of the noting of the appeal. Here the 60 days –
again reckoned from
17 April 2014 – expired on 18 July 2014.
(Since the noting of the appeal on 17 April 2014 was defective, one
could reason
that the defective noting did not trigger the 40-day and
60-day period, and that – subject to condonation of the late
security
– those periods should be reckoned from 27 May 2014,
the date on which the late security was lodged. In that event, the 40
days and 60 days expired on 23 July and 20 August 2014 respectively.)
[9]
On 14 August 2014 Smuts
delivered an application for condonation in respect of his failure
timeously to deliver security in terms
of rule 51(4) of the MCR and
his further failure timeously to apply for an appeal date in
accordance with rule 50(4) of the URC
(the latter based on the view
that the 40 days and 60 days ran from 17 April 2014). Benson
did not file an affidavit in opposition
to the condonation
application but his counsel submitted in his heads of argument that
condonation should be refused.
[10]
Mr S de Beer appeared
before us for Smuts (the heads having been drafted by Mr JJ Hefer)
and Mr P-S Bothma for Benson and Vermeulen.
[11]
The suspension
application has, by virtue of the agreed orders, become academic
except in relation to costs. The application was
based on the
contention that an appeal had effectively been noted, thus suspending
the operation of the spoliation order and costs
order. This
contention was misconceived. On the other hand, this court has an
inherent jurisdiction to suspend the execution of
a writ where there
is a possibility that the underlying
causa
for the writ may in
due course fall away and there is a well-grounded apprehension that
irreparable harm could be suffered by the
applicant if execution were
not stayed (
Road
Accident Fund v Strydom
2001
(1) SA 292
(C) at 304G-H;
First
Mortgage Solutions Pty Ltd & Another v Absa Bank Ltd &
Another
2014 (1) SA
168
(WCC) paras 4-6).
[12]
Benson was wanting to
have Smuts’ goods attached in satisfaction of a trifling amount
of costs, in circumstances where it
was obvious that Smuts, even
though he had not complied precisely with the rules, was intending to
appeal. At the time Benson caused
the warrant to be served, Smuts’
only default was that he had furnished security on 27 May 2014 rather
than by 20 May 2014.
[1]
Condonation, if insisted upon, had to be sought from this court, not
the lower court. Realistically, such condonation would be
argued at
the commencement of the appeal rather than by way of an earlier
interlocutory hearing.
[13]
Benson should, in the
circumstances and as a matter of common sense, have agreed to
suspension of the writ, at least until it was
determined whether
Smuts would get condonation for the failure to post security
timeously. If Benson was concerned that Smuts was
dragging his heels,
he could have put Smuts to terms to deliver his condonation
application, failing which execution would proceed.
Instead, costs
were run up in answering and replying papers and presumably in
relation to the hearing of 1 July 2014 and the scheduled
hearing of
11 September 2014.
[14]
I thus consider that,
regardless of the outcome of the appeal, the parties should bear
their own costs in relation to the suspension
application.
[15]
Turning to the appeal,
there is the preliminary question of condonation. In regard to the
failure timeously to lodge security, Smuts’
attorney has
explained that he simply overlooked this requirement. It is
regrettable that MJV, instead of pointing out the non-compliance
when
the notice of appeal was filed on 17 April 2014, waited until the
expiry of the 20-day period before notifying HBP that the
noting of
the appeal was ineffective and alleging that Smuts was in contempt of
the magistrate’s order. The oversight was
promptly remedied
when it came to light.
[16]
Regarding Smuts’
failure to apply for an appeal date within 40 days from the noting of
the appeal, ie by 20 June 2014 (HBP
only applied for a date on 7
August 2014), his attorney explained that he misinterpreted the
relevant rules. He thought the registrar
would only grant an appeal
date after the record had been filed. The explanation is not
altogether satisfactory but the delay was
not gross.
[17]
While a failure by an
attorney properly to inform himself on matters of procedure may
sometimes be visited on the client, this is
not a case where it would
be just or proportionate to refuse condonation simply because of the
failure by Smuts’ attorney
to comply timeously with the
relevant rules. Smuts plainly wanted to pursue an appeal. A detailed
notice of appeal was filed very
shortly after the court
a
quo
delivered
judgment. He no doubt believed that his attorney was taking the
necessary procedural steps. They are not matters of which
he could
have been expected to be knowledgeable. Benson has suffered no
prejudice. This appeal is being heard less than seven months
after
the court
a quo
gave
judgment. Strict compliance with the rules is unlikely to have
resulted in a significantly earlier hearing.
[18]
However, an appeal
court in assessing an application for condonation must also consider
the applicant’s prospects of success
in the appeal (see, eg,
Melane v Santam
Insurance Co Ltd
1962
(4) SA 531
(A) at 533A;
Federated
Employers Fire & Gen Insurance Co Ltd & Another v McKenzie
1969 (3) SA 360
(A)
at 364A). Where there has been a flagrant breach of the rules, an
appellate court may refuse condonation even in the face of
strong
prospects of success (see, eg,
Ferreira
v Ntshingila
1990
(4) SA 271
(A) at 281J-282A;
Beira
Raphaely-Weiner & Others
[1997] ZASCA 59
;
1997
(4) SA 332
(SCA) at 337C-F). For reasons I have stated, this is not a
case where condonation should be refused without regard to prospects
of success. Since the condonation application was argued
simultaneously with the appeal, we have all the material and
submissions
to reach a conclusion on this question. I thus turn to
the merits of the case.
[19]
Benson alleged in his
founding affidavit that at the time of the removal of the fence he
was in peaceful and undisturbed possession
of Kloofnek excluding,
however, the dwelling that was once occupied by a Mr Dempers (‘the
dwelling’). He used the farm
for grazing animals.
[20]
The physical layout was
not described as precisely as one would wish. Nevertheless, the
following appears from a consideration of
the papers read sensibly.
Kloofnek adjoins Smuts’ farm, Zeekoegat. Until the act of
alleged spoliation, the dwelling and
some of the surrounding Kloofnek
farmland was enclosed with fencing to create what I shall call ‘the
dwelling enclave’.
One of the four sides of the enclave fencing
was on the boundary between Kloofnek and Zeekoegat. This is the fence
which Smuts
removed.
[21]
Until this fence was
removed, Benson could place his animals in the dwelling enclave.
There were two gates into the enclave as well
as a drinking trough.
After the removal of the fence, animals placed in the dwelling
enclave would be able to wander onto Zeekoegat
and animals on
Zeekoegat could wander into the dwelling enclave. This is the
disturbance in possession of which Benson complained.
He said he
could not feasibly place his animals in the dwelling enclave unless
the fence were re-erected.
[22]
Benson did not in his
very terse founding affidavit say, nor was he required to say, by
what right, if any, he occupied Kloofnek.
What he said was that he
was in free and undisturbed possession of Kloofnek apart from the
dwelling. I am satisfied that he did
not intend to exclude, and would
not have been understood by Smuts as excluding, from the land which
he allegedly possessed, the
farmland forming part of the dwelling
enclave. Only the dwelling itself was excluded.
[23]
In his answering
affidavit Smuts did not say that Benson did not use the land in the
enclave for farming. What he did was to make
allegations regarding
the respective rights of the parties to that land. He alleged that
his wife, Mrs Smuts, had taken transfer
of a part of Kloofnek,
including the dwelling enclave, during 2013. He alleged, further,
that Benson occupied Kloofnek by virtue
of a lease with the CV De Wet
Family Trust (into whose shoes Mrs Smuts had presumably stepped upon
acquiring ownership) and that
Benson’s rights under the lease
specifically excluded the dwelling enclave (to which he referred as
‘the farmyard of
the Dempers House’). He attached the
lease and its various addenda, and referred specifically to clause
4(b). He also claimed
that the dwelling enclave was land on which
Benson was prohibited from conducting any ploughing activities, in
support of which
assertion he annexed a specialist botanical report.
[24]
As is trite, a court
will not in a spoliation application enquire into the underlying
rights of the parties (see
Firstrand
Ltd t/a Rand Merchant Bank v Scholtz NO & Others
2008
(2) SA 503
(SCA) para 12 and authorities there cited). If the
applicant had, and intended to have, possession of the land in
question and
is dispossessed, possession must be restored
ante
omnia
.
[25]
In order to possess the
whole of a farming area it is not necessary that the farmer use all
the land all the time. In the context
of possession for purposes of
acquisitive prescription it has been said that the test is whether
there was such use of part or
parts of the ground as amounts for
practical purposes to possession of the whole, that absolute
continuity of possession is not
required, and that much depends on
the nature of the property and the type of use to which it is put
(
Morkels Transport
(Pty) Ltd v Melrose Foods (Pty) Ltd & Another
1972
(2) SA 464
(W) at 467H-468B;
Morgenster
1711 (Pty) Ltd v De Kock NO & Others
2012
(3) SA 59
(WCC) para 17).
[26]
I do not think there
was any
bona fide
dispute in the
court
a quo
that
Benson had for some years used the land forming part of the dwelling
enclave (together with the rest of the farm) for agricultural
purposes. I would simply add that clause 4(b) did not expressly say
that the dwelling enclave was excluded from his lease. What
was
excluded from the lease was ‘
die
woning wat tans deur Mnr Dempers bewoon word op die plaas Kloofnek’
.
On the face of it, this refers to the dwelling itself, not any
surrounding land. It is not necessary or appropriate in this case
to
express any final view on the interpretation of the lease but it
certainly does not provide clear support for a contention that
Benson
knew that he had no right to use the dwelling enclave and therefore
as a fact did not use it. I may also add that the botanical
report
does not support Smuts’ assertion that the use of the enclave
was unlawful.
[27]
The removal of the
fence did not prevent Benson from gaining physical access to the
dwelling enclave. He could still drive his cattle
into the enclave
through one of the gates. However, the enclave was no longer enclosed
on its border with Zeekoegat. It is a matter
of common sense that a
farmer cannot keep cattle on his land if the land is not fenced,
since then his animals could wander onto
the neighbouring land. They
might become lost or mingled with other cattle or be difficult to
round up.
[28]
Dispossession does not
have to be absolute (complete) in order to constitute spoliation
(
LAWSA
2
nd
Ed Vol 27 paras 95 and 108). For example, the use of water and
electricity would typically be an incident of possession of property,
so that disconnecting the water or electricity supply could amount to
an act of spoliation (
Naidoo
v Moodley
1982 (4)
SA 82
(T) at 84B-E;
Impala
Water Users Association v Lourens NO & Others
2008
(2) SA 495
(SCA) para 19;
LAWSA
ibid
paras 97-103).
We are concerned here with a boundary fence. The primary function, or
at least one of the primary functions, of a
boundary fence on farming
property is to keep animals in and out. The removal of a fence
hitherto used to contain animals on land
physically possessed by a
farmer is, in my view, an act which materially interferes with the
farmer’s possession of the land.
[29]
A different way of
viewing the matter, which leads to the same conclusion, is that, by
using land as a camp for animals, the farmer
is also using the fences
which create the encampment.
[30]
The removal of a
containing fence has the character of self-help which lies at the
heart of the
mandament
van spolie
. It is
quite different from the sort of interference which is caused where
an owner does an activity on his own land which causes
a nuisance to
his neighbour (eg by making noise or dust) and thus indirectly
disturbs the neighbour’s use of adjoining land.
In the latter
class of case the neighbour would need to establish that the owner’s
use of the adjoining land is unlawful.
[31]
The fact that Benson
did not own the fence is naturally irrelevant in the spoliation
application. It is likewise irrelevant that
the fence might hitherto
have been used not only by Benson as an incident of his possession of
the dwelling enclave but also by
those in possession of the
neighbouring farm. Possession need not be exclusive in order to be
the subject of spoliation (
Willowvale
Estates CC & Another v Bryanmore Estates Ltd
1990
(3) SA 954
(W) at 956J-957C;
Gowrie
Mews Investments CC v Calicom Trading 54 Pty Ltd & Others
2013
(1) SA 239
(KZD) para 10;
LAWSA
ibid
para 96).
[32]
Given my conclusion on
the merits of the case, the application for condonation should be
dismissed, such costs to include those
relating to the appeal (see
the orders made in
Federated
Employers
,
Ferreira
and
Beira supra
).
Baartman J
[33]
I concur. The following
order is made:
In Case A356/2014:
The condonation application is dismissed with costs,
such costs to include the costs of the appeal.
In Case 10989/2014
(i) No order is made on the merits of the
application.
(ii) The parties shall bear their own costs of the
application.
BAARTMAN
J
ROGERS
J
APPEARANCES
For Appellant/Applicant: Mr D de Beer
Instructed by:
Hugo & Bruwer Attorneys
129 Zastron Street
Bloemfontein
For Respondents: Mr P-S Bothma
Instructed
by:
MJ
Vermeulen Inc
20
President CR Swart Street
Riversdale
[1]
The security, it has been held, need not be
furnished simultaneously with the notice of appeal provided it is
lodged within the
period allowed for noting an appeal (see
O’Sullivan v Mantel & Another
1981 (1) SA 664
(W) at 668C-D;
Impact
Distributors (Pty) Ltd t/a
Bandini
Cheese v Janse van Rensburg & Another
[2008] ZAFSHC 50
para 11).