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[2015] ZAWCHC 102
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Top Assist 24 (Pty) Limited T/A Form Work Construction v Cremer and Another (5335/2015) [2015] ZAWCHC 102; [2015] 4 All SA 236 (WCC) (28 July 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No: 5335/2015
DATE:
28 JULY 2015
In
the matter between:
TOP
ASSIST 24 (PTY) LIMITED
T/A
FORM WORK
CONSTRUCTION
.................................................................................
Applicant
(Registration
No: 2006/037960/07)
And
GEORGE
CREMER
....................................................................................................
First
Respondent
RENATE
CREMER
.................................................................................................
Second
Respondent
JUDGMENT
DELIVERED ON 28 JULY 2015
BOQWANA,
J
Introduction
[1]
The applicant brought an application
on an urgent basis for a spoliation order directing the respondents
to forthwith:
1.1
restore peaceful and undisturbed control
and possession
of the immovable
property described as Erf 1494, Somerset West and situated at 5 Aries
Street, Croydon Vineyard Estate, Somerset
West (‘the premises’)
to applicant; and
1.2
handover all the keys
to
the premises in the respondents’ possession to the applicant’s
duly authorised representative, Mr Philippus Rudolfus
Wiese
(‘Wiese’);
1.3
that, in the event that the Respondents
fail to comply with the relief sought above, the sheriff with the
assistance of the members
of the South African Police Service, if
necessary, be authorised to assist the applicant and Mr Wiese to give
effect to the provisions
of paragraph 2;
1.4
that the Respondents and/or any other third
party employed by them, be interdicted and restrained from accessing
the premises without
the applicant’s consent, which consent
shall not be withheld unreasonably.
[2]
The respondents opposed the
application. During the course of the proceedings the applicant
abandoned the second relief regarding
the handing over of the keys
referred to in paragraphs 1.2 and the relief in paragraph 1.4 above
and submitted an amended notice
of motion in that regard. It further
amended the relief in paragraph 1.1 by deleting ‘control’
and correcting the Erf
number as 1496. The relief that is essentially
being sought after the effecting of the amendments aforementioned is
the restoration
of peaceful and undisturbed possession of the
immovable property. The immovable property is referred to as ‘the
premises’
in the founding affidavit. It will become apparent
later in the judgment why it was important for me to highlight the
amendments
made in the relief.
[3]
This application was preceded by an
application to strike out certain paragraphs of the opposing
affidavit and in particular paragraphs
7.14, 7.15, 7.17.1, 7.17.2.3
as well as annexure AA5 and paragraph 22.4 on the basis that the said
paragraphs referred to what
transpired during a meeting that took
place on a without prejudice basis when the parties were attempting
to settle the dispute
between themselves.
[4]
According to the respondents the
relevant paragraphs are not without prejudice because they merely set
out the agreement culminating
from the discussions held without
prejudice and in law it is perfectly acceptable to refer to them.
It is the respondents’
argument that it is entitled to set out
what the parties agreed to after the negotiations. I deal with
this issue later in
the judgment.
Factual
Background
[5]
On 10 June 2014 at the Croydon
Vineyard Estate, Somerset West, the applicant and the respondents
concluded a house building and
small contracts agreement (‘the
agreement’) in terms of which the applicant was appointed by
the respondents to build
a new dwelling on the premises. The
respondents are married and are both retired. Wiese is the
applicant’s sole director.
[6]
Possession of the premises was given
to the applicant in and during June 2014 in terms of clause 6.2 of
the agreement. Clause 6.2
states that:
‘
Possession
of the site shall be given to the Contractor on the date recorded in
the Schedule who shall thereupon within a reasonable
time begin the
Works and regularly and diligently proceed with and bring the Works
to practical completion by the date recorded
in the Schedule subject
to any extension of time granted by the Employer in terms of 8.2
hereof and subject to the provision that
the Contractor shall not be
obliged to begin the works until:....’
[7]
In terms of clause 9.1 of the
agreement the applicant shall notify the respondents when the works
are substantially complete, where
after the respondents shall within
5 working days inspect the works together with the applicant and
provide the applicant with
a single, comprehensive list of any work
still to be completed and/or defects to be remedied (‘the snag
list’). The
Works shall have reached practical completion as
soon as the work indicated on the snag list has been completed by the
applicant
and inspected and accepted by the respondents, or when the
respondents take occupation of the Works, whichever happens first, as
stated in clause 9.2 of the agreement. The Works are described as the
‘new dwelling’ in the schedule to the agreement.
[8]
The contract was valued at the sum
of R2 734 068.24. When the agreement was entered into the
parties indicated that the
intended date of practical completion
would be 31 March 2015.
[9]
On 13 February 2015, which was prior
to the intended date of completion, the respondents provided the
applicant with a document
which was prepared by a building consultant
Jonathan Mitchell (‘Mitchell’) in which they listed items
which they deemed
were still to be completed and/or defects which
were to be remedied. According to the respondents this document was
their first
inspection report. According to the applicant, it had not
yet at that stage given notice to the respondents in terms of clause
9.1 of the agreement that the Works had been substantially completed.
[10]
Wiese who deposed to the founding
affidavit on behalf of the applicant alleged that he explained to the
respondents that this list
was premature but they simply ignored his
explanation. He formed a view that the respondents deliberately
created a dispute about
the building work in an attempt to resile
from the agreement.
[11]
According to the respondents during
the initial period the construction of the building work was executed
in a satisfactory manner
but as from October 2014, they observed a
lack of qualified supervision, a marked slowdown in the execution of
the work, mistakes
and compromises in the quality of the work and
materials. Sub-contractors also started complaining that they were
not receiving
full payment for their work. They formed a view that
the applicant was going through financial difficulties. It became
increasingly
difficult to communicate with Wiese who was almost never
at the building site. The respondents contracted Mitchell who is an
independent
building consultant and construction dispute practitioner
to prepare a report which he submitted on 11 February 2015. This
report,
the respondents term as the first inspection report. This
report, according to the respondents, demonstrated a considerable
amount
of deficiencies in the contract works and came to the
conclusion that 76.1% of the work had been completed. The first
respondent
furnished this report to Wiese on 13 February 2015 for him
to read carefully and remedy the issues raised. A meeting was held on
a without prejudice basis on 26 February 2015. It appears that
certain undertakings were made in that meeting. It is the
undertakings
that transpired at this meeting that the applicant
submits should not have been disclosed in the opposing affidavit. The
respondents
allege that the applicant did not honour those
undertakings.
[12]
On 3 March 2015, the respondents
sent a letter
via
their attorneys to the applicant’s attorneys, calling upon the
applicant to,
inter alia
,
remedy the breaches. The said breaches included the applicant’s
failure to furnish of the performance guarantee to the respondents
in
a form acceptable to them in the amount of 10% of contract sum;
effecting of contract work insurances in the joint names of
the
applicant and the respondents; failure to execute and complete the
work to the satisfaction of the respondents; failure to
proceed with
the contract work with reasonable diligence.
[13]
On 4 March 2015, the applicant’s
attorneys responded to the respondents’ allegations as being
untruthful. Various correspondences
were exchanged between the
attorneys, until on 16 March 2015 when the respondents’
attorneys sent a letter dated 14 March
2015 to the applicant’s
attorneys, giving notice of cancellation of the agreement. On 17
March 2015, the applicant’s
attorneys addressed a letter to the
respondents’ attorneys stating that the ‘purported
cancellation of the agreement
is unfounded and not accepted by the
applicant.’ It further reserved its rights in that regard. At
the end of the letter
the following is recorded,
‘
We
once again confirm that our client is in possession of the premises
and will continue to exercise its builder’s lien at
all
times.’
[14]
On 18 March 2015, the applicant’s
attorneys sent a further letter to the respondents’ attorneys
stating the following:
‘
It
was brought to our attention that your clients, without our client’s
knowledge and consent,
took possession
of the keys to the premises yesterday afternoon
.
By doing so
they unlawfully disturbed
our client’s peaceful and undisturbed control of the site and
their conduct is a serious violation
of our client’s builder’s
lien
.
In
the event that your clients fail to return the keys to our client on
or before 12h00 today, alternatively provide security for
the
outstanding account to our client’s satisfaction by paying the
monies into our trust account,
we have
been instructed to bring an urgent spoliation application
,
the costs of which will be for your clients’ account.’
(‘Own
emphasis’)
[15]
On the same date the respondents’
attorneys dispatched a letter in response to the applicant’s
attorneys denying that
their clients took possession of the keys to
the premises without the applicant’s knowledge and consent. The
letter went
on to state the following:
‘
2.
The correct status is as follows:
2.1 Our clients, for
some time now, have had keys to the premises (this happened with the
full knowledge and consent of your client);
2.2 Certain
additional keys have at all relevant times been in the control of an
employee of your client;
2.3 Since the notice
of cancellation your client has started vacating the site. In light
thereof our clients requested your client’s
employee (who is
obviously aware of the relevant facts and circumstances and duly
authorised by your client) to hand over certain
additional keys,
which he did. We emphasise that our clients did not exercise any
force or stealth.
3. Our clients do
not accept that the document entitled “DETAILED ACTIVITY
REPORT: 10 MARCH 2015’ is a document in compliance
with
sub-clause 11.1 of the agreement.
4. Our clients
have employed Jonathan Mitchell to prepare a reasonable estimate of
the value of the work duly executed (which
shall include any
materials properly required for the works and delivered to the site).
Mr Mitchell will conduct an inspection
of the site tomorrow and as
soon as we have his report we will be in a position to address the
report of your client described
hereinbefore.
5. Please advise
your client that the current skirmish regarding the alleged lien of
your client is cynical having regard to the
following facts and
circumstances:
5.1 The property is
unencumbered;
5.2 Our clients
clearly have the means to pay any amount validly due to your client;
5.3 In the event a
reasonable value of the work executed by your client up to the date
of cancellation (including any materials
delivered to site - still on
the site) exceeds the amount paid by our clients to your client, we
will recommend to our clients
that the difference be guaranteed. Any
other games will merely escalate the claim in damages to which your
client will be exposed
in due course.’
Spoliation
claims
The issue of
the keys
[16]
The applicant alleges that on Monday
16 March 2015, the first respondent approached one Charles Martinus
(‘Martinus’),
a general worker employed by the applicant
who was in charge of cleaning the premises and who had control over
the keys to the
premises during the day. The first respondent
allegedly indicated to Martinus that the applicant had no need to
enter the
premises through the sliding doors in the main bedroom and
the extra bedroom and demanded that Martinus handed over the keys to
these doors to him, which Martinus then did.
[17]
During the morning of 17 March 2015
Christo Niemand (‘Niemand’), the applicant’s site
manager, arrived on the
premises and ensured that the applicant’s
workers continued with their duties. At some stage he
temporarily left the
premises and attended at the applicant’s
office to fetch material which the workers required for work to the
roof of the
premises. Whilst Niemand was absent the first respondent
approached Martinus again and requested he hand over all the
applicant’s
remaining keys to the premises to him.
Martinus refused and only handed the keys to the outside (sliding
door in the dining
room and the outside sliding door of the lounge)
to the first respondent. The first respondent then told
Martinus that he
was not going to hand the keys back as the
respondents were taking occupation of the premises in a week’s
time. Neither
Wiese nor Niemand were aware of the fact that
Martinus handed the keys to the first respondent. Later on that
afternoon the
first respondent handed the applicant’s key tags
to Niemand. It then only became evident to Niemand that the
first
respondent, but for two keys through which access to the
premises could be obtained which was still in the possession of
Martinus,
had removed the applicant’s keys, where after he
removed the tags from the keys and took the keys with him.
[18]
On the morning of 18 March 2015 the
first respondent again approached Martinus and demanded that he hand
over to him the remaining
keys and that were still in the applicant’s
possession but Martinus refused to do so. The parties’
respective attorneys
exchanged correspondence which I have already
referred to regarding the issue of the keys.
[19]
The respondents deny that by taking
the keys to the premises they unlawfully disturbed the applicant’s
possession and all
control of the premises. They allege that they had
had keys to enter premises. They further confirmed that the applicant
was still
in possession of certain keys to the structure upon the
property. The respondents allege that the applicant started
vacating
the premises and by the time it is alleged that the first
respondent took the keys, the applicant had already started to remove
equipment, certain cast iron grids and a generator.
[20]
It became apparent during the
hearing that the applicant could not sustain its claim on the issue
of the keys. It was argued by
Mr Kulenkampff, who appeared for the
respondents, that the applicant could not be awarded in spoliation
proceedings ‘more
than it had’ prior to the alleged
spoliation. It was accepted by both parties that the respondents had
keys to the premises
and had access. Furthermore, not all the keys
were taken by the first respondent from the employee of the
applicant. Mr Heunis,
who appeared for the applicant, submitted that
the issue of the keys is incidental to the main application but it is
not what the
application is about. The relief sought for the handing
over of all keys to the premises to the applicant was abandoned; so
too
the relief seeking that the respondents and/or other third party
employed by them be interdicted and restrained from accessing the
premises without the applicant’s consent. It became common
cause that the parties had joint possession of the property. Mr
Kulenkampff raised other arguments in relation to the dilemma created
by the applicant’s claims that it was ‘spoliated’
already by 17March 2015, as appears from their attorney’s
letter of 18 March 2015. Before I deal with this issue, I continue
to
set out what the applicant regards as the crux of its spoliation
case, which is what transpired on 19 March 2015.
The events of
19 March 2015
Applicant’s
version
[21]
The applicant alleges that during
the afternoon of 19 March 2015, the first respondent arrived on the
premises and proceeded to
forcefully and unlawfully remove the
applicant’s building equipment and material, which was stored
in the garage on the premises
and instructed the applicant’s
workers, who were attending the premises, to discontinue with their
work and to take their
equipment and material with them.
[22]
On the instructions of the first
respondent, the security staff of the Estate on which the premises
are located arrived at the premises
and ordered the applicant’s
workers to leave the premises. The first respondent then
proceeded to put up a notice stating:‘
Phillip
Wiese not allowed on Erf 1496 as per attorneys letter on file with
immediate effect’
. The
applicant further alleges that its equipment which was used for the
building work was locked in the garage located on
the premises until
19 March 2015, when the first respondent forcefully removed the
equipment.
[23]
The applicant submits that the
allegations regarding the cancellation of the agreement are
irrelevant and they do not detract from
the applicant’s right
to its builder’s lien and/or its rights to be in peaceful and
undisturbed possession of the premises.
It alleges that the issue of
the cancellation of the agreement would be the subject of the
arbitration proceedings which were to
be instituted in due course.
[24]
It submits that it was at all
relevant times in peaceful and undisturbed joint possession and
control of the premises. Up until
the spoliation on 19 March 2015,
its employees and sub-contractors were in possession and control of
the premises. The applicant
denies that it started to vacate the site
as alleged by the respondents.
[25]
It alleges that the applicant was
unlawfully and forcefully removed from the premises on 19 March 2015
and accordingly unlawfully
dispossessed thereof. According to
the applicant the respondents were at all relevant terms aware of the
fact the applicant
had exercised its builder’s lien over the
premises. The applicant alleges that the respondents have
failed and/or refused
to provide the applicant with adequate security
in respect of the amount due to it, despite the respondents’
attorneys indication
that he ‘will recommend (his) client
guarantee’ this amount.
Respondents’
version
[26]
The respondents deny the applicant’s
version of events regarding what happened on 19 March 2015. They deny
that they ‘forcefully
and unlawfully’ removed building
equipment and material from the store. The first respondent alleges
that he had the key
to the store and removed a few rolls of
insulation material and some equipment (as far as he could recollect
paintbrushes, etc.)
from the store. He emphasises that he placed the
said items in front of the store of the property.
[27]
The first respondent admits that he
informed Niemand that because of the cancellation of the contract he
wanted them to vacate the
property. He also asked them to load
the equipment and materials. He denies that he acted forcefully
or unlawfully.
He alleges that he is an elderly retired person
and thus did not have the ability to exert any form of force
vis
avis
the work force of the applicant.
[28]
The respondents allege that upon
cancellation of the building contract the first respondent gave the
Home Owners Association a copy
of the letter addressed by the
respondents’ attorney to the applicant’s attorney.
According to the respondents, the
Home Owners Association exercises
an element of control over builders upon their estate and quite
obviously so controls the security
upon the estate. As such it
has an interest in the status of building contracts on the estate.
[29]
The respondents admit that one
Denver Michaels (‘Michaels’) came to the premises and
spoke to Niemand. The first
respondent alleges that he was not
directly privy to the discussion but he could observe that the
discussion was friendly and cordial,
to the extent that Niemand gave
Michaels a good-natured slap on the shoulder after they had spoken.
According to him, this would
obviously not have happened if there was
any form of aggression and/or in circumstances in which Michaels had
forced Niemand to
do something contrary to his will. Subsequent
thereto Niemand loaded some of the building materials, equipment and
a painter onto
his vehicle and disappeared. He re-appeared about an
hour later to load further equipment and one remaining person, being
Martinus
junior.
[30]
The first respondent alleges further
that at some stage during the afternoon, another vehicle came and
collected a portable toilet
on the building site. He assumed
that it was linked to the entity that owned the portable toilet and
that it was instructed
to collect the portable toilet by the
applicant. According to the respondents this demonstrated that
the applicant voluntarily
vacated the property that afternoon.
[31]
The respondents deny that they or
anyone acting on their behalf, on the date in question or ever, put
up a notice as alleged by
the applicant stating that Wiese was not
allowed on the premises. The first respondent emphasized that the
handwriting on such
notice was not his handwriting neither was it the
handwriting of the second respondent. He further alleges that
the roofing
contractors had left before the arrival of Michaels.
[32]
The respondents have attached an
affidavit from Michaels in support of their case. Michaels
states that he is linked to the
security at Croydon Vineyard Estate
and was on duty on 19 March 2015. On the said date he attended
at 5 Aries Street, Croydon
Vineyard Estate (Erf 1496). He had
been advised (by the Home Owners Association) that the building
contract between the applicant
and the respondents in this matter had
been cancelled. Upon arrival at the building site he spoke to
Niemand. He advised
Niemand that
he
had been informed that the building contract between the applicant
and the respondents had been cancelled and requested Niemand
and his
workmen, for the sake of good order, to leave the building site
.
Michaels alleges that he wished to emphasize that the discussion
between Niemand and himself was a friendly one (and not visited
by
any threats and/or a threatening attitude). Niemand agreed and
undertook to vacate the building site which he then in fact did.
To demonstrate the good nature of the discussion and the absence of
any threat or order, Niemand, after he requested him to leave
the
site, gave Michaels a good-natured slap on the shoulder.
Discussion
Legal
Principles
[33]
It
is established that the Court hearing a spoliation application does
not concern itself with the rights of the parties (whatever
they may
have been) before the spoliation took place. It merely enquires
whether there has been spoliation or not, and if
there has been, it
restores the
status
quo
.
[1]
In the judgment of
Van
Rhynand Others NNO v Fleurbaix Farm (Pty) Ltd
[2]
the Court held that:
‘
[7]
The
mandament van spolie
is directed at restoring possession to a party which has been
unlawfully dispossessed. It is a robust remedy directed at
restoring the
status quo ante
,
irrespective of the merits of any underlying contest concerning
entitlement to possession of the object or right in issue; peaceful
and undisturbed possession of the thing concerned and the unlawful
despoilment thereof are all that an applicant from a
mandament
van spolie
has to show. (Deprivation is
unlawful if it takes place without due process of law, or without a
special legal right to oust the
possessor). The underlying principle
is expressed in the maximum ‘
spoliatus
ante omnia restituendus est”.
The
fundamental purpose of the remedy is to serve as a tool for promoting
the rule of law and as a disincentive against self-help.
It is available both in respect of the disposition of corporeal
property and incorporeal property. In the case of incorporeal
property it is the possession of the right concerned that is affected
– a concept described as “quasi-possession”
to
distinguish it from physical possession. The manifestation of the
dispossession of the right in such a case will always entail
the
taking away of an exteriorly demonstrable incidence, such as a use,
arising from or bound up in the right concerned.”
[34]
It
has been held that a spoliation order is a final determination of the
immediate right to possession; it is the last word on the
restoration
of possession
ante
omnia
.
[3]
In the judgment of
Malan
and Another v Green Valley Farm Portion 7 Holt Hill 434 CC and
Others
[4]
the Court found that the spoliation order as a final order will
ordinarily have 3 important results: firstly, it is not sufficient
for the applicant merely to show a
prima
facie
case; he must prove his case on a balance of probabilities as in any
other civil case; secondly, it is an order having an effect
of a
judgment; and thirdly, an order for costs should be made.
[5]
The Court in
Malan
went on to say that
:‘the
spoliation is an extra-ordinary remedy in that once the applicant has
discharged the onus resting upon him and no recognised
defence has
been raised successfully, the Court has no discretion to refuse the
ground of a spoliation order on the ground of considerations
relating
to the merits of the dispute between the parties.’
[6]
[35]
In
order to obtain a spoliation order the applicant must prove that it
was in possession of the property and that the respondent
deprived it
of the possession forcibly or wrongfully against its consent.
[7]
The possession need not have been exclusive possession. A spoliation
claim will lie at the suit of a person that holds jointly
with
others. In the decision of
Beetge
v Drenka Investments (Isando) (Pty) Ltd
[8]
the Court held that:
‘
It
has been said that a builder who merely does repairs to a house has
no lien. That is so because ordinarily the owner retains
possession and permits the workman to enter to effect the repairs.
The workman is in no sense in possession and has no
animus
possidendi.
But if an owner were to
vacate his house for extensive repairs and give full possession to
the contractor, I see no reason why the
contractor should not acquire
a lien. The fact that the contractor is thereby put into the position
of holding more than his own
construction does not to my mind affect
the issue. When a mechanic takes possession of a motor vehicle
to effect repairs
he has a lien on the whole car although the cost of
his repairs may be small in relation to the value of the whole car.
Likewise
a bookkeeper retains all the books although his work on the
books may be only a small proportion of the total entries made in the
books.’
[36]
Deprivation
of possession is the second requisite for the granting of a
spoliation order. Spoliation takes place if the applicant
is
deprived by the action of the respondent of control over the property
in question.
[9]
Force or stealth
in the deprivation of possession which has been suffered by the
applicant need not be shown in order to obtain
a spoliation order.
In the much celebrated judgment of
Nino
Bonino v de Lange
[10]
the Court stressed that violence or even fraud is not an essential
element in the definition of spoliation. Any wrongful deprivation
-
including by force or by stealth – suffices.
[37]
In
the judgment of
Stocks
Housing (Cape) (Pty) Ltd v Chief Executive Director, Department of
Education and Culture Services and Others
[11]
the Court held: ‘that the element of unlawfulness of the
dispossession which must be shown in order to claim a spoliation
order relates to the manner in which the dispossession took place,
not to the alleged title or right of the spoliator to claim
possession. The cardinal inquiry is whether the person in
possession was deprived thereof without his acquiescence and consent.
Spoliation may take place in numerous unlawful ways. It may be
unlawful because it was by force, or by threat of force, or
by
stealth, deceit or theft,
but
in all cases spoliation is unlawful when the dispossession is without
the consent of the person deprived of possession, since
consent to
the giving up of possession of property, if the consent is genuinely
and freely given, negates the unlawfulness of the
dispossession.
The allegations therefore, that the applicant was in default and in
breach of the building contract, that respondents were
entitled to
cancel the contract and did so, and that respondents were entitled in
terms of the contract to demand that applicant
vacate the site, do
not serve as a defence to the claim for a spoliation order, and do
not justify respondents’ depriving
applicant of possession of
the building site without applicant’s consent and without
proceeding lawfully again applicant
for an ejectment order from the
site and not by resorting to self-help to obtain possession of the
site.’
[12]
[38]
When
an applicant seeks a spoliation order it is not sufficient for him to
make out merely a
prima
facie
case for the order: he 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.’
[13]
[39]
Furthermore,
when the proceeding are on affidavit 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 on the applicant (or plaintiff). If
he fails to discharge such onus,
the parties will be left to their
remedy by way of action, and a
fortiori
where
the evidence supports the respondent.
[14]
[40]
Mr Kulenkampff argues that the
applicant must prove on admitted or undisputed facts firstly that it
was in possession of the property
at the time of the alleged
spoliation and secondly that the respondents and not some third party
deprived him of the possession.
He argues further that there is a
dispute of fact on how the applicant’s workforce left the
premises. In that regard, he
submits, the court must accept the
respondents’ version unless it can be found to be palpably
implausible or untenable or
far-fetched which is not the case.
[41]
There
are a limited number of defences which a respondent can raise in
spoliation proceedings and these are: denial; restoration
impossible
and counter spoliation. The respondent may deny that the act
alleged was one of spoliation or claim that it was
legally
justified. Thus a respondent may raise the defence that the
applicant had consented to the removal of the property.
[15]
Did the applicant
have possession of the premises on 19 March 2015?
[42]
In the
Stocks
Housing
case the Court said:
‘
A
building contractor who enters upon a building site and occupies and
takes control of it in terms of his contract in order to
carry out
the contract work, and remains in occupation for that purpose, has
possession of the site which may be protected by a
spoliation order.
He possesses site in order to secure the benefit of his contract.
He should not be deprived of his
possession and that benefit by an
unlawful dispossession of the site by the owner of the property or
anyone else. Applicant
obviously was in possession of the site
and of the plant, equipment and materials on the site.
Respondents’ denial
raises no real factual or legal issues in
this regard.’
[16]
[43]
It is common cause that the
applicant obtained possession of the premises during June 2014 in
accordance with the contract. It had
its equipment and workforce on
the premises where it commenced working. The respondents were
dissatisfied with the progress and
the quality of workmanship on site
which led them to procure the services of an independent building
consultant. A dispute ensued
which the parties tried to resolve. At
least up until 17 or 18 March 2015, there is no issue about the
applicant’s workmen
being on the premises and continuing to
work, albeit not to the respondents’ satisfaction.
[44]
The applicant admitted in its
founding affidavit that it held joint ownership of the premises with
the respondents. The question
of the keys was no longer in issue.
Both parties were in agreement that the respondents also possessed
keys for the premises, the
respondents stored goods there, could open
and lock the premises and were on site on a regular basis.
[45]
Mr Kulenkampff argued that the
letter written by the applicant’s attorneys on 18 March 2015
regarding the keys was fatal to
the applicant’s case because it
claimed spoliation had already taken place by 17 March 2015 by virtue
of the keys having
been taken away from the applicant’s
employees. The applicant was therefore no longer in possession of the
premises on 19
March 2015 and there is no allegation that possession
was regained before then and accordingly could not rely on spoliation
that
took place on the said date. Mr Heunis’ response to that
was that no reference to possession of property was made in that
letter. The letter spoke of ‘unlawful disturbance of peaceful
and undisturbed control’ and nowhere does it mention
possession.
[46]
I am persuaded by Mr Heunis’
submission that the letter was about possession of the keys and
control of property as opposed
to deprivation of possession of
property. The letter of 18 March 2015 therefore did not entail
deprivation of possession of the
premises. I say so not only because
of the content of the letter, that deals with the taking away of the
keys, but also because
of the fact that the applicant
still had other keys and could enter the premises as they did on 19
March 2015. This tells
us that the applicant did not regard itself as
being deprived of possession of property by virtue of the certain
keys simply being
taken by the first respondent from its employee.
The presence of the workforce on the premises working on 19 March
2015 showed
that the applicant was still in possession even on that
day. The extent of the work that was being carried out and the number
of
workers on site are in my view irrelevant for the purposes of
determining whether the applicant was indeed in possession of the
site on that day in question. The first respondent in fact
admits that Niemand and other workmen were there on 19 March 2015
and
had equipment on the premises and he informed them that by reason of
the cancellation of the contract he wanted them to vacate
the
property and he also asked them to load the equipment and materials.
This all occurred on 19 March 2015. The argument that
the applicant
was not in possession on 19 March 2015 is without merit and must be
rejected.
[47]
The
purpose and the motive for being in possession are also not
relevant.
[17]
Mr Kulenkampff
submitted that the applicant was holding onto the property for
sinister reasons and that the respondents were not
indebted to it. On
the contrary they were owed an amount of R167 843.14 which they
paid in excess of the value of the work
done by the applicant. This
is based on the report compiled by Mitchell on 25 March 2015, ‘the
second inspection report’,
following an inspection he carried
out on the premises on 19 March 2015. Mr Kulenkampff further argued
that the applicant was admittedly
in joint possession with the
respondents. He therefore was not entitled to a builder’s lien
as he could only have that upon
exclusive possession.
[48]
The question of whether or not the
applicant owed the respondents money and that the claim that the
applicant did not have the lien
it alleges it had, are in my view not
central to the issue of whether or not the applicant held possession
of the property in the
circumstances. It has been shown that the
applicant was in possession, the purpose of which it alleges was to
finish work and it
also alleges that it was entitled to a builder’s
lien. The fact of joint possession does not mean the applicant is not
entitled
to the relief it seeks. Once again I must stress that the
purpose of holding on to the property is not an issue the Court
should
decide on. To do so would be akin to deciding whether or not
the applicant had a right to be in the property which is not an
enquiry
the Court should enter into. It must also be borne in mind
that Mitchell’s second inspection report was only issued on 25
March 2015.
Was the applicant
deprived of possession?
[49]
Mr Heunis submits that the Court
should have regard to the
Stocks Housing
judgment as it is on all fours with this present matter. Perhaps it
is important to briefly look at the facts of that case and
the
relevant findings made by the Court therein.
[50]
The applicant in that matter brought
an urgent application for a spoliation order compelling respondents
to restore the applicant’s
possession of the building site on
which a school was being constructed together with the plant and
equipment used for the construction.
The parties had concluded
a building contract where the applicant was appointed after a tender
was accepted. The applicant had
been given possession of the site.
The Department of Education and Culture Services (‘the
department’) was dissatisfied
with the work done by the
applicant. A letter was handed to the foreman of the applicant
(Mitchell) at the site by two officials
of the department shortly
after 12 noon in which the first respondent (the chief executive
director of the department) terminated
the agreement and ordered that
the works be discontinued and the site vacated by 1pm. The foreman
contacted the applicant’s
contracts director who instructed him
to remain on site and that he would revert to him shortly. The
foreman was told by an official
from the department that anyone who
remained on site would be arrested. The foreman was alarmed at what
might happen and telephoned
the contracts director again who told him
that in the circumstances they should leave. Before he left the site
the security guards
changed the locks on the gates to the site. After
the workmen left, the security guards remained in control of the site
and the
plant, equipment and materials on the site. The department’s
official denied in his affidavit that he threatened that anyone
remaining on the site after 1pm would be arrested as the foreman
alleged. He also said that he had no instructions to remove anyone
from the site, or to arrest anyone, or in any way to enforce
compliance with the notice to vacate the site. He maintained that
he
would not involve himself in any force or threats of force.
[51]
Mr Kulenkampff submitted that the
Stocks Housing
case is distinguishable from the present one. The first point is that
Niemand is a site manager whilst in
Stocks
Housing
, Mitchell was a foreman, a
position below that of a site manager. Mitchell specifically phoned
to obtain instructions upon being
ordered to vacate. Secondly, the
foreman in that case was told that those persons on site would be
arrested if they did not leave;
in the present instance, ‘a
head of security’ went to someone and asked him to leave; these
two scenarios are not comparable.
In this instance, Mr Kulenkampff
submits that the security guard requested someone to leave and did
not threaten them. He had a
friendly conversation which was not
visited by threats and at the end was followed by a pat on the
shoulder. He further submits
that the applicant does not state
exactly what words were used to order Niemand to leave whilst
Michaels on the other hand gives
details about what the conversation
entailed. According to Mr Kulenkampff, the respondents’
version must be accepted
and it must be deduced from the respondents’
version that Niemand was convinced that he should leave and he left
voluntarily.
[52]
I
do not see how the facts in the
Stocks
Holdings
decision can be said to be distinguishable to those in this case on
the grounds raised by Mr Kulenkampff. It was held in that matter
that
‘as a matter of the probabilities on the averments of the
officials of the department themselves, the court regards
with a
measure of incredulity the protestations of the officials concerned
that they were present at the site merely to assume
possession of the
site and the plant, equipment and materials on the site from the
applicant company and its employees, who readily
and freely consented
thereto without any threat of force or, indeed, without in any way
seeking to enforce or compel compliance
with the order given to
vacate the site.’
[18]
[53]
The
Court however found that the question whether the applicant consented
to the repossession of the site did not turn upon the
issue of
whether there was a threat of arrest on the site but on whether the
company, acting through its authorised officers, and
in particular
its managing director, accepted the cancellation of the building
contract and consented to repossession of the building
site by the
department.
[19]
The
Court found that:
‘
On
the assumption that the applicant’s workmen and foremen on the
site left when ordered to do so by the officials of the
department
and did so without any threats being made to them and on the
instruction of Mr van der Vyver to Mr Mitchell that in
the
circumstances they should vacate the site, the question still remains
whether the applicant company consented to the repossession
of the
site. The undisputed facts demonstrate quite clearly that there was
no such consent.
There
is no allegation on behalf of respondents that the managing director
of applicant company or anyone else on its behalf with
authority to
do so agreed to a handing over of the site. The averments of the
managing director that he wished to protest the actions
of the
officials in repossessing the site, that he could not make contact
with Mr Cornelius to do so because Mr Cornelius had absented
himself from his office, that he forthwith instructed the applicant’s
attorneys to protest the repossession of the site,
which protest
could only be effectively made on the Monday morning after the
repossession, whereupon the notice of motion in these
proceedings was
issued the same day, is wholly inconsistent with the defence that
applicant accepted the cancellation of its contract
and agreed to
cease the contract works and to hand over the site to the
department.’
[20]
[54]
According to the respondents the
applicant left voluntarily from the premises. In this regard they
submit that it must be found
that Niemand was authorised to consent
to leave. They further submit that even if it is found that the
applicant did not consent,
which is denied, Michaels was not their
(i.e. the respondents’) agent. If spoliation took place, it
took place at the behest
of Michaels and/or the Home Owners
Association.
[55]
Michaels does not say who sent him.
While he mentions that he was told by the Home Owners Association
that the contract between
the applicant and respondents had been
cancelled, he does not say he was sent by them. What stops him from
stating categorically
that he was acting on the instructions of the
Home Owners Association or that he was sent by them? He merely
alleges that he was
told that the contract was cancelled and that he
requested Niemand and his workmen to leave for the sake of good
order. I find
it hard to believe that, whilst all this was happening,
the first respondent was standing at some distance observing but
could
not hear the conversation. He did not enquire as to what was
going on, in circumstances in which a security guard from nowhere
comes to his premises, has a conversation with workmen of the
applicant with whom he had had ‘a contract’ (albeit
cancelled)
and the next thing they pack up their equipment and go.
These are the same individuals whose equipment the first respondent
had
removed from the store to the outside of the garage and whom he
had told that because the contract was cancelled he would like them
to vacate the property. They did not vacate at that time.
Furthermore, he is the one who gave the Home Owners Association the
letter of cancellation of the contract. He did not tell them that the
cancellation was disputed. The only reasonable conclusion
to be drawn
is that the security guard acted on the respondents’ behalf.
[56]
I now turn to the issue of whether
Michaels requested Niemand and the workmen to leave or ordered them
to do so. The meaning of
the words that they were requested to leave
‘for the sake of good order’ uttered by a security
officer of the estate
is not explained. Be that as it may,
deprivation of possession does not turn on such an issue (as was
rightly found in the
Stocks Holdings
judgment). It ultimately turns on whether the applicant consented to
vacate the premises after having been told to leave, however
that may
have occurred. The facts of the case do not support the proposition
put forward that there was consent for the following
reasons:
cancellation of the agreement was not accepted by the applicant, and
in fact the applicant continued to occupy the premises;
Niemand and
his workmen were earlier requested by the first respondent to leave
but they did not do so; the first respondent removed
equipment from
the store and placed it in front of the premises and asked them to
take their equipment with them which they did
not do. Mr Kulenkampff
argues that the applicant failed to give details of the conversation
between him and Michaels, whereas the
respondents have stated exactly
what Michaels said to Niemand. I do not find the allegation that the
workmen were ordered to leave
the premises by the security guard
lacking in detail. The applicant’s case does not rest on the
nature of the conversation;
it is the respondents that seek to stress
and emphasize the friendliness of the conversation. Michaels on his
own version did not
say much either; all he said was he had been
advised that the contract had been cancelled and he asked the
applicant to leave for
the sake of good order. It is rather striking
that the respondents allege that Michaels was not acting on their
behalf, but are
so keen to emphasize that the discussion between
Niemand and Daniels was friendly and not visited by any threats or
threatening
attitude. The tapping on the shoulder of Michaels by
Niemand is neither here nor there in my view.
[57]
It is submitted by Mr Kulenkampff
that there are many reasons why the applicant could decide to leave
voluntarily and those include
the following: the fact that it had
financial problems; it had to put up a guarantee and it had to put up
insurance; it realised
that it had no lien because it did not have
exclusive possession and the law required exclusive possession; it
owed the respondents
an amount of R167 000 and had no
claim; it did not want to finish the contract; it did not want
possession but security
if one has regard to the letter written by
its attorneys on 18 March 2015; and it had submitted ‘fraudulent
invoice’
(which is disputed by the applicant) from Reeduwaan
Alice (‘Alice), reflecting an amount which was double the
amount he charged
for the roof structure. This proposition is not
reconcilable with the actions of the applicant throughout the period
of March 2015
and before. It does not make sense that the applicant
would resist the cancellation, involve attorneys, exchange
correspondence
with respondents through attorneys on various
disputes, refuse to leave when requested by the first respondent to
do so due to
the cancellation of contract, only to walk away freely
after being requested by the security guard in a friendly manner to
leave
because the contract was cancelled and for the sake of good
order. There was nothing new that Michaels raised in the conversation
that would suddenly lead to a change of mind by the applicant.
Furthermore, the issue of R167 000 owing only arose after
19
March 2015; that could therefore not have been the cause of the
applicant deciding through its workforce to leave. Those issues
are
in any event in dispute and fall to be determined in future
litigation or arbitration. The above submissions implicitly invite
the Court to make findings on the rights of the parties to possession
of the site in determining if spoliation had occurred, which
is
legally unsound. I decline the invitation of entering that debate.
[58]
I now turn to the question of
Niemand’s alleged authority to consent to the vacating of the
premises on behalf of the applicant.
Wiese is said to be the sole
director of the applicant. There is no allegation that he or anyone
else on his behalf with authority
agreed to hand over their
possession of the premises. In fact, Wiese was criticised for not
being on site often enough, for lack
of supervision and for being
hard to contact. I have taken cognisance of Mr Kulenkampff’s
argument that the applicant characterised
Niemand as someone that had
authority at one point in its papers. Wiese alleged that neither he
nor Niemand was aware that Martinus
handed the keys to the first
respondent. The impression one should get from this, according to Mr
Kulenkampff, is that the two
people that keys are to be given to and
who are in control of the premises are Wiese and Niemand. He argues
further that Niemand
is a site manager unlike the foreman in the
Stocks Housing
case. Whilst Niemand may have been in a position of seniority or
responsible for managing the site, there are no facts to support
the
proposition that Niemand was authorised to consent to hand over
possession of the premises. I would not like to equate the
fact that
he managed the site on behalf of the applicant to mean that he also
possessed authority to acquiesce or consent to handing
over
possession of the premises. I therefore find that the respondents
effectively took the law into their own hands by seeking
to enforce
what it considered to be its right which was to dispossess the
applicant of the premises pursuant to their cancellation
of the
contract.
Relief sought
[59]
That
takes me to the submission that the relief sought by the applicant
extended beyond the relief that can be granted in terms
of a
mandament
van spolie
.
Mr Kulenkampff argued that this remains the case even after the
notice of motion was amended. He argued that the
mandament
van spolie
only restores possession and not control. Furthermore, the applicant
was not in peaceful and undisturbed possession of the premises.
According to Mr Kulenkampff, this can be gleaned from one of the
letters written by the applicant’s attorneys dated 11 March
2015 complaining about the respondents’ unreasonable conduct
in that they interfered with, hindered and/or obstructed
the
workmen employed by the applicant to such an extent that some
subcontractors were unwilling to go back to the site. Relevant
authorities show that for a spoliation order to be granted,
possession must be ‘peaceful and undisturbed’
[21]
.
In the judgment of
Ness
and another v Greef, the
Court
held that, ‘By the words “peaceful and undisturbed”
is probably meant sufficiently stable or durable possession
for the
law to take cognizance of it.’
[22]
In
Kgosana
and another v Otto
where applicants had squatted on the respondent’s property
without his consent, the court held ‘the respondent from
the
outset, continuously and timeously, took appropriate steps to counter
the applicants’ illegal conduct. The applicants’
occupation did not become peaceful and undisturbed.
’
[23]
Having regard to the relevant case law, I am of the view that the
meaning of the words ‘peaceful and undisturbed possession’
is not as narrow as argued by Mr Kulenkampff. In
Mbangi
and Others v Dobsonville City Council
the
Court said, ‘it would be evidenced (but not necessarily so) by
a period of time during which the de facto possession has
continued
without interference
[24]
.’
Interference in a literal sense may occur in joint possession by its
nature. Hindrances, obstructions or irritations complained
of by the
applicant’s attorneys did not mean that the applicant did not
enjoy ‘peaceful and undisturbed’ possession
in the legal
sense or in the sense referred to by the relevant case law. The
respondents’ alleged unreasonable conduct which
seemed to
irritate workers on site also did not lead to loss of possession. In
this case the applicant has been able to show sufficient
level of
possession which was continuous until it was deprived of it by the
respondents. Parties had joint possession and the granting
of a
spoliation order would not give the applicants more than they had
prior to being deprived.
[60]
I am not persuaded that an order be
made that the sheriff with the assistance of the police where
necessary be authorised to assist
to effect this order.
Striking
out
[61]
In view of my findings on the
merits, I do not find it necessary to make a finding on whether or
not certain paragraphs of the answering
affidavit should be struck
out. In any event those are not crucial to the determination of the
case before me. They deal with issues
of breach and undertakings
made, which once again are issues to be considered in the future
litigation and cannot be resolved in
spoliation proceedings.
Costs and
Urgency
[62]
On the issue of urgency the
applicant submits that an application of this nature is by its very
nature urgent and if the matter
is not dealt with as a matter of
urgency, the applicant shall not be afforded substantial redress.
[63]
As regards urgency the respondents
admit that a spoliation application enjoys a sense of urgency.
They however denied that
it enjoyed the degree of urgency specified
in the notice of motion. The respondents feel aggrieved that
the notice of motion
gave them a few hours to prepare and file
answering papers notwithstanding the fact that the applicant took 6
days (after 19 March
2015) to deliver its founding papers. They are
of the view that the applicant should be visited with costs on an
attorney and client
scale regardless of the result. I agree that the
applicant should have afforded the respondents more time than they
did to file
answering papers. Whilst the matter was urgent, the
urgency thereof did not require a degree of haste such that the
respondents
are only given a few hours to file their papers. Be that
as it may, the applicant’s conduct does not call for a cost
order
on an attorney and client scale nor does it call for departure
from the general rule that costs should follow the result.
[64]
There are also costs relating to the
amendments of the notice of motion, one in respect of which the
applicant tendered wasted costs
occasioned by such amendment. It is
only fair that wasted costs on both amendments be borne by the
applicant. Whilst the result
favours the applicant, the knee-jerk
manner in which it conducted its case, changing its relief as the
case went along, must be
criticised.
[65]
In the circumstances, the following
order is made:
1.
The respondents are directed to forthwith
restore peaceful and undisturbed possession of the immovable property
described as Erf
1496, Somerset West and situated at 5 Aries Street,
Croydon Vineyard Estate, Somerset West to the applicant.
2.
The respondents must pay the costs of this
application, including costs that stood over for later determination,
jointly and severally,
the one paying the other to be absolved,
except for costs occasioned by amendments to the notice of motion.
N
P BOQWANA
Judge
of the High Court
APPEARANCES
FOR
THE APPLICANT: Adv A Heunis
INSTRUCTED
BY: Goussard Coetzee & Otto Inc., Somerset West, C/O De Jager De
Klerk Attorneys, Cape Town
FOR
THE RESPONDENTS: Mr Kulenkampff of Kulenkampff & Associates,
Somerset West
[1]
Rosenbuch
v Rosenbuch and Another
1975 (1) SA 181
(W) at 183 A-B.
[2]
2013
(5) SA 521
(WCC) at 524G to 525B.
[3]
Mankowitz
v Loewenthal 1982 (3) 758 (AD) at 767 F-G.
[4]
2007
(5) SA 114
(ECD)
[5]
Malan
v Green Valley Farm Portion 7 HoltHill 434 CC supra at para 25; See
also Erasmus Superior Court Practice at E9-4.
[6]
Malan
v Green Valley Farm Portion 7 HoltHill 434 CC supra at para 25
[7]
Erasmus
Superior Court Practice at E9 – p5-6.
[8]
1964
(4) SA 62
(WLD) at 68H-69A.
[9]
See
Erasmus Superior Court Practice at E9-10.
[10]
1906
TS120 at 122.
[11]
1996
(4) SA 231 (C).
[12]
Stocks
Housing v Department of Education and Culture Services supra at 240
B –D
[13]
Erasmus
Superior Court Practice at E9-10A.
[14]
Erasmus
Superior Court Practice at E9-10B-11.
[15]
See
Erasmus Superior Court Practice at E9-11 to E9-12.
[16]
Stocks
Housing v Department of Education and Culture Services supra at
239D-E
[17]
It
has been held that even a thief can be in possession. In this regard
see
Yeko
v Qana
1973
(4) SA 735
(A) at 739D-G
[18]
Stocks
Housing v Department of Education and Culture Services supra at 238
G-H
[19]
Stocks
Housing v Department of Education and Culture Services supra at 240
H - I
[20]
At
240I-241E.
[21]
See
Mbangi and Others v Dobsonville City Council
1991 (2) SA 330
(W);
Kgosana and another v Otto
1991 (2) SA 113
(W); Ness and Another v
Greef 1985 (4) SA 641 (C)
[22]
Ness
and Another v Greef supra at 647D
[23]
Kgosana
and another v Otto supra at 116 H
[24]
Mbangi
and Others v Dobsonville City Council supra at 338A-B