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[2015] ZAWCHC 18
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Jamieson and Another v Loderf (Pty) Ltd and Others (A595/2011) [2015] ZAWCHC 18 (20 February 2015)
THE HIGH COURT OF SOUTH
AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Appeal
Case No: A595/2011
Trial
Case No: 1334/2011
DATE:
20 FEBRUARY 2015
In
the matter between
BRIAN
LESLIE
JAMIESON
...............................................................................
FIRST
APPELLANT
BARBARA-ANN
JAMIESON
.....................................................................
SECOND
RESPONDENT
And
LODERF
(PTY)
LTD
.........................................................................................
FIRST
RESPONDENT
BENJAMIN
GUY
BLUMENTHAL
............................................................
SECOND
RESPONDENT
TALIAH
SALOMON
.......................................................................................
THIRD
RESPONDENT
NELIO
MANUEL
MENDES
.......................................................................
FOURTH
RESPONDENT
ARMAND
VAN DER
MERWE
........................................................................
FIFTH
RESPONDENT
SISANDA
PUMEZA
SIPAMLA
......................................................................
SIXTH
RESPONDENT
Coram
:
BOZALEK, ROGERS AND DOLAMO JJ
Heard:
22 NOVEMBER 2013 & 6 FEBRUARY 2015
Delivered:
20 FEBRUARY 2015
JUDGMENT
ROGERS
J (BOZALEK & DOLAMO JJ concurring):
Introduction
[1]
This is an appeal, with
the leave of the court a quo (Dlodlo J), against the dismissal of a
spoliation application. I shall refer
to the appellants as the
Jamiesons and the first respondent as Loderf. The second to sixth
respondents were joined during the course
of the appeal proceedings
in circumstances I shall presently explain.
[2]
The main issues are the
following: (i) whether there was a genuine dispute of fact
regarding the alleged spoliation (Loderf
alleged in its answering
papers that the Jamiesons voluntarily surrendered possession);
(ii) whether, if there was a genuine
dispute of fact, the court
a quo erred in not referring the dispute to oral evidence;
(iii) whether, assuming that one or
other of the preceding
points were decided in favour of the Jamiesons, a spoliation order is
competent in the light of the sale
and transfer to the second to
sixth respondents, while the appeal was pending, of the three flats
which were the subject of the
alleged spoliation.
[3]
Mr Elliott appeared for
the Jamiesons at the initial hearing on 22 November 2013 and Mr
Studti at the subsequent hearing on 6 February
2015. Mr Bremridge
appeared on both occasions for Loderf. The other respondents did not
participate in the hearing.
The
facts appearing from the initial record
[4]
During March 2010 the
Jamiesons bought flats A3, A4 and B4 in Avondale Flats, Three Anchor
Bay, from Loderf. The estate agent who
dealt with them was Errol
Areington (‘Areington’) of Cape 24 Property Group. Their
intention was to renovate and on-sell
the flats. The keys of the
flats were delivered to them and they took possession. They placed
furniture in flat A4, leaving the
other two flats empty. They began
the interior renovations.
[5]
At the time the
Jamiesons bought the flats Loderf was busy refurbishing the exterior
of the block. The exterior refurbishment was
important to the
Jamiesons’ plans for on-selling their flats. The exterior
refurbishment ground to a halt during June 2010.
[6]
On 11 October 2010 the
first appellant (‘Jamieson’) met with Areington and
Ronald Shell (‘Shell’), a director
of Loderf. Jamieson
said they would not take transfer of the three flats until two months
after completion of the external refurbishment.
He told Areington and
Shell that he and his wife had spent R369 352 on the interior
renovations. Loderf, for its part, said
that the Jamiesons should pay
a deposit of R100 000 on each flat and take transfer by 31 March
2011. Matters remained unresolved
at the end of the meeting.
[7]
The Jamiesons completed
the interior renovations in early November 2010 and placed the three
flats on the market. At this stage
their furniture was in flat A4.
The other two flats were empty.
[8]
During the second week
of January 2011 Jamieson consulted his attorney, Craig Guthrie
(‘Guthrie’), of Guthrie &
Rushton (‘GAR’).
Guthrie advised Jamieson that their agreements for the purchase of
the flats had lapsed due to the
non-fulfilment of a suspensive
condition relating to the obtaining of mortgage finance. The
Jamiesons had not hitherto realised
this. Guthrie also advised the
Jamiesons to secure their ‘builder’s lien’ over the
three flats.
[9]
Guthrie prepared a
letter dated 14 January 2011 on his firm’s letterhead addressed
to Loderf. The letter explained that the
purchase agreements had
lapsed but that the Jamiesons, acting in good faith, had made
interior improvements at a cost of R369 352
and that the
improvements had enhanced the value of the flats by considerably more
than this. The letter continued:
‘
Our
clients are reluctantly left with no option but to tender return of
the units back to you against payment of the sum of R123 117,44
per unit. Pending such payment or being furnished with a satisfactory
bankers guarantee, our clients have been advised to exercise
liens
over the properties to secure their interest in this matter. Please
find enclosed our clients’ Notices of Liens which
have been
affixed to the outer doors of the flats.’
[10]
Although in the event
Jamieson only delivered this letter on Monday 17 January 2011, there
is no reason to doubt that it was prepared
and signed on Friday 14
January 2011 and that Guthrie wrote it pursuant to the advice he had
given Jamieson.
[11]
The ‘notice of
lien’ referred to in Guthrie’s letter reads thus:
‘
Take
notice that Barbara-Anne and Brian Jamieson are exercising a legal
lien over this flat in the scheme known as Avondale Flats
until
payment for improvements to the property is received in full.
Take notice further that any
attempt to unlawfully dispossess Barbara-Anne and Brian Jamieson is
unlawful and will be met by an
urgent Application to Court.’
[12]
On the morning of
Friday 14 January 2011 Jamieson purchased three keyhole locks and
barrier tape (he annexed the tax invoice to
his replying affidavit).
A keyhole lock is a device which fits into the aperture of the lock
installed on the door. The keyhole
lock has its own special key. The
installed lock cannot be opened with the ordinary key until the
keyhole lock has been removed
using the special key.
[13]
There is a factual
dispute as to precisely what happened on Saturday 15 January 2011,
the date of the alleged spoliation. The Jamiesons
version is the
following. During the morning Jamieson and his sons removed the
furniture from flat A4. He inserted keyhole locks
in the front doors
of the three flats, placed barrier tape across the doors and attached
the notice of lien to the doors. Later
in the day he received an
abusive call from Areington. He terminated the call because Areington
did not give him a chance to discuss
the matter. On Monday 17 January
2011 Jamieson delivered GAR’s letter to Loderf care of the
latter’s conveyancers in
Bellville, David Kessler & Co
(‘DKC’). Later that day he received another abusive call
from Areington. On Wednesday
19 January 2011 Jamieson’s
stepson, Brandon Botha (‘Botha’), went to Avondale and
saw that the keyhole locks,
barrier tape and lien notices had been
removed. The Jamiesons launched the urgent spoliation application on
Tuesday 25 January
2011. (The main founding affidavit was made by
Jamieson with confirmatory affidavits from his wife and Botha.)
[14]
Loderf’s version
is the following. Areington, who was at Avondale at lunchtime,
noticed that Jamieson and his sons were removing
furniture from A4.
No keyhole locks had been inserted at that stage nor had any barrier
tape or notices been put up. Areington
left. At about 13h30 Jamieson
handed the keys for all three flats to the Avondale caretaker,
Nasief
Abrahams (‘Abrahams’).
These were the ordinary keys for the new locks which the Jamiesons
had installed on the front
doors during the course of their
renovations (ie not the original keys given to the Jamiesons when
they initially took possession).
Abrahams left Avondale at about
13h45 to perform an errand. At this stage Jamieson and his sons were
still busy removing furniture
from flat A4. Abrahams returned to
Avondale at about 15h00 and noticed the barrier tape and lien
notices. He reported this to Areington
who returned to Avondale at
about 16h00. Areington then saw for himself the barrier tape and the
notices. He also saw a keyhole
lock in A4. There were no keyhole
locks in the front doors of the other two flats. He removed the
barrier tape, notices and the
keyhole lock on A4 (he does not say
how). Areington denies having made abusive calls to Jamieson. (The
main answering affidavit
was made by Areington with confirmatory
affidavits by Shell and Abrahams.)
[15]
In his replying
affidavit Jamieson denied having handed keys to Abrahams. He annexed
the invoice for the purchase of the three keyhole
locks and barrier
tape. He contended that Loderf’s version was so absurd and
far-fetched as to create no genuine dispute
of fact.
[16]
The spoliation
application, which was initially set down as a matter of urgency on
27 January 2011, was postponed by agreement to
24 February 2011 and
then to 24 March 2011 when it was argued before Dlodlo J. The agreed
postponement orders included an undertaking
by Loderf that it would
not, until the date of the next hearing, let, sell, transfer,
alienate or dispose of the three flats or
place them on show for
purposes of sale or letting. At the hearing on 24 March 2011 Loderf’s
counsel agreed that this undertaking
would stand until Dlodlo J
delivered judgment.
[17]
At the hearing in the
court a quo the Jamiesons’ counsel submitted that there was no
genuine dispute of fact but requested,
if the court found otherwise,
that the matter be referred to oral evidence on the question
whether the Jamiesons had voluntarily
relinquished possession.
[18]
The court a quo
delivered judgment on 31 March 2011, dismissing the application with
costs. Dlodlo J found that there was a genuine
dispute of fact. He
declined to refer the matter to oral evidence, on the basis that
there were no exceptional circumstances to
justify a departure from
the usual position in terms whereof an applicant for final relief
must elect, by not later than the commencement
of the hearing,
whether to argue on the papers or seek a referral to oral evidence.
[19]
In the latter part of
April 2011 Jamieson’s delivered an application for leave to
appeal. Leave was granted on 1 August 2011.
Procedural
developments in the appeal
[20]
What is set out above
represents, in summary, what appeared from the record until shortly
before the appeal first served before
us on 22 November 2013.
However, on 30 October 2013, and simultaneously with the delivery of
Loderf’s heads of argument,
Loderf delivered an application in
which it sought the dismissal of the appeal because it had allegedly
become moot as a result
of the intervening sale of the flats to the
second to sixth respondents. The Jamiesons filed an affidavit
opposing the mootness
application.
[21]
As a result of these
developments, and following preliminary debate with counsel in open
court on 22 November 2013, we granted an
order, in essence by
agreement, in terms whereof (i) the appeal was postponed sine
die; (ii) the Jamiesons were given
leave, by a specified date,
to amend the relief sought in their notice of motion so as to include
relief against the new owners;
(iii) the Jamiesons were given
leave, by a specified date, to bring an application to join the new
owners in the appeal; (iv) a
time-limit was specified for the
filing of further papers by Loderf, the new owners (if they opposed)
and the Jamiesons and for
the filing of supplementary heads of
argument; (v) costs stood over for later determination.
[22]
The Jamiesons duly
served an amended notice of motion and brought an application for the
joinder of the new owners. The new owners
filed affidavits during
December 2013 but did not give notice of opposition and have not
participated further in the proceedings.
On 9 February 2014 Henney J
granted an order for the joinder of the new owners, with the costs in
the joinder application to be
costs in the appeal.
[23]
Loderf filed a
supplementary answering affidavit by Shell during January 2014. The
Jamiesons filed a supplementary replying
affidavit on 10 February
2014 to which Shell responded by way of a further supplementary
affidavit on 26 February 2014.
[24]
Counsel filed
supplementary heads and the matter came before us again on 6 February
2015.
The
facts appearing from the further affidavits
[25]
The appeal record
having been supplemented by the mootness application and the further
affidavits mentioned above, I now summarise
the facts appearing from
this new material.
[26]
On 26 July 2011, ie
about four months after the court quo’s judgment and about
three months after the Jamiesons filed the
application for leave to
appeal, GAR wrote on their behalf to Loderf’s attorneys, DKC,
stating that it had come to the Jamiesons’
attention that two
of the three flats were occupied. GAR stated that if the Jamiesons’
application for leave to appeal succeeded
(presumably they meant the
appeal itself) their lien would be reinstated and they would be
entitled to evict the occupiers. GAR
informed DKC that they held
instructions to address letters to the occupiers advising them of
this.
[27]
Having had no response,
GAR wrote a further letter to DKC on 17 August 2011, stating that
despite the Jamiesons’ having been
granted leave to appeal
Loderf was persisting in allowing two of the three flats to be
occupied. GAR stated that Loderf did so
at its peril and that if the
appeal succeeded the Jamiesons would take immediate steps to evict
the occupiers. GAR added that they
held instructions to notify the
occupants of the Jamiesons’ rights.
[28]
There is no evidence
that the Jamiesons or GAR thereafter notified the occupants of the
Jamiesons’ rights.
[29]
During late September
and early October 2012 Loderf sold the three flats by way of separate
deeds of sale to the second and third
respondents (A3), the fourth
and fifth respondents (A4) and the sixth respondent (B4). Transfer
was passed to them on 27 May 2013.
[30]
It is common cause that
the new owners had no knowledge, either at the time of purchase or
transfer, of the dispute between the
Jamiesons and Loderf or of the
pending appeal.
[31]
What Loderf had done to
bring these matters to the purchasers’ attention is more
contentious. Shell says that during September
2012 he engaged The
Billion Trust, in the person of a Mr Herman Varkel (‘Varkel’),
to market all the flats and garages
which Loderf owned in the block
(26 in all). He alleges that he informed Varkel of the spoliation
application, its dismissal and
the pending appeal. They agreed that
Loderf would take responsibility for trying to resolve the dispute,
since there were at that
time settlement negotiations between the
Jamiesons and Loderf. Shell says that he had no direct contact with
any purchasers. He
added that Varkel may in turn have engaged other
estate agents to assist in the marketing of the flats.
[32]
The new owners in their
affidavits identified the estate agents with whom they dealt when
buying the flats. Jamiesons’ attorney
spoke with these agents.
The latter were not prepared to make affidavits though told
Jamiesons’ attorney that they had not
been aware of a pending
dispute. On this basis, and because Loderf did not file any
confirmatory affidavit by Varkel, the Jamiesons
disputed Shell’s
allegations as to his dealings with and disclosure to Varkel.
[33]
During September 2013
the Jamiesons issued summons against Loderf in which they claimed
payment of R369354 in respect of the improvements
they had effected
to the flats. That action is still pending.
[34]
As noted, Loderf
delivered its mootness application on 30 October 2013 which was when
the Jamiesons learnt of the sale and transfer
of the flats.
The
alleged spoliation
[35]
Loderf’s version
is that the Jamiesons voluntarily surrendered possession of the flats
at about lunchtime on Saturday 15 January
2011 by handing the keys to
Abrahams. The Jamiesons deny that they handed the keys to Abrahams.
In appropriate circumstances, the
handing over of keys may be a
symbolic act whereby possession is surrendered to another. The
crucial question in the present case,
however, is whether there was a
handing over of keys at all.
[36]
The trial judge
considered that there was a genuine dispute of fact on this issue.
The general test is not in issue. Where there
is a genuine dispute of
fact in a claim for final relief, the respondent’s version must
be accepted. A dispute will not be
genuine if it is so far-fetched or
so clearly untenable that the court is justified in rejecting it on
the papers (
Plascon-
Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634E-635C;
Wrightman
t/a JW Construction v Headfour (Pty) Ltd & Another
[2008] ZASCA 6
;
2008
(3) SA 371
(SCA) para 12). This exception to the usual position is
allowed because motion proceedings are quicker and cheaper and it is
in
the interests of justice that unvirtuous respondents should not be
permitted to shelter behind patently implausible versions on
affidavit or bald denials; indeed, practice in this regard has
rightly become more robust (
Fakie
NO v CCII Systems (Pty) Ltd v
[2006] ZASCA 52
;
2006
(4) SA 326
(SCA) paras 55-56). However, the test is not simply
whether the respondent’s version is improbable; in order to
reject the
respondent’s version on the papers, the test is the
more stringent one, namely whether the respondent’s version is
so far-fetched or so clearly untenable that the court may safely
reject it on the papers (
National
Scrap Metal v Murray & Roberts
2012
(5) SA 300
(SCA) paras 21-22 and cases there cited).
[37]
Spoliation relief is
final nature. On the other hand, an application for such relief is
generally urgent by nature. The robust practice
mentioned in
Fakie
is thus not out of
place in such matters.
[38]
In my respectful view,
the court quo erred in its conclusion that the factual dispute raised
by Loderf was genuine. Certain facts,
which Loderf could not deny,
make it patently implausible that the Jamiesons would have
surrendered possession:
(I) The Jamiesons had spent a large sum in renovating
the three flats. If they could not recoup their expenditure by
on-selling
the flats, it would be important for them, if they could,
to recover the money by other means available to them.
(ii) They took legal advice a few days before Saturday
15 January 2011. Guthrie’s advice was that although the
purchase agreements
had lapsed, they were entitled to assert a lien.
Guthrie advised them to do so.
(iii) Guthrie drafted a letter dated Friday 14 January
2011 in which he said that the Jamiesons had been advised to exercise
a lien.
A tender to return the flats was made but only against
payment of the sum of R123117 per flat. It was stated that until then
the
lien would be asserted.
(iv) The attached lien notice, also self-evidently
prepared by Guthrie, stated that the Jamiesons were exercising a lien
and that
any attempt to dispossess them would be unlawful. The
Jamiesons must have come into possession of the notice of lien by not
later
than Friday 14 January 2011.
(v) At 10h55 on the morning of Friday 14 January 2011
Jamieson bought three keyhole locks and barrier tape from a hardware
store.
This must have followed Guthrie’s advice. The keyhole
locks could only have been for the purpose of preventing anyone else
from gaining access to the flats.
(vi) Jamieson and his sons were at the flats on Saturday
15 January 2011. It is common cause that at some point during the day
the
lien notices were attached to the front doors, that barrier tape
was placed across the front doors and that a keyhole lock was
inserted in at least one of the flats. There is no suggestion that
Jamieson spoke with his attorney on the Saturday before taking
these
steps. They are entirely consistent with implementing the advice
given by his attorney a few days previously.
(vii) The barrier tape was clearly intended as an
additional measure signalling the Jamiesons’ intention to
retain possession
to the exclusion of all others, an intention which
must have existed by the time Jamieson bought the barrier tape on
Friday 14
January 2011.
(viii) There would have been no point in placing a
keyhole lock on any of the front doors unless the door in question
was first
locked with the ordinary key (since otherwise the door,
even if there was keyhole lock in the aperture of the ordinary lock,
could
be opened without any key at all). So one must infer that
Jamieson at least locked the front door of A4 with the ordinary key
before
inserting the keyhole lock which was admittedly found on that
door at 16h00. Loderf’s version is that Jamieson handed the
ordinary keys to Abrahams while he was still removing furniture from
A4 and at a time when A4’s front door was still unlocked.
But
if this were true, how could Jamieson thereafter have locked A4? The
ineluctable conclusion is that, contrary to Loderf’s
version,
Jamieson did not surrender the key to A4. And if Loderf’s
version is false in regard to the surrendering of the
key to A4, it
is unlikely to be true in respect of the other two keys (since
Abrahams drew no distinction).
[39]
In the light of these
facts, it simply does not make sense, and cannot be true, that
Jamieson handed the keys of the flats to Abrahams,
thereby
surrendering possession. The trial court considered that the
Jamiesons probably misunderstood Guthrie’s advice about
how to
secure possession and were not told that they should not hand over
the keys. The trial court considered, further, that –
not
having been warned of the implications of handing over the keys –
the Jamiesons did so as a symbolic signal that the
agreements had
lapsed and so as to avoid liability for occupational rent.
[40]
In my respectful view,
these hypotheses are unduly charitable to Loderf. There was no
evidence that the Jamiesons misunderstood
the advice. Loderf did not
suggest this in the answering papers. It does not strike me as
remotely plausible that Guthrie as an
attorney would not have known
that retention of possession was of the essence to the lien. The
notice and letter he drafted make
this plain. It is most unlikely
that his advice to the Jamiesons would not have covered the need for
them to retain possession.
Jamieson’s action in purchasing the
keyhole locks and barrier tape show that he correctly understood the
advice.
[41]
The idea of avoiding
occupational interest was not a suggestion which the Jamiesons were
called upon to deal with in their replying
papers. In any event, the
notion that this concern would have trumped their assertion of the
lien is not compatible with the advice
they received or with the
actions they and their attorney took on the strength of such advice.
[42]
I would also reject as
wholly untenable the assertion that Jamieson fitted only one of the
three keyhole locks he had bought the
previous day. Even if the
ordinary keys had been surrendered before any keyhole locks were
fitted, why would Jamieson thereafter
insert only one of the keyhole
locks? Indeed, and as I have observed, what would have been the point
unless he still had the ordinary
key with which first to lock the
front door? The trial court speculated that Jamieson’s
intention may have been to secure
the furniture in that particular
flat (A4). Again, the Jamiesons were not called upon to comment on
this hypothesis in their replying
papers. There is no evidence that
when Areington returned to Avondale and found the keyhole lock in
flat A4 there was any furniture
still there. Areington did not say
that after removing the keyhole lock and barrier tape he found
furniture in A4. Jamieson’s
evidence, supported by Botha, is
that the furniture was removed from the flat during the course of the
morning.
[43]
I appreciate that a
rejection of Loderf’s version entails a finding that Areington
and Abrahams swore affidavits which they
knew were untrue. I regret
to say that the circumstances impel me to that conclusion. Abrahams,
I observe, was not an independent
witness. Areington said that
Abrahams had left Avondale at about 13h45 (after receiving the keys)
in order to attend to a broken
lavatory at a house rented out by
Areington in Fresnaye. Abrahams thus seems to have been Areington’s
general factotum. Furthermore,
Abrahams’ version (given by
Areington and briefly confirmed by Abrahams) provided no context to
the alleged handing over
of the keys. If there was a surrender of the
keys, it seems most unlikely that Jamieson would not have explained
why he was doing
so, yet Loderf’s version contains nothing
beyond the bald assertion that the keys were given to Abrahams.
[44]
In view of this
conclusion, it is unnecessary to decide whether the trial court erred
in not referring the matter to oral evidence
on the limited question
whether the keys were handed over as alleged. If I had concluded that
there was a genuine dispute of fact,
I think this would have been an
appropriate case to accede to the alternative request for oral
evidence. Although it is a salutary
rule to require an applicant to
make his election by not later than the commencement of the hearing,
the court may in exceptional
circumstances permit the
double-barrelled approach (see
Pahud
Shipping CC v Commissioner, South African Revenue Service
[2010]
2 All SA 246
(SCA) para 20). If there was a genuine dispute of fact,
it was on the borderline, with the probabilities very strongly in the
Jamiesons’
favour. The application was by its nature urgent.
Argument on the papers would not have taken very long. (The
transcript of the
oral argument shows that the hearing lasted 1¼
hours.) If the judge concluded, as he did, that there was a genuine
dispute
of fact, the oral evidence itself should not have caused much
delay. The evidence would have been on a very narrow issue. It is
unlikely that there would have been scope for discovery of further
documents. A date for the evidence could have been arranged
within a
week or two. What was at stake was the law’s strong disapproval
of self-help and a remedy with an obvious rule of
law dimension (see
Tswelopele
Non-Profit Organisation & Others v City of Tshwane Metropolitan
Municipality & Others
2007
(6) SA 511
(SCA) para 22).
[45]
In their notice of
motion the Jamiesons sought a spoliation order not only in respect of
the three flats but also in respect of
three garages which were
linked to them by way of exclusive use arrangements. The Jamiesons
did not establish that they were ever
in factual possession of the
garages, so any relief to which they might be entitled would not
apply to the garages. This was conceded
by their counsel in the court
a quo.
The
subsequent sales and transfers
[46]
I turn now to the
question whether, given the sales and transfers which occurred after
the dismissal of the spoliation application
in the court quo, this
court can substitute for such dismissal an order that Loderf (or the
new owners) restore the flats to the
Jamiesons’ possession.
[47]
There is no case
directly in point. The authorities that might be thought to bear on
the point are not entirely harmonious. The
position here is that the
sales and transfers occurred after the institution of the spoliation
application. There are cases dealing
with the situation where the
spoliator parted with possession before institution of the spoliation
application. There is a line
of authority holding that in such
circumstances the remedy of spoliation is
not
available where possession has passed in good faith to an innocent
third party:
Burnham
v Neumeyer
1917 TPD
630
at 633;
Louw v
Hermann
1922 CPD
252
at 253;
Van
Biljon v Kriel
1939
(2) PH M82 143 at 144;
Chitiz
v Loudon & Another
1946
WLD 375
at 378-380;
Jivan
v National Housing Commission
1977
(3
) SA 890 (W) at
894A-896G;
Bank van
die Oranje Vrystaat v Rossouw
1984
(2) SA 644
(C) at 648H-649B;
Builders
Depot CC v
Testa
2011 (4) SA 486
(GSJ) paras 13-17;
and cf
Harris v
Unihold (Pty) Ltd
&
Others
1981 (3) SA
144
(W) at 148D-149B. I shall refer to this as the
Jivan
line
[48]
A somewhat different
approach was adopted in two cases decided in the former Orange Free
State division. In
Painter
v Strauss
1951(3)
SA 307 (O) the respondent, who had despoiled the applicant in his
possession of a dwelling and thereafter given possession
to one
Rautenbach, relied on
Burnham
for the proposition
that a spoliation order was not competent. Brink J rejected this
contention on two grounds, namely (i) that
there was nothing to
show that Rautenbach was an innocent third party; (ii) that even if
he was, the respondent did not allege
that he would be unable to make
arrangements with Rautenbach to restore possession to the applicant
(at 318B-D).
[49]
In
Malan
v Dippenaar
1969
(2) SA 59
(O) a spoliation order was likewise granted against a
respondent who had parted with possession by way of a lease with an
innocent
third party. De Villiers J, after quoting from certain old
authorities, said that one could perhaps deduce that the mandament as
developed and received into our law had expanded so as to be
available even against a person who obtained possession bona fide
from the spoliator (at 64H-65G). The learned judge did not, however,
base his decision on this view. Instead he proceeded along
similar
lines to Brink J in
Painter
,
holding (at 65H-66C) that it was for the spoliator to allege and
prove that he had parted with possession in good faith and was
unable
to restore the property. On the facts of the case the respondent (the
spoliator) could scarcely contend that his conduct
was bona fide.
Moreover, he had not established that he was unable to restore the
property. He had not placed the lease before
the court. Conceivably
the lease entitled the respondent to regain possession on short
notice.
[50]
Academic opinion is
also divided. The learned authors of
Silberberg
& Schoeman’s The Law of Property
5
th
Ed favour the Orange Free State approach (at 305). Prof CG van der
Merwe rejects both approaches, arguing that once the spoliator
has
parted with possession a spoliation order cannot be granted, even if
the third party took possession in bad faith, unless perhaps
his
conduct is such as to have made him a co-spoliator (
Sakereg
2de Uitg at
136-137). Marius de Waal favours the view that where possession has
passed to a third party relief should be granted
only if the
spoliator and the third party acted in collusion to defeat the
despoiled party’s remedy, in which event the remedy
lies
directly against the mala fide third party (
Die
Moontlikheid van Besitsherstel as Wesenselement van die Aanwending
van die Mandament van Spolie
Unpublished
LLM dissertation University of Stellenbosch 1982
)
at 60-96, where the learned author critically reviews all the cases
up to
Jivan
).
For other academic discussion of the
topic, see Price
The
Possessory Remedies in Roman-Dutch Law
(1947)
at 59-60 and at 94-98 (discussing
Burnham
and
Louw
);
AJ van der Walt’s discussion of
Rossouw
in
THRHR
47 (1984) 220 at
230-231; JR Harker
The
Mandament van Spolie In Private and Public Law SALJ
105 (1988) 186 at 192-193
.
[51]
It is unnecessary to
determine which of the varying approaches is correct. Although some
cases in the
Jivan
line make reference
to the
bona fides
of
the spoliator, the emphasis on my reading falls on the third party’s
knowledge. If the third party had notice of the spoliation
when
taking possession, there is much to be said for the view that
spoliation relief should be granted, not because the third party
is a
spoliator but because he had notice of the spoliation when taking
possession. This outcome could well be justified on the
basis of the
doctrine of notice,
[1]
an equitable doctrine which in a living system of law can in
appropriate circumstances be extended to situations not already
clearly
covered by it, having regard to considerations of fairness
and legal policy (see
Cussons
& Andere v Kroon
2001
(4) SA 833
(SCA) para 9;
Dale
v Rheeder & Others
[2011]
ZAKZPHC 13 paras 19-23 per Wallis J as he then was; FDJ Brand
Knowledge and
Wrongfulness as Elements of the Doctrine of Notice
,
published in
Essays
in Honour of CG van der Merwe
Eds
H Mostert and MJ de Waal (2013).
[52]
Be that as it may, it
is common cause in the present case that the new owners did not know
of the spoliation or of the pending proceedings
when they purchased
or when they took transfer. On the
Jivan
line, therefore, no
spoliation order is now possible. This would be an
a
fortiori
conclusion
if there were a requirement of a conspiracy between the spoliator and
the third party to defeat the despoiled party’s
remedy.
[53]
If, on the other hand,
the Orange Free State decisions were preferred, they do not go
further than holding that an order for spoliation
will be granted
against the spoliator, even though he has parted with possession, if
he fails to allege and prove that he is unable
to restore possession.
In the present case the new owners have purchased the flats outright
and have taken transfer. They have
been owners of the flats for more
than a year and a half. The deeds of sale afford no scope to Loderf
to recover possession. The
new owners say that they purchased in good
faith. Although they do not in terms state that they will not
voluntarily relinquish
possession, this is the only inference to be
drawn from their affidavits
[54]
Mr Studti submitted
that the
Jivan
line
was distinguishable because those cases dealt with transfers of
possession which occurred prior to the institution of the spoliation
proceedings, whereas in the present case the transfers of possession
occurred while an appeal was pending. I do not think this
makes a
difference in principle. The reasoning in the cases was based on the
essential nature of a spoliation order, namely the
restoration of
possession. The spoliator ordinarily cannot restore possession if he
does not have it. This reasoning applies whether
the transfer of
possession occurred before or after the institution of the spoliation
proceedings. The fact that the transfer of
possession occurred after
the institution of spoliation proceedings may be relevant in
assessing whether or not the third party
acquired possession
innocently but is not decisive.
[55]
Although Mr Studti did
not refer to the law on
res
litigiosae
, the
distinction he asked us to draw between the position before and after
the institution of the spoliation proceedings warrants
brief
reference to this topic. The authorities contrast actions
in
rem
and
in
personam
(see, in
general, P van Warmelo
Res
Litigiosa
in
Gedenkbundel HL
Swanepoel
Ed JA
Coetzee 1976 at 14-25;
Coronel
v Gordon Estate & GM Co
1902
TS 95
,
Blue-Cliff
Investments Pty Ltd & Another v Griesel & Others
1971
(3) SA 93
(C) and
Opera
House (Grand Parade) Restaurant (Pty) Ltd v Cape Town City Council
1986 (2) SA 656
(C). An action
in
rem
is one in which
the ownership of property is in issue (though certain claims which
are technically personal might be sufficiently
akin to claims
regarding disputed ownership as to make the property in question
res
litigiosa
, an
example being
Blue-Cliff
supra, where a
co-owner issued a summons for partition of a farm). Once the property
in question becomes
res
litigiosa
(a point
reached, according to the two Cape cases just cited, at the
commencement of the proceedings rather than at
litis
contestatio
), a
purported sale of the property by the defendant cannot prejudice the
plaintiff. He may proceed with his action against the
defendant. If
he wins he may execute to recover the property from the third party,
even though the latter was not joined and did
not have knowledge of
the plaintiff’s alleged ownership (see
McGregor
v Jordaan & Another
1921
CPD 301
at 308;
Opera
House
supra at
661I-662A; Van Warmelo op cit at 24-25).
[56]
Although personal
claims (claims
in
personam
) become
litigiosae
at
litis contestatio
,
the law in regard to
actiones
litigiosae
is
concerned with questions such as whether the litigated claim may be
ceded and if so with what results (see, in general,
Waikiwi
Shipping Co Ltd v Thomas Barlow and Sons (Natal) Ltd & Another
1978 (1) SA 671
(A);
LAWSA
3
rd
Ed Vol 3 para 149). If property is claimed by a personal action (eg a
claim for specific performance based on a sale agreement),
the
property itself does not become
res
litigiosa
(see
Zeffertt
The Sale of
Res Litigiosa
1971
SALJ 405
and authorities there mentioned; Van Warmelo op cit at
15-16).
[57]
A spoliation claim does
not concern the ownership of the property. It is a personal claim
against the spoliator to recover possession.
I have found no
authority that in spoliation proceedings the property itself becomes
res litigiosa
at
any stage of the process. The principles briefly discussed above
point to a conclusion that the property in spoliation proceedings
is
not
res litigiosa
.
The law on this topic thus does not provide a basis for ordering
restitution to the prejudice of the innocent new owners.
[58]
Mr Studti, apart from
his reliance on the distinction between a transfer of possession to a
third party before and after the institution
of spoliation
proceedings, submitted that the present case concerned an improvement
lien, a real right which could be exercised
against all the world and
which was a
pro
tanto
diminution of
the dominium of the new owners. The flaw in this argument, as
he acknowledged in oral argument, is that it depends
on the
Jamiesons’ alleged underlying right to possession. An analogous
argument, where the applicant is an alleged owner,
would be that a
third party’s possession is subject to the applicant’s
ownership, the latter being a real right which
the applicant can
assert against the whole world. But as is trite, spoliation
proceedings are not concerned with the underlying
rights of the
parties. The court quo was not called upon to decide whether the
Jamiesons had
a
ius
retentionis
. Their
belief that they did
merely
served to explain, by way of background, why they were factually in
possession on 15 January 2011 and why they would not
voluntarily have
surrendered possession.
Disposition
of the appeal
[59]
In view of the
conclusions reached above, it is not possible for this court on
appeal to substitute, for the order made by the court
quo, an order
directing Loderf or the new owners to restore possession of the flats
to the Jamiesons. However, and as I have sought
to demonstrate, the
Jamiesons were entitled to such relief against Loderf at the time
they launched their application and at the
time judgment was
delivered in the court a quo. Although we cannot now grant
consequential relief, justice would be served by substituting,
for
the order made by the court a quo, a declaration that Loderf was
guilty of unlawful spoliation together with an order for costs
in
that court. This will vindicate the rule of law, which regards
self-help with particular disfavour. It would not be just to
exercise
our discretionary power to dismiss the appeal on the ground that the
order on appeal would have no practical effect,
[2]
particularly since it was Loderf which by its conduct has made it
impossible for the Jamiesons to obtain full relief. At Mr Bremridge’s
request I make it clear that the declaration does not imply that the
Jamiesons would be entitled, in later proceedings, to recover
possession by proving their underlying right to a lien, a question on
which it is unnecessary to express an opinion.
[60]
In regard to the costs
of the appeal, it was only shortly before the initial set down of the
appeal that Loderf revealed that the
flats had been sold and
transferred to the new owners. But for this development, the
Jamiesons would have succeeded in the appeal
outright. I thus
consider that they should have their costs up to and including 22
November 2013. In regard to subsequent developments,
the Jamiesons
have failed in getting restoration but have succeeded in establishing
the unlawful spoliation and in obtaining a
declaration to that effect
together with an order for costs in the court a quo. They failed on
the restoration issue only because
of Loderf’s conduct
subsequent to the hearing in the court a quo. In the circumstances I
think the Jamiesons have achieved
substantial success and are
entitled to their costs in respect of the period after 22 November
2013 (cf
Stiff v Q
Data Distribution (Pty) Ltd
2003
(2) SA 336
(SCA) para 20).
[61]
During argument on 6
February 2015 Mr Bremridge handed up a tender made by Loderf on 24
December 2013, the terms of which were that
the Jamiesons would be
permitted to withdraw their appeal on the basis that the parties bear
their own costs to date, both in the
court a quo and on appeal. He
submitted that the Jamiesons should have accepted the tender on
account of the appeal having become
moot. He argued that we should
give effect to the tender in respect of the period up to the date of
the tender and order the Jamiesons
to pay Loderf’s costs
thereafter. In view of what I have said in the preceding paragraph,
it will be apparent that I do not
regard the tender as having been
acceptable and the Jamiesons were justified in rejecting it.
[62]
The following order is
made:
(a) The appeal succeeds with costs, including those
arising from the postponement on 22 November 2013 and those relating
to the
joinder of the second to sixth respondents.
(b) The order of the court a quo is set aside and there
is substituted an order in the following terms:
‘
(i)
It is declared that the first respondent on 15 January 2011
unlawfully despoiled the applicants of their possession of the
following units in the sectional title scheme known as Avondale Flats
situated at 13 Avondale Road, Three Anchor Bay, Cape Town:
Flat A3
(section 14), Flat A4 (section 15) and Flat B4 (section 20).
(ii)
The first respondent is directed to pay the applicants’ costs
of suit.’
BOZALEK
J
ROGERS
J
DOLAMO
J
APPEARANCES
For Appellants: Mr BL Studti
Instructed by:
Guthrie Colananni Attorneys
102 Fish Hoek Centre
Main Road
Fish Hoek
For First Respondent: Mr Ian Bremridge
Instructed
by: David Kessler & Co
3
rd
Floor, Regkam Building
Kort
Sreet
Cape
Town
[1]
Similarly, in double sales (the
paradigm case for the doctrine of notice)
the
second purchaser with notice must abide a transfer of the property
to the first purchaser and a cancellation of his own registered
title (
Tiger-Eye
Investments (Pty) Ltd & Another v Riverview Diamond Fields (Pty)
Ltd
1971 (1) SA
351
(C) at 358F-G). Indeed, and by virtue of the doctrine of notice
and its equitable foundations, the court will even in appropriate
circumstances dispense with the joinder of the double seller and
permit the first purchaser to claim transfer directly from the
second purchaser (see, in general,
Cussons
& Andere v Kroon
2001
(4) SA 833
(SCA) para 9;
Bowring
NO v Vrededorp Properties CC
2007
(5) SA 391
(SCA) paras 11-18;
Meridian
Bay Restaurant (Pty) Ltd v Mitchell SC NO
2011
(4) SA 1
(SCA) paras 12-31).
[2]
Section 21A(1) of the Supreme Court Act 59 of
1959, now
s16(2)
of the
Superior Courts Act 10 of 2013
.